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?

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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

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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

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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

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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

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sovereignty and its variously installed predatory regimes of the dominant 'leg:alitlcs'. These constmtly re-enact what Jacques D<:mda, readlllg for and with us Jean-Jacques Rousseau. speaks of: The govemmeIH or oppression all make the same gesUlre: to break the pre'iCncc, the ccrprcscnce of all citizellS, the unanimity of 'asscmbled peoples,' to create a situalioll of di~pen;ion. holding subjttts so ra r Ip2.rt as to Ix- mcapable of reelmg themscl-w:s togt"ther III the ~pace of the one and !MOle speech, one and the s:tOle persUaslVC exclI.'lIIge.

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The task of rdating human suffering and human rights renullls incredibly complex, even without the health warning against the 'sufferingmongcrs,.8 'Left legalists' now tell us that unless the politics for human rights remains vigilantly self-reflexive, 'a politics org:lIlizcd around publicizing pain constitutes a further degradation of subaltern selves into a species of subcivilized nonagcncy'.? We now stand encouraged to ask: 'What if the relief of suffering is not the sole basis of worthy political work?,lo This "141a1 if question is, of course, ofparamoum importance in 'challenging regimes of domination in which palpable suffering is largely imperceptible', especially for those that 'actually enJOY hfe under capitalism'. tl Politics/or human rights In its overwhellningconcern with human suffering needs to coequally engage with the states of suffering and to the sources of pleasure and joy 111 !tfe, and theory, after globalization. I hope that 'left legalism' does flOt, after all, consign tins work to a mere exercise in sufferi n g-ll1on~ring! I do identify SOnte: orders of activist pleasures in thc making of contemporary human rights, whether through the moods of human rights romanticism, and evangelism, or via what I name as the carnivalistic production of human rights. Not altogether inconsequential remains the prose of international human rights that speaks not just of the ewr~ but also of lJ~ rnjoymtnr of human rights by all human beings everywhe~. There is no doubt a certain amount of biophilic (life giving o r life sustaining) energy at work in the recent antiglobalization protests and anti-war protests. Contemporary practices of human rights activism celebrate the joys of the politics of desire and not only through their capacity to inflict various types ofsuffering and torment on the CEOs of global power. The pleasures of otetivist production of human rights diplomacy elaborately, and variously, celebrate on behalf of 7 Jacques Dtmcb (1976) 137. 8 W<:ndy Brown :md J:U1ct I blley (2O(2) 22. 9 Lauren Ikrbm (2002) 127. 10 Wendy Brown and Janet 1!alley (2002) 22. 11 Wendy Brown and Jaoct lIalley (2002) 22.

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XIX

communities of hurt and harm, the imposition oCpai n and suffering for the violators of hUlllan rightS, momentarily perfor:ning the regimes of impunity that alherwise structur.llly surround them. Yet, at the same 1110l11el1l human rights .activist praxiS also weaves many a compromistic textual, and par;a-textUal. human rights designs that further ullcOlSliy negotiate Justification for the construction of the monl hienrchy of human pain and social 5ufTcnng enacted by the vcry languages of 'progressive realization' of social, economic, and cul tural human rights. So do the voguish grammars of global governance that increasingly organize and sustai n markets for human rights which, in turn, lead to the commodification of human suffering.

the discoursc conccming failed stlltcs. or (to invoke Gay.ltri Spivak's troubled notion) 'fail ed decoloni:ution', the grist to the mill of the: new global hegemonies that now enact, as yet Ullsanctioned by international law, 'preemptive' armed intervention and a trigger-happy regill1echangc .141t seems, at the end of the day, that the residuary legatees of human nghts futu~ are human rights and sO(ul policy experts rather than the dla~poflc ngbtl~ p=oples. The dominant epistemiccomrnumues foster VISions ofa progrmillt! stllle, which, when not an oxymoron, gnaws at the heart of human rights. Human rights movements entail both the 'progressive' empowerment and discmpowcrment of the 'state' and, thus, remain necessarily deeply dilemmaric.

The Pertinence of Lawyer's Law of Human Rights

The Perils of Prediction

Juridical histories, or the labours of production of thc IOlvyt,'s IllW of human rights, remain vital to all future scenarios for the promotion and protection of human rights. Doctrinal work testifies variously to the powcr of the judge and the jurist (.2.S also thejuridic.2.l ly mediated forms of soci.2.1action and movement) in the making of the manydiver~ worlds of human fights. It also provides some powerful discursive means of understandmg the nature, number, and negotiations concerning the scope of human fights in conflict. 12 !-Iowever, important though the role of the /olvytn' 1m" is, juridification of human rights scarcely exhausts sources of meaning and movement manifest in the politicsfor human rightS. 1l State-bashmg libidif/lll drivt (there is no other w.IIy to describe the passional politicsfor human riglus)}im,ulles thewherewithal ofcontemporary human rights activist impulse and praxes. But it also animates a programschrift of State refoml. The complex narrative, in tum, generates

Social prediction concerning the future of human rights remains a hopeless affair if all that we have at hand is the abundance of a CIrcuit of ex-change offairy tales and horror stories, whether concerning the exclusively EuroAmerican origins of human rightS or the postcolOnial vicissitudes ofhuman rigllts attainment. More is needed to redress the founda tional lack of thc lustori<>gr:lphy, and an adeqtl.2.te social theory, ofhurnan rights. Further. we all know how some l a n gu~s Wither and die and how new languages take their place. The languages of 'honour' died With the birth of the industrial civilization. The lanb'uab't!s of liberal redistributive justice have died many a death, particularly slllce the Gre:n October Revolution. So ha!> perished, at the altar of Social Darwinism, many a language of 'progress'. The question then arises whether hurn.:l.11 rightS languages will also wither aw.llyand what may take their place. Far from being unreal, the question is already heavily posed to us by the movement of global capitalism and technoscie nrific modes of production. The future of human rights talks remains haunted by an inadequate understandLllgofthe various fateful impacts of meg;l-science and hi-tech that now constitutes the materiality or the productive forces of contemporary globahz:ltion (the new forces of production symbolized by digitalizations, biotechnologies, and the emerging nanotechnology) and the attendant fonns of human rightlessness. These redefine the bearers of'human' riglllS, or reconstitute. yet all over again, the 'human'. IS

12 By ·nature'. [ mcan here, pnmarily, distinctions madc between ·cnforccable' and not directly 1ustlCllblc· rights. By 'number', I re(er to Ihc dlstmctlon be"tw('(Cn ·cnumCl"lltcd' and ·uncnumcl"lItcd· nghl'i. the Inter ofte"n anlcuiatcd by prxticcs of)lKhcul xtivtsm. Uy ·I"nns·. I mdlQte" herc the scope of ngllts thus cnshrmed. gIVen that no consrituuonal gtUDnttt of human ngllts may confcr ·absolute"' protection. The 'negotiauon' process Ii mdccd complex: It refers 10 at leasl three diStinct, though rebtcd. aspens: (I) JudiCially upheld defimtlOllS of ground5 of reSlnalon or regulauon of thc scope of tights; (2) Icgl5buvely and exccuuV'Cly unmolested JudLcil,J 1I1tcrprecltlon of thc meamng, contcnt, lind scope of nghts: and (3) thc W<1YS III which the defined hearcf"lJi of hum an ngills chose or chose not to t'Xt'rclS(' thclr nghu-tilis. I" tum, prcsupposmg that they haV'C the mfomlauoo eonccnung the nghu they haV'C and the capabllny to deploy them 111 VlILnoUS xu of hvmg. Il This 1$ fully "lam fest III the Dther ~rlf1tcd r('$pon§c by Ernst-Ulrich Pc1enmann (2002) to !'tuhp Alston's cntlquc (2002) o( the (omlcr'. mSIstence on 'mtcgr:mng' human nghu to lIlte"mauonal tradc law and global OrgalllUIIOIU (2002).

"EV('n to the poi11l nf ~t anolher nllyhem on the peoples of I bl!! III the very yen of the eelebr.mon of the blCC:flIenary of Its mdependence! See. for a poigJIant Ilarn.uvc , Peter I bllW<1rd (200-4). ~, '10; asymmetncal lIlte"rmtlonal Nofth-50uth drvide m thc mode of human nghl'i Jcnm.1edgc production furthcr aggrav.ues the SItWUOIl ~n when furnishing a SUffiClCnt watr.lnt for roncem WIth the (uture of humall nghts.

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xx

Prr:f:lcc

Iluman rights languages. and dialcctS, whether in the genre ofla~~ges for political organizatio ns o r sodal prOtest a~d movement, rel~1a1ll mfinitely various as wetl as precariO US. Some re lauv~ l y o ld hum:m ," ghts now stand threatened with extinction, as anyone sttll worktng with human rights of labour wd l knows. New human rig,hts language,s stand b!rthcd in caesarian oper.nions that 'del iver' hum:Ul n ghts of speCific constItuencies (such as human rights ofwomcn, children, indigenous peoples. and cultural 'minorities'), not to mention the profusion of thl:' 'sustainable development' and human capabil ities/flourishing talk. Some new l~n­ guages of human rightS such as those thOit now flourish with ~ n ontologlC~1 robustness of the maxim Women's Rights are Human Rights' remain overcome with the problematic discursivity of 'gender mainstreami ng'. Some others (such as the human rights of 'despised sexualities', or of the indigenous peoples, or people with disability) face unce.r~in flln.lre~ on ~he variously framed and reconstructed axes of the 'recogllltlonlredlstnblltion dilemma'. No 'real' hUlllan rights languages have yet fully emerb't:d for the stateless peoples and peoples now caught in the vicious webs of the war oJterrorand the war 0" terror. " It is uncle;tr how human rights move~ents as soci;tl movements, whether 'old' or 'new' , may arrest the denll~ of human rights lan!.'1.lages.

Too Sool1, Too Late Any endeavour at forecasting the futu re of human rights osc~ lI a tes o~ the 'too soon, tOO late' axis. On the olle hand, contemporary lIlternatlonal human rights norms and standards constitute. in the eye of human h.istory, a very rt(trlt moral h'lmnn itllltrliiotl btcau~ these present, at best, the Sites of heavily confli cted state and social movement consensus and, therefore, simply may not bear the weight of interlocution in terms of tile future. 16 It docs not matter much, fot the prnc:nt purposes, whether and how wt' nuy here constrUCt SO~ importlnt distinctions bctwttn the: bnguagt'S and dulcet!> of human nghu. I remam aware lhat the languago= of analYSIS of'human nghu markets' I ofTer (in Chapter 7) cuneI Ihe pou:nllal of ahenating my fnends IT! human nghu movemenu (of which I conswer myself an IIUlgmflGl.Ilt but ~lIll an Imegral pan). Theil sense of 'hurt' may be somewhat redccmed, I hope, when they receIve, With some warmth, my reflectiom nn the: paradigm shi ft from univel'Sll human rlghu to trade:related. nurkc:t-friendly hU l1lln nghlS (Chapters 8 and 9) and the C1111que of ~e: emergence: of 'modem' hum:,ul rights pandlgnl (Chapter 2). The uncvcn rc«puOrt that ' thus anllClp.lle SUStainS my belle:f that ~ (thOS(' of us who struggle for the xhicvcmcm of hunun ngiltS and the amehonoon of human sufTcrmg Iwr ,rrd _ , on, as It were, ASAP basiS) need to be ref10avc about our own practKn fuluomng the tasks of struggk and solxbnty.

AU there is to human rights theory and practice, some may say. IS Its hiIforilal prtStnt. On the other hand, it may be said that the fmure is already happening now In an era of extraordmary global tr.lIlsfomuuon , which has already devoured many a powerful vision and I.nguage of altematlvc human futures, and fully confiscated the sight and sound of ailenullives to global capitalism. The acceleration of historic time and space thus render obsolete the fightin g faiths of the yesteryears. On this regtster. the question collcerning the future of human rights stands alrc;tdy unhlsloncal ly posed, because it is a moral langua~ (like those of 'social Justice'. 'equity', and 'redistribution') that is simply wwustd. It fails. outside of a few contexts (notably, of regime-inspired or supported torture and terror), to resonate with the globalizing middle classes around the world. Any work-like me present one---on this SOrt of view may then, at best, only address pas/filiI/ res, that is, the narratives of the unrealized, and even unattainable, potentially of the languages of human rights. The 'too soo,,' or 'too taft' stances raise further anxieties concerning the future of human rights. The 'tOO soon' stance simply interrogates the worth of any future of human rights talk. What matters, in this genre, is the affinnation of the here·and- IlOW struggles. Futures ulk, on this register, already marglllalius the histonc potential of current strUCtures of hum.n rights engagement, in the main addressing the tasks of continui ng norm-creatiOIl and implementation as an ~pect of human rlgllts responsibIlities of the state Structures and conduct. On tillS Vlew, the tasks of human rights consist in making the state eth ical, governance J USt, and power accountable; these wk.~ will, and even ought to, contin ue to define, and consume, the agendum of human rights. Any historically premature COllcem with alternative futures of human rights renl.1.ins then liable to the indictlncnt of being a tragic moral mistake. The 'too late' stance, in contrast, insists that the 'human rights' patty is already Olltr and the sooner we get rid of the human nghts hangoVl:r the better it will be fo r human futures. State structures COlIn, thus. only deliVl:r the rhetoric hut not the reality (materiality) of satisfYing basic human (material and non·material) needs. The world·hlstoric 'abell.ltions' of'wdfarism', and 'socialism' being said to be 'safely' ~r, the state must reincarnate itself as the nigh t watchman (incidentally, I do not quite know how to feminize this expression!) Increasingly, also, contemporary economic globalization fosters the production ofbclicf that the sa tisfaction of human basic needs is best ;ichieved through aggressive protection of the nghts of the multmational corporations and the policies of intcma. tlonal finan cial institutions, regardless of the negative fallouts on the human rights of the actually existing human beings. especially the world's

lOcii

Preface

Preface

impovc:rished. From th iS viewpoint, morallangwgcs. especially those of human rights, Ixcome counter-productive when they oppose: visions of new 'progress' hcnldcd by technoscience powcr fonnations. Forms of resist2l1ex to this kind of 'too late' stlnce invites (in the Niettsch~11 ~nsc) the 'pessimism of the strong', a dctcnnination to live within contradictions while somehowcombolting the devaluation ofvalues. The difference between the two positions or responses is critical. In much that gets said io this work, I takr seriously this form of pessimism that still imaginatively elevates the courage to resist the savagt' power of contemporary econom ic globalization.

The Problematic of Fiduciary/Suffering Thought This dauntingly complex task further raises the intractable issues concerning agmry (wllO raises these q uestions) and method (how these are posed). The issue of agtlu:y is, indeed, crucial, entailing at least two related, but distinct. questions: W1w Spt'tllt! tllfOlIgh lIS u4,m wt' speak aboul IWlllan rights.' A"d 0" whose «half ",ay u't spt'tlk? Inescapably; those: who venture to raise questions concerning the fum Te of human rights must confront their own historic subject-po~itions, and be reOexive concerning the human rights choices they make. No matter how Ouid and contingent these subject-positions. theories about human rights do not quite maIUg'C to make audible that 'small voice of history'. conveyi ng 'the undertones of harassment and pain' l7 endured by the rightless peoples somehow as their politically ordaincdfoll!. HQWS()C"VCr problematic the category of the subaltml may be, or be made to appear by postmodernistic analysis, stories emplotting the future of human rights remain sensible for the violated only when human rights discourses convey a smst: of Sl!fferillg. I endeavour, in this work. to articulate a distinctive subaltern pcrspcctivt: on human rights futures. But human righrs discourse gets even more complex with the question: whose violation and suffering we highlight, and whose: we Wlore, in th is endless discursivity on human rightS? Since human, and human rights, violation is egregious, t"Vt'1l lhe struggle to articulate the 'small voice of history' of those: who suifcr-oftC'n beyond hope-putting hum:1.I1 rights to work. entails the enactment of (what Vcena Das terms as) the 'moral hierarchyofhuman suffering'. This work, alleast partiy, add ~sscs the ways in which the grammar and idiom ofcontemporary human rights languages entaI l the 'sublimation' of human suffering. 17 RanaJit Guha (1996) I ~t 1~12.

xXIIi

Of course, much depends on how the narrative voice is appropriated to marshal the power to mact viSions of human futures. The powt:r It marshals ~ollles a mat~rial fom' II,al matts tilt allfitipattti fowm. However, both the tnumphal eras of the bourgeois human rights formations and of the revolutio nary socialism of Marxian imagination marshalled tillS nar. ratlve hegemony for ~marbbly sustli ned practices of the politics of cruelty. T he formcr enfo rced imagined fut ures on the rest of the world (with itS noti~ns ~f the colle~ve human right of the sUpfflor raus to subjugate the "iftnor ~nt:J), ~hlle the ~a.tter legitimized many agJllog. Alternate ways of the 11.'1II1II!!t/lIOtl of tradition (as in the case of some states da!ming .Iegitimacy frDIn .'~liticOlI' Islam, Juw.ism, Christiaillty, o r H in_ dUlsm~, like both the~ VISIOns, also, on available evidence, augment the potential for the practices of the politics of fierce cruelty.18 What makes contemporary human rights movements pncwus is the fact t~at they contest all ble.k and terrifying sway of these narrative hcgcmoIlles. T I.ley deny. all .{osmo/ogiral, as well as ~rmlrial, juslifllaliol1! for the lmpoSItlO~l of 1I11Jt1stJ~ed human suffe ring. And they insist o n a dialogical construction o~ suffenn~ that may be considered 1ust'. In this, they also contest. the:: nOtlO~' of politics asJa~; that is, the power oftheJt"w becom ing thedntlllyofnulh oTls of human beings. Even this enterpnse, in turn. needs to negotiate and legitimize the shiftillg '{'t"t SOmMat imvmjbk boundaries between 'IIU6Sary' and 'SUrplllS' human suffering. . The. power that tht:y thus contest is 'political' power, the power of IdeolDglcaJ and TC'p~ive apparatuses of the state and of kindred globOlI knowled~govemance fonll:uions . lncreasingly, however, digitaliz:l.tion and blotedm~Jogies mark the emergence of l«hllOscil!nlifk formations of power ~hat thnvc.on appropriation oflanguagcs and logiCS of human rightS for ca~ltal-mtcnslvc.oorpoT2tc-owned production ofscientific knowledge. All thiS then res~lrs III the emergence of (what I describe here as) [he Iradt:_ ~ttd, marlut:frirndly human righrs paradigm, subverting the paradigm of Ufllvcrsal human righrs of all human beings. T he subvt:rsion is profound. allover again the notion of being IIImum stands pcridated. The hllmall no~ stands represented, in an era ofdigital capitllism, as a cyborgsituued withm networks ofinfomlation, wholly capable of corporate ownership whether lit terms of electronic or genetic databases. The various huma,; genome proJects, and the contemporary j ustifications of emergent technologies of mo

1- It d

oes

l10t

'11:;111er 100

,",uh from the standpoint of rhe vlobrcd. whether cnor_

hUl::r~nl~leUOI1 ofhum:;l" suffenng as well as the dem:;ll ofrhe nght 10 be and 10 rem:;llll

beton, :;I11d COlltlllUes 10 be JU5uficd. III coslllo!ogieal or secul.u dlscurslvl'" or eourseas the" f -r /lnpos

'

arr.mV(' str"lIItejpe5 0 rCS1~tance drfTtr matet1:;1lly WIth caeh roman of

lUon of sufTcnng and human 'Iiobtion_

XXIV

Preface

human cloning as redemptive of human suffering, present a remarkable.

if not the ultimal(\ challenge to half a ccmury's attainment of an Ai,,'t= of Human Rights. TechnoscicllCc, as codification of new material practices of power. affects the very II11.gin:ltlon ofhum:m rights pnxis, not the least beGlUSC the bearer of human rights st:l.I1ds feast either as a cyborg or as an informa-

Abbreviations

tional genetic storehouse. It is also:ll global social fact dut fonns ofhUlnan

rights c"tique stands necessarily simated within technolog;es that they protest. Old notions ofwhat it means to be, and remain, 'human' have been steadily, bUt spectacularly, rendered obsolete by tcchnoscic:nce. The notioll ofhurn... n rights. still sensible: in relation to state violation, now becomes

APEC

Asi2 Pacific Economic Cooper.ttion

inchoate with regimes of te<:hnosdentific power that sustain the New

ASEAN

Associ2tion of Somh East Asi2n Nations

World Order, Inc., or the diOllectic of 'arms' and 'c;&.!ih'.19 The task now is not merely to Imdmumd these developments but to /raus/oml these in directions more compOltible with competing notions of human rights futures. The book in your hands I'llises marc questions than its answers. Even the questions it poses may further be refined in activist theory.20 You h:we the choice to gIVe the kiss of death to this speculative enterprise that I here name as the future of human rights. Ifso inclined, may I at least remind you of Rou~au who described rightless human beings as those 'whose first gifts are fetters' and whose 'first trC2tment' is 'torture', yct whose ' ... "",jet alo"~ is /rrt ... '. Should we then, with Rousseau, ask the qucstion: Why should they not I'llis<: it In compi2illt OInd, ifl may add, itISUmYtjon~1 How 'free' may this voice be? Do the languages of cOlltempol'llry human rights constitute what Lac2n, momentously, 2nd in 2 different context, rwned as 'impTlsoncd me2mng5', from which 2fter 211 the human suffering of the rightlcss peoples m2y still seek a righteous dcliver.mce?22

CE

Christian Era

CEDAW

Convention on Elimination of Discrimin2tion against Women

University of Warwick November 2005

Upendra Baxi

1'1 Ikrrida (1976) 237. Xl Some rl.... lewen o(the til'lll edition, who somehow sul! believe Ihllt hutl\~n rights bngua~5 eon~l1tute the \Iltmute panacea for ~f2te1i of mlcal evil, have 1I11scomtrued tius SCSlllre ofhurIIllny. 1 beheve thiS llaITlltive mk well worth thc COM o( unch:tfltlblc undcrstlndln~.

21 1 dCrl~ Ihl5 rcfcrclKc to Elflik from Dcmda (1976) 168. 22 AJ quoled by Malcolm Bowie (1991) 60.

lMF

International Monetary Fund

MAl

Multil2teral Agreement on Investment

NAFTA NGO NGI Nllru

North American Free Trade: Org2ll1zation Non-goveTllmcnul Organizauon Non-~rnmentallndlviduals

N2tion2i Hum2n Rights Institutions

OECD

Orgamzation for Economic Coopel'lltlon 2nd Development

TANS

Transnational Advocacy Networks

TRIPS

Trade-~l2ted

UDHR

Universal Declaration of Human Rights

UNDP

United N2tions Development Prognmme

Intdlectu21 Property RightS

UNICEF

United Nations Childrens' Fund

WHO

World Health OrgaJ1lzation

wro

World Trade Organization

•

1 An Age of Human Rights?

1. Towards

M

3;

'Common Language of Humanity?'

ueh oCthe twenticth.century.of the Chnstlan Era (CE), ~pecially its latter half, stands Justly haIled as the Age of Hum an Rights. No

preceding CCIllUry in human l history witnessed such a profusion of human rights enunciations on a global scale. Never before have the languages of human rights sought to supplant all other ethical 1anguages. No previous century has witnessed the proliferation of endless normativity

of human rights standards as a core aspect oCthe politicsoJimergowmmemal dairt. Never before has this been a discourse so varied and diverse.:! The then Secretary General of the United Nations was, perhaps, right to observe (in his inaugural remarks at the 1993 Vienna Conference on Human Rights) that hum:m rights constitute a 'common language of humanity' ,3 Indeed, in some w.ays, human rights sociolect emerges, in this era of the e nd of ideology, as the only um~rsal Ideology In the making. enabling both the legitimation of power and the praxn of emancipatory politics," I I use the term 'hulTllln' ~ an act of rommun)Q.UQn;a1 counesy, Human stmds rTUt"Ud by the presence of mm. and perxm by a '5OU', My preferred non-seXist version is, theucfore. ;a comblTunon of the firsl letters of both WVfds: 'huper', I await the thy when the word 'huper' will ucplac:e the word 'human', 2 Such 001 il becomes neces»ry to regularly pubhsh llnd upcb!!:, through the unique discursive insrrumentlliity of the Ulliled Nations system. m ever-eXJU.ndmg volume'! III fine: print, the: v;ari01.IS texu of human Tights mSlrume:nlS. Sec:. Umted Nations (1997).

3 BoUtT05 BoutT05

Ghal! (1993).

For the: notion of ideology as a '<:1 of bngulIgcs c:lulXlemed by rd1c:xiv'ty-or as 'sociolc:ct'-sec:, Alvin Gouldlle:r (1976); J8. Thompson (1984). A more recent vamllt oftlus is the: use of the: phrase 'dlalecu of human nghts': see Muy Anll Glendon (1991). Sec lIlso Upcndra 8:u[I (1997). Sec, for a fuller ~rsion, http://u'l4'W.pdlrrt.otg. lind DaVId Jacobson (1996). The stlte:, he tlghlly streuc., 5tl1rKh commuted less by sovereign agency lind more by 'a larger mtemaUOlU1 lind eon)tituuonlll order Wsed on human nghu'. Human nghu ptovtde a 'vehK"le: and objcc:t Oflhls revolUtion'. 4

An Age. of Human Rights?

3

2 The Future of Iluman Rights Whether o r not a world bursting forth with IHnnan rights norms and standards is a better world than one bereft of human rights languages still remains an open questio n. To be sure, a world rife with human rights curies the greater potelltial of naming human violation wh ich decent and reasonable peoples ought not to tolerate or permit. Nor is there much .do~bt that state, govcnunenul, and political choice and conduct do r~m alll liable to human rights indictment. Peoples' movements everywhere IIlterrogate me practices of the politics of cruelty. That, to my m ind, ~s an i~lestimabl e pok'llial of human righ ts languages, unavailable to preVIous history. That being fully said, we ought to note that no t all fonns of human violation stand addressed by the languages of human rights. Nor do all violated people have equal access to the languages of human rights; having access to a growingly comm on human rights language is not the sa l~l e t~ing as marshalling the sure power to name and redress human VIolation. Impunity for human- and human rights-violation cocxi~ts with h ~llnan rights implemenutlon and enforcement. Fu~hcr, centlln es~ld galllS of human rights struggles (such as the human fights of the working classes) stand erased by a single strokr of the gl o~li zi n g legislative pen. I go no further III illustrating the britueness, the fungibility, ofhurnan rights norms and sundards. Human rights languages forever promise more than they deliver in real hfe terms to the 'wretched of the earth'. Any consideration of the future o f human rights engages necessar.i1y with the cxtf20rdinanly complex constimtive notion of potentiality. or WlUI 'the problem of ute OQstence and autonomy ofpotenciaIity'.s In a '>Cose. as Manm Heideggcr says: ' Higher than actual ity stands poSJibility' and we 'C'1Il understand this phenomenology only by seizing upon it as a possibility,.6 In mis sense, the future of human rights may. well lie ~ot in meir creation (the actualides of their making and unmaking-thelf firs~ c~e­ ation) but in their potemiality to 'decreate'/he many act~lI~ eXlsnng worlds o f human rights (the second creation). The actually extstlng world of human rights has little or no space, for example, for the sutcless, the refugtt, the massively impoverished human beings, the.indigcnou~ ~ples of the world, and peoples livmg wim disabilities. It IS the po5slblhty of decreating thiS world in the process of rccreatmg new worlds for .h~man rights that gives human rights languab"l's 'the matter, the potentiality of thought,.11 This potentiality, in the short run, merely pursues a kmd of Real 5 GIOf§'O Agamben (1998) 44.

• Maron He~r (1962) 63. 7 I hen Invoke !lOme notions from G IMgw Agamben (2000) 270. • Ibid. (2OOOb) 34.

Utopia that seeks the 'bettering of the bad' ; in the lo ng run , potentiality Olav well unfold In cherished images of a juSt and hunune futun" for all human beings (as well as o ther $Cullem belllgs). ~ may well say of human rights (languages and materialities) what Ag:unbcn (a!> far as Olle can grasp his variegated texts) says of potelluahty in general: human rights also mark a possibility of a revolutionary begannlng 'from which there springs not a new chronology but a 'alteration of tune (a cairology)' with me 'wcightiest consequences', 'Immune to appropriation into the reflux of fCStOration'. 9 O n this register, State sovereignty may no longer articulate itself who lly outside the zones of human rights to the point of restoration o f legitimacy that justifies coloil ial enslavemellt of peoples, apartheid state formations, practices ofgenocidal politics, o r the reproduction of rape culrurcs as so many modes of'legitimate' governance. But ulis immunity from 'appropriation into the rcfluxof ~toration', while providing the foundation for contemporary grammarofhuman righ ts, still leaves open the twO realms o f possibility/potentiahty that Agamben suggests via the distinction between polmtia attjllfJ and polmtia passiva. IO As Agambcn provocatively reminds us, if potentiality precipi tates somc moments transition to actuality, it also betokens 'th~ pofnltiality "0'/0' .1 t Th~ polnlliality flol lo fulsomely characterizes me contemporary world of human rights enunciatio ns. The practices of H oloca ustian politics of cruelty contin ue to outweigh high-minded declarations 0 11 human rights; and state systems continue to innovate forever their ' inability to functio n without being tr:msfo rmed into a lethal machine' . 12 The pol~"'iality '10110 conti nually informs the m aking of human rights since the Umversal Declaration of Human Rights (UDIIR). This poteuljality "01 10 haunts evcn the millennial dream of 'turning swords into plougllshares'. But its narratives also extraordinarily demystify the extraordinary histories of the centuries-long politicl terrorism involved in the coloniza;tion of me non-European peoples. Politics of organized IIltolerance, genocide, and ethnic cleansing stand universalized in the killing fields of postcolonial and post-socialist experience. The early, midd le, and late phases of the Cold War 13 orchestrate pf(xhgaous human

, Ihld

(2OOOb) at lOS. 10 Ibid. (1987). Ihld. (1989) 48 (emphasiS added): (1998). 12 Ibid. (1998) 175_ Iln. , n=n()(h utton of eold war' IS cruc:ul to any understandmg orhow the 11Itergov-

"

emll1tnul polma o r dCSII\' PUrllues Its own dlstUleuve ltinenncs. Avalbblc htenturc mdlOotCS at least five periods: 19045-7 (the period duncte n~ed by the Yalta Confel\'nce ~nd bcgm1l1l1g5 of nuclear anlls nee as well as of policlcs or oollummellt); 1950-68

• An Af,e of Iluman Rights?

4 The Future of J lum:1II1 Rights

sufferlng ' • as well as the exponential growth of human rights enunci.uions. In addition. the 'post-Cold War' pnctlces of 'ethnic wars',1S and now the so-alled pre-empuvc: disarmament wars ominously birthed through the Second Gulf War and the 'waf on terror' also, at one :md the S21mc time, mark ways of reproduction of human rights as well as of imposition of

human nglltlessness. manifest through new orders of imposition of social and human suffen ng. In this context, understanding human rights remains a complex and COntl7ldlctOry cxcrci~ in the unravelling of their

futures; in a sense, potentialities always mark the triumph of hope over experience even when the Iangtl2gt's, logics. and par:aJogics of human rights also stand marshalled to :mthorize practices of mass cruelty on a global sale, w hether in bourgeois, socialist, 'post-Cold War' (post-liberal) and postmodem forms. Even so, human rights languages, howsoever effNc, remain perhaps 1111 I/WI U't' IIIlVl.' to interrogate the: barbarism of power. The: endowment of human rights ctnerges not so much as aiming 'to redeem what vns' but rather as speaking to a high purpose ;'0 SDvr whal was "ot,.'6 Pm wholly another vny, usb of recreating and decreating human right!. remain inseparable from those of rethinking 'radical evil'.17

II. The Open and Diverse Fumres The critical relation between actuality and possibility thus remains central to any preoccupation with the jill/Itt' ojhllman riglus. This funtre IS, as all (Ihe en of correlon): 1968--80 (dm-me); 19H0--8 (~ncwcd urns nee), 1985-8 (the pmod of Sohcbnty and Glasnost). This penodiution does nOl directly address Ihe vanellcs ofhum~n- ~nd human nghts-violatlOns that ,he Cold War unle:lshed.liow· ever. h15lOt1~n5 of hunun rtghlS, fonunaldy, have at-hand cbulnses of the Inlema1I0nai Hisrory proJCC1 oflhe W
5

funlres are, open and diverse. However, not every hUlTlan 'achlcvement' endures in timt' and space. Some become relics of a bygone ol1le---of nHerest only to connoisseurs of human dIVersity. Some others fumi .. h residues, out of which are f;;ashloned the future practices of rem~l1t1on of the past. or the politics of IIlvenuon of nosulgla. Stili some others live on as cult practices of a precocious minonty in a vastly transfomled world. In the ryes of the future, th;;at which we now name as 'IHlInan rights', may well live on in the 'rulllS of memory'. The notion that 'human rights' may have such radICally contingent futures may seem outrageous to many of us deeply committed to the .alleviation of human miscry .and social suffering. Some of us who have devoted our whole lives to the struggle for Implemenution of 'human rights· may regard such an enquiry as morally offensive to the collective histories of embodied and lived hurts. But precisely for th.al very reason it remains crucial for us to recall that 'contemporary' human rights theory and practice (as I name it) i.. a very recent human invcntion, perhaps safely dated as an archive of em.ancipatory secular human praxis only a little over half a century old. At the end of the Second Christl.an Millcnnium, the remindcr of the contingency of humall right!. achievement is, I believe, perhaps a richer resource for their futures than the fond illusion th,u 'human nghts' arc here to sUy, well-nigh irreversible. Saymg this does not ellui! succumblllg to any 'future hype' concenung the 'cnd of human nghts'; rather, it reminds us that the 'fulUre' of human rights sunds lIupenlied by a whole voariety of developments III theory and practice. These, III the mam, IIlvite anemion to the: • ~afogitJ ojhllmQII righu, 'modem', and 'contemporary', their logics of exclusion and inclusion. and the construction ofid~ .about 'human'; • ReQlitj~ of overproduction of human ngllts nonns and sundards creating governance as well as resist.ance overload that complicates emergences of human rights futures: • Ckvt-Iopmt'tll of posnnodemlst suspicion of the power to tell large global Stories ('rileu-narratives') that convert human rights I:mgllages into texts or tricks of governance or domination; • E."U'I;gt'tlU of the politics of difference and identity, exposing both ell1.a n clpative .and repressive potential;

.• Rl.'SlIifa(ilt~ of argument!. from ethical and cultural relativism interrogating the politics of universahty of human rights, in ways that make POSSIble, in 'good' conscience. toleration of vast strctches of human and SOcial suffering; • COfll"trlion of human rights movements into hUIll.a1l rights markets;

• An

6 The Funlrc of Iluman Rights

• Tro/l.ifomullion of the paradigm of the Universal Declaration of HlIInan Rights into a trade-related, market-friendly paradigm of human rights ushered III by 'globalization', ideologies of 'economic rationalism'. 'good governance'. and 'structural adJustment'.

In addressing these taSks, I take it as axiomatic that the historic mission of 'contemporary' human nghts is to give voice to hunun suffering, to make it visible, and to ameliorate it. However, the articulation of the voices ofsuffering always enuils acts of representation. The notion of voice, when captUred by agencies of domilunt discourse,18 supplan ts the 'small vOIce of history', conveying the urgency of everyday 'harassment and pain' in lived subaltern experience .19 However, mtrt acts of state and social policy often begin to administer silence to the voices of suffering. One way to name the various struggles for human rights is to say that these represent contestation over the power to ,umlt' tht lIOiu. Human rights discourse then raises the problematic of rtprestllfclIiotl of hum an suffering, both as providingjustification of politics of governance and of people's resistance that I name 111 this work. severally, through the distinction between forms of politics of. and pollticsJor, human rights. The notion that human rights reghnes may, or ought to. contribute to the 'pursuit ofilappiness' remains the privilege ofa minuscule of humanity. For the hundreds of millions of the 'wretched of the earth'. human rights enunciations matter, if at all. as and when they provide. even if conlln~Iltly. shields against torture and tyranny, deprivation and destitution. pauperization and powerlessness, desexualization and degradation. Despite some astonishing hunun rights praxes, the delivery of human rights to the masses of impoverished peoples happens in homeopathic n"asures. It is a notable. feature of this therapy that it reproduces the symptoms as a way of advancing its 'cure'! From this perspective. the time of human 20 rights, far from being 'instant' time, remains always a 'glacial' time. Ilowcver, not all voices of suffering necessarily speak to the world of global human rights. They speak to us often in languages of injustice that may not be expressed and measured merely in tenllS of human rightlessness. The languages of human rights become inchoate when confronted, for eXllmplc, by the demands for global reparative justice directed to redress 18 What I have 11\ rl1lud hen: is nOl me glohaJ 'voIce' Indu51ry eplwnmed by dte 'iJk.lrld Ibnk's ~i(t'J of'~ f-\JOf' on lIS "',lcOOlle. Sec the c~usuc comment 011 Ihis by

Thomas W. l'oggc (20(H) 17. NolC 204. 1~

RanaJ" Guha (\996) 10-12. 10 In tenns of the dlstlllcuon n:ccntly offered by Bo~vcnrul"'ll de Soll~ SantoS. (1995.2001).

~

of Iluman Rights?

7

harm and hurt arising from past, centennial, and even Inul"~en I u-... tennla. pracnces 0 t: po .tics 0 Cnlelty, such as chattel s la~ry, cololllunon, the Cold ~r. and some recent post-conflict dcvasution sitWotions unleashed by the multiple wars r(and wars OIl 'terror' ,21 Languages ofJusuce articulate the imper.ltlvcS of responsibility for human , and hun'.n ngh""", VlO I4Itlon In the world of comcmpor.t.ry human riglns, however: no. ev h violation. is a rights violation, given the'ow:rall lmpovcnshmem of IIltcmationaJ and constitution.1 hum.m n"gh ts sun12 '

.

rth

r

r

necessari~y '''",~n

~~rn:,:v:

dards. 'hThroughout d I UlIS work, . I accordingly d,ploy Holled- lip expres-

lUlIlau nghts. violation', I.do nO[ pursue t,he task of actw.lly bringing voices of suffering to the reahty of human ngilts. That is a subject for another kind of work. How~ver, I try to do. the next best. I endeavour to relate the theory and pracuce of a' 23 human nghts to the endless variety preventa bl e Iluman suuenng. Recovery of the sense and e>
or

"-_!

u .... fuB11y ~ttend IQ thIS dlstmction, and It'l m,lny .......... Iootin r-zitUr.t ;lX] (2005;a). ..-. f'" •

In

my ""-, " ~ •• ng In

ror oc;ll11ple it look n fh to UIUlll~tclyensh;lIle' lany 1f~er.tnons 0 Ulilan ngllls and femullst thcoryeffon npe. seXIU s, ~ ... cry. enforced prosucuuon, forced pn:gnanC)( .. and Violence In the definitions of crime ag;unst humanity and Cn~IIla.1 CoU;;'sU~II~.es 7 (paragraph (2)(i) and Arude H(e) (vi), Imernalional

any Other form crulles S of

. . .u

;:xu:1

24 Adl Ophir (1990) 94-121.

the ~~O!~n?;;~ns a~ Cbuchne Haenm-Dale (2004) offer a valuable ~n~lysis of Torture. t e Optlonal Protocol to Ihe Unlled Nations Convelltlon Against

• An Age of Human RIghts?

8 The Future of Iluman Rights

Further, as every student of the oudawry ofgenocide knows, the normative categories constitute a part of the problem for consider.able stretches of human suffering before these tend to become a part of the sohni~n.2S In this ~ge remain ceded vast territories of the future of human fights to
III. Clarity as a Form of Caring for Human Rights Clarity of conviction and communication is a most crucial resou~ce. for promotion and protection of human rights. The . stnlggl~ to altam It IS by itself a human rights task. However, the usk IS ~auntlllg, wh~n one shuns the self-proclaimed postmodcmist virtue WhiCh, ev~n at .1l~ ~st moment cele.br.ates incomprehensibility as a unique form of 1I1tel1lg1blllty. Ethic~1 clarity concerning human rights is not always easy.to ach.ieve. As dtis work progresses, we will begin to apprecia.tc that there . IS no Slllgie or simple answer to the manifestly clear question: What fights ought 25 See,

Satn~mha ~r

(2002); Ene D.

WeIU

(2003).

9

human beings to have? The elldeavour at justification of human nghts has understandably, though not always Justifiably, produced complex and contradictory discourses. Even when we arrive at a land of global consensus 011 certain human rights values (such as equal dlgmty and respect for all human beings, or dIe nght to life), these prOVide poor gtJIdes to tnllslation in the official prose that enacts human rights norlllS and standards and their subsequent Interpretive IlIstQnes. Human nghts law and Juri!tprudence have to produce definitions of prohibited and pennissiblc conduct and here. often enough, sovereign power assumes the fonn of pow(:r to legislate definitions. Undersundably, State and policy actors that fin.aUy emerge widl international human rights treaties. dedaratioll5, and resolutions engage in definitional trade-offs; thiS m(:ans funher that the human rights norms and standards thus produced emerge in deeply caveated languages. Even such prima facie consensual formulations remain further exposed to reservations, statements of understanding, and like devices that further complicate the search for the content and scope of human rights. Massive. and unending, acgetic exertions remain indispensable to the enterprise of knowing what hurnan rights people may actUally have, even paving the way for the form of necessitous assenion of Q IlIImtlll n"gltt to IlImltlll rigllts ttI'l(tl/iell! These quick ob.'icrvations should suffice: here to say that crises of legibility and IIltclligiblllty always stand Installed at the very hean, as It were, of the multitudinous production of contemporary human rights norms and ~tandards.26 Even . non-statecentric undersunding of sources of Justification for human rights (to which, in the main, this work IS devoted) does not service ;lny pa ...mount aim of clarity. The universes of re.sisUJ1ce to power and dOmlnallOn are rife with crises, complexity, and contradiction. Even as co~uniti~s in resistance and peoples in struggle enunciate new human tights Ideals, they do not always agree, and, mdcro. differ greatly, on the ,:-,"ys in which these may be translated into languages of hUO!;&n rights norms and standards. They impregnate the production ~f human rights with rather notOriOUS constitutive ambiguities. One as Just to read, on this COUIlt, the poesy and the prose of the Porto A1agre :::: Mum~ai World Social Forum congregations declaring somehow potential summated in the phrase: 'Other Worlds Are Possible'! All ~

[II eOlltlbl, brut;ll dallty char,ICtenztt rcgllllCS of pohtlcal cruel". 11lere is no Inu<:ternuna.-.. I perpelr:oIIor 'Jusufie~uon ' for Ihe Hoioousl or the COllt -, Ln, or abel UI, tie N elllporary forms of ethme dcallSlng. The 'devout' NUl or eontempor~ry nco:101.1) arc rarely affected r Ilgl:UIo Inlell ' III .•ulClr L.I DC l(' or pracllce, by amhlgtllty, whICh agonize human Ibilln.' ~Iluts III each and every dlrecllon of the professed 'ulllvcrsahty', 'lIIchvu., ,and IIItcrdcpendcnce'. .I.

10

An Age of HullUJl Rights?

The Futur~ of Human Rights

this en20cts ways of readi ng th~ furore potentials/possibilities of human rights. O n older, even 2oncient, registers the ideal that proclaims the consent of the governed as the hllnus test for the It:gitill12CY ofhun!an rights-orientcd governance, d~ not. for e,ample, speak with an equal voice as to how public officials may be elected, what fonns governance may assume (say. in terms of the cabinet or presidential fonn) , how we may prefer ' thin' or 'thick' conceptions of the Rule of Law, and how constitutions may providt: for relatively autonomous judiciary, the specificity of human rights, and limitations on their scopc.n Much the same may be said concerning the insulbtion of the insurrectionary truths onanguagc:s ofself-dett:nnination. or the discourse concerning the human 'right to development', or 'women's rights as human rights'. The genre and corpus of human rights production thus, necessarily, oscillatt: betwt:C:n the twO commandments: 'Thou shah be always clear' and 'Thou shah never ever believe that clarity is all'. The taSks of writing! reading texts, contexts, and futures of human rights remain awesome precisely because one ought to respect the over-determinatioll, the excess, and the surfeit of meanings ~ntailed in statcce ntric 20nd peoplecentTic multiple originatlng poi nts of human rights. I remain aware that the fiducUlry image of writing about human rights, 20 fonn where one takes responsibility III acts of writing on behalf of hum an rightlcssness, suffering, and injustlce, further aggravateS the achievement of a modicum of c1anty; yet, this work is based on the belief th20t such writing remains coherently possible.

IV The H au nting Ambiguities of Human Rights The very tenn 'human rights' remains indeed problematic. In the rightstalk, the expression often masks the attempts to reduce the plenitude of its meanings to produce a false totality. One such endeavour locates the unity of all human rights to some designated totality of sentiment such as human 'digntty', 'well-being', and 'flourishing'. Another mode invites us to speak ofhUlmn rights as 'basic', suggesting that some others may be negoti20ble, if not dispensable at least in th~ short run, experienced 20S a horrendously long run by the violated humanity. The deprived, disadvantaged, and dispOSsessed may indeed find it hard to 20ccepl any justifications for the vt:ry notion of human rights that may end up in their lifetime, and even interboenerationally. as a denial of their right to be, and to remain,

human. Yet another ' II . mode of totalization nukes us Su<'umb to an ant h roI uSlon that the range of hum:m rigll~~ :~ I'II1Uu:u ,-~ to IlOman pomorphlc . . ' ...... bemgs; the new nghts to (or w lut IS' somewl14t L_ lIlapproprt- .J ~,n Vlrollment . ate y, even crue y, ca cu sus12mab1e development'') uke us far be nd yo such a narrow ....hnotion. __ .J As descnpuve ventures , such al"... mpts at lOUI lutlon o f human r1f:,"ts rcuuce to a 'coherent' category the forblddin I di g y verse world of actually existing human rights. As prescriptive vcnrnres, such modes simply privil_ ' prer~rrcu <-~ .. -0- , . rum v:I Iues over , Iling ' future ....h0 th efS, th. us. complicating, as well at ti mes d'InHIllS enunClallons. In both cases . the nrmatlve o · complexity '. ,nd , 'ny'ts I h human ~Xlstenlla ~- yield ' ' ' < ourreac Iof human rigllt5 norms and stan dar= their Istonc lutureS to tIe . Th'IS overall hL _ I . dem20nds of 20 uniform narrative. o~ures , ' Ii I t .Ie contradictory nature of the develo Pm ent 0 f'h timan 'rights' t lere IS not ont world of human rights b t h ' , or, Id 28 As Co u many sue confhctmg ' wor ( bo Idas ventures in totalization Ie 'doors 0 f perception' a~~d ~~~anl~ P~~se frol11.Ald~s Hllxley) oftheconflictt:d Ilormativity . r:a Ity 0 HlllIan rights, one wonders whether the ressi Itself, Its vast symbolic pott:ntial, may after all' . on InVlle Its own constructive demise.

I I

I

s. ,ar

dose I

de~plte

~

polllia/~dl'~irt-~II-dom~"Q"u and poIi'''(J ofdt'sirt-i"-irfSIl~'i~:~~l~:~:: ~~ :I';~:'~~;~':;;;:'I~>:O~:>: :'~:~~~;:>:~>~:;',~,: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~ <;ont~xts

ghts, IIldudmg human rights , emer"" 0- in seve ra I d'« merent 'Images' ... rights as bounlb d · . bck; rights as d20i:' :m d as KeNS; nghts as markers o f power, and as masking as a defense againsl 'i an ~rot«t~n ; TIghts as orgafllution of social space, ;and as disciplinaty and ann"'durs~ol~ ; n ghlS as art,cuiauon, and mystifICation: rights red _ ' 'K iP 1fl20ry. nghts as mil kJ f . h ' uenon of one's humam . .gh . r 0 one s umilmty, and as dtsire.29 ty, rl IS as expresSion of desire:, and as forec1osur~ of

•

In the Veopk's Report of II n liople'5 Dc,ade for Human Il,gh~m~n Iglns EdUCluo n, under the auspices of Ihe I e:IiUfy at least Ihrc:c ld IIc:mon. New York. now under pubhntion I of of humann:;gtus: thus the glomi world of d ~tlonli auspKCS ' the (nisi 110;1115 a SUII(brdS. prllK'pally wlthlll the: United Uctlon of llit:Cm~tlo I I~: tnnsg«:ss'oll world eonslltutc:d by naUonal T<'proCOUIlIOil wHh th_' nil SUI ,-' _ ; and the actiVist world ofhUnlan nghu III I"V'TtTIlInent Z9 We ........ (WO wor oa. r~ ndy Brown (1995) 96, fQO{not:c 2. S« also, Wendy Brown (2002) 420-34.

~rodllCtion

humal~~~ A

17 I attend 10 thc:sc as~ III Chilpt:cf 5 .

II

II1tercullU~1

a 12

An

The Future of Human Rights

Put another way, ' human rights' defy 'easy identification': 11m! nghts are sometimes mated:as concepts, as argumentalive trum~, as fxtol") f ~uction as prccondnions ofbargainiug. as beuer-enabhng entitlements, as

op. , " ' ckv1csJO totems, :as sources of social sohdarlty, as egltmuuon c ,'"

Too many images crowd consciousness ofhu~~n rights, The ~referr,ed , .......nival,l\ Inta.... is not just the act of pnVllegcd eplstemlc chOice or persr---' e, I ' 'gI • )b , (arising from readmgofthe 'right' books or followmg t II: n ~t canon u also a function of (what I-Ieidegger caned) one's tI'fOWfltlt5S III the ~rld, At the same time, the different images .. bout rights suggcs,t heaVlIY ,the diai«li(ai character of'rights', From the one and the same s~bJect-posltlon, human rights may be both 'cmancipatory' and ' repressive' ~arkers of articulation of counter-power; they emerge as signa,tures o~ a tnumph~nt 'hum anity' of the theoretical t:vcl)'one and as the regtste~ofhved, d~pl~t1ol1 of that 'humanity' and, further, as devices of mysti~catlO~ of dlsclphnal)' and sovereign power structures, Human rights constitute dlffe;em constellations of diverse subject-positions in, and through, a~nCY-II1-str~ct~~e , T here is no si mple way of reading forms of plur:1thty a~d muluphclty of the fecund expression 'hunun rights'. Because the notton means different things to different people, these meanings n~ to be con~gurcd \II pattcnlS that entail the least epistemic violence to the rtchness of dlffer~nce, a difficult task indeed, Further, at least in the present VIew, plurahty IS worthy of celebration only if it enables sustenance of ~he netwOrks of meamngs and logics of popular action which ,protest agamsl all fortns of human VIolation and production of human rtghtlessness, I essay general understanding under the following distinct rubrics,

(aJ Hllman Rig/llS as Ethical Imperatives

\\

Some speak of ' human rights' in terms of ethical values that ought to inform collective and individual action. These values present a contested terrain, Valut'S-talk stands here distinguished from itlltTtsts-talk. The.lattcr insists that what we call 'values' are nothing more than fo~s ofrattonalizations of intercsts. The forme r distinguishes values. fr~~ II1terCSLS by a definitional fiat: valucs arc what communitics and tndlvlduals ollght to desire as distinct from what they may Q(wolly desire,l2 The sources of tllI~ 'oughtllcss' val)' incredibly. 30 l"erT"t Schlag (1997) 1: footnote m~hcators Onlltted from the quOte " )1 To mvoke ~re nther non_ngorously, the Nlcnschcan notlOTl of'pcnpcctlvum as the very 'geognphy ofbt-mg': Sec, Jc:m Gramer (1985) 190. Y Sec, fOl" an Illummatlng :analysts, JulIUS Smnc (1966) 546-56.

Aae of Human

Rights?

13

The great discourse on 'natural rights' arises thus both within the traditions of theistic and secular natural law thought, 'Theistic' narurallaw traditio ns derive values from either the reason or the will of God. The diffcrence is nnportant: where values and norOlS flow from, or stand ascribed to the WIll of God, duties of obedience he beyond human Teasorungand interpretation. Only when values flow from divllle re:lSOn may human rC:lSOn mterpret their meani ng and scope. Natural rights ~rc procbimed by acts of pious reading of the scriptures. The hermeneutics of religion thus provides the historic matrix for acts of reading human rights as etllical imperatives. The right to equality of all human beings is grounded, after all, in that reading of the world's religious traditionswmch say that God created humans in His likeness or image and, therefore all are equal and all humans owe coequal obligations of respect and dignity to each other. Thus was the great Vitoria able, memorably, to raise the justification, within the Catholic tradido n, for the protection of the natural rights of the indigenous peoples of the New World. Thus, tOO, was Martin Luther ablc to inaugurate a PrOleStallt tradition ofnuun.1 rights that decemralizcd for ,111 believers the power of reading the word of God, uncluttered by hierarchic monopolil.3tioll of hermeneutic powers in a few priestly hands. Thus, further, was Gautanla Buddha able to found a whole new religion based on non-violence (aMmJll). lloadlcal lslamic hermeneutics, during the eighth and the tenth centuries CE, also empo~rcd intc'rpretatiol1 of the verse on polygamy in the Iioly QUI7II1 dlat actually de-legitimized the practICe of polygamy. Thus, too, was Mohandas Gandhi able to denounce the practicc of untouchability as a perversion of llinduism and the early forms of apartheid in South Africa as un-Christian. Even as this book goes to press, the Anglican community will decide whether allowi ng ordination of gay priests may be inconsistent with the pious reading of the scriptures and Islamic juristic communities will continue to debate the Shllri'a-bascd Im~mli~sibi lity of the violent ~Iobalization of JatwtlS proclaimed by ~ma bm Laden and his peers. 1 Progressivc/r:1tdical hermeneutics of rellgton provides a rich resource for understanding the histories and the fUture of human rights. Secular natural law traditions present human rights as ethical impera~ Ilve.s in a vcl)' different mooe. These arise quite simply from a 1110raV etiltcal aUdacity in which the figure of God is rendered conspicuously a~nt. Value imperative for human conduct sund now to be derived from

u ~"'". for ClCample, the IIltcl"CSt1ng analysis by C~rlcs Kortman (2003). See also, JlCndr.tl Sax. (2005).

An Age of

Human Rights? 15

14 The future of Human Rights the performances of reading human nature, no longer a sacred text. Secular Ilatllnl law thus derives ethical impentives from the givens of human nature and condition. Thus, for example, H .LA I lart famously derived his 'minimum natunllaw' nghts from certain Ilon-comingt:nt facts abom being hUI112n: all human beings are equal because all are coequally morUiI and vulnenble to palll, hurt, and physical hann, and because all of u:. remain coequally deficient in our capacity to order social cooperation according to the best dictates of human reason.J.4 Lon Fuller constructed the logics and languages of human rights through contnsting, but still coalescing, monlity of duty and aspiration.):' John Rawls derives human rights as ethical imperatives, informing the basic structure of a liberal wellordered society that respects fully both liberty and equality.36 Jurgen J7 Haberrnas derives the logics of human rights from discourse ethics. Man
dt rkht1. The ethic of human rights insists. in the contempor2ry idiom of reflexivity, that bearers of human rights critically evaluate their own interests by recourse to an ensemble of values. It emerges as a tradition ofcritklll morll/iry

/,Qmusmttlf

H .LA Hart (1961). Lao Fuller (1999). • l6 j ohn lUwls ( 1971 . 1999). 37 jurgen I Iabermas (1996). J8 See, for a rw::m sUlcment, ~ndy Brown ~nd J:mel Halley (2002). 19 The htenwrc 15 vast. I refer here, iIIustntivdy. to the eorpus of ju(hth Butler. Allison jaggc:r, Annene B~n:r, Nancy Fraser. Catherine MacKinnon, Manha MlIlIIQW, Martha NUSSh
by which the post'rjlJC momliry of practices and conduct of states, commu-

nities, and individuals (and, indeed, human rights and soc~1 movementS) open themselves to a continual process of de-lre-lvaluation. The COft ethical values (such as hunan dlgl11ty. IIItegnty and well-being) furmsh a platfonn Crom which the dominant human rights ~radlg01S (knowledge; po.....-cr fO~lati.ons) sa~d c~nsantly IIHerrogated, even though with profound amblguuy and histOriC cross-purposes. The project of human rights remains, III lIS deepest sen~. heretical. possessed of the chanstrulric prowess to interrogate all received social, historical. and polmcal truths. It remains radical !tlthe sense of being 'context-smaslung' ,40 in Its propensity to cOll.5cirute forever new, and even unirnagmed prior, contexts. At least one core value seems to command conscnsus. Respect toward the ~th ~r as c~qual hllm~n is the groundwork ofan ethic of human rights, furnlshmg universally val id norlnS for human conduct and the basic structure. of a j ust society. Th~t respect, as Emmanuel Levinas m emorably remll1dsu s, docs nOt conSist of the 'imperialism of the same,.·1 Rather, it consists III the fu ll recognition of human rights as a 'sole source ofsolidarity among strangers', conceding 'one another the right to remlljll strangers',·2 In. this perspecti~, ' h u~nan rights' emerge as an encyclopedia of multitudmous monVethlcal diSCOUrses furnishing standards of critical moralIty for t.he evaluation of all existing sates of governan~resistance affairs. Inercaslllgl ~, th~orizingjustice entails the addmsal of issues of recognition and rechs tn butl ~n ~~d the basic structure of a gIVen .society to the socle~ of s,ta~s In hlstonally evolving circlIlUstancc$ of gjobality.·3 ' Human nghts dlSCOUfSCS forever arT)' the burden of a transfonnative vision of the wor!d, which demands dIal the state (and the community of state and s~te - hke global institutions) incrementally \)('come ethial, governanc~ Just, and power (in all its hidden habitats) accountable.

).I

)3

II

I

(b) Human Rig/ItS as Grllmrnar of Govmumct Pnctices of governance ambivalendy sustam the network of meanings ~m cd 'human rights'. 'Governance', as we all know (from earl Schmitt

.

Foucault, George Deleuze, Felix Guturi, Anto-~..nJamm, ' Michel ,

N, earl tr , and • now, 0 f course G"10rg1O Agamben), is just one word but COnStitutes ma nya r:lorm 0 r govenllnentahty ' and subjection " GOvernance emerges si mu ItalleoUS 1y as a complex site ' of human rights ' affi rmative

010

..

~obc"o M . UnS\'r (1983). Emmanuel Levm.as (1969) 87, 4) jurgc-n I bbcmJ.as (1966) 308. 41

4l

john Rawls (1993) 41.

a M Age of HurtWl RightS?

16 The Future of Human Riglns

17

practices of politics and as a reg;ster of material political l~bours thaI forever

ways. They straddle rather uneasily the d«p divide between civil and

produce fonns of human rightlcssness. The normative human TIgh ts languages and logics offer conceptions of 'good' goveOlancc thou seek to assure ~rall human rights integrity of statt: apparatuses and conduct: ;,at

pOlitical human rightS and social, economiC, and cultural human nghts. I revisit this theme briefly agalll in C hapter 5. All said and done, however, theory and practice of human nghts assume that both the 'thin ' and 'thIck' conceptions somdtoul prOVIde a corpus of constraints on public declsion~making power and tht: lan~ of transparency in public chOIce. No g!obal South readers of the present work needs any reminder concerning the brittle and fungibl e nature of these conceptions. They know full wdl the dire and brute face of power that through the langua~ of'real' or 'fake' threats to public order and nationai security, culminates in extraordinary subversion ofhulllan nghts. They also know well, and at great human and social COSt, the ways in which an arrogant executive power seeks to justify the suspension of even the 'thin' of human rights-oriented governance structures and pcocosscs conceptions . m a libello~ rhetorical pursuit of social and economic human rights. Even as human nghts values, norms~ and sundards provide ObStacles to free play of power, these, at the same tlllle, prOVide limitless opportunities for i[1 Eutrywl,m (in the global North as well as the global South), as we lea~l /III 01-'0" again ~rom G~orgio Agarnben, the sovereign power constantly ncgoll.ates the nnperat~~ of the rule of law with thc reign of tcrror.~ at Iea.M from the standpomt of th~ violated. Both the 'thin ' and the 'thick' conceptions of human rights-orlentcd governance founder at the interscc_ non of the overall structuring of organized political hfe and the everydaynnsofSUte condu~ There is 110 assurance that rig!Its-lntcgrity governance structUT"CS, nomutlvcly blueprinted by the languages of human rightS rna ~ywhere fully tra~late into prospects of lived huma.n rights fo~ ali. OWcver, human nghts standa.rds and nonns continue amidst aU this to provide be n~ hm3r1.5 by w h IC - h fionns of barbaric governance, " be at least, may severely Judged. This is, I suggest, no small gain.

a meta-level, these languages, and logics address the problem oflcgllunacy of the ~r to rule. Co-natiollals :I.nd non-nationals thus rem:1.I1l entitled [ 0 languages that enable exposure of iegitioution deficit and ~n governance illegitimacy as a whole. The tasks rem.ain infinitely comphcated by, especially, the 'thin' and 'thick' constructions of human rigiu,s . . 'Thi n' constructions accentuate human rights procedurnhsl notions. These. once put in place, valorize human rights-~ponsive gover~ance structures, such as periodic 'free "and fair' elections, fo rms of separatIon of powers, autonomous judiciary, and legal professio ns. These forms do not risk any specific content. 'Free and fair' elections do nO.t legislate any ethIcal choice between the 'first past the poll' or proportIonal representation constituting human rights-oriented govcrnance. The doct.rines of'sep~ra­ tion of powers' rem ain human rights-neutral conccmlng the chOIces between constitutional monarchy and republican forms of governance, or the PresIdential versus Cabinet fonus. The structuration of autonomous adjudication remains unguided by specific human rights considerations: there IS, 011 'thin' conlXptlonS, no way of sayi ng whether hfe tenures o r determmate superannuating terms for apex justices. or specific modes of elevation of citizens into justices (through executive appointment.judlcia! commissions, or even Judicial election by public vote) rcmam the more human rights-friendly. Nor do preferred conceptions ofjudicial due process-based IIlvigilation of power guide us to any sure choice concerning the legitimation and direction ofjudicial activism. The 'thin' conceptions of ,good govc.mance', in all these and related dimel15ions, at best, prOVIde a description of necessary, but not sufficient, conditions of the rights integrity structures of governance. . In contrast, 'thick' conceptions prescribe a substantive measure of fidel ity to internationally legislated human rights values, norms, and standards. Ilowever, given the extraordinary proliferation of'hard' and 'soft' versions of human rightS, even the 'thick' conceptio ns have to choose among human rightS sundards and norms that all natio nal and s~lpranat~onal constitutionalism ought to incorporate in order to secure IIltcnlauonal legitimacy. John Ihw ls. Jurgcn Ilabermas, 80uaventura de Sousa Santos. usa Shivj l, for example, provide different versions of minimal. human nghts sundards that may impart govemance legitimation or defiCit, as the case may be. TIlelr human rights mmima necessarily reconfi~:es .the extant regimes of mternational human rightS in different, and dIstinctive,

({) Hllman

Righ15

/JS

LAtlguages

of Global GOllmlatlct

Conceptiol15 of'~ , . 'fy a conceptual m inefield if only 6""'"' governance SlgEli uccause the 'top-do • d vary fj WI1 an grass roots notions ofits constitutive clements 1._

p~ oundly. ~en autho red by, and anchored in, the practices of entatlonal and regIOnal financial institlltions the G8 and "so.,.d nonnaUve I' I ' •. ... '.... ' " servt'\ tI ~ I ~ academ ICcohorts, global 'good governance' increasingly itna~ry, Ie Illlpcrat!ves of contemporary economic globalization. On this ,as we see III Chapter 8, human rights ofindividual human beings lot

tI,·,-·

~

tsS-94S«.'

N1CQS

Poubmul (1978): CIOrgJO Apmlx:n (1998); Upcndn R:oo (1993)

An Age of Human Rights ?

18 The Furore of Human RIghts s«m to be ~t served by according an overweening respect to the needs, interests, and desires of transnational corpor.uions and the 'communities' of direct fo reign investo rs. The grass roots conceptions of good governanCe remain difficult to warner; yet it may confidentially be said that various social movements and human rightscommullities pursue a 'thick' conCeption of human rights and, indeed, go bc::yond the languages of human rights. Increasingly, movements and communities subsume notions of human rights under a wider rubric of justice. We partially explore thLS theme later in this work. Activists both cohabit and critique articulations of 'good governance' offered by the internarional fin:.mcial institutions even in their midlife crises, as also the mJatlt lmiblt such as the World Trade Organization (WfO), the North American Free Trade Organization (NAFTA), Asia Pacific Economic Cooperation (APEC), Association of South East Asian Nations (ASEAN), and the nascent Free Trade Association for the Americas. In addition, this critique also highlights the problem of 'democratic deficit' within the paradigm of supranational governance furnished by the European Union.-45 Juxtaposing the hegemonic con«ptions of'gocJd governance' with the actiVist cntique IIlvites Marx-like labours of unde rstanding, :md demystificallon, of the complexity of global capitalism. I now raise questions (some of which I attend to in this work) that n«d critical response. First , how may wt: best narrate the stories concerning the originary/inallgural global good governance? Are instrumentalist accounts that accel.l1~­ ate a single-minded hegemonic narrative accurate? S~o/ld, are actiVist community hernleneutics justified in reading/trading transformations in language and rhetoric of glolnl 'good governance' in monotonic, rather than pluralistic, modes? Third, how may wt: understand the seismic shifts in languages of glolnl good governance signified by large-scale narratives of '\Vcstcrnization', 'modernization', 'dcvelopmem', and 'globalization', variously embodied now, for example, in the rurgid prose of the Worl~ Bank, mar1cing the rhetorical passage from structural adjusunem conditionalities to 'poverty reduction strategics'? Nimh, how do these literary transformations actually address the formidable reproduction of human righdessness? Pifill , put another way, what actual, real- life gains ari~ for these peoples by the shifts in the languages of good governance-global, supranational. regIOnal, as wt:1l as the locaVglocal? Six/II, arc we justified in acts of reading that reduce human rights standards and norms who lly 45 See

the IIlslghtful amlY'ls by Pt-tcr l.cuprccht (1998), Andrew Willwns (2004), In Philhp AlslOn (1999).

and the contnbuUOlU"

19

orde~disorders of diplomatic and intcrru-tional civi l service desire within the evcr-exp.mding United Nations system, in the service of a whole variety of foreign policy. and global corporate uscs and abuses, under the cover of 'international' consensus? Stvtfl lh, and if so, how nlay we fully understand the amazing aspect of the resilient autonomy of human riglm nonnativity that interrogates from time to time such acts of expropriation of human rights in the pursuit of severely self-regarding national or fCgional interests? Eigll/h. how may wt: fully understand human rights in the formation of shared sovereignty? N inth, how fa r may one regard mutations in deployme nt of human rightsoriented languages of good governance to activist contributions? In other words, how may we trace the itiner.tries of partnership between 'global civil society>-46 and international agencies that reshape conceptions of 'good governance'? Tmth, and related to the foregoing, what approaches to the Othtr of Good Governance, namely Good Resistance, thus eme rgc?47

as final products of the diverse

(d) Hllmall Rights as ittsllm'(tiollary Praxis Through myriad struggles and movements throughout the world 'human rights' has bc::come an afCna of transforrnative political pr.tctice that dl$Orients, destabilizes, and. at times. even helps destroy deeply unjust concentrations of political, social, economic. and technologtcal power. T he transfonnatio n from the 'modern' to the 'contemporary' human rights paradigm (that I describe in Chapter 2) remains inconceivable Outside movements for dccolonization and sdf-detcnni nation. Likewise, the movement of 'contemporary' h uman rights m ust take account of the struggles for the elimination of apartheid, and movements directed to real ization of 'women's rights as human rights'. the hurrun right to difference (right to sexuaJ orientation and conduct), and the integrity of environment.

U~ndr.l. &,g (1996b) for an am.Iysis of thiS dlscu~we enoty; For cx;unple, the evtr-mcreasmgoompkx hnbgt$ ~tv."ten devdopment:lid and nor country conditionalities pmem one site ofintcrsecnon between 'hu(ll;In nghts' communities and me codes of globOIl governancc. Were the Northern donOR nO( togilm~ l st on .. -nd ~ cr equaIlIy, It IS ,eIt. t hcy wou ld remam forever IIlnocem of human ~ t.\ asplr.l.nono:r achlcvcment. T"he $:Ime nuy be $:lId concerning 'democratic' u,ttuQ""5, internationally supervised, the groundwork (as it wcre) for political n:formac~ d ",'1 1l1 Itleaided nat Ions. M .lIly Sout h -o;ose IIItcrnaUonaJ NGOs work ildrnirably, and ces'y,topro....... ckvt:1 '''''''-~'h U il lilll rig ht'l ' condmona'"m es 10 :U d and lrade pohclCs of Ihe de I.lped nations. In 5ttJung 10 COIUtr.1I1I the governance pnct)CeS of the recently 'nation-Mate,'hcte floml;aUOl1S also remam open [Q SUb)CCt1Of1 10 the emerg_ 1"1mued P r.ad t ........,: Ii I~ of 'global governance'. no rmttC"r how bemgnly presented ~ human " 6" • nC' Kl ly. : See

do

An Agt: of Human Rights?

20 The Future of Iluman Rights Iluman rights as insurrectionary praxes provide diverse maps of the Illegality of the dominant (to paraphra~ a term of Michel Foucault) and also of the llIass Illegalities of the subaltern peoples. The violence of the oppressro provides. as llIuch as the violence of the dommant. a matrix for 48 the emergence of human rights norms and sundards. Even when the labels 'opprcssed' and 'oppressors' remain problematic in erudite dl~· course, and when one thinks of violence by the oppressed as human, and 4 human rights. Violative, the issue of the jurisgcner.uive ? potential of violence directed to achieve better futures of human righ tS may be ignored at eonsidenble peril. Prescinding this, the perplexities here ~ in deciphering the upward and downward linkages between mass movements for transfonnatiol1 and their representation by an incredible variety of non· governmental organi. zations (NGOs) in dose interactio n with m.tional. regional, and international power-fomlations. T he NGOs, who so pre-emine ntiy lead these movements, vary in their levels of'massification'. This variation also marks the richness o r poverty, as the case may be, in terms of their potential to articulate the vOices of the violated and authenticating tilelr visions of a just world. As such, th ey do not yet. fortunately, exhaust the emancipatory potential. At the same tillle, these movemcntS pluralize meanings of human rights far beyond doctrinal disputations concerning 'relativism' and 'ulllversaltty' that. at the end of the day, subscrvc:: the g1obal-lllterests. in-the·malang.

21

that somehoW entails convergence of $Ute practice around specific norms and sund:lTds. In contrast, the cnneal, even radical, scholarly human nghts practices tend to view human rights e mergences in terms of brew, disconti nUIties, and fissure~ in the canonical narratlvcsofstate sovereignty and legltllnacy. They perceive International rel.ations and organiutions as haVing a dialectical reJal10n betw~n ~r and resistance at the level of ~ncy and structure. Put another way. this scholarly genre focuses upon the critical practices of non· 'sovereign' but still self-detemlln.atlvc peoples m the development ofimernatiorullaw, gene~lly, and IIltern.anonai human rights law, in panicular. 51 Both types oftheoretlcal practices have a bearing on theorizing repression but critical practice takes this as an explicit ob· Jectivc:. Howcver, theorizing repression requires, besides the authemic cry ofdeep human anguish. some considerable labours of ertldite understandIIlg of w:lYS of power and governance, which remains the focus of the dogmatic approach wi th all its 'technical' constructions ofimman rights. To be sure, a state·scnsitivc: dogmatic approach remains liable to servicin g the ends of power and governance. But it also brings to view the patho lo· glcs of realpolitik in rich detail. This is useflll---even imporunt-becausc the devil often lies in the detail!

fj) Hllmatl Rigllts as 'Cull/lre' In '!'is discoll ~, rivcn with contesution on 'ulllvc:rsahty' and ' particularhuman n ghts are conceivro as cultural systems. Every socieul culture contams beliefs, sentiments, symbols that imp:ut sense to the notion of brmg human. no matUr in how many different reg"lsters of inclusivity. Every SOCietal culture, similarly, has traditions of understanding concern. Ing what n gh ts a human being o ught to have. No culture, then, is devoid of nottons about human rights, even when what constitutes these rights nnes within the same culmTe in time and place and they vary across coffip4rable cuinJre5. Within societal cultures, distinctive legal cultures give nse 'to the p'aCt"ICC 0 f" " d ngIlts. III t h"IS sense, perhaps, human TIghts may be escn~! ;l5 'cultural software'. a 'set of mechanisms of hermeneutic POwer' . I d " " a~, III a constant y ynamlc way, new understandlllgs of what . that mi." It means, and ought to mean, to be huma,.. 15m,

(e) Human Rigllts as juritii(al ProduClioll Not all, even the most prc-eminent international lawyers, carry In and through their hfework this incredible range of human rights meanings or significatory practices. But those who devote their singular talents to systematizi ng human rights law and practice or to sculpt alternate SlnlC· tures (like the International Criminal Court) do create systems of mean· ings for human rights, almost coequally available for the ends of governance and insurrection. The dogmatic tradition of scholarly human rights discourse ispnlde7JIial in the bcsl--even Thomist, as well as Dcwyanso-senses of the terlll, stressing the evolutionary chanctcr in the em erging law of human ri gh~. 411 I h)ve ~Iopcd tlllS theme elsewhere: see Upendn. BlXI ( 1987). 49 I mvokr here Robe" Covt-r', (1987) disuOCllOll belW«n '.Ium.8Cller~lIve· and Ju n spathlC' violence Sec abo Cluptcr 2. 50 See ll.K:hlrd Rony (1999) for pngmatK: notions of prude-nee as devdopcd by John

D<wy.

" Sec, 52

Ihlaknshnan RaJagopal (2003).

t"Ultu~IM'ilalklO (1998) 273-85. &11011. of course. dots nOt address human nghts as

the ~v.'C::' I~rc. It enilbks us no t o nly to 'understand but m domg50 helps us prodw.:e mcmbe

rs

~at unckrstlnd' (p. 274). It 'prodw.:es the hemlC'neuuc power that billds a CUlture tosetl1er' Illd nuke, 'cultural convt'nuons possibk' (p. 278).

An ~ or Human Rights?

