The Future of Human Rights

ALTER NATI VE LAW FORUM ... ., .. r. H Y

J22/4 , Jnfcanll)' Rvau. B'lon~.l ACC Nu ' --- ~_7

__ .__ _

The Future of Human Rights Second Edition

U PENORA BAX]

OXFORD UN IVSa.S ITY 1'1.855

Contents

Atkllowltdgt>mfflts

"

Prfjace

nu

AbbrtvitJrions

xxv

I.

An Age of Human Rights?

2.

Two Nodons of Human Rights: 'Modern' and 'Contemporary'

33

3.

The Pnctices of 'Contemporary' Human Rights Activism

59

4.

Too Many or Too Few Human Rights?

%

5.

Critiquing Rights: Politics of Identity and Dirre~nce

115

6.

What is Living 2nd lXad in Relativism?

160

7.

Human Rights Movements and Human RIghts Markets

200

8.

The Emergence of:m Ahenute Paradigm of Hunun Rights

234

9.

Market Fundamentalisms: Business Ethics at the Altar of Human Rights

276

Bibliography

303

Author Index

330

Tllmlt I"do:

336

Acknowledgements I dedicate this book to the lamented Neelan TIruchdvam, a friend fOf ~r three decades. Ncelan-S2n (as I used to fondly c211 him) strove w preserve a distinct and aUlhentic postcolonial, future for the rights of 'minorities,' as a mode of entrenching a hutnatle future for human rights. He declined the prerogatives of:l. safe globalizing expatriate life as a way of making the futu~ of human rights mo~ secure; and he lived and died close to the seem: of crime, as it were, :against human futurcs. This dedication speaks to his living pmrnct amidst IlS, a lumino us presence for the tasks of reconstruction of alternative human rights futures . This work owes a great d eal to the stimularion offered by my students at Sydney University Dep2rtmcnt ofJurisprudence and International Law, Delhi University Law School, Ouke Law School, W2shington College of Law, NYU Global Law Ptogr:lm. the Law in txvelopm~nt Prognm at th ~ Warwick Law School, and the National Law Schools of India (NLSUl at

•

Bangalott, and th~ NALSAR at Hyd~f2bad .) As a work in progress. various th~matlc! of this work ~tt presented to seminars and colloquia: Th~ Indian Academy of Social Scien~, Pune Congress; The Ausrralasian Law Teachers Gold~n Jubilee Symposium ; the University of La Trobc; th~ Universities of Copenhagen and Lund; Th~ ~ntre of Ethnic Studies. Colombo; The ~ntre of Middle Eastern Studies at Princeton University; Th~ University of New York Law School Faculty Workshop; The Harvard Human Rights Progrunme Roundt2bl~ on Human Rights and Univ~rsity Education; the University of Warwick; and the R~~arch School of th~ Australian National Uni~rsity, Canberra. I must here especially m ~ ntion the sinb"lliar honour done to m~ by the University ofEsscx Human Rights Centre day-long interdisciplinary discussion of the first edition of this work. Many distinguished colleagues hav~ been generous with their comments on the thematic of this work. Professor Satyaranjan Sathe (my teacher at Bombay University) al~rted m~ to th~ perils ofinfdicitous styl ~ of writing. Professor Lord Bhikhu Par~kh was warmly supportive all along. Professor David Kennedy (Harvard Law School) in presenting an early

x Acknowledgements

•

paper on the thematic of this work at the NYU Faculty Workshop gt:ntly reminded me of the heterodoxy of my footllote citations. queried the viability of many binary distinctions' draw (especially in the ~nre of 'progress narratives') and raised the important issue of how far my work may be said to belong to the conventional corpus of human rights scholarship. Professors Nonnan Dorsen and Ted Meren, at the same event, wondered whether the appropriation of human rights languages might not be, after all, a 'good' omen for the future of human rights. Other distinguished participants at the faculty workshop (notably Professonl mnk Upham, Christine Harrington, and Ruti Teitel), who, while agreeing with my notion of trade-related, market-friendly human rights, interrogated the ternlS of description. So did Professors Nathan Glazer, Henry Steiner, and Peter Rosenblum at the Harvard Human Rights Programme p~ntation.

Professors Bums Weston and Stephen P. Marks raised Ill.my friendly interrogations concerning my distinction between the 'modem' and 'contemporary' human rights paradigms. Bums remained agonized by my distinctions between 'markets' and 'movements' for human rights and the languages of commodification of human suffering. Steve insisted that' name my 1999 contribution to their c~ited volume as ' the voices of suffering.' Professors Talal Asad and V«na Das raised (at the Princeton Seminar) questions concerning the adequacy of my understanding of anthropological approaches to human rights. The lamented Professor Dorothy Ne1kin (with whom I had the privilege of teaching Law and Science seminar at New York University Law School Global Law Program) offered detailed comments on an early draft of Chapter Eight. Professor William Twining has graciously nudged me in the direction of understanding the fonnative traditions of analytic and comparative jurisprudence in its relation to contemporary globalization, a difficult task which I may, I have realized, addressed morc fully. Professor jane Kelsey (University of Aucldand) remained all along warmly supportive of this difficult project. Besides jane, among other activist friends with whom I have had the privilege of working for decades are: Dr Clarence Diu (President, International Centre for Law and Development, New York); Dr (Ms) Vasudha Dhagamwar (Director, Multiple Action Research Group, New Delhi); Ms Shulamith Koel1lg(Executive Director, The People's Decade for I-Iuman Rights Education, New York); Smitu Kothari (Lolcayan, Delhi) ; Wud Morehouse (Presidcnt,lntemational Council for Public Affairs, New Yew York); Ms Rani jethmalani (a co-founder of WAR LAW, Women's Leg:al Action and Research); Flavia Agnes; Dr (Ms) G«ti Sen (who sought to

J

Acknowledgenlents xi

educate me concerning the ..esthetics of human rights); and Vandam Shlva, and Martin Khor, and all his colleagues at the Third World NetwOrk. who, have (perhaps unbeknown to them) helped me to sustain many a pracace of unsustainable thought. The a:knowledgement of activist friends remains mcomplete WIthOut the mention at least of some activist judicial friends: justices VR. Knshna Iyer, P.N. Bhagwati, DA Desai, 0. Chinnappa Reddy (India), Ismail Mahomed (South Mrica), and Michael Kirby (Australia) . Ismad embodied v.as t j~ristic energies [hat resituated many unfOlding futures of human nghts 111 a post-apartheid South Mrica., and beyond. Michael continues to srmbolize the oases for hunun rights futures for the still despised sexualitJes and for human rights of those affiicted by the AIDS pandemic. Till t~ay, ~ remai~ moved byChinnappa's adoring reception of my first major article The Little Done, The Vast Undone: Some Renections on Reading Granville I\ustin's tnl ltulian ConstilIItion: A COmtntOIU! of t"~ Nation' published in late sixties in thejoumal oflh~ Indian Law IlwiW/~ and hi~ extraordinary jurisprudential labours\feats at the Supreme Cou'; of lndia ha:e .in tum innuenced a ~at deal my approaches to human rights thmking. Fr~m Praful Bhagw.m I learnt a good deal concerning the vinues of the ~ractJces of human rights utilitarianism. Dhirubhai (D. A. Desai) cxcmph~ed a p:ofile injudici~1 coura~ in his rohust pursuit of the rights of the dlsorgamzcd and orgamzed labour in India. And to Krishna, above all, I owe: eternal gratitude for his tempestuous summons to attend yet further to the agendum of the 'little done, vast undone'. I renuin fully aware of the dangers of under-acknowlcd~ment of this necessarily briefarchival. . ~~ny activist friends at the Bar, fortunately too numerous to Illcmion II1dlV1duall~, tuvc contribu~ed a great deal to my understanding of the w:l.YS of production of human nghdcsness in India. To the Oxford University Press notably to [he Commissioning Editor and r::' h~r colleagues I owe: enonnous debts for copycditing and indulgent publication schedule. .While conventional protocols require acknowledgement of my authorship of this work, it remains a composite creation. The heavily silent burdens .of the labour of this writing have been gnciously as ever borne ~ my ~fe Prcma. I owe some distinct debts: to Bhairav nuny thanks for ~IS culinary mischief; to Pratiksha for bringing more fully in view tile Im~rtal1Ce of the distinctive practices of activist feminist ethnography of Indian I~w; to Viplav for his constructive scepticism concerning my unders~ndlllg of the .processes of digitalization; and to Shalini for her syrnph~l1Ies. I have Simply no w:l.y of knowing how our granddaughter P:.tnpooma (now abut five years) and her brother Sambhav (now 23 weeks

xii

Adcnowlc:dgtments

young) will r~ad this work in th~ir early teens, hopefully at l~ast out of curious affection for a vanished gnndparent! Without diminishing in any way any of these individual and collective debts, I need to say that the work in your hands owes, in ways beyond mditional labours of authorial acknowledgcm~nt, to the mAl au/haN. If th~r~ is anything cr~ative to this work, it owes to thr« d~cades old association with social action struggk for th~ human rights ofsubordinated peoples at divel'K siteS, within and outside India and in particular to the heroic struggie of over 200,000 women, children and men afflicted by 47 tonnes of MIC, in the Union Carbide orchcsmted largest archetypal peacetime industrial disaster. From them, and the geographies of injustice constituted by th~ 'organized irresponsibility' and 'organized impunity' of global corporations, I hav~ learnt more about human violation and suffering than the work in your hands can possibly ever convey. I accordingly also dedicate this work to the $uffm'tlg oj till: just, by no means an abstract ·category.'

Preface

The warnl reader response that necessitated as many as five reprints of the fif'S[ edition of this book withill a year and a half of its publication was a.lso accompanied by some distress signals conc~rning the terseness of prose. This revised and enlarged ~dition substantially rewrites the earlier eight chapters. Moreover, a new chapter has be~n included which addresses the recently proposed United Nations nonns concerning human rights responsibilities of multinational corporations and other business entities. This, then, may be considered a new text. I address, in tile main, the future of protean forms of social action assembled, by convention, under a portal named 'human rights'. This work problematizes th~ very notion of human rIghts', the standard narratives of their origins, the ensemble of ideologics :animating their modes of production, and the wayward circumsunces of th~lr enunciation. It revisits the contingent power of the human rights movement. True, many a human rights wave llounders on the rocks of sute sovc:reignty. Yet, these very waves, at times, g:nher the strength of a tidal wave that cmmbles th~ citadels of stale sovc:rdgnty as if tlley were sandcastles.

Rewriting Human Rights Pasts No contemplation of open and diverse human rights futures may remain innoccnt of their many histories. Pre-eminent among these remain the myths oforigin that suggest that human rights traditions are 'gifu oJtht W6I' It) tht mt'. The predatory hegemonies of the 'West' itself compose, recompose, and even revoke, th~ 'gift', Of course, neither the 'givers' of the 'gift' nor its rec~ivers constitute any homogenous category; nor is th~ 'gift' a singl~ or a singular tr:ansaction. The languages of 'gift' also invite the attention to its other: the curse. ~rta;nly, the classical model of human rights emerged as a curse for those viciously affected by colonialism :and imperialism and this work offers many other instlllces. The patrimonial narratives of human rights origins also fctd the worst forms ofcannibalistic power appetires in some non-Euro-American societies. Far too many

xiv

Preface

Preface

South regimes even reject the u nderl ying affirmation of the equal worth of aU human beings, as if this were a 'unique' Euro-American heritage! Authentic inte rcultunl, or even interfaith, dialogue remains a casualty o f warped approaches to histories of human rights ideas and practices. If human rights conceptions are a 'Western' gin, those inclined to presel"Ve this 'cultunl treasure' have much to le;rn't from 'Walter Benjamin's poignant aniculation: There is no document of human civilization which is not at the same time a document of biJ.rbarism. And just as such a document is nO( frtt of biJ.rbarism, barbarism al$O taints the manner in which it w.lS tr:msmitted from one owner to another.!

An alternative: reading o f histories, towards w hich this work hopt:s to makc= a modest contribution, insists that the: originary authors of human rights are people in struggle and communities of resistance. The pluralintiOIl of claims to 'authorship' contests all human rights patrimo nies, and inte rrogates the distinction between the formsof'progressive:' and 'regressive' Eurocentrism. Both forms lUask the: suppression of alternate histories of the no n-European O ther, its distinct civilizational unde:rstandillgs of human rights. Nei ther fully recognizes and respects the ways in w hich the: peoples' strugglc=s have: innovated traditions and cultures of human rights. ~ also, thus, discover the truth that III 1M tasks ofmJ/ization ofhurflQn rightJ all JXOpfa, and aU M tioru, am"" Q$ rqll4f Jlmngm: and that from the: standpoint of the: rightless and suffe:ring peoples everywhere all.sociniD remain undu-

tkvstIcptd/tkvtWping.

Statecraft and the 'Traditions of the Oppressed' The development of human rights remains ineluctably tethered to statecnft. Forms of power and domination provide: the chronicles of contin~ncies o f the: politics of governme ntal and intergovernmental desires. At the same moment, resistance and insurgencies also rc=constitute the political, increasingly in terms of human rights-oriented ima~ries of societal and global development. ls it then an egregious erro r to study human rights as mere: aspects of statecraft that ahogc=ther fail to take acCOllnt of the 'tnditions of the oppre:ssed'? The politics of human rights treats human rights languages and logics as an e n~mbl e o f means for the: legitimation for governance and domination ; it only universalizes the powers of the dominant in ways that l

Waltef Benjamm (1968) 256.

xv

constantly elsewhere reproduce human rightlessness and suffering. Against this disposition, stand arrayed, the practices of human rights activism, or the polidcsfor human rights, e nacting many a ' militan~ partlculaflsm' of the local ag:Iinst the global. 2 HOWl"Ver, even such prxuces remam effete in the eye offuture history unless we-human rights and social movement aClivists--e:llldidly acknowledge that: The tndition of the oppTC55Cd lCKhes us mat the ·state of emergency", in which we live is not an exception but the rule. We must atuin to a conception of history that is in keeping with this insight. Then we shall durly rtallZC that It is our task to bring about a real state of emergency; and this Will imp~ our struggle against Fascism. One reason why F:lSCism !u.s a chance is that, in the name of progress, its opponents treat it as a historic norm. The current amazement that the thing:; we are experiencing :u e 'sriII' possible in the twenrieth century is not philosophicaL The amazement is not the beginning of knowledge-unless it is the knowledge that the view of history it gives rise to is untenable.)

Human Suffering and Human Rights Rewriting the past of human rights remains important for any e:nde:avour at remote sensing their futures. Many a paradigm shift has occurred since the enunciation of the U niversal Declaration o f Hun un Rights (UDHR). New criricallanguages such as the: feminist, ecological, critical race throrist have vastly transfonned the: practices of knowledge and action for human rights. At the same: time, the fonni!bble languages and the dialects of'ncolibenlism' (more: accuratdy, the 'post-Fordist authoritarianism' ).~ which now steadfastly foster the conversion of human rights movements into human rights 'markets', inevitably commodify, in the process human! social suffe:ring. I trace in this work, in particular, the paradigm shift from ~ Univcnal Declaration ofHuman Rights to that oftrade-related, nurketfrie:ndly human rights, now further aggravated by the conCUrRnt forms of the: WIlrof'tnTor and the: WIlron 'tnTor. Both these 'wars'blightthe futures of human rights in vario us ways and forms.s As if all this was insufficient 2 I articulated Ihis distinction between the polirics ".!andfor human rights in my activist moments of work in India in the foliOONing way (hopefully relevant 10 performances of human rights education elsewhere): 'Mohandas Gandhi i,ll/mud India; )awahatlal Nehru then distovmd India; their followus, in tum, proc:eeded 10 appropnatc India th us invented and discovcred; the task now 15 to re-approprb le India from Its expropriaronl'. 3 Walter Benjamm ( 1968) 257. 4 George Steinmetz (2203) l23-45. $ The posl-9!11 'wan' threaten with extmcbOn the hitheno accepted international flw dISCOUrse distincbon bctwttn intemnional hUlMniwri4ln flw and intcrnarionaJ

XVI

Preface

Prc:face

provocation to the dominant human rights discourse, I revisit tht: troubled historits of relationship between human sujfmlfl and human righlJ. Obligations to minimize human suffering emerge in contcrnponry human rigl1ts discourse as slow 1110tion, rather than as Cast-forward. kind of sUte and public policy orientations. The generative gnmmars, as it were, of human rights dissipate hwm.1I and social suffering, at times to a point of social illegibility. The most stunning example stmds furnished by the recent (23 $(:ptember 2(04) Independent Expens Report to the United Nations Sccrctuy Genc=ral concerning the implementation of the Millennw Goals. It. undcrsundably, sets the most meagrt' standards, slated for attainment by 2015, for 2CCCSS to the basic minimum needs for the poorest of the poor of the world. The wise women and men, acting as loco parmtfi for the 'wretched of the earth', speak thus guardedly only to the distant future for the here-and-now righllw peoples for whom international human rights enunciations appear as a series of callous governance tricks and subterfuges. Even amidst the 'war ou terror', against the nomadic multitudes 6 that now wa~ myriad 'wars of terror', the portfolio of the 'progress i~ implementation' of the social and economic remains cruelly thc= same as ever before. In thc= mc=antime, innumC=r.lble histories of human suffc=ring criss-cross and co-minglc= with the historicity of thc= pre-9f11 and the post-9f11 Grounds Thc= newly instituted political hc=nneneutic ofcollective human security haunts any S('nsc that we may have, or develop, concerning the futurc=s of human rights. It invitc=s. all over again, attention to the ways in which the scattered global hegemonies of the eclectically fostered human rights nomlS and standards retain an enormous potential capacity to reproduce human/social suffering. Perhaps, the future of human rights depends on how the 'reason' of human rights may after all discredit the 'Ullftason' ofsute

uro.

~ts £rw. It diSturbs. and even destroyS, the ~ry foundatklns of mternational comity. The ti~places of Ixxh the 'wal"l' render obsoIcu- the GrotLan doctrane of ImIptJPnltPWL bdli, ""itich, in Its ongm and development. simpl); yet p<M"erfully; Insisted that intenu.oonal law, and human nghts bw and jurisprudence:. stipullted an order of nOli-negotiable obhgatlons 10 numntlze human suffering in WoIr, and war-lib: Situations of uuled ronnlC1. More fundamentlLlly; CVl:n the IIInes of pc~e appear 10 the mmiOl1~ of rlghdess peoples of the world as little different from the limes of war. III other wurds, l~nguagc5 ofsufferLng are not writ as large LIItimes of peace as they art: In tulles of w.u. The emcrging su ndards of international crLlllullll.aw In war·hke situations do not qUite extend to 5yt;temallC, sustained, Ind planned peae«m~ denials of the nght 10 SltlShcoon oftmk hunun needs, such as food, clotIlLng, howlng, and health. 6Th aLbpt the figure of thought so COtl(;Cm:LI 10 Mw;:had Hardt and AnlOmo N~ (2002. 2004).

hUINIf

lWIl

sovereignty and its variously installed predatory regimes of the dominant 'leg:alitlcs'. These constmtly re-enact what Jacques D:~>~:;',~,:S;,;~~:P;~~= ~~ The practices of 'human rights' shelter incredibl d

mll1atlon an

resistance aniculate themselves as se the meaning of 'human rights' I d parate but equal in . the rest of this work. . t:n t:avour to address

~rs~ctives on th~
of (rttltflll tlWtlmlw.'60

!7 A polm cruelly csubhshed, for enmpk. by the 'prodUCtIVe' technologic, enulled III nunufxture and dlslnhullon of Iandllllnc5 or weapons and mStruments of mus destruction. 11 would be excessive 10 gy dl~t these arc commuted by dISCUNV~ prxucC$ aud do not ClOst outside of Ihcst' pracuct'S, The m:u enahty of non-: John Duggar
(I::::

earlO$ Sanuago Nmo (1996); Martha Mumaw (1998); GwITre:y Robertson (1

aU ~r ~m .74 And without any assurance of:augmen uti on in the huma.Jl righb sensitiVIty of apparatuses and agents of national and global governance, such mor:al negotiation of suffering th flves o n the tthic c{th, vioI4ltd. ~ny a Buddhist pllliosophcr evoked the Buddhist doctnne of kanma (co m p4s.!.ion) for Pol Pot.~s Contemporary human fights cultures hover between 'retribution ' to the ..,;obtors :md the. displays .of . forgIveness of those violated, manifesting somehow the e~h,eal supenoTlty of those irreversibly VIolated. Ptrh:aps, o r pcrh:apS not quite, the future of human fights depends on how this monl negotiation of suffering is, III the dcc:ades to come, made more inclusive, participatory, and JUSt , from the sundpoint of those violated rather than mal of the perpetrators. In raising these anxious questions, I do no t wish to belittle the small and even si~ificant, steps. ~hlls far ukcn. The praxes of making cata~ strophIC practICes of the politics of cruelty aCCOllnt:able arc akin to the work of agt'S .th:at build the great formations of coral reefs. Yet, in the absence ofangUished ne:-v forms of reflexive human solidari ty, 16 the current WOIl drr ofhuman nghts remains fragile. ,. 'S mee memory IS a "ery Imporul1l fxtor m struggle (really; 111 fxt. struggles cIrwdop a kind of COllSClOUS IllOYIng forward of hIStory), If one controls peoples' ~ thclr d~IOIsm . And olle also .... mro'· .,~., ._ kn irdgcone: ofcontrols I _ ~V . . u ... , _ .•. ~ne nee, .C u.elr ~::I

I l(' prrvM>US stmgglc::s ... : MlChc:l Fououh (1989) 89 at 92. of publIC Ill('mory and fornu of orgamzmg oblivion ~y :rrferred fornu of govc:mMlCe aud )"egJlll(' styles for marugmg pohricr.1 ,f lit the VlObtcd hm: their 0W11 hutory. whICh should Kk~ly ma~ this ~ < pcJY.'Cr commgc-m upon moments of col hslOn bc:twcc::n thc 'rnr.rr.lti~ truths pow.:-r ~rxI. lIlsurgem truth of VlelllfiS', pumng to stress 'the power of powt: to :"-:'; and tonne:nnng fomu of sute power Itsc:lf, ..... hen 'aJlXK)US about 1.Ipawm~~. It IS In the: agony of pov.~r ... .rut the POSSlblhty ofJUSUCC" In~IIs'. (1994) 28 n 32: Rc:f1ectu)tIs on NamllUve Rights and VlCtmuge', 111 Upc:ndn Baxi

deari

~r admlluslrauo n

:hc:

"

=

Similarly' .In aski Qlnd,lIon _ ng P:t noc- he:1 to expre» pubhe relllon!! (just before the British I\nd Oorfj PTlXttdmg.'S bcg;m) al massIve and flagr:lIIt ~at1ons of hunlan nghts ("Ycn ~ha:un In voked Ihe higher ethic of the vml~ted. The South Afncan 1hJth and 1& Vee ~ consundy appc:alcd to Ihe e:duc of fOTglvencg . • the h~: :.. has shown du! th e 'lnnct 'NOrld' of the Vlola tc:d 'too m.s history' thai 'RIu ty 1"eS1SUnec to eonfiscallon of lIIe:moty. She aslu: t kind of hum I .. _ ~\-'IU I an 50 1u,aT1ty can one cstabhsh Wldl people: III thc face of th, ...... on tlat the . I COrnrne:ntl > I re IS an nn pu.'iC to tnnsform tillS ~ ulTe:tlng into a monl COIkctrvcIY~~n ~here a WAy III whICh Ou rkllCIIII', COnten tIOn, thaI pain shared 1liiy be r.... trarufonned to bear WIllies.. to the monl hfe: of the comlll ullirv .,. IIIDunon ....theUTtec!Cd>. 10 Wm. t l)otlOI1S 0 f creallOtl of monl coTIIlllunrty lrnIy we State :mel SOCiety in the fx-e of such terror? Vttna Das (1995) 19()..1.

32 The Future of Human Rights

, I'd ' I trivcs rise both to the figuratio n of thlt J 1011'" Pcrlll.ps thIS 50 I 2ntya so 0" 'b I 'n • I way 'phenomenon ofovertn una IZltlon .

O mptllS4lorand lh~~t 1: run~ f the day, 'the escajX into unindlcublhty'''' cn Both. in tunl, Slgtlh 7' at f g1e ob rv\Wf':T that cause egregious hUl1un, and for the very sources 0 a 1" - " •• . violation. Unless these causative. even ongmary POII'f'rs oj human nghts. d ' __~ by the power of human nghts to prevent 'tlditlJi tllil stan conlTOlllrU . d I b the ·ulOre of human rights must, rem:u n cep y 0 scure ''umn ' d lCt2'b'I''Y' I I , I'

t

2 Two N otions of Human Rights 'Modern' and 'Contemporary'

as well as insecure:.

I. Authorship and Ownership he dominant discourse presents the very notion of human rights as 'me gift of the West to the Rest', Not merely arc the terms used here problematic. but equal ly SO is the posited relation among them which is susgestive of a twofold capability/ prowess in the 'West' of independent oriamation and of graciolls generosity, I lowever, the meuphor of 'gift' rcnwns radler esotenc w hen we recall its preconditio ns for generosity include wholesale theft of nalions and enslavement of peoples in the fouoding moments of colonialism 1 and in some recent mo ments of ncocoIonw ckvclopment, where the 'gift' emerges 111 terms of new form s of wa.a1agc, lIlc1udmg the regimes of trade, aid, development, and human ritrhts conditionality. 1bc notion ofgiftasa unilater.1I action complicates tbe anthropologically 9aIidated nature of gift as acts of reciprocity among coequals. And I do not nm begin add ressing the question of distinguisiling lx:twttn 'gift' and 'CUJ"sc'; mol[ is, when the rt:trosp«tivdy constructed 'gift' of human rights IIands accul3Cd by coloninrion in its myriad forms. Nor do I pursue here -specific undersunding of the epistemic violence involved in lumping totDether vast masses of humanity, cultures, and civilizations. going lx:yond - bistoric time of the 'West' and somehow constituting the 'Rest' and, analogoUSly, the undifferentiated ideolOGical reduction aflhe constitutive ~ns of the West,.21hcing these. and related aspects, remains the task . a future work, but this chapter addresses, in bold outline. the inherent Violence of the paradigm of the ' modern ' human rights.

T

I ,

_

' "',;&ctkcs of tonquesl and eoloni7.atlon relilaln Inconeeivable of descriplion in any

2 allgll;tge.

be ~ofeso;or Istv;tn

Pngany, Illy

dl~hnguishcd colleague al \Xr';\lWICk. oflcn $3YS that

~ Euro..~ecogtl1tt an)'lhmg Ihat he knows of EUroplhty' wnhlll which 11 remai ns jusllfiable: to 'Peak of collectivltlcs as 'pc:rwns' and 'sc:!v«'.

> 38 The

Futu~ of

Two Notions of

Human Rights

tnditions of hum.an rights are scarcely exhausted by the imagery of the individual, egoistic, ~n pannoid sclf;14 ver.;ions of the communi~rian selfalso emerge (sex, in particular, ChapteT'S 5 and 6). nlese latter vt:T'SIOnS, however, bear a consldenble similarity to many a pre-capiulist notion concerning the self in society. and suggest that commUluties foster logics IS and panlogics of human dutit$ that overall justify human rigllIS. The impossibility thesis, 1 suggest, is tOO closely tied ( 0 the dominant diSCOUTk of the egoistic bourgeois self and begins to weaken when we take full account of com munitarian logics of identity and rights. No matter how human rights traditions may be thus conceivedhistorically or ontologically-the Clpitalist state-fonn emerges, in different historic moments. as a contradictory site both of negotiation of connict between different fractions of capital, on the Olle hand , and as the site of 'reconciliation' of antagonism between labour and capital, 011 the other. 16 Typically, the bearer of rights, the subject oflaw, stands doubly constituted as a self-detcnninative and as a 'subjected' subjectP Modern human rights arise, as :l.lready noted, within secularizing State formative p~c~ices. where the authority to rule forfeits claims to divine, or SCIl1I-dIVlllc origin . The contest. often fierce, for secure political ~oyahy thriv~s?n rlrisworldly practices of politics. not otlltT-worldly ~once~tlons of COSI~IC Justice: human rights I:l.nguagcs, logics, and paralDglcs, aflSC only Wlthlll :I. mlheu where the legitimacy of goverlunce becomes possible within realms of negotiation among fractions of capital, and labour. The el11ergen~c of the 'Western' human rights traditions is understandable only wuhln the dialectical role of the state constituted by the imperfecubility of either a collective capitalist or labouring class, outside the ambivalent Clrcer of state mediation.

II. Consequences The 'weak' and the 'strong' claims, cumulatively, accomplish a result where non-Western traditions are considered bereft of notions of human rights. Neither did they experience the rise of capitalism with which the origins of ,modern' human rights is inextricably interlinked; nor did they atOll1 the 'flourishi ng of theoretical knowledge [Stll>inur\ through which European humanity passed' 011 the way tow:l.rds 'its modernity' .18 Such consciousness 14 Thl5 15 a typically H.ortl~n deScription; Sec, Rlcll1rd I ~ Sec, Alan GcWlrth (1996) 71- 165.

Rort)' (1999).

Sec, Uob Jes50P (1990): Nicos Poul~ntUtS (1978). 17 Peter fittpatnclt (1992, 20(1); CostaS Ooutmu (2002).

16

•1 Emnunud I..cv1nas (1987) 119.

Human Rights 39

ofhurnan rights that occurred in the non-WeStern societies is said to be purely due to the patterns ofImposition and diffUSion of the Enlightenment )del!> among them. It was the mimetic adaptaoon of these Ideas that enabled, ~cn empower~d, th~ ~lon-WtSt commumties of knowledge and pD" .~ bourgeo h ' ' a'A 5 cnuque of the Cimr til ISE uman rights, tho.rOl~ghly secularize the diSCOUrse. At the same Ibt • , e uropean moder~lty IIlvcnts the Idea of Pr~ under which PO.~ICS of cruelty entailed 111 colonialism stands ethicaHYJ'ustifi d "liS IS well known The " wh " , Imlpora ' h .. .qucstlon IS ether what I call the 'conIIImt ofJ ' u: an ~Ights paradigm remains merely the dynamic unfold_ devdopm e m em. Put an~ther way, Standard rutrntives ofhul11an rights '~ ent suggc=St, and remforce a continuity thesis wh,'ch" h - ....lIlporary' h . h ' InSISts t at IDthe tnts f' ~ma~ ng ts c~nstitute no more than a series offootnotes dar · ~ III em concepllons ofhuman rights. From this vi .

;n A1J

~~::::~~l a~~ar::I~~ of ~od~rui~

itself leads to

stru;:~t;

PI'Ovickd th . etermmanon; If the Enlightenment tradition c:nticaJ wh e lJ~petus for an Age of Empi~ it is also said to fUrnish the

ICCond ~r:::~al ~or nationalist freedom struggles beginning from the Phctices of pol' .Ie n~netcenth century CE. If it justified unconscionable For CVery dirne Itl~S 0 mass crucl~ i~ also justified insurrectionary pr:uris. IOwards a new r;:g1lon °l frh~darkslde 111 the Enlightenment lay the opening ' _rn porary' hI It. n tillS . the emergence of ' deeply Clawed perspective, IleQllogiCS of thell;~an rl~1S merely ~arks the unfoldmellt of the imlna_ ... OUthne of re lid · o;:tern hu~an . nghts. I provide later in this chapter .. p lanOn of tillS mIndlessness of the cOlltinuity thesis.

ko Stn uss (1975).

Two Notions of Hunun Rights 45 44 l1lt Future of Humm RighlS

IV. The Loglcs of Exclusion and inclusion The notion of human nghts-histoncally the rights of rMII - lu!. ~ confronted With rHO pc'rpleXities. The first eoneen\S the nature of lurman fUture (the Is question). The s«ond concerns the qUC:;lI~n of who 15 to be counted as 'human' or 'fully' hunUJ1 (the Ollgh, question). While tht first continues to be debated both in theistic and secular tenns,?I the M'cond question occupies the centre sta~ of the modem enunciation of hUlllan rights. The critena of individuarion JO in the Europc'a,~ libera.1 tradlUon of thought furnished some of the most powtrful cx.clus,onary ld~ IT1 COn· structing a model of human rights. Only those bemgs were to be regarded as 'human' who were possessed of the capacity for rt'a5011 and autonomous moral lvill . What coullted as rt'asorl and I/!jJJ varied in the long devclopment of European liberal traditiol15; however, the modern p;radi~11 ,of humal,1 rights, in its major phases of development, exclu~cd slaves, hea~hens. 'bart»rians', colonized peoples, indigenous populations, women. cluldren. the impoverished, and the 'insane', at various times and in var.lous ways, from those considered worthy of being hearers of human Tight!.. Tht discursive devices of Enlightenment rationality constituted lht'gramnurs of violent social exclusion. The 'Rights of Man' wt:re human TightS of.,,1\ men capable of autonomous reason and will; and va.. I f dit' .........01 Cl«ludcd. for c:ompie, umouctublo, rendcnng them ""J"'~ ulC pa e 0 systc:ln: sec: Upendn Sui (1995).

.. """"",,,ISm

That Justification was inherently racist: colonial powers

~ a coJlccllve human nght of 'supenor' ract's to dominate the 'inft'ric- ' one!>. Contrary to the suncUrd descriptiOn ofhbcral rights pan.-

'r digrt1 that makes It a stranger to the conccpUOIl of collectlvc nghts, the para,hWl~ of <modem' hUI1l~n Tights marks the bcgI~nin!:? of the recogonion ~ll tht' coliCCtlve nghtS of European nations to own other peoples, ~d' terTitoTies......ealth, and resources. The Other In nuny ClSes ceased 10 ('Xist before the 1I11periai law formations as the doctrine of 'ara rll/lfills, (oUowulg Blackstone'S scandalous distinction between the inhabited and uninfuhiled coionics. JJ Since the Other of dle European imperialism was, by dcfill1tion, not human or fully human, 'it' was not worthy of human rights; at the very most, Chnstian compassion and charity may fa!;hion IOIDC' Ikviccs of legal o r jural paternalism. That Other. not being hmm.n or fully human, was also liable to being merchandized in the slave market or reduad 10 being labour-power commodity to be exported within and ICtOIS the colonies. Not being entitled to a right to be and to remain a human being, the O ther was .made a .stranger and an exile to the language _logic of human Tights bemg fasluollcd, slowly but surely, in (and for) . . ~t. The clasSical hberal theory and practice of human rights, ill its ~ er.a was, thus, IIlnoc~nt of the ullIV('rsality of rights, though no IIIIIIFt 10 Its rhetorIC. 1'hto ~tul'1l_ collective human right of the 'superior' races to rule the ::::.: ones IS the only juristic justification, if any be possible, for colo... unpcn.ahsm (and ItS contemporary nco-unpenahst incarnations) • ~ m many shapes and fonns. One has but to read the 'dassic' 0( John Locke. and even to solne extent of John Stuart Mill, to %""~:~ range of talents dL"Votcd to the Justification of colonialism .34 de: esc diSCOUrses WC'TC dle violent Joglcs of human ecology and ~ll[aJ. logICS that cOI\Structed the collective human right of the IIIo.n ~ SOCletles to gove.m die 'wild' and 'sa~' races. All the welJJIk,ed. tit I C'S .of the .formatlVe" era of classical liberal thought were deIDd ..... ~I e. ogtcs o~ nghts to property :md progress; the state of nature ' - combining the mfantalization of'races' lad .... the, 'iOcICty· .' soclaIDarWlIusm ta ' ITn:auon. . The collective human right lID CoIoniIl ' tunty h I of the s tagesf 0 CIV fJIod' of~t hcess weJl.ordered peoples and societies for the collective ..... 1'Iot I . t as well as of humankind was by definition, indefeasible as CIrIIItrad.e:- so HI the least weakened in the CIITiOliS logical reasoning by the lOllS of cvolvlllg liberalism.

~1992) 72-91; ~:c. also, Puncu 'I\lIIt (2Q04). kh (1997); Uday Mcht;t (199!!).

Two NOUOll5 of 1·luman Rlglus

46 The Futun: of Human Rights

..L-~' penod.ln nkl ' the: 'modem' era, the authorship ofh umann'gh ts

__

V Human RightS Languages and Powers of Governance T h e lang\l~ges of human rights remain central to usks and prOlCtlCcs of govcrn~nce. as exemplified by the constiruti~ elements of the 'modern' paradigm of human rights-namely, the collective human right of the colonizers to subjugate 'inferior' peoples and the absolutist right to property. The mamfold, though complex, justifications offered for these 'human rights' ensured that the 'modem' European nation-state: (inUlgillN (ommuni_ lin on o ne register and 007 James Bond-type communi/iaon another regisler) WlS able to marshal the right Ie property as a right [0 imperiuIII and dominium The construction of a collective human right to coloniaVimpcrial ernance is made sensible by the co-optation oflanguages of human rights into those of racist governance abrood and class and patriarchal dOlnmation at h ome. The hegemonic function of rights languages, in the :.crvice of gollfnrance, at home and abroad, consisted in making whole groups of people socially and politically jllvisiblt. Their suffirhlg was denied any authentic voice, since it was not constitutive of 1mman suffering. 'Modem' human rights, in their originary narrative, entombed massc!> of human bein~ ;n shrouds of necrophilic administration of regimes of Silence. In contrast, the 'contemporary' human rights paradigm (as we shall set shortly) is ~sed on the premise of radical sclf-detenmnation. It is, therefore. endlessly inclusive as far as norms and standards of human nglns are concerned. In this paradigm, governance may no longer be based on conquest or confiscations of peoples. territories, and resources. Further, every human being is now to be counted as human; forms of govemanc~ may no longer legitimize themsel~ by practices of overtly institutionalized racism. Self-determination insists that governance be based on tht recognition of equal worth and concern for each and every human personFurther, as the contemporary human rights theory and practice devc:lops it interprets self-dcternlination by the recognition that each and every human being ought to have a right to witt. the right to bear witneSS 10 violation, a right to immunity against disartitllUlfiotl by concentrations of economic. social, and political formations. Rights lang\lages, no lon,ger ~ tXllllsillfly at the service of the ends of governance, thus open up Sites

gov~

resistance and struggle .

VI. Ascetic Versus Carnivalistic Rights

.

Productioll ,

'

The 'contemporary' production of human rights is eXliberant.J5 1"h15 IS Ii virtue compared with the lean and mean articulations of humall rights I 35 See for an mSlghtful

(JV(:1'VIew;

BUrl\5 H. Weston (1997).

47

conceived fra

y III tcmlS that were both $lol«"U"':' ' tc ' .. an dEurocOltnc the procesSt'S of lormulation of contempo~N r . ' - I h uman nghts' arcUlC"'asm gJ Ylnc IUSlvean d.Olten f1luked by inten~ nego tlallon L_ uctween tbt practitioners 0 f human TIghts activism and ofhum~n . " repression. The aucbon h1p 0 f contemporary human nghts remams n,ulu, d' . .L_ d I f ' u mous, even widlln un;; ISClP mary power 0 human nghts enunciation exercISed . . die Unlled Nations and regional networks • As a resu I t, h urnan ngh" . Ltc • eaunoatlons proUicrate, becommg as specific as the networr..:'l 1.- fr om which ' . ' dIeT anse an d, m rum, sustam. The 'modern' no"o f h ' ,~ h d' I _l. 11 0 uman ngh" ___ sue lspersa .. . _ _ h.-.n f h 'gh ; Ule f only major mOvement luclllg an mcremental lIIPII ............ 0 ten ts 0 labour and Illinority rights TI .. mhstalled in human rights enunciations is notJ11ef'e" 0 [ ey reach out to 'discrete' and 'insul',' . .. :rent. I II I' .. mmonues th"" 37 QM;.lUtOWIO yncw, uthertountho ugJl t o f,Justice ' . constituencies. ,-, • COIItrUl,

~thin

1iesDDWS~dd

""~i:~ry~~~ctJVl~

_--.I

VILJ-Juman Suffering and Human Rights .... _the ' thea ...... righendSof the h twentieth cemu ......, CE• we Iac k a SOCial

bo

but~~rt~~p;e!~~~=_Crit. ically address a whole Zn~ ~~ -*"n.I. . necessary only to highlight the

..... .....

f"~~S' It IS

katonc phr:uc ron~ from the f~n Ii c".J04 U.S. 152 n.4 (1938). lOW OQ(notc4mU"iItdSId/tSV.CaroltM

~ enunciaoons thus cmb the nghts of me prl child m ~~ IncntlOn very different onkrs of ctbt emergmg hUlll.lln ngtn' to 1:;:1 . Uf, mdlgenous peopb, gays and IQSOrutional rq;iJ1lt'$ refi onentauon), pnsoncrs ~nd mose in IlIOCUImeoryofhum ' .ugees and asylum-:seckcrs, ~nd children IiIiI.t: (I) genealogies of h ;m nghts, I ~'sh to deSlgJlate bodlCSof~ h' h

"'I:;'

~ ngh

d

um..;,n nghts m pre-modem' 'lode '

~o(buman ts l5CUl"SIVC form~tlons; (b) comem • n m , and 'comempotIrfIoraoon nghts; (c) tasks collfron porary doourwlt md subaltern W

Ie

"'taefta:, :mdofhi-tech human nghu moven=~8 proJt~ of engerw:icnng hlUl'Un rights; on lheo ts as socl~1 moveffiCnts; (e) Impxts of

tf..... ....

IlbofJ of human righ;: and practlCC of human nghts; (f) the probkm..;,tic:: ' (g) the economICS and the pohtica'

...... _. npt!. ~_.

.