22 The Fumre of Ilulnan Rights

These rocicul human rights cultures relate to glolnl cultures of hllman rights. It is trivial to say that they arc shaped by the global cullu,res and in turn shape them. The peninent question relates to the perceptIon and the reality of tillS mutuality of detemlination. In an ~ra of ascendancy of the global cultures of human rights, socieul human nghts cuhures.an'cu~ late relations of both submission and struggle. But cven at ,tillS level sensitivity to the tyTallny afme singular is entiai. Corrcsp<;>odmg to the many socica.i human rights culturcs. ~iv~rsc global human rights cultures are emerging. The reb.tions of submission and struggle at all levels arc intensely complex. The cultural software of global human rights cultures is not, of course, exhausted, though typified, by enunciJ.tions of human rights norms and standards. There is more to global human rights culture than ca~ be exhausted by the often, indeed all too often, Iifo~ texts of !lUn:un ~gh.ts instruments. The kiss of life is given by interactions of soh~anty W1~llIn the emerghtg archipelagos of human .rights activism i~t the Umted NauOI.t s system even when increasi ngly domlllatcd by sovere~gn sotes and now, III effect. privatized by meta-sovereign global ~orporatlons. -:he global cultures of human rights remain ceaselessly dnven by the NI.etzschean Will to Power of mynad NCO initiatives. They also at the same ume arc ~ually so driven in the 'post-Cold War' en by a solitary hegemon, fostenT~g Pax Ameriana. The fallout of this synergy of counter-hegtmol1~cs IS the constant rewriting of the societaVcultural software of human fights. On this view, then, it would be odd to regard global human flgltts culture as (to borrow an evoc:uive phrase from Sharon Tn.wtt~ m the context of pn.cticcs of technosciellce) dIe 'culture of no culture' . . ~ou~, those who contest the ideal of the universality of human fights mdlct global human rights culture precisely in these tenns. ~I available evidence, however, points to the reality tlut the global hunun fights cuhure, far from being a culture of no cultures, is a culrure of many cultures.

or

23

power and hien.rchy, allocate compctences (who m.ay speak), construct (orolS (how may one speak, what (OntU of discourse are proper), deternlille boundaries (what m.ay not be named or conversed about), and strUcture exclusion (denial of voice). What I call 'modern' human rights offers powerful eX2mples of the power of the ngllts-talk tradition. In COlltnst, whal I call 'coO[emporary' human rights discursiVlty iIIuslntes (though nO[ always and everywhere) the power of the emergent, countervailing subahern discoursc=. When thaI discourse acquires (in moments of nrc solidarity) the intensity of a discursive insurrection, its managcmeO[ becomes a prime task of human rights diplomacy. Dominant or hegemonic rights-talk seeks, but never fully achieves, the suppression of subaltern rights-talk. H uman rights discursivity is marked by complexity and contn.diction becwcen (to invoke a Filipino template) the statist discourse of dIe educated (lIIustrado) and the subversive discourse of the indigenous (I"dio).55 It is this vital distinction which we need to address in Jurgcn Habcrmas' germinal endeavour to assign to the 'public sphere' the future of human rights; that is, the belief in 'the procedunl core' of delibcntive public politics. 56 To put the point simply (but, hopefully. accurately) such practices of politics must e ntail equality of discourse between the lIIustrada and dIe I"dio. This, in mrn, presupposes that the dominant powerstructures arc a/rNdy constnllled (or that they could be so significantly constnllled) to strive towards equal dignity in discourse between the htcnte and the ilIitcnte. the haves and the have-nots, the tormelllors and the tormented, those who suffer from the lack of the basic necessities of life and those who suffer but only from the surfeit of pleasure. Further, discourse theorists often maintain that discursive pnctice COnstitutes social reality; there arc no violators, violated, and violations outside discourse. But it ignores or obscures non- discursive or material practlces of power and resistance. This talk diHmbodia human suffering and-now, for future amdiorativolredemptive purposes, whose status (at

w-

V. Discursivity By 'discursivity', I refer to orders of both e~lldite. and lay. (everyday) practices of the 'rights-talk'. Righ~-talk (or d.l~urslve practices) OCCllr'i within traditions (discursive formatlon.)S04 Traditions, themselves codes for 5J Sharon Tnw«k (1988). Sol For OQmple, nghu.talk (dlscurslvc practlcc) glVc me 10 dls~;nCt, tve n If rdatcd.

n:gllntS (dISCUNIVC formations): the CIVIl and political nghu n:gllllc III IIIltrllauonal law IsdlStlllct from the SOCial, cultural, and economIC nghts rc:gJllIC. The W3y5 III whICh discursive: formatlOlU occur deltmllne whal shall count as a VIOlatlOl1 ofhulJUlI TIgh ts

The pmhibulOlI , ' h d __ , . agamst romlre, crue, In uman, et>' .... mg pumshment. or treatment In the CIVIl and political nghu formation also prohibits nghts-talk.. which equales ~blY.lIIOII or domesllCViolence as a vlolarion Ofhum;1n nghts. The latler arc: oonstICUlcd ;lJ \~IaIw)1I olily when dlKUl'SlVC boundanes are tl':ll1sgressed. ArllhonY~lwiss (\998) 104. I b1x:rmu' 'post.mebphV
""illS.

An Age of Human Right:!? 25

24

The Future of Hmmm Rights

least from the sUlldpoint of lh~ that sufTer) is vrry oosmrt, j,ulmJ 10 a poilll of (mdry of IlftOry. The non-discursive o rder of reality. the materiahty of human viobtion 15 just important, if no t more so, from the sundpoint of the viobtcd.S7

VI. Logics and Paralogics of Human Rights By the use of the notion of 'pan.logics', I connate the notions oflDglc and

I

II

rhetoric. Pandigm.:l.tic logic follows the 'causal' chain of signification to a 'conclusion' directed by the major and the minor premise. Rhetorical logic does not regard argument as 'links in the chain' but nther as legs to a chair,58 Wh2t matters in rhetorical logic is the choice of topoi, littrary conventions that define sites from which the processes of suasion bt"glll. These arc rarely gove:rned by any pre~given ropoi but, rather, dwell in that which OtIC ,hitlks Ollt oug/1i1O argllt about,S,) Hllman rights logic o r paralogics are all about how one may, or oug/II, to construct 'tedllliquts ofptrsucuioll [aJ]

a

IIIt'i1llJ

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-
(1996) 113. 51 JulIUS Swot (1964) lV. 59 Exprcsstd bnl1untly by Umbc:no & 0 Ihus: For cxample, I em argue as foUQW5: 'What others ~ havmg been Ukcll av,r~y from me is nOl: their propeny: il15 wrong to take from othel'$ wru.115 thelt property: but II IS not wrong 10 ~torc the onginal order of Propeny, puttlllg back InlO IllY lunds whal was onglll:l11y in my hands' ? 'But I C~n also argue: 'RIght:! of propertYt arc sancuoned by the xtual posllC!ililon of the thing: If 1 uke from someone wlu IS actually In d1elt pos$C5sion, I comm" an an aga inst righ tS to property ~nd therefor<: Ihefl.' Of course, a third argument is possible. namely: 'All property IS ll1 per se theft: uk.mg propeny from propcrty-()wlleN means r<:slormg equlhbnU violated by ongm~1 theft, and ther<:forc ulongfrom the propc:rutd thc fnnu of the" the ft I~ not JUst a right but a duty ', Umbc-no Eco (1995) 104 (emphasIS 2dded). toO Umbc-no Eco (1995) 105. I bolTO"N Eco's phrase: explaining the u sk of thew"' III

gentnl.

The human .rights wt-IIW that enacts and enhances these techniques of IS multlf,mous, contingent, and continually fragmcnted. That we",-JS i!> both an arufact of power as wel.1 as of resistlnce. Iluman rights d,SCOllrst' relTl2nlS, In order to be such, rrtthOOy J'l2ffWII. It cannot exist or endure outs~de .t~e ''''Cbs of Impassio ned commitment and networks of CI'tltiltlli"l soltdanllt1, whether 011 behalf, or at the behest. of dominant or sutul~m ~Ia.s.scs. ao.'h claim the ownership of a trmuformotillf vision ofpo/itia, cf Q/ltlflptltlOlI of posslblt' hW1U1II jillllm. The hi.
powe'"

VII. Future(s) of Human Rights Af sense of unease haunts my heavy invocation of th, not"Ion 0 ftiIeeIUture .

:r'

o. human nghts. In ' a sense, this future is already th, y-'I " h ts _ of h uman ng manner, andc.lrculilstance. ln a sense, what may constitute the future :::ry of human nghts depends on how imaginatively one defines both m co.ry and movement, the challenges posed by the processes of giobalI~on. athlrea~y we are urged to appreciue the 'need to relocate' human n~"b processes 0 f c Ilange.," From tins vll'U1tV\int what __ , III cd current d' - . u S lIlan ate IS the verv od f " - "" r- , trjIeci Pr . "I. me a smull/rut adJlmmrnl of IIlImatl righls n.therlll~~ak ~:;:=ts ?f r~c~mg moral languages of human rights appear not to th fi ur globahzmg' human condition m W2YS that these did a Gandh~, orerunncrs and fo unders of human nghts: from a Grotius to

A eonU':isting rights futur"" visi onI' stresses ' rooted Utopianism'. It construCts human . W2YS 0 f Imagmg human futotes If tech.. .. as ental.Ing . non-t« h nocratlc nocrane Imamng toke r. " . forms md stru D' s or gra.nte d ' t h e persistence of political non~teehnocra~~rcs, .at le~t sho rt of collapse through catastrophe', the citizen-n'"I~,. ,W2ys denve sustenance from the exemplarv lives of the D' illS at work by eithery deli, al~u·dst us ' w h0 embody a refusal"'to be bound .Joy in communi renee or aeqUlcscen . , and 'relate fulfillment [0 . . ce to . stltlsm 10 ry, !lot matenalist acquisition'. 62 IS work straddle . bt-tween the glob r ~ llllCCrt2l1lly the Illany worlds of human rights the Vision of to a IUUon (doomsday) possibility of human future and u plan transformation animated by the exempb.ry lives of UN Conllll'SSlOn on Il untan Righ u (1997) "~ Richn d Falk (1995) 101-3.

.

26 The Future of Human Rights

An Age of I lum.m Rights?

countless ClUzcn_pilgrims.61 Yet. it su~sts that human rights, as Ian. gua~s of power and of insurrection, have not onc but many futures.

Vl II. Suffering Save when expc
I\

\

6J l>rofessor P.tlk mentIOns Mother TelT~ BLshop Desmond 11,1Iu. Paulo FreLre. I..cch Woilesa Kim Dat Jung, and Pctnl Kcll)\ UUI alollgo;idc: these: charismalie figu res there are '(~untlcss other women and men \O,'C will never k.now'. Ikhind every legendary human TightS life lie the lives of hundreds of human beings. tiO less exempbry. The a sk of IlLstOrtography of humall righlS IS to roll back the order.. or atmonYTllLutton. Th ts ask geu comphcated In some troubiesollle ways by man y a media.poroul UN-accrcdlled and sdf-cerufied NOOs who obscure from VLew the unJu~ moral heroism embldu:d In ev.:ry
27

)egiomatcs only for:ms ,of impos,itiol.l of secubr suffering. Howevcr, even this impon ant distinction rcmams Inherently unsable bcOlUSC it sunds nurkcd by m.any a boundary between necessary/ unnecessary suffermg.67 not alW2YS fully sensitive to the problematic ofculturaVprofesslon.. 1appro-

priation of hum.an suffcn ng. 68 C rucial for prescnt pu~ is the f~t that ~ hUlmn nghts instrumcms. r~ mcs, and dlscurslvity cnOlict distinctive hlCrarcille5 oflcgitimatcd pain and suffering. Statist human nghts regul1cs scek to legitimate capital punishment (despite the nomlativity of progressive elimirution); provide for suspension of h uman rights in situations of 'emergency' (howsoever nwnccd); promo te obstinate d ivision between the e::xercise of civil and political rights on Ihe:: one hand, and that of social, economic, and cultural rights on the other. Similarly, some global human rights policing. via the e'mergcnt ~t-Cold ~ar regimes of 'sanctions' , and overt m ilitary interwn~on causlllg maSSIVe, fl agrant, and ongoing violations, is sought to be Justlficd III the name o f making h uman righ ts secure::. Even non-statist (and alMt sight ' pr~ess ivc') h uman rights discursivity justifies imposition of hunun sufferlllg In the name ofself-dctennination, 'liberation', autonom)l and Kle::nuty movements. Further, contemporary proces~ of globalilatio~ C'..act a new dramalUrgy ofjuSfifiabf~ human suffering III WoI)'S that re::nder human rightS langua~s IrrelC'Vam 10 thC' emC'rgent new thC'Ologics of free trade and mvcsmu~nt.69

llJC" visio ns of the future of human rightS depend on our po\\-er not

~ fUme a~ order of ~I but in our ability to articulate a normative 0( b concC'mmg the ethIcal unjuSfyUlbliry of ecruin fonns and formations umao suffcnng that the ~mc of evil incamates.

~~

~

IX. An Age of Radica l Evil as well as an Age of Human Rights

rrom this Stand . . . . Ag.:- of Hum p?lnt, I~ IS wurth TC'QUmg. over and over again, that the This Ka . an ~ghts IS also, at the same time. the Agr of Radical Evil. ntlan notion 1...• . • I ~" ~ I ·1 uc;ars reIteration m I:mnah Arendt's C'nundation of • ...... CVI 3S a ·st II . bunun be' ructura e ement III the realm of h uman affairs' in which 10 Punish I~ a~ 'unable to forgive what they cannot punish and ... u nable at las turned OUl to be unforgivable'.7lI 'All we know' sh "

....

''"

.

.

Gbsman (1996). ~, for elQ nlpl Ani . _ _ OJ 6 ~d 7. 1:, IUt KklOlIlal1, a/ld J~n Kkmnun (1997) 25. See also a Ut lce

111 S~hen Gill (2003 ~ IlannahAtc ); Jane Kelsey (1999. 1995). See aho Chaplets 8 and 9. ndl (1958) 24; Carlos Sanllago Nmo (1996); J~n Copjcc (1996).

An Af!j:. of Ilurnall Rights? 2tI

The

Futtlrt

of Iluman Rights

maintains, 'is that we em neither punish nor forgive such offences and that they, therefore, transcend the realm of human affairs and the potcntlalllle~ of human power'? ' Arendt wrote in the aftermath of the Holocaust and the inconsistently heroic moral ways onts rcdrcssal that led to the j,lJ./mtion of the Nuremberg (and Tokyo) principles. These no doubt, paved the way for addressmg. III some normative modes, the CQlll5trophic practices of politics-natiolul and global since then. Since then, tOO, practices of radical evil have been UIHversalized, and stand innovated through many a gulag. The radical evil that we may neither punish nor forgive has grown apace. But, curiously, (at least, from a 1-iumean standpoint) the moral ought stands derived from an illlumum is. Put ano ther way. radical evil is the womb that nurtures the embryo of the 'contemporary' human rights. The notion o f f3dical evil provides, at one and the same tillle. the dynamism for the birth and growth of'contemporary' human rights as well as intimations of their mortality. tn coping with violations that exceed the possibility of punishment and forgiveness, situatio ns o f radical evil (as we shall Stt shortly) also take us beyond the human rights nOnl1S and sun· dards they help us establish. Even as sintations of radical evil accelerate nOnllative consensus against such evil, acntal ways of handling the aftermath of t:ldical evil lead us to action that fl outs, over and over agaUl, that new-born human rights-orientated nOnllativity. On this tcmin, the 'IIIOIIU(' (in the sense of violent nonnlessness) of the perpetrator unites with the aI/emit (in the sense of the powerlessness) of the viobtcd.72 lfwe were to duuk of radical evil in these terms, the future of human rights must indeed, appear very bleak. Radical evil is imposition of suf· fering beyond redress, remorse, rights, and even recall. Perhaps, dlis IS W~lY it appears unwise to think about colonization (and its Siamese tWUl, imperialism) as an order of radical evil in the same way that one dunks e of it in the contCXI of modem genocidal politics. And, perhaps, the sanl pntdential m ood chancterizes our unwillingness and inability to name the Cold War as an o rder of radical evil. There has been no endeavour to llCS establish the pervasive Cold War vio lation of human rights as crll against hl1lnanity, no acknowledgement of responsibility, no conversation about fOnlls o f reparatio n and restitution. This organized moral amnesIa undermines the very foundations of contemporary human rightS; human rights cultures m ay not be rob ust fo r the future w hen based 011 7L Ibid. 12 In order w grasp tins obsc':rv,ltion one Ius only w unbcanbly rcblc Ihe cnncal cvcnu of 9111 and the crud Mghamstan and Iraq arlCmlalhs.

on~l( to

~ /

horrend~

COf11pn=hensivcly org:mized politics of oblivio n of the recent human violatJon. The very conceptualization of 'ndlcal evil' may lead us to dunk of its Other b the rouune, everyday CV11 Wllh WhiCh, and somehow, hunun nghts norms and sundards may wrestle more e£fecuvdy. There are nuny reasons why wt" may not kave this Issue uncxanuned, at least from the sWldpomt of the suffe ring of those violated. The notion of radical evil addresses, at least m the context of the emc:rgcntilltemariOlullaw, the problem of how 10 dC1lI retroactively with massive VlO.I.a~OIlS ?fhuma.n righ~ ~ the exceptional state or regime. In this sense, It Idenufies radical evil WIth genocidal practices of power. It focuses juristic and popular energies on the problem then of how best to temper justice with mercy. truth with reconciliation, the past with the future. But radical evil also flouri shes autonomously outside the multiplex ~~es of ~olonialism , imperialism, and the Cold War, though in some Sltllauons sllll detennined by these. Necrophilic fo nllS of power indwell many a structural site, a fact mercifully (frolll the standpoint of the vioIued) sol11e:vhatcognized in the contem pot:lry international human rights law md Jurisprudence thai address: ,0

and

- CiVil socic:ty-sanctioned, culturally groundcd,lllnnan violations such .. the oppresSion of wome r)", ~Tbe dhanr~.u~ctio ned ca5te sr.;tem, which sull justifies in e mbodied

ng the Vloianons o f those born into untouchability;

rm:..Th; ph~t of the forgotten peoples (indigenous communities under mustt;; extinction, recalled only as sites of human genetic diversity that rescued before they are extinct);

• ThIe p rgh IQuaI i t of millions of women and g1r1-child rcn condemned to

•C

s avery through forced trafficking in women'

.

•

militia;onscnprion of children and young persons into state or insurgent - Pcopleslivingu n d ercon d"Itlonsan d contexts of mass impoverishment.

ihe danger , radical '} ' of co UNe, ',s} t lat I h"'s kind o f dlaspora of the notion of eVJ conCiseat' . notion is called Ii r . e~ ItS majesty al~d power. But that diaspora o f the from the" stand ~I III cont~ l11porary human rights engagement, at least riahts de ..... d _~ 1t of the VIolated. The future of'colltempot:lry' human ... ~11 s, Irom this stand . a great d ea I more on comprehensive Ubckn;~nding f ' . pamt, IIrophlc po]' . 0 t:ldlcal evIl, both as the practices of conccntt:ltcd cataItlcs and as everyday structural violation.

30

An Age of Iluman RightS? 31

The Future: of I-Iuman RightS

In this sense, the quest for relating the future of human rights to human suffering remains fateful for the fumre of human rights; human rights I:mguages, being products of intergovernmenul and. NGO politics of desire of necessity problematize some forms of suffenng over other!>. 111 panicular, m01'21 negotiation of suffering sec~ to redress the 'pa~t' of Olttl'2g':Ous human violation through constructions of a future liberated from systemic propensity for such violation. Such constructions entail contradictory happenings. If the vIolated acquire nartati~ voice. the narrative: autho rity resides elsewhere. The truths that emerge are no t insurgent truths but truths that stand nationalized; the past is allowed to speak only to scrve the futll~e. And yet, the:re is no assurance that that future will be rethercd to makmg human nghts secure. Nor are the violated put in a position of any authority to sculpt that fmure even as they yield to projects of national reconstruction of their biographies and histories of pervasiv~ huma." suffering, which have: irrevocably extinguished their life projects 111 the htany of torture, tyranny, and terror. I refer here to the devices, barely a quarter-Celltllry old--of truth and reconciliation conllnissions.13 These mark a moral, and human nghts, movement forw.ard. No such devicesemergcd in the wake ofdecolomzauon. lin this day, no imperiaVcolonial power has even thou~~ht it poss.,ble to apologizt to the ex-colo nial peoples! Nor are any reparatio ns ~en Imtlglllablt. VicwW from this perspective, the device-led by the nations of the Third World-ples emer~ only as uaffalt'5 before C01nprOnllS structures ofaccountabiIity, in the shaping of which they are accorded no primary voiu. Their testimony becomes the raw material for 'natio nal rc~ construction'; their primary suffering and violation becomes ' nationalized 7) Sec Marc Oskl ( 1997): H arvard H uman RIght! Prugnm (1997):

pl"1~ilb

D. I.h yner (1997>: 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 EUrop<' In my referena: T7 Oclo MarqlUrd (1989) 22-37. 711 Ibid., al 49-57.

to

it, and

~. non formations! ThiS 1$ a precIOUS I'Cmlnder of dlslmctlon bctwttn th e 1c!lmpen;t1 and IUbJuptcd/sumltem rullO'1S and peoplC5 of Europe.

Two N otions of Human Rights 35

34

The Futurt of HUlU:1Ifl Rights

It remains important to identify at the o utset the strong and the weak hegemonic claims in the stories of the origin of human rights. The strong claim (I name this as the 'impossibility thesis') insists that human rights traditions 'could only have originated in the West'.' The weak claim comprises twO ideas: first. human rights traditions 'o riginated historically in the West' (the historic claim) and, second, human rights 'have been propagated from the West' (the evangelical claim).· Put together, these three claims inflect the domi nant diSCOUrse concerning human rights both on the platforms of governance and resistance.

(a)

TIlt

Eva'lgtiila/ Claim

The point concerning the evangelical claim is not its accuracy but rather the nature of politics it represents. Both human rights and religious evangelism invite the distinctio n between 'the qualin- of the message' which may be 'intrinsically sound' and the 'role of the messenger', w ho may be 'suspect o r obnoxious'.s Most activist communities in the global Somh regard the role of the human rights messenger (the state functionaries of the capitalist societies of the western world, and development planners and programmers including those of the World Bank and the International Mo netary Fund (IMF» as obnoxious. Inded. human rights activism thrives o n its power to demonize the messengers of human rightS. The quality of the message also constitutes a problem for human rights evangelism because human rights are propagated the most by those vc;.ry predatory powers which respects them the least in their dealings with othe r nations and ~ples . The predatory character of the message commences its lo ng career with the notion that subordinated/colo nized peoples lack qualities that make them recognizably human. The peculiar notion of the White Man's Burden aimed at tr.msfonning 'savages' into recognizable human beings who then may be considered eligible and wonhy recipients fo r the 'gift ' of human rights. The White Man's Burden , or the 'civi lizing', mission , conceals from vic:w the 1ustifications' for imposition of extrao rdinary violence sustained across generations. Immanuel Kam presented this notion with considerable epistemic violence when he, in manifestly gentle teons. described all this as a process in which certain 'guardians have SO kindly assumed superintendence over 'so great a proportion ofmankind'.6 It was } Joh3 n G31tung ( 1994) 13 (emphasIs added). • Ibid. ( 1994). 5 Fred Dallm3yr (2002) 173 ( 1998) 7 1-.3 (0

Imm~nud

Kant (1784) 32-50.

a kindness " I . , that. also killed, This idea of t u I c: Iage d ocs not dle Wlth deeo alllzatlo n; It assumes othe r myriad and at tllnes e ll ' I Ii even in a V3Stiy decolo nizcd world. ' • qua yVio elll arms

I can note here " Iist 'Wild ~t' . . only in passing that nOIJ"U" st 1IIe aplta bm aIso t he• socialist ~St' proselytized its v f _._- all hununs __ ..I • erslOns 0 mouyng mto emanopal4."'" bemgs. The capitalist 'Wild Wiest' constructed r I . hum:in . t

Its evange lea miSSion as requiring violent reconstitul,on of I

ro r--'Th" " .EU'fi'

~ n a,h

. 1.._ ' " ' tie nOIler, so, u .... t It may emerge as a worth y rcclpu=ntofthe . noble gt t '. ~s reconsmuoon proceeds for vast stretches of time and s ace nurkmg m~ugu ....l mimetic riv.alry among the leading Emo .p who conceive coloniution as ;II m oral imrvor",-ve r h pean moons.; 111" ... 8 rlo r uman progress IS acq uISitive mimesis' translates later into the Cold ttl.. ' h "f 'nO nc" ed w-.. r sp eres 0 I uc" gIe.bmI' tum, succe ed by paradigm Sh'fi f its 0 comemporary cco. nOllilC " - of human _gI h 0 a Ization .and, .now ' the 'war on Ierror ' . H Istones n Its t tiS remam msensible outside the glob I . . . Empires, old and new. a narratlVes/lllston es of

~oci a l ist human. righ~ 7vangelism conceived all hum.an bein

ex-

~o::!~~;:~lrgeOIS ca.pullIl lsm as. illsum~iently human, inviti ng P!Uits I d h e rcvo luuoll~ry proJcct of Violent overthrow of global cap;ta Ism an t e transformation of the . - bo UrgcolS- human illlo a obal - I' .. msu m IClent

gl socia ' Iem project in critically . 1Sth comrade-
~ a~ owev~r, the ~Isslon of human rights to the 'West' itself Its civil a~d d r~;IC~S assailed the capitalist 'West' that vigorously reduced po mca nghts to the sacrosanctity of the rights to property

's", """, •dRobe" Yo ' ung (2001)"• flo u~ventura de SoU$;! Santos ( 1995 20021" M h . , Ie x l 8 an AllIomo Negri (2000).

Rene Glrad (1978 1986) cd IrIJme~is th~n mere Iml~tio I I ~K3leS liS collcemmg Ihe 1110T(' complex 1100ioli of on Ihe Olle h~nd and viol r (Ie r:ve lops further Ihe rebllon~llIp. betwttn mimeSIS AcqUI51U\~ mirll~1.S m vol enee, VlCtlll1i!9=. and tnrth of the ~red. 011 the other)'

......~I from one 3nother al:~ ::~~f ifT~rrs where 'two mUllelie rivals attempl ~ ~ sU/!&C:Sts dl" 'CQn ~n'.

" ,~ use they desiglule It dcsrl"1lble 10 One ~llOthe,' even SOCl3 t .-.... ~, tmI y be 3m·--~ "",n:u by thephenomenonofl1umctic"

Two Notions of Humm RIghts

36 The Futurt of Human Rights

. . d raue rights of the people to and contract; It proselytized collective e~;d cost of b'lliags. Of cou rse, be and to tc=main, human, ~n at the h . :ained s'"'tic-9 the ' . I th apiuliSt conttptton fern • . d . ctices have varied neuher the SOCia 1St nor e f cvangehsm an Its pra conditions and contexts 0 . . . of states and peoplcs within enonl1ously 11\ tenns of coercIVe l.naOl~U~atl~ng the various phases of the the 'spheres of influence' consutute unn Cold War. ~...I ' histo ries SOlve to Sl.y that human herC' the o;traorumary d I d o no t p ursuc . . ' of future history--complex an rights evangelism rC'mal~S-II~~~a:~ights millcnarianisms that signify contradictory. The conflIcted. h d th- 'truly' human condition h . n ofbemg uman an "and rcprese,lll t e no tlo r while dialectically providing scope for diminish .dlfference and ~Iura I~ If far too many violem sins against insurrectionary human ~ghts ~ I · f I um.n rights both by the 1..muted In tIe name 0 I , peoplc Ilave uo.;en com .... rv histo rv also records many . d. "'"Ill powers con tempo, .., I 'I do mmant an ms ur>:,.' h I· n -specially through the . f human rig ts evangc 15 1 , .... a benign practice 0 I ·ghts NGO Human rigllts futures, . . ' of many a Hunan n . 1l1lSS IOna ry practices f t heswo.d promoting a new global II be nthepower o , plcntintde of the the SOli in ~ys that may harvest future human n gil

~:~~ r~~~~:~ and~cc

ploughshare.tha~ ~~:W. replerushe~ (b)

nit

Hislon(al Claim

. . I" h er remains indetcrminate--even exposed The ' hlstoncal c allll , OWCV , th. Western' societies and d tratlon To say that e nonto contrary emons '. f h man rights is patently untrue; I I n dId not possess notions 0 u . I ood cu tu . the idea of being human, and having ng Its, !it they did. l-~~er, a s-the langua~s of theistic natural expressed m different la~~ ~h man rights in the 'Western' tradition law. 10 A close I~k at t~e .;gt,n:f~u;an beings were also sim ilarly deri~ed. alsoshovtSthat natu~a~ historic claim that human rights. tradition::. One may t~en say . Ties mainly that a particular type

th:

:;~~:;~d~~~~~;'::;i~t:7t ~;:si,~~~~T.:i~n ::~i~. ~i:~~:'r~~:~~~j~,~~~ human righu) ongmated IS IS a ts t1~ere. . worthy subject for future tllSto n ans of human ngh .

·hl. Ii I d 1 prophetic rewlIlgofeoo vc r9 See: Guyla torsI (1979) fOT all 105'W, t u ,an d~Je . n Iloabt;",as (1996) for an h o;ach~ to tlgl1ts: an urgt gtllce hc:rwc:to t e: t\Oo'O appr , ed t 0, 'lQCphst' clemeots Wlth!!l the: bourunde:nl
gtOIs Ideology and pncuce:. ( m). ArvlIld Shaml.ll (2003); t..c:roy S. RoullJcr 10 Sec. fOf elO.111plc:, Tu We:.mmg I . (al.) (1m) .

(()

77,~

Impossibilil)l

37

n~is

T he stronger claim sigtlified by the 'imposslbl lity thesis' (hul1un rights tr~dltlons r~l11a in irtlpcwibk of o rigin outside the West') links causally the el11~rgcnce of human rights traditions With the rISe and growth of capitalism . Such traditions, It is said, remam Impossible of emergence III the pre-capltalist soci.1 fonn.tiOI1$ and socialist formatio ns. The socialist fonnatlons begin their itineraries by the revolutionary overthrow of the sancmyof property rights as fu rnishing the quintessenc~ of human rights. T he e;lrlicr social fomlation$ (or modes of production) wert dominated by conceptions of human duties or responsibilities, not human rights. Further, prt-<~pitali st fonnations lack not merely tr~ditions of human rights btu even 'his[Qry,.11 From this perspective, certain ly, the prt:-
"

12 See:, for a wn hc-ring crlllque:: of tillS po5mon, IhnaJlt G uh~ (2002). 1J Alrc::.wy gc::oe:ratly nDled 111 Chapler I ; sec: Oil$(), DaVid Ingram (2003). buw 10 the:: Arislo!thOin sense:, Ihll c:once::lVt"s the: e:lUun as a bemg who \mows both to rule: and how to be ruled, Plulhp 1\::1111 (2001: 104-24) dcvc::1op.s 010 lnsightful lrWYSI$ offrcc:dom as 'fitoc:u for rc::$JlOltsll>lhty' 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"
~"',

~ 'impossibility thesis' crystallizes the commonplaces ofEurocentric~kast, ~ree.cemuries o~d-thought that smacks ofovert epistemic l7Ic1sm.

thesiS disables any IIltercultural, multicivilizational discou~ on the gmealogy of human rights. From :1.11 this, it is a but :I. short step for the ~~all ~est' to impart by:l. mixofpersuasivt: and coercive means to the n.eStIItlemftofh ' hts. n"liS III turn also contributes to a reflexive SOc "': uman rig r.a earlllng loss on both sides: the givers and the receivers of the 'o1ft' IIOWever bee ' 0' , ....... .' ause a1/ t1atwns amI ~ples COlli! tn/wlllot! riuhts as tqllal strOll"'"' ~ ...... temlc h T . b · ;:. <S"~' bon UlnJ Ity remams a aSlc postulate for intercultural communica~t the service of the future of human rights,

..

;aoJoh~n Galtung (1994) 13.

~~~~ Galtung ( 1994)

13. h 1$ SPbm'''1 to frII/i.u that Ihe~ wotd!i were written act'n.tmg Second Gulfw,u and the inaugun.1 '~l war "" terror'.

Two Notions of I lumm Rights 41

40 The Futu~ of Human Rights

The~ originary meu-narntivc leads to a kind of genesis amnesia; the ' Enlightenment' epoch that gave birth to the hbenl 'modern' nOtiOns of human rights (especially to human nghts to pro~ny, n1akms the VOWtr of a few the destiny of hundreds of millions of pd)ple). III effcct, g1ob;!hzed extraordin;!rily cruel practices of Social Darwinism , Planned dc~trucllonof 'traditions' , cultures, e nvironments, and ptopks was everywhere considered necessary and desirablc--6~cially during the long dark nlglll of colonia\k ism-in order for til(: ideas aud practices of bourgrois legaliry and rights to floun sh worldwide. The projcct of world soci;!\ism, thougl1 inspm~d by very different visions and values, followed the same itinerary for the construction of new hum an futures. So does the project of contemporary economic globalization, where free trade and commerce (so free as to make the State into a clonc of global capital, manifest througl1 the transnational corporate capital) arc presented, in the long run, as the harbingers for a secure future fo r human rights. Communities in struggle, and people in resistallce, have contested, oftcn at the price of unspeakable human violation, these hegemonic versions of human futures and human righ~. The future of human rights is serviced only when theory and practice develops the narrative potential to pluralize the originary mcu-narraUvts of the past of human rights, beyond the timespace of the Euro~an llnapnatio n, even 11\ its criucal postmodern incamations. This work outlincs the beginnings of a mammoth usk. But it needs reiteration that such an endeavour must rest o n the premise thal a/l IUllionI come tU slra"gtts 10 W wit ojprol«tion alld promo,",n oJ/wman rigillS. To say this is not to deny dut nth the Euro-American discourse made a headstart. from the scvcntet: century onwards, III dabontingthe 'modem' conceptions ofhurnan rights. But It does imply that these conceptions (as we see later) were ' traditionconstituted' and 'tradition- constitutive,21 and wcre consistent With the catastrophic practices of cruelry towards the non_Euro-American Other. Since all concepts are history· \aden, one also needs to make similar inqulr· ies, requiring the invention of'non-Vkstern' traditions of thought in ways that anticipate and reinforce the contemporary human rights discursivil)'. The progress of interlocution of'non-~tern' traditions lies, perhapS,l1l the following series of questions:

• I low did the classical traditions of thought (African,n Buddhist, Confucian, Hindu, Islamic, and indigenous civilizations) configure the notion of what it meant to be IIIIIIUlII? 11 5«, for all elaboration of thiS inSightful dIstinction, 1_ 11 ,326-&1. zz See, Jo hn H.. Pittman (cd.) (1997).

Alasd~lr Mac in tyre (11}88l

• In what ways do these traditions rdate human rights to Y.llues of equality, dlgJ'lIty, and Justice III SOCial and political rdulOllsiD • To thc exteut that these 'od ' . traditions had no Iingu""', or semIotic _nvalcnts to the m ern notions of rights. whatOlhn tro pes carrl'ed tnO!: L_ .. .,. _ _. ,l~

bunkn.

J""

• What approaches in- these tndltions toward~ gove man c~ or educ of~"C r may be said to antiCipate non-Western line rh ......s. i25 ~o uman , .... b.

between the- 'modcm ' and 'conte mporary ' human . • What I intcrplayexists d righb. anguagcs an those to be discovered in the trad mona " I taught h , H be pncuccs. ow st may we: trace complcocity and eOntl;wlctlon _.J " these? among

Aside'mfro mI all. I" this, it is indubitable that the~", " . ..... rad mons, 111 con fran caaonWi co Ollia 1 5m and nnpcrialism wh ich ,I E I'g! _~' __"''' . ' , I e n I 1tenment though,~~ lor so long, 1I11l0vated much of thc r ex;,mpk rh

::"::.:"~-=' ,~~:::~: ~,:~~,~"~::'~~I:;; -:;:~'T.:~-:~~979J . . . _ ulthc pn nclpk ofself-
-i.~

Tl'-m~I~:

(l964

...... ~n 1II~ lghtfu l daborallon of II . No.., 1I10llS of ra;dhnn/lil S ill! plradlgnullc nouons III the Buddhist and

j

of I II fon... f InStrulllcrus CI1Shrtllll1g Ihe tight 10 ;~:~"~"~:""~;d:~,"::""~UN tall ey nlllbl~h (J964). racial dl5(:llmlll

5e lf-dc'~ . _ nllln~uon , ahon, lCCnophob l~, and llllOlcrancc and Umkd Nauon~ CC$S, akan 10 slavery and forced l~bour, revisited by 'h, 'U

0

SC<'

Practl

mmu.

42 The: Future: of Iluman Rights Two Notions of Iluman Rights 43 When, If ~r, (given the present mode of production of knowledge about human rights) the 'originary' historyofhuman rights is written from non-Euro-enclosed perspectives, the future of human rights will be mOTe secure than it is now.

HI. 'Modern' and 'Contemporary' Human Rights The need for SOme periodiz,:uion ari~ in any approach to the study of history, and social theory, of human rights. The ordering principles for periodization are not readily at hand and any constnJcnon of these remains liable to contention. Were one to 'date' (I evoke the multiple meanings of that term here!) the birth of hum.m rights with the American and French Revolutions, one mayweil label the era thus bcginningas the era of'modetn' human rights. The term 'modem' here marks the consol idation of a Westphalian international law and order. It also signals a whole variety of ideological ~ustifications' for colonization and world domination. Further, it also provides a register of major developmem in industrial capitalism. In contrast, 'contemporary' human rights begin d1t~ir career with the end of the Second World War, the birth ofdn: United Nations system and the end of the Old Empire, and the rise of world historical alternatives to global capitalism. It signifies the timespace of the beginnings of a POStWestphali;,m political and legal order. This is also an era of the Cold War, in all its brutal ph~ , as well as of the momentous Universal Declaration of Human Rights, :lIld its accumulating normative progt'ny. Even when. in terms of conceptual and social histories of 'modernity. the contrast I draw may,faute de mkux, misiead,27 I believe that it offers a workable OlIpproach to the problem of periodization. The contrast between the 'modem' and 'contemporary' human rights paradigms that I here propose emerges as follows. First, in the ' modem' paradigm of rights the logics of oxlusion are pre-eminent whereas in dle 'contemporary' paradigm the logics of indusioll are paramount. Second, the relationship between human rights languages and governance. conduct and practices differ markedly in the two paradigms. Third,the 'modem' enunciation of human rights was almost ascetic; in contrast, contemporary enunciations present a carnival. Fourth, contemporary paradigm inverts the inherent modernist relationship between Iwmall rigHIs and Huma" sltjJmllg. My description of the paradigms is distinctly oriented to the EuropC'an imagination abouthllman rights. An adequate historiogr.tphywill, ofcourse, as indicated, locate the originating IanguagcsoOlUmall rights far beyond the 77 At. k~SI (2002).

In

teons of COflcrplU~1 ~nd socl..1 hlslones, see Remh .. rdt Kouclk<'k

European spacetime. J focus on the 'modem' pred~1 L __ " bo I . Y uc:cause of Its desuuctlve ImpaCt, t 1 111 terms ofsocial consciousness.n d orgam.zauon ' on that w IIICh ,may be named, clumSily and with d.... p h I ..... uman VIO anon as' 'ptt_' or 'non- modern. ' Countless vanations exist even within the Ell""'....... ' 'Vr~ n spacetIme. Moder_ OI ty w;I!o constructed there as oppositional to the)\n ' , . tradiUons ofH cllenic thougllt, as any rcaderofLeo S:;,en~ cons~fUlted by 'The Three Waves of Modemity,2tI surely kno"- Th"" odsgermma .essay, ....... e m em typically nwks the adventC ofsecularization of state fomlati·... .... p ra...... ~ ccs tha' t steddlly , ' . . but su~ l y trallSlonns the dISCOUrse on 'natural righ~ ' ' h IIUO W at we now 'h 'gh , . ~ as . uman ~ ts. DesPite rheological, iusrutturahst languages via whICh dlls translation occurs the im ..... ratives ofh 'gh' ·· 'rulllan rl ts shift their ground fr om dIVine reason and will to human reason and "':11 Th h '1!KXk- ' I b I ... . . Uste m a so em races a lugo GrotiliS with his memorable e, h : __ '-'I' (. . . . . np aslS on _ •.,-._malfa oa I mSlstence on minimization of rr: . . Francisc Vi " sUllerlllg III war) and a o Ittona who valiantly proselytized, against the Church (to the o~ ~~~y~. and the Emperor (to the point of treason), the human ts.o e I~ l(;enous peoples of the New World. Jerem Bentham's IIOCOnous crltlques of natural rights and fUrl M _ .> .~ 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.<;t numbers of human beings were excluded by this peculiar ontological cOI\StnlCuon,11 aldlough by no meal\S dle excl~sive pre~tive of '~odernity· ..ll . ' Exclusionary critena haV(' prOVldcd the sign ature UlIle of the modcm ned conceptions of human rights. The foremost hiswrical role perfon by these was to accomplish the justificatio" cf ,Iw UtYI4Sfifwbk: namely, colouUl/1SfII 2'i The theistic ~ I;fXe the origtns of human namre tn Ihe DWlflC Will; d.secular do 50 In oonnllgeocics of evolution of life 011 earth. The dlClStiC 3PProXhtS. evw when re<:ogl1lZmg the holiness of all ~anOil. IIUlst on Mln hemg created~ God', mllgt and. therefore, apabk of perfcroon m ways no Other hemg III the '" _ L L. · , _ •• ncv<'ho-soll uttC ~ IS; secular/SCK'ntlflC appro;;r.cbcs VlCW ml1nall IX'mgs a.~ COInp"'" t'~/~ n pJ tc:ms co-dClenmncd by hoth generic endowment and env\rt)I\ITleTII and;; luI\' cxpcnment;tlJon. like all other objectS;n 'nature'. These dIfferences could be (~I fIOl" been) dcscrihed III I1lO1'e iiOphlsricJ.lC:d ~nd wider ways. a t;t.k attempted by "" lumatural,st dunu,,; 11«. for ClQ.l11pk, the ovel'Vlcw by Julms SlOne ( 1%5)d 1~ :l0 See l3Iukhu Parekh ( 191:18) 1-22: lbymoncl W;lhalll~ (1983) 161- 5. UiX" r;I

(2003). 62 n 7' p,tf1C1o' )1 See I\-tcr fltzp~trlck (1992) 92-1<15; Mahmood Mamdam (1996) " . T11It! (2004). , liS ..-ll"~ » lteh.0\'1 tr.idmoil5 s....... uhted , ."nd mil. do. LI1 ontolOoglcal c"n~lTUctiO r-I-......A >. 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 l
..........

"--_

.°

52

Two Notions of Human Rights 53

Th~ FUlurc of Human Righ ts

This enterprise proved hazardo us in the extreme both for the new national governance eliteS and for those who professed radical right to self-dete nnmatio n that now perceived the claims of 'natio nal unity' as a species of nco-colonialism. The Cold War provided both a creattve slinlllIus and a bloody limit to this kind of assertion. The creationist logic of the right to sclf-detennin:uion, however, gave languabrt: to the aspiratio n to the politics of identity and d ifference withm the ' new' nations. The processes by which the right to sclf-detenninallon was eventua1ly dc_radicalized WC~ not only interpretive or semio tic performances. They were also exercises in near-complete militarization of the ways of governance, as also of resistance. The twO supe~rs, and their satel lites, be it recalled, conu-ibuted heavily to the militarization of the Third World states in ways that instinttionalized the potential of horrendous violatio ns o f human rights being perfected in that great normative workshop called the United Nations. Far from being dead o n arrival, the logics and paralogics of the human right to self-determinatio n brought to the contemporary worlds of power new forms oflegitimation crises and democratic deficit. At the samc tillie, from the standpoi nt of those d enied sclf-deU!rn1ination, the postulate of universality of human rights emerged as a deeply fragmented notion . The vaunted universality of the right to self-deU!nnination thus stands fragmented in the ~ry moment of its enunciation.

(b) Tht Cold J.%r Na wraliZlJlion

of H,mum

be sure, the rcgllnes m the: Third World also, and at the: n me time, deplo~d ,he Cold WAr Justlficauon~ for v\oiltion of hUlmn rights. In this period of the Cold WJr. we sec the: of contndiction betwet.:n human nghts norm -c:rcauo n at the: global te level (politlcsforhuman "ghu) With a cla,m, In the name: of"~tlon-bulldlng'. 10 v,ob thete: W\th Impunity at home (politics of human righu) . The unive:rsality of hu~ righu geu fractured all over ag:un along the :lXlS of nonn-c:rcatlon and e:vcry
violation.

"''''1''''',''1.'

'.N' ",,.."";0',"' pass. these word~ I ~ the sense of lived

histones of the hberal as well as soclailst societies. These presented the of the US McCarcl!yism as 'natural' in the ~)'Stematie nusof thousands of communists' (in II,donesla " 10 .L u le 19605 one example) or reigns of terror in the Soviet U mon and .......,sta'~. Ov~rall, new for~1S of govern mentality by death and IOIDOOO,POfol"'""c.s h us em erged." The concentration camp emerges as ..... eM egemomc goverrunce, providing a 'lIybnd oflallJ (md two Imru

}wve

b«Ol1lt

indistinguishable,.48

....rp,is;,,~ly, herOIC indiVidual and mass resistance ensued d ' rep res .' T1 ' ' espue m SIO I1 . . Ie contemporary' human rights-in-theuch to the practices of resistance and martyrdo . the vOICes of the violated. The . to emerge as a force questioningm the might , agalOst . Not to understand the ways in which cllis the very future ofhul11an rights. Those w ho would

:~~:~;~7:i~~:'~:~;~'~:~~:i~:~

'

,::~:-;~~~ontem~rary human

iii

do

rights on ly in terms o fimerO-pohucs of desire, ignoring. thus, the human a great disservice to the future of human rights.

Rights ViolafiotlS

T he politics ofhuman rights in the form:ative era of the Cold War invented its own ways of naturalizing (or de-problematizing) human suffering. The Cold War, consistent with the traditions of politiol cruelty in the EuroAtlantic stateS, restructured the modernistic criteria of exclusion. Those suspected ofbcing 'communists' in the claimed spheres of the 'Frt:e World' and 'bourgeois sympathizers' or 'capitalist roaders' in the claimed spheres of the socialist world were subjected to permanent states of emergency: oc the rt ign of terror and genocidal practices of politics. Enemies of 'dem racy' in o ne sphere or o f 'socialism' in the other were txtludtd from the

e:me:~llCe

newly proclaimed human rights no nus and sta da ds k continui N wi h i ' ad n r ,mar'I ~ t 1e m ern' in the emergent paradigm of the hU~1a1l rights. Human rights acquired a fragmented ' Wlthm thiS eme~llce. um-

(() Otulalvry human

of RtJ(lsm

normativity shows a ~ma rkable, even

~~~~~~~~~~::~~:~'~~:';j ' . . ..

o f institutionalized state racism. Declaration on the Elimination Con'- ' Dlsctlmmatlon. 1%3. and t nding with the Inter ..... ntton on the Sup pressio , n an d PUllIshment ' 1973 of the Crime. rife ,:resentS a memorable human rightS convergence even cam supe~er .rivalry and discord. The articulation of .,......."p,igtlhagamst raCIsm, all forms o f intolerance and xenoI" ,Urt er a whole vaTi tv f ' . ' I ' h Ii e'l 0 IIltcrnatlonal human rights standard ~;; lIC 0 t~n reflect (though, at times, also lead) the CO self-d ~ o pies III stntggle and communities in resistance ,.~teT~l1natlOn, thus. begins its IOllg march towards th~ S_te lorms. ;

WI:

54

The Fururt of

H Ullun Rights

Two Notions of Human Rights

The recent United Nations Conference Ag3inst Racism (Durban, 20(2) suggests how intractabk the taSks of combating 'racism' after aU ~nulll. Its dclibcratiollsle..ding to the Declaration and Plan of ActIon wt"rc polanzcd by activist and South govemmel11l.1 critique-and c=vtn dcnun. dation---of the Stlte of Israel for its conduct towards the PalCSllllLJIl people's Just aspirations and for the violation ofthcir hum:m nghts. Indeed, the considerable evidence: of anti-Israel sensibility that has led an b radl scholar-3Ctivlst to dub Durinn as 'the anti-racist' racist conferencc'.4'1 Unfortunately. as wdl dIe 'Islamophobia' in the: ~ of9!t t also enacted at Durban some im~nnissible racist reconstruction of imageries. Further, the claims for rcpantions for historic injustices (including slavery) raised uncomfortable concerns for those who specialize in addressing the COiltemporary forms of 'racism' rather dun their historic lineages. T he critique and counter-critiqtlc, of course, makes a serious contribution when it condemns all fonns of new global racism in emergence via a series of xenophobic and intolerant discursive feats on all sides. To review the entire Durban proceeding is a taSk for another monogn.ph . True, a social theory of human rights devoid ofcridcal race theory ill-serves human rights futures.SO ll~r, it also seems to lack dIe resources to fully address critiques. and counter critiques. of both aggressive and cruelly Vio lent forms of Zionism and the assertions of Palestinian sclf-detcnmnauoll, these Vlolent spirals of r:lIcial hatred, xenophobia. and related forms of intolerance. These remain scarcc::ly fully uldrcsscd, or redc<:mcd. III the p~nt view, by passional engagements and enngcments, even when inevitably enacting constantly bloodied and animated, intcnsely partisan. understandings. The futures of outlawry of racism, thus, offer an obsunatt agendum for contemporary humall rigllts fonnations, shot throUgil with violent constitutive ambiguities without any promise of endings, rendered the more intransigent by the violent racial stereotypes marking enactments of dIe new 999 years-type leasc:!purchase of future histories of racism. terror ' xenophobia, and lslamophobia throUgil the languages of dIe 'wars "f and 'wars Otl terror'. Even as dIe nomutive movemcnt outlaws institutionalized racism , including thc apartheid state fonnations, it also S(.'C IlIS to relocate these on fCgisters of the ncw politics oj, and for, human nghts. ed I low. amid . . t aU this, maya ncw 'Reason' for human rights be fonll and enYJOlllbed widlin the 'Unreason' of globalization and its manifold

~ Sec, Anne lt1~f~ky (2002) 65-74, who wntet: 'Durb~n ga~ us aJ1u_Sel1l1U~T1 rxi~rn. ExduslOII ~l1d lsoiatlOll of the Jewl~h $Ute III the t",lll( or tTIultllnerah~m. Durban provides ~ pbtfonll of h~te and VKlk:lv;:e, wluch \llIsht ttl oui III the n':l.Ine orfi!.dltllll!

be de;lCtlvatcd down before It corrupts the: cnUK' agerl(b or the Unlled Nall 50 See the analYSIS in l'atnru TUitt (2004) 1- 20. 37- 55.

.

55

~ms' is indc<:d a question that may well defiue d f:

the futu res of h uman rigllts.

d fi ' e ace, or e raud,

(d) Tht Marxitm Critique The Marnall . P,.critique .of boUrgeoiS human righ~ fionnatton also umvcr· sahzes Itsc I In exposmg many a genetic fau lt hne iu th bo . .c _ li od I f h ' e urgcOIs,asalso u,.; sOCIa st, m . e s 0 . uman nghts. In the con t e)C( 0 f rat h er sparse d .iScou~ concernmg M.ano.an contributions (at least in th Angl . ~ ') th I e o-Amen can sc hoi 2f•Iyh orults 'gh to e t leary and histo"" of the fi . f ' ., onnatlon 0 contemporary uman n ts, I may here randomly list the folio . f 1lIIpJICt. First, philosophic cottage industry of'left legal' m 'd~ng types 0 us aU the virtues o f dcmystifYing the Ian'" d "1 ~oursc [each ...... 52 <' _. d ' . . o·lagcS an r letoncs of h uman .....ts. 0.>«011 , post-SOCialist' as well as' st-l iberal' . . .. poK the distinct problematic of recognitioPO f ,fe~1Jmst crUlques ~ . n 0 women s ngllts as h ....~ now articulated in terms of the ',ee .. ". u man (Cbaptrr 6) TI ' d M ' .. ognmolv'redlstnbutlon d ilem ma' • 1If;, aooan critiq ues of imperialism have nu rtured

~'!:;:a~~:rec~ tdh~t .has p~omot~d r:lIdical dccoloniution of the =r~~

, vane ltmeranes of Its de-socialism 53 Po rdt .. ... coombuted forms of no . . . . u , the cn tlque nnatlve artlculalJon of I ' . 0Ia' natura! resources S4 Fijih . . . peap es sovereignty . . . . Justice, within' Inst4l! ls crucial conceptions of d istributivt" ...... MId standards may be: a ~~e colHcl~p?rary human rights values, .... dws. powerfully raised th sal II ~o remain Just . The Marxian critiq ue oljlMia t{hunJlJtJ ri~1Is S' h e ~ -m~portant question, the very question ~ has (d . th'!XI, at east III terms of nonnative discourse the iaao.ation of :a~:~ e m.~y p,hasc:s of the Cold WAr) contributed ~ the _Ittd promori .al constitutional conceptions of human rights protecon ,nunyaspect.Sofrvv;:ACO1 ' 1 .. ....... to the M . I ss r_ oma constnutlorulisms bear anoan egacy.

wh::h' ';

"~ Brown (1995, 2003) ' Bob Fine (200 , Brown and f lail (mz ' I); Upcndra Bax! (1993).

!II:

g

See, especiall R

cy ), Alison M. Jaggt:r (1983). )\ oben Young (2001). PI-...: ~re IlSung. wuhoul ade I h . of dat PUI'Jl'Osc1 the rel('Vam ,; 'II ate ISlOrlcal analysn, may mislead. But for the bou rgeoiS P . re c,:oces are: the conspiCUOUS a_ncc of rot«tion _ ~ and UnIted Naropc , rty fights III the' Imernatlonal !JIlt of Rlgl," .ndPc gh IOn5 DI..'Clar.1tJon 1\0 • • u,rQll ~ Wealth, Ihe Declu:'lIion ~on . rnu.Jlent Sovt-reiSlity over Natural Ret.Ie.. -:: the New In tcrnauo 1 Social Progress and Developmellt, the DecTh idhlnfOOl1lt,on Orde~aal~~or~'C?rder. the (aborted) Declaration on the ~ IS appens vanously. j:." e antlon on the Right to DevelopmenL ~: Prtvatc property n~~~~~lCOlomal State form derog:.ucs from the PUblic rC$OUfCes b ' the Stlte emerges nOl: JUSI as an alloarive ut as a constltuuonally authoriud ....... ~ . .. ~~", ..... mlf: agenl In Its

501 A

56

Two Notions of Human Rights

The Future o f Human Rights

Confro ntc:d by its own nemesis, the ~stemlmodern tradition ofhum~n rights has :It long last begun its new long journey of critical enga~menl with its own reactionary human righ ts-violative potential. It has achieved this partly by a.rrivlng th rough the long and tOrtUOliS process of COI1~truc· tion of a. welfare.state paradigm WIthin the bourgeois formation in all 115 contradictions and complexity, a difficult history thatJurgcn i la~nnas h~ 56 traced fo r us 10 h is ~rminal 'WOrk.

(e) New Fomu of Global Solidanty The brutal ideological competitio n for global supremacy created, dialec_ tically, the political space for solidarity on both sides for voices of civil society to em erge in variegated pursuits of the politics/or human rights. The histo ries of transnational solidarity generating new human rights cultures, even in the most difficult milieux, remain preciolls for readings o f human rights futures . From the present standpoint, 'contcmpornry' human rights come into existence with the movements for the abolit1On of chattel s\;!.very, cross-natio nal support for self-determination (at lea... t as decolonu:ation), the outlawry of war as 'politics by other means', and the expanding arcs of solidanty intemv;ning intemational working class, ecological, and fenunist movements. The pattem of solidarity that emerges is overlaid with ideological contradictIons, and not only through the I1mltifarious contortions ofEuro-Marxism. It raises further difficult questions concerning the ways of understanding the birth of a whole new form of global thought and action in which concern with hum:m rights transcends national boundaries and interlocution of political thought and theory :as S7 socially and ethically 'neutral' social practice. All this then awaIts the discovery of a Foucaldian tpisfertl~ for human rights. As offeri ng interlocution or critique of paradigms governance and stlte power everywhere, human rights become floatin g signifiers, not embed· ded in sovereign territoriality. The 'global institutionaliz.ation of human

own nght: It owns and manages national infnstfUCtUral Krviccs, rlluonah u·d enterprt~S, and SUIUtOry corponliollS, as well as govtnllllCnt COrnpill1les. Third, III o;omc

SIIUlUOIl~, postcolomal constitutionalism marks a slcady eme rge nce of lhe SI.lIC In tIJ( forml of finance uplu hsm. Fourth, !llela-Ievel SUIC F1Vc-Yeilr Pb,1U

bcrolll(: bolh tIJ( governance as well as devIces servl Cl l1g humlrl econ01m es. T hc IlistorlCS of pre-globahud South constllUlIOluh~rns n~'Cd rCITI ' from hll1mn tights perspect1V'CS, 111 thIS cpoch of nmp;Jnt globahutloll

vehicles of nallonal

CC01I01ll1C

r~

56 Jurgen I bbc::rmu (1996). ~7 1 tu,ve In I1lmd here Ihe: transition from the dictum orlkscartc$: '1 flullk , thIft!It' I .m', 10 the radIcal motto or A1bc::rt Camus: 'I rtbd, rMrrforr WI' arr.'

57

' 'files th c mter·penetratton rights',SI! ,Slgnt of dl(: worlds of the politics for

burna» nghts and the worlds of power. The violence of the Cold W:

d

dle unfoldmg ncw ~ld Wu, innovate the politiCS ofhuman fights ~~

I submIt, and development of the Cold'" r b ue' ___ by ~ _~the ongm~ b war lonn;;!Uons m aboexc=uo;unQW ythe post-Cold War ortheNcwCold R I I , . ' war. fa po itik. This capSuIe narrative IS heaVI ly sugg.:stive of the mam ( __'. 1 •. _h • . h ' ceso VWlfflCtWlthm whic contemporary uman nghts paradlgnl has emerged. It seems always the case that thc ('mergent di.seourse on human rights is h '1 JW':I.'>IUC 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~, <: which makes the st.lote InC~Illt'n • "'_ .. _. th,t order ofp............... '~--. h ·IStoneso tally more ethical, governance progressively ~ust , and power increasingly name draw heaVIly on 'd d h cultural and civilizational resources richer than those P~I e y the til'llt and space of the Eur~ndosed imagirution of human fights. whIch they aCCQunU hi e.

which these The stru-..les ~

also seek to inn()V;lte.

VOICes

-

The Practices of 'Contemporary' Human Rights Activism

.

The historic achievement of the 'contempo,racy' human ,fights ~lovt. menu consists in positing peoples' polity against sute polity; or m ,t/l( assertion and articulation of visions ofh urnan future. through the ~~t1~ of the politics for human rights, tha~ th e shrivel.led soul.ofRealpol~tlk m~t ,forever resls . I . AlIII e "me time , tillS stru~le by the. IlIStonclty t>&' IS overlaId . . r.lclices of h uman rights activIsm . I turn In the next ' ' o f contemporary p . h ood I ad chapter to the ways of this happening, wh ich c~nstltute t e m ,. met I , and message of the 'co ntemporary' human rights m ovements, In dttply heterogencous ways.

3

I. Leading Questions he practices of human rig/liS activism emerge differently in the development of the 'modern' and 'contcmponry' human rights. ,... clcasity, diversity, and direction, and their histories have been a of much lively disc ussion. The rich diversity o f human rights no rms, and standards and unending flows of interpretation ItiC"JlC' funher any presentation of the histories of human rights acwbethcr 'modern' or 'contempor
T

,,_wars,

~ 0I"....! -" hanaan

i;;~.:; (1969) 166. Althusscr offcn a nutcmlist theory ofpl1lCtlce, which I of tr.ln.dimll~tlon of dctcnnm~te g:.~n Inaterbl a detcnniTlIW

a(~fbf(lmutl()n effected by a dctennll1ate human r rodUCtKIn)'

But~ (1985).

11110

la bour using deter-

The prxticcs of'Comemporary' Iluman Rig/us ActiVism 60

61

The Future of H uman Rights 3

them to the re<:ent ex2mplcs of the Ogoni Bill oflughtS and the Zap:.. Declaration of 1996,4 tllQ I focus here mainly on a few characteristic features of PnoctlC contemporary h uman nghts :activism without, hopefully, 01 . Flfst. bcc:ause 'h uman n'gh ts " Itse If 'IS suc h a WI de- ran b'1ng tlouon g o< practices involve many distinct forms of tr.msfonnauve labour; rights praxes demonstr.l.te that (to borrow a ph rase from LOlliS AlthUSsa-) 'all the levels of sodal existence arc the sites of practlces',s Second, wtu~ human rights practices are relatively autonomous they also remain sit\Ult1I within the structure of production,6 It is in this sense that I later (in Chapters 7-9) variously approach the tendency of conversion of human righ ts movements into h mn:m rights markets and the h~avily g1ol»Iiution-mediated forms of'trading away' h uman rights, Third, these practices asSlimc different fornls: th us, one speaks of distinct sets or types of practices, such as political, ideological, tech nical, and sdentifldtheoretial practices relating to h uman rights, Fourth, human rights activist prutictS raise some profound issues concerning au thorship and authority of reflex-

eSM:lltiaJIZI~

hu~

ive h uman rights actors,

II. 'NGO-ization' of Il uman Rights ActiVIsm Almost all contemporary h uman rights prxtices taU an associative fontL that of non_governmental org.nizations, The impact of the NGOs on Ibr nuking and working of human rights is so considerable that contempoWf CCt h uman rights may ~main unintelligible outsid(' thelT netwOrked practl The NGO-isation of human rights is a pt:'rvasive ~ality. And yet the 't'(l\ t('TIlI NGO mystifies in each of its three constitutive t('rlllS, First. as any logical :analysis of the qualifier 'no n' makes It obvious, it remains recklessly over_inclusive; the pr('fuc its no nsensical character; logically put, the prefIX 'non' would lI\d

imnltd~tth

foregroU~

l Ken Saro-WIWol ( 1992), 4 Manue l Castells (1996), . ' Ahh~ ~ I adopt here some features of tr.lllsformatlVe prn:uce deSCribed by tJrPI ' 6 An adequately materialist theory of human nghu acU\l,~nl doc) ral~ .t>1rd' r tpiJI queStions coneCnllTlg the 'detcrnllnanolllll the last lllsunce' , I aVOId here dllS c pli Hut I do agree w!th MIchael Burawoy (1985:9) that human rlglm pncu ", " , , . ' d I ' rcbuo ..A UleJCapahly located wnhlll m Icro-apparatuses of domUlanon an I Ie ~ thf1l"'" latter 10 sute apparatuses' The qUCSti011 has been vaTiously approach Mantian Critique, the bw and economIcs-type theorlzmg, the law Jnd a \IP" flOll genre, and, recendy, III erloqucs of contemporary cconOftllC globah U , ovcrvteW, sec Upcndra Baxi (2003) 469-70,

k~ d~

. . . .1cb~ is not 'govcrnmen tal'-from squirrels to stars, cleplunts to With this logicallr nO:lscnsical character, one m:ay want . . . . rc:ach o f the q ualifier l1,on by ~y111g that It denot('s any thlllS -.KESS which IS o r o n be said to be: the Other of 'governm " or 'gov('rnmentahty', Put another way, It signifies I _--.II twCf)'thing unre bted, to, or III opposition wuh , whatever..... .... may wangt .,,)I.an by 'governmem , HOwt'Ver, It IS hard to Specify what stands th us

~"

an~nn

erleclrd Much here depends on how we " wish

to understand th,·o .- •• mTee terms, III _ fine place, governmem IS an Idea that we usually and broadl ...... Wlththestate as r~ferrmgtoarrangementsofpo 7 wer over peop IesY iCD. . tcS.:and resources, The expression 'non-goverl1lnen'~I' . ' ..L __ ' th ' f h ... may .Ulen WiK U1 CIT practIces 0 u man rigllts activisn, NGO ~ f I s con test UI exercise 0 Sl1C I power, Ilowever not all p . ~~ I ' ' ractlces 0 f human c U'..n . I' 10 h :arc. I IUS , necessarily adversarial or "on .. Irontauona UJnamtanan and developmental NGO ' k ' I s see to produce progra mme~ and policies in ways that contribute , and even realization, of human righ ts, In this respect remain co-governmental rather than pwtl-goveTllmen tal' foster sustainable 'government' through oste nsibl; whole pr~ctlces by elected officials and state admi nistra_

N

;

•

:::~":~lll!~ ~I:~~ o~trallsgovcnun('ntal policy and political :actors. most NGOs work Wltiun the lilppcns, I

' {j . parameters ,too cw COntest the arbltJ'arllless of the no tion Ie. hum;an nghts fate or faith to the acddental ract f Iju"'~ rntory controlled by a state, Even NGOs th 0 do not go SO f: at pursue tasks ,. ar as to assert With cosmopolitan theory that so ;accentuated by '~te I be I equivalent of a feucla " TIl t ra democT:lcies is OQc's life chan ' H I pnvdegc-an inherited status that

""

.

Founu" (2000, 208-9) .".,." ran, In melr ,ntr~l ~1Iggt:Sf5 th~1 gove-mmellt rrm~ins concerned with

S' ;:;:t~~"""'~~;.""';~~ 'lIIen Ihll1ktnR~ nd

t:::',thr lr Imu, thhrlr Imbnc:atJon WIth .SUbsIS::;S,ermory WIt ItS s...... lfi I thingli I that on', III rebuo r-- .IC qu~ ItIes, c llIl~le, so on' a ' II ~o othe r dungs th~t are CUStoms, hab Its ~'''',rn. ~lId nllsfununes' nd lIlen III relatloll to IhO$C sull other thillgs tha; ~II\ (1995) 33 1-49 S;I; h as famllle, epldclIlICS. and ckuh and 50 on', th~t '(Pvt ll Ihe su ~2. l3ul ldlllg upon tlU) lIlslght, Ch~rlcs Jones \l,'e: need to ask P h arbltraflness of one's anccslry; place ofbinh hkthhtlOd th w y these chara.ctcnsucs 5hould "n 50 fa I _.• ' .k-. at 50IlIeQnc will h h ..... r owa".s ~ ... y n~ to h ~vc ell er more ......ealth than they can vc a recQglll7.ably hUIIIJII CXlSte nce', \Q

62

The Practices of 'Comempol"llry' Human Rights Activism

The Futun' of i-Iuman Rights

The second notion-governancc--signifies 'modes of objectification that transfonn human beings imo subjects', or the ways III which 'a human hemg turns himself or herself imo a subject,.9 These modes and ways of ~r In stllte and SOCtcty constitute a subject that is .at o ncc ~th 'free' and 'detenninc:d' . 10 Progressive critiques of human nghts 1T12I1lUIIl that the languages of modern hunun rights constitute: human rights s~bJt'(ts as humans who are 'depolitidzro', 'egoistic' vectors of constnlctton of 'an illusory politics of equality, liberty and co~~munity in the d~m;lIn of the stllte' in ways that nusk 'material condmons of unemancipated. inegalitarian civil society,.11 Jf so, unrdlexi~ NGO p~~Ce5 of human rights activism participate in the rc:produ: tlon of subJC'Ct1o,~. and, ,thus. disrupt any 'pure' essence that may be said to llurk the being of nongoven1llleutlil'. . The phrase 'non-governmental' also obscures from VK'W the fact that as 'organizations' NGOs themsel~ stand infected by governmental and b'OVernance processes. Most NGOs arc birthed, o~nically o~ throU.~l caesarian modes. within the specificity of legal auspIces; they enjoy I.cgttlmate existence only within the rib"Ours of the state and law-~ncttoned associatlonal forms. Even transn:lctional advocacy networks rem,un cxposed to forms of mn!>governmental regulatio n, as, for example. acc.rcdltauon within the United Natious system . Funher, all NGOs have their mtemal code5 of governance; their internal 'constitutions' em body a diver'>C p~t­ terning of leadership, deciSion-making processes, hien.rdut:$ of power, and arnnboements of accountability. lndcul, most NGOs themsdvt's face dilemmas of legitimation not w holly dissimilar to tha.sc that coufroll~t the very boovcm ance structures which they often syste:mlcally oppose. The appellation 'non.govcmmental' misleads because most NGOendeavours remain directed to either strUcmraVinstimtional state reform or episodic amelioratio n of state policy and conduct. The qualifier 'n~ governmental' does not also enable us to neatly separate or dlstulgul5 fonus of human rights activism associated with people's movements frotn those sponsored by self-serving politi~1 regim~ an~ ~le~r~ l~f t~ business, and industry, which also amculate theIT dlstlllctlve ult(;rt'S the prose of human right.... MIchel Foucault (2000) 32(j. . . \9921: 10 See. E.il P;t..~I\Ubll1s (1978): Wendy BrowII (1985): Pr:ter F.lzpmul;. (

'J

CosQ~ l)oU:I;IIl.l.~ (2000: 183-28): P:ltricia Tuin (2004).

rtf'!

~ndy UtO'Wf1 (1985) 114. They also onend a JUl"br cnuquc It> 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«Ill<.1U.

12(00). :u See, U~I~kl15hn~n IhJ~~1 (2003),

n MIChel Fouc~ult (2000) 330,

67

rebtcdfifib question d irec,ts, attentIon to some ~cxin~ I ~~ u es con-

~ fOrTl1sofhunlOl11 rights acuVls',ll, OftheSt', the dl!>unctio 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 '
68

The Future of Humm Rights

The Practices of 'Contclllpor.lry' Hum3n Right'l Activism 69

~ ndosc:d

within n:U1onal political histories, and processes, even when empowt:red by netwOrks of tr.lIlsnatioll~1 human ngh ~ advocacy and action. Often enough universalistic assertions ofhum:m nghts norm ~ :and stand:ards launch culture wars in which the ' n:aoon:al' human rightS tndl_ nons confront styles ofth~ 'glob:al' imposition of human rightS. I explore th~sc: :and related issues in Chapter 6. Equally important renulll~ the qu~stion of relationship between th~ 'Old' and the 'new' social movements and human nghts movementS: How may we navigate the Scylla of reduc_ tion ofall social movem~ntS to human rightS movc:m~nts and the C harybdis of reduction of all human rights movements to the merely juridical? nle question concerning origin further di rects attention to the realm of territorialities. The swtlllh question is this: I low may we grasp theterritories thc boundaries as well as the borders of human rights actIViSt formati'ons? How do the changing patterns of dc-territorialization and rcterritorialization of human rights activism occur, and with what historic impact? By de-territorialization, I here signify transportation of issues and arenas of great concern to human rights activists from intensel.y I~a! le~els to Wlder transnational advocacy netwOrks ; likewise, re-tctrltOtlahZ3Uon SU@;brests dlelr rep;atriation to local settings. In yet an older ~~r~-Delcuze3n) senS(: tcrritoriality 3150 refers to the struggle for t«ognmon and power even 311long non-sovereign actors, including the NGOs. Their tmfwan fonn a secret history of contemporary human rights actiVIsm . But any hUlll3n rights person who has worked close to the gro.und knows how S(:rious these can ~. Further, distinctIVe North-South dlfferenuals In the pursuit of the realiZ2tion of 'contemporary' human rights produec opposition between the 'grass-rootS' and 'astrornrr varieties of human nghts activisms. These present twO la~ domains of territoriality III terms of geography of difference and those ~f n~nnative dive~ity. I. low llIay ~~ devclop en3bling n:l.rf2tivcs of the hlstoncs of th~ rel2uonshLp of comp mentary and conllict among th~ NGOs? And further: How rn3Y we tract the distinction between movements and marketS, and the now stc:!.dr . h lIllIall ng . IIts rna rkets'. conversion of human rights movements mto All this, especially the last question, illvites attention to the prior his· tories of human rights activisl practic~s. By common convention, tlh' t1e . . ic d 3ssembl3gts of the practices of resistance 3nd strugg stan nal lleJas 'old' social movements-which did not have access to the con tc1l1pOl"i~ cc . . · elll c'"""n languages ofllllllun tights but, ratIler, paved ways rlor tIlelr ' 1;0The 'old' SOCial movements mclude at le3st five specific forms: the I~OVC I r t rnauo l'll 11I~1lt for dIe abolition of chattel slavery, 1h e movement lor Lil e #

2S Up<"ndn Ibxi (2000) 1l--45 al 36-7, and the htenture therem Cllt"(!

bIJIIWIiurian law, the suffragist movement, decolonizatlon movements,

aDd the worki ng class mov~ l1lents. 26 To name all th~se logether IS to invite ,arntion to their disparate origins. dcvclopment, and futures . Even to o u thn~ these in a Mr~ sketchmg reqUIres extraordmarycourage, bordcnng on foolhardiness. But this is pr«isely the narrative fisk I IIn~t e.xpose myself to in order to suggest tltdr rich dIVersIty in relation 10 some formative human rights histones. The first two movements were tnSPircd by recourse to varying tnditions of natural righb emphasizing, ~a.I1 , the right to«, and torrmaitl, hUlmn. The third Signifies stntggles against gender-based exclusion from civic participation in politics, presaging 2. wider movement for women's rights as human rights. The various dKoIonization movements generate the principle of self-determination, ~timating the collective human right of the European peoples to an emp~.