CCOIlOmyof

illusttiluve f bod les of refleXIVe kJlowled I E onlinS I"crementally avaIlable but ges. n selecc areas, tht'SC :~~.:-~-;"~ I,bee 0

~~~!~:,to ven as Ihe er"Ol of' nd II ' . remallllll se~rch ora new genre dl~ppea~ ~ n:mn';to leary .In the Imagin~tion of socl~1 thoughl

::

''''I,;'o'.h;;unlan 'rights thea If :nll Im,per.auvc 1f one IS 10 make 5Cnsible I of human nghry a :r.actlce. Daunting difficulties entaIled ' ~t the endeavour IS ~b~~y tins asp1ration. But In n made by Rlch~rd Falk (1995).t;~ Sh .."(", SS ~n !lOme of mese , I'll 989), 8ow\lCmura de

:'::h"Y

I

D Two Nouons of Human Rights

48 The Future of J luman Rights

task of establishing linbges ~twcen human suffering and human rightS. The modem human rights cultures tracing their pedigree to the Id~a of Progress. Social Darwinism, racism. an.d patr~a~chy (central to the,Enhgllt,e nment ideology) Justified a global Imposition of cruelty as natural , · I an d even ,Just · ,39 'et h lea. . TIle modem liberal ideology that gave birth to the very nouon of human rights, howsoever Euro-enclosed and no matler how ~iven wi.th cont~­ diction between liberalism and empire,40 regarded the Imprniltton of dire and extravagant suffering upon individual human beings as wholl.y justified. Practices of politics, barbaric even by the standards of theological a~ld secular thought formations of the Enlightenment, were somehow COI~S,ld­ ercd overalljusufiable by State managers and ideologues, and the !",lltIcal unconscious that they generated (despite, most notably, the divergent struggles of the working classes). Making human suffering invisible was the hallmark of'modern' human rights formations . Suffering was made invisible because large masses of colonized peoples were not regarded as sufficiently human or evel.l as potentially human. The latter invited, whe~ necessary, total destruction; the fonner, violent tutelage. Although sentient, objects of conquest and subjects of European property rights regimes, the slave and the :olol1lal subject were closer to the order of dungs or beasts, whose suffermg was not Important enough to trump the ear«r of the Enlightenment proJ!:n. As their lordships of the Privy Council succinctly, and WIth elegant cnlt:I~. put It (in 1919), SOllle natives may be 'so low In the scale of ~Ial organization' as to render it 'idle to impute to such ~ple a shadoll' oj n,~lrIJ known /0 Ollr law':'1 Indeed, their suffering had no VOice, no language. and knew no rights. Sousa SantoS (1995. 20(2); Wendy Brown (1995); Roberto ManG'lbena Unger ( 1996); Shadnck 11.0. GUllO (1993), and me prinCIpal arm:ub.lors of Ihe Third World and In ternational uw Movement (TWAlL) including Anthony Allgble, Balakmhnall Rapgopal,James Thco Gam!!. Otnora O·Kufour. Uhupmder Ch1011ll. \bub NeSSlah. and Mukau Mutll. 19 ThiS 'Justlficaooll' boomcnngcd III the foml of politics of gl:nocldc III the Th1rd Reich, often mulling 11\ crue l comphcity by 'ordmary' citizens III Ihe worst foullcb t1on~1 IIlOnlent.~ of the prCJ;CnI-day forms of ethmc cleanslIlg. Is dIll stllndpol1l1 all Y more cOl1lestltble 111 thc vnite of the WrItings of Damel Jonah Goldhagcn (1996) alld Richard Wlcsbe:rg (1992)? «l Uday Mehta (1<mI). ~1 JII "" Sofithml WtodeJU! \19191 AC at 233-4 (emphJ.§ ls added.) In contml, Ihe nled Ul$IIffititudy IlImlllU wttC: capable of suffenng but llielr suffering vns 10 be: amell o by an ~rulOn of me rtghts (as powers) of lhost who ~n: suffiCiently human (lhuS, the p"lriI1e plInM ~t of Ihe husl».od or the father over women and children).

49

In contJ'2St, the post- Ho locaust and post-Hi roshimalNag:wki angst ~sters a normative horror at human violauon. The 'contemporary'

human nghts discursivity is rooted in the illegiumacy of all forms of the politics of cruelty. No doubt, what counts as cruelty varies enormously ~n from one human rights context/i nstrument to another.42 Even so, there are now in place finn jllS lognU norms of International human rights :and humanitarian law which dc-legitimate as well as forbid, barbaric practices a.f power i~ s~te as well as in civil society. From the standpoint of those Violated, thiS IS no small a g:Jiin; the community of perpetrators rcmaim incrementally vulnerable to human rights cultures, howsoever variably, and this matters enomlously for dIe violated. In a non-ideal world, human rights discursivity seems to offer, if not an 'ideal', the 'second best' option. No matter how many contested fields may be provided by the rhetoric of universality, indivisibility, interdependence, and inalienability of human nghts, contemporary human rights cultures have constructed new criteria ofat least delegitimatio n of power. These increasingly discredit any attempt 10 base power and rule on the inherent violence institutionalized in imperialism, colonialism, racism. and patriarchy. 'Contemporary' human ngh~ make possible, in most rcmarbblc ways, engaged as well as renexive di"ourse concerning human suffering. No 10n~r may practices of power, abetted by grand social thcory,justify beliefs that sustain willful inniction oflurm and hun as an anribute of sovereignty or of a good society. Central 110 'contemporary' human rights discourse arc vision~ and ways of con1Cruct101l of an ethic of power which prevent the imposition of surplus reprcs~lon ana human suffering beyond the needs of regime-survival, no matter ~ow ~vagandy determined. The illegitimacy of dll;' languages of Imnu.s:c~t10? becomes the very grammar of international politics. Thedlstmctlon between 'modern' aud 'contemporary' fomls of human rigflts IS focused in t4king sldfning miol/siy. In the ' modern' human rights .

~Fo

r example: 15 capital punishmenl 10 any fonn and with wh~tcvCT JusriflCltion of cruelry? Whrn docs dlscrumn~tlolI, whether based on ..... nder class or taR!:' a~UIl f o· • . ,. Ie mr ann 0 lOTlure proscnbed by International hunun nghts sl~ ndaT(h and nonns? When may fonns of scxual hara5smenl at (he workplace be de~ribcd as an upcct of cruel, mhomane. and de~ding trI~~tmem. forbidden unde r (he currcnI ~mr of Inu.:rnauonal human right! standards and nomls? 1)0 IIOII-COnSCn5Ual sex PflIctICes Wltiun nurriagc relatIonS/lips amount 10 rape? I)Q JII form~ of child labour 10 cruel practice, on Ihc ground thaI the CQnfiscatlOn of childhood is an ~R'5S;Iblc human vlollilon? Are me~ Img:mon proJeCt! CtCallng eco-cx.les and • runental dcstructiolv'degradallon ktSof dcvclopmcnul crurlry? Arc programmes 'I1.is~UIl:S of structural adjusl1l1em all aspcci of the polmcs of Imposed suITering? range of qucstioos is vast and, undoubtedly, more may be: added. & Jlncncr

=nt

_L,

50

Two Notions or Iluman Right'> 51

The Futun:: of Hunun Rights

paradigm. it was thought possible to take human rights seriously WIthOUt taking human suffering ~riously. H Outside the dOl11am of la~ of W1r betwttn and among the 'civilized' natio ns, 'modem' human rights rt. garded large-scale imposition of human suffering ~sjwl and ri~1I11l pursU1l of a Eurocentric notion of human 'progrm'. That diSCOUrse Silenced hUIlUn suffering. In contraSt, 'contemporary' human rights paradigm is anuTUteU by a pohtics of intemational desire to render problematic the very 'rOOon

of the poIitia of crudty. VIIl . The Historic Processes of Reversal The processes by which this reversal happens in the col1tem~rary era art complex and contradictory and require recourse to human rights mod~ o f reading til(: histories of the Cold War and, now, the new Cold War. While no capsu le narrative is ever reliable, I present here, in bare outline, five ways that have sh aped the thoory and practice of 'contemporary' human righ ts,

(a) FragmmtM UuivtrSQlity of 'Colltt mporary' I·/I/man RighlJ It would not be too much to say that the defining feature of the 'contemporary' world has been the rise and faU of the principle of self-:4eternunation. Beguming. in particular, its career with the historic assetUon ~f the right to sclf-:4etennination in India, the principle g10lnlizes Itself, In the early phases of the Cold War, through a r:ldic~1 insistence o n. tl.1C IlIegttl~ macy of colon ialism, Although severely defiled to people hvmS. unde acnullyexistingsocialism, the Soviet Union promoted sclf-:4etenmnatlOll abro.ad, through the granunar of wars of national liberation, SocialISt ideology powerfully discredited j ustifications for imperialism and c~OI1l: zation, while manipulating a startling level of support among the neW, 'no n-aligned' nations for brutal repression in l-Iungaryand Czechosl~ and beyond, . . ' cnC(' The divisio n of the rest of the world mto twO giant sphercs of Influ, ) (itself a cuphemism sheltering unconscionable forms of hulIlan \llol~tgh ,on had a profound impact on the fonnation of'contcmporary' human ~ I" ; . . be . ratcti In II The practices o f right to scICd - eternunauo n came mcaree

°

~

g'

fof"

~ the I1lIe«'5l1ng analysis oon«tnlng 'mllllml UtiOn r lu ncrlll JrcId4'Jf matlvc ""nod of'modem' human nghts in Charles 'ny\or (1999) 124, 140-3, I nl IflIIC ..., ' 'h ' '''IlS 10 nil Tay\or'l obscrvauon thn In 'eontemporary Onll'5 W'I: ave new rca...... , perh'1-"" luffenng but W'C also Ixk a reason to overrKte the mini~ltil~gof $u[f~rlllg Ii. r I. best understood in n::buon to the notion of rachc.al evil dl$Cusscd III Chaptc 4J

III lhe:

r hcgtmony and dominatio n,'" The 'self' proclaimed to be %detem1inauon' thus stoOd constituted by the play ofheg\"monic ~ This necessari ly imphed that d~e birth of the 'new' natlons was ~ also markd by the superpower lin position of enomlOUS suffenng ~ crudl)', Justlfied by either the progress of world socialism or global ~ In this sense, nco-colon ialism is born Just when the practices of * right to self-:4eterminatio n seem to succecd,4S Neo-colonialism not merely shaped the context for the birth of the ..... SU~; it also worked itS way to,contain the newly-found sovereignty oflbe Third World. T he need to mallltain 'spheres of influence' provided jaIIi6c:atiOn for nunufacturing. InstalIi ng, and servicing regimes and cliques of~ in the Third Wor ld that engaged over long stretches of time, with ~ in all ki nds of gross, flagrant, massive, and ongoi ng human rights

-.

1be task of consolidation of the territorial boundaries o f the former

-.mal sates J>OSC.d another limit situation for the universality of the right

I'

. 1IIf'..detrmunatJo n, The ' new' natio ns of Asia and Mriea somewhat ~Iy ,i ns ls~~ that t~l c. right to,self-detc rTllination extended only ..tiIaIIioru of c1 ~SS I C c~lomahs l~, avaIlable to their peoples o nly ona in IiIIIIIIIIy: to detenmne their collective status as sovereign states within th • • •II of mtcrnauona ' II aw, That fi.gh t, o nce exe rd~, was extinguishede ,. future times; .thiS pmumed that the ' Iogic' of colonialism which . . . aU sorts of d ifferent peoples, cuhum, and territories vessels of ...... unity sho uld continue in the post-colony. The postcolonial state tomehow to erc-ate-()Ul of many natlon5-a single 'nation-statc,.46

,"': 'Monroe ,Docmne' of tbe Umted SQles soon round It'> countcrpan in the DoctrlDc , unredeemed by ,'" prmCiples of .L . "- __ .L _I, " . .L - ,. r world, U"" ..............1.. In UlC VJslon 0

~

~ and forces other than idcoq,'Yalso mflucnced the poliocs of 5upe~r

~ss;,bc7fior mfluenct also rmrked the Impenal scramble rorworld resourca'

Uai.ed';:Sl uds, IlOQbly ods, mmenls, forest W'Ca lth, IIItc~tlo[\,J1 WltefWlly.'l· ~ A~ns C}u,~r was, thus, obscenely mampulucd, for example in ~ .......... _ ' , w- fl a, Congo and t"'-. .. ~ • _~_ 1m '. ' ' ....5t ""Ian •Ctlse5- rnana~mem' 111 superpower pcn;Ulsnl HIQtmtro tsclr II h of $Clf..d..: ' I a over ag,ull 111 t e pby or the theory and

·tcmllnanon, The dccololllzmg world w.lS m thc process ""'" ~""'in lIcoIoruu tlQI1. Sec Adllile Mbc be ' ,.- -",.. , -~ of the 'sPCfi' fi m (2001) ror a VIVid ana ly.'ll~ III Ihe MriQn N" ..,,, I hCl IC orm or moblll u uon or space and «'SOUrce" , t lin t e lIUC on hum;;!n suffering. C3Vl y

IX. The Emergence of the Politics 'of' and 'for' Human Rights lbis also, hopefullvI' rende rs Iegl-bl e my .senpt - that IIlSISts -tba titcapsule h' narrative f' t c. IstOryO .contemporary' human rights ;;!ctivism has its origins in dat practices of resIstance 10 the Cold War global fo . . (h -a(crud)'Coph;;!ncy of the ~tiona~ assumes the com m~nding height of free expression. And ~ as plotn~cy de~t1y uses III this form of politICS visions of global No h commandlllg heights for ideological compliance. 59 ~fol~ except tile mJOlmioll ill hlltllall £en.sibility-;;! rather romantic ,0 coursc-rnarks lhe passage from the politics «if!luman rights : "'••Id Ilobcruon (1992) 133. , to a POI~[ that even In tim JO-CIllcd rra ofhmnJn nghtS, fonnc r officials or ~ McCanh party VOICes full-thrmlcdly seek 10 ~ UStlfy' hoTTO _ ..._ aspirations anJ :;gJIIlC and lhe, vanous lechmques of desublhu uon gtmcs as po meally 'senSible' programmes!

~

58 The Future: of Human Rights to the politicsfor human rightS. This new form of sen~ib ility, arising fro",

. n-· tormented voices of the: ViOla..... th e responSive ...... to the tortured and. ' "''', speaks to us of an al'tmo~ politics s«king, against the heavy odds of tht . f~, con.t"1I1PO hUf\l~n nghts fotm~lIon (as ....Ie nott in Ch~plCr 5), I III" ... consc.ousness . 11 For UOimple Ihe eXJwlU.ng eonccmmg ~X1u I h~r:tSsnlCnl ~ !OfI workpl~ Ius ~n to amlCt (~t leU! m tOOu) WOIYS of NGO Ultcmal adnlU"SI~I II

6J

The third tenn--governmemality-invites attention to .. . .. The ensemble fonned by Ihe mSUlUlions. procedures. alla~s ~nd n'flccuons, cbt calculatiOns ~nd taetlc.s. that allow Ihe exercise 0£lh15 vcry specific though albeit complex {onus of ~r, which has at Lts Q~I population, as Its pnnclp;t.l from of knoWledge politic~1 economy, ~nd liS CSSC'nual lechlllcal mcallS appar.UUSH of ,ecurity... \J

Human rights actrvism also crystallizes 'complex {ornts ofpowcr'. It drvclops its own, often distinctive, {onns of this en.scmble. While o ne may think that h uman rights activism s«ks to e ngraft a grammar of conduct by stipulating 'governmentality' standards that control 'conduct of conduct', it also, al the end of the day, remains enclosed within its fonns. For example, when human rights actio n activates judicial review powers and process it also reinforces 'specific though albeit complex forms of power' as well as the 'principal form of knowledge economy'. That form involves, ill the words of Claude Lefort, 'developme nt of a body of law and caste ofspcci.1lists' that sustain 'a concealment of the mechanisms indispensable to dac effective exercise of righ ts by interested panics', even as they also prunde 'the necessary support for an awareness of rights' .14 And human riIfns actIvism stands often silenced by the 'technical me.ns' directed to die preservation of the 'apparatuses of security' as we now learn yet o nce apm m a post-9/I! world ordermgs, despite the recent American Suprem e Court's land mark ruling concernmg the residual due process rights of the ~wumo Say incarcerated. ~ te:nn 'organiZ1ltion' also misleads IIlsofar as It overlooks the poten. . ofdlSOrgalllzcd or spontaneous soci.al action directed to the promotion ... ptotcction of human rights. It over-rationalizes the Idea of human ~~vi~. The key feature of many a notable NGO (as we see in ~ 7) lies precisely in its amorphous character. _ A way OUt ofall this perhaps lies in drom thatdcscribe NGOs in te:...... r .... . ·third ' . ''''-'' Clear! .sector , relatively autonomous from the sute: and the market. ~ thiS difference suggests, ill relation to markets. the pronounced ~c ofa profit motive. But (as we suggest III Chapter 7) the di5tinction Illata n human rights movcments ~nd markets now stands increasingly ~d Funher, were we to develo p a Bourdicu-typc notion of symbolic L-... .' the cmphasis on lIon-profit-making characteristics becomes prob-aattc. Indeed, NGO " " III nucnce and ~ u gmcnt their s see k to maxll1l1Ze t Ilelr POWcr-basc!>. The notion that human rights activism shuns power

ci;hel Fuuc~ult (\997) 219-2(l. \Ide Lefort (1998) 260.

64 The future of Hurn:,m Rights and influe nce IS counter-intuitive as well as coumer-productive. Practices of human righ ts necessarily aspire to attain counter-power o r 110n-d0 I11I_ nating political influence th.u we may want to name as a form of ahnlistlc or fiduciary power, which p~nts ilSClf as being more Ilistorically apablc to ukt human and social sufferi ng seriously than fonns of government .. , power. Such self-Imagery enables human rights NGOs to sharply dlStl ll_ guish themselves from business and industry cartels and. specifically, reginu'-sponsored NGOs. I suggest later in this chapter tlut thiS, too, remains heavi ly problematic. Overall, for the present, I maintain that we do not have adequate ethnographies of human rights activist practices that would reinforce th e n otion of the 'thi rd sector' beyo nd its potential constitution by the altogether virtuo us exclusion of profit and power.

III. NGOs as Networks of Practices Readi ng human rights practices through the 'NGO-ization' of the wo rld raises the second question: How may we distinguish human rights NGOs from otllers? Is it an egregious error to narrow the domain ofhull1an fi ghts activism to specifically human rights NGOs? Of COUTSe, tillS question is entirely snperfidd for the vanishing breed o( readers o(Karl Marx's Kapual (Volume O ne, C hapter Scvcn) tlut describes in great and grave detail how partnenihip with progressiw:--or, at least, broadly human rights-inclinedpolicy and political actors and the learned professions (including the theological) emerged to give birth to, and further progressively encode. the Magna Carta of workers' rights through the regulation of hours of work. as well as the progressive o utlawry of carccral exploitation. Likew\se, contemporary human rights activist practices demonsmte their highest accomplishmen ts through creative penormances of partnership amongst learned professions, mass media journalism, activist academics, the dissenting scientists and technocrats. It generates 'contests' of principles and actors as well as 'webs of influence' .15 On another register, the question o( reading still persists. H ow may we ftad these patterns of working together? Do they tend, more often than not, to legitimate :md reinforce credentials for domination or do they sharpen prospects for authentically human rights-oriented perfo rmances o f power? Indeed, how far may the NGO human rights activism ic.elf U John Hnlthw;lIIe alld Peter Drahos (2000) 475-301. O ne must also lIIelude Within tins tile' tlOlme betwec'1I nauonallTlStltuuons of human nghts: see, SoIU~ orden» (2004).

The Pnctices of 'Comemporary' Hunun Rights Acovism 65

begin the itineraries onts own ethical corrosion that variously appropriate hu ntan sulTering as a spectacle, thus raisi ng the spectre of complicity, cooPtation, or even corruptio n o( human nghts activism? In what ways does an exp:msive notion of human rights activism complicate tasks o( roistancc and struggle? This chapter and. indeul, much o( thlS work rc:OUIRS eng21ged with (what some leading literary theorists name as) the 'artXlcty o( judgement'. More specifically put, how may one read/place, along the axis of do mill2r:ion and resisunce, the manifold cross-professional practices of human rights activism? This question assumes importa.nce on many arenas and siteS. Coopcr.l.tion as well as ambivalence marks relatiOnal pattems. First, wbile activists have encouraged and welcomed the emergence of activist Justices who have. across the North-South divide, made somc distinctive contributions towards securing human rights within their jurisdictional spheres, they also remain ambivalent concerning the rolc o f adjudicatory power [ 0 ameliorate thc reproduction o( the o ld and new forms of human rightlessness. Second, while transnatio nal human righ ts advocacy net.orb ~k to foster collaboratio n with state and policy actors on a terrain • diverse as 'ethical' or 'moral' foreign policy, 16 or fair trade and ethical awnU11ent, or funh ereven collaboration and cooperation by human rights ICtIVllots with international Civil 5C:lV3nLS and natlonal bureaucrats, l7 international and regional financial institutions, and whole networks of aid and clrvelopment fundin g agencies and (oundatlons, they also remain reflexive, even dlstmstful, of such partnership among professions. Ukewise. third, Innsnatlonal advocacy networks that increasi ngly accomplish human rights Obtcomes across a vast range o(intergovernmental sites IS remain agnostic concerning the within-nation levels o( tr.mslation of the rather heroic «lDsensual feats thus achieved. Fourth, as we see briefly later in this chapter. practices of human rights activism become enclosed in a creeping ICIeIittsm of human rights. This occurs at last at two distinct levels. ~unun rights activism no longer has the choice to remain confined to JUndlC:ll-political levels whe n it deals with arenas heavily overlaid by " I 11 w::ays that now also ~ve5 w::ays of 'nllht:uy humamt.mamsm'. See. Invid Ch ~~dler (2001).

I pursue sollle o(dlese linklges III thiSchapter and in Chapter 9. Bm 11 remains

\IIoorth notmg that III lIl.lny a SoUlh society incumbent as well all rtctl red bureaucrats ~ III wonhwlule efforts at fostering hllllUll nghl~ cul turc~ . SlJa.1 ~~ Anuro Escobu (1995);John Bnlthw.ute and Peter Dn hos (2000); l.eslte '" ( 5); Shlrln Roll (2002). SIgnS ofhopc IIlduck the rontemponry movement. ~np lc, agalll5t geneUC3l1y mll Llted (oods, paru.llly codified now by the Cartagena cory Protocol.

The PractICCS of ·Contcmpon.ry' Hunun RIghts ActiVISm

66 The Future of Hum~" nights multinational corporate big science and high technology as the ve'Y' on. sutuuve diffic u lties in frami ng human rights diSCOurse around biotcehllol~ ogy, digitalization. and uses of nuclear eLlerb'Y for peaceful ~nd war~ hkt pu~s so deeply rt.:veal (sec C hapter 8), Further, the v~'ry dl'i('ourse 0( human nghts performance and achievements tends to expo~ new forms of scienusm In the exponenually growing speciahst human rtghts tafIt concermng tndicatorslbenchmark&lmeasurement. Both th e~e ~re:nas con, front human rightS activism with tasks ofengab'Cmt:m with 'technopolitics', that is, creative forms of engagement that somehow construct and imt;U conversation among communities of science/technology With those of human rights,19

rv.

Variety of Activisms

The tlrircl qu es tion complicates the ter rain by problcnutizing conceptUalization of 'activism' itself! It abo straddles many Important distinctions betweell 'movement', ' resistance' , and 'struggle', ActIVism lTUy be so episo{hc as no t to acqUire a vis;age of a movement. It nuy parukt features of a movement WIthout necessarily signifying even the rem()l:( reSidues o f relations of struggle o r rCSI!>tanCC, Or. It may J,cqUire features of rcsistance wlthOlit coming ncar the richness of the notion of ~trugglc:,llI In a world of historic MarlClan/soclalist mo ment, the keyword was 'Strt1ggk', In the post-Marxian world, we trade in symbols so value-neutral a~ 'movcIllcnts,21 or Ideology-lInbued notlOI1S of'reslstance',22 My chOice of ~ temt 'activism' aim!> at eomblfllflg elements of 'struggle' and 'reslstancc III way:. that allow bC)lh 'obj ective' social theory-type descnpttoll as wdl llluts as deference to the subJcctlVines of peoples III struggle and commu ill resistance, In this I almost wholly follow Michel Foucault who ', I effects 0 tains thaI stmggles, properly so called, are 'an opposition to I Ie ts power linked with knowledge, competence, and qllaliflCatiOn-struggl agaUlst secrecy, deformation, and mystifying representatton IInposed on

"WO'r

,21

1 peope, ,'I'oriC Thefouffh, and related b ut dlstmct, question concem s the: SOClo- list origllls o f human rIghts actiVism, t Ihl'~ ISSues.

19 Rlchnd Pierre Cbude (2002) provuk5 an cnS"smg d I"cU5) IO!l" 1vill u~111 ~lll' I-' :10 The dlSlmCtlOn~ dr.Jwn here W1l1, [ hope, b«omc ck~r III t h c 'u "lq " uffered In thiS chaptcr. UI'CuJp ~ 21 !>tt, M;!.nuel Dstcl1, ( 1996), and for loOlllC nuJOl' dl .... gr«Illunctio n belWtell

~ d tfu(w ral forms of human nghts activism remalllS of pal'2l11oum

S Episodi( h uman r~gh~ activism, that responds 10 here-and-now ~d human rights. Vlolatlon, crUCially dlfccted to dlll1l1l1sh lived!

"... an

::::;-tcd

human suffcnng, mayor may not assume the Visage of a human Nor may it address the structures of human/social ~,S/nIC/ljral human rights activism that :lSplfes to state and suprastatc ~ reform attends, in the mai n, to the causation (and, hopefully, mtrasaJ) of human righdessn('Ss; its intentiorulities and impacts remain Ilwayl mdcterminate. It re,lrui~ open as ,well to the approprianon--even .-imi1ation-af human n ghts msurrecuonary langu~ mto the heavy .... of gowlTWlce. Ferbaps, this distlllctio n remains one of degree, rather than ofland, To . . rather large examples, episodic activism combats practices of hostile ..... discrimin:Hion and violence and practices of torture 011 a day-to. , . . . in the expectation that incremental progression (now curiously ~. 'gender mainstreaming') in human rights culturc Illay thus be .. c r.t. whereas structural activism blueprints deSigns ofsocial , cu ltural, _potick:aJ revolution (macro-level transformations) that seek to dimi_propensities fo r human, and human rights, vloJatton, The asplTation ".programmeof actio n writ largt' 0 11 the Convention o n Elimination IIfDiIcrimirution Against Women (CEDAW) (the Women's Convention) . . . . . a most conspicuous res ult of structul'2l humnl rights activism, Iwbuus (as Pierre &urdicu described modcs of ~uled disposi-).: or the matrlccs, of human nghts acuvism matters decisively for . , ~plation cona:mi,n g the future of human nghtS: thus, for exb grc;!.t decolomzauon m ovementS-the harbingers of'contem ~J' tunan rlghts-differ very greatly from some current movements -l'CnWn heavi'Iy resourced by m:e~as aid, trade, and development Plllir:itsand --1ICadi programmes and by multlllauonal corporate philanthropy that -... nghly marks the transfonnatioll o f human rights movements into ts markets, m~m ent,

n:

-..e.

110e __,

V. Questions Concerning O rigi ns and H istories

"'--:-"on «I' '-.unt ' evenl modt.-S, These take several discrete and indeed discrqunt fonn ... : froOl anil1l;!ol rights actlVlsm to 'terronst' movements. The former practices expand human rigillS activism by contcsting die amhropomorphic d IM· 2Cter of human rights; these engage in violent direct ;!oction, IIldudmg intimidation ;!ond phYSical attacks on die cxpcrimeno.l sites and occa:.ionally target the homes of researchers. According to one estimate: for dlt: United States, 'more than 600 criminal acts in the United States slllce 1m causing damagt=s in excess of $43 million doUars' have occurr('d.~s In 42 The same counscl c;rtCnds to minimalist rcadmgl> or bII5I11CS.~ and mdusuy" sponsored 'humln rights· NGOs, whcther in the fidd or devdopmcnt, envlron nlcnl , or glob.ll rree tr.Kk. I explol"C thi5 In 3 different but related wmext III Ch;!pter 9 -0 See, Patncla 1l11"'~ IIIslghtful l lu lysis (2004) 91 - 114. +4 Vivid CX'IInplC\l sund rumislj(:d by Ihe A/lpiko movemcnt III indl~ Ihal ul'roo{t(l and deslroyed Eucalyptu.~ plants rrom SUIClIurseries and the rccem snml~r Gr\'cllpc;ICC VCIIIUI"C III the UllItcd Klnbodom in rebtion to gctlt'tlc~lIy mo(bfied rood rl,lIltS. ~ .~ Sec hltp:llU'ufW1,tlmpmgms.o'!l. Thc selic 1Il\ICstment 10 proll~'(:t II1du~lry .. l!) (I research ~Itct can also be qUltC s ubst:&nri~1; III J~nu~ry 2001, (pccui ~yl1lcnt o( h 11111 lion w~s made by th e Ilomc Office 111 thc Ulliled KIIlKdolll to ~5"51 ~; Cambndgcslnl"C PolICe (or the dTcctive mamgcmcnt or protclilS ~t 1-luII11I1",..:k'11 ScICIKt'5, Ca..rnbndgr:-.

Thc Practiccs of 'Contemporary' Iluman Rights Activism

79

~ons of violent recourse animal rights protection (and not all animal

.;,)tts actiVIstS take recourse to violence) lhe human rights of the scientISts QlrCher stand directly infringed and threatened, It remains doubtful III such siO»POIiS w speak merely of symbolic violence. Violence that assails, and huns or destroys, indiVIdual or group phYSical aDd psychic integrity is considered as human rights Vlolatio n when under. Dknt by state actors; the question now arises whether slllular violence by pon_state actors may be described as criminal Violence rather than human .....ts vio lation. The paradigmatic situation of miliuntlanned autonomy/ lC(:tSSionist movements has raised the issue concerning the applicability olthc standards of international humanitarian law to insurgent groups, at kasI those that have acquired 'characteristics of a government'; at least olle South activis t author has now suggested that human rights NGOs may nen be said to have a specific 'mandate' to remaill (without, of course, lIIIioning acts of state terrorism agai nst them) at ann's length from such bmatiOIlS,-4(i Because of the fact that processes of decolonization and selfdclnmination may never be said to be exhausted with the: fonnatiOIl of arwpostco lonial (and now post-socialist) societies, it does not advance any Ianan rights fUlU res (in lCfms of the tasks ofpolicy. dialogue, o r solidarity) IKODdtmn violent autonomy/secession movements as wholly 'anti-' human . . . happenings. No doubt, the iSSue of violence and subjectivity is very 4I!IIPIex. mdeed. 9(11, and Its aftermath and aftershocks, further complicates this picture • understandably feady, and heavy, but stili very diverse, recourse to 110..'1«' of'terrorism'. Pre-9/11 approaches to 'definitions' oftcrrorism ....m.atio nal law were tentative and mired in the semantics of ' terror' 1IIIus human (at least political) 'emancipation'. Post-9/1 t developments ' lI.erlt a rather flattening discourse in which each and every non-sute act/ fIIIhorship of masr/collective political violence, by definition, emcrges as '-'orism' and, therefore, as massive, Oagn.nt, and ongoing violations of ....... n ghts. It seems now intO/luivabl, that any autonomy/ secessionist ~ rights-oriented movement may e~ape. the condemned auspices of Al-Qacda. Indeed, the post-9ft I legislative enactments throughout 1Ducb of the world render even a single empathic act of reading such ~rnents an exercise of complicity with potential and actual 'mass tliernatlonal terrorism'! Univefsal lzation of global political paranoia poses a threat to the future of h uman rights as threats enacted now, and SUch recurrently haunting cruelty, since 9/11. A glo~l1y fostered

::ave

"s"• iU'IJ Nair

*,

(199I!) and thc dlJCOUTk or Amnesty Intcnuuorul that hc III a different VCIn, lliVld C handler (2001).

80 The Future of Il ullI;l1l Rights

The PDcticcs of 'Contempor.uy' Hum;ln Rights Activism

paranoia thus rc~onstitutes Osama Bin Laden as the arch obituary Wrlter for thc demise of h uman rights futures. However, questlomng massi~ violence directed to re-making the world 'safe' for human fights emaLls no endorsement of human, and human rights, violations by performanCes ohnass international terTorism'. At stake, then, is the 'unreason' of violent and impassioned commitment stl.nding in contraSt widl dlc 'reason' of human rights. Politics of human rights provides rcgimc-<xpedient and easy-mmdcd realpolitik understandi ng of current and ongoing 'wars offerTor' and 'war 011 terTor'. Politics for human rights open up the scope for practices of reading that respttt the living presence of the dead, ;howcver obscure', and the human rights of the unborn future ~nerations, 'however remote'.47 In the contem porary post-9f1I moment of dread, I realize. that such summons remain open to state-sponsored indictment of 'terrorism'. Any serious pursuit of the politics for h uman rights entails acts of res i ~ tance against such forms of imposed 'manyrdom'.

VHf. The Habitus of Activist Human Rights Formations Politicsfor human rights t'C"news as well as exhausts human rights energics and synergies. Some activist human rights formations complain of rxluuutioll (which I name as human rights wtaritU'M). Some suspect. gIVen the history of the politics ofhum:m rights, sinis~r imperialistic manoeuvm animating each and every hunuu rights enunciation (what I name as humall rigllls WQrinw). Some activists celebrate virtues of dialogue among the communitie!> of perpetr.nors and those violated (what is named as hUllUn rights diQ/ogism). Some celcbn.te human rights as a new globalfaitl, ora """ civic rdigion (what I name as human rights rvtmgdism). Those who pursue the vocation of historic redemption through UN-sponsored human rights diplomacy (through the movin!¥removing of the l angua~ in brackets III UN 'summit' declarations, programmes of action) perfonn low intenSIty evangelism. a feat that I describe as h uman rights romal1ticism. SOllie hUl11an rights activists believe in 'aborting' as it were, global instruments favouring the rights of the global capital opposed to the universal human rights of human bei ngs (what I name as the 'fret ,hoi,,' politicsfor h uman rights.) Some activist NCOs believe that human rights lIornulliv;ty can be beSt produced by manipulating the itineraries of global diplomatic. illlcrgov' crnmcntal, regional, and national careers of those who earn a living througb

.7,

here p:.lraphme T.S. Eliot (1962) 44. Sec, for a further

and em. tCri~nce 0{ empirical analysi~) but It rcmalns unportam w open up to contcstltJOIl tht' hunun nghts romanticism.

~~:: I!

The Pnctiees of 'Contemporary' Human Rights Activism

92 The Future of i lu rrun ltights and devdopmg country, singly or in combination. I ~fer rather to the high costs involved in the pursuit of the politics of ho~. SUlll marily p~sentcd. these costs include:

• A crttping transformation of intensely involved NGOs in the mla~ of international civil servants; • Displacement of the agenda of tquillJblt mJislribwiol1 toward!. tru: agenda of global gollmumu; n • Enfeeblement of the potential of fo rnlS of creative antagomsm into harried postures of compromise and coo~ration;78 • Consauction offuture horiwllS for NGO acrivi~through programmes of action which influence allocation of resources; • A considerable loss of reflexivity among NGO communities concern· ing these costs. Rom anticism at times ill·scrves the constituencies legitimatmg the NGO com munities.

XlV The Bureaucratization of H uman Rights Activism Bureaucr.nization of human rights occurs :It many sites of human fights activism practiccslorganizati on~netwOrks. Not al l NGOs may be described in tenns of rule-bound, hierarchical. specifically accoulluble, profcs-sionalized organizations, But. increasingly. NGOs--cspecially the larger Olles (whether In terms of geographical spread, scope for human rights action, resources. support base, or r.111gt: of lletwOrking}--do acqUIre some traits d istinctive to bureaucratic orp.nizatiolls.80 Social reproduction of Upendra Ihx!. (1996b) pp, 525-49. 78 Smcc tlme.cormnml5 for the pnxluction of ncgotmmg

T1

textS and firul decb· noons and programmes press heavily; nc«SSiutmg the emcrgence of 5utemellts of concerns which dlSSlp~te the urgency of ooncencd :action ali. for eX I llpon Ihe eapluhn belief thai prOlCenun I rul' For assurance the~ 15 for lhe amelioration of the hfe-lo red in a compar.ltive social thwry of hum a .~ 4 n n ty .ts. Micropolitlcs. occurring at vario us sites-sQme invisible even to a global pub lic view-offers a different perspective concerni ng the rel:.tlVe auto no my of h uman rights productio n. This is the shopfloor level, as it ~ re, no t who lly deternlined by macropolitics. Wlrlcing within I7Ither sever.e budgcu ry and mandate constraints. the Independent Expens, the Special Rapporteu rs, and the speci.alist consulunts within the Umted N atio ns system (howsoever thus named, designated, and elevated) need to negotiate furth er their own functional autonom y within the overall hicrarchy th rougl~ .which the ca~eer of huma~ rights enunciations may proceed . The poiLucs of produrnon ;at these: Sites refl ects the combined and uneven productio n o f expertise between the N orth and the South. T hus, major drafting responsibilities stand assigned to the N o rth expertise: which, in turn , has to accord some deference to their South colleagues who compensate their technical deficiency which their ideological selfpositioning. To avoid any possible m isunderstanding, I must here immed iately add that some South expertise, being the better info rmed about global prod uctio n of hu man rightlessness eq uals, and even surpasses, available forms of North expertise. But surely. this does not always duumish the cutting edge of the North expertise wh ich, mo re often than not, plays a dominati ng role 111 the writing of human rights texts and the construction of the models o f their 'responsible' imerp~ution. In allY event, m icropolitics o fh uman rights prod uction remams decisive in terms ofd istribution of voice, leadersh ip, and legitimacy. How far all this may serve networks of production that foster patron-diem relationship, and how far these: in novate authentic collabol7ltio n across the NorthlSouth knowledge/power d ivide arc issues that still await empirical exploration. Mo reover, macrQl'm eSQfm icro sites o f the production of human nghts euuUciations result in both produltion and ydu{fion (Jean Ba l1d ri llard~ draWS this d istinction in other con tcr.s). Whereas productio n makes the mvisible visib le, sed uctio n m akes the visible invisible. Anyone fa m iliar wnh the ways in wh ich the United Natio ns human rights d iscu rsivity IS produced needs no instructio n in understandin g how the final texts render invisible the o rigi nal, :lJld often lo fty, aspiration. There is also the d; mC!l~ioll

or

• All area In whkh JOmc slgl1lficant work 11\ polmcal scIence h;l.~ begun 10 tlUiIt' rS COlllrlbullOn III terms of dIfferential autonomy of policy ~nd 5UIC ;KW :

prollllSlIIg

~. EA Nordllll~r (1981). RobertO M. Un~r (1984), lhe methodological. msutuuonal. OCCUpatIOnal. and

, Jean

Ibudnlbrd ( 1975).

III

a dlffc rcm Vi:L11. Jdd~ autonomy I.fthc 1;1\\

'SUbsUIIIIVC'

~is m of the producers, be they the authors of internatiorul h uman

rilhu , the makers of modern cOllStitutio ns. o r the NGOs who smpe (or dUnk that they shape) many a new e nunciation. In a ~nse,

then, human

....us productio n o ften also enuils patterns of ~ ucti on. a loss of orders "rel1exivity of what is being produced at whose cost and for whosc= galli, ind«d to the point o f being afimakd prod uctio n. The 'overproduction' metaphor conceals from view the hu man righ ts authorship of the violated. Whe n production o f human nghts no rmativity is S«T1 primari ly, or even wholly, as an act of collective labour o f blearycyeddraftspcrsons and negotiators somehow hammenngout. in the u ncanny early mo rning moments, the last minute consensus on an accepuble phrase_regime, one is looking exclusively at the process of enunciation as III aspect o f heroic enterprise by imernation al career bureaucr.lts, diplo. . . and privileged pro fessional N GOs. The eosmopoli u n labour thus iaftsted makes possible human rights instrumen ts. A full h istory of the processes of governmental and activist diplomacy in the making o f contanporary human righ ts has yet to be written. Such narratives will, no 4oubt, testify to the considerable body of N CO achievement, both in -.ns of their accelerated learning curve in handling internatio nal negodMionsand their fl7lctured integrity in th e prod uctio n o f authen tic h uman liFts nonns and sundards. Because compromise is inevitable in the final Iacb rtl1~i n g d ivergent state and 2Ctlvist agenda and concerns, activist alms at the produo ion of 'overlapping consensus 06 that now so ill:n:dibly informs :acts o f global hunun rights d iplomacy.

...,cy

II. Suffering

1\c ~tives

of both the productio n of politics and the politics of tmduction, however. remain inadequate witho ut a gnsp of the h istorical ~Iivro expcri~nce. of. huma~ suffering caused by human violatio n, . ~ no t qUIte live III public memo ry. We need, 011 th is register. to :'-ingUish between the catastrophic impositio n of suffe ring and the ~yness' of hu man. and human righ ts, violatio n. Catastrophic via0( tad often paves the way fo r authentic consensus in naming the order 'IIIins leal evil (genocide, apartheid , torture, sexual explo itatio n crimes fDhib t humanity, fo r example) and fashions human rights lcc hno iogies to ~tt where possible and punish w here necessary such forms o f gross, ~ng, and fl agrant human vio latio n. Even fo r such situatio ns, as the story of Raphael Lcmkin (who invented the term genocide and

" Invoke here

UIIS

ferund

notlOIl

of Joon Rawls (1993a).

100

worked himself to dath in penury to persuade governments and Statts to outlaw it) mimmalist definitions of proscribed state and indlVidlQl conduct rule the roost? Between I-Io locaustian suffering and human rights enunciation fall the shadow of sovereignty; the translation from human/social sufTcnn; to an o rdering of human rights responsiveness and ruponsiblhty rC lTlai~ the slow but assiduous labour of production across ~neratlons as fUlly exemplified by at least a century-old exertions that now mature In t~ creation of an International Criminal Court, whose Statute provides an impressive array of potentiality to penalize catastrophic human violation. From the standpoint of women's rights as hum.an rightS, Article 7(2)(1) of the Statute remains a mOSt remarkable adv;lIlcc indeed. s Even so, 'crimes of aggression' specifically left undefined (and, therefore, unindlctable) will cntail decades ofdefinitional labour; further, the provision that lIlVCSts the Security Council to abate prosecutions for the crimes designated by the Statute may limit, overall , the real life operation of a fra b'lle conSensus now textualizcd. 9 Forever inadequate, sllch incremental accretion of human rights production remains the best bet, as it were. Even on a register of rebellion at horrendous human, and human rights, violation all we have is the scale of evolutionary historic world time. The problematic of/ram· llI/iot! of the atastrophic forms of suffcring into languages of hUlmn, and human rights. still haunts human rights futures now-in-the-malang. Recalcitrant fomls o f the eve.rydayness of human, and human rights, violation also pose the problematic of translation. Not as dramatic as the procluctio n of Holocaustian human/social suffering, everyday experience of suffering caused by starvation, malnutrition, hunger and related forms of mass impoverishment and daily disenfranchisement of dIsadvantaged persons and peoples invites only forms of slow motion human rights responsibility and responsiveness. One has, for ex::I.mple,just to read word byword the proceedings of the United Nations Rome Summitconceromg human right to food , and plus-five review and retrospection, to realize Its constitutive ambiguities, which mark and measure the distance be~ n norm enunciation and human suffering. I refrain fro m any aggtawung analysis here of the Millennial Declaration and the most recently rcleast'?

The Future of IIUnIan Right!>

Salllanth~ l'uwer (2002) pp. 15-60.

dus • It cnhauecs the range of CTLm('s against humamty by mclu d LIllo> WLt ILn L r ntt"gory: ·rape:. 5t":xu;I1 slavery. ('nforero pro:;tltution, f()l'"cfd pregnancy. enfurced stCLILUtlon. or any othc-r fonn of sexual violence of eompar.abk gravity' 9 &e. Knangsak KimehaL5arcc (2001) at 27-37, 206-55. 10 Sec. Umtt"d Nallons (23 $epte'mber 20(4).

101

The production ofhum:lIl rights nonnativity, oven.Il, suggests a difficult .elaponship to human suffering. The slow mo tio n tn.nslation is the first , . of difficulty; the second stands furnished by the forms of fractured ~nsuS. the necessarily compromistie formu lations that alone marshal iDttrstate consensus, the .anarchic state-party conduct encapsulated 10 the ~ to frame reservatlons/derogauons, even concernmg the principal ~ and .purposes of carefully.ne.gol1~tcd treat~~s: II The Site of Im~le.­ .-mtacion IS often marked by dlfferenllal capabIlities of State, and CIVIl ICJCic"rY. actors; delivering human rights to rightless peoples and persons is eft'II more difficult than accomplishing no rmative enunciation. 12 The iIurth site provides a register, which elides insurrection and repression. When suffering peoples take their human rights seriously enough to aebd. whether by everyday micro and at times larger patterns of macro (llisance, we witness some radical assertions ofh1l111an righL'i production . . implementation from below. As Michael Burawoy evocatively deICIibes this: politics docs nm hang from clouds; Lt nscs from the ground: and when the _'..... tremhles, so does it. In short, while produellon politics nuy nOI h~ve a effect on politics, itncvcrtheless 5("15 11111115 on and precipitates interventions _

lUte.1)

lD mponse, human rights, as languages o f govenlance, come instantly,

....I 100 often, into play. Subaltern militmt conduct and movement that ~ macropolitical redistributive shifts (such as food riots, occupation public premises by the homeless, violent uprooting of genetically • cd food products, civil disobedience directed against large irrigation ~ and mega- urbanization. and polity reconfiguring 'separatist', 'selftilttrmination', or secession) stands presented on thIS register as instantly rights' threatening. As languab~ o f governance, human rights ~s stand all too often deployed in the service o f production ofbelief ~s I~ 'l~w and order', public security, combating criminality and acts 'trrronsm . These forms of state resistance adversely affect the W2YS of

'-nan

IlSee C. tupte'f 6. u most conspicuously viSible even In ~ mhol post-apartheid South African -co.., lion, which mxle enforceable &QClal and economIC nghu. The ConstilUtion~1 ~....,,"'," alremy begun th.c proceu of COllver~II.JIL of theiit' ellforce~ble rights into 't. of public pohcy, deferrmg to the 50verClgrl prcl"'OgoltLve of the C-XCQltivc. It fot elQnlple, held that Ihe right 10 hOU$1I18 15 only a nght to :llXe~s to an

ec...!ISIS

~~~~:~f::j~~'~::~; policy and process. St.~, for a mose recent statement.

Too Many or Too Few I luman Rights?

102 The Future of 1·luman Rights human rights production and implementation. The I~cs of colleCttVf; hunun security trump even minimal observllncc of basiC human rights in mally a situation. T hose subjected to everyday experiences of rightlC)sness and human viol.a.tioll stand subjected to a code of human rights re~POn_ sibllities; protest at their plight becomes legitimate only within the wider logics of 'collecuve' human security and development. At stake, clearly, here are issues wider dun the indictment of 'overproduction' may ever fu lly invoke. . ' However, the relationship between the expenence of suffenng and the impulse towards resistance, the labour of suffering, remains contingent at least in three ways. First, patterns of solidarity that guide common programmes of resistance vary according to the 'nature' and 'scale of thc production and distribution of human/social suffering. For ex:Imple, food riots do nOt always occur during famines l4 and occur even less, understandably enough, during the wars of starvation. IS S.econd, be.licf systems that constitute faith communities m inimize potential for resistance; human rights languages do not have the slighteSt ~r to overcome suffering which comes to human beings as God's gift or curse. Nor may, by the same token dissentient and heretical interpretive communities rcconstnlet 'tndition~' via any significant recourse to 'secular' human rights cnunciations. Equality before Allah may be radically construed to ensure equality before mcnl6 and, indeed. may enhance women's rights as human TIghts; at me same time, piety and fidelity to the word ofGod must remain thegnmdnonn, even for Is lamic women in resistance. TIlird, while the remarkable power, even prowess. ofsocial movemen~ old as wdl as the new, contribute to increasing legibility of human/social suffering (making suffering legible constitutes, as it were, the very soul of human rights and social activism), onc may note ruefully that such move.ments may problematizc human/social suffering only eclectically. eve~ If in the very best sense of the term. The languages, logics, and paT2logtcs of human rights do not coequally attend to all the estateS of hunUIl suffering. T hey prioritizc the relation between human suffering and h~­ nun rights differentially as their discursive work proceeds through C national, regiOlul, and global networks. Thus, for eXlllmple, basiC hU~ ri ...llts claims of people with disabilities have yet to find a force ~~ til' . . ' Furtll becomes clear especially in the: struggles that seek to redefine the aapc: of human righ ts by acts of tn.nslatio n of materUl and no n-material . . . IntO human rigllts languagt"s. The constant endeavo ur to convert "'intO righ ts, howsoever problematic, is the hallmark ofcomcmporary ........ rights, However, such human rights ventures make difficult any . . . . . Judgement conceming efficiency and quality. To take a large ex1IIpIe: w~n Certain sets of rights entail d uties ofherc and now enforce_(as with the Covenant on C ivil and fb litieal Rights) and certain others - IUbjttt only to the regime of 'progressive' realization (as with the

~ Clanty and eommll1l1cablhty (or tra~sbu.blhty) of negou~ted tamal outrolllC!i:

MInk Lewl$ of conscllsus n:xhcd (on mdlVidual formulaUOIlS and the tCXt as a

~mensus bels bemg measured, Plnly, by the c:xtcllt of rcscrvanons. , dedaratlons, and Statemellts of undcmandmg when the Tlghl enun· whm Iakc$ the form of an ITlternanonal treaty and by patterns of voti ng power ddin. II aSSUllieS forms of decbraoons or Il:solutlo!l5; sp«1ficlly or dlffusc: ness of Gems of VIOlative behaVIOUrs and levels of xcou nubllity mQllIIoring or ~

It for the promotion and protection, mdudmg stratepes ; : n ngtlll education: cduru for collecuve reVlCW ~nd reformulation that go beyond those I III ~nns of pius-SOl'" plus-IO Umtcd Nauoru revkwconferences IntemaUonal human nghtol declarations.

Too Many or Too Few I-Iu!nan Rights? 106

The Future

107

of Human Rights

Covenant on Social. Economic and Cultunl Rights) how does the four in the evaluation of the effectiveness of rights:nc: a~ 11le constant endeavour to convert needs into rights results C{;\Tllc:5) of rights enunciations: at times described as 'generations' of rights~n w~ declared by a colour scheme of 'blue', 'red', and 'green' humall,attl~ Those visually di~bled (political correcmess forbids the usc of th nghll.' sian 'colour-blind') folks ouy not quite know wh ich colour; CXpres. signify the emerging recognition of the collective rights of thei investor, global corpontions, and intemational finan cial Cl.Plta1_inO:~1gn of global capitalism. BUI this much is compellingly clear: the erne on, collective human rights of global capital present a fonnidable chal1cll~t the pandigm by the .Universal Declantion I have explored In the prece:d1l1g chapter the wa~ ill which the astonishing quamiry of human rights production generates varieties of experiences of skepticism and faith , These experiences form ways of reading human rights, p:micularly in tenns of their ove:r- or under- productlOD. I highlight here four principal ways of reading.

is. II acqUired some sort of Cllstom2ry obligatory status,22 The (mJ uel1t textual rtitention of th2t which was originally not

ma"'ms

~

inaug~m,ted

ofHumalll\i~=

rv.

Q uality Control in International Human Rights Production

The question of how the production of human n ghts iUay be best orpnized within the United Nations system has been with us ~mC(' the Universal Dcdantion of Human Rights. The middle phase of the CoW W2r witnessed severe: conteStation by the First World states of the unpr«edented nonmtive leadership of the Second and the Third \\bod Untced Nations member-states. Their effortS included, for example, the greater t>eopc and nero to protect the human riglns of global capital III ItS great march to progress through digitalization and biotechnology.31 Equally. those con· ccmcd widl the rights of'naturc' and sentient beings (other than human beings) lament the p.tucity of relev:mt human rigllts standards and norms. This not of perceptions conceming over-lunder-production ofbunu n rights nonnativity .trises due to the titanic clash of twO cultures of human rights: the culture of the politics of human rights and .dlat of the .po~u~ for human rights. The latter combats as overproduction dIe re81m protection of the rights of global Glpital, while celebrating the n~oI 1._ · . oductlon I emergent rights of p«)ples. T hc Coonner sec~ parsllllony III pr new human rights standards and nonns that serve the values ofUIll.vc,; Declaration ofl luman R1g1lts, while being hospitable to the caplI.al-fnenl ~ human rights enunciations (witness the prolifer~tion of the WTO lega In " 1"1 atera I ''I;' A .....c e IllC[lt 0 and the n:cently demised draft proposa Is on M uti Investment (MAl)). Igh tS No reasoned Judgement on the mode of productio~ of hum~~1 ~t Will is thus possible. One would go so far as to say that none IS dt'slr~b . 11 Sec, Chapters 8 and 9, for a full ebbonuon o( tnde_rdated. nur para(hgln. now emergelll. of the human nghts of the global c.1Ip".1l1

kcl-fr.c:pd.ty

X An Excursus in Human Rights Measurement I did not attend, in the first edition of this book, to the complex, even iJrbiddmg, writing on human rights measurement via 'mdlcators' and

J

I importance of measurement literature both as a moment oCIpponunity and of danger. The moment of opportunity needs to

",,,,,""",,, Gr~n (2001) now provtdes a recent, handy, and COIllper (1996) gcrmmally otTers. fotan llIteI"CSung OVCIVl(:W, MlU"tlil O'Bncn. Sue Penna, and Colm Hay (cds)

~...."" .."e:Qmple,

116

The-

FuturC'

In one: se:nse:, rdlexivity implie-s and entails the: practice:s of radical d and insecurity conce:ming the sources of our capacity to know and un~u~ stand the: world and our powers to act within it. We: explorC' tillS. In ~. follOW'S (as also in the: e:nsuing chapter), in the contextS of the: nuraW t . •.' 'In d'antHoun ., datlona · I'Ism ,. These reflt'xivt by« o f" . ~mve~h 1'" Ity, re IatlVlsm critiques t row open to ra d 101 unceruinty the fonm of confidence: th which some of us may articulately assert hunun rights ide;!.I.!>, va~ languages, standards, and even norms that address their 'unlvt'rsality~' In anothC'r sense:, discourse concerning reflexivity now stands pr~n 'ed in languages of'reflexive modernization', referring to large·scale proces' of global historical transformation. s Reflexivity involves two fdal: but distinct notions concerning construction of self in society and th production of Iht' social. 'Structural'finstitutional' reflexivity rt'fers to th: use of information about the conditions of ;l(tivity as a means of ordering and redcfi ning what that activity is,.6 Put another way, It 'consists in the fact that social practices arc constantly examined and rt'formed in thelight of incoming information about these very practices. Ihm altering their character'.7 In this se:nse, production and consumption or the activity of making and exercisi ng human rights art' dearly social practices. The myriad social practices of the: making of human rights-both tvtryday and tXlraoroirUJry production' of human rights nornlS, sundards, and values-at all levcl~ (international, supranational, regional, national) remain indubit2bly a rC'. flCXl\,(, process. Institutional rel1exivity,:IS concerns the making of human rights, occurs at many a site, the United Nations system and pcople/s movements providing astoundingly dive~ registers. Sdf-refle:xivity involves understanding 'the self as reflexively unckr· stood by the person in tenns of his or her biography'.? This design.tto a 'uniqudy hunun capacity to become a subject of oneself. to be both a subject and an object,.10 In this double constitution, often noted JO philosophical rel1ections on human rights ;;tond most notably in recent times by Michel FouC;;t,ult, the subject of human rigllt is both se:lf..determming 5 S«. for a:llIlple. UITI(:h Beck, Anthony Giddens, and Scon ~h (1m). Anthony GIddens ( 1994) 86. 7 AmhollY Giddens (1990) 38. • Tins workm g dIstinction rcfe-rs 10 forms of ralher roullne, as cOJT1~rcd Wlr~ exce-puon~l human n ghts production. We m~y differ concernmg Ju,UfiOIIOIlS r. assigmng the production 10 one or the other cale8OI')' iiowcver, lIIost WIll ~gJC'C' ~ eltllllple. th~t Ihe Unl\'e1'S)1 Declaralion of H uman Rights belongs to Ihe exu~ordu~cs. ~n«= com~rro wnh lIIuch of Its p~ny. I do not here develop further ex;unp ') Anthony Giddens (1991) 53. 10 Peter
....as