1ltc workmg class movements present the confl icted history of the right oCassociation 3nd thus signify the proto-history of all contemporary human nptsmovements. The struggle for legitimacy and recognition that encode tIiIIories of trade uniOIl lIlovements everywhere testify to the power of tDCial movements to constnim and compel the state to acknowledge the Iep:im;tcy and legality of cenain forms of associauonal activityP This jIntic.aJiu tion constitutes 3n melucuble aspect of flourishi ng of almost C'MI society associ3tions. The working class mo~ments produce new e.IIen oflegality that recognize the human rights of workers: at th~ same - , this production of politics (emancipation from nnmiscration) also . . . to the politics of. production (new forms and opportunities for tbnination and repression that justify limitations on th~ collective right tJ«rikc. once upon a time furnishing a description of their 5Cmi-SO\Ier~ign ~) . The relationship be~en juridicahzation and movemt"nt remains t.decd complex and contradictory; it opens up as many spaces for practices af'hunun rights activism as it also further ttl{f~s. E~n when articulation ~

~ I~ 110 longer politically correct to rIlenllon In tillS llstmg the Great October ~on and IU aftennath,. Bm a future hlstori31l of human nghu may not be thus ~ , lbed. She may al~ dlsaggrcglte th e 'h~tmg' offered here, In temu of dcgrees "-t:aI or ·pubhc' panlClpaUOI1, the wlfhm-5y:.tclIl and c)(tn-sy:.tCIIlIC challenges they ~Iy, and put together, pose to the emrenched models of bourge<Jtslpatriarchal 27 nghl$, and subscquclII wo rld 11l ~loric IIllp~U. And cwn today. tlus 5tru~e oom inues III lI1an y pms of the world. Sec, generally, er (2003) for an mSlghtful R:V1CW of labour movelllcnu and 'gfol»liu_ 11 1870s that traces workmg·.dass struggles III Ihe idiom of restsuntt r.lthcr \'kttrnagc, a '1U.rr.l.llvc of workmg-class fomlauon III wtnch events unfold III a nrne_space, see, al~, MKhacl UUr.IWO)' (1985).

":''' ."",'.'"lv

70

The Practices of 'Contemporary' 1-lunJan Rights Activism

The Future of Human Rights

of human rights movements into sanctioned juridici forms confers an order of comparative social and political advantage, juridicalization of movements (the modes of sute recognition and the attendant pathways of legal regulation) necessarilyatTects the powcroftheirvoice. Indeed, labour law and jurisprudence begin to regulate and trim the strength of their numbers and forms of pre-incorporated social powers of struggle. Even so, the histories of working class struggles narrate the transfomlaUvc labour of practices that, as it were, confront the minuscule with tht prowess of the multitude. In contrast, much of current human tights production remains the work of human rights elites and entrepreneurs. Outside of the bloody and bruised history of trade union movements for the title oflegitimacy and legality, and sitting in deep contradiction with the pMadigm of 'modem' human rightS, lie the sites of 'anti-systemic' movements 28 that in the main eng:a~ visions of large-scale social transformation. Such movements profoundly interrogate global hegemony and domination in all their habiuts and appeal to languages both of human rights and glob.11jusriee.29 we, however, learn also to read their situated ness, which de-radiclize somcwhat their space (autonomy and legitimation) and ideological thrust. Struggles against decolonization, for c)Qmple, thus tend to becOlm struggles for autonomy in postcolonial nation fOrlltalioos that operate within the finn collective grids of territoriality, representation, and repression. So do many a current struggles against globalization as the discourse of the '\\brld Social Forum at Porto Alagrc and Mum!»i so richly demonstrate, Anti-systemic movemcnts become tr.mslated into practices of resistance directed primarily to refornling the state and global governance. The early intimations of the anti-systemic movements mark the birthing of contemporary NGOs. JO They were readily facilitated by the formative traditions of modernity accompanying the advent ofEuro-American legality, which also provide registers of contradiction: for example, the reprcs· sive denial of human rights movements in colonial possessions and thcir

:za See, for example, G'av;lnnl Arrighi (2000), Andre Con. (1982), Etienne Bali~ and Immanuel WallentCln (1991). 2'1 See, forClCllnpic:, NaomI KleIn (2000); Anonymous (2OO1);Jai Sen, AnIta !\lund. Arturo Escobar, Peter Woltc:tIllal\ (cd.) (2004); Jai Sen and Mad.huresh Kum:ar (2003)· J() like lbe: Ptnnsylv'lIlu 50nety (or Promoting the AbohtlOn o(Sbvery In \71$. the BmlSh and Forelgrt Aflu-Slavery SocIC'ty III 1839, the Ilenry Dunam (1116l) Gcnc:V' rubllc WeI(are Soc,Cty (Ille pn'(unor of the Imemat/onal Red Cross) and Ihe: UIItf" national consortium, mclusivc of the: Intemnional FcdeTlltion of Trade UnionS, dIal kd to the: prototype: HIgh Comml5SlOUCf of Refugees in 1921. See, Karsten NoW"" (1996) 578 al 582-3.

71

joI1dlCal f1ouriS~ling in the metropolis. In a related, but diffcrent, mode it ~merges dUring the career of the Cold War constitutionalism. Not all forms of practices ofhurn:l.n rights activism necessarily Signify 'anh_~tel1l1c' movcments.31 Rather, they display a remarkable evolutionary profile :l.S, for example, the tripartite format of conscnsual production of tntcrnationallcgality via the Intcrnational Labour Organization32 or the hunun nghtS production under the auspices of the United Nations systelll. In a sense, thi!. process has resulted 111 the creation of a milieu of participatOry culture of global governance, which then tends to univc~lize itself as a virtue of all forms of political governance. If the proct'5S has incrcm.entally a~gIllel1ted ~he legitimacy of the ever-growing corpus of the UllIted Nations agencies and auspices, mcluding some exposed to very severe legitimation deficit,)) it has also, no doubt, created a puinc tr.msgoverrunental space for global initiative for justice and

...... ........

~

The history of the early precursors of the present day NGO connuu_ ~ h:t.s yet to be written. But we know at least this much. Firsl, interIIIOOIUI NGOs, III the .ea~ly part of the twentieth century CE, though few m number, were vast III Impact, especially in thc sphere of crea tion of IlllimUnonai humanitarian law. J 5 Stco/ld, civil society org'lIllz.atiolls were, • fact, mdlstlllgliishable from the great SOCial movements such as ami~ labour, and suffragist movemcnts. Third, clements of metropolitan civil SOCiety, especially Church-based groups and movements, assumed ~er voluntary assoclanonal fom~s in colonial settmgs, in ways ~mforced, as well as reSisted, pr:w:uces of colonial powcr.J6 Amrtll,

~ See. ~perull): John Urall.hwaite and Peter DnhO$ (2OCWl), 11 Brlllhwane and Dnhos (2OCWl) 222-55. IiOa ~tld I]lnl;: (1996). ThiS rcpon rebles to FY95 pr~s report on coopt'ra~ ~ /llhe World Hank and the NGOs. The FY95 refers to Ihe fiK;lI yen an ~ 41 pt't Cent oflhe Ibn!;: p~ conuancd proviSIOns ooncernmg

==:.:,ly

on~~I~Ple, hUTIIln righes NGOs have been SOI hent in anlculauon oflhe Idea ~ ~~ Crnnmal Court: sec Stt:vc ClumoVitz (1997) 183,266.1 mcnnon thiS

NGO PUrsuol ~" II1U1tr.1tcs more than ally <xhu thc hlStotiC lon~ty of p~

~ -"'kI

of a very dilTlCuh ~tructural tn.nsfomuuon III generally, John Urallhwalle and Peter Dnhos (2000). , Orof N ClIIIIort.UllI ' the creahon 0 t Ie ''''' CI"OSlI and dr~ by an IIltenutlonal -1921 ~ DOl COs tlul led 10 lhe CTeaUQf1 of the Illgh ComnllS$lOner of Refugees lIi th ' . d B Forsyth (1996) 235: Steve CharnOVltx (1997) 183. ~m c~~r y 11lstorlCll of CQlonlali~m tlut emer&." as a (onll of mercamilist ~"'I alldehartered JOiI,. .nock companies, the rdationship among European nu~totuncs Wtte deeply connlCtCd. Willi imposttlOn of dlt~1 rule 15 A.

'n

;l(cOillph~hmem tt txlll1pJe See al~, r, tk. Ihe I'

t

"_"

The: Practiccs of 'Contemporary' Human Right! Activism

72 The: Future of Human Rights

relativdy autonomous, pc'aceful as well as violent, movements fo - - an dd ecolomutlon - - have contrl-bute d "lar more du.n isrklf. dcternlmaUOIl rently understood or acknowledged. Fifth , and not [0 be: ovcrloo~ tends to be: tll(~ case in fragmentary accounts of the (:Vollmon of COnte porary human rights-is tile importance and impOlict of 1I1ternOlitiollOlll fIl. cialist OlInd communist movements. All this points toOl compc:lllIIg~ a general history of humOlin rights movements OIlS sociOilI movements, this has yet to fully emerge.

7

a:

VI _Space. These prefatory remarks do not fully address the tasks of theory or hiStory but merely foreground, and Tather eclectically, some concerns that accom. pany an understanding of the staggering diversity and density of contem. porary NGOs.l7 I pursue this understanding within widely divcrgent histories of their formation and development, in three distinct but related ways: in terms of naming and description; modes of organization and connectivity; range of resourcing, agenda, auspices, and ideolosr· This sp:ace has m:ade possible a wide variety of NCO practices. Thnt practices may be briefly inventoried as follows:

• Fulllrt r"IItPlting: Contrasting with the rather cffete tcrm 'consciousness raising', a whole variety of practices of hUIl1:a1l nghts actiVIsm coimagine alternate visions of human future, de-legitimating the relgntng conceptions. The simple but powerful pnctices interrogaung rarom. colonialism, violence, and discrimination against women, social exdusKll'. and environment;ll degradation, for CX2mple, create conceptions of aliti'· native just as well as (tAring human furnres. . • AgtrUk-sttling: Many NGO practices seek to create an agendum 01 political :and social action :arising out of their conc~ptions ?f ah~": human futures-the most conspicuous ex:amplcs hewg provided Y environmenul and women's human rightS movements. bl role 111 !erP by the colofllzmg power. missionary actiVity pbyed a conslden e f odrt1 cJ of spread of IIIe1'llC)' and education in the colonies and III Ihe creation (lb EJ! lrll" Ihe colOlllzed to spread Ihe new religion as \\.'ell as of loyal ~ubje,ts of I ',olurle" These geocnl observ~uons here will suffice, given the eJCtnordnlary IIlflCt)\ dUn" ity; and contradictIOn III the rebtionshlp between the C hu rch and Ihe suer

c:olollluuon.

05 (ZOOZI ".J

17 1kre I may only refer interested readen 10 the diSCOUrse: of Sail! W~tcS (2fIIln to the mo re specifICally focused analysu of'petro-lIlOlence' by M,eh;w:lJ.

73

w: NGOs arrive on the United Nations platforms (:and first draftspersons or co-authors of human rightS :.,ooD<""cIEquaIl Y, theyc?mbat with great vi~ur developmentS that .... . ... the fragile normaUVlty of human rightS.

~r as

•

~t.1(jllt: In the still dismal s it~tion of continuing direct. or

sponsoml

violations of human rights, NGOs pc'rform a Wide

~of wks or roles Icadmg to human "ghts Implementallon. These

wrictY . ombudspcrson,expost, investigative, lobbying, and 'ouse lawyer-

~~hC advocacy roles. These. tasks/roles entail dose colla~ration

:;. prinI and dectronic mass media and related learned profeSSions.

• SdidtuUY: NGO practices seek

to sustain, even empower, national rights activism agai nst pnctices of the politics of cruelty. JIDMIfuI gloNI condemnation against repression ofhmnan rights activists " em has created ~ global ~u lture of empathy f~r those who struggle . . .plerneru human rights agalllst all odds. Emergmg networks of soli~n and among NGOs endow them with a fiduciary power, ..un possible the pursuit of human rights-to deploy the sanitized Nacioru prose-in 'difficult situations'. "1ocaI--~1

." _ same time, it is abundantly clear that there is not Ot/( but !III."f6olN(:;CI,_. Indeed, one might say, pc'rhaps with only a slight there arc, at the end of tile second C hristian millennium, as there ~ human rights. One major issue for compararights is to construct maps that chart the plural, , territories of praxes ofNGOs . Sma these possess pown-s of self-defimtion , .any endeavour to pattern the worlds nuy Sttm foredoomed to failure. When ~ add to this the ideologues, who work with or influence the NCOs, the task ~I the more formidable. And any mapping Will be fraught probkm.atlc nux of descriptive and prescriptive elements. This W IIIStmtly evident when one seeks agreement on conceptual catIUCb as the following:

":"'~~It IS, the geography of difference (at the levels of existential ,~

_ , regional, national, interregional, supranational, global); terms of o_lIea fH' IOgtes, - an d narratives 0 r persistence over

.--r- In ~I

moblliutioll of mfornlc:d public oplllion againsl Ihe Mullilaleral

_ progresS 1011 on behalf .ind at the behesl ~..~~"",~~.m~'~":.I,<~~!::~:~_:~~ I, one 5Dikmg Otafnplc:. Sec Sol Piccouo and Ruth M3ynt' I

74 The Future of Human Hights

The Pracric" of 'Contemporary' HUIlI;ln Rights Activism 75

time;

• Agttlda: classification o fNGOs in temlSofthe specific configu ntlons of human rights they seek to promote and protect;

• Rllidily: marking capabilities for transformation of initially cspouS('d agenda: • Rtfltxivil)': providing a register for cumulating apericntlal lcanung_ enhancing sco~ for future transformative praxis; • AUlOnDrtly:

in relation to forces of OXlptatio n;

• ToI~rarjo": devclopmem of understanding for divcrgence and plurality

within the boundarics of law and administntion through formative deyjtt5, such as a trade union. trust, charitable society, coopen.trve socicty. or even a com~any. Thus .cons~ltuted and infected by stltC power that subjects them III both d.lerr baSIC Structures and ongoing o~n.tions to ove:n11 governance superrntendence and surveillance, they also contest. at umes radically, Statc legitimatIon. All this J~ads to very diverse .p~iccs of the politics of nami ng that connmul sh lf~. TIlUS, the constitutio n of self-identity of human rights acuvist fonnat1ons unde rgoes a variety of exigent naming. I r.mdomly list some as follows:

within the inner dynamic of day-to--day working and of respect for Sister NGOs in the same or similar fields of action;

• C ivil Society Organizatio ns (CSOS); • International non-governmental organizations (INGOs);

• Aaomrtability: direcuy to those constituencies o f vio lated peoples, rather than indirect forms which relate to accountability to donors and funders for human rights action;

• ISOS, a Francophile usage for the INGO; • Non-governmental Development Organizations (NGDOs);

• Exuflrlllt: reflexive monilOring of attainmcn~ven achievements;

• Solidarity: providing

sco~

• Environmental NGOs (ENGOs);

for human rights altnlism, no t jrm 'nct-

working'. In the real world , NGOsare consuntlyexposed to evaluation bydlversc msrrumcntalitics: governmen ts, the Uni~ Nations system , thc donoralld funding agencies, human rights advocates, and, occasio nally, by cOllsumers/bcneficiaries of activism, and even the security forces. I descnbe SOUIt of these ways III Chapter 7 by the metapho r of human rights 'markets'. But the re docs not exist, to the beSt of my knowledge, any full -fledged normative approaches to the understanding of the diverse worlds of the NGOs. This remains important, in the prcscnt view, because of UIC rapid emergence oftrade-relatcd mark£t-friendly NGOs who also seek to marshal the languages and rhetoric of huma.n rights to their own distinct endsa.Il aspect that I briefly explore in Chapter 8. Further. the distinctive patterns of govemmentality of NGOs, in turn, collidc Wlth those of organized political society (the state/law fo rmations). This happens primarily o n the register of theory and practice of representation. Many human rights activist formations radically suggest that actS! l feats of political representation o f peoples by the elected officiab do no ex/uulS/ the idea of representation. In this, they diverSify the ve ry idea of political represclltatio n that contests forms of clectorallegitl1nation. ThiS extrao rdinanly complcx decollstrucrion coequally acquiesces and contestS logics of power and domination. However, NGOs acceptjuridicalrzauon of their very 'being', as it were, when they assume 'legitimatc' cxislenct'

• Indigenous Peoples' Human Rights NGOs (IPIIR.NCOs); • Women's Rights as Human Rights NGOs (WIIR-NGOs); • LnbigaytbiscxuaVtromsgender NCOs (LSBT-NGOs);

• Child R;ghts NGQ, (C R-NGo.).

"Ibis

already formidable listing, I have, in an earlier writing, proposed:

• Ptoples Organizations fo r lXmocratic Rights (POOR); • Organizations of the Rural Impoverished (ORP) ; : Participatory Organizatio ns of the Rural Poors (PORPs); Saeed Action Groups (SAGs);

• Anti. poo r, Pa roelpatory .. (Aoo..PQPOrganization of the Rural Impoverished RPS) ;

• Assoc·lations - of the

Urban Impoverished (ARP-NGOs)·

• GI• 0 baI Commons NGOs (CC-NCOs).

'

8wtnalsothis listing does not exllaliSt the ulllverse. . ... Thus. by way of example WItness the proliferatio n of: • Busllles~ d . • 11 UStry-sponsored NGOs (BINGOs); 8uslOe~ n d Ustry-sponsored Environmental NGOs (Bl£NGOs);

•

'

76

11Ic PDCtices of 'Comemporary' Human Rights Activism Tl

The Fumre of Human Rights • Rt:gime-sponsored NGOs (RS-NGOs); • The Kofi Annan-led Global Compact NGOs (GC-NGOs): • The lFI-sponsored!mediated NGOs (IFI-NGOs).

Thest: naming practices have histories of their own. All put together, they variously !lurk ways of internal differentiation withi.n praxes of human rights activism. Thcse also provide diverse ~ndersundll1 gs of SOcu.1 and historic melanges of contemporary human nghts values, standards, and norms. Attcmpts to resolve difficulties of naming practices may seek to ~isen. gage market-permeated and state-sponsored NGOs fr~m the bcll1g. of 'purc' non-governmental organizations. How .m~y we dlscngage s~clfi. cally market-sponsored associations-or aSSOCiations sponsored by II1lernational coalitions of trade and industry-the sUUlsofNGOs? The BNGOs (business-sponsored non-govemmental organizations) claimed and won the same statuS as ENGOs, and even outnumbered thesc, at the Kyoto Conference on Climate Change.39 To take another ex:unple, 1 lud the privilege of chairing a massive and marathon meeting ofNGOs at the 1993 Vienna Conference on Hun12n Rights, where the regimc-sponsorcd NGOs claimed equal time under fair rules of procedure for participation: had they more substantially populated this Conference, its eventual outcome would have bee:n wholly different! Regime-sponsored NGOs offer mort eloquent justification for violations of human ~ights OIl illtern~t1onal fon than .'lute officials, claiming equal represenutlonal power with people·

based NGOs. The difficulty here posed is indeed serious: any denial of rcgi":,eI industry-sponsored groups the starns of NGOs is, at the thre~hold , VIOlative of the human rights to freedom of spttch and expressIon and of association. The reality is that they marshal resources outstripping ~host available to people's NGOs, and command an asymmetriC21l--even mau' thentic-voice, in regimes of human rights enunciation; however, the logics and languages of human rights also at times act SO as to legltlllla tt their power and influence.

VII. 'Anti-Huma n Rights' NGOs Precisely because: of this, i~ has bec~me dimc~h to d~,:, briglll :~~ between the pra- and the antI-human nghts practices ofaCtlVISIIl. The 'anti-human rights' is properly affuced to NGO movements that seck to

.-o.fv. for enmple. crimes against humani~ trafficking in human beings -:;IsGve.labour-type practices, genocide and ethnic cleansing. apartheid, s intolerance and xenophobia, :;r,nd Justify the worst forms of pa~~I and child labour excessc:s.40 In the post-9!11 world, it also extends a'ilJClf_Sryled 'terrorist' NGOs which now sprout websites deuihng lethal and cvcntual bloody executions of 'hos~'--:-feats of politics of Ity that mime equally, but for dm reason not Justifiably, the 'war on ~'wastelan~s of human rights at Guant.mamo Bay and its less archetypal reproducuons c1~ere. Beyond this, however, the expression 'anti-hunun rights' poses a moment o(danger. Human rights enuil res~~ for fundamenul freedOl.~ ofspeech and expression. conscience and relIgiOn, assembly and asSOCiation, howJ(IICftI"COnstricted and constructed in the everyday lifeofhuman rights Law, policy, and adm inistration . Abov~ all, und~rlying all huma~ rights .is. the ....." righl to interprtf allilumoll nghu. Practices of human rIgh ts aCDVlsm ..mse and enjoy th is right in plenitude and justly so. At the same time, ktioes not speak with one voice concern ing the meaning ofhUll1an rights, ellen Ilferally; at suke. Thus, those who advocate abolition of capital paaishment continue to disagree with pro-life communities that regard ..twwia and abortlon as violation of the human right to life:; hate speech 6idts free speech votaries; readings that celebrate human sexuality in .,.. dut forbid same-sex marria~s or related forms of intimacy stand ~ contested. by the lesbigay/transgender activists; and the sphere of _ buman nghts of the child enacts lIlany a combat betwttn pragmatists . . fundamen ulists (that is, those who would o utlaw all fonns of child ...... and those who remain content widl its regulation). The: tempution at name-calling should be: resisted; to nallle fonns of IIatnan right advocacy as anti-human rights simply because they may ~ fro m our own preferred interpretive pursuits in itself amounts to .- violation of the basic human right to interpret human rights. All that - may justifiably say is that one's proffered moral reading of human ri&hts (general izing for the present context the celebn.ted theses of Ronald ~n) possesses greater 'integrity' bec~use it seeks to make the best PGIIible sense, o r fit, with the ongoingdiscollrse.-41 The overall superiority 0( one's own preferred reading of IHnnan rights values, sundards, and IIOrrns requires serious hen11eneutical as well as dialogical labou rs. Surely.

::;:t5

•

~ All theliC e'xpresslons now marslUiI a stttled r:1ln8C' or munmg both III pubhc ~nal bw and human ngh~ I"w and Jun5prodcnct. Indeed, lOme' have even tit<: Stltus of bdngju.l fogt'lU, peremptory ulIf:rnauonal law nonns that no ~, nuy viobte'. UPCndr.a Ih:ta (2003) and the Dworlan 11Ie'r.lmre therdn clled.

.. ''''h,,,

•

78

Thc Futurc of Human Rights

one may COLInt this as the coll5titutive. even if problematic, a~pell of contemporary hunun rights activism. 42 What nuy olle say about activist human rights fonnatlons that adopt violent meallS to achieve their own preferred intcrprcutions of Inullan rights? A careful response to this question will need to dr.aw SO llie fi nc distinctions conceming 's;Ulctioned' and 'unsanctioned violencc',U It .....ould seem that a 'reasonablc' degree of'symbolic violence' in public protc~~ In favollr of human rights or by way of exposing violation is no 10118'=r considered wholly illegitimate. By symbolic violence, onc refers to v.l.1l. daliution, even destnlction of public property (buildings, public transpon vehicles, govenunent offices, including even police stations, even !lolate. maintained agricultural nurseries for genetically mutated plants,+! for example); the practice of such violence may have an indirect impact on the human rights of those affected; but is not considered a human righ ts but a criminal law violation, Were a global lIldo;: of public toleration of sym· bolic violence ever to be prepared, it would at least show that, as compared to the North , such violence is routine in the Somh where effective cmninal proseclltion is conspicuous by its absence. In contrast, violence directed 21 private property sa:ms less tolerated, The borders and boundaries between symbolic violence that may ftmalll somehow sanctioned and 'real' violence is brought home III !>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. t<"rror, Upendra 8:00 (2005).

an~lys'$ ofdlC ",-art!

81

symbolic capital o~ h~rna? rights (this I IUme ~ burtQUlraNzQtj,on of ~ rights). Some mSlst (like me) that the real birthplaces or sites of

_

JIUnUIl n gh ts arc far removed from the ornate rooms of Internauonal conferences-being located in the struggles in the farm and the factory, the ~ and the hearth (this I name as human rights rtalism). 1'besI= genres of'contempon.ry' human rights attitudes and approaches any implicatio ns for the construction of tile future(s) ofhum:m·rights. J include in the narrative voices not just human rights NCOs but also cbinkrrs oriemed to h uman rights that exercise a measure ofinfluence on Ihc contemporary worlds of activism.

IX. Human Rights Weariness

Human righ ts ~a n·tlt'.SS takes many forms. Nonnative weariness signifies utatr of moral fatigu e with hl1man righ ts languages and logics. Its disdpIttd residual energies contest the very notion ofhl1man rights as a m oral IInpage and rhetOric in different strokes that hastily improvise variations . . Bentham's robust attack describing natur.ill rightS as 'nonscnse on . . . . . The idea that the notion ofhUlnan rights is itselfincoherent leads _the conclusion that there 'are no such rights and belief in them is one .... belief in witches and unicorns'.49 In much the same vein, it is said . . . becal1sc hum an rights mean different thinPfl to different people,50 rights have no 'robust ontological identity' and rights-talk o nly ~ the problem.sl The Sttond weariness fonnation, related to the first , signifies nostl.lgia old OOIditioru for doing ethical and moral theory. The indictment here dw the rights-ulk instead of addressing 'virtue' and 'goodness', 'duty' IBII 'rcsponsibility', fosters conflicted and adversarial notions of social \DOPCr.iltion, displacing o ld notions about human perfectibility and ~unitari:1.Il hannony. To the extent that such displacement occurs, it IIid, the gulfbetwecn the individual and community widens in WoIys that )In:lcnOte and enhance 'atomism' over 'connectedness', 'abstraction' over CIOfttextua.lity', rights over responsibility, 'independence' over 'rebtional'

.pam

•.. See, for elClmpl('. tll(, acute mterrog;.uon by Mauric(' CranSlon

(1983) 1-17 . ... AlaS(bI T M:.Iclmyre ( 1981) 69. - ''''gh ts arc cast u subsuml1huC$, as rel:.ltlOns. ;;as (rames. Rights arc also Ca..I'l ;;as ~ "--..J...~f POhtlc:.I1 redress or k~ KIIQn,:.IS the lll«h.lIllSmS through which conflicts --.., .....'<1 or med1ated,:U Ihe: endpomts III polllial and legal struggles. They arc casl SC<'nes., ;tg\'ndcs, and purpose$. In limn, nghtll ("~n register on :all 50TU of Sc ~ networks ... ' PleTT(' Schl;tg (1997) 263 at 264. h~ (1997) at 265.

The Prxtices of 'Contemporary' Human Rights ActiVIsm 83

82 The Future of Hum:m Rights

fbU"u n rights, often collapses when otherwise indefensible regimes stand

rationality that contradict feminist and comlllunitarian notions concernlllg human rights. S2 This second type of rights weariness manifests moral aruaeties by tb e power of the suggestion that the very idea ofhUlnan rights is a 1II0ro/ nriSfakt. It is unnecessary, for my present purpose, to deal with this kind of COn. tention. Sl But it remains necessary to draw attention to this enormous ethical enervation with the languages, logics, and paralogics of human rights.

.upported agalllst the ' imperialism' of a solitary superpower. In these:

.aornents. a natlonalist defence of state sovereignty and sovereIgn equahty

ol all states becomes curiously unproblematic even for the practitioners of eM poiLticsfor human rights. Indeed. an all tOO trigger-happy global policy of A&x /tmeri(a tlo carries with it high costs of escalating human rightswariness in communities where emhusi.asm for the protection and promonon of h uman rights has developed .as a resource, howsoever fngile, for tDJ1Sformative practices of politics. This surely bodes ill for the future oChuman rights. At other moments, when charactcristie
X H uman Rights Wariness (1) Types

of Representational

Powm

Rights U'OriIlW chancterizes the communities of perpetrators of human rights violation as well as the communities of the violated, Oil whose behalf (though not always at whose bt>hesl) human rights activist practices speak to the world. Articulation of rights wariness involves the problematic of "pftS('llIoliolJol polWr. Given the logic of sovereign represenution of'peoples' by 'states" and of states In turn by political regimes .and cliques, it becomes often p!»slble for the he.ads of states and governments (no matter how they reach the pinn.acle of power) to claim pre·eminent representational power to speak on ~h.alf of their peoples. And they .articulate typical forms of rights W2rincss. One fonn of it provides the representarion of contcmpol'2ry human rights t",dilion as a thre.at to civilizational and cultunl values, of which of course the leaders and the regimes claim to ~ exemplary guard· ians and custodians. Another, and related, form consists in the represcn· tation that condemns cOlltemponry human rights .as lx=ing itself a foml ofadial evil, one that needs to lx= condemned in the name of God and the Holy. Yet another foml of rights W2riness takes an equally strident secular voice: COntemporary human rights, 'Western' in their origins, are langwgcs of necrcolonization, concealing new designs of a progressive Eurocentrism.S4 But this representational char.r.cter is ambiguous .and multiplex, affect· IIlg the pnctices of what I call the politics oj and politicsJor human rights. Vigilant rights-wariness, as an attitude of confrontation with the polities 52 See. for an excellent anaJyslS, Su~nna Sherry (1986) 543 II 590. H~r. the defence of the Idea ofhuman nghts and the wk of demo nslI;1tLIIg that nghts arc nOI anlnhell(al to lhe rommUllIty has been provided, gcnmnally, by the life-work of Alan G~rth. See, especially, hiS re«m work (1996). 504 Cf SI;lvuJ td.ek (1999.) 1)

pcoplts. H~er. incre.asingly, human rights communities also seek to exercise IIfIaenucional powcr 011 behalf of the violated, the very time and space «what I c.all the politicsfor hum.an rights. Just as state managers often ~nce human rights univers.alism, so do some thoughtfu l and an· lIMbed acrivists. Some activist thinkers insist that universal human rights ~ is after all a global agenda that threatens the 'pluriverse of thought, 1CIiOa. and reflection. ,55 They insist, .and often with good reason, on the '*ed to break free from the oppressiveness of the Universal Declaration tfHunun Rights'56 (and its progeny) and struggie to avoid locating inside -.elf the ' re· colonizing', 'contemporary Trojan I lorse' called Universal ~ Rights.S7 This kind of manifesution of human rights W2riness illdicates a concern for plurality and multiplicity of activist perception that ~ .and ~llerv2tes at the s.ame time the future praxis of human rights. '""'P'Otallo ns III comparative SOCIal theory of human rigllts are urgently :!u,,=d to ~sess the diverse potential, for the future ofhum:lII rights, of · ...·"·wariness.

•

56 GUuavo Estcva ;lnd Madhuti Sun Pr.tkash (1998) 25. fhld .• 126. ibid. 133-4.

84 The: Future of Human Rights

"!be pra.::rices of 'Contemporary' Human Rights Activism 85

(iii) ~ri"ess

(;;) C..i«<.... Th~re a r~ other, less dramatic, occasions when communIties of P
• d~monstrate th~ dualism of standards in the ('ValuOluon of hu rights performance;S8 ~ ~ te.stify that the Noreh consi~ tently refuses to ,assume humOln rights obhg:Ulons to the South, whether 111 terms of "fHlra11OII.s of p;ast injUries and mayhems inflicted 011 the ex-colonial societies and indigenous peoples 0( th~ world or in terms of dedication of even a meagre perccntage of its resources to alleviate conditions ofextreme global impoverishmemoUSc'd all too oftell by its own global economic domination;

• archive the betrayal, ('Ven burial, by the North of its human righb cOlluniunems, especially through its promotion of regimes of indebttd. ness and policies of 'structural adjuslment,;59 • critique, in the arena ofsU5binable development policies, the North', failure to assum~ burdens commensurate with its sdf-aslollmed leOldcrs!up role ;60 • lament the human rights diplomacy of the North , comphcit of tht worst viola lion of human righ ts of the peoples of the South both In thr Cold War and the now nascent post-Cold War era,61 The politics I?f human rights in the South, naturally, seeks to US( dus commonality between itselfand its Other-the politicsJar human ngllBtOw.lrds its own ends. Rights wariness, in this context, has to combat. 011 the side of activist thought and praxis, the extraordinarily riglus-denyt" political appropriation, by unscrupulous national regimes, of their cntl~ of global ·order'. The mode of negotiation of this constant and fe appropriation has much to do with the future of human rigl lts . SII

. . ((]I' The Nonh IS un:lble. despnc Its proud boast 10 Ill:lkc tiI l: WO rid I$.I(eunJII' democr.II:Y, 1$ unwilhng 10 create condirions withm Its own Jurlsdl.::tlOn 10 c I~IJI)III . . d fb"""lll VI( .::m:UIl1 5tl1nCCI and pD.::u.::es that en,::our:lgc masslV<:, ongomg. an ~.of hun un rights at homc. S'J SUs;ln George (\994). nd fOOd t.O Sec, gcnelOllly, the neport of the Imemauonal Commi SSIon on l'eac~~ India" c (1994), .::h.urcd, not surprisl1Igly, by M.S. SwanlLn;uhan, the' at her 'ofu. ' Green nevoluuon! 61 NO:lIll Chomsky (1994).

of rltt

Vwlartd

W2rinCSS IS also IOcreasingly an a ttribut~ of the consciousthat finds th.:1t the perpetrators of the gravest Violation the ethic of human rights to serve their own ends . The 'origirury' habitats of Euro-American cultures provide cl1a4 11ft· for the wotSt perpetratOrs of human rights Violation-from _UveD ;;a Pinochct. They fed mystified by the see-saw of judici;al

j

.5'*"'~~i:"~~.~ThCY weep one OY.·cr gives today as rights can be bken aWOly . tomorrow. Their rejoicing is authentic when a judicial ~:::?~,~,~ powerful hap~ns. But they also remain aw.lre that PI . Judirul discourse, which preserves the autonomy and of heads ofgovcrnments and states, in the title of sovereignty ~"''''''Y. may still preserve mtact structures of repression. The protection of their human rights under the auspices of cfhuman rights is a contingent feat; and they join, if at all, Corand gra~e, cOludoll, the heralding of rare Judicial triumphs as the polmalfor human rights,

Ii!'

11te Practices of 'Contemporary' H uman Rights A.c:tivism ff7

86 The Future of Humall Rights

XI. Dial"", In cre~lTlgly. everyone IS asked to believe that the bc~1 way fo

-"" 111

;;atd

dialogue between the communities of the violated and the 11 tbt But the production o~ ~he best way forward dlfTcr~, dcpend~tr;fOr\ loc;atlon wnhlll the polmcs of, as . well . as jor, hum;all rigl'b . My dIStlne· g on ...Ib_ also sunds severely tested on this terram. ....'1] In the model of the politics of human rights. 'truth eOllllllLSsio . their poor cousins, called intcrIutional hC:l.rings,63 embody this tJ:nS and towards dial~sm. It will take this work far ;afield to explore, even ~n ~ outhne. the history of recent truth commissions, their funcho . "elearIy. truth commiSSions .. os, and ' reCover narratives of suft dYSlunctions.

dt

in seeking to impart the edge oOmman suffering to human righlSdiscu~nng Because of their national, regional, or global auspices, truth COlllllliSS: often marshal a range of authoritative data, often denkd to hUlllan rigbb NCOs' fact-find ing reportage activities. More importam, the former carry some potential of policy action that the latter, at best, unevenly colllnwxi. NCO reportage m;ay primarily expose; it may influence but not dirccly comptllS2tc victims, rehabilitate them, or exercise prerogatives of punishment or pardon. These rem;ain the tasks of sovereign SUIC power, ~ less of how one Imy prophecy the end of the nation-state. All this is wdl known, as are the large questions th:lot surround dx processes and outcomes of truth commissions. These reb.te co wap III which such devices result in the promotion and protection of huflUll rights. Clearly, when the outcomes signify outriglll grants of amn~ty 10 dle most helllous violators of human rights, il stretches the iUliIgil11Uoo to assert tlut internatlonal!r-binding human righ ts treaties and custOflUfY law are protected thereby. It is at le~t ;arguable that regimes of anl~ and confident future violations of hum;an rights are positively correlated. 6J

uu~hcd, mosdy by colKemcd NGOs. :oIt dIC Site of v;l,rIOU5 Unned NJIl
5ummlts In recent YCHS. 6f See, ~~sclll~ B. I layner ( l~

~5;. UFli,tt/ Nario~1S Commis.<wu

011

HIIIII"II-::

Sub-C,,,,,,,uiJlon on Pm>r!IIIlHI rfDis.r",n,"4f10n (nlJ PfO{ffflOIl rfMmo nll(l; SIUJy()rltt/ ,#III

,/It Righl'o Rnti'"rWn, ComptnS4liou alld RrhabililIJlionfOr vl(li'~ifGftISS Iljolallon~~. R(fhts lind FUIIIJlltllfn'lI1 FrMIomJ UN Doc FJCN.4ISUH.2119'JfVIO.July 26. 1 • vln Hove n. Spcci~l Rapporteur; and rebtcd materials Cited 1!l Ch~pter I (... 6S GcnCr.ll anmc~ty 1101l .nd . d ll11111 , rights flU rogrns eml)()(h~od. for =mple, III the genOCide. IOrlurC, .scn anti-apartheid convelltlOlIJ. thr Co"'" 66 See. the Umted Natlolls Commi SSIOn 011 Hunull RISllls: Heport on sequences of Impurity. UN Doc.FJCNA/I99CV13 (1990).

ioo......""~,,,d'""':III)'_O~~'~~~:"~'~::~~~" politics of memory only

cn1JanCe the pT:lctitts of the politics of organited oblivion. at ~;:~~~~~~;:: ofpcrpetmors. It is unlikely in the extreme!lut

feel redressed by h igh moral summons of fOrglveness and be bygones. Those who have expenenced genocidal 'forgiven ' by the community of human rights policy refuse to bc persuaded to take such counsel seriousty. fo nn ofdialogism occurs with the emphasis on the . . . . DOl universality, but of plun'vmality-a diSCOUrse thaI takes ...,. ... moderate perspectives on ~ u m an rights. The fonner ;anchors . . . cruth of grass roots expenence and vision that enables us to :

........ . ...

~ in 1 um~rse.

but ill a,pluriunivcrse; that the universality in the by human nghts propag:.tol'S exists only in their mi-

'::~::IU~~:~~,:~~~::,j:,

based

of'intercultural hospitality' a dialogue which chan~s its own

~

~:~~~;'m::od::erate' forms ofdi;alogism insist on thc construction ~

. . of'universal cultural lc:gitimacy' for the standards lDk'nu~,onal h uman righ ts. Xl Put another way, dialogisrn mutuality of hu m:l.n nghts responsibilities through the re~uch tha.t no cultural or civl lit;ational tradition be devoid of crucial ideals of human 'dignity'. 'integrity', ~lcc'm o r self a.n d soci;al worth. Abdullahi An-Nairn's iIfIlsIamk on what he calls 'constructive methodology' (for the Law III WoIys tha~ makes it compatible with human rights

:i1S

~~~~:;:~')n'~h~';'j !P~";~C:es ~n constant. and creative, interaction and IDd th

III the rullT2tIve paths of'tradition' 'rnofuture of;a constantly self-difTerentiating, '~"'ogi.coI Ity, :"!tatcver be the fate of the implicit 'theory,' the _r."'ksdllt Summons for critics and evangelists of human , I !"'1Iic..." "f Oun yimpo . rtall[ Irom t Ie standpoint of those violated o POWer III civil society d ' .1 ' With all I " an state III ule circumstance t lelr dl sagree mclllS, the r;adical 'grass rOOts

hu~ommon

Snglm~yer (1992) tl2-169 ::.-~, and Madhun Surl llrakuh (1998) at 125.

AIuncd An-Nairn

(1992) 431.

88

The Practices of 'Contemporary' Hum:m RightS Activism

The Future of i-Iuman RightS

postmodemists' do not s«m to me to have much to offer by way of Pr':I.Xl1, after the ghosts of 'universality' have been finally slain or pm to rest. Other fomlS of human rights dialogism practi~ the idea, for exanlple that a handful of NGOs can dialogue with a handful ofCEOs of ll1ulti~ nationals to produce implemenution of human rights results. In a se:~ this remains simply Quixotic because the latter must inCV1ubly dcplo; such dialogue as elaborate public relations/media invcsuncnt exerCise: .aitntd at strengthening their business competitiveness. This may seem harsh to those hum.an rights friends who devote their energies and ulents to producing volunury codes of conduct ;,m d organize effective consumer ~is.. lance. I appl.aud these effortS with the c;aveat that such dialogism may not always perform inter-gener.ltionally.enduring human rights accomplish_ ment, especially when ethical investment becomes, at the end of the day, no more than a global market practice devoted to enhancing competitive edge. I do not wish to seem to deny, stil1less to gainsay, episodic human rights windfalls that matter a great deal to consumer-victims of unfair trade/market pr2ctices. 71 Nardo I wish to underestimate the contnbutions that Naderite and post-Naderite consumer movement cultures have made to the growing corpus of human rights-based pr2ctices o f resi:.tance. These have, undo ubtedJy, opened the locked doors ofcorporate wrongdoing. and at times in ways that 00 matter to here-and-now peoples. But tilLS havlllg been acknowledged in all its fullness , it also needs to be noted that the structures of global capital remain hum.an rights-responsive only in terms of marketlindustry competitive adv.an~ .72 Tow.ards the end of the twentieth century CE world, profound human rights violations a~ no longer the sole esUtc of sovereign sutes or orders of rebellion (so typical of 'civil' w.ar or strife). The nussive formations of global c.apiulism-whether manifested by transnationaVmultlnational corpor2tions or international financi.al institutions and their nom\advt cohorts-have .also shown a remarkable resilience to legitimate grave and continuing violations of human rights.as people victims in Ogoniland and Bhopal , among myri.ad others, know and tell us. No doubt, devices of peoples' tribunals (such as the Pennanent Peoples' Tribunal, a successor to the Bertrand Russell Stockholm Tribunal on War C rimes 111 Vietnam) offer innovative ways of~. But these sc.arcely archive even a prctiminary orienution to the articulation of transition to a human right:. regime. forms that may articulate 't/lr rigllllo bring I,ulon'fal capita/is'" 10 lrilll ill (/ lI'lJrld 71 Sec, for a VIVid accoUnt, Leshe Skbir ( 1995), and Ch.;,pccr 9. 7:1 Should you doubt thi S proposition, you only 11«<1 to IT<J(/, IM:r and (~r ~III. the ge nre of literature exemplified by A Cil1il AtIioft.

89

."...r1l For those victimized by the processes o f globalization, nothing mort insistent today th:1Il such a venture. ICCftlSl)ialogIsm assumes proadur21 deliberative rationality, which accords che dignity of due process to the most heinous perpetrators of human, .... human nghts, violation and to those who accomplished wholesale liqUiCboon of that very notion. But this runs a gr.lVe fISk ofdelegitimation ~t me violated of the very idea o f human . nghts; they may juIdY decry the speclacular reproduction of human nghts-oriented due ~ p.anoply of protecti~n to those who qui.te con~c:lously deployed dItir gcllocid.al prowess agamst peoples strugghng agaUlst such powerfOrmations?' The due process fetishism and the valourization of 'nell_handedness' (exemplified by the South Mric.an Tnnh and RecondIiaQon Commission in a 'both-to-blame'-type moralism) does r2ise .-.e issues concerning the mode of p roduction of belief in the idea of 'human righ ts' among the growing communities of misfortune and iI!fusticc.75 For the violated, sllch fonllS of dialogism seem to serve mo re • • shield, than as a sword against the perpetration of terror as a mode fi.,..-emance.

XII. I-Iuman Rights Evangelism ~tgI':nce of human rights faith communuies is, as Iloted earlier, DIXIble feature of the worldwide promotio n and protection of hu_ nghts. The Illternation.al Bill o f Human Rights is their sacred text; ~ rights education is their mission; and the peoples of the world . . con~gation. The evangehstS believe in the power of the Intl/ltfQ of iltlenability, indivisibility, lnt~rdependence. and universality. TIley aim at al:iod of moral, even spiritual, regeneration through creation of human . . . . CUltures in which ~;J.ch and every human struggle will ~ converted at human rights struggle. In their endeavour, sonle human rights NGOs PI'Ictisc robust dialogism with the worlds of power and comm unities of Pftpnrators; they believe that human rights .aspirations and values can ~

•

~

hilt Bow."entur.I de Sousa Santos ( 1995) 359-60. The (ur of'fe
-1:"'ment.

~E~n the internatiQnal Ccwt nant on C iVil and fuhtiC;l1 ltights TerogrllUS the ~ of ~UspcnSlon ofhuman rights III tlmeJ of emergcncy where the 'emergency' '1\ .tt-t Itself
.See the agonitmg Judgement by Justice blllal! M~homed m ....tw,tia,. 1>nJpIn' v. Pmidnrf oj/lit &UfliAjrif" (1996) (4) SALR 671: and the critique, bw perspective, by John Duggard (1999) 277-312.

1I1~mulol1ll.l

T he Practices of 'Contcmporary' Human Rights Activism

90 The Future of Human Rights

rmdc to penneate structures of state and global corporate power. For the . mngeJists, human rights constitute a new civic religion. TIle communities of religion, notable precursors and compamons to the 5ttUlar missionaries of human rights, incorporate aspects of the human ~ts faith as all integral aspect of their belief and practice. Most notable has been the historic work of Church groups who have not merely rc· VI'OI'ked their dogma (as in the case of liberation theology) but have been xtuallyengagro in human rights struggles from apartheid ~uth Africa to Us! Timor. The Church associations have also led, and at urnes funded, the activities of human rights groups worldwide. Together, the secular and religious evan.gelists p r~~ote a J'O":'er:ul ItlOriI vision. The fact that it is highly susceptible to political appropriation (as was the case" during the Cold Wu and may even be said to some extent 10 Ix: aspect of post·Cold War politics) does not gainsay its authenticity. ~ history of human rights evangelism has yet to be written. But when it is written, the role of evangelists in shaping initiatives for human rights tduc.ation. and even nonn
XIII. Human Rights Romanticism , AslIlgular feature of .contemporary . ,lUman n'g Itsl '"les

III

"" poP·'oU'd

presence ofNGOs at the site of norm--<:reat~on in global cOI1(ercuc:~~~. summits from Rio to istanbul, and the ntcVluble: reviews styled as .ts FM:!Plus-Ten' review confe~nces. The UN confe~nces and surnnl~ Iuvt provided an unparalleled opportunity for bringi:ng the blirgeo~1 as growth of NCO communities around hydra-headed issues ~uc.gI ts bodiversity, population planning. development, habitat, and women s n I

91

human rights. Each of these events is marked by a series of 'prepcoms' r;ltory committee meetings), and followed by the 'plus-five'/plus~iew meetings, allowing for participatory stocktaking of the COIllananc nts made by the state parties or by the heads of governments. AtcJ'tdited human rights groups enjoy observer SUIUS III the dIplomatiC conferences, where they seek to lobby governments to incorporate what they think [0 be more progressive texts or fornlUlations. This sum mation docs not do justice to the rich diversity o f the proa:ss-a usk for another treatise. Anyone who has the pnvilege o f partici. pation O f has followed events closely knows about the great alli:mces, coalitions, caucuses, friendships and enmities, and netwOrks of power and iaBlKnce characterizing the enonnity of NCO interaction among them· Jdvn and with their governmental Others. I look o nly at the aspc:ct of t.uman rights romanticism that such processes generate. By 'romanticism', I designate the processes of politics of hope an d plwill, abundantly present at these events, which gi:ve NCO participants • ..:nse of achievement disproportionate to 'real' life accomplishment. Coastructivism, however. teaches us all to take with caution the no tion of . , 'rea!' ; to be sure, many 'smnmit'-going NCQs feel truly e mpowered the participation. At the same time, most actual ungible outcomes occur DmSofcarefully circumspect texts of declarations and programmes of 1CIion. These entail the famed battles over brackets. The drafting process ~ly e n ui l s a large numbc:rofparcn thetical fonnulations, from which choice has to be made. The NCO participants seek to innuence, !Jrotasonists or anugonists, theVolrious bracketed formulations. The best brightest NCOs dedicate singular energi~ to this task. Successful lltib,ingouocomes are usually experienced or presented as historic achieveIIaIts of NCO communities. Dtcentrahzation of international human rights nonn--creation is, of "*nt, a creative innovation of the: last quarter-century of the Age of Haman R.ights. But there are costs, too.76 And by 'costs' I do not draw IItImtion to the astronomic investment of resources enuiled in these ftitob. facilitating NCO-state interaction, though this, when put together, ...,. exceed several times the national budgets of many a less developed

•

..-1he

~In d~hl1c:llmg th~

COStS, I rel y on my dose omcl'Vl:f'.mvolv1:me:nt WIth !IOlIIe: . . . . t"1CIP~nl$ m dlc Copcnhab-en Social Summit 011 IXwlopme:nt. the Beljmg mfe:n:n.cc on Vobme:n. and the: Isunbul Summit on I bblUt, and my own In the Vicnna World Confe:n:nce on Iluman Rights. I n:m:lln aware that J offer remam 'pre-scientific' (bued :IS they are 011 personal clCJ>Cri~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'f IOThis IS ulesapablc beausc NGOs, 111 order to funcuon df« uvd Y, !lced: Jrrd kS pohc~ or awr~he5 concerning: rccrll1tmenl of pcnomld. allocauol1 of 1111[' n:sponslbllmcs. ovt'r;rll ooordrnal101l of:rctMID programmn. mech anismS of ilCCOroJeIabllrty. loy.Ilty. and Cllllandcne, capxlty.btrildLIlg. and $usumablc le:rdcrslup See. genmlly. A. Fowkr (1997).

...,...1\0.

93

further entails the passa~ fro m the ciurismaric to the more rou.

.....-tiDiJCd leaders h·tp.81 Bureaucrattc. NGO cultures also devdop Wlth the aced 10 raise rcsourc~s adCCl.uate to human rights prOJects; in the process,

itIJPW'. and human ~gl l ts, Vlolauon always beoomes proJectized, We noritt . . COfl1plt'XIty of thts aspect ofbureaucr.atlution of human rights tn some deWl in C hapter 7. foe the prestlll purpose, dIe development of the national human inst~tut~O ns (NHRls) r~lllains adequate to tllustr.ue patterns of ~ucrauZ3Don o~ human nghts. These institutions typically include ombudspcrsons. national human rights commissions, and other agencies f.{fK c:x:ample, for th~ protection of human rights of women. millennially dcprMd peoples, d~ sabled peoples. chi ldren. and d isorg,mized!unorgJ._ ailed labour) established under the state auspices. A recent comparative _ estimates the existence of about 300-500 NHlUs, 'of which, .. the . . popula~ type". n~iona l .h uman rights commission ... has at least ..-trupled s.lIl ~e I ~. T he Impact ofN I IRls, in general. and h uman ...... commlss~on s. I ~ particular, is hard to assess. A comparative study 1If'~ Asia- Pacific ~e,gtOlI measured on Indicators of'agenda·seuing. n ile -.on, acco~n ~ bl hty, and socialization' suggests indetenninate h uman Wafla-cntunciIIg Impact, w h ile demollstraung problems of'independence tlillllparency, and relations with NGOs'.1O • • story, then, is the same almost everywhere: more and more state ~ Me established :lnd justified as a creative stlte response to peoples' ~ fo r a futu~e making human rights secure. Large agencies with ~n~ high governmental visibility nourish everywhere. Their for sl~ficallt .action varies enornlously depending o n specific uhm "" mcJudmg thos< ["""ed by the ;n"",;ngly priv.t,;,ed ~zed nuss ~edla. ~bsent significant public participation in con. esc .age n~les. their personnel are both regime-favoured and ~ ~ ~ IS thelT ~rfonnance. The logics of ' Institutional trap' bc... asmglyand painfu lly obvious as thei r agenda grows and tasks __ ~el1.surate resources, multiply. Excepting when these agenci~ _h:uCttlve adj.ud~catory fo rms. they tend to become yet another se for aspirations of h uman rights attainment. S4 And even when

,.15

=ry Ei

_':'mdmg

;

. Slu meem 5 dd

;:~=:~:;;,

(200

I Iqlll I) explores sollie IIltl"KUble problems of $uccession of sccond-lmc Ie~derslup. Cardelus (2004),

(2004)

al 44.

e: '''",''''tt'"Ln' ~) otTers a more quahfied and complex plC1lm:. Hut the obscrva. PUt e",~ lex! rebtc' to the ambivalent r«epuon of NI IRls, I nnill1~ for USlasm nurks the ptOpo$ll for the esublisbmem of conullinions

94

The Practices of 'Contcmporary' Il uman \tights Activism

Thc Futurc of Human Rights

they assu mc an adjudicatory form, moments of anguish at their fe.. ts ovcrwhelm m omcnts of celebration. Prcscinding all this, it remains the case dtat such agc npes burcaucnUlt human rights and hunun sutTeri ng. Sene/governance reform IS scucely enhanced by human rights communities indwd ling the habitus of the state ideology and apparatuses. They ugularly confiscate people's Jural IIlnova. tioll and inventiveness. T he futu re of human rights, if any, lics 1I111111tnling fomu of ptlrtiriptllOry gownumu.

xv.

Human Rights Realism

By 'realism', I wish to draw attention to a perspective that insists that human rights values, standards, and norms are created by people's pT2XeS o f resistance and struggle. H u m an rights activism merely provides an aspect of these praxes. O n this perspective, the originary narratives that trace the birth of hu m an rights in dIe Declarations of the Rights of MD/I need re~l acement by a h istory of human struggles for human rightS fu tures. l luman righ ts realism, in my sense of it, is the precursor of 'contem porary' human righ ts. To realize this, we need only to ask.: would decolon iution ha~ become the international noml without peoples' struggles associated with leaders such as Gandhi, Mandela, and others? Would apartheid ha~ become a scandal b ut for Gandhi and Mandela and his followcrs?Would the mottO, 'Women's Rights are Human Rights'. havt been conceivable in the absence of the heroic suffragist and labour movc· ments? Not merely this. The UDHR, the twO Covenants, all the conventions on gender :lIld racial discrimination summate the triumph ofhullIan My colleagues III Ihe Indian natiolUl "WOmen's It"KJV('nlt'nI elnlt'd me for a .... hlk fOr opposlllg the land of IcgIsbuon that now estabhsht'$ me Women's ComllllSSlOO. So did Illy human nghts fnends for my opposition 10 Ihe way III whl(h ttlt' Indian HlI.mn Rights Cornnllsslon was structured. Myoppositlon was based on the premise Ihal!best boches may cnd up posing yrt another hurdle for human nghts activism! Fortunl~ty; thiS hu nQt been quite the QS( with the human rights ,01l1l11lSS10n InstallceS su~7 occur wherc the prcscll« of these agencies have been margmally useful !JUI, ~ cd l :KIIVI)I (On5('115115 SU~Sl\ tilal their eXisten(e and funclioI1IIIg h3VC ~ISI.) cOlllpha nghlJ and people's movements. th II! To rei terale after all, It was a nun ,ailed 111ak. who :tlthc birth of Ihe ty,."Cnt,l( n century CI!, prodallnro that 'SlI'tlrlfj (decoloIllUotion!indepenclcnee) is my Imthrwh', '10> usemon that earnro hlll1 ~v.lgc solitary confincmem III srlllS h In d u b III \111m"''''' _..-d 1ilC: nude It lIl(oherent. And It wu a man ailed Mohandu G:mdln who (01111"'''''- If" tint essay of refusal of early forms of apartheid. Genentlons of legt"n~"ry WO::t4e confronted Jntrun::hal pohlla III the We~t whkh found 'hbenl delnocn<:)' com~ With Ihc (lViI and pohttcal discnfnrn:hlSemcnt of women.

95

rilh cs m ovem entS-movements

that fina lly tramfonned 'modem' intO 'contemporary' h uman rights paradigm.

XVI . ' Freedom's Children' and 'Midnight'S Children' The practices of contenlpor.uy h u m an nghts, thus, remam enormously

varicd and connicted. Thesc practices embody diverse mtcrest and valueonrntations, all under the banner of'human rights'. And these enable the 60urishing ofd ifferent fonns of politics ofandfor human rights, imparting boIh a m easure of cogency and incoherence to the field of human rights whole. This rich d iversity may in itself constitute some sort of human rights accomplish ment, insofar as the many ways of rights-talk and related fOrms of social action tend to create (to borrow the felicitous ph rase of Ulrich Beck) 'something like a to-cptralillf o r allnsisfit i/idividllalisll1'.SIJ But it another sense, the forms of hu m an rights wari ness and weariness, e.pecially of the violated, may pose substan tial setbacks to future deveIqnrnts in the p ro m otion and protection of human rights.

.3

'M+rtthtd of I/II!: tartll lIIIift', ~'I lIaw no/Mllg 10 lcut bill lilt chaills of IIIlIflali ""«rivism ' may well become the slogan of tomorrow. When the violated

W that like previo us languages (of distributive justice, revolutio nary ...rormation and the like) 'human rights' languages, too, fail to address 'lfabdeMness and violation, the future of human rights must 1>«ome IIdica.IIy IIlSCC UTC. Ulrich 8e
..

Ulrich !hie (1998) 9.

Too ~y or Too Few Human RightS?

'gins enunciation). It is not clear what arenas the n actually addresses. Sitn of human rtghts prothe arenas: sites for normative and institutional pro.,ary -centric' peoples' struggles and SOCial movements fC11l311l state , . .. d I . . for human rtghts enunC131101l an comp lance; various netwOrks constituti ng intergovernmental and conduct and operations constitute ncw sites for human and achievement. ikU)rs designate a complex field, already III the prevIous chapter.) Their deliberative labours of concerning nonns and standards only offers a panial and overproduction. The problem of resOflrces for and standards presents a crucial dimenof'overproduction' rdates the costs of with costs of implementation of human rights at all levels. entails the labours of both critique and reconstruction and h ...."'" on the ongoing production of human rights norms and

buma

-------------------------------------4 Too Many or Too Few Human Rights?

I. Production of Politics and Politics of Production s it the casc th~t we IlOI.v~ too ~any human righ~ enunciations, sUcb that may be said to entail a en sls of overproduction of human rigbl1 standards and norms? Does the endless proliferation of human rights norms and sunducls {'uuil a policy and resource overload which no government or regime. howsoever conscientlolls, can bear? Is 'O'o'Crproduction' an aspttt of global production ofbdtt::fthat each and every nup human/social problem can be best defincd and solved by rccoul"S( to tbr talismaniC human fights enunciations? Or IS It simply an aspcclofswtep: interests purmed by States, transnational governmcllu! netwOrks, and (:ntrcprcllt'urs of human rights activism generally? Funher, what may \W say to the contemporary deployment by the muhifanous, CVclIllotOnom: harvesting of these talism:mic properties?' What 'politics of producllon and 'production ofpolitics'2 informs hum:m rights overproduction?, The no tion of'overproduction', of course, rests on many assumpuO!U concerni ng the arenas, silU, MIOrs, resourw, and rejlexivity. Armas of production of human rights nonns and standards vary both spatially (mternational, supranational, regional, national, and local) and temporally! . I dC""t"""T terms of histones of cultures of huma.n rights and IIlsututio na mem if only because different exigencies of power politics shape new

I

I May Ihe aggrc.-gal)()flS of Qpltal and teChnology be dlu bkd at.,.";!)'" from~ . 0 r ItS n gI liS as IlUtn~l1 rightS!> I llpon Ihe eapluhn belief thai prOlCenun I rul' For assurance the~ 15 for lhe amelioration of the hfe-
rn

n

the politics of the production of human rights nomlS and ranams encyclopedically constrained; these norms and stan~. like the Biblical camel, through the eyc= of the needle ~rlapp\llg, and conflicted state sovereignties. This is the • • wby 111~1 human rIghts enunciauons at all levels (national, regional, and international) are slow III emergence and . H I.!.lorics and fomls of the politics of production shape I distinction between the ;hard' and 'soft' law; the scope of trafficking between these forms-owhich laacr in tillS chapter. Further, the relation between macro, ~~:';: politics of production at various sites of human rights ~ remains extremely important. sites ate populated by experts, by beings recognized by networks, entrusted widl the task of for:~~=::::~:;~::::~: norms and standards. Expertise stands constituted

1;~!~~:~~~;:~, and messy dynamics of power and parronage. ~ IIlforming its constitutio n have varied. With the ideological representation in the constitution of the

.:~~~Ui"l',hl,'"u;.;n~;",';d~l ;N~~';'i;~o~n:,s,;s:Y',;;. '~;';m';,;n,;O"n~lo:nger prev'llls. Considhappily gender parity

I

conStitution o f hUl11an rights expertise withi n the United Other govemmentaVintergovernmental siles. Overal l, I

finely nuanced

an~lysiJ. John

lJDliliwalle and Peter Dr.ahos (2000).

T oo Many or Too Few Human Rights? 99

98 The Future of ' Tuman Rights a mix o f SlructuI7I1 constr.lints and functional auto no my char.lcterize such eKp(:rtise. an a~a under(:XJ>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'
T oo Many or Too Few Iluman Right!>?

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<.r. movement that transforms them into a full nonnative enunclatton . f the 'jurisdiction' (reach) of rnovcmments d~ not match thc praxes 0 14 Ammya Sen (1981): M,ke Dn,s (2001). Sec. JOilllna Macrae and AlllhQny Zw. (1994). 16 Shaheen Sardar Ah (2002).

103

~ of popular sovereignty,

in the deepest sense of counterin[¢marshalIiogfunposlllg an overweening allegiance of state and society. Fonns of pcoric and programmatic aspiT2lion and achievcment lead neces~rily to spcciJlization in responding to hllnunlsocial suffering. Tosay thiS IS to pose _ contnd lction betWttn the concrete labour of human suffenng and the abstract labour of the production of univcrsal human rights lal1gtlab~s. In ally evclll, thc labours of suffcring (that is, acts, practices, formations ~ ~isQIlCC' that question the legitimacy of sources of suffering) rurnish cht . , history of authorship of human rights and their futures. Any 6acu~ writing of the history of the formation of 'overlapping consensus' III intentational human rights production presents a contested terrain. How may we relate thus the lived labours of suffering with the human riFts diplomacy, necessarily overwhelmed by usks of negotiation that IOIIIdK>w render amendable, often heavily 'bradcr:ted', texts ripe for linresolu tion by the community of the heroic rights-producers? How . . , wt distinguish the difference of degree, even of kind, between the ~ but vital sectors of international human rights production and the ;..J sectors of dIe norm-creative political economy of human Tights? . . . bbours of the social reproduction of the labours of suffering sund .... transacted? How do patterns of activist human rights diplomacy wpoduce, even replace, this vast informal sector? Unlond, and mil7lcut..Iy ,urvivlllg, 'post-Marxian' folks may even say that continual illIlDIII forlll) of human and social suffering signifies performances in ....wcltlon; that is, the more the production of human rights norms and ~, the less visible become the material sources of their violation . . the differcnt modes of production merely tIS(: the specucle ofhulluni ..aaJ suffering as raw materials for the strategic production or OverproiIIaion serving the manifold strategic ends ofgovernance and domin:nion.

.-ac

:...aoo

!:a

Ill. Production and Markets

notion of 'production' is usually associated with markets. Human ~rkcts (brieOyexplored in Chapter 7) include both marketsfor. and ~ n ngllts. In the imagery of market, human rights enunciations -.;, ,of Course, as symbolic public goods and services that seck to n certain modcs of thc production ofbelief. 17 The production of the ~I sortw.lre' of contempor.ary human rights IS a complex and con"!'.....,'1
'caItu

IJ

- . gt'ncl7olly.

[n~ Kaul. tI 1M. (2003).

104

T oo Many or Too Few I luman Rights?

The FulUre of Human Rights

In the absence, or more favourably put, the nascence of a comparati~ social theory o f human rights, I address here o nly the i~s ue ~f overproductiOIl1S a contlictcd site. Overproduction impl ies a relatively (111)cfficient business practice, one capable o f redemption by planned dUl1lp~ng polic1Cs, for eJQ.mple, manifest in (cruelly for captive markets) n ghts-on ented good go~mance policies of the World Bank. 'Overproduction' ca me~ with it the management overload typically associated with the management of excess. Ideally, production of goods and services should be marked by efficiency, constructed as production no t just in terms of the .quQmif}' but also theqIUl/iry. In global markets. at rimes, costs of 0vc:rprod~cnon of ~ and services are passed on to captive consumer constltUenCiCS of the Thlr(1 World. Shockingly enough, this may also ho ld true even for [he production ofcontemporary h uman rights norms and stmdards. For exa~ple, not just the White House and Capitol Hill, but distinguished Ammcan scholars are often heard to say that the disinclination ohhe United States to ratity international human rights instruments is understandable, even jl1stifieti, by the existc nce of a nourishing tndnion of constitutio nal nghts and jud icial review. 18 In comple~ ~Iain wo~ds, th is means ~12l overp~oductJon of human rights is an altru1Stlc exerc1se for the bemghted Tlmd World societies in their historic trySt with democr.atic self-governance, The 'logiC', to.put the matter rather strongly, 15 similar to that dcployed by the capums ofshoddy pharmaceutical products in justifying expon ofhaz.ardous drugs p rohibited at ho mel . ' . At the site o f production, namely the Umted Nations system, effiCiency in the productio n of contempon.ry intcmation~l h uman r.igh: St;ln~rd5 r.aises new and difficult issues19 as does the notion of quality. EffiC1ency 18 The doyen of American human rights romlllunit)< Professor Loms l lenkm, for c:x:..mple hlIs maintained this VleW consis~lldy. AI a rr:a:nt Harv..rd II1Iman Rights Progran:me meeting edebr.lIUng the fift~nth year of the prognmmc (16- 17 ~ ba 1999) he reiterated his VIew dUllllternatlonal human Tigh ts nomls and sun ,_I cnnw . -" s may not be neeesury, or even deslnhle, ,or Ihe U nll~'U utes, i gIVe nr Ie blCClll strong trachnon of Jlldieia\ review. . Ie vICi 19 Judgements about efficKncy of human nghts produetlon ",l1"'I
panICipatlOn as .......:11 ;as leve ls of cxpcrMt or mSIght;

105

.-; <;und for cost-effective production of hUllla n rigllts standards and gOI'fIls. This is a matter, but only in part, of available budgetary outlays widu n the United Nations system and additional costs lOtemahzed by the ,.mber stateS, relative to o ther priorities in the tield of promotion and procrction ofhuman rights-o~entcd devclopl~c:nt polioes and progr:unmes. If the overall cost of production of human rights norms and standards is IOsubsuntialthat mecting o ther rights-related prio rities becomes difficult, Iben one may adjudge the enunciative process as inefficient, provided that one found a safe basis for assuming that such processes, 10 the tirst place, aun af attainment of human rights. The notions of efficiency are further complicated by the insistence on ... uruver.wlity, interdependence, indiviSibility, and inalicmbil ity of hu__ nghts. Eminently desirable: according to the: prevailing models of ICIi9ist human righ ts hegemo nies, these fou r malltrtu introduce impon~ in the markets for the manufaclUrc/production of sym bolic/detiper public goods named as human rights. Judgements concerning the e8icicncy and quality o f the enunciation of human righ ts standards and aonns arc indttd very difficult and, at times even impossible, even amidst ...snvours to ach ieve this. Thil> 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
........ :acts of Telter.ation

IIlto

'law' (a code of bmdmg norms for

;".'0<") has furnished an IInpomm resource for dIe development iI*f1l
::~~~n:o~.u~-,on remaIn an Important aspect of any compantive social

l2:~~:~~~;::::.~!~th~e

a task I do not pursue here.

:

organiz:at1on21 efficiency of the production of Within the United Nations system haunts the fJI contemPOrary human rights. It understandably nises questions .II..&'DC bicn.rchic control over rights production-questions that rerelevant in the post-Cold War tirnespace, Increasing auagencies Within the system is seen as hazard that ought to be as Illustrated by the debate over the Right to Deveiopment. 2J . manner in which the U nited Nations Treaty Bodies through of Ceneral Comments precipitate somewhat unanobligation:; upon state parties now begins to emerge as a For example, the Convention on Elimination of Discrimi-

:

::'~""7,omen (CEDAW), in its textual formulation. barring the

of Article: 6 rc:latlllg to the: outlawry of sex-traffickingorlgma! IIltcnuon, WIth dis
I Wish to mdlClilt Illl! dcliber:lIle aluence of eltallons! The which mil fill several floors of

readers to follow th'$ dlKOUrsc on dlClr own, unltd oa fOOtnote CHatlon, whl(:h would he so:ver:d ~ long! (1985): Phlhp Alston ( 1991); bUi $«, Upendra 8axJ (199&),

nlode f l

108

The Future of H uman Rights

notion that. one hopes. will tIt'lltr inflict the discourse on the multIfa rious and anarchic human rights creation!). However, the Issues that ariSe do need a brief mention. First, aside from the issues of cybcrnc=tic COntrol wtthm the UN hierarchy on the production of human rights no rms, thc~ is the question of matulgt'mtlll of prolifaatioll, viul to the credibilIty of the enterprise of rights-creation entrepreneurship, especially III the conversion of human needs into human rights. May we tJtCroDrily translate all human needs into human rights languages? To quote Milan Kundera: The world has become nun's right wd everything has to become ~ righl. the deS Ire for 1~ the right to I~ ; the desire for ITSI the right to reSI; the de~ ire for friendship the right to friendship; the desire to exceed the speed Inuit the right to exc«d the spttd limit; the desire for happiness the right to h~ppllless; the deSIre to publish a book a right to publish a book; the desire to shout III th e strCCt In the midd le of night a right to shout in the midd le of the lIighl.24

Wh ile Kundera perhaps ignores the nerd to tr.lIlslate certain human needs into hllm:m rights,25 he docs bring home the mindlessness of the enterprise ofCOil version ofeach and every humall desire, need, or wane into a regime of human rights governed by the fout man/rlU! This indicUllcnt of mindlessness, I believe, assumes importance under the pandigJnatic transition from the UDHH. to the market-friendly, trade-related mode of human rights production (I elaborate this in Chapter 8). Global capital also launches enterprises that seek to conven its needs into a human rights pan.digm. Is this per st less eligible,lwonhy? Second, the consunt conversion of needs into rights assumes that the rights-regime is the principal mechanism for arranging human well-being. Nonnative renderings ofhunun needs into human rights, it is true, create a space empowering people's movements to expose comradictions between political thetoric and structures ofincquity. Occasionally. the activist adjudicatory powet and process may also. besides sharpening the contradiction, deliver some:: rral results, as the experience:: of the Indian social action litigation suggcsts. 26 But more often than not the rights languages seem to cnhance:: the power of the state. For example, the right to health must, in some measure, empower state:: action on medical educatio n and profeSSIon; the right to housing must empower the state to regulate markets 24 Milan Kundcn. (1991). Even Kunden did not, unforlunately, allllclp~le Ihe lopes) o rGuamallllllO ll~y and Abu Ghnib: see. the poignant analYSIS 10 Mark Danner (~ and the Lawyer', eoUl/muee ror Ilurnan Rights (2003). 25 See,JOh:.ul Glltung (1994), who addresses the lacunae III conu~lIlponry hUIlWl nghtS sund~rds III non-recognition or the ngllt to sleep or dcJ~ltc whIch m~ru:r III circumstances of ~prnsl~ tonu~. 416 Sec. Satyaranp.n P. Sathe (2002) and materials cited Iherc.

Too Many or Too Few I lumall Rights?

109

III ~I propeny and at times even empower 11 to confiscate large urban etD'Cs in ways dee~ly violative of the human right to properTy; the nght educatio n and literacy must empower the state to regulate the free ~t in the provision ofeducational services. In the process, the bureauc:ratiutio n/mechanization ofhllm.an rights occurs In ways that are inimIcal 110 nghts. attalllment. This bureaucratization of human nghts, in rum, augments among the ostensible benefiCIaries the culture of despair conceming human rights.

V. The COSts of Human Rights Inflation Some readings question the value and the utility of innation of human rights. The question of 'costs' of overproduction raises several considerations. First, there is the issue of resources allocated, withi n the U nited Nacions system. to the production, promotion, and protection of human Jisbts. On an expansive view of these ph rases, almost all the resources would in onc way Ot the other seem to be dedicated to these goals, w hile my agency-specific count the human rights allocation would appear -.m.ndy in need ofaugmelltalion. Additional protocols to human rights 1IaOes (as is the case with the recent welcome Protocol for CEDAW) entail lillmrdiate he re and now budgetary allocation . Pleas for increased allocafor human tights promotion activity have been intensified with, and ~. the Vienn.a Conference on Human Rights. Whatever be the dd hoc flllDlutiOIl of the matter. the larger issue of costs rdali~ to benefits from htmcnt on human rights will always cecite contention among the 'iilnnber States, agencies, and accredited NGO communities. Second, the issuc of socialization of costs for human rights activities of t.r UnIted Nations system has led to a critical exchange between the NGos and the system. The United Nations Development Programme ~P) ways of mainstreaming ofhu111an rights justified the raising of ces from global corporations (inclusive of the worst violators of ~ rig? ts) evoked contesution as symptomatic of the coming crises *tail'C$Qurcll1g the human rights agenda. v The socialization of costs of ~tunlllg human rights agenda now renders ' legitimate' partnership tne offending mu l ~ i llatiolla l s~ especially via Kofi Annan-ill~pired Compact (as we bn eny note 10 C haptcr 9). Equal partnersh Ip is a

GIoba7 n

up or NGOs recently queried the UNDP'. mltlative al esub lishmg $2 ~l S usQIrI~ble Development FOICiilty, WIth I11lI1al 5CCd money endowments corporanolU WIth the mO$I t'gfegtOUs hlllmn righu viol~tion record. For lhe correspondence, and nlmules of the NGO mectlllg WIth the UNDP. """"'.COrpu'o:"rh.O!J. '

A: G

or

110

Th~ Furur~

of 1·lurnan Rights

Too Many or Too Few Iluman Rights?

nice sounding. even stunning. phrase; it, nevenheless, carries the potential symbolic, and indeed 'real', COSts for legitimation ofhmnan rights CUltures. There are some real lessons to be learnt here from comparable cOntrover~ sics on 'foreign' funding of South NGOs and governmental agenciC'S. Docs this e ndless normativity ~ rform any uscful function in the 'real' world? Is there an effective communication (to invoke Galtung's trichotomy) among the norm-senders (the UN system), norm-receivers (sovereign states), :md norm-objccts (those for whose benefit the rights enunciations are said to have been nude)? 2lI Who stands to benefit the mOSt by fonnslforums of the overproduction of human rights norms and Stan_ dards? Or is it merely a symplOm of growing democratic deficit, directed to redrfiS legitimation traffic between nonn-senders (the UN system) and nonn-rtteivers (the member-states)?

Vl. Over-poli ticization? A third reading. from the standpoint of hi gil moral theory, warns us against the danger of the assumption that the languages of hum:1.I1 rights arc mc only, or the very best. morallanguagt's we have. lluman rlghe. languages are hybrid ethicallangua~s affirming contradictory values: soven:ignty and self-determination, property and redistribution, autonomy and solidanty, equality and hierarchy in international orderings (as with the Security Council and With nuclear prowess), globalization ofconditions ofextreme impoverishment and human 'dignity'. Were we [0 conceive human rights as markers of contestation of claims that necessarily enbil mediation through authoritative state illstrumen~\i­ ties, including contingent feats of adjudicatory activism. overprodUcDon thesis locates social movements on the grid of power. Being ul[imately state-bound, even the best of all rights-pcrfonnances (as has been o~ten noted in progressive critique of human rights) typically professionahzc, atomize and de-(:ollectivize energies for social resistance, and do no[always re-cne~ze social policy, state responsiveness, civic empathy; and political mobilization. Not alt~ther denying the creativity of rights 1a11~ this reading minimizes its role, stressing instead the historic potentla.l 0 lived relations ofsOicrifice, support, and solidarity in the midst of suffcnng.

III

• _un1CS a world historic moment in which neither the IIlstitutions of OInee nor the processes of mOirket, singly or in combination, are ::=;t equipped to fashionjusl JW/PItJtljuluftj, It thrives on the potentlal ol"."nt5' pclililJ (not as a sySltm but as chaos), which mOly only emer~ by III ensemble of singular energies of dedic:uion by NGOs (local, national, regional, supranational, and global.) No other undersbnding of women's movements celebrating the motto 'Women's Rights are Iluman Rights' is, pcnmplc. possible exc~pt tlte one which regards as lustorically necessary tad feasible the overthrow, by global praxis, of univcrsal patriarchy in all lID vnted :md invested sites. This reading Sttks to combat patriarchy pcmstent even i~ t~e making of ~uman rights and ~ ~xplor~ ways of OfCfComing the hmlts of human nghts languages, which constitute very a6en the limits of human rights action. All the same, 'participation' represents a complex, and contested, ter. . . We, at le:lSt, need to distinguish several realms: participation as l:Iegroundingstniggles to formulate 'concrete' rather than 'abstract' human tft'Its nomIS OInd sbndards; participation for implementation amidst the IIrady atuined norms and stmdards somehow formulated throllgll ilU~ rights diplomacy; and participation :lS fOrlllS of coequal, power/ 'lllliamce movement for the ren0V2tion of extant norms and standards. three distinct. but related. 'moments', Impertinently speak to the ~ of human rights 111 different accenWinOections. There is further ~ the issues of 'costs' and 'gains' of participOition. best featured in -.:king statement concerning workers' participation, equally applicable human rights production: 'YOII participate, II-'t' participat~, but makes the profit'! Deciphering the constitutive ambiguities of 'participation' tllraains an important task for those who pursue human rights futures. 'IIIeed. these haullt the very notion of 'participation,.29

',e

VIII. Interrogating the Overproduction Thesis Afifth reading questions the ~ry notion ofowrproductiotl of human rights

~ and standards. Not merely does the global enunciation of rights ~ong, often elephantine, gcsbtion pcriods30 but also much normative

.... . produces, more often, on ly 'soft' human rights law (exhortati~ btJOIlS, declarations, codes of conduct, etc.), wh ich do 110t reach, or

VI I. Participation as a Value A fourth reading vieW5 production of human rigllts as, perhaps, the ~t hope there is for a participative making. and rc-nukmg, ofhumOin fuw lfI

See, Joh:rn Galtung (199-4) 56-70.

.

Sec. for a rcfined diSCOUrse. I brry Rnghousc (1996) pp. 187-208. I~ the ease wilh Ihe Dccl;lt1luon of the RII~hts of Indlgt"MUJ Peoples which ~ a Iasl fronuct of comenlporary human ngJlIs d~"dopmem_ M. Chcnf (1994) ofT~ra a u$(:ful approach 10 lhe normatlVC sugn, willch he ebssiflCS ,decbt1lllVe, prncnptlVC, enforc~mcm, and cTlmmahution sugcs.

Too Many or Too Few Human Rights?

112 The Furore of Human Rights

113

even at times aspire. to the status of operative nonns ofconduct. The 'hard' law enunciauons of human rights, which become enforceable norms. It may be argued, are very few and low in intensity ofapplicallon. ContCIl\. pon.ry human rights production remams both sub--optimal (wh~tever may be said in comparison with the 'modem' period) and inadequate. Tht' task is. on this View, to achieve an optimal produCtion of internationally en. force:llble human rights.

my view, a sad moment in the fUnlre history of human rights when :';octucu on ofbcliefin the overproduction of human TIghts becomes ~I . despite the heavy questions thus far raised in this analysu.

IX. Too Many Rights, or Too Few?

"be8CfmWks' prod uced both within and outside the Umted Nation sysbecause I then th ought that this discourse belongro more to the pare of accessing h u~an rights achicv.ement rather th:lln human rights ,...tuction. I now rea hze that I was mistaken because fonns of human ~ measurement talk cannot be quite sep.trated from human rights llelfuc:tion talk, and that the measurement talk thus far raises some adIdcmaI issues fo r u nderstanding human rights production/reproduction . . . . DOW rather sum marily follows offers, J hope, an evell more complex 8lerstandingof 'contemporary' human rights production/reproduction. ~;=~:~~.~ measu red when we ItIfd$ljrt hum:llll rigllts?This somewhat ~ question concerns the ways in which measuremcnt talk prothe very thres ho ld to identify some core lisung of human rights. iooIlif;"'l!tf" 'core' renders m:llny human rights enullci:1ltions peripheral. 'core' listing stands V21riously identified.lJ Ineluctable. thus, reme obstinate difficulties posed by hUlIlan nghts production; that, is co be measured, escapes mcasuring. even lacks a measure! of this talk, riglHly, relates to the 'progressl~ realization' of the 1Io~ ,,,1,,,,. 1, and economic human rigllts. What do we measure even ...II? Do we measure nonnative entitlements or codes of state =~: thus arising? Or, do we measure states of fulfilmentlrealizakinds of measures remain apt for the 'core' civil and political the one hand, :lind the social, cultural, and economiC rights, on

These ways of reading GlIT)' within them all kinds of impacts on the nature :lind future of human rights. A fuller understanding of these impacts is an important :IIspcctof social theory of human rights. Clearly, those inclined to believe the overproduction thesis would marshal abundant support for the vit:w that we have too many rights enunciations. With equal cogency, those: inclined to 'put human rights to work' may maintain that 'real'human rights are tOO few. T hose who feci excluded from the contemporary human rights regime (in pa rucu!:1lr, the prou.gonists of human right to sexual onenution or. more gencral ly, to a non-homophobic dominant culture of govern:mce) may, with conSiderable justification, maintain that the tasbofhuman rights enunciation havcJust barely begun. And. in a curious supplemclltaTlty. the :llgents and managers of globaliz.:lltion ioslst that there il> 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 COIllp<'fCllt 5urwy of this

,~~,C:~:~""" (200 1:1069) refers toJohll Gih.wn'. Dith"o"aryofllum~m Righu Law

that 'Identifies sixty.four human Tighu derIVed from mtCTll.lt!onal legal hUIn~n rights de rIved (rOlll the UN Dcdu'auon'. Unsatisfied by tillS, (at IOn-6) $c:venl (unher notlOIl$ conecrmng the 'core COnlcnt' of

fOUr

114 The Future of Hum:ron Rights ~

taun seriously because it overflows the boundaries of the ~chnG­ narcIssistic human rights measurement pleasures. Vanous conStruCtlonso( measures described radler felicitously as ' indicators' and '~nchmarks' do help a work~a-day measurement of huma~l rights perfornunces hut they also ~ar theIr many statlstlcaVmeduxiol<>g1cal, as wdl as Idcological, huth. marks. Measurement relates in a profound way to dIe patterns of the politics of production, and indeed '~rp roduct ion' of the poitucs oj, and for, human rights. Philip Alston, with characteristic insight, identifies the tasks thus involved in tcmts of ;promoting the usc of appropnate lenni. nology' and 'establishing social accounubility,.l5 On a wider level, mea. surement talk thus seeks [Q facilitate disengagement of development indicators from human rights.specific oncs. Put another way, the former makr: human rights negotiable in the pur5Uit ofwider developmental policy projects, w hereas the latter posit non-negotiability ofcertain 11tIman rights productions (human rights as trumps) in any form of planned pursuit of development. C learly, some development indic:nors also serve a<; the tasks of human rights measurcment. 36 But not all necessari ly do this. 37 The momcm of danger, on the other hand, stands constlluted by a growangSlit1ltLs," oOmman rights talk/discourse. Autononllzatlon of human rights measures, whethcr through the languages of 'indicators', or me qualitative langu.ges of '~l1chmarks', at the end of the day, furnLshes an abund.nt shOWIng of the inexo",ble nexus between d}(: 'technic.tl' and tM 'ideological' in the very constitution of me human rights talk. Thr unlit}'. and even value. of this talk lies in straddhng this disLlIlction ron ways tlul furnish standards for here-and-now accountabiliry. Grass-roots human rights activism maywdl find in this ramcrtechnized discourse some furthn arsenal of the 'weapons of the weak'. At the same time, the measurements talk needs translation into the vernacular and popular human righlSdlalectS. Even so, I remain agnostic: I simply do not know how all human rights sdentism may, after :l.1l, facilitate new human righlS fumrcs . [ say thiS becauSt: scientism in other spheres (as we note in Chapter 8) now promotes some orders of invidious distinctions between 'true' science and ~unk' science. I do not quite know whether the growing scientism of the measurement talk will same day create a disposition that regards the popular, and activist. ways of mC:l.suring the fail ures and shortcomings of human rights production as 'junk' science. 35 Philip Alston (1998). tiJI\. )6 For ex:llllplc, infant morulity. nutcmal health, htcncy and d elllenuryC"dI!CJ1

uctI"I1¥ and absolute IlIlpovt:rlshment mdlcalOn. 37 For u.ample:. nauonal mcome. uvmgs, mduslnaland agrICultural prod mdlcators.

5

-

Critiquing Rights Politics of Identity and Difference

L Some Necessary NOtes on Reflexivity oth in individual and associational :l.cts of life we are apt to reflect the choices and decisions that we nuke, or may have made, and

t~~;:':~~in~~the context ofcircumstances we face, opportunities we have,

l

we may develop. Here 'reOection' suggeSts a kind of wise and a capacity for evaluation of our conduct and revising our Reflection also guides li S in rcl:l.ting or assessing our present ...,on '0< engagement with the world. of which we arc a necessary part stnse: at least of being placed within it, and III ~lIlg in a 'reflexive "'·on widl the situation' at hand. I I-low we renect all our circumcapabilitics, and choices and where we go in real life with our to reflect, and indeed how far we may W;lIlt to develop these ~main vast and open questions. 2 Nor is it clear that our powers ~:;::~;.~ for reflection necessarily lead us to 1110",1 action or ethical Rational reflection often remains instrumenul in temIS of rela· of means [Q ends that we chooSt: to pursue; and it is not always the that rarioru.1 choice and action neccssarily serve altruistic interests or ~:: In this ~nsc, perhaps, one may view reflection in terms of k thinking 'as opposed to 'meditative thinking.'l Ik.a.. 'rbr ~pacity for reflection itself now stands variously problematized in ..... SOcial theory as 'reflexivity'. This is a notion with many historics.~

1I....... 1

~ DJ\. 5
(1983) 242. we as humans, surrender at umes our mdlvldual and coil\"l,:tlvt' fo to reflect to SOllie: wider force or e:nmy oUls,de: God, or some supreme otee, an 1.'oscmbl.tgC of ,ha n~ll1auc figur.lUon or persolUge, UlsutU(10ns such I ~"",,,.;,proccsSC:$ of production, exch:ange, and cOllsumpdoll typified by lIIarkel, • produced by culture:, dOn\uu(1on, and IIIStory. th~1 Martm Ilc,de&>er (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
Cmiquing Rights

of Ifuman Rights

117

...,delC'nnined.1I If the . stlb~e<:t is constituted (as Individ~1 persons or

,.riJIA collectiVIty) by IUlVwg rigltu that se:rve: as caches of the basiC nutenal well ~ no n-material human needs satisfaction, this posse:ssiou of nghts ;'~t5, capacities, entitlementS) also make:s it into an object ofhunun

PfI.tts W1thm given politicO-Juridical structures ofgovern.1IIlce. Put another . . . the bearer of ~uman rights. a.t .[ ~l e S-ame time IS also constmued as IIcIfff of human nghts responslbllmes as defined by a gIVen Juridico-. poIiIial ordering. Reflexive pracfices of resistance to domlllation also ~lI1g1y remain human rightS o riented. This then suggests the 'sources aflClf' become increasi ngly human rights imbued. Increasingly, too, all ~ selves tend to be regarded preemint'ntly as human rights selves. The fonnation of'selr as human rights selfenuils celebration of human .... langu.tges logics and paralogics in prefert'nce to the ethicallanguagcs or of care; this invites JUSt Illt'asure of anxicty.12 Yet. few of us ...... ethically question the category of crimes against humanity, which ~ the human rights of o thers to be human and have basic human Likrwise, contemporary IHlTnan rights movemellts restS se(:ure on belief o r assumption that ne:itht'r individuals nor groups may reno unce human rights; constitutive se:lf-determination notions ntelld so far as authorizing se:lling o nese:lf 11110 chattel o r sexual or slave·hke situ2tion. self-refleXIvity complicates constructions of Idenmy because: it well tlmltslS fonus and la n gua~ of contcmporary human rights standards, and values. The choice ofbelongmg to a fai th com mu· .....,10 a whole series of identitylidentification practices, which also on appeals 10 human rightS and fundamental fr~onlS of the and enjoyment of human right to freedom of conscience and Yet, at the same time these communities re:strict the r.mgc of rights communities mayexercise.lndct'd, me n and women even contest other people: h2ving accc:ss to rights to freedom, . in the discourse: concerning the reproductive rightS ofwomen. _ trad i ti~ns thu~ '~ f1exiveIy' cOlllbinC' to. 'frccze' the domi..... notions of IIltl1nate human aSSOCiation through variedense: scriptural exegesis of holy/sacred texts. emergences of both individ ual and collective human rights selfhappen when sdf- reflexivity practices of the rightle:ss peoples a certa~1l associational fOflll and historic dynamic. Such practices senal human-a nd human rights-violation into collectively

"4uties

. . . . . . . .a . n , d

. s«

,and in whal o rder of prlonty Ihese nt
Critiqmng Rlghu

118 The Future of Human Rights

shared and experienced histories of human violation, hurt. and h These histories. as the working class movements suggest, protest bo~rlll. structural and contingent articulations of violation o fhl1lnan-and I the rights-vio lation, dlough this distinctio n is fr:llught Wlth mdeten~Uf11an The individual rightless self of a worker becomes thus a mark I~f • 1• . f ' r 0 :It Ul1Jvcrsa mlnllSCr:lltlon 0 the proletanat 'sclf' which thcn " '", . . . .' mons histone struggles for tr.msfonnallon arnculatmg assemblages of n,,1 . . Uall! h U~laIl rights rdlCXlve p~s. In a seemingly sharp COntrast, the State pohey assembled CommUllItles of misfor1l,tIt' emerge from bemg situated ' what Ulrich lk<:k names as 'a global risk society'. However, the vieth'::; of Bhop:ltl, Chemobyl, :ltnd Ogoniland experience their pligln as m1us,· ' r ~ a not miSfOrtune. FornlS of human rights reflexivity seriously contest mod of drawing bright lines between, and amidst, misfortulle and illjllsliu. ts Foun/" likewise at certain historical moments individu:ltl and collccti~ self-reflexivity pr:llctices begin to interrog:uc, and eveuto overthrow modes of coloni:ltl and racist domination of the Ilon-Europe:ltn Other. These pr:llcticc:s, in various Wllys, eventually install a people's right to self-detcr_ mi~lation a~d of ~mlal~ent ~ereigntyovcr natUr:lIl resources, o r the right to Immulllty ag:l.IllSt Illstonc forms of colonization and the fi ght to be: regarded as fully human regardless of one's place o f national o rigins, etimicity. sex, religious affiliation. r1ji/t, no t all rtjkxiw practices orientated to human righ ts signity the resistance/emancipation dialectic. Put another WllY; nOt all reflexive prn[ices problematizc forms of dominant power; only some do. All tOO often, we may say. in a moment of Foucaldian lucidity, these Pr:llCtlces amount merely to misla'llt' that change [he players but not the rules of the gallle; in contnst. only pn.etices of strugyles adopt as their 'main objective' att2Cks upon 'not so much such-or-sllch institution of power, or gro up, or elite but, rather, a technique, a fonn of power'.1l Overall, then, we need to trace histories as well as fUlures of human rights at various intersections of institutionaVstructural self-refl exivity, 3 formidable task that I perforce address here in some perfunctory modes. Both the 'modern' and 'contemporary' human rights paradignls, as described 111 C hapter 2, stand characterized by feats of reflexivity. H owever. the making of 'modern' human rights, in the main , provided graTllmars of political experience for the domination of tile non-European peoples and the nnhless unmakingof their lifeworlds. Institutio nal reflt'xivity prod uced practlCCS directed tow2fds the constitution of the human righ ts imbued liberal self in the metro polis and human rightlessncss in the colo nies. u Fouc:Iult (2000) 33 1.

119

1D (OllU2St. reflexivity accompanying contemporary hunun nghts pro. provides a complet~ ly new spectr~m ofsocial (and hulIWI n ghts~) learning COllcernmg power. resIStanCe, and nruggle It, overall, ~ some hopeful limit-situations for the ways o f doing placs; ho petD;.~USt' one l11laginc:s that the practices and negotiatio n ofcbmnatlon ~n necessarily imbricated by some recourse to languages !rid logics of bunun rights, whether or not fully captured by dlstincu,* between iJItf'DI-Jxmd and vaflle-basni politics and compl iating dlscou rsemnceming