" e ~

Stt, HUf:'it I b.nnum (1993) who conUOlSCi effectively the rcservatlOf! by IMu -..um.g the nght w sclf-detcnmnatlon In Arrick 1 of the Intem~lIonal (:ow,rnlnt • CIvil .lind Polillall IUgins 'only 10 peopk5 under fOfClgn rule' WIth the Gcml;uJ ~n 10 it in.m\lIlg on the avall.lbllrry of thIS nght to 'all peoples' The lnl With wh ich the developed countries haV'C sought 10 expand the r.lIlgt of 1eII''1:kt('mlillatlOn n ghu ames from their umque capablhry for org;.rnrllilg collective ~la of thelT ruthless prowess III suppressing (not tOO long ago) evt' n the softest "'kc urgrn g freedom from the colomal yoke:. ~t\ haVIng been §.;ud, It IllUSt also be S4ld that Inel'Oi'$ rc,1CrvauOTI based Of! 'national -snry', CTeOitlVeiy mlm~s the very S4n1e onkr of enclosure of tht: pohncs of Identity .... dlffc:rcnce. III v;utly different postroionul conditiOn, the socl~ll magcry of colonuV rcprescnt;luOf! of European TUuon-sulCS. the Iilummanllg arulyslS by Eknfii,ct Kingsbury (1998),

130 The Future of Human Rights

Cririqulng Rights

mes~gt'. It gene:r2tcs some anxious critiques of 'conte:mpor2ry' bu rights as the re:~mcrgence of the: idea of ulliversality, a legacy of the ~ of Enlightenment that helped pcrfe:et j ustifications for the classical nialism, r2cism, and universal patriarchy.41 Comemporary form~ of so.. cifically abstr2ct production of human rights celebrate critiques of not:· of universality as enacting new versions of essentialism about hurna n nature as continual unfolding ofEurocentric metanarr2tives (large g1Ob~ stories about the Idea of Progress)~2 that not merely deny difference: but also monopolize: the 'authentic' nalT2tive voice. The politics of difference thus sWlds writ Ia~ in new fonns of human rights juridical production concerned with participative inclusion of the voices of women, IIldigenous peoples, mignnt workers, child rights, and rights of transgenderJ1cshigay peoples--indeed to a point where states of international law become: indistinguishable from the affairs of human rights law and jurisprudence.

c:r

V. T he Consti tutive Ambiguity of 'H uman' Rightlessness Back again with us then is the constitutive ambiguity of the Idea of being ' human'. Unive:TS41 human rights, when conside:re:d as lineal descendants of Ihe Amencan and French Declarations on Rights of Man, remind us thai far from oclllg gtven, if ind~d anythlllg may be so, the notion of 'human' stands alW2ys constructed, often with profound righlS-de:nymg impacts by the politics «ifhuman nghts. ThiS was cle:arly the case in the formative pracuces of the 'modern' human rights paradigm (Chapter 2). Are the comempor2ry human rights discursive practices possessed of a similar im pact? Docs th is inclusivity equally mark. and mask, new orders of violent social exclusion? It is true that indusivity is the hallmark ofcontemporary human rights. stamped with the exponential expansion of the very notion of'human', and the nonnative ple:nutude of the reconstituted ulllversal human. No 1CS!i nue (as HIDmh Arendt has a~ all shown) is the e:xtrc=me violent social exclusion of human beings denied the very prospc=ct of belonging to any organized polity. The: 'whole question of human rights W2S quickly and inextricably associated with the question of national emancipauon 4 and, therefore, 'the conception of human rights, based upon the assumed existence of a human being as such broke down the very moment' of its

:~""",,; (," :" J luman rights stand protected only within the zone of ty, ambiguously cast. sim ultaneously within the creative as well ~tructive dimensions of the 'family of nations'. Peoples outsIde : . zone stand condemned to conditions of 'absolute', 'fundamental' rifCtJdessness. Human rights and human rightle:ssne:ss are thus born together at the . . , wne moment. AJthou~ paradigmatically conceived as be lon~n~ to • hunun beings, human rights are at the very moment of enunCIation .-:aningful only within the zones ofsovereignty. In cOllteXlSofthe refugee, ... stateless persons, the languages of human rights begin to provide to 'JII concerned-victims, prosecutors, and onlookers alike-the evidence .hopeless ide:alism or fumbling or feeble-minded hypocnsy,.4s The refugees or the stateless pc=rsons signift the very 'end of human .....a'. The 'loss of polity ... expels' such peoples 'from humanity' itselC~6 • stateless person is not merely one who suffe rs 'a loss of home but the 4Itpossibility of fi nding a new one',.7 w hich arises from precisely the ..auation of the 'One World' notion. 'Only with completely organized ~ i ty could the loss of home and political status become identical with 4IIpulsion from humanity altogether'.48 1Re calatntty of rightlessne5s that befalls them ... • Dot Ihlt they:I;Tc depnved ofl!fe, hberty, :l;nd the PUrsUIt ofhappmess, or or ,.wiry before the law and the rreedom of opinion ... but thn they no longer JIeIong 10 any community whatsoeVcr. Their plight IS not that d,ey an: not equal ~ the l ~w, but no bw existS ror them .... Only in a last stage or thcir lengthy fIIocc'!;s is their nght to live thre:l;tencd; only irthey remam perrectly 'superfluous', I'nobody can be round to 'cI:I;im' them, m:l;y their lives be In dan!:,ocr. Even the Nu:.s surted their termm:l;rion or Jews by first dcpriving them or :l;111egal status . . WtttS of second class Citizenship) and cutting them rrom the 'NOrld ofliving ., bndmg them into ghettos and concentration amps; :l;nd berore they SCt the ... dwnbers into motion they had carerully tested the ground and found Out ro . . u osUction that no counlf)' WIll claim these peopk:. The POint is thai a CUlnplctc condition or righdCS51lC55 wu created berore the right ro live wu

daalkngro.4'1

Statelessness is here already a doubled phenomenon. GiorgioAgambc=n develops the fi rst dimension acutely when he endorses Hannah Arendt's 44 Ibid. (1950) 291-2.

Concermng p~tnarchy, see, 5:.&lIy Sedgwick (1997) n-llO. See. ~Iso, Joan M:I;ncnhcr (1995) 111 JOh~IIIU Methom (1995). .0 Peter Flaplltnck (1992, 2001): Geoffl'q' Roberuon (1999) 388-405; Jane K. Cowan. Mane-BcncdK1C Dcmboor. and Rtcturd A. Wilton (c' constructions Vl . Human Rights Essentialism 'Essentialism', or ways of thinking that explore commoll properties or 'universals' common to all phenomcna under i1lYcstig:uio n, has ~n shown to be important, perva..'.ive, and persistent, even when mistaken. In 'general and specific theories, and the conduct of re2soning',S'J and win ' not soon disappear' bcouse 'its causes are tOO varied'.oo It should not occasion surprise then if human rights discursivity stands marked by practices of csscntialist thought, especially concerning the identity of the bearers of human rights and of human rights responsibilities. We explore in the next section the difficulties that surround the naming of the essence that constitutes us all in terms of the common property or attribute of being human. We may, however, here quickly nOte that both in the modem and contemporary pandigm of human rights the identity o f the bearers of human rights responsibility also stand esscmializcd, in ways that designate the 'sUtc' as the p.2radigmatic subject of human rights responsibilities. No do ubt, some contemporary e nunciations of human rights nomlS and standards seck. to reach out to the 'non-sute' sites of human rights m;ponsibllity. However, so pervasive, persistent, and important are habits of essentialist human rights thought that it always entails Sisyphean labours to designate the school, the church, the family. and the rnarkc:t as coequal bearers of human rights responsibilities. Bearers of hUlIlan rights responsibilities stand overwhelmingly described in terms of sovereign mher than disciplinary power, to deploy the Foucaldian distinction. ~ notice some obstlcles to hum.:m rights that this tendency creates in Chapter 9.) A striking feature of human rights reflexivity is that it foregrounds dangers concerning the ways in which identities of the bearer of hum.l n rights sunds es.semializcd by deployment of overarching c2tegories th3t subsume or sublate difference. Indeed, some even speak of the imposili."r of human rights regardless of the diversities of loubjcct positions and acts ofchoice (agcncy).61 It is often maintained that the bearers of human rights, when conceived in terms of the essence that designates being human, end 59 Garth L Hallett ( 1991) 126. 60 Ibid., at 180, 61 See, for example. Heather Montgomery (2001) 94-6.

of CEDAW (the Women's Convention) human women tvtrywlrert. The Convention constitutes 'women' as :iii ofllla5sive generalized abstraction. Even when it differentiates some .,ccific collectivities (such as, the 'rural' women or women caught ill.the _ of sex trafficking, for cX3mple) it still deploys lumping, undiSCcrnmg. ~ries. The human right of womcn not to be subJcct to culm.ral enshrined in the Convention then emerges, Itsc.lfsuffused with It docs not quite get around the problem of conceiving of women beyond a 'wife', a 'whore', and a 'mother>62 or as monsters, and machincs'.M The Convention fails to ukr full of the diverse histories of subject positions of women; this inscn"'"y",cn';'I;"'''NOnt''~ of human rights and poses the limits thus enunciatcd .64 Indeed, some feminist thinkers mainuin that ~::~;~~ at defining 'women' or 'sisterhood across boundaries' figures 'Trojan Ilorse of western feminist ethno-centrism,.65 Similarly, by state and activists that pre-eminently focus on sexual abuse and "'ott,,>tm of children proscnbcd by Article 34, ignort' the diversity of subject posltions.66 Rencxive protesutlons agarnst essentialist thought, however, go the farthest in rdation to describing 'indigJ>(:oples' in the over half a century old quest for an authoritative of their basic human rights. Contemporary human rights regimes fail to articulate an authoritative chane r of human nO( of {II/tura/, but dvi/izatiollal. resisunee to essentialism. draft declantions concerning indigenous peoples, tnnslated into lldigenous populations, now begin to acknowledge that what constinltcs the ~ of'indigt:nous' (or the essence of indegenity) lics rn what they

'" lx"",,,

:

,un""

II Moiry Jo Frog (1995).

~, In a related context, Resl Br.MiK)rtl ( 1994) 75-94 "!itt, Elizabeth V. Spelman ( 1988); Judith Buder (1990): Anne Gnffiths (2001); (,)

~ Engle ~ry (200 1). Spclnun (1988) )C. lit. In many a Third World soc iety. the life cycle distll)ClIon betwt(;n a 'e hlld' and 'ldull' sdf 15 Cllt bru~Jl y shon. Montgomery (2001: 86-7) argues dut the 1Il~ l s tcn ce 0. ArtIcles 12. 13. 14) Ih~t chIldren and young persons trght to form and express their 1IIna 'YICWS' and Ihn these . hall he 'glYen due weIght' be uken scnously In Ihe .:",",,,,,,.",, of· '"" ~nlC'S obligatIon (under Aruclc 34) to prOtect the duld from 'all of scJCU.l1 cxplou:ltlon and 5CXU.lI abuse'. H«dmg eJu1dren', VOICes Juslifying 'll:lf-cxploiuoon grounded In theIr apperceived obhgauon to dl('Lr ~renlS .lnd II i5 argued. lex! to more nWLrKed hurmn nghu pohcy rnponslvcness.

CriuqulIlg Rights

136 The FUlure of Hum:m Rights themselves renexively ch:uacterize as such. Put more simply, prnl1aril only those peoples remain eligible as indigenous who create, by th Y' own cultural practices, the crireria of who should count as indlgt:nOUse!~ In COntrast, codification of international human rights COIlScn!)uS Stand more rapidly achieved in relation to women's rights as human fights S chi ld nghts. or . The anli-essemialist critique of the h~mon.ic production of the poli. lIcsif(and evenfor, some would say) £h.t maintains £hat human rights allow liule or no room fo r the play of radical plura.lity. Of course, tillS powerful criticism goes beyond the possibilities of alternate readings of this or t~t text of contemporary human rights enunciation. At stake here remain the formi"g practices of the concept of human rights as such-those t~1 dete rmine the mode of production of human rights subjects/objects, the nature of rights they may have, and o f the logic o f limits that may mOeet their human rights. All this leads to a more gener.dized issue. Were we to regard human rights as a 'phi losophic concept', it 'does not refer to the lived ... bm consists in setting up an event that surveys the whole of the lived and 11() less than every state of affairs. Every concept shapes and reshapes the event in its own way'.68 It raises the issues of the fonnallon of the '(ol/up/1Ul1 personae' in human rights discursivity.69 Their role is to 'show thought's territories, its absolute territorializations and reterritorializations', 7(l move· men ts of 'psycho-social types ... their ... relational attributes ... exislellual modes ... legal status .. .'.71 Because social 'fields are inextricable knots in w hich the dlr« movements' of territOrialization, delerritorialization, and fClerritoriaLization arc 'mixed up', in order to disentangle them we have 10 diagnose tNl typa or ptno,l«.n The movcment from £hese '1110Ugl!/-Ntt,U,73 67 Stephen Marquardt (1995): RUS3C"1 Barsh (1994): Ibchd Seider and J~ Witchdl (2001). 61 Gilles Deleule and Fehx GUlUri (199-4) 34 (emphasis in OI"Igmal deleted). 69 I here Invoke: me rICh analysis offered by Gilles Delcuze and Felix Gutun (1'»4. 61-84). They ~lX'ak of thiS entity as more than the ways m whIch 'olle concept presupposes Ihe other (for example, 'man· presupposes 'animal' and 'r.ll iOll~I ' [61], or 'psyi:hosocial rypcs' luch as 'the stranger, the exile, Ihe migrant, Ihe Inns,ell!. tht 'lallVe, the hV'1lecomet' but about Ihe ~nieular movements that affect the Socious':

67: emphasiS deleted). 70 Ocleuzc and GIIIUri (1994) 69. 7' Ibid., II 71. 72 ' In capluhsm cilplul or property IS delcrritori31itcd, tta!l(~ to be landed. and IS rctcmton,mzcd In the means ofproductlon, whereas labour becomes 'abstraCl' bbour, rctc:mtonahzcd m WlI8'l'I ••• ' Ibid.. at 68. 73

Ib,d., aim.

137

Ibt discovery of real personae is cmcial for human rights struggles bUt : . movement is, at the very same moment, inconceivable outsIde the (lDlJCt"Pttul figuration of 'human rights'. The talk about women's nghts being human nghtS, for ex:unplc, alreildy presupposes the conceptual person~ of human rights. What ~he movement s«ks to achIeve IS the eJ&Cnsion of £he concept by add mg further components, and many a ..,ment of its juridical retcrriwnalizauon, where the conceptual personae 'DO longer has to justify' herscl[14 Given this an.:alytic mode, the indictment of eS5entlahsm IS not particuIIdy helpful, outside what Gayatri C haknvorty Spivak names now as 'llnteWc essentialism'. Tn this image of thought, essentlahzmg 'women' is • form that serves useful historic functions 1Il the human right-ba!iCd ~ against universaVglo bal forms of patriarchy.

VI I. The 'Essence ' of that which Designates Human

'Ibis lSSue goes to the very heart, as it were, o f human righ tS in r.ising the

.-old and well·worn question of the constitutio n Ofbe111g ' human '.

If is any 'csscnce' to 'human', its discovery/invcntioJl is possible only ~ discursive practices that priVIlege certal11 dcfill1ng attributes or ~ttristics over others. A universal category called 'human' emerges aIiy m tcnns of (what Marx accurately described .:as) sptties-bting, which, • cum, enables us to mark OuI the ' human' from the 'lIon·humall ' and the ~n' from £he 'sub·lmman'. Nevertheless, the quahties o r auri butes III dus species-being stand van ously conceived, with fatefu l impacts. 1'bc conceptual pcrsoru tha t constitutes the human subject, and the subject .cbuman rights, constitutes a veritable minefield. Here a few quick, even CIInory, remarks sho uld suffice to illustrate the thematic complexity. G reat religious traditions, includ ing those of ancient indigenous civi~, as is well known, create myths of the origin of the human in a divine, cosmic mode elevating human .:and all sensie nt forms ofl ife to £he It:atus of the sacred. The constitutive traditions of modem and contemporary orders of scientific knowledges ill COntrast situate the o rigins of the human, and of species, as evolutio nary chance and necessity. Against the IIcrcd tclos of the di vine creation of lifc, the contemporary developments III hfe' sciences presclll the meaning o f 'human' in terms of the complexity of ~olllinuity and disconti nui ty in the evolution of all life forms. Whereas ~us .belief and ideology construCt conceptio ns of the sacredness of hfe, entitled to claims of deference by the sute and the law, ~

" Ocleuze alld Gum'; (1994) al n.

138

The Futu~ of J hlO11n RIghts

evolutionary life sciences currently remind us that human beLllgs share 96 per cent of human genome with chimpanzees. All this sits oddly with theological narratives endowing the distinctively 'human' as a Uilique labour of creation by God(s), even if only for constituting the Great C ham of Bemg. This w.r.y of constitutin.-: sp«ies life as sacred (havlllg bce:n created by the Divine) beings has played an eminent role in some recent human rights controversies, for eX2mplc, those concerning capital pUnish. m ent, abortion, physically assisted suicide (euthanasia), reproductive tech_ n ologies, foetal tissue research, and the possibility of human clan mg. Secularized conceptions o f the species-being also furnish deeply COn_ tested sites. These remain open to some violent and aggressive Euro. centric constructions (as seen in some detail in Chapter 2) wherein singularization of the unique human faculty o f reason and will results in pncticcs of pesudospcciation, leading to the violent social excl usion as 'non-humans' (indigenous peoples) and 'sub-humans' (women, slaves, minors, the mentally ill). And in the preceding section, we noticed the ways in which even the inclusive contemporary human rightS paradigm similarly excludes 'refugees' and we will have to further acknowledge the convulsions induced by 9f11 and its aftemuth that conceptualize non-state terrorist actors and e ntire 'outlaw' peoples as less than 'human '. These latter remain somehow k.u t ligiblt humans, and bereft o f righ ts, bccau~ of their Incapacity to effectively present themselves as being either 'rallon:!.I' or 'reasonable'. They definitionally assume the St:l.tus of'life that docs not descrve to live' .75 Qnlhe other hand, this sits in contrast with the Wider secularized fornlS of contemporary human rights that Stress that all species-beings have equal worth and dignity JUSt because they are born hum.an . At the same time, the notion of spn:ia-lxitlg becomes increasingly cuturological. As species-beings, humans stand distinguished fro lll other sentient beings by thcirapacity for language. Through speech and writing. we become fully human;76 the Word becomes our World ; and (with Wittg(:IlSlein) 'the limits of my lan~ become the limits of m y world'. Hununseverywhere inherit language communities that nurk their ascripovt community belongings. Belonging to a community is alw.r.ys first and foremost belonging tO:l. language through wh ich alone all other form s of belongings, and longings, may be imagined and occur; the herein , the 75 Ag;Imben (1998) 136--43. 16 I do not here explore the relatIOn bet\littn sp«eh ~nd wntlng and v1(,knce

mamfest severally III the dISCOUrse ofJacques Derncb., Emmmud Levinas. and MartIn I kidcgger.

C ritiquing Rights

139

, ary locus, of all human rights paradigmatically represented in the of speech, expression, opinion, dissent, and conscience Yo'tll as of 'minority' rights. The species-being stands ,here culturally ~rsed, presenting b:l.ses si multaneously, even dialectically, for tndl~ and group Ide ntity rights. UurtUll righ ts languages, more than any o ther 'typlfymg Ianguages',n provide the found ations for the emergence of rdkxive individuality or, sunply, the human agency that opens the potential fo r choice and re¥isability.78 The mystifying role of ideologies dwells in the modes of ~tation of the historically specific stntegic interests of the dominant _ as the common interest of 'all the members of the soclety.in ~ note here briefly how contestation occurs at many levels: ideology, cakure, history, and movement.1Il These large spheres often intersect and coexist; nor are any uniury or generally agreed notions ofany of these four IeI'm!o possible. Even with this caveat, the indicunent ofessentialism emerges II'IOf't sharply when we regard these fOllr levels as distinct or discrete for -'Yrical purposes.

~tO freedom

( 1) Idrology TIlt fact that prevalent ideo logies playa large part in the construction of

Ihe essence of 'human ' is unsurprising. Ilowever, the ways in w hich IImrwl rights ideology production occurs remains importalH for any selIDOs understanding of 'contemporary' human rights. ThiS at least entails

lilt labour of 'production and distributio n' o f 'ideas of dominance' when ~ as

'the dominant m aterial rt:lations' making 'one class the ruling

CIDe'; III the fonnadon ofidcologies 'matter, m eaning. and social relations

do not Just interact but interpenetrate' .81 This production occurs within '. complex set of institutions ... practices, and agents', which Gramsci DIrDed as 'hegemonic apparatus' and Ahhusser was to call ideologiol and tepressive state apparatu~.112 The mystifying role of ideologies dwells in die articulation of the historially specific strategic interestS of Ihe domi_ I class as tile common interest of'all the members of the society', thus

"" See,

ror thiS llOtion, Mlkhall M. Ebkhu n (1981) 291. " Will JUlllmary statement. First, identities remain historically given, socially constructed, and transformed by critical pfOlXes. Suomi, identity formatio ns ltand always constituted by the practices of ide ntificatio n. Third, these, in two, desubilize 'the identity of the object'. 107 Fourth, essentiali2.ing notions

'" l...acbu lind Zac (1994) 14.

148

Cntiqumg Rights

The Future of Iluman Rights

are liable to disruption by multiple, fluid. complex. and comradkto p~tices o~ identifi~ationY18 .Fifth, narratives of politics of cruelty a~ Violent SOCial exclusion (especially class, gender. race, and 'despi!.ed sexu. ality') frame politico-juridical identity, mirroring domination and r~i unce, histo ries w hose task is 'not to discover the roots of our idcntity b~ to commit ourselves to its dissip:;!.tion'.I09 SOOII, a notable feature of cOI~ lective identities and group righ ts; forms of sharing of group membershi history, ;md loyalty do not quite preclude contestatio n concerning ~~ injustice :;!.nd riglulessness that its mores cause to individuals thus framed tiO S~"'h. identity politi~ thus raises the problematic of the 'recognitio n_ redistribution d ilemma' confronting the overweening power of stille and social institutions or networks. III Eig/llh, logics ofidenuty and difference articulate themselves in the context of state-and regime-sponsored politics of cmelty and social violence. The proble m then, starkly put, is this: do the languages, logics, and paralogics of human rights essentialize the idemity o r celebrate the differ_ ence of the bearers ofh u11lan rigllts? There is no question. as already noted. that the right to 'self-determination', as conceived in COntemponry intcrnational law. esscntializes the identity of peoples within the terntorial fonn of the nation-sute. The 'stir-Illdividual orcollective-although capable ofbcaring human rights, t:xists only so far as it remams identified withwhether by way of the fact of birth. descent, or allegiance-to an organized political community. As already noted. fX:TSOIlS lacking such affinities ceast' to have any claim to a scln100d assuring them access to the estate of contemponry human rights. Further. human rights constitute various subject positions. The subject of human rights is viewed as ' the articubtion of an ensemble of subject positions, constructed within specific discourses and always precariously sutured at the intersection of subject positions'.112 In addition, me lOll For CXOlmple. I\:cheux disonglllshcs three pnc':lJCCS: 'idenufiGluon', 'counlC'rK!enrifiarion' :uK! 'dis-KknufKaoon'. The first is 'i(knufKatiOn': the 'good' 5UbJtct Kcepts his/her place III JOCiety and the SOCial order as It Stands whereas tho: ~, 'o:ounler-ido:ntlficallon', OCCU I"ll when the 'bad' subJcct Simply demes and opposes the: dominant Ideology, and In so dOlllg inadvertently confirms the ~r of the domll~nt ideology by acceptms the 'cvidenmcss of meallms' llpoll which It re~ts . The dun! posItion named 'dls-Idenuficltion' COIISlltutcs a working of the subject form and nOl JUSt Its abollrion. (P«heux (1999) 156-9). 109 A1ctu Norval (1m) 121. 110 Vee:na Das (199-4); Martin Chanock (1994). III Nancy msct " • . (2003). m Cluntal MOIIffe (1992) 237.

149

113

unity appears as 'a discursive surface ofinscriptions·. There IS a ~ppeal in Chanul MoufTc's notion of a 'non-individualist1~ concep~ of the individual'. The notion rejects, as concerns human TIghts, the : : of the individual in terms of'~sessive indjvidu:lisn~'.I1~ It lI~lpltes ore The individual stands conceived by MoufTe as the ITltersccuon of rn uitiplidty of identifications and collective identities that consuntly ~rt each other'. lIS This dissipation .of subj.ects of h~lman ngh.ts into ~rs of a variety of muttlaJly subversive subject-posItions d.oes lI1deed ..afy to the emandpativc= potential of contem porary renex1VC= human ,.us pr.lXCS. The bearer of universal human rights IS. on this view, no iadwidwl human 1x:ing or community with a pre-posited 'essence' but a kUlg born with a right to invc=nt practices of identificatlo~, comest id~n­ aDcs pre-formed by tradition. and the power to negouate subverSIVe Jllb.ject_positions. Because, primarily, of this the bearers of human rights lIDJ.3in (olltillgem persotlS I16 who may claim ' universal' human rights in the Wmtity projects they choose for themselves from time to time. Although IDI11ples remain treacherous, each of the above-mentioned practice of Wmtification needs some concrete location in contemporary history.

(1) nle

Humatt

Rig/It to CllOost Praaius

of Idtflli/iClltiotl

This human right entails a combll1ation of the proposItIonal content of any human rights norms and sundards. including the TIghts to freedom of speech and expression, association and movement. conscience and religion. It is a right, in sum, to choose tnditions ofbehefs and commumtics ofbclonglng, w hether social , cultural, religious or political. Under this assemblage of human rights individual human beings may choose llheism or agnosticism, or they may make choices to belong to fundamen tal faith communities. Conscientious practices of freedom of conscience enable exit through conversion, from traditions of religion acquired initiaUy by the accident of birth or by the revision of choice of faith, which may thus never be made irrevocably, once for all. Likewi~, one may cboosc to belong (and revise one's choices) to a labour union or political PIny or indeed ch()C)SC: not to so belo ng. The cnldal poi nt in these, and ~b.tcd ex:amples, is that practices of identification lInder the signature of (1992) 14. '" SeeMouffe the instructi~ tclkcuons In IL4

Wlyne C. I3ooth, Helene Ci)C()us.Jllila Knsleva.

lad P~ul Ricoeur (1993). 115 Chantal MoufTe (1992) at 97, 100. Stt, Agnes HeUer (1990) 52-69.

'"

ISO

The FulUre of IllIman Rights

Cnuquing RightS

'contemporary' hum.:1.11 rights secure an open nonnative future for each and every human bdng. Funher, the human right to choose practices or identifiC2tion necessarily contests attempts (by state: .and civil socicty) to enfora enclosure.

(2) TIlt:' Hilma" Rigllt to &Iotlg to and to

Contest Comnll/tlitari(U! ldelltiry Contemporary hum.an rights l.angllagcs, logics, and paralogics, also cllable and empower contestation over tr.ldirions of belonging .and belief to which one subscribes by W3y of consciemious choia. The struggle over the human right to intimate association enables lesbigay/transgender affilia. nons that respect the choice ofidenrific.ation practices, This is illustrated. in many a complex W3y (r:ven as I write) by the debate in the Anglican Ch urch communities over the ordination of gay priests. Even though the issue stands posed at times utterly bereft in terms of human rights, the contestation entails a whole series of th e hemleneutic ofhulllall rights. l3y this. I mean the right to the best practice of the interpretation of thc word of God or the revel.atory scriptures. No such contestation may remalll possible outside the recognition of the human right to read/imcrpret the revealed Word. To take another eX2l11ple, in the f.amous SJ,ah &110 C2SC. 117 a pIOU~ aged Muslim woman moved the Supreme Coun of India constructed in suppon of her contention that thc Quaranic texts provide a right of mannenance to dIVorced Muslim wives. The Coun acqui~ed with her, I lowever. the Indian Parliament restored what it thought to be the onhodox n-ading of the Holy Quran. 118 Progressive women's organizations and movemcnts, across the religious divides, sought a judicial reviewof the Act, still pending before the Supreme Coun of India. 119 When some of us gained access 117 MoM AhrMI KMn v. Shah &no Btgllm AIR 1985 SC 946. S« :llso. Zl~ P.tthlk and R:lJesw:ln Sunder RaJan (1989) and (2003): Fbvi:l Agnes (1999). Indttd, the MllShm Women's Protet::tiOll of Rights Act mnov;W:s the shan"11 by

,.1

requiring ally rtbtlvc with the prospect (sptr SU(((JSiOtJis) of inheriting frulIl her to IIllI1U;II11 the divorced WOIll;In. It further enuils a SImilar obhg;l\1on on P'OUS trUstS (W/lkjl) to prOVide m;lIntenanee to divorced women. Through this, lndilll P;trhal11C111 exercises legubuve power to ameud the Slrori'o in w~ys th ... t even the most progre)S IVC reflJmlcrs of Muslim bw never could luve al1ticip~ted! I lov.1:vcr, the politiCS of the SltuaUon on ~ll sides prtvcntcd any acknowledgement (and It 51111 docs!) of tht~ daring u~ruon

of Ieg1sbtrve power.

119Tal'llAh Iblg. Madhu Meha. Lallka S:lJ'it.n, and' fikd the petlllon m 1985-The first two pctlUonen h:lvc smce dIed. In addition, the last two :Ire at the edge of

151

Shah Bano, (a woman in her sixties. who had been married for over she reminded us, at the height of impassioned n.arional controversy, that she W3S notjusl a woman but that she was also a Muslim IWI""'" She was not a Mpak; as a woman she bclollb-ro, and stood consacutcd, by the lived tn.ditioll of the Shari'a. In other words. she claImed ~r equ.ality Illi/hit! her tradition and was loathe to surrender it to the ~r of secularized interpretive communities. Sh.lh Bano's response provides a striking example of a 'multiplicity cJ identifications and collective identities' that 'constantly subvert each oCher'. H er identification as an Indian cnizen led her to activ.ate judicial power fo r the vindic.ation of her rights; but the rights she sought were within the SJwri'a, not indwelling in the much-vaunted secularity of high judicial discourse, The recourse to judicial power W2S creatively conulluniurian, not a subscription to the 'Global Project' of universal launwl righ ts. '20

~ decades)

(3) TIlf! Hilma" Right to Mat/age Praclicts

of ldcmity SlIbllfrsio"

Jdmtity subversion remains a complex affair, indeed, situated as it is within .,aphilosophy and erratic time (noted earlier). Thus. for example, pious Wamic women may contest patriarchal regimes ofQuaraOlc lIuerpretation • home, while at the same: time articulating a sort of global solid.arity ~. Women, living locally under the regime ofstrictly enforced shori'a, .me protest forms ofTalLbanintion in Mghanis~n or related other forms eaystill unite in global protest (as now against the French d ictat prohibiting ...,,) cI.aiming respect for the riglll to INdiffrmu oro right 10 difference. Their deployment of the logic ilnd paralogics of human rights seeks to subvcn the 'IDonological' viewofhuman rights through a pluri-universalistic praxis. 121 Here we stand confronted by some of the most intractable: problems of die conflict of rights where self--choscn sedimentation of identity wimin a religious tradition is at odds with forms of universalistic modes of de· 1raditionali:u.tion of the politics of difference demanding gender equality andJusticc. What iscnlcial, in myvicw, is the fact that thisconflictofhuman rights (to free choice of religious belief and practice and to rights to gender

.;;:ahty! Obviously, the Court in itS IId.ninislnltilif powers has .ileneed the perition. only ~ rt:lSOll fOf th,sJudlclJI alxha.tion stands provided by the cons,deratlons lIlSticuuonll integrity of the Coun ;IS wdl ;IS political accommocbuon bct\OltCn SUpreme executrVC and supreme judle,al power. Ste also Upendn 13;00 (2004). See, genenlly Mane Dembour (2001).

,~

'"

152

Cnuquing Rights

The: Future: of Ilunu.n RlgJltS

equality and justiu) b«omcs socially visible when a global paradigm of human rights is securely in place. It is this JJappnli'~~ that makes legible t~ play of subaltern power 111 constant subversion of identinelO.

lX. Questions Posed by Im posed Identities for Politics oj alldjor Human Rights The celebration of multiple. fluid , and contingent identities constitute a Important story but not the on ly one. Other narratives guide us to the problem of imposed identities; this raises several questions from the sundpoim of those engaged in actual hunun rights struggles. Forms of human rights logics and rhetorics, fashioned by historic struggles, of course, assist ways of theorizing repression ;l22 these cven pernlit us to t~ink. ~f discrimina.tion ~n the grounds of birth, sex, domicile, clilnicity, disability, sexual OTlelltatiOIl, for example, as violations of internationally proclaimed human rights. It remains, on this view, the mission of human rights logics and paralogics to dislodge primordial identities that legHimate the ordcrs-imposed suffering, to the point not JUSt of its total social invisibility-at times, even to the rep~d. This mission is fr.lUght with grave difficulties. When civil society enforcement of pnmordial identities remains the order of the day, human rights logics and paraJogics cast responsibilities upon the state to combat it, raising liberal allJaety levels concerning augmenting the New Leviathan. In addition, ule state and the law may oppose such enforcement only by a reconstruction of that collective identity. The 'untouchables' in India, constitutionally christened as the 'scheduled castes', stand further burdened by this reconstitution. In everyday life, they remain either untouchables or ex-untouchables. Justifications of affirmative action programmes worldwide, for example, depend on the maintenance of the narrative integrity of the millennial histories of collective hurt. It is true that these essentialize histOric identities as new sites of injury. Is there a way out of emb.lttled histories shaped howsoever by the dialectiCS of hun un rights? Further, imposed identities significantly reduce the repertoire ofpractices of identification. Imagine your placement in the (non_Rawlsian) original position of a person belongi ng to an untouchable commullIty (say, in a remote area of Bihar, India) . Would YOll find it possible to agree that caste and patriarchal identity has become fluid, multiple, contiTlbrent? As an untouchable, no matter how you perceive your identity (as a mother, wife, and daughter) you are still liable to acts of dominant C2SlC rape. As

•

•

!.U

See Ins M~non Young (1990) 39-66.

l:u

such. you will also stand demed access to WOlter 111 hlgh-
One must cOllstantly rcmember th31 the impossible ... IS, alu, posIi'lble. One must constantly remember 1I1at this absolute evil., .can uu place. One mU~1 remandy rcmember thai e:~n on the bUls of this terrible possibility of nnposslble thalJusllce IS desirable ....

Though beyond wh3t he calls 'right 311d law', D a 11ISt resort. to rebellion aga.inst tyranny and oppression'. Curiously, human rights are also declared essential, in Para 4, 'to promot~ the development offnelldly relations between nations'. The preamble is also not lacking in historic justifiC2tions. IS It also advances specific instirucional justifications; P:!.ra 5 and 6 read together suggest that promotion and protection of hunun rights and fundamental freedoms of human rights is a 'pledge' to be achieved through cooper..ation with the United Nations. P:!.r..a 7 privileges a shared epistemology of human rights; a 'common understanding of human rights is imperative'. 19 The Preamble also furnishes specific standards of collective humllin endeavour: thus Para 1 refers to human rights as the 'highest aspiration of common people', P:!.ra 5 invites atttmtlOn to 17 See. , lalndi v. RUIIU.ftld, &crtklry of SliJlt tf DI.; RUlllifdd, MI'tf Thus. for eXlullple. when Ilegel lIIallltltned that 'the right to recognition'. Iha~ 15 'respect ror the penon or "fttt personality- as such" IS the 'core or the modern su le (SmIth (1989) 11 2). he was not rnnqumg coIomahsm or Imperialism, p;itrtarch)t or racism.

uvmg and Dead in Relativism ? 167

reterence to rights as a standard oflegitimacy' ,27 prior to the mid-~nueth wry CE, me world intenutional order did not regar~ respect for human ~ ts as a standard for legitimacy of IIltemauonal relations or affairs. This ~pi~tcmOIOgLcal break .complicates rec~urse to the Enlightenment discursiVlty on hUl11al1 nghts as natu~1 nghts; for, as we have see ~ , the notion ofbcing 'human' stood all along constructed on Euro-centnc, or ncist, lines.

Ill. Three Moments of Universality ~ notion of 'universality' of human rights raises heavy and complex questiOns that may seem distant from the 'real' world of human rights praxis. But these erupt constantly i~ that ' real ' ~rld as well. In~dvcrte nce to these questions make the enterpnse of promotmg and protecting human rights t.,-ven more difficult than perhaps it actually need be. , . , In a sense, these issues rdate to how one may construct the umversal in relation to the 'partien!;;"r' within the proclaimed 'universality' of human rights and, further, which interpretive comll1unity, if any, may fec i privi· Itged to so do. T he way this is constructed and contested, as we see later, matters a great deal. Hegel states with finality (if such things call be!) the modes of construction when he distinguishes between three 'moments' : . raet tmiwrsality, abS/f'Q(t partituilJriry, and concm~ ullivtrsat.'ry.28 The: first moment stands fo r 'undifferentiated identity' ; the second for 'the: differ· nutation of identity and difference'; and the third for 'concrete univer· sality, which is the full realization ofindividwlity'.~ 111c claim of universality ofhuman rights offers itself to construction through these three moments. Its abstract Imivmaliry addresses the undifferentiated identity of all bearers ofhuman rights, regardless of history or future:.30 The second moment of llbstratt univmafity occurs when the identity of tlte bearers of human rights cognizes that bearer by gtrldtr, illdigtllitty. VUltlUllbility, or prrgmtwn lltlribwts. T he third moment of {O'U"/~ Ultivtrsality becomes possible of

Smith (1989) 61. Mark C. Taylor (1987) at 16-17. 1 rclllalll aW;IT(: o f the IlIIpondenhlcs or:my readllig of Hegd. and now Lac::an, presented In Judith ouder, Emcsto Lacbu. and SbvoJ :!Iick (2002) but also Uluble, Wlthm the dire continel of tillS monograph. to JlUtsue thCSC' uve all occ~sionaJ x knowledgement. ~ Taylor (1987). 30 '" .the lIlutual recogllltion of one aT1mhet', tlKhts', acrordlllK to J 1cW;1. 'must take pbce at the expense of luture, by abs trn:tmg or den)'lng all die mdlVldual dlft'erenccs berwecn !a until we arrive at a pure · I ~, the fttt Will or · universal ~sciou§l1es5~ whiCh IS at the rOO( of thesc difTercncc:s .. : Smith ( 1989) 12• . T!

211

168

The FulUre of Human Rights

awinme nt when the first twO mo ments prevail: the moment of Identity of all beings as ' fully' human and the moment of internal differentiation of that 'human'. Should we choose to distinguish these three moments, many of the objections or difficulties With the ' universality' of hum:m rights .recede. The cnUI1Clatory referents of UDIIR comprise Ilhslmtl lIuillfflltllt)'- The UDHR addresses 'all human bei ngs', 'everyone', 'all', and even '110 o ne' (in the imperative sense that ' no one' ma~ violate human ri~llts thus proclaimed). All these entities have human nghts; the o~ ly OCcaslOl.1wh~ n the moment of Ilbslract pilrticllwrity stands comprehenSively coglllzed IS, perhaps, in its very last Article.)! Subsequent human rights en.un:iauons increasingly address IlbSlrQ{t pt1rriclllllrities: for CDmple, ,":omen s ng.hts ;u human rights, the rights of indigenous peoples, the rights of children and migrants, including migrant labour, and the . h op62 But neither h.d the 'Western tndition' even the phr2Se 'rights' till the 'mid-nineteenth century,6J And the invcntion of the phr.ase ' human rights' is very recent II1decd. AJUrt from the socio-linguistic discovery of novelty, nothing much follows! No doubt, words and phrases carry bur_ dens of histories. But histOries also g;ve rise to regimes of phrasn that mould the future. Surely, the discourse on human stmggles and move_ ments that em~r human beings in time, place and circumstances to resist oppression (whether in East 1imor or Myanmar) is also entitled to the same order of privilege that historians of ideas or cultural anthropologist claim for themselves! This work does not address the daunting tasks of tracing these scattered hegemonies of 'relativists' desires, a task cmcial for a social theory of human rights, However, as a prelimim.ry step towards it. I undertake a critical overview of the agendum of relativism in relation to contemporary h uman nghts discursive formation. In doing so, I transgress simple logic. A logical W2y, exposing the fault line ofrdatlvism, is to prestnt it as an axiom that maintains that there arc no truths save the truth th:/ot all tnlths are relative! You may subs-tilutc for 'truth' in this axiom for 'values', ' human rights' or notionsofbcing human (or whatever the context reqUIres.) It is well known by now dlat logically such a position is simply mcoh(:rent, If, on the other hand, ~ were to entertain a more radical view of authorship of human rights (which I have elaborated thus far) where peoples and communities are the primary aurhors of hum.n rights, the history of universality of human rights emerges differently. The 'Universal' here 2fe practices of resistance w power, which playa creationist ro le in the makingof'comemporary' human rights. The nonns and standards, and even values, proclaimed by people in stmggle and communities of resistance get promulgated then at a second-order level as standards and norn1S eventually adopted by community of states. Ln the making of human rights, the local translates its aspirations for a just world into the reality of global languages. However, the dominant discourse wishes us to believe that the anti-colonial struggles relied upon, and wholly mimed, the typical h uman fights discourse of the 'West', Opposed to til is mode of thought is the notion that invokes the notion of (of4(hr'tSis, signifying the lack of 'adequate historical referent' in the 62 Interested readers may PUI'llUC the citation to rc1cV;lIIt I,ter:lture in the masSIVe footnote 3 III Stt'phen I~ Matb (1998) 459 at 460. 6J Alasd;&,r Macintyre (\981) 69.

III

Relativism?

185

cultures of the Other.64 The point, however, is that the Other here Itself refers also to the formative human rights traditions and cultures of the 'West' as well!

VI I. Absolute versus Universal Foremost among the many confusions and .anxieties that surround the notion of universality of human rights is the confusion between the UllIvmtlUry and absoillfenm of rights. However, nothing about the logics of Universality renden human rights absolute. for at le.ast two reasons. Fint, and foremost among the many confusions and anxieties that surround the notion, Hcrskovits has reminded us: Ab,.,Jm6:are fixed, and as far as convemion i~ concerned, are not ..dmittcd to have

variation, to diffcr from culturc to culture, from epoch to epoch. U"illCJQb, on the other hand, arc those Ic:ut common denominator.! to be extl'llcted from the ran b~ of phenomena of the nalUral or cultural world mamfest. 65 Second, it is clear that my right to do or have or be x (or be immune from is limited by your similar right to x (and immunity from y) .as well . If h u man rights release individual energies, talents, and endowments to pursue individual or COlleCtive hfe projects, they .also set bounds to tlus valtant enterpnse. Human fights thus make sense o nly within the textu re of human responsibtlltles. The logtcs of universality entail j/Ilmltptlldtllu of human rights: every human person or bemg is entitled to an order of rights because every other person or being is so entitled to it. If tins were not so, human rights l.anguagc will CC2SC to posses any ethical Justification whatsoeVer. It IS tme that this was not.always tile case. 'Modern' hum.an rights logics wcre obsolutist, not unjun'SQi. 'Contemporary' human rights .are, in contrast, univmai precisely because they deny the absoluteness of ony positing of rights, although some hum.an rights are said to be ntarobsoi'dt as is the case with a handful of, and often contested, jus (Oft/IS. Further, the logic of universality is constantly bedevilled by 'utilitarianism of rights' , that is, by arguments from consequences, Univenality of human rights symbolizes Iw ivtfsaUty cif (olltttive humall ospiration /0 Itwkt' POl4'ff mort' Q{(Ollll/oblt, govuIWtllt progrwivtly just Oil/I s/atl! ill(rtlfltIIltllly mort' tll/iro/, I know of no 'rel.atlVi!.t' strand of thought that contests this desideratum.

J)

: iliyaO'i Chaknvorty Sp'v~k (1995) at 155. HerskovlIs (1955) at 74. 66 Albn Gcwinh (1996) 47-8,

,

186

What IS Livmg and Dud in Relativism?

The Future or Human Rights

VIII . Multiculturalism Multiculturalism 2S this re1.:&tes to the discou rse on the future ofhurn21l right:; and needs grasping in at least three distinct ways. First, we need to ask.: are expressions of coutemporary hum2n rights st2nwrds and norms m erely v2nations o n the Euro-American themes 2nd traditions? Second . given the processes of globalization, as well as the earlier histories of tht" formatlon of'minontles', what conceptu21resources exist to nuke human rights st2ndards and nonus relevant to sitwtions of voluntary and imposed migration ofhum2n beings across national frontiers? Third, we need to ask, more profoundly with Z izek, whedler 'multiculturalism' is, after all. a species of poslrnooem racialism.

1. FomlS of MII/rim/wralisms 'M ulticulturalism ' is a new word but nestles many o ld, even ancient. histories of violent social exclusion. In particular, conservative o r co~ratc multiculturalism has a distinctively colonial 2nd racist genealogy.6 In Its postcolonial and now globalizing fonn, it remai ns irredeemably 'Whitc' both by refusing to 'treat whiteness as a form of ethn icity' and positing 'whiteness as an invisible noml by which other ethnicities are judged'.611 Its conceptions of diversity remain assimilative; it fails to 'interrogate dominant regimes of discourse 2nd social and cuhur:ll practices that are implicated in global dominance and are inscribed in r:lcist, c1assist, seXlSl, and homophobic assumptions,.69 The discourse ofliberal multiculturalism stressing equality and human sameness among and across ethnicities t2kes myriad forms, aspects of w hich we notice bricfly, in what follows. In contrast, the critical or 'polycentric' foml 'sees all cuhural history in relalion to social power', where 'minoritarian communities' emerge not as 'interest groups' to be added onto a pre-existing nucleus but rather as active, generative participants at the core of a shared, conllicUial history'. Only 'reciprocal and diaiogic21' modes remain capable to ' recognize the existential realities of pain, anger, and resentment' of the vio lated, excluded, and the rightlcss pcoples. 70 The question then is not 'merely a queslion of com municating across borders but of discerning the forces which generate borders in the first place'?1 67 Sec. e5pCClally. Ihc an~Iy!ls or 'while le1T01" III Ptlcr McLaren ( 1994). Cednc Robinson (1994). and llie tllSlgblrul work or Aclllile Mbembc (2001b). " Mc13ren (1994) al 49. ~

Ihld.

711 Roben Su.m and Ella Shottal (1994) 296 at 300-1, 320. 71 Ibid., at 320.

187

III complete disregard of the facl that contemporary human rights norms and st2nwrds are not monologically, but dialogically, produced and enacted (and stand brokered and mediated by g10~ 1 diplomacy, mcluding that of the NGOs) some critics of contemporary human nghts sti ll malntaJll that these ignore cu ltural and clvi lu:ational diversity. Th is is bad, mdeed even wicked, sociology. T he pro-chOice women's groups at the UnilCd Nations Ikijing Conference, for example, confronted by His Holiness the Pope's Opcn Lener to the Conference, or the participants at the Cairo United Nations summit o n population planning know thiswelJ. The enacunent of human rights into natiOll21 social policies stands even more heavily mediated by the multiplicity of cultural, religious, and even civilizational traditio ns. The American fcminists on every anniversary of ROt: v. I%dt know this. So docs the African sisterhood modulating public policy on femal e genital cutting. So does the Indian sisterhood in its moves to effectively outlaw dowry murders. No engaged human rights theory o r pr:lctice, to the best o f my knowledge, enact, in real life, pursuitof universal human rights without any regard for cul[ural or religious tnditions. Nor do Ihese completely succumb to the virtues and values of 'theoretical' ethical relativism . In ways Ihat the arguments from relatiVism do not, Ihe logic of the universality of rights opens up fo r Interrogation settled habits, even habitus (111 the connicted sense that Pierre Bourdieu endows tins notion with), of repr~nt2tion of 'culture' and 'civilization'. It makes problematic that which ~ earlier regarded as se l f~dent. natural and true and m2kes it possible to practice a human rights-friendly reading of the tr:ldition or scripture n and even to claim that some COlltemporary human rights stood anticipated by these. Of COUT'SC, as is well known, connicts over interpret2uon of tradition are conflicts nmjust over values b ut also about power. In tum, both the 'fundamentalists' and human rights evangelists become prisoners of a new demonology. Both tend to be portrayed. in the not always rhetorical warfarc 73 that follows, asfit,lds, not fully human and, therefore, unworthy

n Re:~dlOgs or scriplUral !~Iuons YIeld repreSSIVe: as well as Clll11lClP, an~ the politics Jor human rights based upon it, m ust men remam a hlstoncally transient fonn,41 Human rights activist communities may wish to assert otherwise. Some may ~nt to say that the histories of human rights do, indee:rl ' ~ny ~e future signatures of 'pre-determined directio nality'. Such d irectiOnality stands manifest, for example, in the o utlawry of territorial occupatio n and subjugation (in yesteryear colo nizing fonns), justificatio ns of ch,aud sla very of human beings, foundations of racist apartheid state forma.tlons, an " 1y .III fier lor--c\lcn overt forms of patriarchy that regard women as d "" Isunctlve .I sub-human beings. What is more, human rights movements as SOCia

d

41 I am noc qUlle sure thaI Caslelb InICnded hiS ICxt 10 be read thus In the (0111(:X1: of hunun nghts but thiS emctgc:s as a strotlg imphouon or whal It says.