~~~natiOn/imagery

stands chastened/disciplined by au wareness of at &east twO brute facts concerning the forms of contempoory human rilbts-Oriented production of politics. First, while the processoofhuman

IfIfIts enunciations generate languages of human rights and fmdamental 6eedoms, they also provide 'reflexive' opportunities for righls-denying pacckes of governance. Political forces and tendencies at onambscribe ID mclusivt h u man rights as well as increasingly provide the lI1l'ailS and JDOPt for the subversion of human rights by recourse to )mnfications' lilted o n the selfsame languages. I. Indeed, the invocation ofblguages of IIaaan rights and fundamental freedoms in the doing of tht politics of ~ rights often boome.rangs as the recent~ , even as l write, by 6e United States Senate Committee: and the British Lord Bader Com..utt re ports so fully :ltnd powerfully suggest. IS Second, everyday designing of complex and contr2dictory IJIIitiiayered teauaJ enunciation of human rights norms and standards prondes platlOmas for continual redefinition concemingconfronution over JRIIitutional lad self- reflexivity. Self-reflexivity in an Age of Human Rightsmvolves a . . .way praxes in which the self emerges both as 'a bounded,ltructured, aI;tct-Mcad's "we'" and as 'a fluid , agentic, and cre.ative ttSponseMead's -1"",.16 The 'I-ness' and 'we-ness' thus produced by hlllLln rights DOrms, standards, and values, remain shot through with indctenninate bms of reflexive pnctices, to a point that confuses. 14 Thus, for eltOlmple. extensive SUSpc'nsi-on of CIVil and polItical righlll ~ustified' • krvicmg the pursUit of econonnc and SOCial rights. StiteS of en~rpcy justify lilllptnslon of human rights by cOIISlder.lUOIIS of collective secunty. In adltlOll , the l"el:t'nt pandlomlc of human rights vl0lallon encoded by the ongCl1ng \It.. on terror' Cfto~~ SOme new and '.rredumable forms of hUl1lan righdes~neSli. Both, though III dlfTerent ways, suggeSt that no spc'clfic mdlVldwl IIInne-based be held a(:countlbk conccming jusllflC:ttory fal sehoods aboutek exiSt(:nce Wt:ipons of mass destruction, whICh provlded the otJy )ustlficatlOn· ...e was, or CIb 1~ l1lstllkd, for the l1lvaslon of 1""1 by the coaimon of willtng 5UIS. Peter u.Ucro (2003).

:--Iluy

1

Cnnqumg Rtghrs

120 The Future of I luman Itlghts

Not;lll p;utcrns of evt'ryday production of hum.an rights values, nonns and sundards remain aniculately rdlexive. Wert it othervlI5e, hurna'

rights productlon-or the production of politics-will remain ViSib;' even spectacularly, crisis-ridden. Indeed, It requi res a considerable aCllvis; ingen u ity to expose die reflexivity of domination entai led. for example, In the negotiation of the bilateral and multilateral treaties. in particular, bilateral and multilateral LOvestment treaties th at outsundingly 'trade away' human rights (see Chapters 8 :md 9). InSlitudo nal reflexivity produces, aU too often, ' rdlcXlVlty from above', which then dialectically rumes historic wks that confront 'reflexivity from bclow'.17 The Janer foml often cvo~ public deliberation and protest facilit:uing the overthrow of some eminent power-wielders who multifariously rep roduce the structures of hUJn;l.n righllessness. The question. however. ;j,S noted, is whether hUnldll rights reflexivity from below tr.lIlsforms just the pln}'fr'S in the ga.me or the very niles that constitute the gnmmdrs of the game dnd the notions of'playing' and the 'game'. [n sum, neither notion is enti rely freestanding. Put another way. resisunt sdf-rellcxivity may as often serve the ends of dominance (poli tics4hmm.n rights) as it may (via politicsJor human rights) serve the ends of tr.l.Ilsformatlon of ' a technique, a form of power'. Further, reflexivity slgmfies practices of human-rights pohtlC~ of productiollthat dichotonuu the nonll and the fact . Not all values ofhunun rightS constructed by everyday human fights production necessarily and immediately result into operative norms and standards; neither do the latter in full ness always serve the values already insulled. These IIlvolvt, moreover, the routine of everydayness of citizen interpretation, and adjudicadve in terpretation-forms that everywhere assume a life of their own. No maner howsoever carefully crafted, the operative meanings of human rightS nom u and sundards, as well as the scope of obligations owed, remain exposed to almost ceaseless contention within and across interpretive communities. These communities are not always the communities of power; indeed, a remarkable global social fact concerning human rightS development is that the relatively disempowered communities of suffering suke a claim towards the lirst historic act of authorship of human rights.

.1

II. Contests Over Forms In any event, the formations of the addressees, contents, and scope of human righ ts and oblig:nions remain contested terr2ins, Oil willch Ihe 17 uurence Cox (1999). Sec, also, P.iul Basguky (1999) 65--82 rod Ibl;l.kTlshnan . .,...,.., (2003).

121

of politicsfor huma~ ri~ltS ":,,,rily, and wearily, unfolds. ~Polmcs for

~ righ ts is extr20rdllla~1~y diverse (~ partly $ttn III Chapler 3) ~IY when the COl11mUlllues of the dlscmpowered Sttk to :assume ~ artnership with liUte actors in the production of human rights tqual tand standards and thei r futures. This provides Olle central thrust

~n5C' and sellsibili~. to my dislin~ion between forms of politics of.. and

/It humall rightS. Polmcsfor humall rigllu offers many a divergent cntlque ofpolitics of human ri&.hts.on va~iolls plan~. Fint,. some contest the ~ry """ ofhumao rightS, ~I~ Its attrlbl1t~ of lIntv~rsahty. Stcolld , contestation rife concerning the JltltlCt 4hurrulM ngllu. Thml, one may not fully grasp ~ forms o fhuman rights enuil their otb~r--:-hu~an ~ightlessl~~: Fourth, GIbeS contest classification , and underlytngJustlficauon for diVISion and JlicrarChy, amo ng human rights. Fifth, some practices of politicsJor human JiIbG combat varieties of human rights essential isms. insisting in the poccss that the ve~ !lot.ion 'human' 1.S in t~le pr~ess of c~nti n ual redefi.-.on; this then g-vcs rlSC to thematic of Identity and difference. Some ~ of politics for human nghts remain identity affirming and others pr;ri1ege the h uman. right to be and to remain dl~erent. Sixth,.postmodern fllicicsfor human rights summons the destruction of narratiVe monopo. . . npct:ially the power to IIlsull progress narratives. This chapter enbrIefly some aspeCtS of tillS contestation. While the universahty of human rightS is a deeply contested thesis (a IIIcmr thai we also visit in some deuil in the next chapter), contemporary IIIIiques remam insufficiently inadvertent to tile very idea ofJorm, and the -.odes of its prod uction. Pragmadc concerns direct attemion always to the JIIOpoSitional COli/em, not the Jonn of human righ ts. I lowever, the content taaains intelligible on ly within somc general, specific, and historical labours rl transfomlative Jormnti~ practices. 18 These fo rm ing practices invite transfonnative labour in which 'a multipticiry o f d cments is synthesized intoa unity' and through which 'fomled QJbtntts ... sund in detenninatc relation to each other ... ' .19 Fonning Phcti
ws

t-.tl Thc M uon ofronn IS CClllnllo Marx', corpus: sec Georg Loeb! ( 1'T11): fTcdrn::

-.on (l 9!Jl ): j.M. ikrnSlem (1984), Bob Fine (2002). I Invoke here the more ~IC anal)'5ts m Geros Simme! (1959), C$p«I;l.l1y the esgy by lUI. Wemgartner l\9s9). 33 ~t 40, 50. " Weingartner (1959) (1959) <41.

» Weingartner

122

Critlqumg RIghts 123

The Future of Human Rights

' makes use of a difT~r~nt kind of organizing principl~ '.21 Ilowever Marx showro, th~ ~Iation between form and content is quite vexed ~~ complex; all too often it remains crisis-ridd~n;22 moreover, SOme form may be illusory and all forms remain, on the other, 'irr~ducibly hcter~ b"encous,.23 Even this cursory summation should enable us to perceive that the very notion of human rights ~ntails a vast range of forming/refl exive practices. Some formin gl~£1exive practices produce law that binds (the so-call«l, customary or m-aty-based ' hard Law' of human rights); others Produce apsirational norms (the so-called 'soft Law' in the form of human rights declarations and charters) . Similarly, distinctions between civil and political rights, on th~ one hand, and economic, social, and cultural rights, on the other, arise out of recourse to 'a different kind of organizing principle'. So does the conv~ntional practice that describes th~ first, s«ond, and third generations of human rights. At play, and often at war, also remain whole varieties of forms of human rights, both general and abstract as well ;u historiC2l1y specific. What Kanti:.m s (and neo-Kantians) know and name as 'regulatlvt' idel' of human dignity provides the most general and abstract foml of Unlvt'rsa1 human rights that unites the infinite diversity of ways ofbemg hUI1l:m WIth th~ overall notion that enjoins equal respect and concern for the dignity and worth of aU human beings. At this level, it makes complete sense to say that human rights are indivisible, interdependent, and illimitable as well as universal. This axiom synthesi~s multiple ele ments in some son of unity from the moment of the adoption of the Universa.l Declaration of Human Rights to all its astonishing multifarious progeny. Here, as Simmc1 would say, the foml provides th~ ~ry 'grammar of experience',2~ even whe n some critiques of contemporary human rights, as we see later in this chapter, contest this form as illusory. Much the same may be said concerning human-specific fornu for human rights which, and by common consent, we readily name and recognize as civil and as social, economic, and cultural rights. H ere, to reiterate, the tableau of contents ~mains graspable only by reference to 21 Wcmgmner (1959) 78, and 41_3, Je'>pcrovcJy.

n!u IS the cast, for ex:un pJe, with the foml of frc:c: bbour thlt has :l.~ Ib (Outenl a whole 'ladery of unfreedolUS. Set, also, IsaOlC Balbu5 (19n) 71-&1. 23 ' ... 111 StrugS":$ W1mm the illite, the' 5truggk bclWttn democraqt anslocracy, and momr(hy, Ihe Struggle: for fn nehis.c, nc., are mc.rely the Illusory forms III whl(h tbe rcal srruggks of d)!: dIfferent (bUtl arc fought out among exh Other.' K:arl Mane and Frcdn(h Engels (1970) Pa" 1,53. 24 Sc:c:, Weinp~r (1969) 41.

(icity of the forming practices. Both sets of human rights provide concern and respect for • '::nan beings to which they ought to remain ~ntitled by VlrtU~ of • designation 'human'. However, these fonn ing practices now enull rcnt hl'lId of organizing principle that divides human rights III ,~I~ that render their contents incommensurable jllltt'st. The organu:mg ~ Iple informing spc:cific~l1y a~stract forms of ciVil and political sceks to go~ern rclauonsh.l~s betwee~ citizens (and persons 'tIiChin state jurisdicuon) and the polltlC2Uy orgamRd governance commuIIiQes and netwOrks ( indus i~ of state, suprastat::d and extrutatal form~). 1bc optrarive organizing principl~ of this form is the nonon of Imperm lsIibk ~Iio" , accompanied by duties of here-and-now im~ l el1le ntatio.n/ .-tressa l. In contraSt, the specifia.lly abstract fonns of SOCial, economIC, ... cultural rights stand addressed to these conununities and networks GIlly in ICnns of 'progressive implementation' of these rights, ev~n when .-c in tenUS of obligations of recogn ition, respect, promotion, and

.,speothat enacts th~ regulati~ id~a of equal

-.:a:

..

::s

~n. . . 1e 0 f·c · Put another way, the orgamzmg prtnClp u.esc twO parad· Igmatlc dlcr~~lltlals between dmution of some basic (material as well as non-material) needs as herehuman rights Imperauves and other SimIlarly baSIC needs entitled tockference in an uncertlm collective human future . Dcprtvatioll of basic dignity (equal concern and respect) through practices of torture ., state officials emerges in the form of civil and political rights as an atantly impc=nnisslble human-and human rights-violation. In conIIDt, deprivation of the right to food, clothing, and shelter emerges in the IKOnd form. not in the idiom of torture, but in tenns of fa ilures at ~ssivt' realization. Contemporary critiques chafe wuh righteous and .... lndigrution at this differential construction of human rights and -.ead insist on the profound interconnectedness of both forms of human riptl (in th~ rhetoric ofindivisibility. inaliclubihty, and universality) that rtnders starvation, desexualization, degradation, and destitution an affair of'rather leisurely human rights concern . I-Iuman rights dISCOUrse at onc tbd of the spectrum thus provides an ontologically robust formation; ~er, at the oth~r end, it remains ;irrcducibly heterogeneous' and UIlstable. It remains impomnt to acknowledge that all these enunciatory classi&c.ations of contemporary human rights (as 'civil and political' or 'social, economic, and cultural' and the so-called three generations of human ~ts. and related forms and formats) owe much to the actual Mstond of Ibttt forming practices as to combin.atory practices of idtology. At the level

farms of human rights elaborately constructs the

-.now -.an

124

The Future of H uman Rights

Cnuqumg RIghts

of human rights constitUled , but still reflexive, political subjeCtivity, th task of criticism is to analyse the complex historical articulations of thes: structures which produce the varieg:.tcd texts of human fights. !:' At th level ofidoology, the contest shifts to the ways in which diffcn:nt kimJs o~ organizing principles generateJomu of human rights. 26 At st.lkc, in all this are some basic questions concerning the constitution of the SUbject human rights, inviting anxiety about the constitution of self. Identity, and difference. At a reflextve level, all this raises issues cOllcerningjuslicr of rights, to which we first bric.lly turn.

of

III . JusticeZJustness of Human Rights By this somewhat provocative, novel and arguable expression, I wish to signifY reflexive practices that produce conversation concerning the juS/ict qllalitin orjust,.w of the already installed human rights norms and standards, in ways that contest their underlying valucs. Not everyone regards all human rights nonns and standards, even values, or theirdOllllllant interpre_ tations, asjutt. Conflicting conceptions ofjusticc, I suggeSt, play an important pan ill the emergt:mx and ~lopment ofspecifially reflexive hlstoriCli foml of human rights. These may relate co the substance of rightS.!7 or to theJu~Ulessof procedures adopted for articulation ofhuman nghts values,a l5 Terry Eagkton (1976) 44-5 ofTen an analy.!Is of LMI' (Inerary mode- of prodtICnon) withIn lhe GM!' (gener.ll mode of produrnon) whIch rem~ms cruclalJyapphable 10 Ihe politics of rewmg hum~n nghts. 26 Such 3S bourgeois hlxruri;m notions opposed 10 (ommUlllurian ones and both these: opposed to the 5Ute-<:ommullIurnn forms 111 mOSt erstwhIle and some snit actually existing soci~lisl SOCK:tiC$ and th~ undergoing JIOSI-sociahst tr.Insirion. 7:1 Sc:c:, fOT ;1lI acute ~n~lysis, Aim Norrie (2000). Iv. a more mundane 1M'e1. one: may 0I5k: I::>oa the ngbt to protc:crion of integrity of lIurTUn hfe sund compromilitd by the recogruaon ~OO rc:affimluion of reproductlvc rights for \\I'Omen? In ....--hat ....,,)"5 may cpital punishment compromIse: thee nght 10 hfe. enshnnro In the In~m3001Ui Covenant on CIVIl and ~lmC11 Rlghts and Its Protocol? In wml ....~ys ouy we ~y wt fonus of P~lci.m-a5Slstcd p:niem-pnvilegc:d forills or temllllauon of hfe (or eutlunasia) violate human rlglll 10 life? Wlm justio:-conceptiolls lII~y justify thc dlOl ....1ng of bright lines bctv."t'en freedol11 of speech and expressIon and the 11111115 ~ns1l1g from the criminaliuu on of hate speech? Whal concepllons ofJl1suee of ' reasonable p1U1OI115111' Justi/)' claims towards full recognition of hum;11l rIghts of 1cshlSly/lrlllsbotlltler lIIumale assocIation, or Ihe pubhc, and often nllhunt, mam(esutlons of the fr,·edon} of conSCK'IICe, worslup, and rchgton? 18 Human nghts hteratu re: docs nO( frequently concern Itself WIth a Ihmho ld quc:suon; What reqUIrements o( dehbc:ranve delllocrxy extend 10 the: enunclatory that ded1N: uOIvcYWII hunun nghts and fundamenul freedoms' Does JUsocc: procedure: for nuking hUTTUn nghts sWKhrds Pnvlkjr dcmocrahC JUlrtKlpanon :IS a

K'';

125

(orthe r, to the approp~ate just n=sponses that may result m case of

Cn"4l1t that often lapses into Il\e~ crit;rum of the forming practices of n rights occurs at many levels. First, some contemporary Critiques ~man righ ts su~St. form s of ' l1Tljus~' lack of respect for dIfference. '('be origmary en unClat10n of the U llIversal Decl~ratlon of l-h1lnan RiP~ stands faulted at the bar of respect for the diverse cultural and cirilizational traditions III the fonning practices of human nghts (as we ~ later).)O S«oPld, and related to the fi?t: . because app~~ches to ~ of justice vary across cultural and ctvlhzauonal tr.Khno."s, the tp:sDon stands acutely posed: W1u"ch, w/uJt, and wllOst concepnons of jIIItke may thus find salience in the enunciation of universal ~uman ....ts? \te need no sharp remi.nder. in ~ ~t-9!11 world., concernmg the ways in which some orgamzed political commUnities (states). ~ nd JIIIICOmmunities severely interrogate the justness of the seculan zl1lg ~ptions of humall rights. Third, ill any event, the pro~rly so-call~ -.:ubr/sccularizing conceptions of contemporary human rights contam .-nents that energize contestation. The relegation of religion to the realm tl pnvate ordering of ~lf-reflexive practices st;lnds opposed by critics of human rights who pursue consistent articulations of religion-based &Inns of collective identity.Jl

Vlnue;? If so, how nuy we Jud~ 015 'just' mlem",uon~llIlakmg!/enundations nonns, cspecially when these exclude people's panicl. . . . ? How 1tiSt' IS the IIOllon Ih~t member-states of the Uruted Nallons, or related flPhiution",] bodlcs, represent all proplM? Is the power 10 mdcfinilely postpone fIOIttuoon be(ore dlC Imematlonal Cnnllnal Court. vested III the Security C,.oullcil ,..•. ~peci"'lIy when its pemuncm members reTTUIll se:ized with the JUlr:tlytic pov."t:r e( Ihe VC1Q? ll; the threshold exclUSIOn of indloow.1 recourse: Ixfort' mterrunonal -.:s and mbunals :Just'? ~ How m~y we ev;aluate, III temlS o( jusmess, the gesrure of bmltless deft'rnI. by - device of ·progresswe Implemcm:mon' the social, «OllonllC, and cultural nghts? 1Il The cdebr:ttlon of Its golden Juhtlcc m~ thl5 the ulk of the to\\n 015 \\"1:11 as e( the gownl I deSist from clUng any reference 10 the: JUbilee IttcnllUre. )I At suke: here are conntellng conceptions of 'justice', posll1g dlfflC\llt indetenni!lines Wh u jusuficallonJ cxm ,11 hand that outbw. at the baT of hlllll~n rights, and • the threshold, autlten uc human ab'Cncy. for elCiImple. when PIOU! blamie women ~ their sclf-subordll1allOn, even subJugauon. 10 the shan"/I ImperatIves? More ~nlly, may autonomOUJ monl agents ever Jusnfiably chOOSt' to renounce the C$ute ofbllman ngltts, l1egollallng d,elf fuTW.blllenal human fIghts and freedomJ (or a 1Il0re ~ place In forllls o( life here",fter? Put another way. how nuy soch xuntsiactOrs choll:es betwt"en JCCubnzed. one-tll11t', here-",nd-now fimtt Itfe "'00 the bc:hc:f systems In hfe after life?

~

IIhwrun nghts sUlldards and

•• ..0.,

126 The Fulure of Iluman Rights Follffh, extant human rights norms and standards remain simply agnos.. tic con~rnlng ofjustness of the constitUtion offl£itimtltt reprcscnbllon.12 There eXIst no known ways by which one may adjudge the JUStness of actually CXlsung constltutionalisms,lxcause no normative standards gtlidc us in adJudglllg. the ways In which the supreme or 'sovereign ' autho nty may constitute Itsd( The human right, if indeed there be OIIny, to freely choose fonns of governan~ ('free and 'fair' elections) does not address issues ofjustlless of the ways in which elected officials may come to hold and wield public power. There exists no way in which we may make a deeply human rights infonned choice between frrst-past-the-polls as againSt methods of proportional rcpresentation. Likewise, the scope and relative strength of the principle of free and fair elections may remain agnostic concerning the hi-tech mediation of voting procedures, which globally and fatefully brought, for example, the Texas Governor, George Bush, to the incumbency of the White H ouse, through the American Supreme Court sanctioned indeterminacies of the validation of 'perforated chads' . Nor do any specific human rights nornlS and standards guide us ullerrmgly, if such things may eYer happen, concerning the relative justness that chooses, or negotiates, fon115 of Impcri,:11 Presidency versus the Cabinet forms of governance. Fifth, how lUay we fashion ~ust' conceptions of collective human security that 1112y justify abridgement, even 2brog:Hion of COl15tltutional gu;ualltees of human rights? The Covcn211t on Civil and Pohtlcal RIghts (and related human rights instruments) does 110t 21together outlaw, for example, declarations of states of emetgcncy; even when it endeavours to legislate normative brevil)1 of any such state of affiirs. However, comparative constitutional experience, and jurisprudence, suggeSts manifold JUstifications for human, and human rights violation, in the name ofcollective human 5CCUril)1. Sixtll, how may anyone ever measu~ fully, and adjudge, the adcqu2CY of reOexive practices in national constitutions by the measure of respecl for the content of internationally enunciated human rights standards and nonns? To take a rough example, what ways of saying do we have Ihal adjudb't: the po~t-apartheid South Mrican constitution as mort' jll:.t thau the bicentennial French and American counterparts? What justice conceptions may Jusllfy the scope of constitutionally enunciatcd human righl!t? Are constitutional arrangements differentially enacting meanings of civil 3nd n I bnllah Fclllchel Pnkm (1972) offen 10 View a profound Witlb...:nsl(~ Ullan account euncc:mmg JUSUCC of repn:senuuon, wh ich ought 1IKJn: dOKl y to IIIforl11 oollstrucuon of rebtlol1shlP ~n human nghts and JUStlCt: languages.

Critiquing Rights

127

'01 rights ~ust'? A simil2r question 2riSCS in constitutional construchierarchies of human ngJ-us. I address some of th~ ciJOPStiOns in this 2nd in the e nsuing chapter. ~ ,SnItfJlh, how nuy we assess the reOCXlve practices of adjudication ooocerning human rights, no matter at what level, these mOlY stolnd enun~? Whatconceptions ofjnsticeljustness may Infonn adjudicatory policy .men human rights emerge as rights in conOlct, no matter how enullciacrd ~ Eighth and this is the question to which I DOW tum III the next two s«:OOtlS, how may we approach in terms ofJustice/ju~tness the problem of production of hum2n rightlessness? The mere raising of these, 2nd rel2ted questions, further complicates buman righ ts talk and event/discourse. I run the risk here of an 2ctivist pure of impatient dismissal suggesting that the very posing of these questions constitutes 'academic' diversion from 'real' issues. However, I bcl~c , the problem ofjustness of comcmporary human rights forms the wry b2sis of somc f(.'Ccm critiques of human rights; and accordingly dcs«ves careful attention.

-Ai

,....0 that crect

IV States of lnternational Law and Human Rights _mario nal law doctrine aud practice has never been a str:mgcr to CilJDCCrllS with the problems of forming practices of hum.an rights and ilmbtles. Ilowever, thesc concerns rtmaUled origillary only in rebtion to the tasks of constructions of collcctive identities of entire political communities; the 'sclf' that had to be constructed in classical international law was that of sovereign states. The inaugural Westphalian international law md o rder conceptions (as is well known) perfonned at least six tasks (or 'tricks'). First, it endowed collective selfhood on independent political COmntUaibcs named as sovereign states. Setot.d, by definition, subJug:ltcd territories IDd populace were designated as incapable of this form of selfhood; not all ptop\cs but only civilized nations constituted the 'subjects' ofintcrnational law; all others (peoples, territories, and traditions) constituted 'objeCts' of lJ What sundard~ of justice ouglll to inform theory and pr.tCllce uf adjudication -lIfIUuon$ of hunun nghlS III ConfllCl? When lI\~y Judicial restulIIl III 1I11erpretitioll ~Utmn nghts stlnd Jusllfied? Is heroiC JUdlClll acllVISm, 111 ' li many ro111~l'lltM s, al"""yt a Vlnue? Do utmt hunun nglll nom" and stlnduds ~n approxhes ~' .lIld rcbted, qUl.'511011111~? Further, how may we reOld kg:Il ethIcs and cause . IlIlg (pubhe advocacy) 111 tenns of Ihelr rok III fash'Olllllg a Just' adjudicatory

JIOLcy and ptxtlcc?

Cnttqumg R1glU5

128 The FutufC of HUlllan 1ughts

mtcmationallaw.)c4 71rim, distribution ofsoverclgn rights remained . 1 ph rase rcgulle ' fR0 be n Young) :II 'whltc-only . n'Iy ('In tIe 0 affair', prltna. F, ,msurgency stood 1lcaVI'Iy cnmlna " I'Ized and penahzed., . even as it "!IV"OM,,, "' , f . . r. . t>""erlS~ to lorms 0 new incIpient lonnallons and bearers of human fights fut Fifth, civilization itself stood constructed in terms of conquest over "our«, o f nature (both natural nature and humannature).J5 Past civl li zations d to I~c~.the.se twin powers of co~trol or mastery over nature figured"o~~ as c,lvd.IZatrOnS by ~ou r~y, and hable to conquest and occupation. Glol»J capltahsm and clVlhZ2uon here become synonymous. Sixth , because tb were c~lized, tbese natio~-states we~e. ~ definition invested with hi; tr.msnatronal order of ethical responSibility defined as the 'White M;rn's Burden' propounded variously by administrators, armies, and adventurers as well as by mer~~naries, missionar.ies, merchants, and monarchs. J6 Many contemporary cntlques of human nghts stand affected by this inheriunce of memory of the formative aspects of modern international law.37 At the same time, the fou ndational violence18 of modern international law doctrine and practice achieves at least nonnatively in the later post_ J.I Intctn~1I0nOiI hUIll,Jontt.llnan law nomlauveiy IJlVCIlCi SCI11IOtK COIIIIllUlutJ("J of non-
""IC

."" AIOO. )II ~, for thl~ nouon, J:rcqUC$ 1JI:rnru. (2002) 228-98.

129

"opI~I"o world (in the first half of twentieth century CE) the recogJ1l..... ,n" all politically organized nation societies remain pDletltilJl subjects ...jIltItmaoon a ll a~, eventually entitled tosove~eignty equality. To be sure, f«ogJlLtlOI1 anses not as an act of nonnative gr:ace but occurs under : ausP1ces of ceaseless struggles fo r self-determination actually waged by ,.abordinatcd peoples everywhere. SeriOUS students of international law also know ~11 the tormented ~, from 'constitutive' to 'declaratory' theory of recognition of states _sovcrnments, marking the connexion between identity and VC(;tors of . . . power. The Kdsenite 'con~tituti~' th~ry of r~cogn\Uon of states ~which new states may be said to eXlst at tnternauonallawonly when ~zcd by the community of existing states) put to severe test the of the right to self-determination. They know very well how that .... is constructed, deconstructed, and reconstructed by the play of ~nic global power,3? with attendant legitimation ofenormOllSinflic... of human miscry. Some acts of reading indeed authorizc as the sole . . . that self-determination signifies no mort! than thc power of hegetIIIIaic or dominant states to determine the 'sclf, which has then the righ t Idf-determination, or in sum, a right to an access to a 'self almost WIdty prc-
....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 (<
131

: :~:~. g~~~ ::

: Ibk!. (1950) 293. Ibtd. (1950) 297. '" Ibid. ( 1950) 29$-6.

132

Th~

Future of Human Rights

description of the refugee as 'truly .. the man of rights"', For A(.;;imbe the refugee 'puc(s) the orlginary ficlion of sovereignty in CflSlS' bec,'! n, 'by breakmg thc cOlllinul[Y between man and CUI zen, PlllliVl ty and IIa/ Use ~Jjry'~ and prescnts ' no thing less than a limit concept that radically: IOto quesuo n the fundamenul c.ater,ries o f the nation-sutc from ~ birth- mmo n to m.an--cltizen hnk. ,,', I Compelling as Ag:al1lbcn'~ IIlSlgh IS, It perhaps no more than adds a linglllstic tum to Arendt's e~ ~ human fights. ' Rights are attributed to m..an: hc says, 'solely to the extent that man is the immedi.ately V:l.Ilishing ground .. , of the citizen. ·52 Beyond this, I do no t quite know how to receive Agambcn's saying th.at the rcrug« by the fact of being such may cause .any real or imagined criSIS of SOVer. e lgtlty of the nation-state. All this,. fUT,ther, marks the consti~l tive diffcrence between the normativity ofhumal1ltanan law and human fights law. Contemporary forming practices of human rights as yet do not afIim l any 'universal' hUlllan right 'IO{ to be displaced, uprooted, and tom from one's community of fate, faith, and belonging; nor docs it enact allY fully nedged III/mil" right agamSI divestment of ciuzeruhiplnationality. Nor, further, does tillS ereCt a prop. erly rccognizable human right to asylum outside, of cou rse, the p:micstricken decisions of the Northern immigration bureaucracies chat grant or U:n11l11atc the limited asylum statUS often with a modicum of Judicial review. Ironically. the Northcm Slue fonnatiolls, which strode like Colossus over thc rest o f the world, in cheir aggressive imperialist de~lgflS and performances, now present themselves as dttply fragile and vulnerable political comm unities in Imminent danger of being swamped by their former loyal 'subjects'! Yet, Agambcn is surely right when he, el.aboraung Arendt, IIlSISts thai what we have here is a severe and ongoing crisis of contemporary human rights. Intemational/nmltmitaria,1 bow begins to separate itself from Iwltliln r(~ts law by placing the stateless peoples and individuals outside its pale, Their rightlessness, f.ar from being symptomatic ofany crisis ofsovereignty, generates an awesome spectacle of human suffering to which 'we' may, and when we choose to, respond at times with the routine menu of meagre, and sh ifting, ad lICK, measures. SJ Surely, Agambcn is right to bcmOJn the 'separation ofhum:mitarianislll and politics' as the 'extrcme phase of the 50 Ag;lmben (1998) 1) 1. SI Ibid (1998) 1l4. 5.2 Ibid. ( 1998) 128, 11 And, 3t 1lI1les. specucubrly 35 the dr.. matlc ~fTort to !hIVC the life of 3 Serb girlchild f10W1l to the bnt of hospluls III London 31 the height of the I3osnl~n CflitS sh~ ,

Cnuqumg Rights

133

oon between the rights of man from the rights of ciuze n'.S4 This ::::igent scparation sigmfies then the end of contemporary human ril,hb from the sundpoint o f vlol.ued hum.allLty for whom, all too often, tile vaunted 'universality' of human rights remams a cruel Joke, I-fov.'e'\o'er, the second move Wltilln Arendt's descnptlons of hum~n rishtlessness implicitly recogm zes dlscnfranclllscme nt Wlthlll o ne's own corn mulllty of fate, whether of o rigm , fanh, or political belongmg, Discufnnclllscment proc~ in ways that prescrve the form ofcitizenship btl( JtoDows out its substance, Tho ugh not quite of the same order of the ....Iess peoples, human rightlessncss of the discnfranchlsed peoples (ofea described as 'internal exiles', 'displaced peoples', or 'dcvclopmenul ~', these equally uncl.aimed and eminently disposable peoples) tanains defincd by denials of thei r righ t to life .and livelihood. We surely _ _ to rccko n amidst these plentiful form s of dehumanization the thouMOds of millions of people who somehow eke o ut thcir 'CJ(Istcncc' within • beart ofcontemporary global ization. those heavily structurally adjusted . . emlllently disposable human bei ngs. Contemporary global ization thrives 0 11 the newly constitutcd postMlrxUn vast industrial reserve: arm y, under the conjoint exploitation of pemments, mdigeno us and multinational c~pi ul . The en<:)'clopcdic forms IIf'multlll.atlonal human violations, stand 'enriched' by the rather distincTlmd World practices of dlsenfranch iscmcnt. These now stand Jlllnamly archived by Samantha Power,55 Malllllmod Mal11dani,56 and . . In th(' texts of human rightlessness perennially authored by the state Israel. and, to take a most recent example, the Myanmar citizen-people carreotly being heavily exploited as sl.ave labour by Thai business houses, .... ~ fomu of }mmmi rigll/tm tlm displlJ(t tht shrill Il,.d hoo~ {horus that ~ns lilt Nonl! as briflg tilt ollly, or most pm;'ltll/, soltru of vWlation. The righdess peoples remain 'citizens' but from perspectives of buman/ IOriaI suffering of a continually refined and rc-programmcd gulag global South Neither dleir residual citizenship nor their simulacrum of being iauru.n redeems them from the d etermination that thcirs is 'life that docs Dotdeservc to live'.57 The continually reproduced/reconstituted 'wretched oftheeanh ',5lInow begin to expcricnce ncw forms of hUlT1an rightlessness lbalthe first four dre;fdful years of the promise of the twCnty-first century ( 1998), 133, "ss~ "s;Imlx:n (2002).

,. (2001. 1996), Sa Agamben ( 1998), 136-43 Now in the Imagery of the recently 'hlx:l'1IIled' peoples of MghaOisun and 11"lIq.

Cnuquing Rights

134 The Future of Iluman Rights CE have already unleashed . ThC'S(' vanishing cibzens and hunun beings speak to us less of :my open futurt' of human Tights; rather, they testify to new globally institutlonahzed enclosures of human riglulessncss.

135

~~:':::I':~:~;;~ ofa ahlstoncal universal human, thus constitutinga vast and critcriological prison ho~.

;;

~lples , as always, mislead. Yet, we may usefully rt'fer to the para-

...,..",>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 J
III Upendra Bax. (1993) 99-100; Bob fine (2002). Upendra Bax. (1993) 95-132.

Th~

140

Fmure of Human Rights

lIni~rsalizing commin:ltory 'spe<:ial interest'.83 Al l this is by now Well known, and now rearticu l:ned in the rdatively more in.accessible PDstk Marxian formulations of the problem of the subject and its farned vlcisk situdes. If there is 'essence' to be attributed to 'human', it remai ns inescapably the labour of fonning ideological pn.ctices. Thus, bourgeois ideologies constitute the essence of human ill terms of potential to realize infinite human freedom through rights to property and contract. The bourgeois human displaces the divine as the shapcr ofhi.wber destiny; human politics becomes a project for emancipation and, in this. guaran~s of human rights enable each individual his or her shan: in the fashioning ofcollective human futures as well as individual life projects unburdened by an overk weening state fonn. 84 Individual human incentive and effort stands enk riched by sacrosanct freedoms of property and contract that together constitute free markets. this paradise in which human freedoms ultimately flourish. . Of course, it happens that production and reproduction of capitalist social relations constitute, for long stretches of history, human Individual's worth by violently differential access to means of production. It remains true that both capitalists and workers are 'human' but these 'humans' remain differentially situated in the material fomlation of capitalist relations; all that workers ha~ is their labour power, which becomes Itself a commodity, alienated and objectified, and thus renders itself as no mon:: than a factor of production. To the dominant classes who own the means of production also belongs the authorship and ownership of human rights imagery. A subsidiary and subservient fonn of humanness thus emerges defined, initially at least, in terms of human rightlessness. I·!m....ever, this is tID eternal order of things. Bourgeois freedoms constantly explode when the proletariat wins its own conditions of restoration of its human!less, even when necessarily cmvombcd in the circumstance of'the objecti~ crisis of capitalism' when the proletariat achieves 'its true class consciousncss,.8S Even in this struggle, 'the proletariat must necessarily be subject to the modes of existence of its creator' and may not go 'beyo~d the criticism of reificatlon' thus remaining only 'negatively superior to us antagonist,.86

Upcndn 81Xl (1993) at 112. 14 See, genc:nli)l Upcndr~ 13;00 (1993). 1115 Georg Lucbs (197 1) at 76. 16 Lucbs (1971). 8J

Critiquing Rights

141

In this sense. then, being human, far from being an anthropological

.-um, emerges as a project of struggle encased by the dominant mode

afproducrion. The limits of the project are at the same time wnt luge the mode. The essence of the 'human' sUllds thus furlllshed by the 'VCry ideology of the embattled proletariat' ,67 w hose ernancipative project du'ough struggles lies ill achieving political freedom through adu lt uniVd'Sll1 suffrage, the right to fonn trade unions, related associatiollal rights _h as collective bargaining and the right to strike. These may constitute, • Marx says, human emancipation in a 'devious way' through fOnTIS of politics that enlarge abstract freedoms within the fn.mework of structures of".wriJJi inequality and variety of fonns of exploitation.88 This enlargeJllCDt is at the same time said to constinlte the enhancement of human essence .119 The classical revolutionary socialist project in the process contesting Ibis bourgeois essentialism constructs its own. It conceives the 'human' as .. essence that thrives on non-exploitative social relations and structures - . therefore, capable of creating historic and future horizons of true J..rnan righ ts-oriented emancipation. Because production/reproduction of apiaal was a paradigmatic relation of exploitation, based on ncar-absolute '-nan nghts to private property and COntraoCl, SOCialist reconstitution of • human essence acquires WQrld historic pertinence by the revolutionary ~t of its overthrow. The socialist human personae and citizen is an ~Ip;l. tcd beingpar t.xullnllt!. The citizen, always a (omrodt! citizen, seeks .,mli le liberty and equality through practices of.fra~mjty. The comradeacizen stands, as it were, by the fact of biological and SOCial birth in social ist IOOety, as a persona already emancipated from notions of human righ ts based on possessive individualism. These roughly hewn sketches risk irate cogtlDslt!rfli gestures of dismissal. ~ so, these remain, for the present purposes, ample to demonstn.te its '-tessential ideological profiles that construct the ' human'. In the lived bms of suba.ltem existence and experience, narratives of'emancipatory' ~ness remain tethered to violent state formative practices., whether UDder the auspices of the ncw Modern Prince (to evoke Gr.amsci)90 or the "-nguard Party', these n.thcr lerrifying moral guardians of the ncwly COnitltllted 'human' subject. (III

: Gwrg Ludw (1971) 258-9. .. :c: Upcndra 13m (1993) 60-8. for ~n~IYSls of SIX ~fOfms of oplolutlOn. let A... ~t In the St"nsc:ofthe hlstonal pl'OttSSof TCI11OY:lI of'subl;ulltllol unfreedoms'.

,,- .-..ya Sen (1999). Or now,;u Stephen Gill (2003) acbpu this phT2SC regime:, 'I\tstmodcm Pnna::'.

Cmiquing Rights

142 The FulUre of Human Rights E~n

Wlthout a funher recourse to sectarian strife withm libcrahsm_ the ongoing discourse berwc=en 'libertarians' and 'comtl1unJtanans"JI_th~ pomt that I Wlsh to nuke here remains fully made: there may nOt exist any trans-ideological 'essence' of what constitutes 'hul11an'. ~ rCVISit this aspect In some detail in the neXt chapter but it needs r~itt'rauon here, WIth GiOrgiO Agambcn, that. .. ••. II IS lime !O SlOP reg;.rding decbntions of human rights as procl;am~uolis of etem.JI1 mel2Juridical structures binding the legisbtor (in fact, WIthOut much success) to respect eternal ethical principles, and to begin to cOllSlder them according to their re~1 historical function in the modem nation-sl2te.92

(2)

ellllUIl'

Essentialist constructions of the universal 'human' fail to ackJlowled~ cuhur:.r.l diversity. Religion, language, and the artS in each societal culture reconfigure the 'human' essence diversely and any approaches that reduce cuhur:.r.l di~rsjty to the merely ideological remain cpistcmologlcally violcnt and, therefore, human rightS-unfriendly. Culturcs yield to us distinct, and different, notiOilsofwhat it may mean to 'say' (and be) 'human'. They furnish a vast repertoireofidentities often going beyond political allegaanct or Ilationalloyalty; indeed, illvention and in~snnent of political idemities may need to dr:.r.w upon this. To maintain that everyone o ught to ~ regarded as fully 'human' does not yield readily dues to diversity constitUtive of dle ' human' if only because what counts as such remains differentiallydeu:rmincdlconditioncd within each culture, suffuse Wlth Its own quotients of 'sub' -
37. 901 GU$l.Jiva F.su:va and Madhun Sun Pralush (1998) 124. 95 EsI~ and Pnbsh (1998) 119.

143

Ion ization' deserve celebration for through t.helr libe~tJon from the Project' of universal human rightS because the~ ...

~=I

n ourC)'C'S and 'gaze" O~II our healU and nunds to the dIVerse cultunl W.JIYS .. tnb ngabout the 'good life'; to "he mhcal plunhsm wllh whICh thewc:ll-bclOg aiwu n1en , men, and ammals is ullCkntoOd and promoccd III drffercnlloc:a1 spaces aim!:' world. Cultural dIVersuy me~n5 not giVIng oue cu\lure's monl concc.ptIfyl nfhuman,lwomcn's righ lS-pre~minence ~rothers: bnngJng human n~ts down from ilS pedcsl2l; placmg il amidst other slgmficant cultural conceplS which ~ the 'good life' in a plunverse.!i16

The manifest tension de-pedestllizing human rightS furnish a nice po&rmical motif; and the contras~ between 'm?nocultu~es' and 'pl uriv~r~' is summoning indeed. It constitutes a precIous remmder of multiplied dislocatio ns betv.'een 'senders' and 'receivers' of human rights codes. 97 No ~r how 'fancied' as dialogical, this suggestive insight guides us to the iatrrcuhural production of 'contemporary' human rights as inherently ibonocultur:.r.l. Hannah Arendt put this insight pithily a long time ago. She It'eITCd that 'all attempts to arri~ at a new bill of human rights were ~red by marginal figures-by a international jurists without political experience or profession:.!1 phila~lth,ropi~tS supp?rted ~Y the uneenam sentiments of profeSSional Idealists which delllcd voice to the tlllftffing ofpeoplcs caught III the 'barb-wired labyrinth into which events .... dnven them,.9EI ~ may ch()()5(: to ignore this difference between Hannah Arendt and Ihe rttellt posnnodernist diSCOUrse but only at some peril. Arendt is ~fical l y commenting on early authors of contemporary international IIamm rights; in contrast, the postmodemist critique embraces all those who participate in the funher enunciation of human rights standards, DOnns, and instruments. Arendt analyses the distinctive blindspots of lhc post-Second World War human rights idealists and ideologues. The JIOStmodemists say, in contr:.r.st, that the entire de~lopment of human rights enunciatory movements since then is an archive of the manifold hhndspots (put in the phrase regime of Paul de Mann as the dialectic of blindness and insight). But the issue stands foregrounded : are the diverse COnceptio ns ofgood life immanent in the lanb'uagcs ofhum:'!11 rights legible

rew

. '"

~tllV:i and Prakash (1998) 11 8-19.

G~l tung (1994). II1II At Its very best,

lhen. hum:1II nglm emerge as

311

asscmbbge of 'a kmd of

Iddlbonall~w, a right of exception !)('("e»;l.ry for those who had TKlthlllg belteT to fall

Jt.n.. upon'. Arendt (1950) 33.

144 The Future of Iluman RIghts

Cnuqumg RIghts

only for those pre-colllmitted to the notion that attnbutes the exclu . aJthorship of human rights only to the communities of the: North an~'~e manifold and mullifanous clones c1sewhe:re? Its ~hi s ~~voc~tiou, however, remains wholly reductive. conflatLllg the crucial dlstlllCtiOIlS that need to be drawn between. on the one ha d , imposed 'ideology' and indigenous 'culture' and, on the other, be~ , mJ.cr~nt global cultures in interaction with national and sub-nationa~ (Vt'n IIlt~n5C l y local, cultures. Further, it veers to the view that global human nghts cultures in the making are 'cultures of no cultures', rath('f lign of many cultures. OfCOUI"SC, it rem.u1lS important to record the SOUnd bytes of the global hegemony vibrating within the emergent global Cultures
(3) H""rt Because we lack an adequate historiography of human rights, that is, forms ofunderstanding the interrelation between wIILtpwal and social histories., 100 ~ fail to grasp the play of differential construction of the universal 'human' enacted endlessly in their contemporary fonns and makings. The nuking<; of the postcolonial world of human rights offer us different cooceptual and social histories than those entai led in the making of the 'modern' colonial human rights. So do 'contemporary' hUII1;1I1 rightS forms celebr:.tting stories of difference, gleaned beSt through the move· ~t towards claiming women's rights as human rights or the rights of lt1big:.ty, transgender peoples as human rights. The paradigm shift frolll See Chlplcr 2. 100 RclOrn.rol KoMcI~k (2002).

J9

145

_ pOlitiCS of rtCogtliliot/, in contrast to that of rtdisfribwiOlI , emplots nar~ of politicS of identity and difference in rather astonishing ways,IOt ~, what may thus cou nt as 'history', or even as 'post-history', rcmallls contested site, sign ifying the present as II form of itl-btfwmmtsS of the past ~ the fu ture. Not having at hand approaches to historiographyofhuman rights. we lack conceptions of the llnthropologicaltime of human rights. 'Contemporary' human rights nornlativity thnves on the paradigrna~ic ame-space compression; put another way, it §e(:ks to anmhllate plura l ~ty ... multiplicity oflived, historic time, the 'heterodoxy III temporal behef .,-rms', and the many forms of 'temporal cultural relatiVIsm' .102 The IIelief w t contemporary human rights signify 'explOSIVe' time stands confronted (in terms of the eight types of time experiences in the typology clGurvioch I~ by 'enduring time ... deceptive time ... erratic time ... cyclical • .. . retarded time.,. time in advance,., alternating time'. It also reaWns impaled on other distinctions etched in terms of 'mythic' and "IPundane' time; 'microsociological' and 'macrosocial' time; 'secular' and :'tIcKd' time. At least a Jack, the secular conceptions have little or no :eoave~tion widl the sacred, mythical, eternal time conceptions. The jIIte of time in narrating human rights, as far as I know, remains an unwroached question. However, this much is at least dear: the future ofcontemporary human ~ values, norms, and standards, stands in dire confronution with IIDDons of 'eternal', cosmic, enduring time. For example, the Hindu dhanna still sanctions the belief and practice of untouchability embodies IkMions of cosmic time, On the other hand, movements for the rights of Nature (in a deep ecology, II0f sustlinable development, sense) and radical ~I rights movements (radical in the sense that defies utilitarian logic efexperimenul, animal-based, technoscientific research) proceed from a CIOIIage of different genres of histories of time conceptions. Implicit in both l'anains a holistic perspective concerning ' Nature' as an aspect of the Great Chain of Being. The point I wish to emphasize here is that the time of ~n rights enunciations is not always secularly flattened tllne, uncon1Inunated by ahcmate time conceptions. Critiques of human fights may IIDore with some peril the conflicting time conceptions. When we move fro m the time of regimes of en unciation to the time ol ~alization of human rights, what decisively matters are not conceptions, 0( rnacrosociological time, but lived time of the rightless peoples and

s..uch

'"

NUlcy Fraser

tI

til. (2OOl).

: Georges Alfred Gell (2001) 22, 61-7. G urvlIch (1961):

5e<'.

abo, Gcll (2001) 62-8.

146 The FU[ure of Humln Righ ts

persons. One has just to compl~ the sonorous en uncilfions of .gh .1 h . co n~m porary h uman fI ts wit I t e liwd tIme of rightlcss .......ples to . • 1 d· 0 ,.-~ apprecla~ t .g1 l C Istance. l1e needs to compare the t"Ynnllclltial proliferatio, fl -•• ,.~ I 0 luman n Its l10rmsand standards, for example with the te ll-talc United N . De I ' atlons ve opl1lent Program (UN DP), and related development , d . I " ' n ICators concerning Ie quahty of human life undc r conditions of 'de ve 1a pment' .t . , and globalization'. . H~ma n rights temporalities here m.l uifest attributes of'erratic tllne', of tI,:"e slowed. down and speeded up by turns, neither predonllilatin wtth.out predICtable rhythms'. 104 Indeed, these also slgnify'deceptlve tI ~ that IS, 'slowed time.with irrq;ular and unexpected speeded-up stretches~~!ti From ~e perspectl~es .of violated persons and peoples, this erratic and dcceptlv~ temporality IS probably all that matters. Indeed. the time of human flghts-and human-violation emerges for them as cyclical t ' . h· h . 1 . Imeln w IC VlO auve 'events ... seem to repeat themselves' .106 l-fuman rightlessllcss traverse~ ~hus .th~ spheres of deceptive, erratic, and cyclical ti me scales. The ~Is to.nes of the pre~l1t hum~l1 rigllts denials stand confronted by future hIstOries of human rIghts achievement. Thus, indeed, histories of denial of women:s righ ~ as hUI~lan rights stand sevel7llly constituted ifonly h«ll.use ~omen s bodies furnish tile very sites that constitute 'history'. Hum~n figh ts !a n gua~s, logics, and paralogics must COntcstJustifiatory hlstoncal practICes of genital cutting. dowry, and Silti murders. loell rape cultures, son-preference th.u engenders female foeticide, scx-ba..-;ed employment, and education differentials, forms of'dvic' sexual harassment, aillong many horrid forms ofimpermissible and inhuman discrimination encoding histories of multifario us locations of patriarchal microfacislll. The future of human rights lies in the vigour of this contestation within each distinctive histo ricaVcuhuraVdvilizatiollill seni ng; each sets a limit, as well as m;uks a possibility, for the emancipatory politics for human rights theory and practice w hich acquires meaning only within a notion that repudiates history as destiny. Social histories arc lived histories often embodied archived of hurt and ~ann, maybem and murder, desexualization and degradation, srigmatizaU ~1l and exclusion, marginalizatio n, powerlessness, and anomie that constitute and furni sh narratives of even flXed and essenti laised subaltem identities. that permit .minuscule o ptio ns for exit. Each quotie'm of lived human rlghtlessness lives on in foture history as a marker of docihry or ,~

1 tnvukc- here Ihe dUf';lClenUUOII by Gel1 (200I) 62. lOS Gc:ll (2001) III 62. lor. Gel! (2001) III 68.

C nuqumg Rights

147

fIIPO'lce, the fomler marking the politics '?flluman rights and the latter ~t1ve of emergences of the politicsfor human rights. Iluman nghts bbtOriography. properly so called, provides thus narratives of domlllatlon • ~II as of resistance.

(4) Movement

Hun 12ll rights movements constilUte complex, often contradICtory, modes

of the 'human' at all the three levels: species-being, culture, and history-

c:oostituted

narratives of the 'human'. For example, the assertion that women's rights are human rights claims at the species-being level that all humans are nccessarilyequal; to say that women are as fully human as man • to claim (against a patriarchal perspective) a radical commonality of all hwnans as coequal species-beings. The maxim/axiom also contests the Joeics ofdiscriminatory practices t11at plead extenuating features ofculmral ~rsity which allow, for example, such culturally divergent phenomena • non-consenting female genital cutting, sati, forced marriages, genderl!IKd employment and education discrimination, date rape, and sextl1l Junssment at the workplace. At the level of history, movements provide ...,-auves not just of domination but also of resistance, contesting, in the poc~, the logics and paralogics of patriarchal human rightS nomlS enunption, interpretive communities and practices, and statc1g1obal structures, .fAd much else besides. Here, the surplus, the na~ss, 111 struggle is all that ,IDat1rrs. This also remains generally true of o ther human rights-orientedl '-sed social movements: ecological, indigeno us people, children's rights, .lesbigay/transgcnder, and all related movements. Their logics and paralogics contest privileging modes that 'cssentialize' the 'human'.

VIII. The Politics of Identity 1bc principal problem here concerns what sbnds named in recent human ri&hts discourse as the politics of identity and difference: does this disCIOUrse essentialize the identity of a ImivtTS41i bearer of human rights,

obscurmg the fact that identities may themselves be vehicles of power, all 100 often inscribed o r imposed. Some familiar 'truths' at least concerning 'political' identity are capablc of l>Ulllmary 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-<~te villa~ wells

and subjected to all kinds of forced and obnoXIous labour; your huts set ablaze; your adult fr.mchisc regularly confisc~ted at elections by caste Hmdu l11i1iua.12) The very lOame story may be said about many histOriC and contemporary conullunities constituted by ascripuve IDgics of the dcsplscd Othcr. 124 Second, what is there to 1IIblltrt is a question that does. II1d~d, matter. Self-chosen identities and identifications may indeed renum multiple, contingent, and fluid; may they be said to be outside the realm of cultural prKticc=s of idemificatlon and identity practices? Mahmood Mamdani has recenuy argued that even when ... .. ' the: identitiC$ propelled through violence arc drawn from oUlSlde of politicsRICh ~5 race (from biology) or ethmciry (from culture: or rehgJOn)-wc need to dennurali zc the~ identim:s by outlining their history and il1ulllUl1iUng their links with otgall1led forms of powcr.l~

Marndani's project, III relation [0 violence in posteololllal Africa, also further attention to such benignly secular histories of organized bms of powt=r lhal, for example, constitute notions abom nationality and aOlellship. On the one hand , thesc very notions enable exercise of human risfns. On the OU1(:r hand , these structure fornu of production/reproducbOn of human rightlessness. Illstories ofpolitiCllIJusuce show how all too oCttn cltlzens sund converted to mere subjccts, as III emergency and IeCUrity Itglslations, now generalized and globalized III contemporary post.9/11 histories. Third. and at a general level , if tht: 'subject' is no more and only subject-positions exist, how may we construct or pursue the politics for human rights? Put another way: how may one theonze constitution of violent subjcctivities? We need to sharpen these questions, attend to their anvilCS

In Sec the dc:-nst:l.tmgly accurate" accQl.lnt In Rohlnton MIStry's novcl,.~"rtf &J/Qrn (1995). Sec ~OO Upendn BaxI (2005) conceming practices of l ndl~n pohocs, In the: ~ ofbrut:l.l vlobuon of wome:n In GUJar.r.t 2(X)2 ·C()mmun~1 Violence:' as re:lter.mon of ~ culture. I ~ One: needs only to dunk of ullposed Ickntme:s III the IIll1r MIlum Umted States hl\\ory or reSistance 10 post.Civll War consmutl on~ 1 amendme:nts: the expenetlce of it:p.lly Imposed South African ~p~nheid repmes: the plight of a!.$One
154 The Future of I-Ium:m Rights Critiquing Rights gene;lIogy, and salvage the possibility of conversation abom human rights from the debris of post-identity discou~,I26 Fourth, how may this diaspora of identity narratives empower thOst haunted by pracuces ofClagr.lI1t, massive, and ollgoingviolauon.s ofhul11an rights? For the gl/ nll of postmodern elhics this is not a ~nously ellg;,.~ concern as is the preoccupation with defining and COlltcstlllg all that is wrong WIth M)(:ralisrn and socialism,127 Fifth, is this human rights pathway (entailing the necessity to Internalize :It primordial identity) counterproductive, especially when it casts State and iawas neutral arbiters of injury rather than beingthemselvcs invested with the power to injure?l2!I Emancipatory in origin, human rights, in the course of enunciation and administration, may become 'a regulatory discour~, a means of obstructing o r co-opting more radical political demands, or 126 Thest' dlffieuh 3nd complex qu('Stions require cxh3ust;ve 3n~lysis Outside the scope of the present work. First, thc Usk enails ways of telling stories (not bhourtd analytiC morphol<JSIes) of what corutitutes concrete history of 'I/mum mffirmg both as

disnmiw 3nd tu),,-diltufJIW order of everyday lived rc3lity. On the other hand, we need to work through hislOnes ofhulnan nliKrylimmlscralion that the grand soclallhcory (whether In i/l 1IfW"1Itlr)' narrative nlOdcs or postmodcrn reVivals) obscurcs, ~ccood, renum w~)"t' of narrating the hl5tones of structures of torture and terror lllllW at dtsu'Oyllig. or $ubJujptlllg, hUm3n agency III resistance. TIlIrd, thcre IS need 10 disrupt thc stmggln for the r«ovcry of IenSC$ of human hiStory in which prxtlce\ ofhulllan ~ISbnc.: 10 dommarion sund conSlructed III the pre-human nghts and posl.human rights cxpcncnce. 127 Jacques Oemcb nghdy aslinls the headyoptlllllsm for hbcnhsm ofFulruyatna asklllg, nghu)( whethcr It lS credible 10 thlllk that '01.11 these calXly$ms (terror, oppreiSlon, repression, cxtenmnauon. gcnocKk and $II (/fI)' constitute 'con tln~,'oent 01" IIUlgmfica.nt hmiutjons' for the messianIC and triumph3111 po5t-
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<:rrida (1994), re~pcctivdy at 57, 98. 175 (199-4: clllpham addl-d), 1,1./110 I~ thIS 'one' addrcs!lCd by Dcmcb? The aVl nt-g;arde thc(,lnsl? Or, the: bemg of those subJccted continually to thc absolute order of ev11? No doubt, 10 ~IISIU~C UleorcllcaJ fellow travellcrs to the dangers of amllCS~ IS nnportmt. I 100000vcr. what doeS II, or , hould II, IIlC3n to the vlCUms of orden of absolute evil? 1211 wendy Brown (1985) 27.

155

ply the most hollow of empty promi~', It is Ironic that 'rights sought

;'21 pohtically definedgrollp art conferred lIpon depoliticized illdulUiualJ;

.. dt~ moment a panicular "we-ness" SllCC«dS III obtailllng rlghts,lt I~ lIS -we-ness" and dissolves into individuals':'29

Inde<el, in certain moments, human nghts development Yields ItsdflO

lricks of govcmanc~; the 'pillar of emancipatton' turns OUt to be the 'pillar cLregulation',Uo as we see in some stnlong detail in. the next 5tttion, We~ Ibis enunciamry be the only moment of human nghts, every triumphal attainment would also be its funerary oration. Does not oJinl a regulatory discourse at one moment also becom~ at another an arena of stmggl ~? If international human rights lawyers and the movement people need ., ancnd to the type of interrogation thus raised, postmodernist ethical dtinkt:rs need to wrestle with the rec~nt history of the politics of cruelty, which has fEConstrUcted, even rt-it'vtFlled, as it were, new pn'mordial (ommutJiIiD. These are communities of the tonured and tornlented and the prisoners of conscience across the world, espoused with poignancy and uocqualled moral heroism by the Amnesty International . Would it be true 10 say that their identity as victims is random, cOllungt:llt, multiple, rather dwt (tJuSl(/ by the play of global politics? In the absellce ofa seriolls pursuit « this i nt~ rrog:nion , how may wcjustifiably say that human rights enunaauons and movements commit the mortal si n of essentialism or bmwtio nalism in insisting a ulliversalnormativity, which delcgitimateS dais invention? H ow rna}; despite this weller of constructivism, post~ntialism that ldUeves many a rhetorical tour de forc~ for a Derrida, respond to the problem atic posed by an nchetypal Aung San Sui Kyi? She embodies human rights t:SSt7I/ia/ism. So do the Afghan women who, under signatures of state-imposed mortality/fi nitude, protested the Tahban ~me, while 1ft profoundly protesting the American invasion. So do the United Naboru C bildrens' Fund (the UNICEF) and movements like the Save dIe Children which, flumks to the globalized media, seek at times to, accomplUh the impossible, That impossible feat lies ill moving the atrophied conscience of the glo,balized middle classes lO all occasional act of charity, and even of genuine compassion, by the unbe;u,tble CNN depictions of OUC'lly starved children in Sudan in the midst of their well-earned aptritif or the fi rst course of their dinner. 131 No matter how flawed to the Parisian ,~

1.lO Rto\O,l'l (1985) 98. I a
'" HOWt:ver, suffcring as a sp«tack

Clll

do no more. For, the vcry

act

of mass

-.s.a PTO
CriuqulIlg Rlgtus

156 The: Future of Iluman Righu and neo-Parisian cognitive fashions, hUlllan rights discoun.c furmshcs tilt potential for struggle in ways that postmodernist discourse 011 the pohUCl of identity as yet does 1101 , May we allow these cognitive fashion pandes to drain emergent solidaritieS in struggle unless the postmoderlll ~ t ;UIII. essclllialist critique demonstrates th:u hllman rigllU arr a mislakr? Indeed, engaged human rights discourse makes possible a deeper un. derstanding of the polittcs of difference as far as n is in the act o f SI!fftnllg, rather than sallitiud, thought, It insists that the Other is not dispensable, It sensitizes us to the fact that the politics of Otherhood is not ethically sensible outside the urgency of the maxim: 'Ask norforwholllthe bell tolls' it tolls for thee'. It insists with Rabbi Israeli Salanter that ',IIt maleriallltt'~ oj my neigllbollf are my spiritual netds'.132 Critically engaged human rights discourse, even u nder the: banner of the d iaspora of identities, obdurately refuses the need to de~ssentialize human suffe ring.

X T he Summons for the Destruction of Na rrative Monopolies The critique of human rights may further maintain that tdling of I;uSC

global stories (metanarratives) is not so much a function ofany emancipluvc: project as of the poliucs ofintergovernmental dcsi~ dut IIlboests the politics of resistance. Put another way, these only serve to coopt the langtllges of human rights into pra«sscs and mechanisms of governance such that bills of rights may adorn with impunity many a military constitutionalism lnd the so-called human rights commissions thrive upon the statclregimesponsored violation. Unsurprisingly, the more scve~ the violation of human rights, the more the orders of power declare their loyalty to the regime of human rights. The near-universality of ratification of the CEDAW; for example, betokens no world historic perfonnlnce of human liberation of women ; it only

undersundmg of the produ(tion of $utrermg itsel( In a w;ay; the commu!IIty of 8"'.1:: mOlY bc: IIlStlnt/y constmcted by the erasure of the shghtest ~warc:n eS5 of compliCity. Su abo, Guy Debord (1970, 1999), TI l liS, the lIIa~s IIIcdiOli !lIUst obscure the fact 'all those we~pons used III nllke faT~w;ay hmlleIands IIIto kdlmg fields have bc:c:n supplied hy our own ann s fJCWfU: S, Jc:aloUJ of their order-boob and proud of their productIVity and oompetltlvcncs,-the hfe-blood of Out own cherIshed prospc:nty': Zn,"Il111nt Baul1l~n (1998) 75. See also. XIX Arucle 13 (1994). Jacques Dcrnda raiSC!l S2l11e uncanny qucstlons rollcennng giobah~ed media, whIch he describes as 'giobaLamuuzatlon' . 132 Cited In Emmanuel Levin» (1994) OIt 99.

157

endQWS the state with the power to telll11or(' Niett.schem lIe5,133 All too often, human rights languages become stratagems of imperialistic foreign policy through military invasions as well as global economIC diplomacy: 114 Superpowe r d iplomacy at the Umted Nltions is not averse to causmg untold su ffenng to human beings through s;anctions whose malllfest am} lO somehoW serve the futu re of human fights, us The solitary super· ~r, at the end of the second nllllenlllum CE, has l1l:llde the regime of sanctiOns for the promotion of human rights abroad a gourmet cuisine at &be White H ouse and Clpitol J Jill, All this now acquires an edge of po&gnancy in the narratives ofjustifications for Star War-type infliction of violence coded by {he post-9ft 1 'Wu on Terror' operations within nation and:IICTQSS nations, the laner manifest in the Operation Enduring/Operacion Infinite Freedom in Mghlllistan and the Second Gulf War. What is more, the critique llIay rightly insist, the paradigm of universal human rights conui ns comradictory elements, The UDHR recogn izes in the human rights of human bei ngs as well as that oflegaVjuristic persons, me perso nifi cations of global clpita1. 136 T IllS makes dialectically possible its conversion, in these h alcyon days of globalization, into a paradigm of " '·rdaltti, markel-jrimclly /III/llan n'ghu (beglllning its cueer with WTO, matUring in an obscene progression III the Organization for Economic Coopcr./ltion and Developm('nl (OECD) Multilateral Agreement on Inwstment) that we address in Ch;apter 8. Global trade rebtions now stand ~ted wi th the resonance ofrhetonc of the 1lI0raiianguagc of human rights (witness, for example, the diSCOUrse 011 'social clauses' in WTO as ~1I as many a bilateraVregional ccononuc/trade ;arrangement). More to Ihe point, many Southern NGOs who had originated a cnuque of global· iution now look upon international finanCial institutions as instrumen talilies o f deliverance from {he patholDgles of the 'nation-state'. III Stll( IS the lume of the colde$1 of all co k! monsters. Coldly, II tells lies, 100; and this lie grows OUI ofiu mOUlh: 'I, the ~l:Il(, am the people'. N.et%SChe (1954) 160I·These lies stand exposed 111051 poignamly In shlftmSJustlficalioru for the c/);llmon 0( ..... lllIng Sl:I[('$' massive 1II111aleni aggression m Inq, n~ See, Noalll Chomsky (1996) 169-221. Sec also, Chandr.l MuutrOIr (1993), m ....!llerican Association for 'lMJrld I leahh, Ottllill C1jfood ,md III({/kil'lt; 1M impall of rmba'il' 011 healill a"d "1I/rillO" j'l ellN: hl//!://u"ww; USlltllgugt',org/~wdin/(u/NI,llImJ. I here deSISt ftOm clung the equally poignant ardllVC the rtlP llle of 5aIlClicl!ls agaill.'it

.. us

""1~ AfIlde

or

17 protects IIldividual as well u aSsoclJIIOllal fights 10 property, a ~Non thOII for all pr~cllcal purpose !tc(pteJ the rxhc~llooklllg assurances In ArtICles 27 ,Not surpflSlIlgI~ 1n{C1le<:l\Ial property fights 51ands fully recogrm:ed in Article (2)

158

The Future of Human Righu

The r.m~ and depth of the many strands in postmodernist Critique f human rights is not dissimilar to Karl Marx's critique. 0" Iht J~ Quatio", IJ7 though the umque idio m of postmodernism was not as ab n dantly available to him! On this register, ~ need to reOect o n the Profotl~ insight offered by Deleuze and Guttari:

f... it is I because the market is the onl universal thing that 15 ulllversal m upllahsm and human rights axioms can c~ 011 the marlu:t with many other a;OOIllS. noubly those conceming the seCUrity of property, which are unaware of or s uspend them even more than they contndiq them. U9 If there is no univ(~1 democrauc SUe(, Ill!

Thus the summons for the destruction of 'narrative monopolies, l40 in hum;m rights theory and practice. is ofenormous importallcc, as it enables us to recognize that the authorship ofhurrum rights rests with communities in struggle against illegitimate power fonnations and the politics ofcruelty. The local, not the global, it needs to be emphasized, rcmains the crucial site of struggle for tile enunciation, implementHion, and enjoyment and exercise of human nghts. The pre-history of almost every global institu. tionalization of human rights is furnished everywhere by the local. l ~l From this perspective. the o ngmary claims of 'Western' authorship of human rights become sensible o nly within a metanarr.uive tndition which in the past served the dOlmnance ends of colomaVi mpcrial power forma. tions and now serve these ends for tile Euro-Atlantic community or the

ror

U1 Sa: also Chapter 8. a poslnJ(JdcmlSt reVlSIuuon. see Wendy Bt()Wll (1995) 97-114. 138 Deleuze and GUlun(I994) 106.

Ibid., 107. Lyotard (1989) at 153 IIlSiSlS: 'Destroy all narr.ltlve monopoliC5. ... Tau away the privileges the narr.uor has gnnted himself'. IYJ

1.0

1~1 To quote myself iml1'lOde$t1y: After all it was a man a lkd Loknuny.a Tilalr. who in the second decat'll: of thiS celltury gave a a ll 10 India: swaruj (iNkpmdmct) is my blrdlriglll lInd 1 sluJllluJV(' ;1, long before iliteTtUuorul human rlghu procbuTlcd a ngill 10 sclf-det('nmnatlOn h was ~ mall a iled Galldhl who cha lle nged e:Jrly thiS cen tury racul dlscnmlnatio n 111 South AfriC:II, whIch laid several decatt<:$ larcr the foul\danons for I1ltenlalio nal treaties alK! dedaratlons on the elimlnatlOTl of all fonns of racial dlscrlnUl\allOIl and apartheid. Compared Willi thcse male figures. gencnuOlls ()f leW: lld~ry ""VIIlen martyred themselves 111 prolo nged struggles ag:;unst patmrchy and for g..:ndcr equality. The curren! campllSJI basc:d on the mono 'Women's nlghu.1« Ilulll;ln Rights' 15 Inspired by a masSive hiStOry of local struggles all around. The histOne blnhplKes 0( all hunun nghts struggles are the hearth and the home, the church and the castle, the pruon and the pollee prl:(:'lIlct, the fK1Ol)' and

tnc farm

Upendn Ib:a (1996).

C nuqu mg Rlghu

159

']ludIC states (USA. EC. and J apan.) In this d Ol1unam diSCOUrse, both 'Jl'to(k nl ' and 'contemporary' no tio ns o f human rights eme~, though . different modes, as a 'vision o f a IIOVUS ordo sdcorum I~ the world as a on I ' 1<42 In addition , this discourse prevents recogn1l1o n that COIllwho e . . f

n stru ....le arrolinst human violation arc the primary authors 0 mUlll ti " ~ to • 1 " , ,' ghts N o task is more important,:lS the golden dust ofUmvcrsa buman . . . h Declaration festivitie s settles, to ttact' the history of human nghts fr~:lIn t e sandpoint ofcommunities united in their struggle amidst unconscionable hununsuffcrin~ . Various feminist thinkers have rightly contested the thertUtlc of destrUCtion of meta-narratives :lS inimical to the ~Iitics of d.lfference. HJ At the: same time, they also maintain that the telhng of stones of everyday violation and resistance which recognize the role of ~men ~ a~tlwrs of human rights is more empowering in terms of :r~a ttng soh~arny th.n weaving narratives of un iversal patriarchy or the~nz1l1g repression. only as adiscursive rdation. I'" Feminization of human nghts cultures begll~s only when onc negotiates this conflict between meta- and I1llc ra.: n~rratlves of women III struggle. One may even name the taSk or the mission as one of hunumizing 1J11man rigllts. going beyond the rarefied dl!.Couf'lie o~ t~e vanety of posunodernisms and post-stnlcturahsms to hlstor1t:s of IOd:vidual and collective hurt. Narratives of concrete ways 111 which women s bodies held;'1 tffrOfa", l<4S do no t pre-eminelltly feature o r figure in human tights theory. Theorizing repression docs not, to my \lund, best happen by contcsting a Lacan, a Dcrrida. or a Foucault; It happens when ~he theorist shares both the nightmares and dreams of the oppressed. To gIVe bngua~ to pain, to experience the pain of tile Other irlSlde you,. re.mains the task, always, of human rights narratology. If the varieties of postmodernisms help us to accomplish this, there is a better future for hUllUn rights; if nOt, they constitute a dance of death for all human rights.

142 lliVldJacomon (1996) I. 143 Stt. Chnstinc 01 Srcfano ( 1990) at 76; see also IUJowan Sunder RaJan. 144 Emesto Laclau and C hantal MoufTe (1985) at 87-8, 115-16. I.~ Mary Jo Frllg (1995) 7-23. The li ved reahty of sex-tnffiekll1g, sweat-labour, ~StlC ierfdom, wurkpbce dl~l mlllation , sc:xu~1 hanSlillle11l, dowry murders, npe In peacellme as well as war as a me~11I of domg 'pohues', torture of women ~nd rnedlcahutlo n of !llelr bodleS-llll t1lesc: and related devlI:n 0( Jute and SOt'ietyPrexnl problems of Imtlra"t_ 11/Jtm)f'. 'WhIle fcnllTIIst KholarshLp has demonsmted the power of 51Ofy-1C1hng. SOt'QI theory of human nghlS Ius yel 10 concel~ of ways U!d rTKal1ll ofinvntmg lIlchVJdual ~"',

b!0p'3phln of the VIOlated wnh the power of SOCial

What IS LIVing :md Dead in Re bnvism?

fi'arTlcWOrk. On the other hand, the analytic often

______________________~6 What is Living and Dead in Relativism?

I. The Universa li ty Thesis

T

his assertion (hat 'contemporary' human rights arc 'universal' has come under fo rmidable attack from the standpoin ts of relativlslll antifoundationalislll, and multiculturalism. The idea of the universal it; human sciences is typically associated wi th the project ofuniversalh'ation. In particular, with and evcr since Marx. we know that 'what is named as univenal is the parochial property of the dominant culture. and that 'universalizabi lity' is ind issociable from imperial expansion': It thus ftmains understandable that some grass roots human rights activi ~ts ass~ il the un iversality of human rights in terms of cu ltural and political impe~ rialism and that some heads of states and govcnuncnts construct J lIstifi~ cations of their impunity for violation of human rights norms and standards by appeals to cultural differences. The project of 'universalization' of human rights, particularly ofglobalization of human rights, also SU'aIIlSthe idea of universality of human rights. Both the fonns of advocacy and of the critique of universality remain fraught with fateful implications for the future of human nghts. The problem concerning ' universals' neither begins nor ends with human rights. The ' historical fonns in which the relationslup between universality and particularity have been thought' are many and dlvCrse. 2 Construction of'universals' involves both analytical and ideological aspects and the relation between the two remain problematic as the analytic is all too often constructed within the ideological.) The ideological aspect addresses the problem ofj llstification of ' human rights' and the comtructioll of what counts as 'human'; the analytic then stands defined wnlllli this I Judllh Outler (2000) 15.

2 ErncslO Lacbu (1996) 22. See also the rceelll converulion hctW~~1I Judllh nuder,

£tnnto lxbu, and SbvoJ ~' lck (2000). ) As the MlITXlan and, more recently, the femlll ist and lesblgay/tnmg.:nder cntlqllC havt: amply shown .

inSISts 011

161

its own

auw nomy;4 indeed, the relation between the idcolOglcal and the alulyuc

.uggests both the sltuatrtiness of all human knowledge and the relative auconomy of practices of logical thmlang. This is a fOrlludable territory, »\\-'e sec shonly in thiS chapter merely COllcerned wah the 'umvcrsahty' of human rights. [n this mood then one may proc«d With an analytic tlut suggests at least three distinct, though related, meanings of 'univers.al'. First. in a unlveTS31, a property or relation stands instamiated in whole variety of particular things, phenomena, or state of affairs. Thus, we may speak of bunul1 beings as those sentient beings who have the capacity for language. Orwc may say, somewhat self-referentially: to be hUlllan is to be privileged amidst all sentient beings as possessed of some shared auributes of recognition and respect for dignitary interests and rights that mark the disunction between human from non-human belllgs. 5 Second, universality IDlY occur independently of things, states of affairs, or phenomena. Thus. to take rather a complex and difficult example, one may speak of hulJlan rights as natural rights, independent ofand available agai nst political 'things', lUtes of afTain, or phenomena. Tlllfd, one may say that all universals arc "hommal', that is just a matter of naming these within one linguistic practice or protocol. From tillS sundpoint. the ciaimthat human rights arc univcTS:l.I signifies access to a widely shared linguistic convention.6 ~ Dttadc"s 2gO, for t'X1Inpk, I ~~ an ImerC"Stmg book raISIng the quC"StIOn whether

1httc em be a Marxian,:IS dlSlulCt from a bourp!. throryofZcroI Likewise, one may .... TKKWIWsundmg all our findy nuanced undersundmg orthe culwral t"mbalme nt oldomgsciellCC whnhcrthcre nuy be such thll1gsasa Manoan ({)f"~n post-Marxian!) chtnusuy. physia, genetics, hft" SClCllCn, arofl(:ialmtcl hgcna' 5C1('ncn, or astrooomy. 5 Animal rights mOW"mems qUcst)Ofl UliS privllcgmg on VlIOOUS grounds. InstTUDlrnwist grounds suggest mimmlzanon of !>lin and suffering to amlTlills whether as tources offood and numtlon for humans, beasts of burden, mSlrumt"nts of sports:md PUn. muru of public enreminment, or as e:q1Crmxm:d guinea pigs. On all these pounds, h~er expansive:, the range of dullC"S to prevt:1lI mfllctlo n of unncccssary lwnl and suffering. rcmains be clouded by w hat ...."(' may sull do With animals wlut _ ought n(V('f quite do with humans. Intrinsic moral grounds In ullmal rights movements go (unher in re lation to a preferred C":Itegory from the above menu of'uses' of IlIlIluls. Spi rimal vt:gctln alllsm, for example. inSISts that trunng am mals as :.;ouren offood fo r human~ is edncally repugn ant with the Idea of rC"Spc'Ct (or If(e; and the Sollne .... nclple clCICnds to movements for ehmlll;llloll of alUmal blood sports although It may toulld odd to describe theS( all aipc'Cts o( $pltltua l vegetarianism. In contraSt, moverhcnt tow:lrds banlllng cxpcnmeTllal re!l(ueh with proceeds on the pnnclple that Iri:Nturmg anlrlul fonnJ of SCllueTII h(e as :.;ourcCll for protecllon and promotion o( hUfn~n and publiC health VIOlates respect (or hfe. ~ In thiS sense. 'uniYelYhty 15 a nalne which undergoes 51glllfiant accruals and ~~I$'. Judith Hutlcr (2000) 24.

162 The Future of Iluman Rights On an ideological planc, within which I also include the ethical a d the rdigious,1 the 'universal' st:.nds conceived in difTerem ways n n ethical theorists seek justification of human rights' in the u!lIve~1 i~t, of politically organized human societies as mortll commumties. They a~ moral communities bttause they, in principle, ~oognize that hUIl13. beings a~, by virtue of being human, entitled to dignity and reSpttl. Th; maydifTer in ways of construing these values; and, further, In concretizing the nature and number of human rights and the attendant T
What is Living alld Dead

III

Relativism?

163

particularistidspeci fic articu lu ion of3 demamVinteresl fCmains 'spl it, from

tbt very beginning. between its own panicularity and more universa1 dimension,lI should be e3SY of grasp for lawpcrsons 3nd hum3n rights ,cuv1sts 3nd practitioners. The univtrsalistlc notions of'democracy', 'rule ofbw', 1USlict=', and 'human rights', for example, remain empty sigmfiers until the various specific, particularistic delll3nWantercsts a~ OIggfegated or. as Lad3U put this, '3rticubtcd' into 'equiv3lent' demands through chains ofeqUIValence. 12 Recognition of a particularistic dem3nd In one: sector can inspire struggles for demands in other sectors. One h;as just to explore lhe JUrisprudence of constitutional courts, supranational courts of human rights, the International Court of Justice, to realize how these 'chains of equivalence' articubte themselves. 13 H owever, the: more cxtendcdlarti cu ~ 1ated these chains bttome, the more pressing' the need for a general equivalent representing the chain as a wholc' bc:comes 14 marking the dw-acteristic 'hegemonic move' where 'the body ofone particular assumes a function of universal representation' .IS One has just to read, word by word, the astonishing recent discourse of the European Court of Human Rights,16 or the United St:.tes Supreme Court decision concerning the II Ladau (2000) 302. Roscot" "'und', account ofule law In tenns o( a gcnenllheory of tNiJncing human intcrcsuldenunds, as subsequently enrn;:hed by Juli us Stone, iIRIlCd that mdividual dem~ndJ muSt relllaln If'msbuble 11110 50011 and public

attl:$ts ITUKcs Ihe very gmc poIlIt: 5«, ge~n lly, Julius StOlle (1966).

12 The same process is at work as well as In the- Juruprudence of the Unrted NatlOlU human riFts trtaty ob1ig;mons. 13 Laclau (2000-.302) exemphfln Ihis by 5howmg how dlls amculaoon spills OVCT .. the duu;tion ofuniven.ality WIth re(erence 10 anll-5}')lemIC demands bu lhose th;n left rccognioon of IcgitilTUtion o( mlllS5 smkn um lead 10 'demands by students (or RiantlOn of discipline ill educanonal inSllnltlonS, hbenl pollUCWIS (or freedom of the press and so on'. I. Uclau (2'000) 302. IS Ucbu (2000). 16 The European Coun or HUlllan Rights III !he case of Rtfoh llfnisi ('r'M Wdfott' R.rry) aM 0tI1n'I v. Turboy (application n05 4134Q198, 413421>8. " 1l43/98 ;irId 41344/ 98, 13 Fcbnmy 2003) vaiid;r.led !he five year dissolullon of the ruling natiOlUi po1itic:tl PIny on the ground that Its continued oonstitllnonal CXlJlence lIIay In fU lu re ~rdlle !he exislencc forms O( histOrically inslilullollailloo Turkish democracy _I( TIus decision demollstntcs nther acutely Ihe awc!lOme supnna tlonai ~judi~ catwe ~r or adJ Udl OIlVl: eplStenliC C:Olllllllllliliel. Professor Kevlll Boyle recen tly Jllbcntcd tillS al the UnivcfSlty ofWlrwick llostgnduate Semnur (3 lkc:embc.r 2003) ~~"'IlS of'democncy and human nghts: wh ich COIllC'S first?'. In hi5 conSldcrt'd view, - 1UTIJII1 righlli precede: conceptions o( dcmocncy. Ile-conceptuahtcd III Ladau ca tegolies, th iS Juchdal reat siglllfies the dash o( 'empty 'lgrllfiers' perenmally UI quest o( referent.

'&caty Uoches (orever ~QZlng by ~y ofGcnenl Comments umntcndcd

164 The FulUre of Human Rlghts human nghts of th~ Guantanamo Bay dttentes.17 to fully grasp the artlClI. Iation. as well :IS the imp:lct, of sllch hegemonic moves. In ~lUll, Udall deepens our understanding (regardless, of course, of the :luthorialllltcn. tion!) of the articulatory praxd of human rights that insist~ntl y conVert 'anti-SYSlC:mic' demands (pohncs for human rights) in term~ of the prOS( of govemance (poilucs afhuman rights).

ll. J ustifications and Universality The question of universality stands further compounded by the different constructions ofjustificallons for human rights. Justification requires giv_ ing good reasons, and, in turn, the construction the very notion of ,good', for th~ acknowl~dgement or existence ofany universal set of human rights. Almost all the time textual justifications for the universality of hUlllan rights remain incoherent, the paradigm case being that of the very foundational document of contemporary human rights. The Universal Dcc1::r.ration of I luman Rights in its preamble offers a vanety of justifications. P:!.ra I of the Preamble asserts certain univernl m0(31 truths concern ing 'th~ inherent dignity' and' the equal and inalienable right.'; of all members of the human family'. At the same time, It olTers IIlstrumelltal (means/ends) type of justification for hUTllan right:.. Para 3. for example, inSISts that recognition of human rights is es~ntial because otherwise human bein~ will be 'compelled to h:we recour<;c, 1II.'> 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
What IS LIving and Dc:ad m RebtivIsm?

165

the promotion of 'social progress and better standards of life In larger frccciom', and the enacting recital proclaltns human rights as a 'a common ' tand;ard of achievement'. These assorted genres of justification arry within them inchoate antiCIpations ofa future critique. Thus, the hlstortcal JustifiCltlons specifically indude referents to the Holocaust and to H iroshima-Nagasaki but fail to mention colonialism and imperialism as signatures ofbarbarism that 'equally outragt: the conscience of mankind'; feminist analYSIS remallls enabled to protcst at the reference to 'the members of the human family' (and much else besides, including the reference to 'mankind' rather than 'humankind'); ecological critique poillts towards the inherent environmental blindness of the enunciation; critical race theory proteSts the inherent 'racism' entailed in the notions of'human beings' and 'peoples'. And finally (without being exhaustive), as we see shortly in th is chapter, the cnalogue of human rights and fundamental freedoms, even as it ce lebrates transcendence from virulent forms of sovereignty, pr~serves inract their potentiality for production, and reproduction, offomls of human riglulcssness everywhere. Many aspects ofcritique surface during the mandatory celebrations of the Il uman Rights Day each year and these cascaded into a torrent of criticisms-too numerous to bear the weight of even the lengthiest footnotc-during the recently org:mized fesllvals celebrating the goldenJubilee of the U niversal Declaration. All thiS then ral.scs the quesllon of the ideolDglcal inchoateness of contemporary human rights producllons of )ustlficatlons' for universal human rights, If only because mtroduction of contexts seems subversive of clalllls of umversality. Obviously. then, we need to step back from the enuncuwry (textual) Justifications that human rights instrumentsolTer and invite attention to the fact tbat the notions of'good' do nOt escape' geophilosophy (to evoke a tenn ofDdeuze and Guttari),20 the conflicted timeplaces within which occurs thc construction of an assemblage of empty significrs and the shaping of their content. Students of millennia-old diverse discursive traditions of natllr..allaw know rather well this discomfiting truth . Gilles Deleuze and Felix G uttari express the same truth distinctively: 'England, Ameria, and France exist as th ree lands of human rights'. This is so because 'human h!storyand the history of philosophy do not have the same rhythm'.21 ~ph l losop h y pauses to note the fact that the history of philosophy is marked by national characterIStics or rather by nationalitarianisms ... wilich are like philosophical ~opllllons'''.21 .. Gille! Ocleu!e 21 Ibid., 103. 22

Ihld., 104.

ilK!

felix Gutun (1994) 85-116-

What IS

166 The Future of Human Rights

Concepts, assemblages ofempty signifie:rs, acquire: universality in terllls of'external neighbourhood' or 'exoconsistcncy,.2J The: paradigm of 1l1od. ern human rights attained exoconsistcncy on a panicular dimension of human history, in which the immanent universality of human rights 0.11 only exttnd to the non-European other (as seen in Chapter 2) upon the successful performance of the mission of the 'White Man's Burden' 24 Contemporary human rights discourse manifests a wholly differcnt 'exoconsistency'/re:-terrimrialintion of human rights principles across, and between, all nation...societies. This stands fau lted as making UllLverul merely that which is militantly panicularistic within societies of wcll. ordered liberal (or socialist) peoples or cultures. Even so, an edge of 'external neighbourhood' or 'exoconsistcncy' speaks very differently to the future of human rights.25 'Contemporary' human rights discursivity now begins to rcconstruct and add rcss the gcophilosophy of human rights in tenns of the problem· atic of a just i"tertltlfj'o"al ordN', that is, a world order based on promotion and protection of human rights within and ruroSJ human societies, traditions and cultures. Respect for human rights entails sustcnance of a complex. interlocking network of meanings and conducts (and their renovation and replenishment) at all levels: individuals, associations, markets. SUteS, regional organizations of the stateS, and international agencies and orga· nizations. Ind« d, the ' universahty' of contemporary human rights dis· course thus marks a break, a radical discontinuity with previou5 Enlightenment modes of thought.26 The epistemological break IS of the same order as that which occum::d in the SC'Ventttnth century CE European tndition. If 'prior to the seventeenth century, governments madc no 2J Sec Ibid"

90.

24 T know of no femmlst rnriquc that cavils the 'man' in thi$ expression! 2S Arvtnd Shamu (2003) ~t 131-4, userully poina out the difference befWeen Arrick: 18 of the UDII R and Article 18 of the International Covtnant on CIVil and PolitICal Righ a. The rormer ens hrined as;m aspect or right 10 conscience and rellgJon 'the rreedom to change' rehG'on Of behef; die blttr enshnned the nght to '~dopt' a re1i~on. l ie suggestS th2t this subtle shift in language wall an aspcct of human nghtS diplolll:acy that respected differences in religious traditions; bl~mic COUl1lrle~ winch opposed the Unive rsal Decln:ltlon on the ground that the 1Mri'", regards (/ltm~ an act of apostuy pUll1shable wllh de~th were content With the Cove nant's bnguagc. I evoke thiS disc:usslon here to dlustrate the aspect of cxoconsIstcncy at work In COIltelll pOrJty human n gills enunClanons. ll> 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 op<:~u lly emergent human rights of peoples with disability. These are porttmlllnlles because they differentiate the Ilhstrtul / UJnlllPl in the Universal Declaration. These are am/fila because the identities they constitute still as yct do not addres~ the specificity of subject-positionsilocations of the human rightslobl~gatlons constituencies. But this is what the third moment of {(mcrttt IIII11'l'fStll.ty addresses; III this moment, rights come hOUle, as it were, in the lived and embodied c ircumstance of being human ill time and place under the signaturc of finite individual existence. In the moment of t1~ e c~uac't utlivtrstJl, individual life spalls and projects arc not merely filllte III ~he abstract but arc governed by the malevolence of the powerful, the ~aga~':S, and w hims of the practias of the politics ofcruelty, and ofcllf4Stropluc poImfs. The relation between the three moments remains deeply problemauc. The moment of concrete universality appears, on one reading of human rights, contingcm on the performative acts of the first two moments. Concrtte rwivtfStllity of human rights, on the o ne hand, presupposes the moment of both abs/Ta(/ ImivtrS4lity and abs/mc/ JHlrtitlllarity. On the otl~er hand the moments are rrvmible, t ntailing no logic ofa hitrarrlry or progress/Oil of mo;"erus, in the sense that often enough (as explain~ ~arlier) it is the he~-and-now assertion of human rights that lack a btil1g 111 1M world that. in tum creates the space (the geophilosophy) oUfor the other twO mo. IIts olten e consIsts · .m the:le", of ments. ,The COI/frete u/1i/.'l'f"SQliry of human ng prefigurative praxis. No theory ofmomcnts of human rights guided struggles Aruek 30 fates: 'Nothmg In thiS ()«br.lltlon nuy be Imerprnea as Inlpl)"n!: fOl" any SIilIr. pp (1f" pn10ff allY nghts to engage: In any :KtIV1ry or to perfonn any.iC t aimed at ~ cIartucricHr of any of Inc nghts and freedom 5et forth herein' (emph;rslf . Ildd·1"",,10 · /lIr~1 ackkd). l QU the reference to pmt1fU:as symbohzmg(OrpoNlt pmt1fU '" ltd pmoru, IMI is indirN:l1IIJi "'11II1II11 """61. )I

What is Livmg and Oc;td III RelatiVism?

169

for decolonization o r Mohandas Gandhi's protests agaLllst or may fully aplail1 the incipien t, but still vicious, forms ofan early regime of apartheid. Much the same holds true for the civi l rights movements led by Maron Luther KingJr; or of women's or envi ronmental rights movements.'2 The distinction between universal and universalizable in hu nun rights IS also an affair of histories of ~r and of insu¥ncy. The interplay betweell the moments of abstract, particular, and concrete universality shapes the history, past and future, of human righ ts. Each marks some kind of progress or at least a movement, towards the universality of human rights. Without the notion, howsoever deeply anthropomorphic, that each bunun being is by the fact of being human the subject of the discourse of human rights, the discouTSC becomes wholly inscnsible. So, do all further attempts at extending the notion to other sentient beings (as in the Immal rights movements) o r to 'nature' (the notion that trees, rivers, moulltai ns, fragil e ecological systems are bearers ofa certa in order of rights against incursion). Ilowcver, human beings ate both biological and social constructs. The moment of abstract particularity identifies human beings across various picb of ~rs of classification on the lines of race, ~nder, natio nality, and c1J.Ss. Abstract particularity helps proclaun/enunciate orders of collectivelgrouplassociadon identities, attaching to them configurations of distinctive: vertical righ ts, additional to the horizonul rights of these as human beings. Concrete univcnoa lity constitutes the realm of struggle both for enunciation and enjoyment of rights in lived existence that the two moments bring to historic play. It is on this plane that decisive struggles bnwecn rigllts-dmying fomutions of ~r and rigllts-dm!atUfi'lg fonnations ofcounter-power enact the dance ofdeath and rebirth of social C0nsc10US~ and social organization. The struggle is inherently violent, moving along the axis of the violence of law and law of violence." Not usually acknowled~d, practices of violence constitute, wht"ther of the incumbents or insutgcnts, or h~monic or countt"r-hegemonic practices of violence, the matrix of concrete universality of human rights.l4 The moment of COncrete universality stands constituttd by both the violence of the op~sed and that of the oppressors through distinctive histories of psrudotptritJliotl (to which I allude later in this chapter). 24) thn 'u lllve~llry unnot " We nuy al50 nOtt' ht"re. wrthJudlth Butler (2002: mclude'. She, h~r, also

PI'Oc«d WithoUt denroYlllg that wh ich II pUrpoIU

to

that ·the c.:luslOn:uy eharxu:r of... eollventlotUl 11011115 of ullIversahry 1] not preclude further recourse 10 the lenn ... '(at 39). l4 Upendra I3axI (1987) 247-64. Upendra &a (1999c) 27S-90.

:'rndl lIS

\'(/hat is Living and Dead in RelatiVIsm?

170 The Future of Human Rights

rv.

Globlali zation and Universality of Human RighlS

AU this suggests the possibility of two types of difficult disti nctions: first, between utlivmality and the utlivmalizabifiry and second, bctweenglobal',l"a. tum and lmill(r1a/ity of human rights. The first set of distinctions cl1lcr~s analytically as the dialectic among the three moments in tenns of ab~tract universality, abstract particularity, or concrete universality, in their potcllltal interrelation. Unill(rsalizabiliry thus names the passages between the three moments, whereas globalization of human rights merely marks the ascen. dancy of the contingencies of power plays of the h~mon . 'Globalization' of human rights is a process in search of d cdreful description. This process rests on two fallible butsrill powerful beliefs: the belief con~ming the ~[em' origin of human rights and [he belief that only some leading Euro-American societies Oldy most effectively promote global human rigllts cultures. One may characterize the first order ofbelicfs in tenns of origin myths and the second in terms of the patrimony of the dominant (as already discussed in Chapter 2). An.a.lytica.lly, It is at work when the dominant stateS selectively target the enforcemcnt ofceruin scts of human riglns, or sets of interpretation of human rights, upon the 'subaltern' state·membcrs. and peoples, of the world system .3S The hcgc· mon dcxs not accept as a universal nonn that its sovereign sphere, rife with hum.an and human nghts violations, ought to be equally liable to similar human rights-based intrusionlinvigilation. No major Euro-Amencan nation would subject itself to Third World institutional scnltiny and crinquc of its human rights pcrfonnance. For eX3mple, the rigours of an mtemational panel of observers mOIlltoring free and fdir elections will never find acceptance, even after the electoral muddle and mess that elevated Gcorge Bush to the White House. though insis ten~ on such monitoring is now .a routine aid and good governance conditionality for South Ildrions and peoples. South·based 35 However. the indictment of Eurocentrism merely SCrve5 to Kinforce a :.on of pnde In these beliefs. Proponents and propagandiSts h~vc link or no dlfficuhy III suggnung th~t such IndlCftTlCnt bcromcs and remams possible III lhe firsl plxc only through the I"«Ollrse 10 ElIro--Amcncan onglllS alld dcvdopmcnt of human rights I~nguages . Patnlllony beliefs, SImilarly, thnve whell subaltern peoples and SQre! appeal 10 leading Euro...Amencan StalC5 and peoples 10 observe hUlllan nghts nonns and standards as, fot example, In the allcvuuon of the Southern dtbt or obligauo m of development ml)UrKe to 'ocvdop11lg' JOClC:tles, or calb for the 101I11In8 of lIlululIJlIonal pharnuccmlcal rorponuons 10 fotego theIr patent monopoly over hfe 5;l.VUlg n:uovltlll AIDS dru~. Pm another way, the procus of globalizing human righ ts enwls new forms of global tutd~ alld even vassalage that KmforcC' the productio n of patrimomal human nghts beliefs.

171

rnonuoringofhuman rights violations in leading Euro-Amencan societies

likewise remains inconceiVllble, though a North-based surveillance of forei gn policy and developmental conditionality now routlllcly affeCts all South societies and pcople5. Little or no effective human rights mOllltonng is allowed to extend to the Israeli violations of the human fights of the Palestinian state and peoples; Israel was recently allowed to mock, III the gaze of the entire world, at the United Nations resolurion ordering a human righ ts investigation conceming atrocities at the Jennin camp for Palestinian refugees. Globdlization of human rights is thus a 'discerning' process, which marshals logics of impunity fo r some egregious violators, visiti ng at the same time with ferocious severity similar agents of violation elsewhere. It thrives on the distinction betweell the 'friend' and the 'enemy'. No doubt, the assorted practices ofglobalization of hum.an rights thrive on contingent JlC("cssities of Realpolitik, or the politics of human rights. As the world knows by now, the dominant Euro-American support for Osama bin Laden and Saddam Hussein found VlIrious, even human rights-friendly, 'Justifications' during the various phases of the Cold War; upon its historic ending, these actors stand presented, with fierce felicity, also as deeply subversive ofglobalizin8 human rights regimes. Saddam Hussein enacted endless 9!ll·type cataStrophes for the Iraqi and Kurdish peoples but these ~gan to decisively matter only when he sought to annex Kuwait and survived the first Gulf War. I lis regime becomes an evil regime on ly with the launch ing of the global war on terror in the wake of the terrifying a.nault on the twin towers of the World Trade Center III New York City and on the PentagOn, despi~ the fact tllat even the state-sponsored investlgattons remain unable to demonstrate any linkages between Hussein and Osama bin Laden.36 Jt is pointless to enumerate other equally horrendous examples. J7 G lobalization of human rights regimes thus suppresses, even supplants, when expedient, the rhetoric of universaltty of human rights. An ethiC animated by logics of universality of human rights necessarily protests dgdinst logics of global ization of human rights. These regimes of globalization ofhum;m rights furthcr now manifest ever shifting orders ofjustifica.tion for the use offorce directed to the 'war on terror.' Any state or peoples suspected of harbouring 'terrorists' now remain exposed to massive violence by coalitions of 'will ing states' under the leadersh ip of the United States. Any state that may be suspected of Ih

~ See, Eliubelh Drew and Thomu J\,o...-CfS (2004), James Mann (2004), James nl~Ord (2004), EmmanuclThdd (2004). See, SaHUntha !\)wer (2002), Geoff Robertson (1999).

172

The Fuwre of Humin Rights

possc=s ing stockpiles of ~OIpons of mass destrUction OIlso remOilins 1i00bie to massive pre~mptive use offorce. regardless of its demOills of possesSion, ckployment apOibilities. or hostile intent. Further, the mere OIpprehen_ sion-Wlthout OIny semblance of evidence-that a state may have SOme connection with any post-WI! terrorist network now stands considered OIdequate to justify the 5O-
'iXlhal is Living and Dead in Rebrivism? 173 regime change by peoples in stntggle constitutes 'treason' at home and 'terronsm' abroad. Treason (including disscnl) must be outlawed because It complicates the assumption of universal global responsibi lity of the pOwer to name an 'evil rt:gime' and for ousting It by the sustamed use of force; 'terrorism' must be fought, oULSide the constrai nts of human nghts norms and sta.ndards, to preserve structures of global power The unfoldIng ofa 'new' post.9/11 international law in the context of the Second Gulf '1hr and its continuing cruel afterntath brings about a new era of violent globalization of human rights.. . The predominantly Anglo-Amencan leadership of war prop:lg3.nda and :actUal acts of WOIr has raised formidably technical issues concerning the legality of recourse to unilateral force (in the sense not specificOil ly OIuthorized by the Security Council), and of the ensuing rather lawless mi litary occupation. These will continue to invite contention among the cognoscenti, especially w hen the scope for residual adjudicatory c1arific::r.tion now stOlnds rffectivdy diminished.)? However, no elegant dispute concerni ng the fin er points of internOitional IOIW can mask the brute reality of the installation of the repertoire of~ustifications' for the twenty-first century's newly fas hIOned ~ u st' WOIrs. It invents three notions: first. the 'WOIr' :lg3.inst ' m~ international terrorism' (or simply, the 'WOIr 0 11 terror'); second, the hastily assembled doctrines concerning pre~l1lptive disarmament WOIrs; and, third, the power of uni lateral OInd un~rifiable assertion that claims/constructs authoritOltive linluge betwttn the two. This power cstablishes its own iruugural truths, with a fierce plenitude. In the proccss, the United States of America becomes the primary rq>ository, the virtuoso exponent, of the newly institutedglobafjllrisdiaion oj suspicion. The solitary superpower's paranoia now becomes the standard of human civiliZ.:l.tion. It may, with impunity, nOime any South nation as a harbinger or home: of mass international terrorism and further claim that it posseS5CS unverified/unverifiable weapons of mass destruction which mOly, eventually and somehow. be made potentially aVOliiable to agents of mass intemationOlI'terrorism'. Reiteration of these linkages, even without a semblance of proof, becomes the founding truth that justifies OIttempts 19 The Umtcd SUles' successful insiStence dl3t Belgium upunge from its satuce book the ulllvtl'S.1l jl1nsdlctlon for war crimes and enmel ag;t IllSI humanity will n~te!osanly abate the current pc:C1C1on~ litpinsc Presldcm Uush and Pnme MLl1Ister Blalf. The II1b!muional Crnllltl31 Coun docs nOI yet deal with eTIIIlCS of aggression and, LII . ny cwm, the United SUitS tus chosen I)ot to raufy the cre3ty. and in an extraordinary PCrformarl(C even revoked Its inLllal Signature to Ihe treaty! GlVtn thiS, tile people's rnhunals and truth cOlllmiSSlons providt the only. even when ,omewh~t hlstoriClll1y t ffete, (unctional moral equtvalents.

174

wta. is

The Future of Human Rights

(with or without allies) to cajol(:. corrupt, conscript, and coerce all States, and th(: entire United Nations system. to wage 'disarmament wars'. The Pentagon and the White House now assume Ul(: new role ofa ' PosunodcTn Prinee=';..:.l th(: Vllnguard bearer of standardless use of military might III hot pursuit of a vision of world order that preserves Its str.uegic hegemoniC domin:mcc as a Jil« qlla non of a civilized world. Thus stands established a new neo-colonial world order in the pr«ise tenns that Kwame Nkrunl3.h framed to describe it, as 'power without accountability and exploitation without redress'. Thus also bl=gins thecarcer .and the future of an era of.a neweold War.4 ! Th(: new Cold Wu ideology .and practice deploys the rhetoric of human rights for its own distinctive ends. Fint, and .abov(: all, it generates a messianic discou~ that now constirutcS 'rogue' South regimes :md sUtes (ddined as thOS(: that once served but now threaten Northern interest) pr(:Sented as a collective threat to human rights futures everywhere. 'Just' wars against them constitute noble. even sacrificial. endeavours to redeem affected South ~ples hum.an rights futures. Strotld, th(: cnonnOlls human suffering of South peoples e.aused by Star War-typt massive aggression is presented 25 ajust, necessary, and even om:m(jpalilJf' foml of impositio n o f human suffering. These extraordinary violent mediations, it is now hemg said . aetll.ally birth new futures for human rights. TI,jrd, 'collateral ' human/ social suffering thus imposed stands justified by violent practices of regime change; the present surplus human-and human rights.-violation IS to be tr.lldcd-off by ;rn lIne(:rtain promise of a life 'democ:r.JItic' here;aftcr. Finitudes of suffering thus (:nter circuits of global reproduction and exchange. Fourth, .a 'higher' epistemology and ontology stand thus installed; the knowledges of instantly suff(:ring peoples are perishable fomlS when confronted with the 'superior' knowledgcs that ensures more secure human rights futures for them. 'Post-confHct' Mgh.an and Iraqi pc=oples may thus never be 'worse-o£f' in .. globally constructed Paretian optimum. Their 40 Stt. for thIS ortc:rniion of a Gr~msci.an norion of the 'Modcm Prince' Stephen Gill (2003) 211-22. See also Upendra Ibxi (2005). 41 The power to rwne an CY11 regime, or~n axis of CVlI. 15 mdeed an awesome p""''tr that nlarks .he hcgmnmg of thiS new Cold \Var. Unlike the old Cold Won, It does not disappear With the dcmlsc of a rIVal superpower. lndud. It SCCIll' 10 thnve In dlr~cl proponlon of lhc clllllinatioll of an umnediate urge. of suspIcion. Thus, clIlergo::. even aJmdst the Second Gulf War. symptOms of the fUlure prognmschrift. Nonh Korca emttgl.'S as a mobIle horillon; post-GulfWar urgets :also r:lpKlly cmerge (such ~ Sym and lnn. even possibly. the: newly nuclc:anzcd state'S of P:lbstall and Ineha). Indeed, :til nuclear .....~apon . and threshold,sUtCi remam Wlthm the arc of superpower 5USpICKln wd, given the relalrlC' C:a5C of producoon O(~1 and chcnllcal 'N'C':illpons, all South stalCS rCIll:nn I~eellubly situa!C'd w lthm II.

Living and Dead in ReI.atMSm?

175

protest against the occupation regime must forever remain an index oHalse consciousness. Fifth, at stake is the diplomacy of regional geopolitic.al reconfigur.lltion; the nt=w Cold War, after all, yields even iffungible 'road maps' for reconstnlction of Israeli-Palestinian peace .and amity. regardl.: of the asymm(:trics of politics of indignity of regune change affecting prilllanlyY.ass.ar Araf.at .and the 'dignity' assured to near permancnce of the Saudi. and Emirate, and other regimes. Sixtll, fonns of glob.al capitalism must underwrite affected human rights futures as mamfest III the unseemly wrangle, even among the chief allies (the United States and the United Kingdom) for the post-conflict allocation of global tenders for 'reconstructing' the Ground Zero Ir.llql infrastructure facilities and endowments and with greater obscenity the scr.llmble for Iraq oil and petroleum Eldorado. Some of you may think tillS description to be overtly political; so, it is, until the wholesome distinction offered in this work, between the politics of, and for, human rights emerges fully. These sUlllmary observations illustrative of the distinction between gIoOOlizalioll and IIIl;vmality of human rights suggeSt that global ization of human righ ts neccSS41niy fragments their vaunted universality; in contrast, umvers.ality nukes problematic the new globalizing practices of production of the politiCS cfhuman rights. Globalization of hum.an nghts signifies (to usc Judith Butler's phrase outside her context) a 'form of politic.al ~rformativity' that 'retro.actively absolutize(s) its own cl3im',42 In conUbt, the logicslparalogks of the 'universal' human rights remain deeply ethical, tormented by reflexivity allll!~ way.4J The central question now for the deciphcnncm of the future of human rights stand!> posed by the manner and mode through which human rights :lCtMSm nuy historically position itsclfin a pertinent response to tll(: globalization of human rights in its current violent fonTIS.

V. Antifoundationalism The claim for utliumality of hum.an rights is also subJcct to a Vllriety of antifoundational critiques. The ide.a th.at hum.an rights 2fe universal relies on SOme high(:r or meta-justification. drawing upon the po~r of ethical theory and moral reason. Pcrhaps, Alan Gewinh in The Com/mlll;ty ofRigllo .q Butler (2000) 41. 4.1 The dlSCQU~ 111 Buder, Lacbu. ~nd 1.Ifek (2000), though not directly fl.lClUed on the unlVttS;ility of human nghts. exemphfleS a reflexive con1ll11lmem to Situate 'what proper venuc for the cL;um of unrlC'~llty ought to be. Who may speak. of it? And how it ought to be spoken? (Hutler at 38-9). Sec also. A1b.ll Gc:Wlrth (1996).

176

The

Fu!U~

'What is Living and Dead

of Ilumall Rights

provides the mostsusumcd account of 'objective' mo ... 1 found ations Ii universal human rights." Nornlaoveethical theory, ofcourse, subjects t~r discourst o n the right to striCt logical scrutiny and different thlllke e provide diverst foundational justifications. H owever, the exponents a~ agrtt that the idea of the universality of hum:m rights ha~ vahdlty only when grounded on some justifiable mor.al or ethical foundanon and that the construction of the universal theory of rights is feasible and desirable. Without such anchoring, there would be no way to distinguish between interests, policies, and goals o n the o nc hand, and rights, o n the other. In COntrast, antifoundatio nalists deny thc need, and question the desir_ ability, that mor.al reason can furnish universal bases for human rights. Some insist that dlere is no 'ahistorical' power which makes for righteous_ ness-a power called ''Truth' or 'Universal Human Reason'. Not. mdced, are there forces that may bring the powerful, unjust, and brutal people amidst us to a sense o f universal human vengeful rights: 'ifnot a vengeful God, then a vengeful aroused proletariat, or at least a vengeful superego, o r. at the very least, the offended m ajesty of Kant's tribunal of pure practical reason ... '. 4S It is also being argued that universal human rights arc simply impossible ~causc what counts as ' human' and as rights belongmg to humans are context-bound and tradition-dependent. There IS no t ... nscultu ... 1f-act o r being 'human' to which universal human rights may be attached. Eduardo Rabossi (all Argentinejurist) has recently urged that the ;h UllUll rights phenomenon has rendered human rights fou ndationailslI1 outmoded and Irrelevant'. 46 By human rights phenomenon Rabossi means (I think) the f.lct of enunciative explosion of human rights. For him that fact is all that matters. It IS unnecessary to revisit the philosophical grounds o n w hich hUlllan rights may be based. Anti-foundationalism is a close postmodemist cousin of relativism; each urges us to pay heed to contextS of culmre and power. Both insist, though in somewhat different ways that do matter, that the agenda of human rights is best articulated without the bbours ofgrounding rights in any transcultural fact or 'essence' named as 'human being'. The claim here is that such labours of theoretical pr.actlce arc either futile or dangerous. They are futile because who, or what, counts as being hUlllan is always being socially dcconstTucted and reconstructed and cannot be legislated by any ethical imperative, no m:uter how hard and long one may try to so do. They arc dangerous because under dIe banner of universality of human nature, .. Albll Gev.'lrth (1m. 19(6). 45 RIChard Rorty (1993) 112 at 122, 130. '" Quoccd Without CIUtlOfl by RlChilJ'd Rorty (1993) 15. 112

111

Relativism?

In

reginles of human violation actually thrive and prosper. The danger for hurnan rights stands consti tuted by the very constructIon of 'human', which then allows the power of (what Erick Erickson named as) l*udospeciation', a process by which different regtmes of psychopathic practices of the politics ofcruelty may erect dIe dIchotomy betwttn human and non-human, 'people' and 'non _peop le'.~7 My own cnuque of the 'lnodcrn' human rights pa ...digrn commits me, perhaps, to an acknowledgement of the power of this very danger. The danger stands compounded when we attend the mission of the Dead White Males, or what was earlie r called the White Man's Burden,48 drawing sustenance from the rhetoric of universality of human rights. The American Anthropological Association, in its critique of the dr.aft declantion of Universal Dedar.ation of Human Rights Stated. memorably in 1947, dIat doctrincs of 'dIe white man's burden' ... .. hilve b«n employed to implement econom ic exploiution and to deny the right CO control their own affa irs to millions o f peoples over {he world. where the eq»nsion of Europe and America has mu m nOI (sil] {he literal aterm inatio n of the whole populations. nationalized III len ns of asc:ribmg euitullil mferiority to the peoples, o r in concepuons of badewa rd ness III development of their 'primilive mentality,' that justified their hems held III the tutelage of the ir supe riors. the h~~ry of the western world h..a.!i b«n marked by dcmorahUtlon of human pn-sonallty and the disintegration of hum an tights among the people o....er whom hegemony h.as ber n estlblished. 49

J ustified in me conjccmre ofUOHR enunciation. this alarm sounded with elegant clarity in the en preceding the posnnodern e ... (that has since then been enacted scvcr.ally) signals concern with the Dark Side of the Enlightenment, and even gt"lle ...red profound doubts about the furure history of'progressive Eurocentrism'. The concern continues III the conIttnpor.ary postmodern critiques of the umversahty of rights. Nevertheless, the sounding of the alarm in the same mode is, simply, dysfunctional. Indeed, the Association pleaded in t 988 for a new decla...tion on human rights, which recognized mat. .. peoples and groups have a gene riC right to rcall%t diCIT Opacity for culture, and to produce. reproduce. and ehange thc co nditions and forms of their physical. !)('f'SOnal, and social existence, 5() long as such .1.ctivitics do not diminish the same capabilities of others.... As a professio nal org:'ll1iz.1tioll o f anth ropologists. the AM 47

Tu Weimmg, (1996) 149 at 1ti6-7.

• Roben Young (2001). JI

116.

49 American. Anthropolog..::LI M5ocliltJon, Statement 011 Human RJghts (1947).

178 The

Futu~

of I-Iuman RlgJlts

What is Living and rkad in Relativism?

179

has long ~II, and should continue 10 be, concerned whenever huoun dlffercll(co IS made the bUls for a demal of human rigtns, where: 'human' IS unckrstood In its full range of cullural, social, lingulslic, psychol<>gJcal, and bIOlogical SC llse~_$O

Richard Rotty, of course, would disagree. This disagreement is wonh noting as exemplifyi ng the h:tzard of postmodem philosophical anthropology, He says:

Regardless of w hether this is 21 'f2lr cry',SI or 21 Subtle shift in the Associ". tion's positioll rel.uive to human rights, the fonn of antifound2lti onalisrn thus expressW remains precious for human rights fututes. I $;Iy IhlS for two reasons. First, this repudiates the globalintion ofhum2l1l righ ts, at 1C'2ISt w hen pervaded by the phenomenon of the politics C?fhuman rights marked by ethnOCentrism. This kind of ethnocentrism is best described as 'the point of view that one's own way oflife is to be preferred to 2111 others',52 w hich becomes particularly pernicious when it is 'ntio nalized and made the basis of programmes of action detrim ental to the well-being of other peoples ... ,.53 Second, it combats 'the o uonoded concept of culture deve!. oped by anthropologists early in [he twentieth century' which emphasized it as 'static :md inflexiblc' .S4 The Association's re-conceptualization of culture as 'capacity for culture 2Iccentuates a 1I0tion of culture as '3 process, developing and changing through actions and struggles over meallLllg',SS its 'inherently soci:al character and virtually infinite plasticity·56 rat her than a repertOire of fIXed and relatively immutable mits and attri butes. AntifOllndatlon:t1 cri tiques of human rights refer us to the 1ll()lllent of concrete unlversahty and ItS infinite openness to violent form s of pselldospeciation, ThiS is a valuable lesson, one that, unfo rtun:ttcly. ~ need to learn repeatedly. At the same time, not all amifoundano nal cri· tiques realize that the subaltern struggles remain inconceivable, o r :tt any rate unllltelligible. outside frameworks that invoke a universal concepnon :tbout the meaning of being 'hunun' . If foundational beliefs )ustify' practices of viOlent social exclusion , these also ground an ethic of mclusion. To uke a civilizational example, nther than a mcrely histo rical one, it becomes diffkult, if not impossible, for the Indian untouchables to claim dignity and rigllts against the dominant and viole nt structure of social exclusion justified, cosmologic:tlly by some varieties ofclassical Hinduisms, were their claims to be held vitiated as being 'found:ttional'.

Most peoplc:-cspecially people relatively untouched by the European Enhghten. menl-simply do nol think oftMnudvu,firn I3ttd fortm4St, lIS 13 humon &ting. Im/tiJd t"? 1ft lilt of thorud~ lIS bring good serf of humon btint-son defined by ClCphot ~itiOn to a particularly bad sort. II 15 crucial for thclr sense of who they ~ thl t they ~ not an inftdel, not l queer, not a woman, not an untouchable. Just IJ\SOfllas they are impoverished, lnd:ts their lives are perpetually at nsk. they have htdc else: than pride in bc-ing whlt they :t~ not to sust:lin melr self-respect. 57

Cited 111 Sally Mary Engle: (2001) 38-9. 51 Engle (2001) ~t 39.

°

T ills brief passage raises a w hole variety of questions. First, w h at docs it really mean to refer to people relatively 'un touched' by the Enlighten. men! when almost everyone in the Third World has been deeply affected by its'deep, dark. and violent side. whether thro ugh colonization, thc Cold W:tr or contemponry economic globalization? Second , is it a fact that there ex:is~ people actually and in re:tllife who vallie their ethical worth by .their notions of good and bad and do not consider themselves as human bemgs? Third, w hat about people who think :tnd act o therwise: for cJCImplc. those women and those untouchables who resiSt caste :tnd patriarchy and in the process still think of themselves as human beings? FoUM, do the im~­ enshed l:tel, ways of sustaining sdf.respect in forms othcr th:tn by taking 'pride' in social identities shaped by violent social exrlusion ? Fifth, how does o nc :tccount for change in beliefs :tnd practices of'most people' where they either change their notions of w hat makes the gcKXf sort of humans or alter their tolention of the bad ones? It is pointless to enlarge this catalogue of questions. H owever, it needs saying at least that if suc.h IIlterludes :tt philosophical anthropology are all we h:tve by way of annfound:ttionalism, the case for found:ttional theorizing sunds :tdequatcly reinforced! An essay extolling sentiment, rather th:tn reason, or changes III transfonn:ttion of sensibility to make room for pragmatic solid:trity. fails to persuade when it begins with such l:trgc·scale generalizations about the non-European Other, in seeking to displace simil:tr generalizations of m e normative ethical theory of hum:tn rights .

.'A)

MelVIlle J. Ilmkoviu (1955) Chapler 19. 1) Ilerskovlu (1955). I lc:nkoviu. here, spc:cifit'lilly refers to such ntiona\lnm'lliin 'Euro.Amer1t'l111 culture'. 504 Sally Merry Engle (2001) at 39. 52

M Engle: (2001). S6 Te~ncc Turner (1994) 406 at 420.

The ' Hiscories' of un iversality It is at thisjullcturc that one may raise the iSSue o f how o nc may narrate the histories of 'universality' o f human rights. My distinction bctwttn 'modem' and 'contemporary' hum:tn rights paradigms suggt=sts the ways S7 Rony (1993) 126 (3dded emphasiS In the first sentence).

WIUI is Living

180 The Future of HUmOln Rights

which the univerulity ~ . .notions get constructed in radically d h1ert:nt So ways. does the dlstlllctJon I d raw between politics oland/<". Illan . ngIIts, and the IIIteractlon between these two forms . From this ..... r_rs PCCtIVt' whatcvt'r may havt' been the case with the UDHR, the argument COl ing 'rtb.tivism' is curious III tenns of the actual history of mak.Jl~t:rn-r " I hulllan rights standards and norms. go contemporary "IIIttrnauona The histories ofclaims for univerulity of human rights occur o n r I • .1 b d 'er . t' aku ut IHerem regaster. I here tnee thesc along three remsters conflic," h " competing assertions - of 'Western' ~ " notions 0 fh uman n"g ts authorshIp, d '''-' , d i d ..-ulan an re ate cultural [fuths and values and the politics of and ' r" "gi ~, huma" nIts. III

I,"

Q.

Authorship

Wt:rt: ,,":e :,cre .to accept the view that 'contemporary' human righ~ authorstup lies wlCh the communities of states, what we need is not so much ~ recourse to gn.nd theory, or to a gourmet diet of a whole variety o f po~t­ Isms or endo logtt:sSS but a close study of what mttrnatiollallawycrs nallle as the sources of I.aw. I low univerulity of human rights IS constructed through these so,urces is not JUSt a mater of identifying the principal ones such as International custom and treaties but a question of IIlteractio tl ~twttn these and related sources. These latter arc not easy to exhausuvely hst b~t Ulclud~ at l eas~ the following. First, the adJudiC2tory pohcy and practice of the IIl1ernational Court ofJusticc and of regional courWlribunals of human nghts; second, the opinion of publicists or specialists; third. the Iaw.-making practices embodied in the General Assembly and Secunry CounCIl R~soluuons that initially produce 'sofi law'; fourth the impact o f the entcrpnse of the progressive codification of international law under the auspices of the International Law Commission; fifth, the normativity crea~ed by the United Nations bodies concerned with human rights (in· cludmg of course: the United Nations Human Rights Commission. the ~o ml11issio n~r for I-Illlllan Righ ts, the United Nations Treaty Bocilcs, the SIXth Comm ittee of the General Assembly); and sixth, human rights norms and standards emanating from intergovernmental confercnc(' ~ and the various United Nations summits. The juridical histo ries of unIVersality o f human rights are thus constructed variously. . I focused in the first edition of this work primarily in terms of hulllan rlghts treaty law. Any international human rights lawyer worth her calling knows the not of reservations, understanding, declarations that parody the SI Upcndn 1m. (199620).

~nd

Dead

111

Rc:btlVlsm?

181

~ o f univerulistic dedarations.59 The fi"~ pritll of reservations usually cancels the {QpiltJ/ Jom of umversality but not all the way as there are legal tinnts w the sovereign power to derogate. Thus, no treaty may transgress the non·negotiablc o r pere mptory norms of IIlternational human nghts law such as, for example, the outlawry of slavery, apartheid. and colomzallo n. Such norms called jlls {~tU may have 111 the past few 111 number but now they arc on a high growth curve as exemplified, for example, by the: CEDAW obligations prohibiting gender discnnllnatlOIl and VIolation; prohibition on torture, cruel, degrading, inhuman treatment or punishment; slave·like conditions of child labour; and crtm~ agamst humanity and war crimes as now refomlUlated in detail in the Statute of the International Court of Justice. What is universal about human rights is that they signify an order of pre-commitmem concern ing the non-violability of certain types of human rights. Further, as concerns thc large corpus of relatcd human rights en uciations, universality abides in the purported logic of aspiralioll, even when not always approach ing thc reality of anai/lJNmI. In ally event, it is unfortunate that the high discourse of relativism, anti-fo undationalism and po5unodernisllls, unformnatdy, has little o r no U5C fo r the details concerning the making ofinterllationally binding human rights, o r the juridical histones constmcting thcn universality. Different histories of ulliversahty emerge if. one the: other hand, we were to entertain a more radical view ofauthorslup of human rights (which llu.ve elaborated thus far) where peoples and commulllties are the primary authors of human rights. In this view (as already noted in Chapter 2), ttsistance to power 1125 a creationist role in the mak.Jng of'contemporary' human rights, which then at a second-order level. art translated into standards and norms by community of states. In the making of humm rights. the local translates into global languages the reality of their aspiration fo r a just world. For example, the anti-colonial struggles furnish a vast laboratory of cn:ation of new human rights scarcely imagined in the t8th/t 9th century CE which specialized in unabashedly relativistic practices; these claimed individual and collective rights for some peoples and regimes and denied th~ wholesale to o thers. These latter were denicd rights either because they wcre not fully human o r the task of making them fully human reqUired denial o f rights to them . In contrast, do not the anti-colonial Stmggles deplete this full repository for practices of relativism? llowcver, human rights u nivcrsalismSOrtlr//Ow begins to become prob~matic at the very time of the beginning of the end of colonialism and the 59 Upcndl'3

au. (1996c) 34-53; Ehubcth Ann Meyer (1996) 727-823.

182 The Future of IllIman Rights

What

value of self determination proclaimed in the UDHR! True, the Oecla. ration also occurs :lit the onset of the Cold War. True, it also embodie~ exception:lll regard for right to property (Article 17, 27(2). But It al-.o contains vital social n ghts (education, work, and health) that can, and have bttn used, to impose an amy of reasonable restrictions on the rights to property. The values repressed by the Empire, by the doctrines of the White Man's burden, are no longer considered legitimate. ~re not the anti-colonial struggles all about the realization of the right to ajust 'llnernational and social order' respectful of dignity and human righ ts of all pwple (Article 28)? Or, about rights to freedom of opinion and expression enshrined in Anicle 19? Or, about the right to peaceful assembly and association (Anicle 20), and a right to democracy assured by Anicle 21? Still. the dominant discourse wishes us to believe that the anticolonial struggles relied upon, and wholly mimed, the typical human righ ts discourse of the 'West'. Even the girted Gayatri Spivak invokes the notion of taratilftsis, signitying the lack or'adcquate historical referent' in the cl1lmre~ of the Other.60 The point, however, is that this Other :IIlso includes the collective human rights self and tradition of the 'West' as welL

b. Relativity

of J.illlifS

There is much debate concerning 'Western ' and non-Western' values. As already indicated in the preceding chapter, these traverse vast and varied territories of thought ;md praxes, both of ~r and resistance. The ancmpt to describe human rights values as 'Western' in origin leads. as so far demonstrated, [Q m.:r.ssive distortions in both the history of human rightS and social theory about human rights. No reading of the regional human rightS instruments, sustains the mindless hypothesis of the mimesis of the 'WeSt'. I ur~ the reader to focus closely on, for example, the American Declaration of the Rights;md Duties of Man (.:r.dapted at Bogota, 2 May 1948. followed by the Pact ofJan Jose-die American Convention on Human Rights, 1969), the 1988 Protocol of San Salvador amplitying the Convention, the Amerion Charter on Human RightS and Peoples' Rights. 1981, and the Cairo Declaration ofl-luman Rights in Islam, 1990. Undoubtedly, these: instnlmcnts constitute more than a variation on {he UDI IR enunci:lltions. In fact and in many a mode, these construct a morc encompassing the history of universality of human rights. To all this, we may now add the astonishing auspices of the Third World leadership (in the Sixties and Seventies) in crystallizing its distinctive conceptions of 60

Gayam

Chamvorty Sprvak (1995) 155.

IS

LIving and Dead in RelatiVISm? 183

global justice .:r.nd human rights. Thus, a wholly new en ofhum.:r.n nghts is born; norms :lind standards proliferate, extending to the collective nghts of decolonized States :lind pwples. from the Oec:lanuon on Permanent sovc:rclgJlty Over Natural Wealth and Resources (to take a long leap!) to the declaration of the New International EconomiC order and (he Rights of States and ~ple's to Development. I suggest that the discourse on 'rclattvism' remains affiictcd by its very own (to borrow FrednckJamcson's fecund notion61 ) 'politiol unconscious'. That poLitiol ullconscious, in relation to human rights discursivity, assumes many forms of historic, cultural, civi liZ.1tional and even epistemic racial arrogance toward the Other of the Enlightenment, and even postEnlightenment, thought and political action. That arrogance which regards all hum;m rights imagination as the estate of the West, which others can at best only mime, prevents recognition of authorship of human rights by sutes and peoples of the Third World. Must all that the latter history be reduced to the thesis that 'universality' of hurnan rights is the pervasive syndrome ofWestern hegemony? Does not. after al l, this cultural or ethical relativism ulk ostensibly directed to the recognition of diversity pcrfonn, in reality, the labour of reinstalling the Myth ofOrigins about human rights III the West?

t.

TIll'

Pofitia oj a"d For, Hilma" Rights

What is of interest here is the fact that the practices of politics of human rights converge, at times, here with those of politicsJor human rightS. The very regimes and cliques that deny freedom and dignity, and canons of politio l accountability, denounce human rights 'universality' as a sinister imperial conspiracy find suppon from intellectual.:r.nd social activists critiquing it in the same prose. Undoubtedly, the United States, and her nonnative cohorts have conspicuously consumed human rights rhetoric, most bruully in moves to make 'would safe for democracy' (read global capital) during the Cold War and beyond. An expoSe of this horrible practice of politics oj hUlnal1 rights is continually necessary and desirable. It is but natural that peoples and states that believe in ' manifest destiny' to lead the world deploy all available normative resources, including the languages of human rights, to pursue it. !-fo\YeVer, docs that necessarily COnstitute the indictment of the very notion of universal human rigllts, or the notion of universality of human rights? Should this ineluctable Critique of politics of human rights becolTle also the 1I0nn of politicsJor human rights? 61 Fredric Jameson, (1981).

1B4

What IS living and Dead

The Fulllre of I lum:In Rights

Free floating historians of ide.s keep telling us that Asi.ll/Afrie.n or other 'non-Western' t ...ditions had no .n.logue to the expression 'human rights. >62 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 Clll11lClPricnutlon-rncndly re~inss havc been discovered III n.;jJOf rehglOus texts of'lhe: world by thc herme:ncuue laboursorhuma n rights pruis. Those who prosdym:c: ·r.Wlal' readttlg:! or Ihe Knptural trad itions. though no longer burnt at 5ukc:, are rekmlcssly subJccted to lemtotial, and cYnI extr.t.tcmtorial. I'\'PI'\'SSlOn and punishmem.

188 The: Future of Iluman

Right.~

of dignity of discourse. Practices of politics of intolerance begin to dmve all round. Practices of solidarity among human rights activists-national and transnational-bcgin to be matched by powerful netwOrks of power and influence at home and abroad. The politics of the universality of human rights becomes increasingly belligerent. In the event, the martyr~ dom count of human rights activists registers an unconscionable increase. At this level, universality of human rights ceases to be an obs/ratl Id!;:a with its history of doctrin.al disputations and becomes a living practice, a form of struggle, a practice of conflicted transfomlativc vision . Its truths of resistance, in constant collision with the truths of power, seek to universalize themselves. C ruelly, its truths stand foml ed not in the comfort of contemplative life but in and through the gulags. In this sense, the claim to universality of human rights sign ifies an aspiration, and a movement., to bring new civility to power in the society of states and in human societies. That civility consists in making power incre:;r.singly accountable. Does the dialogue over the rcl:uivity of values matter much whttl so //lUll! is al stokt'?

2,

HllmlJlI

Rights lJlld tile Clurllellgt of'MultiCIIlwralism '

Most societies are multicultural and most states arc multinational. Th:n, at any rate, is one truth that requires, at the d ose of the second , and at the

onset of third, C hristian millennium, no labour of demonstration. The recognition of diversity, and respect for it, is aptly writ large in contemporary human rights enunciations and movements, However, deference to diversity remains a complex and contradictory affair. Put another way, the conc~ "NillffSOliry of recognition of, and rcspect for, diversity is culture and history bound. And that cuhure and history entails not just feats of high social theory but also forms of both human rights generative,14 and human rights destructive, practices of the power of the state and insurrectionary forms of violence. 75 Despite the history of the radical logic of the right to sdf-determination, it is d ear that both the extant international legal regime and the regime of multinational states do nOt recognize the human rights of'nationahties' to secede from the existi ngnation-state fram eworks and frontiers.76 In this zodiac, any practice of the 'right' to secession involvc:s forms of both state and insurgent ' terrorism' , a site where human rights havc no present, 7. Sec Robe" Cover ( 19HJ), ... 75 Sec E. Y..Jle:nune: Damel (1997). 76 Set- the intc ~sulIg analysis by Alle-n Buchanan (1991).

Wh.:r.t

IS

Living and De.:r.d in RdativlSm?