215

movements e ngage glo~1 praxes in securing future Irreversibility of these

.and related forrl1s of constituting the ·human'. From tins perspective, hunlJ.n rightS movements remain future-oriented and cannot take as axiomatiC the notion that 'the only sense of history IS the Illstory we sense' 1~,I.th er, these emerge as historic endeavours at fashiOning human fut ures! Students oflUllnan rights movements who may concede value-neutral descri ption, still impermissibly though, be inclined to dIStingUIsh between 'progressive' and 'regressive' social movements. They may IIIsist that while both may be worthy subjects ofsocial scientific investigatio n, 'progressive' human rights move ments accentuate useful forms of'organlc' knowledge that advance prospects of human rights and fundamental freedoms. A very long lillie before me erudite discipline of the study of social movements was born, human rights movements installed 'organic' knowledge. Mo handas Gandhi, Nelson Mandela, Marrin Luther KingJr, the suffragette movement panicipams and leaders, the labours of the working class movements, for example. prefigured future kJlowledgcs concerning human freedo ms and fulfilm cnts. They subvened and transformed the domlllant paradigms of transfonnative social movemellls from a strong evaluative and ethical base. Any cOlUemporary celebratio n of val ue-ne utral descn ptlve realism orphans the profo und moral Iog..cs of human rights ~l1lents by forbidding. at the very th reshold, m e POSSibility of distinction between social moveme nts cOlTlmitted to subversion ofcontemporary buman rigllts from th~ that s«k to preserve these Nell for an uncertain future. , By the same toleen. the social theory of human rights may have considerable d ifficulty with the perspective dem anding that even the manifestly rights-denying o r rights-diminishing social or human rights movements should escape moral evaluation pending social research, Such movements turn me very power of human rights rhetoric to name cen:a.in Teglmes of human righ ts upside down! The power of human TIghts disCOUrse to name an order of evil is used to name human rights as me very order of evil! A 'willing suspension of cmical beliefs' (to adopt the fecund phnse of the poet William Coleridge) deferring human rights action to ~U~t.1lt1ed social SCience research can have impacts 0 11 the power of human ngh~ movcmellts to name an evil and to create! public concern and cap.1blllty to contaill or eliminate it. udSocial theory of human righ ts, of necessity, has to find bases for e thical J gt'lllent conccrningdlstinctions between 'good' and 'bad' social move'lknts', hawsoever COllteSUIJ1..1 e, 1Hlman ngilts " " movcments cannOt (to reuentc) take ' . 1 IS lh ' as axiOmatic t Ie notion that 'me only sense of history we: have c history we: sense'. Ramer, 'progressive' human rigllts movements

216 The Future of Human Righ ts

seek to provide a 'pre-detemlined directio nality' in human social dcvel. opment by articulating an ethic of power, whether in state, civil loOCiety Or the market. They contest the nOtion that ceruin orders of human tran5aCtio nalilies constitute moral fr« zones. ~2 Even so, clearly, outside the range of the limit snu:uions I have thus far described, the characteri u tion of som e hunun fights mOVements, as '~. gr~ive' docs not quite withsund realist analysis. It IS nOt manifestly clear, for aample, that the votaries of capital punishment, o r the right to hfe champions (who, for example, oppose abortion, emh.ana.'Ha, possibihties of human cloning o r stem cell rescaTch) or those who advocate equal rights of man (movement for the rights of fathers or husbands), and those that oppose 'same sex' marriages, t1fuSlorily engage in human. rights negation or nihilism . It is a social fact that peoples of such persuasion arc daullIng (as noted earlier) a hmtlatl riglll to itlterpret humatl rigllts 1I0mlS, still/dards, alld tilt" va!ut!S. Human rights activism must then, of necessity, restrict the plenitude of its categories that describe q uintessenti ally 'progressive' movements. I.)escriptive realism , all said and done, thus otTers a preCIOus antidote 10 some contemporary fonns of human rights romanticism and evangelism.

V From 'Movements' to 'MarketS' E~r since Ro nald Coasc's famous en unciation of ' transaction COSts', varieties oflaw·and econom ic-movements have directed attention to rights as factors of production featuring alongside with land, Ia,,?ur, and C~PltaI.4~ More recently, the UNDP approaches toWards 'managmg g1o?"hzauo,! ukcs account ofhuman rights in tenns ofa theory ofglobal pubhc ~s. In an Important sense, these approaches direct attention to human rlgh~ to th(' transformation of 'movements' in the diction and logic of 'free nurketplaces. . Increasingly, and in mimetic relationship with high econom iC theory, humal1 rights movements organize themselves in the image of mar.kets that produce, exchange, and service production/reproduction ofsymbohc goods. In an illlportant sensc, these symbolic markets seck to overwrite, as It were, . markets; put another way, t hey see k to 1111 · pose non _market economiC I. .rall0l1a ' INTHS constraints on economic :. md al10cative forms 0 f econOllllC I'r . is, indeed, an extraordlllary venture, which I analyse in some detail III

42 D)v~ GauthIer (1986) 13, 83-112. ~ I h)vc rCVIewed thl~ elsewhere: sec, Upendra FWci (2003a). 44 Sec lngc lUul tI ... (2003).

HU/ll21l Rights Movements and 11uIll2n RightS Markets 217 Clupter 9. For the present, I remain illtereSlltd 111 the forms of conversion of human nghts moveme nts tnto human nghts markets. 11te production-that IS, the maktngand die unplemenution-ofbuman n ghts as an ongoing e nterprISe (both III the form of the toc:tual and unplementational productio n). It re mallls resource-mtenslve. It entails costs ofhmnan nghts producuorV'reproduction mcludmg capiul, labour, .lnd mfornutlon. COSts considerations, for eX::llnple, JUsnty the Y.lried constructions of the hierarchies of human rights production and imple. mentation (those that distingUIsh he re- and·now enforceable human rights MId those: dcfern:d to an uncertain future.) Finitely available resources dictate the COSts of distributio n of production and realization of human rights. in various languages of feasible 'balanci ng', o r optimal produC[ mixes, and 'fixes', of human rights 'hard' and 'soft' human rights regimes. The former require a high order of allocation of resources in ways that the laner do not. H owever, lhe eCOllomic aspects of human rights movement production/implemelltation remain little understood. Competition for scarce resources for the making and implementation of human righ ts severely constrai n their fmures. Human rights groups compete illf('r ~ to capture o r mobilize scarce o r limited resources; NGOs of vano us kinds and at various levels thus emerge as «onomic actors JeCking to mobilize avalbble resourCes around the adopted human rights ap;endum. This results in a scramble for resources, which d~ no t alW2YS PfO\'"lde a level plaYing field; some human rights actiViSt agendum finds no steady investors as so poignantly illustrated by the struggles for indigenous people's human rights or lh~ of people with di~bilitles. Some markets for human ~glHS--that is, u-ansactional resource regimes as well as regimes of Info rmauon-rcmain historically well--csubhshed compared to others; for eumple, the Beijtng conference for women's rights as human rights that fostered 'gender mainstreaming' markets for research and action networks has few parallels for the international investment in human rights ~t It, cO~lcretized and regene rated. Likewise, markets for 'good governanCe onentcd human rights production thrive more readi ly than those ~seek t? pr~tect hUIl1~n rights of the .suteless persons and refugees, or h ' entailed III comballllg sex-tramclci ng, or evell the human rights of C~dren now Irrevocably situated witlun the Internet reproduction of P Ihc global markets. More investment flows, to take 2nother example ~n markets for human rights for post-socialist 'transitio nal societies' tha~ ~t--cOI1f1icI' ones like former Yugoslavia, Mghauisuu, o r Iraq. rncn~~dlllg agt"ncics (whether national, rt:gJonal or global, private, govern. s '1.IId NG ls in thiS dec:.tdc and,l ha l( of the United N~uo;;; rnUII SUlllllllts: VIClITla, e,lm). Copenhagen. lk\lmg. and Isunhul. Uy their dctc ) partlelp,lUO'II at these (,llld the mcvH~bly rnaltdlted pl us-51plus-IO rcvleW IlleCUll~ they seck to reonent the gklbal mve5tmellt markets In human nghts. The Intcres~()f cJVII-'Crvants (lutlOO,l1 and gIoWl) mtemlnh, In thiS proass. With those of die N lind the NGIs.

223

ifonly because when compassion dries out, the ~sources for the alleviation f human suff(,ri ng through human rights l.angu.ages stand depleted. o This imersection regasters the n«esslty for human nghts entrepreneurs commodify human suffering. to p.acla.ge and sell It In tenus of what :"'rkets WlII bc=ar. J luman righ ts violations need prolific, and constant, commodification of human suffering. Human suffermg has further to be pxbgcd in w:ays which the global mass media markets will find profitable w ben over:t.ll.!iO But. by definition, the mass me(ha can commodify hum,m sufferi ng only on a dr.amatic and conti ngent basis. Injustice and human violations is headline news only as the hard porn of power .and its voyeuristic potential may pennit the r('iter.ative packaging of violations which titillate and scandalize for the momem .at le.ast, the di lettante sensibi lities of the global zing classes. The mass media also plays a creationist role in that they... man imporunt SCl1o;e 'crute' a d isastc-r when th(,y decide 10 recognize it ... they give IRnitutional endorse ment or attestlUon to but events wluch otherwise will have a n:ality res tricted to a locll clrcl(' of VlCtIIllS. 51

Such instltution.al endorsement poses intr.aCtable issues for the marketization oI'human rights. G iv('1l the world...,';de patterns of the mass media owncnhip, and th(' assiduously cultivated consumer cultures ofinfo-entertai n~nt, the key players in human rights markets n~ to manipulate the media into proj ection of lIuthcmic representations of the suffering of the vioutcd They need to nurshal th(' power to mould the m.ass media, Wlthom luving ~ccess to ~sourccs th~t the netlNOrks of economic/political ~r so cver-rcldily comnund, Into exemplary roles of communicators of'human solidarity. So far, this endeavour has rested in the commodification of human suffering, exploiting me markets for instant news and views. . In a germinal monograph, Stan ley Cohen has brought home the dauntmg tasks entailed in the commodifiCltion of human suffering. Cohen ~ngs to our attention an entire catalogue of perpetr.ator-based techruqu('s of denial of human violation and the variety of responses th.at go und(,r the banner of 'bystanderism', whether intemal or extemal.!>2 Th(' ~

Sareely lIek.nowlcdg«! 111 contcmporary diSCOUrse, we all O'NC (he nonon of

~;;:;Iodlfiation ofhum~ll/soei~1 suffe ring to Theodore /\domo and Max HorkhCllller ~ t) ; lite. fu"her, Enc L. Knbuer ( 1998). Sl Jon~thln lkn tlu ll (1995) at 90.

libtb ~ese COnSM In: (a) denial or II1JUry; (b) denia l of .... iCIII1IS: (c) demal of rcspon'-_ .. ty. (d) rondellln~tJon of the condemners and (e) appca l lo higher loyalty. These ~tnt.Z:;Ulon· '--h . ~ ... _ ... IlIques arc fiIm1 Iy III pJ.lCe and vlol~tol"5 only pby vanations of thiS . ~ Cohen ( 1995).

224 The Future of Itum.an Rights

Human Righu Movements and Human Rlghu Markets

commodific.:l.tion of human suffering has, as its task (according to Cohen with whom I agree:) the conversion of the 'politlcs of deillal' Into that of the 'politics of acknowledgment', which marks the very Site!> of confron_ ution between the politia for, and of. human rights. The various techniques of the marketizing of human suffering under the mle of human nghts succeed or fail according to the sundpolill one chooses to privile~. Efficient market rationality perhaps dictates the logic of txCw. The more human rights producers and consumers succeed in diffusing hOrTor storie' the better it is believed they sustai n, on the whole, global hum.an rights cultures. The more they SllCCeed In establish_ ingaccountability institutions (truth commissions, human rights commis_ sions, COlllmissions for human rights for women, indigenous pcoples, children, the urban and rural impoverished and people with disability) the better commerce there is. Giving visibility and voice to human suffering is among the prime fu nctions ofhurnan rights service markets. However, this is :1.11 enterprise that must overcome compassion fatigue 53 and overall desensitization to human misery. 'When the human rights m.arkets arc bullish, the logic of excess does scent to provide the opumal resources for disadvantaged, dispos!oessed and deprived human conlllluniues. But in situations of human nghts nurkt't recession, now typified by contemporary econonuc globalization, !oeriOllS issues arise concermng dle mys 111 which human suffering is or should be merchandized. And when those who suITer begin to counter these: wa}'l>, we witness crises III human rights market management. Human rights markets arc crowded with an asso~ment of a.ctors, .agencies, and agenda. But they seem united in their operational techmques. A standard technique is of investigative reportage: seven.l leadmg zations specialize in services providing human rights 'watch' and action alerts. Rel.atro market techniques target-through lobbying offiCial or popular opinion- human rights violations, events, or cataStrophes. A tlurd technique is that of cyberspace solidarity, the spectacular uses of lOstant communication netwOrb across the world. Manuel Castells has recenlly provided stunning examples of how cyber-technologies have mad 7a.dr1r madc dilTerence in networking of solidarities; but as his anal~l!> I(SCI suggests, these: solidarities may work for human rights advancement (as

?rgam:

IY" TillS enl'rofessor hen also offe" a typology of bysander jUSSlVlty or elleCt. L_ d bl semble conslsu of; lal dlffuSH"ln of responSibility; [b jma I Ity 10 I e nt! wllh _I I" " ..II " ~ 1.,0 (1I C 11I"1b'llfl VlCum; lei inability of conceIVing an effcctlve 1IltervenUQII . .xC .

'y

of Cohcn (1995). Cohen (1995) al89-116.

ana~ls

. me ase of the Zapatista)

225

or, more importantly, against the n.ascent

~urnan nghb cultures (as in ~le case of the American 11lIhtia or Japanese

Aum Shlllrtkyo movements). Apparently, the days of die pre-cybc .... pace creation of mass ntovement sohdarlty are number«! or over, If om: I!> to ~hevt that the cyberspace markets for human rights provide die on ly or bot creative SOCial spaeC$. In any case, once we recogn ize the danger of Wistorical cyberspace ronunticism. It remains a fact th:n cyberspace offers a w.cful nurkr:ting tci:hnique. A fourth technique consists m converting ~ reportage of violation in the idiom and grammar of judicial actlvism. An ~mplary arena stands provided by the invention of soci.al action bngarion, pursuant to which Indian appellate courts, including the Supreme Court of India, have been converted from the ideologic.al and repressive apparamses of the state and global capital intO.an institutionalized movement for the protection and promotion ofhurnan rights. 55 The resonance of this movement extends to many a Third World society. A fifth technique is to sustain the more conventional networks of IObdarity of which tile facilitation of IIlter-NCO dialogue is a pri ncipal .ptet. Usually accomplished through conferences, colloquia. seminars, ... facilitation ofi ndividual visitS by Victims or their ncxt of kin, in n:::ct'nt taDI:s, extended to the holdmgofheanngslll5tenings of vicum groups. This dcYitt seeks to bring 'un mediated' the voices and texts of suffering to .apathcuc observers .across the world. The various Ulllted Nations sum.... provided a specucular emergence of this techmque but tllere arc more IllMituttonalized ammgements as wt:1I. All these bring thl' raw materi.al of baman suffering for further processlIlg and packaging in the media and Idurd hum;m rights m.arkcts, .A sIXth technique is rather specialized, comprising various acts of lobbpiug ofthe treaty bodies of the United Nations. This fonn of m.arkcting bunwt nghts specializes in making legislative or policy mputs in the nonn creation process, with NGO entrepreneurs assuming the roles of quasi~Uonal civilserv.allts and quasi-diplom.ats for human rights although _IS the thinking and conduct of the dtjurr International dlplom.ats and civil servants that they seek to in£1uenee. By tillS specialized intervention, this ~I[y ~ns the risks of cooptation and alienation from the community i e Violated, especially when the NCO actiVity becomes the: mirror':::~ln~crg~Vem?lellt polity. This son ofimervclltion does offer, when burna .Wlth mtegTlty, substanual gains for the progressive creation of n nghts norms,

",." 5cue here, for reasons of space, some vast antino mies involved in this coupling of the :::?~; with [he 'state' form, questions concerning thcoxymoron 'nation-

.,

... Amattya Sen (1999).

Upendl'2 O;ua (2000). '2 ~ Andre Con ( 1982). I lis thesis IS far more comple,.; than tillS title sU8!;Csts. !-hs concerns arc 10 enhance autonomy, dJiciellCY, and crea tivity III complex kno wle
Orne communities of h uman righ ts activism. But granting the IItlsfaCtlon of the yet unscripted . ye t b2Sic. hmmn right to laughter, my ~nt remallls: th e On.ft Declaration reflects many an element or configufation o f collective rights of the glob;!.l c2pitill curremly firmly in place. An

Tht' Emergence of an Alternate Pandlgnt of Ilunun RIghts

260 The Future of Human RIghts exhaustive demonstration furnishes scope for another work: here a few illustrations will suffice. I attend to (g) and (d) above in some detail in the ~ction lX below, The materiality of globalization'. The right enshrined ill (b) has a long history offructuation in ways that American global corporations, during the Cold War era, sought to depose duly electcd leaders (as, for example, in Chi le) and supported, and connived with human rights-violative authoritarian regimes in Latin America, Africa, the Middle EaSt, and Asia. The rights enshrined in (i) arc already at work in the CUrTent processes of the privatization of the United Nations 7s and me formulation of POwerful inu:rgovernme nul global and regional trade organizations. The rights enunciated in (() stand poignantly illustrated in the now well-established patterns of multinational-host state collaboration rd uhing in the Judicial murder ofKcn 5.a~WiWOl. Other cxamplesof repressive compliCity abound. 50 do industry-based NGOs that elCploit the freedom of association and expression, which usually stands denied to the oppressed and the repressed, or is attained after prolonged, and often bloody, struggles. The recent emergence of Strategic Law Suits ag:.inst Public Participation (SLAPPs) deserves a special emphasis in relation to the rightS enshrined in (h) above. No reader of the work of the Georb>C W. Pring and ~m:lopc: Canan, who first Invented this neologism.76 Will remain In a position to comest melr conclusion eimer about the 'chilling effects' of SLAPPs or the ideology and material interest forntanons that these represent. As they put the heart of darkness: By filing the SL\PI~ economic IIItercslS express their intolerance for alld seek.to stifle the expression and views o f other citizt'ns, c:ffcclivcly den)'lllg the equal 'lf of citizenship so fundamenul 10 infomled politial dccisioll~maJong. SUJ'P filers justify solving politlCll disputc5 no n.politiclily on the inslS of righteous ~onoml.c sclf.illtercst coupled WIth intolc:rance faT civic-mindt'd public J»"IClpatiOn. ~lIS is an ideologic argumc:nt for cconomtC intererol1S the superior VOice in detemun· IIlg public policy SLAPFs, a dominant modality of multinational endeavours for the cancellation of the rights offr~ spc:cch and expression of individual hu~n beings, arc also directly violative of me: values of public participation affirmed by the United Nations Declaration 0 11 the Right to DevelOPmem.n And it would be a mistake to conceive of SLAPPs as wholly 75 Tht'K is no other "'~y of ckscnbmg the: ~tatc: of some of Ihe current miliaUVd hUIlUII rights. 76 Entltkd SLiPPJ. CttlltW Sutdfor Sprftlng Out (1996) 221. n Upendra IbxJ ( 1998).

at 'mamsueammg'

261

cbs ncllve Amerian phenomena. Globalization of legal technique now

:nl:rc:sc:d

that South human rights activists stand equally, evt.n more, conby Its 'chilling' potential.

VIII. The Paradigms m Conflict '(be new paradigm may succeed only if it can render unproblematic the voitts of suffering. This occurs in many modes. One such IS rationality monn, through the production of epistemologies that nonnalize risk (dJtre is no escape: from risk), ideologize it (some grave risks arc justified ror the sake of 'progress', 'development', 'security'), problematize causaDOn (in WOIYS that the ca12strophic imp.acts may not ~ traced to activity rJi global corporations); raise questions, (so dear to law and economics specialists, conceming efficiency ofleg;!.1 regimes of liability) interrogate eftI1 a modicum amount of judicial activism (compensating rights'fiobtion and suffering, favouring-when risk management and damage oontainment strategies fail-unprineipled and arbitrary extra-J udicial settlemnu). It is not surprising that some of the most important questions in JIobahzation discourse relate to how we should conceptualize 'victim'; who nuyauthentically (on behalfand at the behest of) speak about victimage; - what, m d~, may be said to constitute 'suffering'. The new paradigm asks us to shed the fetishism of human rightS and ~ate that in the absence of economic dc:velopmelH human rights havc bo future at all. Some behavioural scientists urge liS to believe in a quanthativt- methodology that produces results, ttrtainly for them. demonstratinga positive co-relation between fore ign direct investment, multinational capital, and observance of human rights. 71I It is easier to combat dictatorial regimes that suspend human rights on the ground of priority of economic dtvt:lopmem than to contest the Gospel of Economic Rationalism, which .. mystified by new scholasticism content with the assertion, for example, that 'meso--dcvelopmcnt' is best promoted under conditions ofauthoritarIan 8OVem ance.79

Fautr dr minIX, human rights communities must now work within the

~s and

imperatives of economic rationalism ; they must not only toYtr the high ground of posunodern political theory but also the new ~tut'onal economics, maintaining, at the same time, constant convcrIItion with human suffering. .~

_ dus Ilh~m "

H. Meytr (1996) 368-97. Hut 5tt (or I~ mht'r IIIdncmlinatc findlllg kOk, Wesley T. Milner (2002) n.JJ7. ",,""Id Ibnkltiv (1994); see also Cathanne Caufdd ( 1996).

262 The Future of Human Rights

The paradigm of universal human rights progressively sought norma. tive conSC'nsus 011 the j,utgtlty of human rights, though expressed in differ. ent idioms. The diverse bodies of human rights found thclr hIghest summation With the Declaration on the Right to Development IIlSistlng that the indiVldual is a S/lb)ttt of d~pmtnt. Plot iu obpl. The etner~nt p;aradigm reverses this trend. It seeks to make notJust the human indiVidual but wlloI~ IlaliellS into the obpts ofdevelopment, as defined by global capital embodied in the 'economic rationalism' of the supr.Htatal networks liu the \VOrld Bank and the lMF, which are neither democratically composed, nor accountable to any constituency save that of the investors. Their prescriptions for re-{)rientating the economic structures and polices of the indebted and impoverished Third World societies, far from bcingdesigned to make the world ordercquitable, stand add ressed to serve the overall good of world hegemonic economies, in all their complexity and contradiction. Prescriptions of 'good governance' stand viciously, and nOt surprisingly, addressed only to states and communities outside the cort! Euro..Atlantic statt!S. Even so, in good governance stands articulated a set ofarrangements, including institutional renovation, which primarily privileges and disproportionately benefits the global producers and consumers. T he paradigm of universal human rightS enabled the emergt:nce of the United Nations system as acongreg;;ation offaith. Regarded as noomllll»' tent deity but only as a frail. crisis·ridden arena, it became the privllegW historic site for cooperative practices of reshaping the world through the idiom and grammar, as well as the vision, of human rights. The: votaric:s of et:onomic globalization who proselytize free markets that offer the: best hope for human redemption now capture this arena. But the residue of the past cultures of universal human rights remains, as has been recently manifested in a United Nations document that dares to speak aboutpnvrtsf forms ofglobalizatien: namely, those which abandon allY degree of respect for human rights standards and n onns. 80 A moment's rcllection on the wro agreementS and the proposed MAl should demonstrate the truth of this assertion. But, of course, at the end of the day, no United Nations fonnulation would go thus fa r, give:n itS own diplomacy on resourcing the system and the emerging global economic realities. The Vienna Conference on Human Righ ts Slimmed it all lip with itS poignant preamblilatory reference to 'the spirit of our age' and 'realities of our time,.81 The 'spirit' is hwnan rights vision; the 'realities' stand furnished by headlong and heedl~s~ processes of glObalization creating in their wake cruel IDglcs of soCIa exclusion and abiding communities of misfortune. 80 Se
(d)

n,t' S ituatedlle5S 1" MOllt'metlZS

I-Iuman rights, and social movements. are already thus situated in the new pan.digm. And they have begun to work within it in many complex WlIys. Perhaps, the most complex of these modes is o ppositional, :iS would become manifest when the histo ry of the surpnsing results obtained ~ a coalition ofNGOs in aborting the firs t d raft text of the MAl and. 1Il prod ucing a mo re sustained framework of participation of d ialogue with civil society. I describe this mode as complex because the opposition to MAJ was not, in my impressio n, so much based o n m ass mobilization: as in the case ofGATTIWfO Dunkel Draft proposals. It was a cOllver~t1on betwccn f3dically indited academics and transnatio nal h uman TIghts adVO;cacy netwOrks both fi rnlly ensconced with the cyberspace. The terms 0 110 Goki (1996) :11 116-106; see also

note

88.

diICOursc were set by those who saw no difficulty in putti ng on paper die

.ovc:rcign profile of dIe foreign investor. It was time to beexpliclt on behalf of'the global capItal, aCCUStomed to regulato ry capture III several arenas.