189

whatever may be said about their future. U ndersundably, then, contemporary human rights discourse focuses on the rights of mmoritles, indigenouS peoples, migrant wornrs, and rcfUb'«S and displaced peoples 111 terms and vocabulanes of the stability, more or less of a global order mat valorizes the actually existing imagi ned communities (I use this phrase with apologies to Benedict Anderson) of the deeply oxymoronlCnotion of natlon-scnes. What, then, we arc left with (and this is impomnt) is the problematic of minority rights. The problematic is acute everywhere but I take, for tbe present purposes, the theoretic feat offered by Will Kymlicka. He. nghtly, insists that 'an adequate theory of rights must .,. be compatible with t~ just demands of disadvantaged social groups'. n It must recognize three broad foons of 'group-difTerentiated' rights of the minorities: selfgovernment rights, polyethnic rights, and special representation rights.78 While the first and third forms of rights are imegral to international law of human rights, the second form is of interest to us here in terms of liberal-tradition-spccific relativism. 'Polyethnic rights' are 'intended to help t thmc groups and religious minorities express their cultural particularity and pride without it hampering their success in the economic and politiC21I institutions oftht dominant society',79 These rights are justified because the 'dominant society' may not ~upport these 'adequately suppon through market',110 or lIlay be disadvanuged '(often unintentionally) by existing legislation,.81 These rights typically accrue:: to IIllmigrams and refugtts.82 The recognition of polycthnic rights is, of course, instrumentalist; it enables both the dominant society and servient cultures to coexist in a functional mode::. The preservation of some cultural identity is important for tht immigrant and refugee groups; and the dominant society benefits, in the long run, from the protection of'narcissism of minor diffcrenccs,.83 More tmpoml1tly, on this perspective, we need to carefully attend always to ensure that such recognition does not hamper 'their success in the Kymhcb ( 1995) 19. (1995) 10-34. "Kymlick.1 (1995) 3 1. ~ Kymhcb (1995) 38. The: e:x.. mples ht' r~' are:; 'fundmg \llmllgr~nt bnguage: pr(yalUs or am group'il'. l Kymlicb ( 1995). The ou.mplc:s he:re a/"(': '¢Klllpuons from Surl
'8 Kymhcb

190 The: Futurc: of Human Rlgtus

econOlnlc and political institutions of thc dominant socicty'. In othcr words, subaltern cultures must always be subject to connicted forms both of disciplinary and sovereign power through s trat~gies of polyethnic rights, the justifiC2tion of the conferral of which is they internalize the valllc~ of the economic and political institutions of thc dominant society.SoI 'MlIlticlllruralism' conceived through thc prism of polyethnic rights is. at the end of the day, an adaptation by liberal cultural traditions of the universal human rights and standards. Such adaptations nourish outside Eure-American cultures as well. [n each the abstract universality and abstract particularity of human rights remain in tension with the concrete universality. Insistence on the universal human rights culture makes problematic the project of concre~ universality; national definitions of minority rights become contested fields from the standpomt of the abstract universal and the absu.ct particular.

J. Milltiwlwralism as Postmo
1M I know WI filS 15 not what Kymhcb means and tnn I do considenble vtOknce to hIS finely nllllK"'W reworkmg of the 'hbenl' tradition. Yet some such rc::idmg will be plausible &om the StandpolIIl of a bcnclkury of nuny a polycthmc nght. And readers a~ supposed 10 agree "mh Kymhcb Wt the 'only long.lenn solution 15 to remedy the unjust Intemattonll distribution of roources' (Kymhcb (1995) al (9). a problem that cxisong reworking or ' hbcnl' rrx htions sca.rcdy ponder. InclCiellully. an Immen'ICly useful account ofhow, outsIde the Iog1c of polyelhnic rights, 5Intcgic Idenuty fOTlI1:1uon orren moments of TeSlsunce (ull the unjust d'$trlbutlon of world resou rce~ i! remedied) IS provided by Anna MUle Slllith (1994) 171. ~hllltary ;as well as enforced movclllents of indIviduals and peoples further oomphotc any consider-mOll of the quesuon of redrC'»

What is Living lnd Dead in RdniVlsm?

191

(If colomution without the colo nl z-mg nation-state metropohs, rllulucuhuralism InvolVC"S l palrCHIIZmg Eumeemric dIstance and/or Tespec! (or lonl cultures WlthOul roots in one's own eulrurr.1I5

As concerns humal1 ri gh t.~, multiculturalism concedes both 'too much and not ttlOugh '. It tolerates the Other, not as a real Other 'but the ascetic Other.. ,.' This much is clear from the notion of polyethmc rights ofSouth imnllgnnts to North. But Ziiek's point cuts deeper. The muluculturalists adVomCt and applaud the progressive abolition of capital punishment as a kind of (Parsonian) evolutionuy universal o( human rights; on the other lund, they remain 'tolerant of the most brutal violations of human rights', lest they run the indictlnent of preferred value (White) imposition. 86 The Other needs fuller recognition: on the one hand, in terms of 'cllirnral jouissnlllt that even a "victim~ can find in a practice of another culrnre that appears cruellnd barbaric to us' (here, of course, T:llal Asad, to whom I refer later, is a more insightful guide than Ziiek) and, on the other hand, in terms of the split in the Other (:I point I have been making under different phrase-regime so fa r). In the laner situltion, re(erence to human rightS (presumably defined by thc West and , on this point, Ziiek is still Eurocentric on dle lolle of origi ns of human rights!) as :I 'catalyst whicll sct$ in Illation an authentic protest agolinst the constraints of one's own culture.87 Ziiek brings valuable eorrcctives to the current conceptions of multiculturalism, generally, and their implications on hmmn rights, in particular. Neither takes new modes of social reproduction of globalized coloniality; nor does it alert us so fully to the cmpty potential of multiculturalism as a culture of no cultures. A remindcr of cpistemic racism always renders great service 10 the futures of human rights. Yet the examples that guide Ziiek remain problem:ltic, whether progressive abolition ofcapital punishment as merely constituting a 'Western' evolutionary IIldicator (ar if tt~ditio ns such as Hinduism, Buddhism, Confucianism, or mdigenous religions had no space in the denial of rt'tribution of this m:lgnitude) or clitOridectomY:ls a pathway to 'feminine dignity', even as a (onn of 'victim' cultural jOllWallU. Traditions, as well as critiques, of multicultural theory and practice that so justify these pl':lctices will C:luse anxiety across the North-South diVide on universality of human rights. At the cnd of the day, 2.iZek docs not take quite seriously his own notion of the Other as split in itsclfl IS Sbvt:!l .tlkk (1999) 215-16. .. tlick (1999) 219. 17 tIZd:. (1999) 220.

192

The Future of Ilumm Rights

Wh:u

The point, from a human rights perspective, is simply that the extremes of 100 mllth and ,,0/ (flOlIgll stand constructed, in the fi nal analysis. front the standpoint of progressive Euro-<entnsm and its contradictions. Were the subaltern to speak. its Other Will be the split Euro-American postlnooem 'a~nt' subJcct!

lX Wes[oxificarion I may not be pursuing here the complex historical itineraries of the notion ofWt.sloxijitalioPI,88 but its interl inked, episremo logical. and political dnnen _ sions as concern the future o f human rights warrant some attention. The project of Isl:l.mic revival contests the notion that it is 'ollly Western civi_ Iilatio n which is universal' making the discourse of modernity (and postmodernity) a 'discourse, the center of which is occupied by a particular ide-ntity,.8?On this view, 'Muslims who usc Islamic metaphors' interrob'3tc the 'domi nant language games of the last twO hundred years,90 contributing, in ways very different from the posunodem, the 'de-celltering of the West,.9' The distinction between that which stands glooolized and lim which one may describe as universal comes alive in the distinction between the '''politics of difference~ at the center and a ·politia; of auth enti c,ty ~ at the periphery'.. .92 In SUIll , there are dIfferent ways ofkPloll,jflg and bril~ that Islal11itauon, takcn seriously, bnngs to the world of theory and praxis that rcpreSt'nt 'a tOlflifwm;oPl and radicalization of I/I~ procw of d«oIoPlizalio,,'. '1.1 Wcstoxifiation critique inSISts that human rights enunciations and cuhures rep resent secular versions o f the Divine- Right to rule the 'Unenlightened'. It demonstrates that the ~st seeks [Q impose standards of right and justice, which It has all along violated In its conduct towards Islamic societies and states.~ It rejects the norion that the outpourings and acrions of the US Statc Departmem, and their nonnative cohortS, arc exhaustive of til(: totality of con temporary human rights discourse. It seeks to locate the politics of human rights within the traditio n of the s/lari'a.'IS As Shaykh Muhammad Hussein Fadlallah eloquently stated: l1li See, for a ri,h account of the hiStOry of origins. John L Espo)1I0 (1995) 188253; sec also, the provocallve ana lYSIS by Dobby Sayyid (1994). II!l SafYId (1994) III T77. \10 SaY}'ld (1994). Sa)'yld (1994) at T76. '1.Z Sayyld (1994) at 279. " Sayyld (1994) al 281. 'H See Chandra MuufTar (1993). 9S See the recent QIIID DrrJamlion 011 Human RigblJ in Ishlm ( 1997) .

'I

IS

Living and Dead in RelatiVism?

193

/<.$ Moslems, we. consider politics to ~

p.1rt of our whole life, beauS(' the Koran emph;tSizes the csubhshmclll ofJusucc u a dlvme mIS§lon.. • In /hIS smst. ~ poiltia 11/ lilt }:Ilthfol is 1/ hnd 11/ praytr,% At the heart of the critique lies the epochal politics o f difference which, of course, does not regard Islam in the Imaw, of 'the recurrent Western myth' ofa 'monolithiC', unchang1ng. tradition. Hesponslble Westoxificatio n notions seek to bring an dement of piety within the logiCS and paralogics of construction of the human rights. If politia; for human rights is a kind of 'prayer of the faithful for pious Muslims', so it also remains for the secular congregation of a civic religion named human rights. The contribution that this kind of understanding brings for the future of numan rights (of a very different order than thOit provided by postmodemisms or recrudescent forms o f relativism) calls for inter-faith dialogue, germinally urged by somewhat incommensurate orders of discursivity: from Mohandas Gandh i to Emmanuel Lcvinas. A dialogue that will yield a sense o f justice to the worlds of power provides invaluable resource for the universalization o f human rights.

X Types of Relativism Relativism, a coat of many colours,'18 md,ctS the logiC of universality o f human rights (as no ted) on the ground that different cultural and civilitatio nal traditions have diverse notions of what It means to be human and for humans to have rights. Were we to follow dOllunam discourses, we see that at le:&st three types of relativism remam pertinent to any diSCOUrse concerning the future of human rights. First, (oglli'i~ ,nati"ism userts that all truths are relative, and remai n unhinged from any belief in 'univeruI' imperative standards that render one set of moraVethic:.a1 beliefs superior to others. Second, ~Ihi{al rtlalivism adopts a frankly social COnstructivist approacn situating the truth ofbe1iefs within our preferred ways of privileging moral communities. Third, and related but distinct, remain forms of situational ,nativism that u rge us to believe that our moral beliefs, far fro m being grounded in acts of transcendental reason, remain dependant on our situatio ns or, rather, situ atedness. 99 In what follows, I 96 QUOted

11\ EsPOSito (1995) \02 at 149 (e mphas iS added). Esposito (1995) at 201. 911 Sec ChrIStophe r Norns ( 1996), Johl1 Ladd (cd.) (1973), Of course, 'relanvlSln' IS a vacuous word. We nced to dIstingUish between sevenl ~ofrdatlVlsm . Sec Ihe useful dfo" by Femalldo R. 1bon (1985) 869: Adamanria Pollis ( 1996) 316. 99 A1l1m Badiou (2001) remalllS compelhng on thiS score.

'11

194

What IS LlVmg and

The Future of Human Rights

loo

deploy the categories painstakinglydevdopro by RG. PefTer that enable an appreciation of the distinction between what is obviously true but, at the same lime, trivial,l°l about relativism that simply docs not make impossible cross-. or Intef-. or trans-c",hural understandings. C learly, if relativism claims that 'what people believe to be right or wrong detemuues what is wrong or right for mem' ,I02 then universal sundards of human rights (such as the prohibition of genocide, tOrture, racial discrimination, and violence against women, women's righ ts a~ human rights) remain universal only fOf the groups of people who believe them to be so. The insistence on universality is also mistaken when it erects the notion that moral judgements apply not just to 'a particular action but to a class of actions'; that these judgements apply to everybody' and that loo 'othe rs besides the speakers are assum ed to share' these. Unfortunately, the good news that docs not travel fast consists in the fact that this form of relativism turns out logically or analytically flawed! The fatal flaw lies in the fact that even w h en those who believe it to be 'good' or 'moral' to kill, torture and rape, may nOt a claim a duty on the part of others (who believe otherwise) not to interfere with their practices of 'vinue' (as seen, I must add, by them!)I04The bad news is thatevcn a gifted philosopher hke Richard Rorty could base his enti re meditation onlllllnan rights at the Oxford-Amnesty Lectures with the following initial sutement: ... Serbi.all murderers .and rapists do not thlllk of themselves ;l$ viol.1ting hunu n rights. For they are nm domg these things [0 fdlow human beings bUI to Mus/loo. They .are not being inhum.an, but rather .are discrimin.ating between the tole hum.ans and pseud()o-bulll.ans. They are making the SlIme soru uf distinction as 100 Peffer (1990) 268-316 offers a more sustained analysts of rel.auVlsm. lie dlSlUlgl.ushes between four types of rebtlVlsm: {djafriphfllt tfhkll/ldlllJllism ... the doctrine th.at what people behC'Vl: to be nght or wrong differs from mdlVldu.a1 to indiVIdual. society to society. Of culture to culture: (fI}omrIIltnlf! tthiatl rtIIltivisrn •.. the doctrine th.at wh.at is right or wrong differs from 1IldivtdUlIIo mdlVldUlI. SOCIety to society. culture 10 culture (M-.lIm people beheve thlllS' to be ngbt or wrong detennines ....1131 is right or ....TOng for them); (rn)ftll~hitlll rt/alivisrn . . the docmne that thcre IS no sure way to pro...c (to ~ryone'$ sallsfxuon) wh.:n is ",omlly righl or WTong ... ; (m)tfll-tIAII/llllli' /f' Trialimm ..• the doctnne th11. lhere is no sure way 10 prove (to ~'veryol1e's sau,fxtion) what IS right or wrong. ... 101 Bec.al1sc what people may believe is an important socl.al datum. 110tll1118 fuIlO\\-" from tlus on the Issue of what they ol/ghl to believe. q. Peffer (1990) at 272-3_ 102 For the cbborallon of the notlOn of 'normauve ethICal rebllVlIm' .as enutilllil rwo distinCt ~\Uons, see, Peffer (1990) at 273-4 and the Illerature there ciled DueS nonnal.lvc ethu:,,1 rdal.lVlstic po51t101l f(':fer to an indIVidual', Crl ten.a of moral nghtTIes.' or does 11 refer to C1'lletl.a xcept«i by a society or culture as a whole? 101 8cnurd It. Mayo (1958) 91-2, quoted III PtITC'r (1990) 31 276. I~ See the lopaol demonStnt)()!1 of this III PtffC'r (1990) at 275.

Dew in Relat;vlSm? 195

die CnJS;)dcrs made between humans and mfidel dOSS, and Black MuslllRS make humans and blue-eyed devils. The founder of my u1Uverslly was abk both to own slaves and [0 dlink Itsdf-ttldel1t th~t .all men YlCre CI'C.ated eqwl. Like the Serbs. Mr. Jefferson did not dunk ofhmuc:lf;lS \'K)laong hlll,lIm nghtJ. 105

b(tWfi:11

What follows, with full alloW:lI1ce given to Roruan pracuc~ of irony? Does it follow that the 'murderers and rapists' are Justified? From the relativist position so far canvassed, they could so maintain. But Rorty suggests that the way out of all this lies in 'making our own culture-the human rights culn lre-more self-conscious and powerful', nO[ in 'demonstrating its superiority to other cultures by an appeal to something transcultural,.IOtt By 'our culture' or 'the culture of human rights', Rorty means primarily the United SUtes culture (and, more broadly, the EuroAtlantic culture.) The Other has to be educated in human rights scnsibility; the acknowledgement about JefTerson, and the Crusaders, suggests heavily that there has been a progress in moral senti m ents in the United States (and 107 all;ed Northern cultures), which has yet to reac h the benighted Serbs. Probably, what Rorty exemplifies is not so much a variety of normative ethical relativism buteitheror even both 'meta-ethical' and 'meu-cvul:nive', fonns of relativism. Probably, there are no 'sure' or 'objective' ways to prove to everyone's satisfaction that someth ing is morally right or wrong or just that someth ing is right or wrong. H owevcr, who is that 'everyone'? This is apP;lrently a vexed question for ethical thronsts lO8 and may well remain so for the better pan of the next millennium. H owever, both these forms of relativism rely on, or at any rate invoke, the possibility of'intr:.lsubjective consensus' on, at least, the prima Jad~ validity of certain moral norms. Neither prevents us from claiming that 'a certain moral principle (for eX2mple, 'slaughtering of defencdess infants is prima.Jack WfOng,). I09 lfso, human rights constitute at least the burden ofethical justification o n those who engage in practices of 'pscudospeciation' or indulge in catastrophic practices of the politics of cruelty. Richard Rorty (1993) III at 112. Rorty (1993) 117. 107 It is remarbble th1t Rorty colb.J!$C$ the 'pre-modem' (Crusxles). the 'modem' (coloT1i3Vimperial) 3nd the 'contcmporary' (human nghl!! era) IIlto one rn3ster narratl vel On the paradigm contrast offered In tlus work. Jefferson was consistent With the logics and paralog1C5 of 11lodern human nghts practices of excluSIOII. Rorty's Serbs are, however, located in a world which imJtllltJ h/llllllll ri,(hu, mcludll1g. perhaps, the basle hum.an nght against (to invoke Ene Enckson's ternl ag;:nn) 'pcsudospecl.al1On'. See .al.so. Th Weiming (1996). lOB See, Willl.am K.. Fr.mkena (1963); Kurt 831C'r (1965) and the discussion III Peffer ( I ~ at 281-5, 305-B. 1 A:iTC'r (1990) at 273. lOS

106

196 The Future ofl luman Rights And, if serious·mmded rel:ltivism suggestS that construction of such probiWdi is itself a complex monl affiir and, accordingly, requires great iQ" in thc cnunciauon of human rights norms and standards, tillS lllC'ssa~ is of cOluidcnblc Importance for those who would steer the future of human rights. Anyone fanuhar wuh the Asian, Ara.b, Nrlcan, and ~tm American charters and conventions on human rights (and the spawmng NGO re·articulation of the UDIIR on its golden jubilee) surely kno'M that human rights enunciations are marked by such man! agollizlIlg, though 1I0t alw;l.YS in languages that comfort moral philosophers. Argu. ments from relativism that remain willfully ignorant or dismissive of the histories ofconstruction of the 'universality' of human rights are altogether unhelpful. From the perspectives of sociology of knowledge, they may even appear to some as CXl!rcises in unconscious realpolitik, which It is the task of 'contemporary' human rights to render problematic. OPlIl$

Xl. Universality and the Voices of Suffering No discussion on universality may remaill complete without a careful understanding of how human rights theory and practice may mystify human/social suffering and t:VCn aggravate It. This work i!> focused through · Out on the ways of aniculation of thi!> complex and ever--changrng relationship. We have noted, repeatedly, how the histories of ullivcrs.alityof'modcm ' human rights contributed to enornlOUS human/social suffering dUring long periods of colonization and imperi:r.lism and also nised concerns regarding the production ofrightlessness and hum.an exclusion tlut even contemporary human rights languagts and logic harbour. We now pose the question: how may we understand and nuke legible: the scripts of suffering in the discourses concerning universalism/relativism of contemporary human rights? What is, perhaps, helpful in relativism discourse in relation to conte\ll~ porary human rights movement is the notion tiut human suffering is not wholly legible outside cultural scripts. Since suffering. whether defined as individual pain or as social suffering is egre:gious, different religions and cultural traditions enact divergent hierarchies of 'justification' of experi· ence and imposition of sufferi ng, providing at times and denying at others, I:mg\lagc to pain and suffering. The universality of human rights, it has been arb'l.lcd recently by Talal Asad, extrav:l>galllly forfeits cultural understanding of social ~t1fferin gl \o and alienates IHnnan rights discourse from the lived experience of cultur· ally/civili zationally constituted humanness. Asad highlights the fact that the Western colonial discourses 011 suffering valorized '(p)ain endured in 110 Tabl AsxI (1997) at 285.

Wlllt is Living and Dead in Relativism?

197

the movement of becoming ~fully human ... .. was seen as necessary be· cause social or moral reasons Justified why it must be suffered,. 111 He shows the ways by which the very idea ofcruelty and degradation becomes and remams 'unstable, mamly because the aspirations and practices to whICh it IS attOiched arc themselves contradictory, ambiguous, or clung. ing,.112 This instability, he argues, is scarcely remedied by either the 'attempt by the Euro-Americans to Impose their standards by force on others or the willing invocation of these standards by the weau:r peoples in the Third World' .113 He alerts us to the fact t1ut 'cmelty can be expe· rienccd and addressed ;rr waY$ OIlier IIIQII violalioll of right.r-for example, as a failure of specific virtues or as an expression of particular vices'.II.( This is a re:sponsible practice of cultural relativism, indeed, because while maintaining scepticism concerning the 'universalistic discourses' around the United Nations Convention Against Torture, Crud or De· grading Treatment and Punishment, it does not contest its ethical foulldations. Rather, it shows us how eth nographies of cruelty may assist progressive promotion and protection of human rights there ensh rined, in ways that respect discursive traditions other th:l>11 those of human rights. Similarly, ethnography ofsufft!ring summons us to focus on the difficult relationship between violence and rigiltS. The protection and promotion of rights has always entailed regrmcs of practices ofjfmijw or legitimate violence, although rights-talk habituates us to the Idea that Violence is the very antithesis of rights. Moreover, human rights discursiVity rardy concedes that violence of the oppressed can often be rights-generative. It can also be horrendously destructive. This destruction poses the problem of relationship bctwttn pain ;md suffering and languages of communicative action. Vttna Das (following the rather incommensurable discursivityofElaine Scarry as well as Ludwig Wittgt:nstcin) names some forms of suffering as simply ·unnamable'. The aftermath, however, and from the standpoint of those violated, remains both describable and nameable. Das names the constitutive aftcrnlath of the horror of the partttion of India inscribed on the bodics of women, as leading to the birth of citizen-monsters: 'if men emerged from colonial subjugation as autonomous citizt!lls ofan independent nation, they cl11ergc:d simultaneollsly as monsters'. I IS The so-cal led post-conflict situations elseWhere also remain marked by citizen-monster dialectic. 11\

Ibtd .•

3t

295.

112 Ib1d., at 304. IU IbId. 114 Ibtd. (c-mphasiJ added). lIS \kcna Ihs (1m) 139. Sec also Sanky Cavell (1997) at 93.

198 The Future of I-Iuman RightS Responsible relativism mvites us to consider wlut Walter Benpllun n:l.Illed as the jolmdaliolUlI violf"{f of tl'f /aw l16 almost always entailed, one may add, in historic practices of human right to sclf·dttcrmination and, now, acts of globalization. The challenge that this genre of writing, which exposes wrltmg as violence, poses for human rights logics and paralogicl> is simply enormous and directs attention [Q the central fact that human rights languages lie at the surface oflived, and embodied , human anguish, and suffering and fully questions auspices of production of suffering (whether as state-imposed and 'prople'fcivil society' inflicted, globally provided, or even sclf-choscn and imposed suffering). The practices of protection and promotion of universal human rights entail construction of moral or ethical hierarchies of suffering. lI7 Such construction takes place when certain rights (such as civil a.nd political rights) stand prioritized over other human rights (such as social, economiC, and cultural rights). It occurs when even the former set of rights stand subjected to the reason of the state (as when their suspension stands legitimated in 'time of public emergency the life of the nation' .118 It occurs when solemn treaties prohibiting genocide and torture, cruel and dcg:rad· ing treatment or punishment allow scope for reservations and derogations that eat out the very heart of remedies otherwise declared available for the violated. Not merely does the community of states construct such trans· actional hierarchies. Even human rights praxis does so.119 This make:s human rights prv::is, at best,global but not ullillf'nal, with deep implications for the fmure of human rights. Derncb (2002). 117 I
116 Jacques

Article 4, Imemauon~J Covenant on Civil and Pollucal Rights (ICCPR). Th4: wry in which hum~n nghu nuod~tes ~r4: fuhional or formed within the United Nations .ncics and across the NGOs iI1ustr..tl: this problem nthet strikingly_ As conC4:m$ the fonner, It IS olkn ~rgued th:r.t s~ahud ~ncies claim a vo:rsion of human oghu fOt themseJ"," nther than for the vklbt«l. K:lt~rin~ Thrll~so:vski (1994, ~t 70-91) has shOWll ro:ccndy that much discour.il': of UNHCR has been focuse:d on the riglll of MCtsI by U1tl:rgovernment;LI .noes 10 VlCllms of 'w:oirs ofhunger', nthef tlwl of the human nghl$ of xccss by the viobt«l to amebor.llrive agcnelcs. Iu con«rns the Kulptrng ofhunun rrghu nurxbles, xtIviSI grapevme all too often condemns Amnesty Internuron~1 for foCtwng 100 he~VlIy on Vlobllons of civil and politic~1 rrghu, 11\ the process failing to fully under.lund the imporuncc of Ihe ptotl:Ctlon of eCClIIomrc, socul. and cultunJ nghts. Iluman ngllu NGOs who :.JdOpl I Special mand.ltc for themsdvn (fOt OCiIniple, 'susurrublc dc....dopmclll', 'popubuon planning') arc often chug«! for negk
119

What is LIVlllg and Dead in Rel~tivism ?

199

What then is to be done? I suggested 111 an article in 1999 th.. t human rights diSCOUrse must be related to the voice ofstruggle and ofsuffering. 121} Writing around the same time, and sharing many of the same thematiC sources, Klaus Gunther also suggests that human rights may best be understood as ' the resu lt of the process of the loss and recovery of vOice with regard to neg'Hive experiences like: pain, fear, and suffering'.121 I agree; I also find salutary his counsel that we move away from the proportional COlltext of human rights norms and standards and regard these only as an index of' the process by which the victim of Injustice regains voice and control': The Ide~ ofhurn~n rights is somethmg like ~lIl1bbrrvialj"'r of thrs proces~ by which th4: victim overcomes neg;nive experiences of p~in, or hunllli~tion with their consequences of muteness, p2$siVlt)\ and helplessness. The proposllion~1 cont4:nt of human rights depends on the kind of soci~l prxtice which is ~rienced 2$ p~lIIful and humi1i~ting, like tOrture, arbitrary imprisonment, exclusion from basic socul goods. In the background of these rights are ~!ways mdrvidu~l~ who suffe r, who hn-e fear, who raise these lIOices, who clalln that others shall liSten to their report of thdr ncgau~ experience, and who demand justifK:ltion ... for the kind of social practice whrch produces these neg;ltIvc ~riencc:s.'22

Gunther describes this approach to reading human rights as 'complex universalism', a form that a!tends fully to 'difference in dialogue' and to 'human beings who arc speaking and acting-to their performance of voice and agency,.I2J This remains a brilliant rendition of the third Hegelian moment of concrete universality in struggle wi th the moments of abstract and particular universality, compel ling the conclusion that when 'we begin to conceive: of human rights as the It:g3cy of injustice and fe:ar, it could happen that the universalism oflll1man rights turns no longer to be a pro-blem'. m However, what begins to emerge as a problem is the constitution of the 'we-ness', an aspect that we explore in the: next two chapters in terms of conversion of human rigllts movements into m..rkets and of a n~ paradigm of human rights emerging under the signature of contemporary globalization. 120 Sec. Uaxi (1999) 121 Sec KlJU5 Gunther (1999) 117 al 123. nlal Asad, whose work he approvll1g1y Cites, hOWl:VC:r 11151515 !lUI stich expcnen« mlly not always be lIe8;;lIIve from per.lpectlvn of persons who uode:rgo ~ufTcrll1g. Acrordl1lgl~ he confinu Ius analysrs to 'rn~1C1l0n of pam against the: wil l of'llcl1m only' (at 129, footnote 22). ott Gunther (1999) 135. III Gunther (1999) 119. 1204 Gunther (1999) 1+4.

Human Rights Movements and I luman Rights Mar~ts 201 Identity' provides contested sites. I Both h.am css me pote ntiality for IIlsur-

7 Human Rights M ovements and Human Rights M arkets

L Preliminary Ques[ions

C

hapter 3 offered a partial analysis of specific (onns of collective social ;!.Cti OIl named as practices of human rights activism. T he

questio n we may now confront is w hether these practices amo unt to a 'social' movem ent and, if so, how may we understand the relatio n bcrween

human rights activism and social m~me ll ts. The threshold question raises, in tum , sevenl ~btcd questions: What is gained by c ndeavo u r~ aimed at d escri bing pr.u:tices o f h u man righ ts activism in terms of social ' moveme nt?' Put ano ther way. what fresh .'inning points may present themselves for lhe do mg of human rights wen: this to be informed by the

perspectives of soci. 1 movement theory? Does this theory at all take human rights movement seriously? How are the silences in social movement discourse concerning human rights m OVClllen ts to be grasped ? Where do we locate the potenti.al for concerned conversation between hum.an rights and social movements? What are, o r how may we construct, the matcrial--scm iotic spheres of human rights movements? In orner words, how fir do the productions of meaningr/significatio lls o f humall righ ts relate to the sphere ofeconomic production ? H ow do marke ts fonn and inform the practices o f human rights activism ? I low may we undcrsund the conversion of human rights movemen ts into human righ ts markets? It may sccm superOuo us to say at the o utset that the fo nns, practicc~ , and careers of human righ ts activism and of related social movements re mai n always heterogt=neous; they cnuil ensembles o f collective social actors, located in different timespace5 and 'geoph ilosophies.' But so pow· erful are the tendencies o f reifi cation at work that the educatio n in the o bvio us becomes a consunt necessity! In both human rights and social moveme nts, the relatio n between 'ideology, grievance. :l.Ild collective

gem social actio n olTered by 'cxp.anding politic.al oppon u nl1ics' th.a1 offers 'a ccruin ~ obj ective structural potential" for collective politic.al aClIon'.2 These opportu nities come vario usly, altho ugh oftcn abld ll1gly produced by 'suddenl y imposed grievances,J o r the 'd ramatization of system vulnerabihty'.4 In additio n, social movements marshal 'master protest frames', that is ' ideo l~c;3l accOl.lIl ts legitimati'!f p~tcst. activity that come to be shared by a van ety of socl.al movemen ts. Wlllie fi ghts movemen ts provide such master frames, it remai ns mightily uncom mon for the mainstream social movement theory to fllily cognize human rights master frames as constituting a gramm.ar for the Study of the 'new' social moveme nts. Even .a cursory read ing o f movement theory suggests th:u there is no agTeCment on what may constitute core .aspects of the notion. The idea of social move~ent as 'a conscious collective, o rgmized, atte mpt to bring about o r resist a large SCale chan ge in the social order by no n- institutionalized means'6 has proved contentious. While this de finit ion aims at adequacy o f nemraVobjective descriptio n, the discu rsive tem lS deployed raise scv~ ra l ques~ions. What may we say constitutes 'a l a~ scale change in SOCial o rder? How m ay wt: undersund the no tio n of non-Institutio nalized mc.ans? Wh.at kind of refl exivity may wt: refer to by ,he demand that social movement sho u ld be a 'conscious collective attem pt?' And how rn.ay we app.roach the notio n o f 'orgall1 zed' attempt to promOte or resist large-sc.ale SOCial change? H ow maya generalized defin itio n accoul\t fo r agency?' Further, while State repressio n o f soci.al movements m.ay wel l require these bemg treated as a well o rganized 'conscio us collective attempt' to threaten Its suprem acy as a paramo unt social .associatio n. the levels o f o rg:m ization amo ng the insurgent groups .and movemen ts vary enormo usly. Indeed, some recent studies o f anti-corporate globalizatio n movements COntest the key clement of 'org::l.I1ized' effort; they start with til(: explicit understanding that 'participan ts in the protest and in me confede ratio ns tbat have loosely coordinated these protests' may be viewt:d as constituting

, As concerns social movements, see Hank Johnston. Enrique larma. and J oseph R?~~a,~~ki)I~~. ) See Edward Wolish ( 198 1).

~ McAdam ( 1982) 41-3.

5 Followmg the work of David Snow and Robe" Ihmford ( 1998). M cAdam ( 1982) 49 mstancn how the 'cl\'1l nglns' m uU'r fn me In the hber.r.1soc.eua and 'ckrnocncy'

master fr.r.me III Easte rn Europe k~ u nuste r frames for tht emergence of a whok V1r~ of 'rn<M:meDt tme~ nce' McAdam (1982: 41-2. 40-54). , J ohn Wilson (1973) 8. Sec. for aample, Robm Cohen and Shmn M. Ib n (cd.) (2000) 3.

Human Rights Movements and Iluman Rights Markets

202 The Futlll't' of Ilumall Rights a movement.8 The poi nthere(now reiterated by the discourse of tile World Social Forum) is not that episodic, amo rpho us, protests have the potential o f becom ing a movement but that they may actually be said to COllStUUte it. M y d lStincuon bctwttn 'episodic' and 'structural' hu man rights activist practices (anvassed in C hapter 3) also gets severely tested on tilLS terrain. So does the d lstincuon between ' moveme nt' and 'organization' The notion o f social movements, it Ius been often remarked, reSISts overarching defi n itions o r descriptio n. The notion itself is a fuzzy one because of the proble m of reading collective intentionalitics of those that initiate movements, participate and sustain these. N ot all social movemen ts p roceed with a clear, conscio us, and coherent original ultent. Nor, further, do social movements always constitute fields o f resistance to power ; often they also contribute to rei nfo rcement of structu res o f dominatio n. In any event, the intent unde rgoes changes as the movements proceed to acquire some level ofintemal coherence in time and place but also begin to marshal a certain level o f social legitimacy and political forCe. N o t to be ign ored is the distinction between sym bolic movements (movements th:H seek to ch ange or resist transfo rmation of symbols, beliefs, sentimen ts, and attitudes) and instrumental movements ( th o~ that seck to achieve clearly posited concrete o utcomes.) These theoretically neat distinctions are ovcrru n by SOCial practice. The b right li nes between the twO ensc' themselves all too qUlck1y in the on going traffic between ·symbolic' and 'instrumental" clements in social movements, o r put ano ther p.urvosc; way, when we move from thc dimensio n o f. the descri ptio n ratio nality to th e realm of actual effects, that IS from the actors Wl.sh. list (as it were), to observable and meOlSurable effects or im pacts. T hiS IS so because of the well-kn own problem posed by the d istinction between intended and unintendedllatent effects. The accumu latio n of latent effects o ften disrupts in course of time the manifest intentio ns th at guide th e fo rmative mo ments of social movements. The trajecto ries o f collcctlve intent get transfonned as social action unfo lds because social movement acto rs learn on ly thro ugh dire experience the unforeseen, and often, unforeseeable effects and W3ys to cope witll these. In any event, our descriptio ns of social movements become even more complex, and even contradictory. All this is rather well known to social movement actors themselves and, in varying degrees, to those who choose to run the narrative risks of theorizing social movements. . . There is even so no questio n th at the practices o f hum all fights actiVism " . . .. I sense rem ai n clig.ble fo r descriptio n as SOCial movemen ts 111 the n ll llll ua

0;

8 FredrIck H. Buttel and ~ n rKth A. Gould (2004.).

203

that human actors contest, and seek to tra nsfonn, the soriw, both in the sense ofcverytby lived social relationships and tile Structures wlthm which these occur. However, human rights moveme nts remalll seriously undertheorized III the contemporary movcment theory. The reasons for this are many and complex, a theme for ano ther treatisc. But fo r the present purposes, I su~st that the growing 'tech nizJafio n' of the field of human rights. that I describe here in temlS of'legahzation', Impedes any serious explor.1tion by social movement theorists. Also at issue arc the unstated unders13ndings and ass umptions concerni ng the role and limits o f the S13te law.as an agen cy of social transformation. T his aversion, and at limes me disdain, towards the distinctively leg:;ll or j uridical impoverishes, in my view, the movement theory and scho larship. The fo rms and practices of human righl~ activism may also contribute to this impoverishment; many actOn and en trepreneu rs o f human rights movemen ts aspire to preserve their own historical specifici ty whose fo rce, they fear, their subsumption into larger ~ omain s o f social moveme nt may dissipate. At stake here, then, ~ Ihe claims of relative aUtono my of human righ ts mOVeme nts from rtlatcd social movements. Further, at Stake also re mains the specifici ty of Ihc 'emanCipatory' char.1cter o rhllman rights movements, COmrasted somehow with the telclogies of o the r social movements.

II. The 'Emanci patory Character of Human Rights Movements How may then o ne present the inSistence o n the 'emancipalory' character of hu.man rights movement d iscourse? This is indeed a very complex q\X'stlon and one.~ th ~ massive presence in the h istory of ideas, especially :,:~ of me d lstlllction and o pposition between 'reform' and 'revolu. ' between change in slow motion (what Edm u nd Burke once de~bcd as 'growth by insensible degrees') and the acceleration o f histo rical ~that .brings about huge transformatio ns in radical, and often violent, ' ~th the past that all too o ften, in tum, IIlstall new fo rms o f do mlllaUon. Hu man ' ' movemcnts, mark strllD"O'les to . rights movemcn ts, as relormtst enh ance d··d 1 ~ th m IVI ua human freedoms against thc ovcrweenmg powers of e modem st:1t fi . d I · . . . . ns and C ormatlOl1S an I Ie repressIVe powcr of SQClallnStltUUo , tIl iS ' aSplralio " arb cultu ral . 5 lIC11 movements a1so I'lI1ut n and Icvemem by th ' f " d ' hOtttI th us . e proce~s 0 negotiatio n an comprOllllse. As already

p'''''e,,,,

seeki ~r III the previous chapters. human rights movements, while to . re Iallons ' ' d IVldual ' , - . ,Ilg 1 d l sempowc r tI Ie Statc 111 to tIIe 111 huma n being r asoscek to re-cmpowcr ·It III · tIe 1 COntcxts of amelio r.1ting, even

l-I U1mn Rights MovclI1enu and Human Rights Markets

204 The Future of liuman Rights eliminating. SOIllC syste mic pattcrns of social, economic, and cultural domination that result III hum:1.O and social suffering. BUt, ~ IS wdl known, the re-el11~rmcnt of the state: for evellJust human. tights C.1luses does not .1Ilways le.1ld to the real life achieven~ent of 'emanClp.1lll0ll' from the oppressive structures of power and dOI11I1l.1lllun. . The subjects of human righ ts movements (as Marx ::.howcd III rc~allon to the histories of the working classes) break away from the 'Iron c~'C unly r. ther bound '111 silken strinp;;' . Michel Foucault expressed a similar to be lur . f'l · I ·d d·m -ntl, in terms of 'infr.1lpower', these rcgllnes 0 Itt e powe~ I C.1I I '\1 little institutions' that weave a 'web of micr~oplc.' capl a~ power ... · men ,0 ,he production apparatus ' wh ile making them IIltO. agents, ... ttaC h1I1g . . . of production, into workers', and thus create a. 'synthetic, pohtlol hn~ between 'hyperprofit' and 'infrapower:9 In tll1~ sense, th:n, hUln ... n tights __·,1 ",ovements bear a conflicted relationship With the movements as ",,-,,-I . . f ra.. and infra- pOwer/knowledge formations. regnnes 0 mac, , . ' . ' be I tween llIoun All t h ·IS then invites the conSide ration of relanonslup I. . I h rights movements and soci...1 movements. It is on t liS re~stcr t lat t e complexities of the distinction, rife In contemporary SOCial movement I between the 'old' and the 'new' social movements fully emerge to ~;:~To venture a large generalization, this d istinCtion merely unfolds fresh understandings of, and renewed forms of struggle with, the 'hyperprofit' :l.Ild 'infrapower' regimes. I Iowever, the Iangu~ges o f hu~u~ rights make a difference. One way of stating the di.fferen~e IS th~t the old ~....,..; I movements encased within the manifold nse of tndustrlal capltal_.a, . I ' fh 'glltS nomlS iS111, led social movements to generate artlcu a1l0n .o uman n 10 Th ... nd standards, h itherto unscripted, ... nd even enurdy u.nknowl1. a~ also incrementally bUl surely fostered new hum ... n tights values . . Th" social movements conunue cultures of power and resistance. e new _ h'ld a similar order of struggle against swtItshopS, econonuc zones, c . I ·' f' rced' \;,tbour pracuces labour and related fomlS of cxpIoltation 0 outsOU .. h'fts l1 in the' heavily globalized conjunctures. However, ~hc ~eclSlve ~esl to "-'e notice' the 'old' social movements formed lustonc strugg d· de;>\,. ,· . . h ' traSt the 15.1IrUculate: altogether new regimes of human ng ts: III con .j the course of the 'new' social movements tlmves all too heaVi y In

c....

.

~

o f hu man rights .already in place. All the same, in both fonns, pl~ of hu man rights movements rem ...ins somewhat insecure. 12 The histories of the 'old' soci...1movements present fully the dlfficuluo ofrt)dl11g the 'emancipatorych... ract.cr' of h uman rights movements. I low nuy human rights movement theory re.ad the now furiously proclaimed di"'lde bcr.veen the 'old' and 'new' social movements? Much here depends on what we may wish to regard :lS paradignutic of the 'old' soc]al movements. ~re we to regard the struggles of the working c~s .ag;;ainst the capitalist o na as such, the dominant trends in the Marxian discourse resist descnption of human rights movements as emancipatory movcments. The figure of human rights appears in this genre of movement theory only in lI!fTIlSofcritique of extant models of rights, state, and the Iaw, ...s any reader of On ml' Jnuish QlltStioll and Thl Critiql~ if Col/ao. Programme surely know:>. Although h uman rights emerge as the plentiful 'necessities ofclass lIJ"tI.88Ie,'\3 the very notion of h u man righ ts was regarded, in the fi nal asW)"Iis. as the m ... rker of a 'radiC.1l.lly deficient' social order. t~ In contrast, wttt one to locate as paradigmatic of the 'old' social movements the anticolomal struggles, we gr:lSp the revolutionary em... nclpatory potential of tile amque ethio l l1lvcntion of the right to sclf-detetlmn.1ltion . But cvtn here II the VlrtuoSQ exponen t of the rigllt to self-detetlnination Moh:mdas Gandhi demonstrated the emancipatory character of struggles for selfdttrrmin ... tion entailed transcendence from the received ethlc... llangl.lages ofhUJlUn rights; he believed in the vinue of not the vinue ofjusI freedom, .w:jUlitjrrtdom. ls In a fu rtller contrast, some different, and liberal discurIIV'rframes privilege the narratives of'old' soci... ] movements (such as antiabvery and slave abolitionist movements and the suffragette movements) _ .enuncipatory potential ofhurnan rights movements in temu of p... instWng gradual displacemellt ofstatus and hierarchy based amiD! regime that, III Ihe net result, expands the power of individual choice of life-projects IDd pro tects autonomous constructions of lifcworlds. But even these _

'"l'

= 12

Sc (,

'c. or an acCOUnt of thc OVC'nli dltrJC\JloC'S Ihus prt'5enled III J study of global tTlOv(:mcnts. Robm CohC'll and Shinn Ra. (cd.) (2000). Ilut I t t Mary Kaldol........ _) fOf a mol"(' susumcd analysIS ofdw: I"('btlOl1Shlp bC'tv.oC'en soaaI moYC"mCnlS and _l cIVJI~ 13.

--- ' ·'1'

14 ~ Upcndn 9 Foucauh (2000) at 86-7. See also Chapter 5. . , conccrning " Soch as cckbnted by K.1rl Mane 111 Chapler Ten. iGJplIII/ Wumt . I ~,tcty I· trugg\c that u u,, _ me InnlUuon of houN of ....,ork through a romp ex siXtY-year~lesomc confisa(lOT1 I .C_"," b - - - .J "-~uvcly a Ten Houn Uw pItted against the' uri

x ~ ,_ .. 993) 39-43 MI the' male"a ofworur's lifcllmt and hfeworld,. Scc:, Bax:a (I . .11 cited. 11 S«, for CXOImple, Peter W.ucnl1an (20(4).

U'"

205

\):lJO

(199&); IhxI (1999).

~ , ~,A llan \)uchan3n (1982). BUI as Uevcrley Sl l~r (20(3) pomu OUi olle may ~:.hl~totlC'S M workers resistance dlffel"('ntly a.~ dlvKicd 11110 rwo 5tntqpC'S: ~ . truggles (OVC'T thc pohtlcs of producuon and productton of polincs. 10 use ~ I fC'CUnd CJq)I"C'SSIOI1) and 'Pobn)'lan' stnJggks (nurklllg C'VC'f)'Cby SIIC'S of ~ ~IP,"SI thc collfisotton of Imc h~lihood nghu through Ihe play of sheer n

forces).

Sec, UP!:ndr~ Bui (1995) and the lttcncul"(' therein

("ltM.

HUlnll1 Rights M()\.'Cmc nts and

206 The Future of lI ulTllo n Rights

narntiV6 gnsp human rights movements not as ends but as a means an end, enunciated in different terminologies and dICtion of'dclllocracy~ 'rule of law', 'dcvdopment' or dle newly fangled public goods langu.s: In COntrast, and at first sight, many of the ' ncw' social movements appear as distinctly human rights-oriented. Movements confronting patn. archy, environmental degradation, racism in all its fomls. and the politiCS of imposed Identities, for ex2mple, everywhere entail recOllrse to contem· panry languages of human rights values. norms, and sundards. These movements are human rights reinforcing but also at rime innovate human rights and standards, and thus remain jurisgenerarive. In the pursuit of realization of existing human rights values, sundards. and norms, 'new' sociaimovemcnts also further produce new norms and sundards. In this, they partake the defining fea ture of the 'old' movements as well. Even so, social movement theory seems to have little use fo r human rights as providing a distinctive-even consti tutive-marker of the distinction 16 between the 'old' and 'new' social movements. 16 Sec, for e:a mple, Alex Tour.lIne (1981), Alberto Me lUCCI (1989), M~IIUel ('..astells

Ilunull Rights M2.rht"i

207

HI. Juridicalization COluentpor2ry movemcnt theory approaches to hunun rights movements neW to negan.ate the IIlclucuble features of'legahzation ' and )Urldlcaliul1OO'. These twO notions arc related but also distinct. Legalization yields to some easy description. It p.ri manly consists III the production of lawyer 's law concenllng human nghts as legislation, interpretation, Implementation, and enforcement. T he production of normative law itself b, however a complcx affair." T he complexities aggravate when we tum to the prod~c­ cion ofhulTW1 rights law, 18 celltral to which is the belief that as legal codes, human nghts norm~ and standards require constant engagement with re~liatlon ~f legality and legitimacy of state power. I....cgal and judicial actiVIsm entails the consequence that human rights movements by defininon pursue the tasks of refoml and renovation of the law. Reformation of state, parastatal, and global stnlCtures and practices constitutes a vital part of the very agendum of human rights movements. At stake in these movements remai n t~le im~ulse to make power Illcrcmcntally accountable, govenJancc progressIvely JUSt, and the state conduct increasingly ethical.

(1996). Ewn when new JOClal nlOVi:ments ~re eonsidered dlstlllCUve b«ausc lhey tr.lIIsce nd their f(IOtroneu In ebss.speclfic location s, mirror new Wily! 111 winch identltlcs sh.. pmg collecu ve behaVior are formed, and nurk the emcrgences for the ndlClllly plunhst polUiCS, Ihe spc"Clfieuy o f hunun rights n1(M!mem rt'lIIam hllk ;KKnowledgcd. M.try K2.ldor (2003)
.

ously' (107).

Wh ile one m~y contest her d~ pllon Ihlt that dK!5C dem.lndl for ':lCccs.~ open. .lnd dcb.ues' .jft"alllri/y mmsforms glob.ll paltcy actors mto 'a 11c:8IC h.ln ur~IVC~ dau. ;acting III the InteTCSts o f humalllty' ( 108), thc Imprcssl~ cvldence that she rrun!uls (5I)....n, 109-41 for the \I0UOIl o f a gtobal CIvil SOClCty» ' .. nswcr 10 w;ar' IS .appe.1lmg nideedgtvcn the 'new 'pervasl\'C tr:lnsnattollal K't ofllls«urtucs' :iIId for thc 1IIIIC need for .. 'ciVl hlro' con\'eruuon free ''''' ,(';II', supersao. Kll<"In and the Imper:ltl\'C . pKJud\CC,' these 'new - Isbnds of engagemcnt" (160). The IlC"W global WId! .uUOlUlum now fostered by lhe f'A.'O 'terror' WilI"S (Bui 2(05) lease arid IC5t aho cruelty some chenshcd nonons of'clVlhzed ' dl.lloguc on a1lsidcs which (I~"~;:;" over yin orpnlud for Wolf'. K2.ldor focuses on fi"; ISSues _

fi--. "

mu:;' r gnotm

'SOCtetlC5

could represent the possible content of a gI~1 sorn l ooml"1lCl or twplll III which ~ l sccunty IS provided through the upholdlllg human rtgh ts and hUIIl:mitlri:m III ~hangc for n:3C.hncss to commit resources through gloWl UXOItion o r other o m lS offinancl~1 tr.lIlsfer and re.ximcss 10 risk hvc-s, ..ltho ugh IlO( lIl .. n unhmlted way, In the SC'tvlCC of hum .. mty (158). All nthl ~ w.trt allts a IllOSt allXlous dla lcctlc..1 auen uo n,

r.

Itpl R~oe Pound (1933) remmdcd us th .. t m the produetlOTl of th e 'a uthontlliW pnnCi~~e ~als' oceured at vario us k.'vels of ge ncr:l h ty: leg;.tl Ideals, v;r,lucs, goals, lI eo p , 1:llC1111S, doctrmes, standnds ~nd rule~. Greim~ ~ prcsenung !e=hlalion ~ ~ spIIC res: proouctlonj .. ridllJj~ and ~ .....,. n~ _. uIUU n'twoaUlonomous b\II re IlIeu jlfrijicariD,j ':"-"l" tOW:lTUnsthesecrucl I d I' r I J:.tlaon ( 1985 a IS mctK)n s. "'..>=, Tor an cxp or:lt\on ofGrellnas Bcrnud

s.

-..

IR

).

Ptud SecCItt. . pier 4, and diSCUSSio n III C h;r,pte r I concernmg hunull ngllts » JuridiCl I

H uman Rights Movements. aud I lulllan Rights MV"kca

Tht Futu re: or Hum.an Rights

208

At stake then art tht ways of refashion ing/retooli ng/rethinking the ttl I derlymg " Icg;allzauon'areformsofwh " Ilea IR l f Law."Un IanglUgcso ftIt ueo Friedrich Engels named as juristiKllI I#lt411.stllammg, the world jUridi a~ outlook. 20 a seellb.rizing outlex>k that consolidates 'emnomie and SOC~:I relationships' as 'bei ng founded on law and ereattd by tht state', wherein all redemptive human aspirations sptak the languages ofeither to bourgeois o r socialist legality, or (to evoke Santos in a wholly different context) 'inter_ legality'. Thus, the social me.:mings of human rights norms and standards produced remain complex, and as has bten so far seen in this work, often contradictory.21 A statecentric understanding ofhum;;m rights law remains contested by the practices of contemporary humall rights activism and the 'new' social movem ents. In this perspective, the production of human rights norlllS and standards may not be undersrood as a spectacle of state sovereignty. Peoples in struggle and communities of resistance, as repeatedly stressed in this work. also emerge as the makers of human rights norms and standards. I low then may we describe dIe powtr of contemporary human rights activism, in conjunction with the ' new' social movements? Perhaps, one way to achievt lhis is to S21y that most human rights llttcr.mces belong to the genre of ptrjonllativt spccrh acts 'that create the very state of a/Tami they represent; and III each c~, the state ofaffairs is an instiu1t1onal fact'.22 The paradigmatic human rights declarations concerning equality and dignity of all human beings everywhere sign ify this perfonnarive power. When Lokmanya liIak inaugurated the Indian stm ggle for independence with the motto: 'Swam) is my birthright and I shall have it' and when Mohandas Gandhi tra nslated this into a collective feat of Indian IIldepcndenec, they were enga~ in a ~rics of perfonnativc act; so were the makers, and the successors, of the UDHR. In each case of human rights declaration/enunciation, 'the state of affairs represented by the preposLtional content of the speech act is brought into existence by the successful performance of that very spttch 3Ct'.23 This son of 'bootstr.lpping' is inherent to the invention, and reinvention, of human rights.

In eontf;l.S t,joridicalization oflmman rights, as understood here, helps understand the 'd~p stm ctures' of which their legahzatlon IS merely outward manifestation. Thus understood, human n ghts remain (10 Searle's terms) both lallgua,tt dtp(rldt:1It and tllouglu dt:pt:rtdmt . Human rights ponns and standa rds remain concelV2ble only as SOCIal facts that come mto ~ang 'by human agreement' to use the symbolism oflanguagc: 111 a sh.ared manner.24 They arc tluwg#tl dt:pnult:llllll the sense that all mstitutlonal facts 'can exisl only ... if reprcscnted as existing. 2S Jundlc2.lizatlon ordains thai these facts 'can exiS[ only if people have certain sorts of belief.:md other menu l attirudcs,.26 Because they havc 'no existence outside representation. we need some way of representing' them through b.nguagc. Human rights noons and standards are 'social objects' in the sense that they arc constiblced by 'social actS' 2nd 'flit: ob)t:fI is the lominl/OIlS possibility of acfivity'.v The distinctions I make between the paradigms of 'modern' and 'COI1llemporary' languages of human rights (Chapter 2) fully demonstrate different histories ofjuridicaliz at ion of hum an rights. Thc contemporary Iangu;ages (whether through outlawry of slavery, genocide, apartheid, scxIIIDl. ethnic d iscrimination, for example) create sociaVinstitutional facts, bclirfs and attitudes alie n to the languages o f ",odml human rights. In both, iluwnrer, a certain tendency tow.trds sclf- referc11liality remains inevitable. '11tr concepts that name social facu', S21ys Searle, appear to have a peculiar lind of self-referentiality.28 The vcry concept of'human rights' e ntails this • exuberance. When we ask why human beings should have righu at all, Ibe MlSWer is bc:c;ause they are hUIl12.n; wt:re we to ask what constiultes 'human' the answc:r is the self (individual or collectlve) that is the be;arer ofhuman rights! To say that social facts are thus ~If-referentia l is Oot an evaluative buta descriptive comment. There is Simply no way ofdescribing IOCW. racts outSide this refercntiality. Put another way, 'tllere is no W
::c

~

2S Seule (1995) al 46. Scull' (1995) at 63. 16

19 See, rOl'" cnmplc, ror an exploraliou of the ambivalent Ullpacl of human nghlS movemems on po hllo.l cultu re, Manu Kosckenmcmi (1999). ~ abo my analysl! (201).4) o( the Jurldlcahution o( the Bhopal caustrophc. 20 Sec, VA ThmalK)V (1974). 11 Even the much va unted 'empowctmcm effects' orhurnan oglr ts produclLOIL alSO pr«otm a caIL te$lw lemur: ~, Duncan Kennedy (1997) 224-35. :t2 John R. Searle (1995) at .11. 1)

Ibid.

209

n

llHd .

2LI Searle (1995) al 36. 2'1 $carle (1995) al 32.

Scnle (1995) at 33.

~7;tulional faclS also tm;ul

nu ttflallty or pbYSlca hty. ' ... ITI here: an: no instr!u-

~acts WIthout brute: facts' rtqulnng some son ofph )'IlcaJ reahuILon: (34.) Searle Clast es nlOncy: )U51 about any ~ o( subsu nc( OIL be money but monty has to

04-~n pbyncal form' thai may ulo: 5CVCral rorms 'as 10ILg as It canfonllion as money ), the forms .. :lIS5umcs are 1L0t deci Sive. One may Sl.y tbe s;,r.rm: :tbout human

2 10

The Futu re of Ilumm Rights

T he acti vis t im patience wit h legalizatio n of hu m an ri gh ts IS fUlly justified. 13m it ignol'('s the 'd e(:p structures' ofjufldica hzation, which di rect a tte ntion to the poli ucal unconscious-the very infrastructure of the pro-. ductton of h u m an fi ghts law. its no rms and standards. TheJuridlClhUtlon oflUlina n figh ts move m e nts al ready produce me ntalities, and us VariOus 11Iswn es, t he habIts of language, thought, a nd heart that may only give na m e to Illmllm rigllU Violation, d isti nct from human violation, the deSC'cra_ tion of belllg, and remam ing. human. At suke remain the relatively u na rt iculated notions o f ' huma n' in ' h uman rights', an aspect that we Visi t in C hapter 8 in relation to the materialiry of globalization. T his distinction re m a ins, however, crucia l because globally. and Othe rwise instituted h uman rights norms and standards do not reach Out to all forms of huma n violation. Nor do social m ovements always read ily

Tights emmci;lIlons; these. m all thei r many forms, have to as~ume sollle m:ncnaliry or physlc.lhry for fu nctlonmg as opcT1luve norms and st.mdards. Tht malenal infr.._ Structure. tillS ent;ulment nf physic.lhty, st
Human RighlS Movements and Human Rights MirutS

211

tnnsl~te h uman vio latio n as h uma n ri ghts violatio n, These movements mark several Oows fro m the local to the global and back. Pu t another way, b nun rights mavc m e nts are in he rently inlmtctiw; the IptJl~ of violation of

h~l1un rights at alllcvcls th us stands converted 11110 ' imt for human rights ..aio n (local, ~gio n a l , na tiona l, sup ranational, and global). In dlls sense, human rights movem e nts fonn a n asp«t o f global social movcmen ts. JO Furthe r, aDd related , the growing interaction between huma n ri gll ts ~ mcnts and social m ovem e nts o n the o ther increasingly redefine the missio ns, mandates and m et hodologies of huma n rights move me nts. The Amnesty Internatio nal thus redefined in 200 1 its m ission to e mbrace aspects of social, cultural, and econo m ic h uman ri ghts. Increasingly, hununitarian NGO organizatio ns and m ovements begin to assume a new bum;ln rights orientatio n . Perhaps, the m ost sign ificant instance of the intrraction occu rs when h uman ri gh ts m ovem e n ts, govern me nts, and internatio nal developm e nt age ncies purs ue 'a ri gh ts~based approach to development, collabora tive campaign ing by huma n rights and develo pment N GOs, and the adoptio n o f econom ic ri g hts o rientation by human rights groups' . T h ese ' hig h- stakes' processes, widl 'potcmial dramatic sigJ1ificance' both 'challenge a nd stretch the m andate and structu res of existingorganizatio ns'.Jl Likewise, t he anti-corpora te global izatio n human rights moveme nts seem to em erge as the ' m ovem ent of move m e nts' .12 Put anthe r way, t he tasks of human righ ts movem e nts are never ever do ne; aIobal hum an ri ghts m ovem e nts emerge as a kmd ofpermanent revolution ! Social moveme nts, including cultu ral, political, and even spiritual ~ments, in contrast, are nOt a lways related to the umvcf'SC o f h uman rights movt=m e n t!i. N o t all social movements ideal typICally add ress conctrns to political ly organ ized communi ties, nam ely. politIcal actors and the IWr apparauhik and appararu~. Far from being hu man rights-orie m ed, ~ social movem e n ts indeed shun the rights languages altogethe r, emphasizi ng lan guages of duties and o f solid ari ty. Som e harbour deep SUspicio n concerning legalizatio n of human rights via languages of law, ,mlch are, at the sam e time, languages of power. Inte nse j uridicalizatiOn ts ~id to expropriate the power o f the voice of the vio lated .1 T he resisunce to, Such ~ppropriatio n ass umes m any fo n ns -fro m o utright nega tio n (as 'litth righ ts nihilist socialmovelne tlts) to conti llgc n t a nd strategic reco urse "So, )1 • Robm Cohen and Shm n M . Rai (2000); sc:c: also, Jacloe Srnlth (2004). 1.2 ':'ul J. Nelson and Ellen Dorsey (2003). at 20 14. lJ See , Frc:dcnck 1-1. Uuttel and ~l1ne{h A. Gould (2004) at 39. tIiU As OC:cur:s nOtably; bUI nOl only 011 tillS Slle, with the VICll1ll5 ofBh~1 caustrophe IttlIgghng for Justice twO dcadcs. Sc:c: Upc:.ndn IJ:UII (2004.)

212

H uman Rights Movements and I Inman R.ghts Maruu

The Future of Human Rights

to human rights norms and sundards.14 A large num ber of social move. ments celebrate dedication to causes that the sute fo rm m ay rarely add ress seriously.JS Further, many a social ~ovem~~t target refonn of civil SOCiety fonnations (for example, the f;lllllhal. reltgJous, and markr t sites). And indero social and ethical thcory enacted by some movcments s uggest r(:Cou~ to Ian~ other than those provided by cOTUcmporary human rights. of which three at least must here be mentioned: the Ian. guagc:s of apabilities and flouri shing. rather than righ ts;l6 the l a ngua~ of thcory of public goods,)? and the Gandhi:m/ Lcvinasian languages that add ress the spiritual eth ic of hun un rcsponsibilitywherein each and evcry human being owes a non-negotiable oblig;ltion to regard serio usly the suffering of the o ther. These, howsoever incommens uratc, languagt.'S, in various modes, reach beyond the critiqu c oflegalization ofhlllnan rights towards all interlocution of the very structures of juridicalization.

IV Va lue Neutrality Already. the discoul'SC concerning the emancipatory character of human rights movements as social movements compromises the stance ofvalueneutrality t.hat insiSts that o ur narntives of the diversity and rang<= of social movements kccp dcstriplioll som ehow autonomous of ~Ilflllioll . Move· ment theory 1I15ISts th.1I ally serious study shows a willingness to understand 'social movements .. , in their own terms; they arc what dley say they arc. Their pr.lctlces (and fo remost their discursive practices) an: their selfdcfillition. l8 To this demand for descriptive realism , stands added a furdler prescription emanating [rom the importance of cither the Weberian value neutrality or the postmodem suspicion o['predetennined directionality': thus writes Manuel Castells: Social movements nuy be socially conscrv.ltivc. .socially revolurionary or both or none. After all, we now have concluded (and I hope for c\'er) that there IS no ].I Ctupten 3 and 5 streSs thIS dIversity hut obvlously more work IS nct"
213

prtdc:remllncd di rectionality in SOCIal evolurion, that the only sense of history IS the hl§tory \W sense. Therefore, from an analyucal pe"pccClve, thcre are no 'bad' _ 'good' social movements. They arc all symptoms of our SOClctles and all impact social urucmTC'S, WIth variable IIItensltlC$ and Olltcomes that must Ix estabhshed l9 by socill rescarch.

This is

indeed an understandable observation; all social movements de-

serve equal theoretical attemion. M oveme nts that seek to ameliorate and those tlu t aggraV:l.te hmm.Il/5OCial suffering, movemen ts that promote large-sole social trans[onnation and those that opposc= tllis, movements that affinn as well those that deny o r devalue human righ ts, for example, coequally furnish the grist for the social movement theory mill. Their ideologies, outcom es, ;and transform;ative impacts 'must be established by social research'. It is 'u nscientific' to privileg<= one form of movements over dle latter in doing social theory. U ndoubtedly human rights movements demand such research .40 Descriptive realism enables us to shed na ivet~ that, at the thres hold, classifies som e m ovements as inherently anti- human rights movements. Value-neutrality further insists that we cognize the logic of movements III tttms dIelr au thorial intentionalities. On this count, social movements diat descri be themselves as human rights moveme nts sund fully entitled .. such to ac knowledgement of their Status. Fo r the most part such rnovt=me nts the m selves appeal to some preferred conceptions and values aashnned in th e internatiolul, and related, hum.an rights standards and 1IOnru. Pro-life social movem ellts thus, for eX2mple, appeal to the enun oations of the human right to life and the fundamental nghts offreedom oJ cOll5Ciencc and religion, speech and expression. assembly :lnd associa1ioru1 freedo ms. These movements, as is well known, ntend to justifiatlon of prohibition of 'wanton' forfeiture o f fetal life foons. from practices o f abortio n to embryonic stem cell research, [rom the absolute prohibition against suicide to criminalization of physically assisted forms ~tentlination of'bare life'. Likewise, movements that pursue the distincII\fe nghts to identity, language, and cu lture mvolve contestation over the hurnan righ t to interpret the rang<= of imem ationally proclaimed and atCC'pted human rights norlllS and standards. Iluman rights claims to the IIIkgrtty o f fa ith in an intensely secu larisi ng world stand opposed by movenlents that proclai m and proselytize the reprod uctive rights of 'Wornen, the identity and cultu re righ ts concern ing sexual o rientation and COnduct. D escri ptive realism insists that we fully cognize thc multiplicity ~

40 Ustells (1996) at 71. Up.;-ndra &x! (1998); (1999) 33>52

214

Human Rights M~ments and I'luman Rights Markets

The Future of I luman Ilights

of social and human rights movements that crystallize conflicting conc,,"pdons of human rights. Difficulties, however, arise when, for eXllmple, we come across the selfpresentation of social movements that egregiously pursue vIOlation of human rights values, norms, and standards universally agreed as morally abhorrent, wllich further stand o utlawed in contem porary international law. Thus 'social' movements directed, for eXllmple, to fostering hate s~ch , xenophobia, racism, and other fOn1~ of soci.a~ intolerance, the reinvention of fonns of apartheid, even genOCIdal, pohucs :as an aspect of the pursuit of 'common' good, and justificatory praCtices of mass internatio nal ' terrorism ' often deploy to their own ends the actually existing contemporary human rights regimes valo rizing the human rights to free_ dom ofspeech and expressio n and association, conscience and rdigion, and rdated transactional human freedoms. In terms of descriptive realism, these movements present the reversal of already o utlawed regimes of do mination as causes worthy ofl oyal espousal. SOllle movements, through lhis fonn of'insurrectio nary' politics4human rights, even prcsent themselves:as making the future of human rights m ore 'secure'. Epistemic egalitarianism would counsel recognitio n of such SOCial movements as human rights movements because analytically, 'there arc no "bad- and "good" movements' but only 'symptoms of our SOCieties'. What follows? As I read (and hopefully wrongly) Manuel Castells' further insistence on bidding adieu to a 'predetermined directionality' renders o ur commo n understanding of human rights movements as social movements as merely the comingent necessities of our times; the~r attempts to advance human futures may not be defined in terms of Universal human rights of all human beings everywhere, if only because all teleology stands bdied by 'history'. The passio n for human right;>, 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.
218 The Future

or Human

Rights

that tap these markets also Sttk to generate n-sources :lddiuon:llly throUgh priv;1tc IndlVidu:ll or citizen contributions. HUllun rights markets thus comprise :I senes of tr.Ulsactions across a range of economic actors that pursue competition withm a fnmcwork of collaboration . Tim sigmfies:lt least that both typeS of economic actors .seek to shape the mutual Competing agenda. or pursue the sum total of human rights goods and services thus produced. circulated, and 'consumed'. But this process of social production raises many problems which actors in human rights markets have to necessarily negoti:ltc, giving rise, in tum, to what Illay be named as hUlmn rights market ntionality. Across time and place, there :Irises the fonnidable question of the social reproduction of human rights market actors. Some human rights markets remain threatened with extinction , as, for example, those directed at the preserv:ltlon of the innumerable indigenous peoples/groups that :lfe f:lst losing their capacity for social reproduction. In contraSt, some other human rights markets, as :llready noted, burgeon-and even implode-with resources :lnd nows of investment. These decree the patterns of the ftllllre surviV3l of the :II most al ready lost hum:ln rights C:luses and agend:l. Non-governmental economic :lctors, and ab"Cncies that fund--or resource 111 other allied manner-human rights NGOs (c:lll these 'investors') relluin embedded In cultural traditions of philanthropy. These :Ire socu.lly reproduced (reasons of space :lnd competence forbid a full exploration here) more readily in the North rather th:ln the South. The now of South-South resources for promotion and protecoon of human rights rem:lins minuscul~ comp:lred with the flow of Nonh-South resourccs. The issue ofsocial reproduction ofinvcstors is important for the future of human rights for:lt least twO rellSOllS. First, in terms of the net now of influe nce, the combined :lnd uneven distribution of investors cre:ltes difficult, at times, intractable problems for the South recipients in terms of aUtonomy, account:lbi li ty, and national legitimacy: South governments find it rel:ltiveiy e:lSY to come down hard on fragile NGOs in the title of regul:ltion of foreign funding, even when their own national budgets remain he:lVlly dependent on this very source. Second, most North Investors rem:li n ti~d to the North corporate philanthropy. ThiS feature often sets the bounds of the do-able in so far as one strategic obJcctlve of the NGO movement is to comh:lt human wrongs perpetuated and perpetrated by global c:lpiul. The invisible hand does not qui£(= rClgn . But It does rule. Moreover the forms of market rationality st:lnd often enough repro-duced :It the ~ob:lllevds, especially of the U nited N:ltlons system. Since

Human Rights Movements and Iluman Rights Markr:ts

219

the 1980s, the production of imernational :lgend:l for human rights is creasillgly muked by a dominant concern to nuke the 'dvil society' a I~ual partner, whether through the idiom of'sustalnable development'. ~glolnl govern:lnce', or 'good governance'. The vanous UllIted Nations wei:l l summits (at Copenhagen on Soci:ll Development, at BelJlIlg on \\bffi('n's' Rights as Iluman Rights, :It C:llro on Population, Ist:lnbul on Hablt:lt, :It Rome on the Right to Food, as well as the UNOP initiuive at 'mainstreaming' human rights) stress the notion thu corporations and other economic entities ought to remain equal p:lrtners to human rights IUlization. Given the exigencies of the Umted N:ltions budget, the call to corporations, especially global corporations, to assume th is role is understandable. At the same time, this m:lrks a process of what I have elsewhere named as the privolizotum of tile Uni,ed Natiolls. This tendency is likely to grow, not diminish in the first h:llf of the twcmy-first century. To a heavy extent, then, the NGO movement, too, remains exposed to the new grammar of market rationality. The very production of human rights goods and services now ent:lils new, often onerous, patterns of social cooperation (working together) between the efficient causes of human :lnd hllm:lll rights viol:ltion and progressive social human rights movements th:lt still must, persuade the vioinors, 10 cost-efficient ways. to reduce the nllturt and scope of viol:llioll. In the process, some degree ofcommo
.,

P1c:rrc Bourdleu ( 1993) 74-H2.

220 The

Futu~

of Human Rights

Hunull RIghts MOIremems and Iluman Rights M3rkc:ts 221

transactions. Iluman rights nu.rkets. thus, begm to assume and share the salicnt fcatUres of global st'rvi(t' judustria. Of course. the use: of terms like 'market' and 'collumxhficauoll' may cause: dccp offcnce to human rights practitioners. And the analogy with markets may turn out, on closer analysis, not to be tOO ~trong. Further, we ought to distinguish ~tw« n discourse of social movement and the "'social processe:s" with w hich they are associated: for example, globahza. rion, infonnationalization, the crisis of reprcsentational democracy, and the dominance of symbolic politics in the space of media'.46 From this standpoim (and quite rightly so) 'movements' stand analytically diStill. guishable from 'm arkets'. A reductionist analysis, which disregards thc relative autonomy of movemcnts from markets, docs not advance clarity o r conviction. At the same time, the idiom of the m arket bnngs more sharply to view the complexity and conmdiction of human nghts move· ments, perhaps even more vividly than the alternative symbols of economic coordination such as 'netwOrks' or 'associational governance'. While these images, no doubt, cnhance our understanding of social cooperation beyond the metaphor that 'market' may ever bring home to us there is somc merIt in resorullg at lcast to the notio ll of a 'qllasimarket'.47

VI. The Investor and Consumer Markets in H uman Rights Iluman rights movements at all levels (global, regtonal, supranational, national and local) tend to become capital-intensive. The praxis of protecting and promoting human rightS, as already noted, entails entrcpre* ncurship in raising m aterial resources, including funding, from a whole variety of governmental, intergovernmental, imernational, and philan* thropic sources. These: sources are organizcd in te rms of management imperatives, both of line-management and upward accountability. Any human rights NGO or NG I (non-governmental individual) currently involved ill programmes for the celebration of the golden jubilee of the UDHR surely knows this! Further. protection and promotion ofhulli an righ ts requircs emcrprisc that entails acccss to organized networks of support. consumcr loyalty, and effiClcnt internal management. manage· ment of mass media and pubhc relations, and cardul craftlllw'recn,(ung of the mandates, missions, and mcthods. A full analysis ofthesc v.. nablcs 46 Castell~ (1996) 7(). 47

Gary S. 8e<:kcr (1964. 1981).

will UIIC0I1SCIOIUbly burden this work. However, it needs to be acknowl-

edgctl th..t NGOs competc jlll« it for scarcc resources; SO do the funding 'F nClcs. T IllS scramble for resources gencrates complex coli:lborauve and contllcted patterns III which both the NGOs and the dOllors collaborallvtly produce forms of IIlvestor rationality. This form of rauonah:r may be grnerally described as seeki ng tangible returns on Investment. It has to negou ..te the Scylla of mobilization of support for govemment;al and corporate conscience money and community contributions and the CharybdiS of their legi timation through forms of host soc ie ties and govcrnmcntal regulation. This negotiation, in turn, requires marshalUng. 0 11 both sides, of high entrepreneurial talent suffused with a whole range of negotiating endowments. Understand.. bly, invotor rationality m human rights markets is constantly exposed to a cnsls of nervollS ntioIulity. [)onor 'rationality' re-mains crisis ridden in tenns of the dialectics of short-term investment that somehow must also servc its long-term expe_ dient ~Is. Recipicnt rationality likewise: needs to combme/recombine ~nsoft'xistcnti a l functiollal auto nomy with the logic of the imperative oJ continual IIlve~unel1l. Both the inputs and OutpUts III the portfo lio I:I\Inlment 111 hUllIan rights protection and promotion remain indetcrmiDate; ncvertheless, these havc to be Icdgered, packaged, sold . and purC'hasnI. on the most 'prooucuve' tcnns. !he crisis of nervous rationality stands replicated in consumer ra tioDIlity. Hum.. n rights NGOs, especially in the Third World, have to OCSOtute the dilemmas of legitimacy and autonomy. The cver so precarious Icganuacy of human .rights networks seems fo rever threatened by aUqpho ns offofelgn funding orchestrated both by national governments and by nval NGO formations, which want to do better than their rivals ~rc cxists t .. . _' 00, competition to capture the bencficiarv ....oups who rneuur I ' r ., ~ • e egltlmacy 0 hunu.n rights netwOrks not ill terms of any 'l"'::1r<>n cult or mess " . I"Ity but .In terms of herc-and-now accomplisl1--0· . lalllC ratlona rnm~ or results. _ IUdthe same time, NGOs seck a free enterprise market relativc to the ;l of their sc ' " ' ml-autono mo us IlUman fights concerns. They seck to !he their global . rod . . -....._ servICe p uctlon markets for nghts promotion and r'""-'Ctlon !lot mer I . r 1 1 ~ . e y III term s 0 w la[ llc m .. rkcts of human n ghts ~h
...... ..t.~lelll WIll bear at ally gIVen moment but also III tcmu of how tJlese: ---lICbmayhere-onentated III ternu 0 f consumcr-power. Thc bal"U:l.lIling ~ ltlC5 and t . f . .~ s f3tegaes, 0 COurse:, vary, dependmg o n variatio ns in the

r.a...._

.~, D~v'd GlilLes (1996); Kal
222

The Future of I lunt:.J.n Rights

typf=S ofNGOS . . dientele. This is not a theme that I can pursue III

H u mlln Rights Movem('nts lmd J lumln Rights Markets

any detail

9

here.·

VII. Techn iques of Commodification of Human Suffering The raw material for Investment and consumer human rights markets is provided by the acts of global rep~lltation of the here . . and-now human misery and suffering. Howsoever morally deplonble, it is a social fact that the ovenll human capacity to develop a fe Uowship of hum all suffermg is indeed awesomely limited. It is .a s.aliellt, and s.addening, f.act about contemporary human sin.ation that individual and associational life-projects of m.any who pr.aetice human righ ts activism are rarely disturbed, let alone even displaced, by the reality of human suffering or the spectacle of human sufferi ng and hum.an suffe ring .as a spectacle. In such a milieu, human rights markets, no matter whether investor or consumer driven, stand confronted with the problem of compassion fatigue. This is a 11101'21 problem, to be sure; but it is also.a material problem. Of necessity, markets fo r hu man rights concentrate on representation of human/soci.a I suffenng .9 11(W.'tycr. my qu.~ner ttntury-plus engagement WIth hunun ngtns xltv"m In I nd l~, ~"d dscwhere, 5Uggnts the folloWUlg. First. f1edglmg NCOs th~t c~n only nnltt;

very modcst ~uronomy demands present alkrn~te, lind lit tllnes effeclt~ , marketS (lit mve5Utxnf; mdeed, IlQt merely the (undmg agenClCS go shoppmg, as It "''ere. for $och NGOs bUt also labour to produce them! Second. nation.lll netwOrks of NGOs ~In to oomnund grt~ter lIUtonomy-cnluncmg mfluence t}un others. Tlurd. ex h renev...1 of tt'SOurc::mg produccs opponumucs for slgnlfKant bargammg. cspcculty when the d ient NGO tus dth ..'tJed some Impn:sslVe results. Founh. shifts in lI1VC5tmClIt poliCY occumng lit gIot».l CItlCS hexlqlUrtcr5 of interrutlOlul donor lIg'trKlCS orten S1(;Jllficandy euh,uloCe scope for NCO bargammg. ThC!iC seasmul shifts m fundmg prtontttS ~Jmost self-sdeet eligible NCO constituencies. Post-United Natlorn Bc\lmg Conference led, (or e:omple. to massive shift of resourccs to progr:unmcs of women'~ nghts lIS human nghts, thus erubhng women's movements greater autonomy barg;ull.m g lIC«:S5. Fifth. bargaUllng strateglcs play out differently dtpending on 'ownership of NGOs; thus CIVil servants who instituk devcJopmelit NGOs upon supcnnnu,lUOU comnund gn:,lte r influence III te-mls of autonomous ~gello:b-senmg. So do NGOs who may m,lrstul ullpreSSlVt names of els '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,

",." 5c<:, Castclls (1996) at 68-109. 5c<:, Upendra Ilvt!, 1988. 2000, SatyaranJali P.

SatlM:.

226 The

FuIU~

H Ull1lln Rights M~men[S and Hunun RIghts Markets

of Human RightS

A sc=venth :m d, for the present purposes, final technique is that ofglobal direct action against imminent or actual violation o f human rights. Apart from the spectacular CX2mpleofGr~npeace. this techniqlle IS not consid. erW sustainable by the leading global and regio nal NGOs. Nor to be ignored, III till S context. are recourses to direct action by the Argt-mmean mothers against "disappearances' or of the British women's 1110Velllcnts (Grcenham Colllmons) ag:linst the siteS of ciVlhan or Illlhtary nuclear opC:rations. The ami·globahz.auon or global justice movements remain ambivalentconcemingjustificlion and modality ofdirect :Iction. At the end of the day, however, the do minant market cost-benefit rationality does not legitimize such recourse todi rectaction in the d ramamrgyofhuman rights. The point of this illustrative listing is to suggeSt the variety and com. plexity of h uman rights market initiatives, w hich entail high quotients of 1l1a n:l~rial and en trepreneurial talent and the ability to boost market or investor confidence in h uman righ ts ventures, as well as to withstand the ' bust and boom' cycles of market reproduction of human rights. It is also partly my intention (that I furt he r pursue in Chapter 8) to suggest th:1.t the 'science' ofnsk-analysis and risk-management is as relevant to the markets of promotio n and protection of human rights as it is to those of perpetration of Vlolallo n. It is true that as human sufTenng Intensifies, markets for human fightS also tend to grow. BlIt to say this does no t entail any ethic;al Judgement concermng commochfication o f human suffering. The reader may fec i justified In t~ating some anguished sub-textS in thiS chapter as W3rranung a wholesale mo ral critique of human rights markets. I lo~r, the futll~ of human rights praxis is, .as alW3YS, linked with the success o r failure of human rights m issions with their latent or patent cpability to scandalize the conscience ofhumanlcind. The modes ofscandalization will, ofcourse, remain contested sites, among the communities of the viobtors and ~ violated . The task for those who find commodification of human suffertng unconscionable lies in contestation ofways of this accomplishment, and not in lamenting the global fact of the very existence of hum.an righ ts markets.

VII I. T he Problems of Market Regulation

r

State regulation of human rights markets is fraught with C01I1 PIc"itieS When may it be said to be invasive of human rights? How far should, I . ' of the o r modes 0 f operation. I at all , stateS regulate thc very exlstcnce NGOs? Should the certificatory regime of accreditation o f NCOs In t I.e iS United Nations system be liberal o r conservative? How and by whOlll tllis process to be detennined?

227

RegU btion of human rights movements o ften posesdifferem problems

than the regulation of human fights markets. When social and human

ntthlS movements do not aspire [Q become fully-fledgc=d SOCial orgamzaaons, they escape altogether the conventional state regulatory reach. When ~ go m nstLltional, conventlon.al models o f State regulatlon re mam mapt. ProteSt movements of COUr5C remain subject to the rOUlIllised gov_ enunce forms captured in tennsof minimalist 'law and order' compliance. When such movements acquire the visage: of alternate legahty, and even alternate govemmentality, both apperceived as threatening state o r regime secunty, systemic repression begins 10 define the conceptions of 'good governance' that deV3tCS collective human security over human rights orinued fonns of state conduct. It is unnecessary to dutter this text with specific examples of suchlike occurrences, our present concern being 'regulatio n' as at least normatively distinct from 'repression.' Nor may we pursue here (beyond what has been already said in C hapter 3) the quest tOr advantages that guide conscious choices that impel movements to lI$ume fonns of socia l organization. These choices remai n formatted by a number of'ul11brella' legislations dwconstltute and govern associatio nal activities everywhere. Some typical . . . .bve fo nnats h.ave now become ncar- Universal. State recognition, IIIppOrt. regulatio n, and control occur through the proviSio n of forms th.at 1egaamate' associallom.l activities must chose from . These are: registered ~I($, cooperative societies, charitable foundatlons and trusts trade Imkln!. firms and companies. On the surface, the law and regulatidn here ~ presented as facilitating choice for 'no n-govemmcntal'/civilsociety actIOn and I[ remains generally true that NGOs chose one o r the other bm, ;altho ugh my research d oes not extend to understanding why NGOs PftiC'r some fannats of assocutional actiVity over others. For CXllllple it easy to u nderstand why very few South NGOs form themcl.seves • companies o r pannership, even propnetary, finns. . BUI each associational fonn , while conforming WIth the 'system ' also oawl • tancouslyempowers and enables state bureaucracy (and police power) ~ an O lympic obstacle course for the NGOs, evCIl III their faunal mo me nts, such as the very naming of an associational activity.56

.-

.

~

(I\op~us. when S. Da.sgupa and I sought to re8JMe r an aSMClauon a

iled the PIDIT

~. h\$t!tutc III Development and l h unmg) 111 1975-thc perIod of lll1crnal ~ncy where all CIVil Tlghu wcre suspe nded, th e Rqpstrar of SocIC!I" l!Iiually ~ to the name o n the ~PCCIOUS grou nd that 'dL"Wlopmcl1l' and ' traming' conS. a Ionan cnunen! sphere of sUle actIOn. not perml5Slhk to an NGOI Sex-workcrs . . the R tlthc III Indta wert" delllcd assocuOolla t n ghts as trade 111ll011S on the ground I't'

<'X1stcd

no 'cmploycr-c mployce' relationshIp!

228

Iluman Rights M~me:nts and Human RIghtS Maru.s

The Future of I-Ium:m Rights

The patterns of admimstr.uivc surveillance vary wuh COilch associ;?Ollorul fonn. But a common thrcOild runs through 0111 these: subjection to slone recognition and rcgulOiltlon is the cost that social, and human rights movements, must incur to exist and operate withll1 zones of differentially constituted legalities. T hose w ho chose to operate hmn:Ul rtghts markets all to eagerly embrace these entrepreneurial crn:;ts. These: lI1c1ude: appropriate forms of legal instrumelll20hties of registration With admmis_ trativc bureaus, conformity with requirements of II1ternal govenunce including annual audit of accounts, submission to dIsciplinary ~rs of 'roving' enquiries into resource-raising and management under the title of the 'public Interest, and monitoring over 'unlawful activities, more often than not under the exigent sway of the interests of a governance regtme. In particular, the fecund phrase 'unlawful actl1l1Ues' expo:.es the full range of state regulatory and prosecutorial (often persew/oriaf) powers. This combination of powers inveighed somewhat rmhlessly during the Cold War and In both the supc=rpowcr regions and is now again m full play III the new fonnsofthe two 'terror' wars- the warof, and on, 'te-rror'.57 Outside these formative conteXtS of 'global civil wars',SII this quotidian regune of state regulation hinges on four axes. First. human rights markets, typically the N.GOs, should enga~ III 'non-profit' activmes. Second, foreign/overseas collaboratIOn and funding must n=main subject to prior state authorization. Third, and by the same: token, fo reign foundatlonslagencies must remain accountable to a strict regime of governl11ental oversight and control. Fourth. NCO entn=prcncurs and agencies may not engage III 'pol itical' activities. Each of these: requirements/entailments furnishes siteS of governance as wdl as of resistance:. The requirement of non~llgagement with profit making activities remains problematic in so far as it may eXlCnd to what Pierre Bourdieu named as 'symbolic opital.' Put another way, hum:m rights markets also u"2ode political power, leverage, and 1Il0uence, not c.s.ly amenable to the regimes of non-repressive regulatiOlvprohibUl.on. The second requirement blithc:ly ignores the power of both transnanonal ade . . g, cl>< vocacy nerworks and of the foundations supported, and o[ten sc:rvlCIll governmental ends, or those of the strategic industries th:l! ~hapc th~~ ends of the North societies, T he third re:quirement obViously plots lC grapil of asymmetrical power relations between the donor agenCies (all t~ often legitimated by the now heavily privatized United Nations systelll ~1 Sec me nUlCnll, C:!ltd In IWa (2005). sa 5«. Agamtxn (2005) J.

229

and the fragile, and even combustible, South soverc-igntles. The fourth entailment remains roughly hewn if only bcOllse 'polttlCS' rC!ruIllS a contested category always and everywhere! More rominc:ly, in the 'democratic' South, state regulation assumes the form of 1Ils istence that the requirement that NGOs Illay not engage 111 'political ' action. This mystifying 'necessity' produces regtme styles of human rights movements and market regulation signify a dmx:t product of patterns of 'mediocre Iiberahsm' (to evoke RanaJit Guha's favourite phrase characterizing postcOloniailndWJ historiography.) The postcolonial, 'overdeveloped' state apparatus revels in tormenting NGOs for indulging In 'political' activity, as If mobilization of mass or popular action can C'Vt'r be tlpo/itiltl/! Overall, and in complete plain words, NCOs remain more accounuble to South governments than these governments themselves may ever fully n=main accounuble to the electorate! A simple, ytt powerful, message thus emanating from the fields of resistance conSntuted bodl by human rights movements, and markets, continually remgages the very constitution of 'politio.' The legtslatlvely installed drfinitions of that which constitute 'politics' also, by the same token, c:orntltute a fie:ld of reS I~ta nce concerning the legmmacy of the right 110 assocIate and organize under the historic conJullctun=s where particularly constitutional emergency rule o r constitutional dlcutOrship proclamations often become a defilUngcharacteristic of national 'Illtegntion' and 'development,,59 Then,: are, however, no ready at hand ways to descrtbe the regimes of ~latory oversight and controls, especially a.cross the 'democratic' and "iUI~ral'. South regimes. In single party 'democracies (so varied as Uganda, Cuba, Vietnam, North Korea, and China, for example) state regulation ohm enough assumes a visage of prohibition of both human rights ~ments and markets. The regulatory reach here extends beyond the ~~, as conventionally understood, to 'social organizations' as such that reaten the security of the regime. The prohibitory regtmes arc cruelly real enough; at the same time, the lenth Wonder of the World (as prese-ntly con~Ututed) conSIsts in the extraordinary resilience of human rights ftlOvemen t!Vmarkets.

•

~IoA.t th(' l('vel of lugh theory. 1m: ntlOnale of COnSt1!ullonal dICtatorship was COrbo pet! VI~ Ihe d. IlIIellOIl berw«:Il' eOlllllllSS;?orlai dletltorsillp' (~form [n which the dan.~~II\~", IS iuspc:ndcd III order !O ~ llliUTC Its mol"(: assured fulUrt') and 'JOVcTClgn ....,., f, p (a form III which conditions arc CTCltcd, outside: th(' ('xuung fnme. dnocnor the IlIJpos[UOO of new corutnuuon altogt'ther.) GlOflPO Agamlx-n (2005) Id.rultt.~n ('lItirc monograph to a ('nuqu(' of ttllS dlstmcoon as fonnuul(:d by Carl

H urnan Rights Movements and Human Rights Marlttts

230 The futUre of Human Rights

To take but just one e;ample, in the People's Republic of China, where the Ministry ofC ivil Affairs, records the number of the officially registered NGOs as 283.000, the 'real ' number is about three Imllion, according to the investigations carned o ut by Tsinghua University's NCO Re~arch Center. Tills poses the problem of reahstic regulation of the NCO markcl/ movement' while at the same time providing a kind of obituary for the SUtc regulatory reach. The current 1998 manageme nt regulation on registTation of SOCial organizations. a category to which NGOs belong, prescribes a 'dual-manageme nt system' that ' required NGOs to also ... register with a relevant industry watchdog'; any failure to do this, resulted in the lack of official registTation. inviting somewhat nuhless st.ate/parry repression. But, as it turned. out, the very immensity of NGO enterprises led to a situation where there existed no corresponding bureau or ministry! T he regulatory/ repressive regimes arc here mixed, even mixed-up! For example. 'founded in 1995, Global Village of Beijing has not been officially registered as a fu ll-fledged NGO because it could nOt find an industry watchdog with which it could be registered'. Even so, 'such an identity meant that the Village couldn't get the 'preferential tax tre.tment [rom the government.' The Village, was finally regtstered under the !Ume of. 'school, as • pnv,ue non-cntcrpri~ entity 111 2004, .n Identity still lacking the full sums of an NCO In that It cannot exp:l.1ld Its membership.' Wlllie the calls [or the .bolltion of the 'dual membership system ' are unlikely to be heeded in any amendatory rqp ~ne, now under way, the smws III the wind suggeSt at least the followmg. according to the draft 2005 revision. First, the 'dev~lopment. of NGOs IS to be incorporated into the country's overall SOCial planmng. Second, 'prefercnti.1 policies such as taxation, favourable government purchaslllg policy and others will be extended. to NGOs.' Third, the 'SignS are emerging' for greater autonomy for grass-roots NGOs; perhaps, on the way out is the requirement that 'regional NGOs must have. 30,000 yuan (USS3.6t4) in activity fund s before they can be registered. At the same time. the proposed regulation seeks to remove the lacunae concerning the lack of regulation of about 3000 to 6000 overseas NGOs because many foreign NCOs 'who have already entered and opcntcd 111 the . d ... un dcr govcrncountry who operate, though not ,lonn aII y ' fCglstere ment acquiescence.' Although 'small in number' these remain 'financially powerful .nd have impressive activity capacity and thus wield huge influence in society.' Fourth, according to the new proposed regu!:l.uOll, the reglstr.atio n of foreign NCOs, like the 'dom estic o nes, ~tllI h~;: observe the dual-management system , which means those foreign N

231

will have the same problem as domestic o nes when registering them,.,

se Iv<S •

I Cite the above .s a leading example of the dialectic character of state ~Iaoon of human rights movements and markets, sittuuons in which state repression is percdved increasingly as .n inefficient response to

NGO conduct, especially when the indigenous movement proliferate ;and tr.msn.tional human rights advocacy networks find new arcs of glo~ 1 influence and impact. Constantly, the glo~lizcd sute fonns, and fom lats, sttlll to need innovatory regu latory regimes thu combine the elements of regulation with repression. To say this is not to altogether deny the multiple functions of clai ms of state sovereignty. 'Dcsubi liZ2tion' of South governance regimes is seen to be, and often is, the privileged fu nction and role of some foreign fund ing auspices. And this is as true of the Cold War as of the post-Cold War pr;actices of pursuit of human rights :IS an aspect of foreign, and global economic, policies pursued by the North hegemonic states. When this sentiment is wh.ipped into paranoiac govem ancc/regimc styles, 'regulation' becomes . pattt!m of persecution and engine of governmental confonlliry. In the proccss, a vital truth is lost to national experience ofstate forntation: hwnan rights praxis remains always COllftxt-sl11ashing, as Roberto Unger ~ about the p~radigJn;atic ~har.acteristic of.lI human rights; these being lDSulTCCtlo nary mterrog:uones of here-and- now fonnative contexts thu etltn:nch the power of the few as the destiny of millions. StalC-centnc analyses of the problem of regulation of human rights IIW'kcts take as the sole point of departure the control over the investor~ mYTi~ fonns of channeling and controlling human rights agenda m' tr,msarnons. At the end of the day, al l this merely genentcs a product IX, that IS the very essence of.n audit culture (of upward accounubility and hne management). Further, the regul2ttory endeavour Invites and = 'olCs .fonns of s~te or regulatory capture, forms in which the global rs 111 human n ghu marnts constr.ain the host society md government to fa CITIUtC, and suborn to their . own str:ltegic interests and ends their cross-border markets in human rigllts protectio n :llId promotion . By me lame tokn 011\ h' . . . ....... , t IS mVl1es eonstructlOIlS of new forms of resisunce to e"'.ernance and thi . I " 'b, I ' s, IJl tIC present perspective, constitutes, as it were, the ttcr lalf of the story. The story in .a d na..... . ' nyevent, oes not cndfaurt dt mitllx wi th any preferred ...tlVeof the Unw h0 Iesome d'l I emm.s of state regulation. The o per.ators

.

1 dl:l1Ve t h

Clri...o"J 29

huang y~~

f, IS In

omlatlon from Xong He, ' Helping NGO! Develop Strength '

(:?). 20()5. Xc ;1150, generally, &lWOIrd T. Jackson, Gregory Chm and

232 The future of Human Rights of the locaVglobal human rights markets also unfo rtunatdy confro nt rdated but distinct problems in devising self-regu latory and the other_ o riented regulatory frameworks. Self- regulatory frameworks must address the:: crises of investor rationaliues, in a highly competitive scramble for resourcing. Other-directed regulatory appt02Chcs present no less com_ pkxitia. On the one hand, they aperience the need to manuam accepuble patterns of consumer solidarity in ~c global i~lvestor markets; o n the other. 'good' NGO 'business' practices contnbute, from the standpoint of ultimate beneficiaries, to a culture ?f invigilatio n .over 'bad' NGO practices manifesting corruption, co-optallon or subverSIon by the forces of global capitalism.61 If there were no pa:r group regulation of occasions of co-optation, human rights markets may have undergone substantial downturns. But the fornls of peer-group based regulatory interventions rollSC some difficult, if no t intracublelintransigent issues. When, and at what costs of production, are some NGO communities entitled t~ ~Ol;lld the a l ar~ a~ the pcrfonnance of o ther. and often , rival communities. How are bad business NGO/human rights activist practices to be defined and dcscnbro and from w haclwhosc moraVethical platforms, obviously different from those already provided by modds of state regulatory invigilation? Arc the NGO market/movement platfo nns that collaborate with internauonal finanCial institutions to achieve: some real life human rights amelioration, and prospects of redemptio n from human/social su fferin~, mo re progressively 1ust' compared with those that adopt a fUlldamen~hstlhosule sunce of no conversation with these? What supererogatory edllcs may be In play here, and with w hat o rders of justification? . ' Put another way, what standards of critical morality emb~)(h ed In human rights instruments (addressed. p~marily ,to ~':"te m0r21~ty) pr~ vide good enough grounds for 'sisterly NGO ,cnuque, urglll~ s~t action? Under what historic conjucrures, and With what probablhuesl possibilities of hi storic impact. may som e entrepreneurs of human rights movements/markets invoke the reach of the state regulatory powers/regimes that fully justify the crystallization ,of peer-group e~~::i ation of 'bad' business practices of some human n ghts NGO Illar movements? I to These imponderables aggravate the eth ical dilemmas of state regu:1 ry reach, How may the communitiesof state regulators conscientiously handle. the 61 A problem has bc:c n recently Illustrated, III the now h:applly abo n cd casc: of sed

Hangl~h Gr.lIllCCn Bank, which Initially proposed a 'deal' WIth the Monsanlo- ba ICmlllUtor seed teChnologles.

Hunu.n Rights Movements and J luman Rights MMket'l

233

and (('solve. the compctingcalls for the regulatio n of the rival human rights pWkets? In what ways may the logics, and the so-called nOrmative, Imperatives of 'deliberative democracy' gUIde us to relatIVely safe harbours of~ne and sensible state regulation of human figh ts markets and movements? And. indeed, what may the regulatorycommulllties learn from the peer group con~trUc~, and even often mandated, messages of human rights 'market failures? .Easy enough to formulate. the confl icted regimes of peer-group demands for state regulation all too often test and tease the reach, and legitimacy quo tient/deficit, of state regulatory powers, Overlll, all this also somewhat imperils the distinction that I make concerning human rights 'markets' and 'moveme nts' . All the same, l hope that I have demonstr.ued somewhat the usefulness of the market metaphor that now inexol'3bly designates the jdrologj(a{ complexity of the variegated practices of human rights activism. By the same token, it also exposes its lfIIUn'iality. which is ever present in the cross-border transactions in the symbolic capital of hUlllan rights, and the various vicissitudes of its formative contexts that stand now illustrated in the ensuing chapters.

The Emergence of an Ahernate Paradigm of Humm Rights

8 The Emergence of an Alternate Paradigm of Human Rights

l. The Paradigm Shift is perhaps best to start this chaFter with a star~ statement: t1~c paradigm of the Universal Ocdaranon of H uman Rights (UDHR) IS being steadily, but surely; being supplanted by tlIat of t~de-rclated, Illark~t· friendly human rights (fRMFHR) under the auspices of cOlltcmpor:ary glob2liution. This newpar:r.digm seeks todcmotc, ~n reverse, l,he ~lOtiOn that universa.l hUI1l21l rightS 2fe designed for the attamment ofd Lb'111ty and well-bemg of human beings and for enhancing the security and we11-bemg of socially, economically, and civiliz.ationally vulnerable people~ and COIl1munities. The emergent pandigm insists upon the promotion and ~he protection of the collective human rights of global capital, in ways wluch 'justify' corporate well-being and dignity even when it entails ~ontlnulIIg gross and flagrant violation of human rights of :r.ctually e:ostmg human beings and communities. . This formulation rai~s m.any distinctively different sets of questlons. Fint, in what ways m.ay we underst;;r;nd, and extend. the notions of paradigm and paradigm shifts to the sphere of human rights? With what Igm . Is this , after justification may we speak 0 f any human n'gh ts parad,,1 all, not 2 'false' toulity that essenrializes the n14ny colliding worlds of human rights theory and practice? S«olld does the expression 'human rights of global capital' make any sense at Does it rcify collectivclgroup/;!.ssodational human rights? Is it sensible to endow aggregations ofeconomy and technology \VIth hUll1a~ rights attributes? At best, is it not m~re accurate ,to speak I?>I(II (:::d equitable) rights, rather than ilUmaPl fights, of bUSiness assocIations multinatio nal enterprises?

I

t

;11?

0:

I See,

D~V)d Trulxk and Man: Galanter (1974)

(1995, 20(2) for some:

crc~~

and

usages of the nOOOfl.

Boua~nmr:ll de SoUSl ~lltoS

235

'fluid, how nuy we read/construct histories of human rights; in particubr ~ need to ask when 'human rights' were not trade-related and marketfri~ ndly? Does the so-called 'paradigm shift' merely suggest vanauons on them c Of a radinl breakldepanure? Put 2110ther way, how best nlay we ~ribe trends, processes, forces, and agencies ofcontemporary economic gJobali Z2 tion as consututing a radical dISCOIltUlUity? Fourth. w h2t criteria best define the categories 'trade-related ' and 'market_fricnd ly'? In other words, how arc the contents of such nghts to be read and derived? Arc these to be dCrlved from de f2CtO cbuns specific211y rnxlc on behalf of glob21 c2pit;;r;l? Or are they to be read III the prnctices ofhuman rights-oriented resist;;r;nce to such cl2ims? Fifth, what, if anything. is unethical or wrong about trade-related, market-friendly human rights? Is it not the C25C th2t the inherently h uman rights agnostic 'free m.arkcts'2 may still her2ld a rem2rk2ble furore history of emancipalOry potemial?l What conceptions of trade-related, markctfriendly human rights may, in the post-War 2nd post-Cold-War global economic development (in itself an analytic well beyond the scope of the present work),~ aniculate challenges to the very future of h uman rights? The epistemo logical, 2nalytical, historical, ideological, and futllre~ssing concerns lurking within these five sets of questions/thematic invite a full y-fledged pursuit. This chapler IS merely a first step in this dirrctio n, even if only as agenda-setting for funher research conversation,

II. Globalization 'GloWlization' is om: word comprising diverse re2lities, We know that the processes, and happenings lumped under this rubric are complex and contradictory and signify uneven and IIldetenninate developments. 1beories .. bout 'globalization' present (10 use a favourite phrase ofHabermas) a 'whole continent of contested conceptions', Of panicular importance is the problem of d rawing distinction between analytical and historical approaches because the teml 'globalization' is often used to refer to 'abstract conceptu.al elements which enter into concrete social relations' and 'a complex set of soci.al changes which have occurred over historical time'.s

eftnb,

, Sec,

for CX
s Sec, for exarlJple, Robe" nrcnner (1998). bon ~"tn Albrow ( 1996) n 89. A1brow offers an IIlteresttng accollnt of differentiaII h· 0 these ele mcnts of'IIIaklll8 or being lII~e glomi' (at 88-118): equally Interesnng - . : s(UIVey of ways of makmg the 'reality' of gIoWhution a 50Cial 5Ct(:ntific rts¢arch at 193--7).

The Emergence of an Alternate Pandigm of Human Rights 237

236 The Future of Human Rights

It remains necessary to map this diversity, howsoever ungentially, from the standpoint of human rights. This itself raises a complex qucstlon: What fonns ofcontemporary globalization may best be studied through a human rights lens? How may human rights theory, practice, and movement rela~ to various fonns of globalization? Th is chapter seeks to address some of the issues thus far raised .

(1) Contilluities alld DjSlontj'lUjlj~ Are contemporary globalization processes and outcomes constirutive of a massive new chapter in the never-ending story of internationalization of the sute and the economy? Or are these sui gn.ms, marking radical discontinuities? In what may we locate continuity/discontinuity? Do we, here, trace changes in forms of governance or in the fonns of resistance, or bodl? Or shou ld we prefer to tell the stories of globalization in terms of interaction between the o ld and new fonns of globalization, how are the narratives ofdle 'old' within the 'new' to be framed? Who may we say are the winners and l~rs of globalization, even if we may regard this as a non-zero sum 'ga.llle'~ Which sorts of human being stand subjected to ever-new fonns and estates of human rightlessness in the processes of globalization? What responsibilities of jidllcitJry thought are owed to dIe present and future generations ofrighdess peoples in the way we choose to tell stories concerning globalization? Narratives of globaliz,ation as a world historical process do not always provide a safe, or sure, guide for historians of human rights. The processes of globalization have been at work for centuries7 and thus the 'temporal horizon' of a few decades of the twentieth century in which human rights langttage5 have been prominent docs not offer any worthwhile, ways of understanding different globalizations. Clearly, the human rights perspective docs not seem compelling in any serious historical grasp of the three 'waves of globalization' that occurred in the thirteenth century CE with the fomlation of the Mongol Empire,'or in the sixteenth century CE. European expansion, and in the further third of the nineteenth century CE colonial domination of the non.European peoples and worlds. 9 Ilowever, some thinkers insist that at stake in the studies of globalization is the issue of relations between the state and capital, thus opening lip the possibilities of 6 Sec, In pmicul~r, Jun Chen (2002. 20(3). 7 So Imag'"~t1vdy trxed by lilly (1995), Abu-Lughod (1989). w..lIerSI(:III (1995). and Amgtll (1978, 1994.2000). • Abu-Lughod {1989}. 9 Tilly (1995).

bn ging human rights back in the study of the fommive contexts of ~IiZ1rion. At leISt, twO major developments occur in the third 'wlIIve' of 10bahUUOIl: the ascendancy of the transnational corporations as the ha~i!lgcrs of colonization and the struggle over the rights of the working lasses. The q uestion ofinterpretation of the relations between the state and ~e transnational corporations invites twO responses. First, typical relations tam duracteristic continuity; second, that these vastly changr. Immanuel ~lIerstein insists that 'transnational corporations are malllClining today dle Jllmt' srTUcwrtll statile vis·a-vis 'M stak tIS did aU ,heirglobol pm1«won'IO On the other hand , Giovanni Arrighi notices a fundamental changes in the way m which the 'number and variety of multinational corporations' procttd to constitute the disempowcrment of the \VCstem state formations; the mul unt novelty dwells in the 'Thatcher Regan type response' that uses ... ... a hlmlQd state to ddhte the social power of the First World workers and Third peoples in an attempt to regain the confidence and support of an increas~ mgly tr.lIlsnationalized lnd volatile capita1. l !

~id

The 'offensive against workers rights', and the human rights of die Third W>rld peoples provides, 1 believe, a ustful way of dcscribing the fragth ty of human rights in narratives of globalization, whether o ld, new, or interactive. Perhaps, and after all, the continuity/discontinuity theses ~\t that different forms of globalization provide distinctive histories oI'human rights. Thus, the two cenruries long history of colonization and amperialism (constituting G lobalization t or Gl) develop a 'modcrn' human rights paradigm (Chapter 2). The second phase (which I describe as G2) h ~ a relatively short historic she1flife; it marks the period animated by visions ofan emcrgent post.\Vestphalian internationallaw/orde r, w hich subverts formative antecedent histories of globalized racism through the unique invention of the right to self-detennination and struggles against apartheid everywhere. 12 What is now known as the 'Global South' was, thus, bom amidst visions of a new world order, constantly articulated by 'non-aligned', 'Third \\brld', G-77 platforms within the United Nations, which itself emerges as a 'weapon of the weak'. The UDII R, and its majestic unfoldi ng, even during the horrors of the Cold War, launched ~ astonish ingJUrisgencrative era of South-based renewal of international w that gave rise to, and sustained, the contemporary human rights

"

Paul Wallo;orstem (1995) 24-5 (o;offiphasis added). Sec. also, thollgh 111 a dlffen;:nt v-cin. ItH1TSt and Grah~ll)t Thomp5Ofl (1996),John Bnnhwall(: and Peter Drahos (2000). t2 Arnghl (2000) at 12. Includmg. of course.. South Afnca and the Umted StateS.

238

Thc Future of HumJn RightS

p2radigm. ll l-luman rights nontts and standards now began to be incrtasinglyaddrcssed in this period to civil society [onnations as well. l • Hunlan rights~~ apprC»lches to understanding pre~ . and contemporary, histories of globalization problematize these differently than much av;ulablc literature so far suggeSts. 15 The third phase, under which we aU livc.. is bc=sl described b COlltelll~ porary economic globalization (G3). However, economic globalrzauon IS a process that assumes different meanings depending on 'what sorts of economic relations ue at issue' .16 The all too frequent generalized description ofG3 as a series ofintensification ofcross-bordcr/trans-frontler transactions, nows, and movements of peoples, ideas, images, technoscienufic process, products, and praCtices infonttation, and biotechnologies), inter_ national finance networks, global commodity chains, goods and services, popular cultures, and transnational advocacy networks (including various fonns of politics oj, andJor, human rights) provides a broad enough picture but does not enable us to identify [he pertinent forces of production and economic relations at stake. R:ather, within this picture. we need to etch out 'Snl21ler glob2liz2tions' that 'reinforce' the processes as well as clash with e:ach otiu:r.n Concern with 'sm:aller globalizatiollS' has led some human rights theoristli to distinguish between 'transactional' and 'regulatory' glob21ization that simultaneously hold promise as well as Imperil the fUUire of hum:an rights. IS Increasingly. salient fomlS of human rights J} ThIs was an en of enmw;:uuon of the (Worted) New World Informauon Onkr, the New InternlluonJI Ec:ononuc Order, mc UmlCd NUKms Decl.lntlOn on Socw Ptogrns. and the: D«1u:lIUon concrmmg Sclcnafic and T«hnolOSIcal r>«bnuon If1 the Imctc:St of ~l1cr and fOf the Hendit of Mllnkmd. I dncnbed thIS pcnod m tcmu of'gIoIWism'; sec, Uperxln U;lX1 (1994.37-46) as mllrbng a momem of concrct.e cthical uniw:r.wlism: for thiS notIon see, "Ibrow M. ;md E. King (cds) (1990). ~ 111so &bknshnm R.t.j2gUpal (2003). \4 For example: The lbkyo D«bmion, 1971. otddres5C$ medu;aJ professlollS In deJhng with tonure, cruel, degndmg.:rnd inhumm punishment, the Gencnl Assembly proclaUllS the Code of Media.l EthICS (1982); the United Nanons Cotmnlllee on emile Prevention and Treatment of Offenden; continues to concrellze asSlul1 on micro viol.ations of hunun rights standards and nonns in total Instuuoons and even CIlUJlClllte$ a Code of Conduct for Law Enforcement OfIici;r,I~, Lawyers, and Judges. U St.-c: Ronald Robertson (1992); Paul llirst and Grahame Thompson (1996); Winfried Ituigrock. and I~ob van Tulder (1995), and for a viSIon of rcgll bl1on/

're-regulauon', see John BrallhWlI«: and ~ter Dnhos (2QOO). 16 Anthony \lbodIWlSI (1m) 211. 17 Alex V. SeIU (1997). Sciu's pnneipal focus IS. OOwcvt'r. on va lue convcrgellee arismg out of pohucal, tcchnolOS'Cl-I, and economIC elements. 18 Sec,espccully. GareLll (1999). 'Tnru.actlOnal gklmllutJOn' refen to tfJnsboundary flows of f1iCtQrS of prodllCtkm 'such thai they come 10 resemble In opcranon a 51l1g1e

The Emergence of an Alternate: Paradigm of Hum~n Rights

239

movement critique the hUlmn rights-viol2tive potential of these fonns of Bfobaliza oon . Idc:OlogJcally, G3 celebrates a world without alu:rnauves to global caPItalism 2ud associated transfonniluons in sute sovereignty. Thus, the ~1I_ lalown dleses of FranCIS FukuY2ma celebrate: nOt JUSt the end of the Cold W2r but the end of human history as well; the endlllg slgrufies the teml lUUS of'lll2nkind's ideological evolution' and precludes any alterIl2tive to 'the universaliz.ation of Western democracy as the fin21 form of hunu n government' .1?This 'inverse millenarianlSm,20 eme~ now in the paradigmatic form of 'liber:"1 mi~lenarianis.m' in co~t~mpoT2ry theory.of inttrn;lrionill Law 2nd relatlons. 2 The various spcClliilsms of endologtes celebrating the 'end' of everything (sec 'Endologics' section (4) below) enabk and empower at the same time the beginning of the paT2digm of trade-related, m;rrket-friendly human rights. The alleged lack of alternatives docs not preclude wide-ranging talk concerning better, fa irer, or humane globalization. Thus we hear about poiulization with a human face, or 11lI11l2n rights-oriemed globalization, 'IociaIist globalization', 'green glob2Iization', ' feminized globalization', 2nd even 'globaliution from below' or 'grass roots globalization,.n Within IIobabz.atton hberal millenarian ism is understood at least III thrcc distinct ways. Fint, the newly emergent globalizing 'middle class' (erasing North! South divide) produces a 'consumer capitalist ideology', outside which tilt queSt for systemic alternatives nuy nOt rn2ke any historic scnse.Z3 A DCttSSary COnsequence follows: human rigiltS, and social action movements may amdioT'2te the harshness of G3 but only within the gcneT'21 anp:ratives of this ideology. PUt another way; human rights production, aaarkn sp:mnmg the globe'; 'regulatory gIobahulion' 'emphasl:teS a qualiurive clunge ~tLlIturc of our regulatIOn of markets' (at 366-7). See, furilier, for the many 19 of regublOty gIobahul1on, Bl'2lthwal«: and Drahos (2000). (1982 Fr.InCiS Fukuy.una (1992). Sec, also for an cqwlly cclebl'2lOry tncl,JxqUes Anah ) HOWntcr. Michac:l ll;a.rdt and Amomo Negn (2004) now offer ndial dqnr~ 10 undersundmg thIS tranSlIion. 21 As Frednek. Jameson (1995) namn tillS. 2l See Susan Mllrb (1995) for a sustlincd CTluquc. IUch Tnl.llsce nde lll. or rcvoluuon~ry, nOllons of de -globa huuon occur mfrcqucmly; Won crmqucs an: conSidered, ~t beSt, as exemphfymg pll1l0s0phical anJrChlSlll or, al ~, as pb l1l1y p~thologJc;,r1. Already, we Wltncss the revival of the lropc of 'hmatlc taIJy; ~~ the con text of alltl-globaliuuon mass prote5t 3t, and sincc, Seattle. Inciden~ l tma G~ndhi. who summoned de-Illdu$tnahutlon. collccu'¥'(: economic sclfIII as ~red COllInlUllltlrun trU.'it. cmergt:s III the present eOntext as b order of lu ninc frnlge. 5« Le5he Skblf (2001) 84-117.

arc:·:roperty a

240

The:

Future of 1·luman Rights

distribution, and consumption have a limited, or no, fllture outside th pnctices of this ideology. even w hen these severdy critique COl1tcmpon e globalization. ry S«otld, the distinctiveness of contcmpor.uy global capu4llism lies III the development of semiotic economies of 'signs' and 'space' consmuted by practices of'rencxive accumulation'. 2" These practices v:uy25 but what they entail generally is the displacement of 'nationally based., orgallIzationally and institutionally framed social structures by globally (and locally) situated ... information and communication structures'. 26 These processes sttttl W render capitalist accumulation historically more resporuive to stakeholder human rightS-oriented demands. Corporate governance and business conduct rem.ain, overall, more accountable in terms of new forms of business ethic, whether expressed in tenns of codes of conduct, or languages of social responsibility of business, or more esoterically through the languages of human rights/sustainable development hypcrgoals and hypcrnonns (aspects that we analyse in some detail in Chapter 9). The ascendancy of anti-corporate globalization movements sUggt'sts, in the main, that activist human rightS reClexivity corresponds rather well with practices of reflexive accumulation. Reflexive globahzation no longer surely speaks the language of material contradictions 2nd class struggles because of 'the displacement of reflexivity from production to consumption,.27 Becaul>C the 'global' in itselfnow carries connotations ofcommercialization of humanity,28 resistance to it after all yields to a rcflexive discourse 2rticulated in te:nus of 'good' governance: of 'the other side of recent economic development' signified by 'ungovernable places' occupied by the new undercbsses. 29 The third dimension of post-9fl1 G3 now stands articulated in the 'global state of war', an 'active mechanism that constantly crcates and reinforces the present global order'. War 'becomes' the: gencnlmatrix for all relations of power and techniques ofdomination', a 'rrgimeojbiopouJU, ... a fonn of rule aimed not only at controlling population but as producing and 24 S«, In pmlCulu, Lash and Urry (1994). They help us undcnurond varIOUS "'-11)'$ in which, IIlcreasmgl)\ what IS produced 'are not moucnal objectS but Signs' (6) Ie~mg to 'the senllotlciuuon of ronsumpllon' (61) and, funher, to the 'dcl11QCl1IuU,tlon of reflexIVity' (63) ron which people 'arc mcrcasulgiy IOlowlcdge3blc abom JUSt how little in fact Ihey know' (II). 25 Sec, Scot! Lash and Jo hn Urry ( 1994) 60-110. 26 Lash and Urry (1994) 64. 27 Lash and Urry (1994) 57. 11 M¥tm Albrow ( 1996) at 83. l'J Scott lash and John Urry (1994) 145-70.

The Emergence of an Altemate Par.ldigm of Htumn Rights 241 reproducing ~JI as~cts of ~ial life'.lO C ultures of hUJ1121l rights now beCOme, III thiSzo(h ~c, subsemcnt to a w hole varietyoflogics and paralogia of homeland security and a 'global W2r 011 terror' which, put together, afrnost Justify altogether new forms of global preci2tory politlcs.J !

(2) Ntmatiw Strattgies

The processes of contemporary economic globalization have 2ttncted a huge amount of research 2nd writing. And the choice of narrative strategies vanes. Some present contemporary globalization as a singular narrative of the march of global capitalism or ;as new imperialism. Some lIlsist on the muJti~irect:ionality o~the globalization process; far from bemg ajuggernaul, It allows for different p2ths attainment fully deferenti21 to local culnm:s and nationa.1 ci~l iza tion traditions. Others speak not JUSt of one but of many globahzauons. Thus, one he;ars about distinct 'forms' of contemporary globalization: the 'political', 'cultural', and 'economic'. The ~rst from directs hegemonic univers;alization of the languages of aaloba l Rule 2nd Law', 'dcmocracy', and 'good' govern;ance,;a phenomenon I have named .IS globalization ofhulmn rights. But politics also stands conttlved 111 tenns of resistance to globalization; the nascent field of glob;al ecbnography of protest movement, especially anti-corporate protest, illustntrs how peoplc's movements question the foundation21 premises of contemporary globalization. The issue of what I name elsewhere as good RIlstance n:=ver emerges .as ~Il ;aspect of significOlnt agend um of 'good JO'VnTuncc.. The second lIlVltes clOM: anention to cuhunl globalization that expropnarc:: IOGII diversirylZ and the modes in which corporate gov_ emanc-e strateg!C$ result in corporatiz2tion of the right w freedom of h and expression; put bluntly commercial free speech hcre trumps ~hcr fonns of human right to the freedom of sTlN"ch expression and -.oclatlo I .. JJ r--, ofG3 In n~ OIWVlty.. The third presents more fully the slligt,tniJ ;aspects ~ thIS perspective new forces of production (digitalization, biotechJ'Orary' .. nd nuclear power) dialectically serve as Wt:U as subvert contembier h~~an rights p:1ndigm, an aspect th2t ~ more cJosdy examine III lluS chapter. h . Othcr Ramti 'lac I" ve pat s constructing G3 contcnd for the autonomy of the ;a Within th e Ilcterogenclty . 0 f the global'." Too m;aIlY assumptions

rc

~

11

~

II k

~Ch~1

IlardI and Antonio Negri (2004) 12-13.

Chapler 5.

~tnary Coombe (1998). s«--r~nlark:ably archIVed by NXlml Klein (2001, 2002). . or ex:anlple, AlJun AppadUl1l1 ( 1m, 2001, ed.): Mike "=at~rslOnc ( 1995):

242 The: FutuI'C of Human Rights

T he Emergence of an Alternate Paracilgm of Hunun Rights 243

here crowd these discursive moves. The locaVglobal distinction, whiJ imporunt, obscures their h istories. It is ofu:n enough difficult, if no~ impossible, to locate the dislirflliwiy 'local' Wlthm the 'glob;l\', given the hcavy tnffic o r commerce between these two splu:res even when (u I do) we ;ldopt the standpomt tll;lt the authorship of hUl1un rights lies scattered amongst people in resistance. :m d commumties III struggle. The local and the global co-exist and intermingle. even infinllciy so, III the multicultural, o r intercultural, production of contemporary hUm;ln rights v;llucs, no rms, ;lnd stanwrds. Neither then the resistant 'local', nor the universa.lizing 'glolul', nor furth er the hybridized 'glocal'. prOVIde any world historic redemptive clues for hum;ln rightS futures amidst m;lny paradigm shifts. Further entailed here are contestations conccrning distinct 'forms' of contemporary globalization: the 'political', 'cuhuldl', and 'economic'. Far from being 'ncat' c;ltegories, these comingle and overrun. What Ill;ly constitute the bright li nes demarcating the 'political' from the 'economic' ;lnd the 'cultural'? Wil;1t ploy of non-reductive understanding may enable us to grasp both the relative ;lutonomy and interconnectedness of the three domains?

(3) Dillf'r'li/ies Contentio n is also nfe concerning the ways o f privileging the na rldtivcs of globali:a,tion. I low may wt: narnte stories about g1obahution as the march of global capital~S How may th~ nalT3tivcS take account of 'dlffe-re nt tnjecto ries of capitalist development, 'v.lrious social systems of production' and the problems of dleir internal 'coh erence', and of 'the ideal mix o f institutio n;ll arrangements for economic ;lCtOrs for each broad system of production'~ Do historical and contemporary V3riations within the movement of global capital still produce discursive objects named e;ITlier by the tt nn 'capital ism'? If so, may we still present this as monolithic or invulnerable? Would it mark a triumph ofhopc over experience to regard. in autopoetic theory temlS, varieties of global capitalism Mike Featherstone, Scott Lash. and Roland Robertson (cds) (1995), Mtche1 !lura....'O)'

("'1 (2000). wlie SldalT (1995. 1999). Sec also J. L. Gihson-Gnham (1996).

)6 Tht'$C ISSUes ,und adminbly fornlub.tcd by J. Roger Ilolhngsworth and R(Jbcrt Boyer (1997) 1-48. Anthony WOOChWlSS (1998) marks an 1Il1portlllt contrtbutlon. whICh burs upon the futulY of human ngllts, by trac:tng the: differentials bct......« nf Japallese and Amem:an caplullst fonns in the MnteXt'i of pr.a<:UCd and fOflTlS 0 ·~march.ahsllls' In I'acific &Ia.

as 'sclf-dissipating structures'? What historic infe~nces may we dnw when we acknowled~ fully, with and since Karl Marx, the glolul social fact that these fonn s remain wholly crisis-ridden? Are we to narrate the new social movements (say the feminist or the ecological) o r ;ln Impressive array of antl _g1obali:u.tio n protests as ineluctable manifestations of the crises of \;Ite capitalism? Further, and at descriptive level, acuu: contentions surround globali:u.Don discoUrse concerning the politics o f naming its pnncipal agentS and forcers. Is it tOO reductionist to read in the current career of economic glot»lization the not SD invisible hand of the unique hegemon, the United Sutes?:n Or is it more aecunte to tell the stories in terms of the power blocs (in Gldmsci;ln tenninology) and their ovenll hegemonic e{fects~ Who may we identify in this frame as principal ;lgentS and forces: the G8, dx Canwn wro Conference emergent formation of G20, global and regional financial institu tions. m u ltilateral world tnde arrangements, 'multi-' o r 'trans-' national corpo rations, or ;III these in their combi ned and uneven development? Where do we place, within these grids of power, other actors and networks such as thoS(: named by the formations of stomlized 'crime· 39 and dle now increasingly distressing enactments of mass International ' terrorism'? In how many ways Illay we further read Ibe current discourse conarning 'war on terrorism' winch consti tutes ;It me same moment also a war on conternponry human rights? The ~lCament of the contemporary politics Jor hunun n ghts practices lies In the complexity of decipherment of the power blocs ill their dynamic ~ cons~n tl y unfolding relationship betwe<:n glolulized crim.inality, tncludlllg Its state-sponsored forms, and 'terrorism, .-40 Morcovc ~, ho~ may discourses on ideology, or Ideological discourses, enable us to Identify the dominam and the strVinIt ideologies in globalization narratives? T he question remains awesome in its FJ('rtinence. On the one hand, con~e.m ponry economic globalization makes legible (in tenns now ~e famlhar by Leslie Sklair) the wildfire spread of consumer/capitalist ideology o f a growing global middle class that legitimizes globalization, more or less, as a fornl of auto-colonization, th;lt is, 'colo niz;ltion without

"

l(I Mlch;l(1 Hardt and Amonio NegrI (2000) suggcn precisely tillS. SlIe\'IhSec. the complex prescnution III Michac:1I lardt and Antollio Negn (2000 20(4)' ~ ell Gill (2003). ' , MinUel Caslells (1997). No.,L~stc lls ]>I"O\'\dcs 5()me telling insunccs of oollabonuon and complicity of the "C'rn . _ .J rdatJed s SUIe fo rttUtions all" pr:lCtica III a~nas of mternauonal narcouc traffic: See.... tones abound collccnung otherwue nominally declared '1Ilicit' anns traffic. 50. Stephen Gill (2003).

*

244

The Fmu~ of Human Rights

l11e Emergence of an Alternate Pandigm of Human Righa

coloni z~rs'. On th~ o ther hand, and at the end of the dav the n . LI' . .. I' ew SOCial, an d d~- gI au;( n;atlon, mov~ment actors remam simply unintdlirt1bl ' of the very technolouies (es....~c IIe~~ Sl'de t he prod uctlve consumption ' I I I - 0 ' Y - la ylnfio nnatlo n tee 1110 <>gles) t ley also critiqu~.

(4) Elldofogits ~rh.:l.ps in resista~lce to such p~tia-s ~f n~ad ing, reflexive globalinuon theory. promotes Images of ending. which I name as mdology, ofien also assummg forms of mdold/ry and even nwomania. The end of something or the Other stands. ceaselesslr proclaimed so mllch so that everything is at an tnd save t~ e .glft~ vocatio n of the theoretical practice of rndology! I have eisewhere dlstlll gUlshed betw~en practices ofJormal, ee/ectil, and material endology. 41 The latter direct o ur attention to the end of work,42 end of the farm er43 (,facilitated' by new forms of total multinational enterprise oontrol over world food productio n),« and the e nd of nature, which now (both as biodiv~rsity and as in vitro production of nt'w forms of gent'ucally mutated orgamsms) becomes a multinational enterprise corporate resoura-:'5 This riot of'endings' marks th~ btginllillg of 'New World Order, Inc.' b.:l.cked by the risc of economic fundamentalism ." This, ;1If0 olio, e ntails the notion that not just the state :rnd the law become increasingly global capital-friendly but also an impassioned defence of itS hum:m nghts (as we note in some detail later), at times trumping thc universal human rights of indlVldual human beings and communities.

245

the double consequence; these struggles reinfo rced as well as held hope Cor tnnsccndence from profoundly exploitative capitalist formation. Marx mod, prophetically, in the last part of Gnmdrim. the much of g1ob;&l capitalism as the acceleration of a futur~ of postcolonial histoncal ume. {.tkewlsc, in the so-called post-Marxist epoch, Nobel Laureate Amanya Sen. though on a lesser dialectical register, in less complex and contradiCtory modes, is now able to pronounce the theses concenllllg d~ve1opme nt .s freedom.f1 that coequally favour both contemporary human rightS as well as the G3. Somc globalization theories/narratives rem ai n obstinately o ptimistic. Roseate in the afterglow of globalization, these seek to demonstrate that tbt contcmporary moveme nts for human rights owe a great deal to the 'globaI instilUtionalization' of human rights,4lI in ways previously unimaginabl~ even a decade or two ago. Even the globally monopolistic mass media becomes, from this viewpoint, a resource for human rights and IOCW movements for transfo rming a globalizing world. In all its de, and rr-. gcn(d)eration, the United Nations system, and its normative regional cohorts, seem (to them) to offer the beSt historical sites that somehow n:nuin.a.vai lable as disc ursive sites fo r alte rnative (even insurgent) ~I1Vlty.

I now attend briefly to the difficulties of evaluation ofG3 in two salient contexts that reconstitut~ the sutclcapiul relation; thc cnd of the n.a tionICaDe

and the reproductio n of 'sofff failed' statcs.

111. The End of the Nation-State (5) Evaluntioll Difficult ambivalences surround the modes of evaluation of human-'lIld human rights--impacts and consequences of globalization. Marx made us all familiar quite som~ time ago with the human freedom-enhancing potential of earl ier fonns of class struggles within capitalism that carried

This striking thematic of globalization remains atr~mely problematic in Itk'If and from the perspective of human rights. I do not pUr.>ue 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
...~ .. _Ron:.r.Id Robmson (1992) at 133--4, 181-2. 1am TlO( suggoestmg~re tWt ROOtruon's --lJ~u tS thu~ celebntory.

<'Om ISuffice

It

to "y for the present purposes that

3

' naUOIl-litlte' articulatCS the

_,J eJI: notton III which a trtumpham Stl te fo rlll IS nude possib le ollly by somehow

...... ...lIlg d,verse naltona . IIlles ' 11110 a smgu lar lustoTlc forlllauon. w ttlun w htch thcn emr ethnTJ;!! the UISCOUn;0e5 concern mg ' mulucultu ntlistm' and the relationship between Aaty~~. markeu, and dcfTIOC1"aq. Conccnung the latter, see the ms,gittful analysis by u:.r. 111 her 2004 Grotlu..~ Lecttlre, Amc:nc:.r.n Society of International Law and nlTnents (200Sb).

..., <.

246 The Fullin:: of Human Rights

Historically, dlis thematic raises the question: W'har btgitl1 a"d r"dJ IlIh ,-, I .. . dd resslllg . this question tt. · tht ,wI/ott-start ttlw . t remams IInporant, III a

acknowledge that the end of colonialftmperial Westphalian sate f~r~ marks the bcginl1ingof theory and practice ofcontemporary human righ: which commence their carttr with historic plentitude of movements of the right to self-determination . The~ result in a prolifenuon of 'new' sa~s, disrupting altogether the ~stphalian conceptions of 1Iltentational orderings. Contcmponry human rights movements thus mark the birth of new fomlS ofterritorializationldc-territonalization ofdiverse state forms within which d uties ofallegiance and powers ofgovernance stand routincl; recast. perfonned, and exercised. The post-~tphalian notions [nnsfon n these duties and powers in discursive tcntlS of 'democracy', 'rule of law', and 'human rightS', thus making possible engagement with the problem of ' failed states' or (as Gayatri Chakravorty Spivak now names this) 'failed decoloniz.ation,.50 This discourse is remarkable if only for the reaSOl1 that the langua~ of 'failed states' stands somehow m/usively reserved for the South state forms. These languages necessarily attenuate the classical notions ofstate sovereignty, with the attendant doctrine of equalityofstates in international law. Sl Arjun Appadurai describes this phenomcnon as 'comprolll1scd sovereignty' in which contemporary forms of global capital cnact stntcSles of 'predatory mobi lity (both 111 time and space) that have vastly compromised the capabilities of actors in single location even to understand, much less to anticipate o r resist, these strategies,.52 No doubt, these epistemic crises signify 'momentous changes in state sovereignty' in w.rys that TANS (transnational advocacy netwo rks) now almost produce a substitute for earlier state fonnations. SJ In some sense, the growth of the global culrures of human rights has contributed to the (ntherwcll known to Intematiom.l lawpcrsons) erosion of traditional notions of sovereignty. But even on this register, one has to distinguish (as I have tried to do in this work) between practices of the politics oj, andfor, human rights. What the gunH of globalization mean by the thematic of the end of the nation-state is that the state becomes a poinl, perhaps. not even a nodal one. in the network of intensified international economic relations in a 'borderlcss world'. And o utside the dominant framework of a solitary and 50 G~yatrl Chakuvorty Splv.tk (1999); lItt also. Ruth Gordon (19117). SI IknedlCt K11Igmury (1998). Sl Aryun AppadUr.1I (2001) ~I 17- 18. ~ The glob~J TlC'tworu (or human "gins (such :l5 Amnesty I ntem~uoll.;il, the: Greenpc:X'C), reg.on~1 NGOs :lUdll, u well u challenge many perforlTl~t1V(' acts of SQVl:Telgn SCote

power

The Emergence of an Alternate Paradigm of Iluman Rights

247

capriciolls global hegemon that seeks to enforce its fractured values and viJlORS of an international rule of law. there exist multifarious networks that cuJ11IIJatively 'dc-territorialize' national sovereignties. These networks comprise illternational financial institutions, posunodern confeder.atlons (Ltke the European Community). global and regional human rights II1ter~mmental frameworks. global trade pacts, (such as the wro and the proposed order of MAl) and regional economic arrangements, with varymgdcgrecsofeffcctive presence (from NAFTA,on the one hand, to APEC and the Free Trade for America fFTFA]. on the other). The principal point concerning the end of the nation-state then, in die dominant perspective, is the creation of a borderlcss world for global capital. even though it stands cruelly bordered for the violated victims su~t to practices of the politics of cruelty, even barbaric practices of power. Myanmar is thus borderless for Uncoal though not for Aung San Suu Kyt and the thousands of Burnlese people she symbolizes. India is borderless for Union Car bide and Monsanto but not for the mass disasterYiolattil Indian humanity. Ogoniland is borderless for Shell but becomes 1be graveyard of human rights and justice movementS led by Ken Sam

--

The hollowing o ut of state sovereignty, ~ mmt reatll. IS an extremely tmcYen process. As the end of the checkered second Chnstian millennium, the Euro-Ame rie:m states maintain a surprisi ng degree of state resil ience, • teast when compared to (and precisely in co-relation with) the: debt and crises-ridden o rders of the sovereignties in the South. s.4 And, overall, bwn.an rights confrontations with State po~r remain less of a 'threat' to ~ postmodern bol1r~isie in an increasingly 'multicultural' North than 1ft ~ compantively chaotic and inherently muhi-civilizational South that aspires to fonns of'liberal democr.acy' in contextS of mass impoverishment IS., for example, in India and South Mrica. How may the practices of human rights activism read the textS of ~sive' diminution, even to the point of destruction. of state sover~ty III the South? It is surely comforting to tllink thal, though united the vision of power and profit. global capital is itsclffaction-ridden (as tha rx sought to educate us all). To be sure, some current eontroversies U t engulf trade relations between the European Union (EU) and the la nlted States (for example, in the banana dispute or the Burton-Holmes ~hat ern~rs the United States to impose trade retaliatory sanctions uropc:an COrporations that dare to do business with Cuba, or the

:a r: ..

":r~p$, Ihe pa~jgJII case is offered by continw! multiple illVOlsions of H~lIi:

•

POlgn~nr ~ru.IysIS 111 I\:ter H~lIw.1rd

(2iX)4).

248

The Emergence o f an Alternate Paradigm of HUlmn Rtghts

The Future: of Hum:m Rights

r~gulati on of gc:netically mutated foods) manif~st aspects of mIra-global capitalist conflicts. I I~r. it would be an extraordmary reading that may 5u~t that the EU h~art bleros for th~ Caribbean ImpoverIShed o r for th~ C uban people affiicted by th~ mo re than thr~ decades old nuscry of Ih~ US embargo. TI1CSC trade wars between Euro-Amencan states pulu le with the competitive edge of global trade. Despite the outcn~ that Sur_ round the American angst at the wro dispute pand's recent rulings;~5 the EU is ad idmt with the United States o n the nero for a new millennium wro round of talks that will further release corporate genius for global human welfare! The coalition of forces that nourish the global vision of borderless internatio nal capital sceks to proselytize the end of tht: nation-state regulatory prowess. From this standpoint, 'globalization' means the diminish_ ing of the state as the p lanner of national economic develo~mellt , ~he owner of community resources (and of other means of production). active participant in production of goods and services and p~oa~tive regulator of patterns of multinational corporate behaviour. It also slglllfies thai the state will be a willing, even enthusiastic. promoter of 'free mark: t'. All tillS III some important ways marks the end of the processcs and reg,mes o f/Illtrum rigllU-()ritPIIM, ttdisfrib'djO"isf gowmaflu prtUtita, in ~ys that convert the mandate of'progressive realization' ofsocial, economiC, and cultural nghts of the people 1I1tO an o ngoing cruel hoax.

TV The Reproduction of 'Soft' States The UDHR paradigm assigned human rights responsibilities to states; It called upon states to construct, progressively and within the commU1llty of States, a just social order, national and globa~ that wi~l at least .m~et th~ basic needs of human beings. The new paradigm demes any s,gn,fica n redistributive ro le of the state; it calls upon the state (and world ord:: r) to free as many spaces for capiul as possible, initially by fully pursU1ng the 3-Ds o f contemporary globalization: dt-rt'gulatiOll, dr_nationalization alld diJi" lI'tSt/ll /'/lt. Putting an end to national regulatory and redistributive p0tential is the leitmotif o f present-day economic globalization . as anyon(' who has read several drafts o f the Multilateral Agreement o n Investment knows. I Iowevcr, the programmc of ro lling back tll C state aims at the sa~~~ time fo r vigorous state action and role when the interests of global cap' :Ad $lIKIIOrtJ S5 Authonl:mg. for example. the Umted SateS 10 Impose reaIlat01)' Ir e of agamn the EU for Its human right to heallh-
249

arc at su ke. To this extent, de-rtgU/alioll signifi es not the end of the nation~ but the end of the n-JiJrn'butiollist Jtate. 50 Recent history has shown tlut multinatIOnal capital neros aJfJjt state and a IwnI one at the same time. In the heyday of developmental.sm. Gunnar Myrdal identified the crises ofdevelopment In South Asia as causro by 'soft sateS' that lacked the power of disciplllling practices of pohucs and gov_ ~cc.S7 'Soft' states were thus effete entities unable to fu lfil any of its nUlJOf' .social welfare roles; its 'softness' stood constituted by the profiles of ~rdevc l opcd bureaucracy. anomie, corruption-ridden practices of politics and state-formation marked by a conspicuous lack of discipline. Capricious and corrupt law~nforcemcnt practices aggravated the growing lick ofa civic culru re, in which the new middle classes claimed rights (and abused these) but acknowledged no social responsibility. The way [0 pJarmcd social and economic development lay in the reversal of these gmds, which would eventually legitimate a progressive stale. 1Dc processes of contemporary globalization. thriving upon the heavily cmiqucd ideologies of developlllentalism and its eventual d emise. seek to NpIOduce, in a post-devclopl1lentalism era, new versions of the soft state. 11tr notio n now stands reconstructed in several important ways. The ~s ,vc state'. at least Ill, and for. the Soulh. is now conceived as a state DOC in it!; 'nternal relatio ns with its own people but 111 relatio n to the glo bal c:a:nmunity of foreign investors. A progressive state is one that is a good ..., JI/IIIt f~r global capital. A progressive state 's one that protects global apitaI ag;ilInst political instability and market fa ilures. A progressive state it one that represents accountability,wt so much directly to its people, but ODe that offers ltsel( as a good pupil. to the World Bank and International ~_ Fund. A progressive state is one which, IIlstead of promoting ..-Id ViSIons of a just international o rder. leana the virtues o f debt I'l:paymem o n schedule. M oreover. a progressive state is now one which ~:rcd to gamer eonce~tions of.~ gove~nance. n~ither from the of the Struggles agalllst colollltatio n and nu ...... nahsm nor from its lbternal .I ' ,... SOCIa and human rights movements but from the shifting pre~ns of global institutio nal gllnu of globalization. ~ _ construction of'progress' is [hat of a post-Fukuy:mla world in which IS no Other to capitalism , writ globally large in rather contradictory ~

......""""Ji Oe Kelsey (1999, 1995). 111 (crms of emp,rical ;mal)'5IJ. this furthcr connOles " .. Dan ~Ute I ,,_ Cip. ure .. m"uence, in d corruption: see. Joel S. I !ellman. Gcr.llnIJones. S7 C Ie ","ufoun (2000). ...... ~11IUt' M)'Tda1 (1963). Myrdal's concern was 10 ponl1lY South As,an sates as

..... c-L ~Iil and msututionil dlsclphne th~( made JOCICry alld nate vulncDble to Ioprmcm and the 'revoIuDOn of rislog cxpecauons'.

The Emergence of:l.l1 AlternalC Paradigm of Hunun Rights 251

250 The FutuI'C of Human Rights modCi. 'Rule of law', 'democracy', and respect for human rights :l.re imper.lti~s that the Global South is required to achieve in W:l.ys not quite historic:l.lly attained in the evolution of 'Western' democr.acy. The accelera_ tion of future historic llme for the Global South manifeSts the dramatic tensions betw«n trade-related, market-friendly human rights and the human rights of every human being in the Global South as follows: • War :l.gainst hunger gets transformed in the 1998 Rome Dedar:l.tion on the Right to Food into free mark:et-oriented state and internatiorul management of food set:urity systems managed by a handful of multina_ tional food corporations;S8 • Struggle against homdessnessand shelter, in thel998 United N:l.tions Social Summit :l.t Istanbul, becomes a series of mandates authorizing a whole range of human rights-violative practices of dlC construction industries and urban developers; • 'S ustainable development' becomes a double-edged sword of sUtc conduc t and corporate governance in ways in which massive public projects, including large irrigation projects, proliferate in order to primarily serve the infrastructural imperatives of direct foreign investment and the promotion :l.nd protection of corporate governance 'greenwashing practlces,;59 • The UNDP-inspired 'mainstreaming hum:l.n nghts miSSion' envisaging the raising of a billion-dollar proposal for the Global Sustalllable Development Facility, stands already subscribed to by w:'Y of seed money from some of the most egregious multinational enterpnse corporate human rights offenders. In sum, all progress tow
FL\N (1996). 59

See

Jed

G reer and Kenny Bruno (1996); Andrew ~II (1996).

egrqpOltS violations of human rights enuiled in corporate governance were ptr g IlIcgJtllnate and .t1~at they o ught to be bound by a stnct regIme of

buou n rights responsIbilities. But rlus fr:unework. assiduously promoted, and even promulgated, by the ~rious United Nations Summit declarations aud programmes of Acrion, IS, by and large, congenial to transnational capiul, and its legendery kgions of nonnative cohorLS. because It mandates uneven pannership betwtt" global capital :md 'developing stales'. Unshackled by even a nunimal international code of human rights-oriented conduct, the panntrship between state and civil society so abundantly emphasized in the various United Nations summit declarations empowers multinational entrrprises to mould state policies and purposes to their own ends. The production of soft states as its strategic high priority 2gendum, which craftdy deploys languages of humane development and governance and bunun rights and well-being, follows, almost as the law of natllfC. I cite, as a prime example of Ihis, the continuing reports of FatimaZohra Ksentini, the Special Rapponeur to the Commission on I-Iuman Rights, on the adverse effect of Ihe illicit movemcnt and dumping of toxic and dangerous wastes on the enjoyment of hurl1:l.ll rights.60 Thc bigge~t "WUIr exponers are, of course, 'the most 'developed' COUntries and wastCi continue to be di!>patched to regions lacking the political and economic ~r to refuse it'.61 Thi!llack is nOt innate but cau~. in the last instance, by the fomlati ons of glob:l.l economy. All kmds of business practicn abound : the use offalsified documents bribing of officials III the 'country of origin, the transit country or ... th~ counrry offinal destination', and the existence of private contracts 'between ~m companies and Mrican countries whe~by the companies paid a ptnance for the land on which to dump toxic products .. .'.62 The Ianer scandal brought fonh :l.n anguished resolution from the Organization of :~an Unity,.a decade:l.S?' which ded~red toxic dumping a 'cri~e against a and Mncan people .63 The Specl:l.l Rapponellr has no dIfficulty in ~Iogulllga very large number ofviolations these practices knowingly and

"""rrtal/y entail.~

The reproduction of soft states and regimes or the benefit of the global caPItal, benefitmg a few communities of people defines :1.11 imperative of ~Co ~l mnUUlon

on Illlman Illl\:hts (20 Januuy 1998).

4a CommiSSion Oil I hml1n

RIghts (1998) pat:ill9'lphs 54 and 56.

~mnuS~lOn on Hum~n Rights

(1998). 04 mmlSSIO(J on Human Rights ( 1998) pan 57. IIiId ~ IllmlS$}on on Human }{Igh!S (199t1) paras n-I07. See also, Anthony l)'Amato 'l

eu

~

Engle (1998).

The Eme'l,'cnce of an A1tenUte Pandlgtn of Human RIghts

252 The Future of Iluman Itlgtlls

contemporary ~co nom i c glob;&liz.ation .6.5 Th~ suffe ring of impoverished propl~ is itTelevant to th ~ ruling standards of the global caplul, which mUSt m~asurc the excellence of econo m ic entrepreneursillp by su.ndards other than those provided by ~ndless human rights no rmativity.66 The comextuality o f this enterprise bids a mome nt of reflection; the multinational corporatio ns may not perform toxic dumping prOjects with. o ut the activ~ support provided, for example, by the operations of the intern.aional financial institutions. These make some Third World COlin. tries which, ridden by 'over-indebtedness and collapse of raw material prices', to view the import of hazardous ~tcS u 'attractive' as 'a last resort for improving Iiquidity,.67 O ne is talking about, in this context, of no bad business practice which International codes of conduct may reSClle but rather of genocidal corporate and international financial institutional regimes of governance. These righticidal regimes and practices of 'global' governance remain at the end o f the day rhe products of' hard' sUtcs that find safe have n for hazardous waste, and much else besid es, III 'soft' states. H ard-headed international business practices also reqUI re proliferation of hard states and rcgtmes. which must be: market-efficient in suppressing and de-legitimizing h u man rights-based practices of resistance or the pursuit of alternative: politics. Rule oflaw standards and v:alues nC<'d to be enforced by the State: o n behalf. and at the bc:hcst, of fotllmions of global economy and technology. When, to this end, it is necessary for the 'host' State: to unleuh a tclgn of terror against its own propk, It must bc: empowered , locally and globally, to do so. The 'host' state (or a state held hostage), at all times, must remain sufficiently active to ensure maximal security to the global or foreign investor, which owes some inchoate duties to assist the state in managing o r refurbishing any resultant democratic dcficit. 68

V A New

Paradigm of Human

Rights

My notion of the emergent paradigm (th at of trade-related market-friendly human righu), so far implicit, nttds a fuller statement. At issue, ofcourse, 6S If }'Qu find tillS too meuphoncal, plcuc rec~11 clukircn pllymg 011 irrnhaleG nucJcar wasle dump Sllel In Marshall bbnds or the VICIltIiS of Bhopal su1J ~utTcrlllg fro1l1 the lelhal Imp;JCt of caustrophlc exposu re of 47 tonnel of MIC. 66 Naomi Klem (2000, 2(K)2) rcmams an Impc:nuve text. 67 United Nanons (1998) at Jnn 57. I 61 The flagranl, ongomg. and massive VKlbtlons of human nghts Ihus t:'11; dturtlCubuon of Ihe VlOblcd by a po5l.Uhopal caunrvphc Umon Cublde salt:' • the..,an man¥ment of publIC and po\lIIcal OpllllOll, nauonal1y and gIoMlly.

253

the ways of reading the politics oj, :and for, human rights. The former at'C iSlS thai human rights bc:long:as much to indiv;dual human belllgs u

IllSceonollllC collectiVIties; the latter argues for the primacy of the human ~ghts of human beings . ?ve r the human rights of :aggregations of t«hnoscience caplul, enulIlIlg the: consequence that trade-related marketfriend ly human rights re main 'secondary' to the 1I111versaJ human rights of human lxings. h may be maintained that fund:amental rights and frcc:doIllS, v;;alorizc:d by the United Nations Charter, belong to individuals as well as associations of individuals. Any argument th:at seeks to exclude corporations and busintSS associations :as claimants of human rights remams exposed to an mdictment of enormo usly inaccurate misreading of the human rights norms and standards. The right of association acknow led~d as hasic hunun righ ts sincc the UDHR at le25t signifies that the right to property (including intellectual property) may be exercised individu:ally as well uaociationally. Moreover, since human rights remain av;;ailable to 'persOIl5', legal persons such as corporations and o ther business associations stand CIOtqwlly possessed of a Certain regime of prot«tlon and promotion of human rights. Further, both under customary and conventional internaaonal law st:andards of State: responsibility entail obligations to protect IDd promote TRMFIIR. If so, all this faults any notion of:a paradigm oIuti However, thiS way of reading the UDHR is in itself excessively tradeRlaled and market-friendly. Its Article 17 endowing 'everyone' with the "right to hold property alone o r in association with others' does not lay down what constitutes property; no r docs it concretize what action will count as an 'arbitrary' depnvation o f property. C losely read. Article 17 does DOt quite: enshrine intellectual and industrial property rights; it o nly speaks oCthe nght to 'the prot«tion of the moral and materi:al interesu resulting &on, any scientific, literary, or artistic production of which he is the author' 6') Even assuming that the UDHR somehow protected trade.relatc:d marke t.friendly human rights, it sho uld be clear that the right to property lilt

WStt the complex argument III

Roscrn.;r.ry Coombe (1998). The UD IIR unlvcr· oiled neIther the bourgeOIS eapluhst conceptions not the MaouJt-Lcnmlsl notions II f~rpotale and the fornu of prol«uon of mtellectual property n ghtli: much less did Irann IOn a code of 'authorshlp' addressmg tI~ consU!uuon of deprlvauon, and arbl. ~,Of ~Ute KIIOI't The detcrmillalion of the nature and $Cope of the ngllt 10 ~ ,and USOClltcd nouons. rt'mamcd open 10 the powers of nallonal self· -.s' ~tJon, IlUmfC$1 III dlfferenl rnode5 of the Cold Wlir colutnuuonalisl11 !nven· n",.u15.