And

experience :Uld wisdom ind icated the ovef31l g;.;ns of gettlng the .ctversary to fight wi thin the strategically chosen terrain . H ow radical can oppositio nal d iscourse be then? It may not deny the Importallce of direct fort"ign invesunent; it may no t advocate any mo re regimes of naaomhzation and state fin ancial capitalism ; no r may it challenge the idea dial global capital. personified in several modes. may indeed share the q;cs and thc language of human rights discourse. All they m.ay insist i!: 011 rolling back the extensive derogatio ns fro m the contemporary human riFts nonnativity. The internatio nal codification of these de rogatio ns has been. fo r the time being, successfully resisted. At the same time. the cIcrogations exist deJacto. The power of current campaigns against MAl . «course. need recourse to a degree of triumphalism-an invaluable raource, after aU, fo r the mo rale of collectivities that seek to roll back the dele of future histo ries. O ne needs to ask, that feature amply conceded: .... remains? ~ such interTogation, a major answer is to S2y that w hat remains is IICft than the IIOIkJgruf, in a m anner of speaking. the Spifll of the Sixties• • Iftt for ro mantic revini in a post·romantie era of globalizallo n, a process af"mterlocutioll of powc=r In all its global hid ing places. Though dlis in itself an Important revinl 111 what matters is the way in which the rather ledmkal and, at ti mes, ~soteric. issues of world trade and fin ance were de. III)'Uified an presented a$ human rights issues. The MAl cam paign marks, t.opdUlly, a beginni ng of a process of partnership between activist NGOs aDd professional exerts in the context of extraordinary assertions of rights by global capital. At the sam e time, the new paradigm confro nts human movements to ~ m orc prottss, and less "Ju/I-oriemed. Human Ihr t!., III an age o.f new. global forc~ of p ~uction , have a future only to ~n t that dissentlllg academ ies begin to converse, oil a comm o n ....-orm. with anti-glo balization activists in ways that respect the integrity

me

:=ts

1111\-

Iu

_ r ps. it wou ld be true to uy that what IlUrten; are nOt ~ much the xtll.lll ...., .mel now ;accomplishments of hu ma n and SOCial rights IIlOVCIIlCniS but the I of their people's pohucs Ihey nrry fOlWllrd III lime. The wk at IC;lISl thcn ____.need . to relte r-Ite III closl11g. IS to perfect and render endutlllf\; the colit'Ctive• ._-.ny IIf hUlllan. and h UIII~1I rlgh t~. viobuon III WlI)'S thai somehow haum the ;l1ld their re!lIduallcgalees. Ir. a, Mlbn Kundcra uld: Ihe struggle of men over power IS Ihe struggle of memory over forgcuillg. Ihe struggle stands dlTeaed ag'lllmt the orgamzed polities of fotgemng. Contr.llry to ~adage. pubhe memory tJ nO! shon but made shon by donunant II1teresa e of power t hat stand to benefit by the polil1cs of organized obliViOn.

_Iln

274

The Future of Hum:m Rights

of each foml . :. activists do not become academics and acadelllics do nat become activIsts. However crudely put tillS distinction is, any wonhwhile:: mode of re_ sistance to glob;ahutioll demands this. Dissenting academics require to ~ seen as academics in the eyes of the peer group; o therwise, they lOSe Its suppon and legmmatioll and with it the access to resources needed 10 develop the counte r-knowledge ustfullo social activism. ActiVist groups likewise, remain wary of specialistS that move in and out of the corrido~ of power. Both may lay claim to relevant knowledge and insight that the o ther may never be said to have. No member of the dissenting academy can quite claim the:: grasp of organic knowledge that arise through everyday strugglc=s against modes of existence and the orders of resistallce and snuggle agamsl the::se; no activist can claim full access to technoscientific knowledge that do mol/er for people's struggles. Thus, partnership amongst learned professionals and social and human rights activists remains vital to the preservation of human rights norms, standards, and values as we now know and even che::rish the::se. Its actualization must remain cOlllingent in t(rms of global social o rigins and locatio n. and III relation to the unfolding matenality of globalization. At the same time when not fully reflexive such acts and mission of partnership between the erudite and organic intellectuals may also unwittingly fu rther the values and ends of the trade related market-friendly human rights paradigm. The managers and agents of contemporary economic glob;a!izauon are constantly on the prowl; througll their high-minded summons for 'global civil SOCiety partnership' they pursue their some thinly disgUIsed overall strategic 1I1terestS. The rate of consumption of people's rights friend ly erud ite and organic intellectu.als by the United Nations systcm, the international, supranational, regional, and national agencies, and the intema· tio nal financial institutions is already unconscionably high. Thc belief that working witlllll th~ enclosun::s-from within the belly of the beast, as it were, to use an animal rights unfriendly expression for the momentremains crucial to service human rights (unITes seems to be on a high growth curve. May we read this as a moment of danger or as of oppar· tunity? Does all this signify the 'cunning of capital' o r an ethical struggle against it. cvcn in a post-Marxian world?1t2 How many working the III When sollie of us, kiKIillg a ea!l1p~ign agamst Ihe UNDP's Glob~1 Susl~IIl)t.l( Dcvtlopmcllt F;tClhty mel (Ill May 1999) the hciKI of th e agc l1cy, he O~l1ed Ihe IllC'Cun~ Wllh all accOUIlt of his own cnt,ulment as an envi ronmentll ",!lVISI wnfrolltcd W1~ the need 10 respond 10 mulunationals who insiSted on Wl)'$ of p~rtllerShlP 111 ~ Illal1lstrc~lmng of human nghts-onentcd devdopf11('nt. He asked us whether we y,"li nlnes any guKbncc 10 offer hUll. His concern for the lmpovenshcd people and cou

The Emergence of an Alternate PUlodigm of Human Rights

275

'fY5leIl1' against itself compromise the wholesome integrity of what Karl

MarX named in a happy mome::nt as the potential of the 'gmual intt/her!' Is this intellect now li~ly to lose its world transforming potential by Its 'subsumption into the sphere oflabour of w hat had hitheno belonged to poIilical action'? H ow may this process of 'pohtic izatio n of work' where thought itself 'becomes the primary source of production of wealth' be actt.Wly rc:versed?1IJ The: phnse that so do minates practices of resistance to trade-related market-friendly human rights is 'creation of space'. But the place of the spact" created by various modes of activist imagination and social praxis is largely pre-detemlined by the space of contemporary globalization, processes that create of human rightS pIous within Ihe globalizing 5poct. 114 Is the contem porary human rightS mode of resistanCe to globalization his· torically adequate to retrieve the ltIovtmem from the markcl? 1 explore in the next chapter some recent normative tendencies [hat mayor may not be hislOricaUy adequate.

~nulOe·, U h t so tit

WlS h'IS concern to m~ , 0 1W:1rd the agency'. future . And that nn only with the legitimacy of dIalogue With the internatiolul civil society. IIYt ' hov.tcver. rcqU Il"fi a common plll'lillit of alllU. IIO'W is Ihat to be cstlbhshcd the teml already presct? 114 SceP:aulo Vimo (2004) DWld Harvey ( 1996).

~ovc

Itc:n.

Market Fu nd~ menulisms

9 Market Fundamentalisms Business Ethics at the Altar of H uman Rights

I. Th e Proposed Norms on Human Rights

Responsibi lities of Transnationals and Other Business Enterprises this chapler, I explore a particular set of practices of resistance to the onset of the tr.KIe-rdated, market-friendly parad igm of human rights, which takes the fonn of fu ll rcasscrtion of the UDllR paradigm in rdatlon to corporate governance and business conduct. What is IIldeed m ()$t remarkable IS the fact that the articulation of this reasscrtlon occurs under the very ~ usplCes of the United nations system, w hich otherwise fosters co n te ll1 por~ neous l y, and assiduously the trade-related markelfri endly paradigm of human rights. The United Nations Commission on Human Rights and particularly the Sub-Com mission on the Promotion and Protection of Human Rights, of course, provide the important sites of critique and renewal. T he SubCommission thrives on dialogical interaction with the community of NGOs; and often its expert consultants (howsoever named) emerge from within these communities or, at the very least remain extr.lordirurily 1 sensitive to activist cri tique of contemporary economic g1obalization. I Jere I focus on the Norms on the Responsibilities of Transnational Corporations and O ther Business Enterprises with Regard to Iluman Rights. formulated by a Worki ng Group of fi ve independe nt experts; the adoption of the Norms tQb>cther with the Commentary by the SubCommission (on 13 August 2003) marks the first step in a long and perilouS journey to~rds the final adoption.2 The N orms, now transmi tted to the

I

11

I 5«, 'Globahuuon and us Impxt on 000;. OCN.4ISub.?I2OOO'Il. 2

the Full

ErJ.JO)'Tmnl of I lum~n

RIghts'. UN

Su. Sub-CommlUlon 011 the Promotkm and Procccu on of Hunun Rights,

277

n Rights Commission, remain open [Q furth er conside ration Wlthm : : :tside the United N :u ions system and the comments and responses i....oo stand slated for furth er consideratioll by mld-200S. In the mtenm, ~sub-Commissiol1 's Working G roup stands mandated to assemble 10(orn1ation front all relevant sources concerni ng implementation processes well as to further innovate these processes, where' necessary. iii The Nonns, and the accompanying Com mentary,3 had a very short puoon comparc:d with the archetypal endeavour that produced a stillborn U nited Nallons Draft Code' of Conduct fo r Multlllational CorpopDOIlS. Even more remarkable is their enullciatlve audacity unfazed by pmering hislOries of past failures. Twenty-three articles put together, provide an arsenal of general and specific oblig3cions; transnational corponOons ~nd other business organizations stand conceived as networks of QOrPOratt:' governance and business conduct. Ideologies of voluntarism ItIIld replaced by those of regulation and implemcntation. What is more, . . Norms have been produced interactively by consultation with affected ~sts, including busi ness and industry, trade unions, human rights NGOs. The N orms undoubtedly take global citizen action seriollsly. This JDeenctivc mode ofproo uction of the Norms fosters and furthers legiti..-y as wdl as imperils It. If the communities of human rights and social flCbVism have already begun to deploy the Norms:lS a potent human rights ~m ,· emergent too is the silhouette of global corporate resistance.s Contestation is inevitable and as arc future comprom ises. What makes p Norms, and the Commenury, preciolls is the now proclaimed zero

Jtfonru

on the ResponSIbilities of 1hlUn3tionai Corporations and Othe r Business IMrrpriscs wllh Rcg:ud to 1·luman Righ ts, UN Doc. fJCN bbylSU, and the Congress becomes a arg:unmg Clam clll \lfitd ,., d ",\d' ( 1999 at 24 fn 19) Ways of rcwmg Rawls, superbly cx P 1;I(t be"wit all ' .' __.......l I Even 50 thc p by Thomas I-'oggc (2002) yield dlamc:tncally op"",",u COI~C US10IU. ' llld udl1,g of hUlll.~n nglltS responsibilities of big and small busmess emcrpnscS, tnnSnatlonals, rennms amblv:illent III tillS corpw.

299

voluntarism and e nforcement.52 Volunurism necessarily Sttks to minimize d1~ range of human rights rel>ponsibiittl(:s extC'ndable to trade and businc=ss. This 'mainstTeaming' of human rights further c=ntai l~ the problem of fTag1ncnution of the universality, illimiubility and indivisibility of human nghts.ln contrast. the Nonns suggest maximal enforcemc=nt of almost aU human rights. If voluntarism enQils a smorgasbord approach to human righ ts. in which corporate CEOs may choose to feast, enforcement is more like a prescribed Spartan diet. It entails imposition of external llOnn.tivity on the 'inner order of association' (to borrow the phrasc= from Eugene Ehrlich) of transnational governance and business conduct. H u man righl'i norms and standards may emerge, in this context, as 'hypem orms' that furnish a ' limited set o f universal principles that constrain the relativism of (business and industry) community moral free space,.53 The Integrated Social COntact Theory that Donald son and Dunfee propose, of coursc, assumes that 'that norm-governed group activity is a critical component of economic life.'SoI Hypernorms arc 'principles so fu ndamental to human existence that ... we would expect them 10 be reflected in a convergence o f religi ou~, philosophical, and cu lturnl beliefs'.55 Clearly, hypcmorms, in the discourse of busi ness ethiC5, do not extend to all human rights no rms and standards, applicable across tlll fon115 of corpornte governance and business conduct. The NornlS, and the Commentary, however, presum(: otherwi~! An Im portant reason for thi~ hiatus is furnished by the felt necessity in busint'S5 ethics discou~ to translate hypernorms further in the languages ofhypcrgoals.56 A closer analysis may wdl reveal the pote:nti.. 1 to bridge Ihis gap---a task I do not essay here for reasons of space as well as of competence. Yet, it is cic:lr that not tlll human rights responsibilities of Ctansn;,uional corporations and other business enterprises, as en visagro by Ibc Norms and the Commentary, render themselves open to a business nhic discou~ of hypcrgoals. I, incidenully, illustrate this in what now follow,;, ';l The former tefer.s to rebtivt' aUtonOmOlH self-rcgubuon uf tnlde and bmmf:5s Mille the bttcr signifies a reaJ hfe, and variegated. rcCOUI'SI: to a rather a p;lr.simonious -.cmblagc of lllOnVeducaJ gtudehna, the fCW( r the bellcr remams nomlaUve apPtoach IS guided perhaps by the difficult I k gehm Iheme of quality conve rting luclf ~~\t\1,l1\y mto qu~nu ty. !>4 Tho lllas W. Dunfee (\999) 129 ~ t 146. ~\ IbId .. 145. St Ibid., 146. S« Thomas W Dunf~ and TImothy L Fon (2003).

Marut Fundamenulisms 301

300 The Future of Human Rights

(C) 'Orle Size Fits All Non1lativity' This question, at the end of the day, stands posed both ideologically and empirically. Ideologically, the histories o f global capitalism and human rights suggest that hopes for human rights ac hieve m~n t may md«d be overstated .57 Put more manageably, in the present context, the question is: How far may the notion of business ethics orient itself to human nglus? Can it, consistent with its originary t:r.ldirioos of discourse. go as far as the Norms suggest? Is there a core aspect of doing business that necessarily enuils 'trading away' human rights? How may human rights implemcn. tation approaches, unlike voluntarist ones, necessarily inhibit the gigantic, werewolf, appetite for profits and more profits at the cost of people's rights? The broad empirical questioll is: Whaifwhich 'human rights' may applyl extend to multinational corporations and other, related , business organi· Z2tiolls? I o nly address the latter question here (again for reasons of space) . Fif'Sf, given the diversity of economic enterprises as well as of internatio nalmode of production o f human rights, raises the question whether hurnan rigllts fundam entalist approaches adequately address and exhaust e mpirical and normative conceptions concerning 'social respollsibll1ty' of trade and busllles5 formations and practices. Put more manaboeably the questio n is: Which are the right language and rheto ric-those furni shed by the gnmn1ar of human riglltS or the wider languages of'social responsIbIlity'? Do human rights langu~s and logics adequately recast 'social respon· sibility' ofnlUitinationaVtnosnational enterprises, no nutter in how complex and contradictory ways? How may we, funher, locate authorship of social responsibility in the normative evolution, as well regression, of fonns of interstate consensus and conduct, fully exposed toview in the inten111nable wrangle concerning the fonru o f ' hard' and 'soft' intentational12w? What warrant o n human futuresjustify the adequate dialectical descrip tion o f not o nly the Stories we may choosc= to teil about how 'soft' law becomes 'hard, law bm also narrati~s concerning the softening of the 'hard' law? How may we further understand also the narratives concerning the softening of the 'hard' human rights law. conspicuously manifest in the Kofi Annan-led United Nations Global Compact? It ,clearly, now empowers multinational corporations to pick and choose among human rights norms and standards that may bind them. with the mOSt feeble accoumabiHty obligatio ns. Suorld , the re eme rges the co nflict between vo luntari sm and maximaliution; that is. between corporate self-selection ofappl icabIlity of human rigllts norms and standards versus hum2n rights maxlmalizatlo ll • 57 C hlpttl'S 2 and 8 explore some aspects of tillS relation.

now abundantly exemplified

by the Norms. A.l1 this raises the issues of business ethics in evolution; advocacy of maximal incorporation ofhunun rights norms and standards is more likely tostymie their nonnative: binhmg. On the other hand, trade and business nonnarive shopp11lg hsts may legatimize 'free choice' (in the fullest sense of the tenn) that may result 111 abortion. even amniocentesis. of progressive human rights futures. TIlird, impltnltnf4tion issues, thereby, also become ISSUes of diverse fight. irlgjaiths. On the one hand, the proponentsoffree market fundamentalisms may demonstrate polemically the perils of strict, comprehensive, and iI1sunt implemenulion to the very agendum, and tasks, of the human right to development; o n the o ther hand, the advocacy of fullest advertence to contemporary hunun rights may nornlatively suggest the lack of any half· way house amidst the clash o f market and human rights fundamentalisms, often fierce, no matter how dispersed o n di verse sites. Fourth, even as we may closely attend to the complexity and contradiction in human rights discursivity, the no n·discursive clements do indeed nutter. I recourse here, in a sho nhand language, to the issue of impact of current. cruel, and endless 'War 011 Terro r ' and ''War !?fTerror' both on the CSR and human rigllts languages of corporate and business responsibilities. The New Imernational Miliury O rder, decislvdyemergellt in a post9/11 world ordering, marks an extl"2Ordinary revival of defence and global annaments 'miliury-ind ustrial complex' (to invoke a yesteryear, anachronistic, phl"2SC). All this raises extraordinary questions for the hUlllan rights. Iypc business and industry human rigllts rcsponbl itUe5 proposed already by the Nanns. If this prescriptive nonnativity forbids, as a matter of an ~rarching principle, that trade, business, and industry may not profit &om human, and human rights abuses. where indero may one locate the 'ethics' of scramble for contracts in the current 'postconflict' Iraq mi lieu? Does In anyway the now privileged Status of the Iraq war coalition favored allocation of commercial contracts for the 're·building' of Iraq violate the Norms on the one hand and the cvcr proliferating business ethic literature concerning hypernorms and hypergoals o n the other? How may we relate «PCcially in the latter context, the basic principle that no one may thus profit from such abuses? The Norms and the Conunenury ambivalently repudiate the rather gruelling choice expressed poignantly ill the lIlvcim 'half a loaf is better than nOlle'. The q uestion, put in the metaphor of the Genetically modified (GM) food discourse. directs attention to the necessity of choice betwccn the human rights 'organic' and the human rights 'mutated' versions of responsibility regimes of transnatio nal corporatio ns and o ther business enterprises!

302

The FUlure of J-Ium:m Rights

To conclud~, I su ~ t a full ran~ of 'precautionary principle' (so recently adumbrated III th~ discourse o f the Cartagena Biosafety Protocol) to funhcr exercises alO1w at tile develo pment of the Nonns. The endeav. o ur al wholesal~ medl;J;tion of free nur~t fundamentalism via coequal human rights fundamenDlist languages and logics ofcontemporary human rights values, standards, and nonns raises impond c l7lbl~ issues 111011 now invite even funh~r heroic f~ats than those now r~adily;J;va l lablC' III the prose of the Nonns and the Commentary.58 51 Reference here is nude to a rc:cc m cOTltribUlion of pol1l1cal pluJosopber Ins Moms Young (2004), where she. In the m.;Un;and in the COntexts ofJusufll::ltlon for ann-sweats hop :lCI1V1SI human rights movements, rightly advocates movement from Ihc liabdlty-bued 'blame model of responsi bility' to a 'shared pohuol responslhillty model', in which the followmg man.! p~s remain pre-cminenl. fi rst, mlhlS model of pollnol re'ponslblllty (u distinguished from the convennonal c1YiVcnminal legal lwnllty reglllles) we accep t 'a responsibility for what we have not done' Simply hcC:l.u:;e many 'ases of hums, wrongs or injustice havc no isobble pcrpelntor, but rather result from the part1clp~tioll of mllhons of people in institutions and pr;lclices thllt n'~ult In hamu' (at 377). Second. Ihe conceprion of pohrial responsibility is one 111 willch 'fi ndmg that 50me people bear responsibility for inju$uce does not neccssanly absolve othen' (at 3n). Third, such a conception renders problemauc, III waY' that the: lel;3l lubillty appn»c:h m.. y not. somc: of'the normal and accepted b.ckground condmolU of acuon' (at 378). Founh, the ellu re pomt of the shared polmol responsibility model 1$ ·to bnng about results' n the:r !han to apporuon blame: and sh .. mrcss). Bamford, James (2004), A Prrti"Xt for u,'&r: 9/11, IfIUI, a,uI tlU! AI)ljJ(' of Amm'co's I tltdli$"l(( A~ (New York: Doubleday). IlJrsh, Russel (1994), ' Indigenous Proplcs in 19905: From ObJCCt to Subject of International Law', Ilamml NU/Mll Rights journal, 7: 33. BmioUlll, M. Chenf (1994). 'Enforcing I-Iuman Rights Through Imenutional Criminal Law and Through Intemaoonal Cnmllul COllrt'. In '- '-lenlun and '- Hardgrave (cds). 1111""'11 RI,~lts: All ~jw IN Next Gmt"!)' (Washington DC: American Society of IlIknuUolul Yw). U~ udrilbrd. Jean Franc;OIS (1975), 1M Mmw!?! Prudlllfiofl , Mark Poster, trans. (St Louis: MO. Telos). Haullun, Zygmunt (1998), Globolimtiotr: 11w Hllmatl CctlJafllnlC"tJ (Cambridge: Polity Press). Baxt. Upcndn ( 1982), TIlt Crisis ~ Indion Ltxa/ Sysfml (New Ddlu: Vibs). - - - (1987), 'From Hunun Rights to me Right to Hemg Human', in Upcndn Haxi, GeeD Sen. and Jeanectc Fernandes (ed.). 11w Righi 10 ~ Hur""n 27590 (New Dtlhi: India Internaoonal Centre). - - - (1989), 'Taking Suffenng Seriously: Social Action Litigation lkfor-c the: Supreme Coun of India', 111 Upcndra lbxi (ed.), lAw and ~: CtWal Essays. 387-415 (80mlny: N.M. Trij»thi). - - - (1990), Libmy and C«ruptiort: TIlt AntI/lay Gut and IkyotuI (Lucknow: .Eastern Book Co.). - - - (1993), Marx, lAw ",111 justia (l30mlny: N .M . Trlpadli). - - - ( 1 994~), Inlllunan Wrott~ aud Humall Rights: U,rtotfllnlliofllll £SSlI"!" (New Delhi: Har Anand) . - - - (1994b), Malllbrino's IIdmtfJ: HII"",1l Rightsp a ~Itfill,~ lVarnl (New Delhi: Har Atund). - - - (1995), 'Justice :1..\ Emanclj»tlOII: The: Lcg;acy of Ib.lmaheb Atnbcdlcar', In Upcndn. B:oo ~nd Bhlkllu Parekh (cds), Crisis aNi Clwngr In Cctll~mporory India. 122-49 (New Deihl: Sage).

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