254 The: Future of Iluman Rights

The Emergence of an Ahemate Pandigm of Ilunun RIghts

was one among the many hUl1un rights thus enshrined. As such. 1l was subjet:t to inherent limitltions :!.rising from rights such as immunity from discrimination on the ground, itlteralia, of'property' (Article 2); ownership of human beings in 'slavery or servitude' (Article 4); the 'right to work' and to leisure (Articles 23, 24); and the right to 'adequate standard ofhvLIJg' (Article 25). In addition, it remains important to stress lim while these other rights find further elaboration. the right to property does not find allY place. in the two human rights covenants. To this extent, the view that the trade·rclated market-friendly human rights paradigm is just an unfold_ ment of the potential of the UDHR is plainly incorrect. The argument that corporations have associational and property rights under customary and conventional intemationallaw may find some suppon from the normative history of state responsibility for lIljury to aliens in particular the provision of the right to prompt, effective. and JUSt compensation for taking and the law of belligerent occupation. b~uries thus suffered by corporate entities stood construed as injuries to the national state and duties to recompense, if any, lie with the violating state. Even so, the post-United Nations Charter law no longer sanctions the invasion of its member·states as a justified mode of protecting associatlonal property rights of corporations. Indeed, specially negotiated treaty provi. sions. such as NAFTA. that enable corporations to sue treaty sute parties for Violation of their rights, suggest the absence of any contrary pertinent regimes at customary mteruational law. Finally, the objection that corporations arc not bound by any human rights obligations, under international law, remains unpersuasivc. The Nuremberg lnternational War Crim es Tribunal did , indeed, sentence l\VO leading German corporations for participation in genocide and crimes against humanity. Anicle IV of the Convention 011 the Prevention of Genocide. 1948, provides for punishment of'persDns' committing genD-' cide 'whether they are constitutionally responsible rulers. public officials, or private individuals'. Arguably, this inclusive definition may exten~ to corporate entities.7'O Similarly, the Convention on Discrimlllatioll agams t \\bmen, 1979. (Article 2(t», at several places. imposes duties of respect for and compliance with, women's rights declared applicable to ·an.y person, organization, and enterprisc'. Many a United Nations surn ntll declarations and programmes of action and provisions of environmental treaties and arrangements are open to a reading that cast certain hlln~an rights responsibility lIpon global corporations. cou~, any slIch readlllS will initially provide exercises 111 subaltern construction of instnl nlents

Or

70 Sec:: me 3ru1~l$

In

AllIlOl lUmS35UY (2002) and m.lllCTI.lIls 'herem Cited.

255

thai Intend otherv.rise, in terms of tr'2de-offs between human rights: and dIr valUes ofintemational social cooperation. 71 It is beyond the scope of che present work, for reasons of space, to develop tim thematic further. .ArtIcles 28 and 30 ofthc UDHR enshrinc the most overarchlllg prlllciples of human rights responsibility of corporations (as well as states and IndiViduals). The formerdcclares that: 'Everyone is elltltled to a social and international order in which the rights and freedoms set fonh in this [)reb.ratlon can be:: fully realized'; and the latter states, memorably, that ... . . NOUllng in this Declar:lt1on llIay be interpreted as implying for any Slate, group or p:rwn to engage in any activity or to perform .. ny act aimed at the destruction of Mly of the rights and freedoms SCt forth he~ill.

AnKle 30 clearly extends to all the beneficiaries of human rights including ~Iions of economic and techno logical power in the shape of business

association groups or corporate leg21l persons. They have a duty, among ocbcrs. to so behave and conduct themselves as not eng21ge in the destruclIOII of the rights and freedoms thus enshrined. I un aware that many interpretive strategies can be marshalled against dais conclusion. One that is dearly illegitimate inSISts on the exhortative, aon-bmdmgcharacter ofthe UDHR. J lowevcr, ifit IS open todenve basic ~15 of ~onol1lic associations from It, it should remam equ;ally open to cIaive obligations from the same text. especially when these are so explic-kiyworded. Nor is the notion that corporations arc not subjects ofintcr. -.on~ law persuasive in the light of the developments already mentiolled.

VI. Why Speak of Human Rights of Corpora tions?

~ a~ready e~~oumered

SOme degree of activISt discomfort among nghts actiVIsts and lawyers at what they think 10 be an unnecessary, ~C'Vc::~ dangt:rous, extension of using langwgt that even attribUl~ lIOn n rlght.'i to corporations. It is unnecessary because:: common convcn~ ~~Iy;:,qulres a reference to. tI.l~ir legal and co~stitutional rights. It may enc gc us to allow the poSSIbilIty of such attribution as such transfer. Ohlyt' oflogic and rhetoric to formations of capit;ll and technology could . a Iread ' ·d able powers. Surely, It mlglll . be said, the COu enhance tI lClr y ,orml f'\e ofhurnan rights activism illustrates the strength of the denial of any 'I Sec

~. c~for an interesting ;!(COlIn! ofcomplex blrg:ullIng position the industry lobby

CItt9).

rporabOn·spoJUO~ NGOs. 300 envlronmena! NGOs, Chlaf';l Giorgt'tti

256

T he Emergence of an Alternate Paradigm of Human RIghts

Thc Future of I-Iuman Right!>

claim to human rights by concentrations of economic and technolOgIcal

POW<'o

In a world ruled by the muhinati onal .co~rat ions,' this SOrt of readlllg

~n further empowers a world already rife wtdl massive human violation. It needs to ~ interrogated through all aVllilable, howsoever meagre. COIll·

parative sociology of human rights potential. If trade-related marb=t· friendl y human rights we~ already anchored in customary intenuuonal law. it becomes difficult to understand why glolnl capital increasingly seeks to inscri~ its rights through treaty regimes. Thl:: archetype of tins is. of course, the wro agreement, in particular the agreement on trade.rdated intdlecmal propc=rty rights (TRIPS.) The cxtensivt: regime of basic nghts stand further codified in the World Copyright Treaty, 1996, that now protects digital works, in particular ownership over electronic and genetic (human genome project) databases. Further, human rights now stand claimed in the arena of scientific research and experimentation (which has now become hitech and capital intensive and, therefore. increasingly corporatized) as essential aspectS of the human right to freedom of speech and expressio n. Corporations have also claimed and acquired the right to 'commercial free s~c h ' as well as a right to reputatio n and honour. not just as a propc=rty. but also as a personality interest. It is also striking that justifications typically offered for this panoply of rights thri~s o n the logiCS, paralogics, and languagts of human rights. Collective o rders of capiul and techno logy claim these rights as emana· tions of al~ady existing human rights of individual human bcmgs since these a~ human associations, collections of individual humans pursUIllg. in acts of social coo~ration. their common aims and aspirations. Wh~n ~~Iy interrogated, protagonists of these new rights justify these in terlllS of dIe legltimacy and potential offree markets to stture a better future for human rights as such. To take a few examples, it is argued, or indeed arguable, that • Human right to health is best served, in a Vllriety of contexts. by th~ prott:ction of tht: research and development rights of pharmaceutical and diagnostic indmtries; • The right to reproductive autonomy, the right of women over t~~lr on bodies. becomes possible o nly in a technological t:ra based 011 prott'Ctl of the industrial pro~ rty over reproductive technologies; • A whole vaflety of sustainable development righ~ and proce~ses de~nd o n technological fixes that corporate techosciences make posSible thro ugh new technologies, IIwcnting ways of biodegradable and other forms of recycling and treating wasteS;

257

• The menacing environmental proble ms confro nting hununkmd as species (depletion of biodiversity, perforations in the ozone layer, and duna te change) can best be redressed by tcchnoscience; • The right to food (now re-concepruahzed by the Rome Declarauon as the right to food security systems) is best scrv~ by proteCtion of the "gilts of agribusiness corporations: • The right to public and political pOlrticipation (enshnned III the I)(:c· brarion on ~he Right to ~Io~ment) is best secured by the rapid growth ofinfo~a t1on technologt.es, whIch has made unanticipated fonns ofglobal solidanty of the new SOCIal moveme nts possible, in all their resilience. J

In sum, the argument is that the promotion and protection of some of the most cherished. contemporary hlll.nan rights becomes possible only when tht: order.~f nghts for global capItal stands fully recognized. Global nwkct c.ompetltlon stall~s presented as servicing, directly or indirectly. human nghts. whether tillS occurs through 'ethical investment', fait-trad· 109. con~u~le r ac~ountability or, as more recently, in the industry-wide leadershIp III banmng production and distribution of manifestly hazardous Fnmcally mutated f~stuff. And, increasingly. many human rights ac· IMSl groups seek to 1Il0uenct: global trade policy for arresting massive Wobtio ns of h uman rights of the vulnerable sectors ofsociety (child labour .. grnder-bascd w:lgt: discriminatio n. for example). G iven all this, t~ ~nta~n that corporatio ns and busmcss associallons have human rights obligations ~d responsibilities is, at the same tlllle, also to maintain that Ihcy are subJccts of human rights. Nor nuy 'Nt: obliterate al~ther from actiViSt memory the remarkable ~ples for South Africa developed by and named after Reverend Leon an, a board member in General M otors. The Sullivan Principles : : ; on ~nc estimate, ~OPled by 200 of 260 US corpof2tions doing ess WIth the apartheId South Africa. Much the same needs to be said COIlceEumm g t~c: McBride Principles for Northern Ireland. And at last the ° 1996, marks a triumph for people's ' , 10 ropean Bnberv . , Co nvenllon, right transparency in . . I b live .. Illtemallo na usmess. even though besct by construcamblgm ty about the proscribed conduct 72 as it also registers the success °

~

.....,T h,e Convcnnon makes 1\ an offe nce 10 bribe fo reign st;lte offiCials. This th a\ comprise b rl°bIIlg 0 po IUc~ ° 1 pani CS. thdt leWers. and Cldrn ntTb excludes . the reason for th iS IS obvioIIS. CorponlC 'und qul~ d mg'or e I« tlOII campal8l1mg has _ E e ImcnSlons of d ie FirSt Amelldmem type rights In the U mted SuteS· ...I....._ 5 oUI'()../unenCOIII f d ' I SAIC:I It has p roved dl ffiIcult to structure hlmu 10 11 as well• In as ~. .~sc osurc. Such fundmg. leglUliute at home. forbids Its deSCription as , ~...""'\\; ell pncnsed abro.d. In any case, outlawmg of such prxtices IS left to the potcntul of the 'soft' suteS!

y

acu

o

r'

258

The Future of ilumafl Rights

of underlying pressures from the American indus try for cre2t1 ng a level pl.aying field . . Of course, a radical reduc tio nist position Will refuse to recognize t hese industry inioatlves as 21lything more thall tokenism, give n the domin21lt busin ess ideology summed up in the m.axim: 'The Soc121 Responsibility - cerulll - \y true t hat the of Bus iness 15 to Inc r ease PrOfi15''' . And -It 15 community o f multimtionals (no matter how riven with intem21 compe_ tition) m2intains an uns urpris ing solidarity against. imposl~o~ of new hum2n rights norms o n their structure and operations. ThiS IS clearly manifest in the recent s uccessful efforts excluding multin2tio nals from the jurisdiction of International Criminal Court, and since the 1970s, pr~ent_ ing211 United Nations- based efforts at a Code ~~Con~uct for Tr.msnatl?nal.s. A less fundamentalist position, while recogJ1lzlllgfallures, would maultam that glob21 capital is already in the t~r~s of the ~Iitics oJ humaT~ rights 2nd the task is to seek to convert tillS IIlto a pohtlcsfor human n ghts.

VII. The Nature and Content of Trade-Related Market-Friendly Human RightS Inc reasi ngly, g lo b al c;!.pital claims a new o rde r o f intem:Hion21 rights for Itself in w:ays that h2ve profound destructive imp2cts o n the hu m:m n~1tS o f human beings everywhere, as even a bare rt"ading of the euly verslOll o f th e Draft DECO-sponsored MAl abundantly s h ows. The prote<:n on rigllts o f foreign investors is to be of s uc h a high order as to deconstruct all traditional and newly emergent human rights as 'trad e distonmg' pohcy obstaCles that need to be overcom e in the very title of making t he future of hum;!.n rigiltS secure. In 1995 as befitted the occasion of the United Nations Copenhagen Summit o~ Social Development, I circulated the following Draft Charter of the I Iuman R ights o f the: Global Capital?· Adtnou~'W

. f human and SOCI~I that econo mic d~lopment -IS the qUlIltcssence 0

developrnelll. f 11 RNlliziNg that the pursUit of profit, at lIny or all costs, is the qUintessence 0 a economic growth and devdopmem, NotillX thlt throughout human history tr:.I de an d commerce h a,!e laid foundJllons 11 lefor multiculmraVmulu-civilizational contacts and exchanges III the rutu ra y gitim:l.te IT.7.ditions of social Duwinism, nlbcr 7J Advocated by Nobel Laureate Milton Fnedman. Nn41 'Writ 1i11111'1. 13 ScptC . 1970 (Ma~zme)_ ~. for funher analYSIS, Chaptcr 9. eO IWfU1 74 Sec Upendra Ibxi ( 1995). The statement is repnxiuccd here with nllnor vanauon.

T he Emergence of an AJtemate Paradigm of Human jljghts

259

ialllfg fu lly that all possible alternatives to caplulislIl have btxn tried and : : ; WoI.nung by the states and peoples of the world.

1ft the Foundmg Father1 of Globailuuoo, affirm and announce the foUowlIlg uuilCllabk rights of the gJobaI capiuJ as the beSt :lS5ur.mce of achlCV\ng a new world Older, haVIng the potential fo r progressive realtzauon of all other subsKiwy

human nghts--

M The right to Immunity from

any symbohc or other sigruC.cant displays or

cxm:ises of State sovereignty, (11) The' right to cajole', corrupt, national regimes

III

th e interest ofhllman and

sorUI devdopment; M The righ t to command. as required, natio nal sovereignries to coopt, corrupt or coerce human rights communities engaged in acts. and even thoughts and

brbe&, manifestly subversive of globalization; (J) The right to suborn all lcamed professions (including bw, medicinc, media, science, and ed ucation) to practice and propagate values serving processes of gIoNliZiitiOIl; (~) The collective rigllt of global capital to u<;c democnric processes and power (and where nt:'Cl:sS.7.ry thl: right to subvcn th ese) by W.7.y of spccialmtercst lobbying to enhance the factotS of productio n;

(/) The right to inlillunny ag.:unst corporate confusio n or incoherence arising &om unsohc:ited, undue and untuward expos ure of management and CiltreprebtUlUl taknt to the counter-prodocuvc and corrupting l angu~ o fhulIlan rights; (f) The right to free ly create. WIth sustanuble illlpUlllty human. bio, etO, and tmnic hu.ards and m order o f human violation commemurate to. and functioml wicb, lhe development of the productive forces of g1obaliutlon, WIthout undue

obIiganoo for repantlon, restltuuo n and rch.7.blhution; (II) The right to resist, covertly md oven~ all threats to global c;J.piul and, in particulu the freely organize, reorg;tnize, and dlsorganiu public me mory concenung the so-nlled corporate violations of human righb, :lS an IlllcgraJ aspect of the human right of corporations to privacy. ho nour and near-absol ute right of Commercial free speech;

(i) The collective right of the capital to inveTlt. and put to work, llllemational

and Intergovernme ntal organiZiitions which are funeuon.7.lIy superio r cqUlV.7.IClllS 10 the protection of rights set forth herein.

Thus en un ciated, tllis Magna Carta of g lobal cap it21 may invoke 2 moment of mirth , both ;!'1lI0Tlgst t he CEOs o f multinationals and even amon g !>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<-, Commission on Human Rl.ghts (1998). II See Upcodn 8axJ (1994) 1-18.

T he Emergc:nce of an Alternate Pandigm of IlullUn RIghts 263 O f course, the continuing appropriation by the forccs ofcapital of hardis not a Jui gtt/ern CVCnt. Long before sbvtry was abolished, and wolllen got recognition for the right to contest and 'lo te: at elections, corporations had appropriated nghts to f'MOllhood, claIming due process rights for regllucs of property, denied to human ~ing5.82The unfoldment of what I name as 'modern' hUlnan nghts is the scary of near-absoillten~ of the right to property, as a basic human right. So is the nalT2rive ofcolonitationlimperialism which began its caree r with the archetypal East 1ndia Company (which ruled India for a century) when tfIII1I"'ak sollffrigllty was illa/lgurat~d. Politics WoOlS comllltTtt and commerce 1l/'Of1 human rights for its own ends

became polilin. So, it might be said, is the case now. Some may even maintain that it

bad bc:en the case even during the halcyon days of striking human rights enunciation (from the Declaration on Permanent Sovereignty over Naru.

raI Wealth and Resources to the Declaration on the Right to Development). Peel off the layers of human rights rhetoric, they maintain, and you will find a core of historic continuity where heroic assertions of h uman ....15 remained, in fac t and effect, the insignia of rriulllpham economic

IIIIICrC'sts. This contin uity thesis dekrves its moment. It directs attention to facts tad feats of glowl diplomacy over human rights in ways that moderate, orcwn cure, thecelebrationist approach to human rights (whether human li&htsrottlanluism, mrstirism, trimnphaliJm, or htdoniJm). 1t alerts us to the fact . . wadlln the modalities of human rights enunciation pulsate the regu lar ltartbeats ofh~monic interests. It directs us towards a mode ofdtought ... rt"!oc.ues the ;!.uthorship of human rights aW3Y from the politics of ~emmental desire to that of the multitudmous struggles of people Iplnst human vioi.tion. so, is there a paradigm shift or merely an cxtension ofbtent apitalism h h.s always moved (as the readers of the volumes of Vas Kapirol ~1:"oW) ~Iong the bourgeois trajectories? This is an important and _q~esn on. My short answer for the present IS that while the ~Iatloll by the capital of human rights logic and rhetoric is not a IIUi ,vely con temporary phenomenon, what marks a radical disconti. ty IS the scale of revmal now entailed Global bu . . I fi . 0( SlOess practIces canee, o r example, many a normative g:lin COntel11 porarv I . h If ~ . . I lOll1an fig ts movements through techn iques ofdisptf141 t'IIIls. T he exploitation of child and sweat lahour th rough free

..!'

as<, , for an analYSIS of tlus. by no n1(,:lns complex, process Dri

J.

M3yer

264

Th~

Future of H uman Rights

T he Emergence of an Alternat.e ParadIgm of Ilum;1n Righ ts

economic zones, an d .ccomp,nying sex~based discrimination m cven · s is the hallmark of contemporary tcononllc g1obahza. su bs Istenct wage: , b I ' k ' . '" I a 'glo a ns society, ,I e S I bl t Ie. cver. lion . 0 are I "'o.n" of creation of S4 replenished 'conulluniucs of danger', ~ nd th~ cgl e ~np15 of 'organized irresponsibility' and 'organized Impumty for corporate ofTel~_ ers. of which the Bhopal cawtrophe f~m.ishes a mo~ rnful remlllder. ' ' hes 'he p,radignl shift 15 the doctrine of legWtn(l/lOtI of What dIsungUis .J ' • •• ojh"m(lll sull"erina txfrl1()T"ltkJry In/poSl/tOII !ti' '" in the cause and •the courSt" of the epoch ofhuman contempor2ry marc h 0 fthe global capital. In the 'modern .. , h ~. . ..... ., considered ...... ~ legitimate. Contemporary Y" . I nghts, suc SU II~rmg "".... ' h ts IOSIcS ' an d Pa........1n<7ics challenge , and at tulles deny, human ng _~_ .. .t liS self, ' TIIe parad'gm shift seeks to oncd the. hlstoncblgams of the evident axiom. I ' I I 'gh'o movements seemingly Irrcversl e. .ways. It ul11versa luman n '" 'in. I of ,uffering and , III tilt: process, regress Ullllan seeks to mute t IIe VO 'ce' l rights futures .

v:=ry

IX. The Materiali ty of Globalization TIle paradigm shift cannot be understood outside the mate.ri.:llifiity 0J;~ b.:ilization By this expression, t wish to signify the t«'mOSt/tllt/ l( /PI ) . . ' . deotogy (in the Gr.ullsclan sense: proc/Ulriotl and the accompanYlllgorgamc I . Th od resents that resents itsclfas redemptive ofhurnan suffermg. at III e p . . itsdfin several unfolding moments: in the civilian the incredible growth of infonnation technology (d l gltahlatl~I1). an in nd development of new biotechn.ologies. Each on~:!d~~~' :~~~~~rary g combination, threatens us all WIth the prospect 0 f h -nds pro.th obsol~tn(t Each one 0 t ese s .... hum.:ln rights lan~ WI ' . U d lying e.:ICh moted in hOlmn rights, hum.:ln futu res, fuifi lllllg sen~. d n ~r ken of of these IS the ceaseless promotion of what are concelv~ .:I~l spa ught as 'str2tegic' new industries whose competitive pro~ouol~' a;~~no state to rem.:llll the be-.:III and end~al1, of contemporary u.rac;es ofcivil form.:ltions, And each marsh.:lls .:Ind commands the crea~lve ener •• and . h I f ew SOCial mavemen", society brroups in rcsistance-Ill t e.s lap<: 0 n formations of often undcr the title of human nghLS-t~ thes~ new . t in any rich technosciencc: power. It would overburden tillS wor to prc~ n , adi n. d~ui l, the challenges thus posed to the universal human nghts par gJ A silhouette: must perforce suffice.

~sc: o~ nu~lea~ en~~;

&)

14

Ulnch Ikck (1992). See. al~, Donunlck Jcnkllls (2002) Ottp~k Mehu and Rom~ C hnlel)t'e (2001).

85 See Upc:ndra H:axJ (1990) I·box; Upc:ndn &xi (2004).

265

(1) Nudear Euergy a"d J.#aponry Tbt developmcnt of nuclear weaponry .:Ind energy for Civilian use IS coeval th dIe growth of contemporary human nghts, which were born

:nu:xt of the Holoc.:lust as well as t liroshima and N.:Igasaki. And

10

the

It .:IfTects

for weal and woe the nature, carttr, and the future ofhulllan nghts. The suuggle .:Ig3inst prolifer2tion, .:Ind tht movement to end nuclear weapons, ba~ beeD .among the most impressive moments of human solidarity worldwide. These even led to.a partnership of professions that initi.:lted a function.al equiv.:llent ofsoci.:ll action litigation before the World Court on cbc issue of legal ity of nuclear we.apons.86 It yielded some hum.an rights pins but it would be difficult (Q gle.an as .:Imong its .:Ichievements the right 10 pe.ac~ or even a right to a de~nuclearized world order. The most profound effect on emergent hUlll.:ln rights cultures of nuclear military technology is the construction of a security state, which readily converted itself into an order of (as E.I~ T hompson described) the secret 1Mit.1J? The culture .:Ind the cult of official sccrecy monopolize infonnation .. , fcw h.ands .:Ind structu red censorship that, in tum, helped promote pinnaia .:Ind prop.:lgand.:l. The State shield also extended to civilian nuclear cangy plants. whether or not state-owned. From the very begin ning ddimce industries secre:tize the processes of sctentific research and tcehDDIogical developmcnt and legitimiud Wcgious viol.:ltlon of human rigllts: aptnmentation with human subjects, exposure to llllpennissi ble lewis Clfradiation to scientific, technical, .:Ind mtmal workers.:lt the site, conscn... or coerced exportation of nucie2r wastes, various orders ofheahh and aMronmental harm by nuclear teSt sites and zones, both within .:Ind outside nation.al borders, and dle development of a policy culture: of CIlVironmenta1 racism t.hat, most crucially, confiscated indigenous peoples' Imds and rights. The secret state (network of defence establishm~nts, ~tries, civilian scientists and technologists, and b.:ind of select politi~ Clans) m.arks a toul negation of hum .:Ill rights. Propagand.:l- now heightthed. in a post-9!l t world--of course, maintains that the secret state rtrnains the best assur.:lnce for the achit.'Vcmellt of nation.al and global litturity within which rights- talk l11.:1y make sense. In some sense, the

•

IlO6-See, fOf ClQnlpJc, Burns f f. Wcslon. ltiehml A. Falk, 11 11.u y Ch;.rlcsworth (1997) " 19. • E.p T hompson (1989) 149-80.

~The li te rnure 011

II\VI~

Ih lS ,uhjcct IS VoISI. 1 here allennOIl 10 Ihe following: ( 1999), P:!.ul II . MeNCl I ( 1998). Jay tUtt ( 1997). Richard PIerre ), BntJsh Mc(hcal Assoc.auon (2001). KelVin M . Kmg (1998), and the

a..dc; (~Ikc:r photo

~y by Carole G~Jlcngher (1993).

The Emergence of an Altemate Pandigm of Iluman R'ghu 266 The F\ltu~ of Human Righu

267

"'aching. they further m2intain. needs to be S2id 2=i ll"llh e 'OLu:oo..u _- ranuSlu " I'" . rr"

d evelopment of biotechnologic21 industries W2S, as we notlcC' I:l.ter, to n::produce some of dlesc very fea tures, Civilian uses of nuclear energy have been assiduously pcnTluted as 'safe' even:lS rd::advdy ceo-friendly (as compared with coal mining, and asSOC:i~ ::ated violation of human right to he::alth). The nuclear industry h as silenced ev~rywhen:: and by :l.llm2I1nC'r of me2n5, issues conce:rnmg safety at workplace. reactor accidents. disposal of toxic, long-life nuc!e.rwastcs, and decommissioning of civilian nuclear plants for which no known safe technology exists. Its promoters. at least on Capitol Hill. capped th rough congressional legislatio n corpOratC' li2bility to an order of$560 million, the rest where called for being the responsibility of the federal government, w hose regulato ry :l.gencies were .Iready captive to the strategic industry. The am niocentesis of h u man rights was thus predetermined by patterns of state-industry collaboration, which 'ltmnaliztd risk-::analysis to the point ofindustry-oriented risk.managclffrnl, rather than Iwman riglJts-flrit'tlfw risk analysis ::and man2gemcnt. Movem ents, both social ::and human rightso rientC'd, wen:: thus constrained , from the start, by the logic of this St2teind ustry combine. Pitted against the state_tcchnoscientific com bine, soci:l.l movements, including human rights mOVC'm~nts, stand reduced to confrontation wah locale decisions, nucl~.r wast~ disposal ::and eventu21 decommissioning public choice decisions (as in the temporary loc::ation decision of haurdous nuclear W2StC'S in Nevada). This habitat. marked worldwide, dlOUgil im portant, does not yet fully address the might of the stateindustry combine of the worldwide civilian nuciC2r industry. The industry marsh2ls langu~ of risk-an:l.lY'iis and risk_managemelll to which human righ ts I2nguagcs have yet to provide an effceti\'(: responst. If scientific and 'menial' workers are exposed to radi2tion risks, of courst these are said to be minim21. of n o diffen::nt order than those involved In convention21uses ofenergy. When statC'-of-the-art nuclear-safe technology fails this is due only to an inefficient state management (:l.S in Chemobyt)· Nuclear technocrats surely h2ve bener answers to safety of reactors than ill-info rmed, loud-mouthed. and sciemific211y iIIitC'rate public opinion leaders and movements. In any case, is it no t true that mo re human beitl~ perish in road accidents, and from drug-addiction, smo king-induced atlments, prcm::ature sport fatalities. and si mil2r epide miologies? What the n uclear CZ2r5 ignore is the o rder o f mutagenic risks thus entailed . But, then, w ho C:l.n S2y, ill the statC', even of post_Hiroshiana!Nag2s2ki ""hat the environmental and he21th risks may be, given the World Court'S determination on the impossibility or hazard s of nucle2r weapOnry·

th;

discour~r re,c:~

19 Sec Uum5 Weston, Richard nlk. and Hilary CharlC5WOnh (1997), 1)06--19,

ci hunlan nghts move m e n ~. Should we rather nOt accept the delightful iJuOUClance ofJ2mes, Schlesinger, the Chair of the AEC , w h00b SCIVl;U2n -,-~ underground explosion o f a nucle::ardevice at Amchitn AJ••,'I ' " I'~ 1 k'" d '" do /jllIN ' ' lo...., S2ymg: Is fort J"f JW ar! my IIII~, 10 gtl all'a), Jrom the IrQUM Jor awhilt'?,90 Tbus, It comes to pass, III these halcyon of g10~hZ4tion , th2t the corporate Im:&ge of Wttkend 'fun' st2nds symbolizro 2S a L.J f .. ' L _' d h ' . lUUgc 0 J;;Uety (or- h uman Ul:"lIlgs an t elr enVironment. But, of COUf'sc, the' hum2n rights of ::affected loc.1 ,ommun IleSlnt I ' h e 'lr r~bcally 2Itered environments st2nd 0" <7r.Ively J""'"2rd I -- r Ize d , as CI lerno byl . With awesome crue ty demonstrated. The testing of nuclear weapons has the S2me adv: rse e ~e~t. 2S shown by. the plight of the affected people in PoIdur;m, ~~asd12n . Indeed. the Indian prime minister was heard to sa that some cItizens had patriotically to be2r the burden of I nlaspnem d" 'd Y , I acqUlnng nuc e2r ' 1 1101l0ur and'd ' l weapons capacity. . . The lanmla e,' ...... e,-" of -. ... oolla pn , c make I lusory the entire Issue o f the righ ts to health and survival m dlglllty of pc~ples thus adversely affected . Nucie2t nationalism conmves the p~rsUlt of collective hl1man security ::as ::an elld in itself. t h cost of massive and o ngoing violation of the ri ...~lu to be: all d to •relllam at. e human.

wys

t3,23~ post-Cold War 'deconllnissiolllng' of nuclear weapons (as many as

weapons o r warheads were 'dlS2ssembled' m the U . _.J S betwttn 1982 92 f mtcu tates ~ad - atana~erageo l300pennnum)9I andesumated 10.000 a; ~ were to be dlsm2ntled in the 19905; one does not have an au from the Russian side. The lifC' of contalmnant w.lSte mat, to be: 700 million years fot Uranmm-235' 24000 l' d ' 'I . ' , years lor PIulOllIum_239'9'1 !em. h gh • an Slx ml hon ye2rs for Plutonium-240; similar prob• t ou on a lesser SC2le, exist for aging nudear powe' p lants '1.J IS rather summa ~ na~auon, ' d esplte " bemgjudgemC'ntal. is intended . 10 Th conv .1__ . C')' that nucieanzauon constitUle5 a dominant and dotenn' UUflUJn ofth . r f ., IIWU IUspC'nd I e I~tena Ity 0 globahz2t1on . It is a force: of production th2t them th s t Ie ethical order. It also produces certain superstructu~s among with th ~ e~ergence of a New int('rn::ational Military Order 94 i~ 2t war e ogtc and rhetoric ofcontemporary human rights enlll~ciations and

omu~on

~

~

S Rldgewayand Jcffircy 51. Claire (1998: emphasIS added) 1(10, "1 Jame' US Offic 91 US om C of1Cchnology Assessme nt (1993a, 1993h). 91 US O~ce oflkhnology AsseSSlllcnt (1993a, 1993b) 68 94 Sec ICC of Teehnology Assessment (1993a) 101-47. . c-. ,Anthony Glddenl (199016>-78 ' 183 • l ie depICtS 'glohahuuon' as am'· f _ OI'dcrs .J-fi ~tional, U'CdIVision IIllllg the arlOgn h ... 0 of 1 bou P Y 0 f h unun ooochuon: the lutlon-Sute system, a t, wutld apluhsr economy. and world nllhury order.

268 The Future of Hum:m Righ u

The Emergr:nce of an Altem ate Paradigm of Human Ri ghts

movements.95 Its own distinctive patterns of hegemon y and subordinuion foster civic culturc5, legal o rders. and lx-lief systems. including ideolOgles that;are irredeem ably antagonistic to the global cultures of human rights. And the current move ment tOW2rdS reductio n of n ucle;ar weaponry and comprehensive test ban, while open to a human riglns readmg. is d ictated more decisively by inner strategic compulsions in a post-Cold w...r scenario still within that mode of production. In that sense. the future of human rights re mains as fractured and conflicted as it Ius been for the P;lS[ five decades.

(b) Digitalization Enwombed in defence techno logy industry, the eml!rgt:nce ofinformation techno logy is another decisive transformation that Ill;!.rks contemporary globali zation. T he contem porary world stands transfo rmed in several ways by the revolutio n in microchips and integnted circuitry. First, it enables patterns of timc-space compressio n, a definin g feature of contemporary globali zation.% Second , it makes re .. l the hitherto unimaginable advances in genetic sciences and strategic biotechnology industries: advances in recombinant- DN A techno logies depend wholly 011 revolutionary techniques of artificial intelligence. Third , it reinforces the very fo undations of a secret state monopoly over weapons of m ass destruction. r"Ourth. thiS development provides a driving force for the global e mergence of traderelated market-friendly human righ ts. Fifth, it leads a movement towards re-defi nitions ofi mpovtrishrnent: poverty is no lo nger to be identified III tenns of material deprivations but in tenns of access to infornu tion or to cyberspace. Thus. one hears of 'dead' or 'wild' zones of urban impoverished in tenns of cyber- poverty, rather than in those of right to f~, ho using, and health.97 The new South is cyber-poor; the new North IS cyber-rich, thus marking w hat is now named as a 'digital divide'. Sixth,.we witness the emergt:nce of a netwOrk society in which political practices stand heavily mediated by the timeplace of privatized mass med ia and in which human and social suffering becomes heavily commoditized a.ud fun gible, to a point where it seemS to lack any voice o r future outside corporate med ia packaging. Sevcnth , the em ergence ofinformation t,:chIlologies has faci litated widespread privatizatio n of governaTlce fUTlctionS 95 Soanng anns txptnduurts and unconSCionably high defence budgets luve forever dcfcrrcd Ihe 'progn:5sIve K~h u.l ion' of soc::ial. ccononllC. and c\lllUr~l nghtS. 116 Ronald Roberuon ( 1992) at 8-33; Oavid Ilarvey ( \996) 207-328. 'T1 Srott Lash and John Urry (199<4) 145-7 1.

269

( welfare administratio n, educatio n and research. health and sanitatio n), ~king and finance. business and industry and transport and commumcario ns . Eigl1dl, robotics Ius had enon nous impacts on no tions of work and kisure and pauem s of !>ystemic under-employm ent.?8 Ninth. thiS emergence makes m coh~ r~ nt t~ e o ld appr03ches to regulation by means of law. policy, and admuustntlon as the current controversy ~r the subjeCtion of Microsoft to the US ;mn-tnlstJunsprudencc and over the regulatio n of the flows of obSCt'ne and violent traffic over the Internet shows. And finally, (witho ut being exhaustive) digitalization of the world provides timeplacc for increased and volumino us solidarity among new sorial movements, nourishing, as well as fatal, to contemporary human rights culturcs. 99 The halcyon days of mass movem ents tend to be replaced by pcrfonnative acts in cyberspace. These: ten features in all their complexity and contrad iction complicate thttaSks of reading the future of human righ ts. BlIt o ne thing is clear. T he patterns of global hegemo ny of ownership of cyber-tech nology, and conlCqucnt cyber-vassalage. arc here to stay and grow enhancing further the Non:h-South inequities. unless hl1lnan rights m~ l1lents foster new futures bdte cyber-proletariat. It is also clear that instant e mai l solidan ties. while Iel'Ving to arrest (as the refo rmatio n of the MAl shoW$), carry with them • danger of maki ng local mass m ~me l1ts almost irrelevant to the IBIking of future huma.n rights. Digi taliza.tion of protest movements, as c.trlls has :.nown, no doubt contingently enhances the power of collcc_socia.! action ; how far this powt:r assumes often an illusory form must ftlnain an open questio n. [n contraSt, there is in evide n~ the incrusing pown- and movement of some manifestly h uman rights antagonistic lnrNttnents that succeed in nam ing the values and no nn ofcontemporary human rights as a source and seat of radical evil.

(e) BiotedmoWgy l( civilian and military

lISCS

of nuclear power dom inated the early decades

olthe second half of the tw'entieth centll ry CEo the latter decades have been ~d by the pervasive breakthroughs in the field of genetics. The anees 111 recombillallt D N A engineering have been spcctacularlywideng and to almost every area of 11lIIllan life. Advances in cybergive rise to a w ho le variety of biotech nologies and underlie the 1St: and 'peri ls' now of new forms of emergent nano techno logies.

:t ~cJate ~ol~

-

" Gorr. (1982).

5«

Castells ( 1997) 68-109.

The Emergence of an

270 Thc FolUre of Human Rights

These also give binh !o the fomtation of technoscience based 100 Strategic industries that resent and often reject state and internation.al regulatIOn and generate new fomls of t«hno-politics. 101 1bgcther, these constltme a genomic materiality of globalization (little noticed in social theory narra_ tives of globalization) contributing to the formation of'New World Order Inc,.102 Biotechnologics, united in the pursuit of reductionist life sci~ ences--where 'life' is no more than infonnation open to technoscience codification, manipulation and diverse techniques of mutation and reproduction-fail into several domains. Each domain prOlmses the 'greatest' human good. Agricultul'lll biotechnology. fostered by agribusiness, prom_ ises food for all; pharnlaceutical biotechnology promises health for all; industrial biotechnology promises sustainable development for the world and the human genome projects, among other things, now promise new possibiliries in therapeutics and benign human cloning. The belief that biotechnology provides unprecedented vistas of human progress is not juSt media hype; its practitioners, in all parts of the world, live by it. It is an anicle offaith with this community that, no matter what human rights and social movements may say about the human and social costs entailed in the processes of genetic research, experimentation, and appil- I cation, the ovel'llil gain to humankind is so immense as to render any social critique counterproductive. IOJ The mode of construction of progress ru!;lT':Itive has little use for the old pandigm of hum.an rights. based as it is on notions which corpor.ltt technosciellce now renden obsolete. The essentialist ideas which this paradigm rests upon now seem insensible. insofar as these could be said to rest upon the norion o f inviolability of that which constitutes the distinctively 'human' and the 'dignity' that should invest that ·human'. Technoscicnce deconstructs the notion of being human altogether different1yas hi-tech, capital-intensive sites of research and innovation, where being human is constitute'd of ever SO readily available and exploitable ensemble ofgeneoc information. What is human is truly a cyborg (in Dona Hanway's inimitable conception. I04 Notions based on the integrity of~C body, for example, make very little sense because 'body' is now big buslness. 'OS Genetic information in bodily tissue, parts. fluids, emanations and 100 Donna l lar~w~y (1997). 101 Dan L Burk and Barbara A. Bocur (1994); US Congreu. Offia: ofTc('hl101og)' As5e5~n~m (1998) 78--9; CaI~lOu5 Juma (1989). 102l1.uaway (1997) al 151-72. 103 Martha Nussbaum and
All(~le

Paradigm of Human Rights 271

,..ces, including the DNA of "vanishing' indigenous peoples,I06 has now beCome the common (orporalr hrriUlgr of hUlllollkilld. What 'dig11lty' and 'inDegTity' may we attach, outside the cOllSldel'lltions of management of ploughing in super-profits for billion-dollar biotech strategiC Industries, to human particulate matter, these tidbits of a gigantic genetic seesaw, is a q~SU OIl considered not merely unworthy of a susuined response but rather as a frivolous mode of interlocution. There is no doubt that, in some ways, technOSClence must remain accountable. But this accountability is owed to t«hnocr-mc peer groups, pOt to 'people' at large who stand ascribed with scientific pre-literacy, and ac the same time constituted as avid consumen of many a biotech Sant3 Claus bearing in r-DNA stockin~ the gifts ofheahh-the promise ofcure of dreaded genetic diseases, xcnotransplams, life-sustaining therapies, iDcredible diagnostic immunoassay toolkiLS, genetic enhancemenLS, ge_ DCtic~ly mutated foods and beverages with longer shelf life, and the future markets for bodily spare parts through the human clones. In a great Inversion, then, the global communities oftechnoscience, not me 'duly' elected representatives of the people, become the custodians of pubbc policy and human futures. The categOry of'pcople', at any rate a IUlpeCt category in much of non-socialist democl'lltlc theory, to whom tIXOUntabiliry now becomes replaced with the category of needy consum... Their legi~imation denves In responding to these pcoples' needs, "ns, and deSires. Law, poilcy, and administl'lltioll must then stand ill -Aduc:wy relationship to the potential of self-regulation amongst the edmoscientific peer groups. These understand best the need fo r selfftltramt on where to go next and how far to go. And '[hey' do not constitute a monolithic community: the disscnting .academies withi n peer IFOUp knowledge production modes will insure against errancy .and prof~oftechnoscicllce development. In such a situation, neither legislative ~07nor judicial oversight furnishes the best model for public regulalion. Surely, trans-science comprising questions that can be 'asked of ~e and yet callnot be answered by science'l08 must be best left to thOS(' W'quknow w hat tee hnOSClence . .IS, an d not to the Outsiders who at be,. ""0n IY pl'llctlce - .)unk science'. 109 ' , Lfo~e death of reb'l.11ation. o r de-regulation as a form of regulation is a OIII;'lnmgmodeo f genomIc . Cll Iture, now upon us. From AsI.lomar to' the

.

,

107 ~hy NeIlan l nd Lorn U. Andrews (1998) 17. ...... (\ • Susanne Wnglu (1984): Kennelh Fosler and Pelcr Ilu bcr (1990): Peter III 993). '" ~n M. \\bnbcra: (1972) 209-22. John P.tlcnon (2003). nnelll R. f'wlcr al}(! Ptl(r W. Iluber (1999): Ptlcr W. 1'uber (1993).

272

Th~ Fumre

The Emergence of an Ahemate raradigm of Human RIghts 273

of Human Rights

current debates o n hunun clo ning the progress narrative of biotechnology co nstructs and reconstructs the self-sam e scenario of self-regulation: proclaim technoseientific concern about new developments, declare selfimposed mo ratoria 0 11 some kinds of research, encourage wc ll -ll1ana.~ inte rrogatio n of m ega-science, promulgate regi mes of hi-tech, nOll-trans_ parent self-regulatioll thus preempting publ ic oversight, and allow a cas_ cading takeover by special interests of the pubic arena, preclud ing popular constructions of risk. m ayhem , and injury. A new global public of tedmoscience thus overeomes the arel13 (in Habermas' vei n- from this perspective) constituted by representa tions of 'communicative power' (md its hopes) in the fo rnution of d iscursive will-fonnation and public opin_ ion-making as the sint qua / /OP/ of the productio n of 'Iegitimille law' in postmodcrn societies. Despite all this. this new fonnation nourishes itself on some o ld eleme nts of human righ ts paradigm . though transformi ng it in MonsantoDupont- Shell terms of trade-related market-friendly human rights. The transfonnatio n is, indeed, a species of genetic mutatio n! The right to perfonn scientific research is presented as immanent in the modd of free speech; 50 is the right to experiment, mostly witho ut 'i!lfonne
(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
i:;=d

278

The Future of Il uman R ights

Markee Fund.lmentalisms 279

tolerance fo r egregious fonns of business conduct and practices that tr:lns-. ~ h uman fights and constantly reproduce human vio lation . This single_ minded PUrsUit of a human rights-oriented fumre for globahzation and human development is perhaps the only peninent WAy ahead . This ehapter explo res fi ve rdated the mes. First, the denSl! in lenextuality of the N o rms and the Comment
II. T he Dense Intertextuality of the Norms T he ever-pro liferating fo rms. and fo rmats, of 'soft law' productio n enUl1 immense o rders of sdf-refe rentiality. Each 'soft law' declaration thrivcs on multiple. even protean, references to the lithould it be parsimo nio us, referri ng o nly to foundatlo na core, o r key texts developing the international standards, and norms 0

r

6 Juhm

·--'1010 fcOlIlScone (1964) descn bed thIS as the u1iem Item, In theJu(hcu-I rouo

mo n bw In terpreullo n.

~tional I ~w? I-Io.w is ~ is determination to be made? We may note

here dut. unltkt theIr natio nal counterparts, human fights legislauve ~ rson5

cnjoy even mo re contingent location, all too often task ..,ecilic, within the ever-expanding institutio nal nerwork of the UllIted NabOns systems. Independent experts, special rapporteurs, o r even expert g10UPS remalll guest artists within the system , working WIth sparse servicJDg sccreuriats-a usually compact and circumspect group ofofficials. The buman nghts d raftspersons, drawn from the worlds of acadelnta and now IQCw and hum:rn rights movem ents, st
,

.... Johan C'.altung's ( 1994) m uch Ignored :m al~1S remams. to my m md, decisive:. All III ~I non, pom ts to the differcnces between corpus, ge nre, lind

~b Instru ments. See gene rally, the discusuon m Ihxt (2003).

-..!

text

m hunun

thiS I Intend to refer to the special vocabub nes of conte:mpon.ry mtenurional Ilghts nonns and 5undards. Each Iand m~rk instnlluent develops Its own ~I(" nnS" and SOmewhlll specialized languages. The Internatlo n:tl Bill of Rights -0 dl~crennate:! language'S ofimplemenu no n 11110 reglllles of IIlSUflt obligatio ns as IIIet:a ~ progres.sIYe Implcm cnuuo n'; the Jaile r IS a speci ~1 dl.llc:et enulli ng various ~()ts of obhg:m o ns to respecl, protecl, ~nd promote: 5OCI~I, economiC, ~nd "If b rights. The CEDAW. 10 uke anuther ex:l.lnpic:, through Ihe General Comment 110 ~red ~l""ponmg oblig:molls, now elll bn(e5 wllh m Ihe mu nmg of dISCriminatio n llCe apllm WOmen. I m ~y nOi pu rsuc thIS IIll porunt thc:nuuc here SolVC to tasks oflmgtllsuclpan_lmglllstlc, and SC nllotlc ~ nal ysis of dlfTc:rem d ialccts of nghts tCllUln pres§mg.

280 The Future of Human RighlS of legibility, intelligibility, and understanding. Not everyone outside the charmed circles of the self-selecting norm-makers,9 and unfortunatety. even within these, actually knows every word of each text. and accompa_ nying context, thus cited and invoked. Nothing less than a fully-fledgotd reality check concerning intdligibility among nann senders, add~~, and receivers remains conducive to the fmurtS of hUlrun rights. On a very rough count, simply because the [ext of the Norms at least refers to at least 56 instruments,lO the dense imcncxmality needs unrav. ding. The count is rough indttd and must remain so because of the inherent indeterminacy at play. and war, in at least five categories: 'hard' treaty and custom based obligations; 'soft law' constitutive clementS Within 'hard law' fonnations; initially 'soft' enunciations that somehow COllven themselves into regimes of 'hard' law; 'hard law' enunciations that ultimately soften ; and 'soft law' en u nciations too variously 'soft' as to def)< predictions offuulre hardening. I shall not, for reasons of space, elaborate or exemplify these distinctions furthe r but no reflexive student of human rights norm creation may q uite remain innocent of these patterns of nomlative hybridity, now and yet again writ large on the Norms. This peculiar fonn ofintertextuality remains worrisome if only because it tends to produce continuing fonns of human rights j1/ill'rtU}' for the human rights (ograoswlli as well the laity. Not merely the human rights and social m()V('!l1ents constituenCies but also transnational CEOs Il1<1Y, wah a measure of Justice, cI.aim unfamiliarity with all the Instruments of the: so-called networked knowledge bases. II Too many, exuberant rcfe~nces to past sources legitimitt enunciation of new norms; at the same time, 9 A hiStory ofhow the Umted N3tJoru system selects c:xptns for noml fomluiauon hu yet 10 be wntlCn but w~n wnttcn it IS wotlCn It will c:xpo5e nthcr fully the charM:t' and circunlsunces, Wlthm SClJltercd networked hcgrmonrs Ihn dcfine the ~ltm th~t bongs only a ccnam 'dns' of epistcmic Ktol'3/xtlnwfigul'C$ 10 tillS gSk. 11tclr K'nsmvny 10 suffcnng. as Dou:lilUS (2(X)2) dcvasutingly rcnllll(b us, may oflen be confined to the suffering mduccd by 3 ~ wine! loThcsc mclude 18 trt'~tle5. 11 other multiialcn! ill!StrumcnlS and gtudclmcs unckr the Umted Nations. Intemauon)! Labour Org;Iniution, )nd rclated supr:UUIIO~

auspu:es, three mdustry/commodlty group 1II11!auves. SIX uflIorv'lnde IIllllallV't'S. of 'self.lmposed company Codes'. ~nd fivc NGO Mode! GUldclmes E;u:h of IheS('. , 0 r c::ompic:x an d cOllin d'IctOl)' eIemerus- ofartlCu· coune. harboun an mfir1l1e vUlety !awry pncllces. Here I must perfoKc mvtte your tririt-1l1 tIlJ.'l\\'t,nnJl wilh Ihe exlen~IVC refe rentul preamhulalOry I'CClul in Ihe NormJi. II)' II Incklenully. despite the Inlerllet explOSion. riot all Ucll1VC$ ren1~1II e(JeqUl I ,~" "--"-""" ~_ " _ 011 M U ltnu uorta av:,u l)hle. For (':ample, try trackmg down the UN 1.IT~,t pre:Corpontions. 1984; to OOum access to this requites dlffteull forms of ac::ccss ;r the ~b Illenlure. now. abs. an aff~lr of the h~ry ~mlc p6!it! So Jlluch then 'Infom13uon society' gI~1 cxploslOfl of buman nghlS ~ t

Market Fundamenblisms 281 COC)'Clopaedic referents complicate underst41nding and generate new [onns

tL human rigills illiteracy, particularly the more perniCIOUS form of the II/iIrrd()' of till /i/MJ/l. The political economy of excess of self-referenttality til the prod uction of contemporary human rlglm production inVites careful thought (aspects already analyted in Chapters 4 and 7).

Ill. The Network Conception of Corporate Governance, and Business Conduct Corporate governance and business conduct 12 have hitherto been thought m £emu o f lcgalliability of business entities, and not in tenns of human righb responsibilities. The Norms now accomplish two outcomes. First, aD business entities remain subject to the disciplinary regimes of 'human rights' and 'international human rights' inclusively described as constituted

by.. , civil, culmn l. ec:onOllllC, politic::al, and social nghts. as Sct fanh in the lfl\crnation)1 III uf Human Rights. and other human rights treatlC$, as well as the righl 10 hlopmem, and rights rtcogruzed by 1Ilienlauonai humamurian law, illlemadonal refu gee bw, mlemauonal bbour law. and 01,," rrltvdn, IlISlnl/nt/11s ll00p/fd . . . lilt Unr/fd Nalw,1S syslem IAnide' 23. emph.;asIJ added.) Second, 'business enterprises' , defined generically by Article 2 t oC the Norms, mclude:

-r blliinrss

cnu~ rcgardl~, of the imematlonal or domestic sphere of ilS includmg ) transnational corporation. contractor, subcontnclOr, sup...., licensee, or distributor; the corponle' Plnnenhip, or other leg:il fonn used to nublish the businc:ss entiry; and the nalUrt' of the ownership of the business atIvItJc:s.

-.y,

ntc ~orms 'shall be presumed to apply, as a matter of practice under two IltUano ns: where 'a busi ness enterprise has any relation with a transnational COrpo~a~on' o r where 'the impact of its activities is not I'IIli"ly /oeal'.u bet.ThiS IS an cxtraordin.ary articulati~!l. The .Nonns conStruct the alphagramma.r, and the library ofbusliless ethiCS ofthc ncw human rightS t;:llle prOJ~ct! H ere no possibility ofjunk genes may be ~l1visagcd! All s of busilless entities attr.let all norms and all standards of human USc M 45...64e uchlrnski (1996) 57-89; ItltcmanOllal CoulI(:I1 for lIulmn RighI!; (2002)

u . B:ua (2000). ,.."",.'n,,"t~itd "" SIIU~Uon i$ where 'thC' activltlel of a buslllcss entctpnK' mvolvC" IIldlCalcd III paragraphs 3 and '4'. Amcle 21 the Norms (emphasis added).

282 The Future of I-(uman Rights

Market Fundamenb.hsms 28J

righu. The heavily netwOrked conceptions both of hUlmn rights and business enterprises and of human righu forbid any eclectIc approach Writ large on company codes and ofcourse the so-cal led United NatlonsGlobal Compact. On this perspective, all human rights obligations matter coequally regardless of the source, contingency, and viciSsitude of origin (treaty, custom. treaty-based custom, or allied and ancillary fonns Of'50ft' law') no matter how diverse the range of specific and general duties thus prescribed and how difficult the imple mentation or actualization of the enshrined human rights. The Norms do not, of course, and n ghtly so, provide anyabsoliltist conception of human rights (that is a world of buman righu beyond the realpolitik and not subject to national reseIVations and derogations) but they do legislate a Imivmal cOllct:ption. which mandates fulfillment and realization as a paramount duty of all centres/networks of power and domination. To say 'human rights' is always to say chokingly a very great deal, and also to always participate in an economy of excess! The netwOrk conception ofcorporate governance and business conduct points to the web of imerconnectivity of withi n-nation and cross-nation business entities that so paradigmatiC2llydefine the forms of comemponry globalization. Production, supply, distribution, commodity, and service chains increasingly, and heavily, intennesh the global with the regional, national, supnnational, and the intensely local. Severance of interlocking and intertwining constitutive dements that constitute business activity. enterprise, and entities is no longer. on this conception, possible: devis1l1g human rights-oriented regimes of surveillance at any ftxed nodal point IS insufficient; indeed because the very notion of 'nodal' poUltS rcaches Its vanishing point in a post-Fordist and postmodern global economy. C ritics may justifiably assail the runaway invocation of human rights regime thus comprehensively framed in relation to all business entities and cond uctAlthough said to be primarily targeting 'transnational corpora~ lions, larger business, and any firm with connection to transnational cor~ porations', the Nonns may even extend (in the words ofone ofits principal authors) to 'corner bakeries, dry cleaners, and other small 'mom and pop' types of local business,.14 The detailed description of suppliers, contrac~ tors, iicenS«$, distributors, security personnel, and others, stipulating human rights responsibilities for small vendors of multinational co~ra~ tion producu as well as processes does not exclude smaller business SItes . not thus ostenSIbly connected. It would indeed be hard to defi ne, In rapidly globalizing economy, when (in the language of Article 21) the impact of business enterprises 'is not entirely local'.

,

I~ ~ David ~1$5bro(1I

and Moma Kruger (2003) 910.

As we all must leam frOIll the femi nist critique, no site is ever toosmafl for nusslvt hUI1I;l.n rights violation. Microfacism of power manifests itself

rnost crtlel ly at ~maller.s~teswith low p~bl icvislbility. l t may thus be argued ddt consIderations aflSmg from practical reason reinfo rce conccrn WIth small and medium enterprises, no maller how defined by the m:e of Utve)tmcnt, workforce, or turnovcr or any other relevant factor. The Norms, however, invoke deep contention. Strategic tr.msnational busaness interests cannot but .contest a netwOrk conception of corporate sovcrnance that makes these hable for each infraction of human rights by aU and sundry associates and affiliates. Local small and medIUm business (DO matter howsoever defined) may, with equal vigour, contcnd that such massIve: ~ure to. wi~e-rallging human righu standards not merely IpCl1s the rum of their t1ll~o-entrepreneurial activity but also the Opporaauucs they may o therwtse offer to the millions of the impoverished 10 cheat t~e lr ~y into survival . IS State actors may also, particularly but DOt cxcluslvcly In the South. voice similar concerns because strict enforceIIXnt of labour-related huma,~ ~ghts obliga.tions for business enterprises IDly swell , bey~nd actually eXlstmg governmental coping capabilities, the IIrndy harrowlllg numbers of the impoverished unemployed-/under_ employed. A recent UNIDO study Sums this type ofargument pretty well:

~mg mapproprl
_ nCJl; .. le:.d to JOb losses. under~invt"stment, Ixl: of SCIVlCCS. and ever-Wldenill pp between developed and devt:1opmg countnes.16

1'hte-thic~I. logics ofthe proposed overarching articulation ofhuman rights

I'tIponslbl l~ tles for all business activity and entrprise remain thus fraught lritb matenal (as against logical o r nonnative) contradictions. One hopes lpinst hope that by mid-200S, when the Nonns may be fina lized, some

" ~~;tdy Ihe strict applicalion of ("IlVltonmcntal sliIllcbrd.!l leading to m(" closure ofllNJ So.ch h..J tlSlnCSSoeS beall5C oftheirpropcnslryforpoUuuon In nuny ~m ofthc G~I

beatr)Cu.::~ ~11ed toa cnuque of!IOClal and human rights otalVism by Its supposed anitt ' Dunng lhe XI/VISI shce of my hfc, when I SCC'Urcd a GUJarat High Coun ~ ',n1ullIlg SInce cllrOrCCIIICIII of the amehoratlve Indtm li'OI~la lion pm= ......... 0 COlllDeI kc h -,.IIlg ~ wor no, I e COntractors r~ialed by putting people OUi or Job and ioo.oL_ I.~kcrs only 100 eager 10 filllhcir shoes. The owtcd workers !hen 10 dw~~~ -7-tI"numbc cd • ~q,. ~ .f$, turn up al my doorstep as kmg me 10 provide them Wlth 51nablc ... W15Illt!llt' I did Illy bcsc but rnll~ed thac as;an NGI (non-govc.mmcnul IIlchvidual) d /USI noc good enough to eOUliter the)oll blackmail' by powerful comractors . I Clllllla IS acUte ~an cven fior 'Nt' " -teSQUI_~~ ~"" NGOs who USC" thc human tights

s.am

"

16 UN~~ ~mZCd (Ihc lIIorc accurate cxpTnSlOn IS di1«ga"~ workct$. (. ). Of course. the UNIDQ does 1101, whilc presenting ii, enurel .. IS POSition y

284

The Future of Humall Rights

Market

cre2tlve mcdl2tion of this nuteri2l comn.diction 1112y be, aflCr all, be achieved. 1 dedicate this C hapter to the bbour of human rights activism aspiring to such 2 mediation, within and outside the bounds of the lIllT('_ 21istic de:adline.

rv.

Categorizing Obligations

C:ategoriutlon of human rights oblig::niol1s 2nd responsibilities directs :attention to twO levels: the hum:an rights responsibilities of sutes 2nd those of tn.nsn:ation21corpon.tions 2nd other business enterprises. Regarding the former, the 'primary' sute responsibility to 'promote, secure the fulfill_ ment of, respect, ensure respect of, 2nd protect hum:all rights recognized in internation:a12s well as n:ational law' now stands invested (by Article 1) with the obligation to ensure that 'transnational corporations and other business enterprises respect human rights'. The human rights responsi_ bility business entities nuy be summated in terms of duties of nOIlbenefit from human rights violations, duties of innuence, and duties of implementation. SUtt responsibility is unqualified; transnational corporations and other business enterprises bear these responsibilities only 'WIthin their respective spheres of activity and innuence' .

or

(d)

285

~a l ,1 7 but a massive programme oflaw refonn that translates without gansg.rcssmg the primary responsibility of SUtcS. 18 If national laws in fjmtlj~ do not incorporate reqll1slte human nghts obligations, what remains of this vaunted 'primary rC5ponsiblhty?' I low may pohcy, law, and public administration, lIlciuding law enforcement, be adequately transfonned t0W2rds due dili~nce and discharge of the primary obligation? Does the 'primary' oblig:oltlon extend to courts and JUStices in their everyday work? Because courts are 2 constitutive aspect of the 'sute', do the Norms enuil an order of specific duties of~ udicial acuvism', and as a concomitant obligation, due deference, by coordinate branches of government to judidaltjuridical autonomy that mandate specific {onns of hum;an rights oriented accountability? In tum, any serious discussion of these aspects should uke into account the Cruci2i issue of within-nation budgctary/2110cative resources that govern ments must provide III order to effectively service administration and implementation. 19 Additionally, how may all these considerations apply equally to regional and supr:m ation21 institutions formed by sute coalitions?20 Th\: Article I enunciation of primary sute responsibility thus remains wholly vacuous. Perhaps a kinder description of this 1I0rn12t1Ve happening • that thiS fonnu lation of general responsibility of sutes, is at best. a 'Boating signifier'.

n'e Primary Slalt Responsibility

How are we to re2d this fonn of responsibility, which is nowhere articulated speciJically? This is undersundable bcca.usc the Norms pre-el.ninently address corporate and business human rights responsibilities. However, far from being momatic, the 'prim2ry responsibility' of states is profoundly problematic, If one prefers a 'Strong' reading, this immediately suggests that stateS ~ a non-negotiable duty to translate these nonns into national leglsla* tion. A 'we2k' read ing, at best, merely suggests the state's obligation to develop an 'operative human rights culture' for tr.msnational and other business enterprises. An 'eclectic' reading would suggest progressive (read expediently \V2yward) implemenution. I A 'Strong' reading of 'primary responsibi lity' would reqlllr~ al states to extend human rights responsibilities to all macro- aud 1I11C1'O" economic activity-regardless of the issue of their economic vlablhtythrough performances of law. administration, and policy. They wOlll~ be required to rein 111 the awesome power of the transnational cOrpo~JtlOIIS to naunt national j urisdictions. At manifold normative levels, tillS does . gIrewriting .. 0 f conSlItlltlons, .. . las wd1as not merely involve wrltln nauona

Fundamenuli~nlS

(b) n,~ Crt/tral Obligatio,1S

of Corporal~

Golltmanct (md Business

COlldUCI

Many d~ricsattach (under Anicle I of the Nonns) tocorporategovemancc . . bUSiness conduct within 'the ... spheres of innuence and activity' of -.nsnallonai enterpri~ and other business enterprises. According to the Cornm~n~ry 2ccompanying the Anicle,these obligations inc1udefim the ~Slblh ty to 'use due dili~nce' such that 'their 2ctivitles do not contribute directly or indirectly to human abuses'. &lond, business entities may "Th IS ~I~, for example, dlmeull qU\!'5uons concerning the oolT1p~ubillty of the Ptup. ~~~ ConsuttJuon with the Noolls. In any event :.IS richly dClllonstr.ned by JIObcics I h~ms (2004. 20(5) the E\lropc~n Unions hllm~n rights plbcy embodlC$ 1& ' " r.tthcr than p h um~n nghts. h""", tid: . to t~ns1~te IS ~ 1w.lYS to transgress. M~ny hmmn lanb'u~gt'$ and dialects ~ SCmlotic C(jUlY,llents even across the worklllg bnguagcs adopted by the

_n 19

Nations.

. ;::ere CXlsts :.IS yel no diSCipline Ih~t may be l1~med as III/mil" rights t(IHIDmi(s. ~... ~,,',;'",~rrent eontl'O\l('rsy conttrnll1g tlie award of contractS to favoured American In OC'CUpIOO Iraq r."'~ acute q uestions not wholly antiCIpa ted by the

286 The Future of Hum;m Rights not 'dir«tly or indirectly' ~ndit from abu~s of which they were aware or o ught to have been aware'. Third. the Commentaryexplicates furthe rdu diligence obligatio ns. In particular. business entities 'sha ll Inform them~ selves of the human rights impact o f their principal activities and major proposed activities' so that they can 'avoid complicity in human rights abuses'. Follrth, th ese shall 'refrain from activities that would undermine the rule oflaw as well as governmental and other efforts to promote :md ensure respect for human rights'. Fifih, they 'shall use their influence in o rder to help promote and ensure respect for human rights'. Indeed. the Nonns provide a massive detailed footnote elaborating variously these frve duties. I attend later to the ways in which these overarching duties rai~ dctp ethical questions. For the present, some close textual analysis renuins pertinent. The Committee d eploys two discrete categories: hUI/Jall tlbusa and hUnuln rights tlbl/Sd. The first two oblig;nions mentioned .. bove ..ddress hum..n ;!.buses, the rest speak to human rights ab uses This distinction is indeed crucial. Not al1ll11maPl abuses may necessarily constitute Iwmtltl rights abuses; further, not all human rights violations may remain synonymous with human abuses. It is important to stress that the Com mentary seeks to impose a more stringent obligation with regard to human abuses in the s«o"d principle above. Corporate and o ther business entities may"'" profit from forms of dir«t and mdirect h uman abuse::; the fina l adoption of the Norms must then fully add ress the problem at least of such UllJust enrichment. 21 Prescinding thiS it is clear that fai lure to observe human rights standards and no nns, and to generally foster rule of law and respect for human rights, carries no such dire conseqUence. Clearly, human abuses remain more directly accessible both for the perpetrators and the victims than human rights abuses. The Commentary he re adopts a phenomenological basis in sculpting the duty to ;!.void bo~ di rect and indirect human abuses; accordingly, this form of business ethIC forbids forum shifting. Put another way, the fact that the~ abuses ~r under the auspices of business affiliates (including subsidiary compa.mes. contractors, subcontractors, licensccs, corporate distributors, and busme5S ~curity personnel) does not dissolve network responsibility. Of n~es~lty, this notion will attract a whole variety of diverse future apphC3~on, locally and globally. However, starvation wages, slave-like labour practices. unconscio nable forms of child labour, sexual harassmenl al workplace, 21 Sec generally Andrew Clapham (2004) 50; Amu RaIllSastry (2002). AsSU~: dut such Inlpemllulblc: benefits result. what dutK's of n'PJir.moll then (olloW) I 't nuy these dulleS df«uvc:iy rcsltuate those vlOlatcd? Put another way. how "uy ~ mit' this obhgmon within the Imaglnatlvcly crafted !lOtlolU of global dlStnbu JUSUCC by Charles R. Hem: ( 1997) and Thom:u W. 1\1oggc (2002).

Market Fundamenulislllll

287

..,.ntOn disregard for worker safety and occupational health, thofQughgo-

• creation o f environmental hazards. rape, sex tourism, tying young children to camels in camel races as a fornl of commercially sponsored sport. child conscription for purposes ofinsurgent action, clearly constitute IIMnulll abuses, even when existing human rights norms and standards may not ;J,llow descriptio n of these practices as human rigl,1S abuses. ThiS phenomeno logical approach to human/social suffering rests, at the end of the day, on a distinctively intuitive moral anthropology. Because all human beings everywhere, at all times and places, know from experience what human (and possibly human rights) abuses are, the second obligation UI10lizingiy refers to duties ofabstention from direct or Indirect derivation ~ 'benefit from abuse of which they were aware or Ollgl't to have hem 1IM'tlR" (emphasis added). Yet, many human rights abusers, especially the trmsnational corporations m;!.y plead, at least prima facie impurity on the tpoUnd of indeterminate nature or non-applicability of intcm;!.tional lIw-b~d human rights o bligations. Detemlined efforts at expunction in the final United Nations adoption of the Norms and the Commentary may thus be expected. G iven this possibility, Ihe way ahead lies in ex(:mpbfying the category that renders opposition to human abuses a manifescly 1II'UIl0ral, and obscene, public perfo rmance. Thefouffh and thefiftl, o rders of general obligations may, for the purposn of analysis, be named respectively as the 'refram ' and 'proactive' codes ofobligations. The refrain codes remain understandable in terlllS o f 'educal inv(:smlent' and company codes, as well as the exhortative United Nabons Global Compact. Even so, these remain deeply problematic simply because we do not quite know, nor are always able to say, w hat may, Ifttr 0I1i, undermine the 'rule oflaw', both lutionally and globally. This IaiUlns vexatious question. Is corporate campaign funding for manifestly bwna.n rights adverse political panies and candidateS Justified under the Norms? Outside the industry/corpora~ stnuegies of suppon for partics IQd ~mes that advocate within-lacross-/ nations cnmes against humanity (fonunatdy now a term of art under the Statute of the International Chminal CoUrt) some difficult questions arise and persist concerning the discharge of this 'mle of law' reinforcive order of obhgatlons for COtpol7lte governance and business conduct. \tbuld massive corporate iobbYlIlgand funding for legal change for repealing progreSSIVe labour law :nsutlile a violation of this obligatio n ? Are pressures for the establishment free trade economic zones human righ ts violative? How may we view :'::sess the Global Compact and company codes that' ~If-sclect' among ~ n fights no rms and standards from the vantage point of this o bligaand thus self-destruct these very nomts?

2tI8 The Future of J Juman Rights The o bligation stipulating deference for 'governmental and Other efforts to promote and ensure respect for hum:m rights' (the proactive code) also raise:s a cache of questions. Transnational corporations and within-nation prelmer industrial houses,often workmg in concert, POSsess vast spheres of in flue nee negating human rights enjoyment and nulhfying their eventttal realization, eveil their protectio n and promotion. Ilow may the duties of deference be deployed to aid governmemal efforts to foster respect for human nghts? Should these entities be required to materially comribute resources for literacy, e!emenury, and primary educ.tion? Should, in the area of their influence, such emities be called upon to mak,c available at affordable prices life-saving drugs and biotech diagnostic toolkits and programs? Do they have an obligation to respond to govern_ mental effortS th.t Sttk to ameliorate the plight of the disabled peoples? And how may these entities assist the CEDAW progt:l.mschrift dial no t merely calls for end to distrimimlliml against women and violence against them but also for the eradication ofprtjlldict? What specific human rights responsiblhtles may extend to the mass medi., cybcr-culture, entertainment 2nd advertiSing industries, now increasingly owned by trallsnatio n.1 entities, to avoid in all their operations performances that further en trench and enhance cultunl stereotypes? How may o ne, finally but without bc:ingexhaustive. opcratio nal ize Article I mandated corporate and business solicitude for 'the rights and interests ofindi~llous peoples and other vulnerable groups, at least in terms of duties of corporate 'philanthropy'? Further, how may the Norms be COllStnlOO to avert and forbid corporate govemance/business conduct that aids and abets some gruesome, massive corporatC/business enacted human rights catastrophes, as for example, those in Ogoniland and Bhopal? Does this duty entail any further social contract type obligation in d isinvestment programmes or the perfonnances of public-private regulatory regimes, requiring that special attention ~ given to the continuation of affirmative action policies, programmes, and measures borne by the erstwhile state!govcrnmeut corporatio ns from whom private actors have taken over? H ow may we, finally without bei ng exhaustive, opcratlonalize the Article 1 mandated corporate and business soliCitude for the righ ts and interests of the indigeno us peoples, at least ill terms o f corporate philanthro py? Put anothcr way, and mo re gem:rally, how may human rights values, norms, and standards fully Iilform the 'theory' and 'practice' of corporate SOCial philanthropy? , . The further obligation to cooperate with 'other efforts' must Signify duties of coopcrallon with the inesti mable work of the NGOs. Th~ obligation entails a radie21 transformation o f corporate governance an

Market Fundamenuhsms 289

bUsIness conduct, which, wage a war of position (in the G ramscian sense) ~ n .. t NGO critique. expose, action, and movement. The hostile operagons IIlciude attempts at actual harassment of NGOs, lluSlnfo rmaoon cam ~lgl1s through mass media coverage, legal liltllllidauon such as SlAPPS sOlb, attempts at cooptatio n 22 and capture and control over human fight:> markets.2J Additionally, corporate and business strategies create their own NGOs (business and industry artcls propelled instant and endumg NGOs) III counteract human rights friendly work of human rights organizations, movements, and imtiatives. Do the proactive duties entail a genetic mucaaon that, may as it were, result into conversion of the mighty internaciona.l lions into m eek lambs? What software of management education processes that program the lust for power and profit may be needed to aid chis uansforn13tion? A proactive code ofo bligations ought not to remalll dangerously inrna_ . It sho uld not allow tokenism that signifies opportunistic cooperation with efforts.t fostering respect for human rights. To allow such accretion of' sym bolic apiul' lin the phrase: regime of Pierre Bourdieu) remains .. Itself mherently human rights violative.

(c) Sp«ific Duties Pam B-1 r [Articles 2-14) of the Norms e nunciate • whole range of!>pecific

dunes and the Commentary further elaborates this range. Rc.solls ofspace bbid a detailed analysis o f this ad mirable performancc. even aehieve1Bmt. Ilowever, o ne must nOte that the specific obligations sUlld animated by the belief, and conviction, that almost all human rights norms and ItIndards by definiti o n apply to transnation.1 corporations and o ther business enterprises. I wholly endorse this welcome asprratio n but this rtnu.ms somewhat beside the point, because: the eminently sute-cemric burnan rights discourse extends primarily to state actors-thus not entirely . n to translocatio n to the real world of trade, business, and industry. 1"0 thiS extent, the automatic affIXation of obligations under international ..... to non-scile entities articulateS, to use a rather obsolete phrase regime, hot elements of Itt law but those of d~ lf1r!tjeromJa , not the POSItive Law, bu. the law in the making, o r high on a wish hst. The contrast between fOrms of politics of insurrectio nary desire and politicsJor hum.n rights, and politics oJhuman righ ts (that is deployment of human rights I. nguages IDd rhetonc that serve the ends of domination and governance) thus ~

a:J

See, ChaplcJ 8. Sec, Chapter 7.

290 The Future of Human Rights

" WT,", 1._ All remains • r.- 0" the Norms and dIe Commentary. . . progr~ lve codification of Intern.:ltional lawvcntures, of necessity. negotla~cs these two radically distinct realms of politics. The ,Nonns suc~eed l~npresSI~ly when read as am mated by the politics of deslrt" that fUTmsh an Ideal Utopia. The NomlS crr on the side not of cauti~.n but exube.r.lnCc. have a prospect Even so, as John Rawls reminds us all. such PUrsUits .• b "Id of qualified success when they seck real utopias Ulat UI on ;av:ulablC' forms of moral sentiment-not idealistic ones that seck to transform h Itogethcr. The question is: how onc may read accurately the (.1 rate direction and standinWv1;1.bility) of the moral senti_ progress u l C , . I b I C , " ."". t h-... ,.. -mpant voluntarism of the. Goa I ompact and menl, I...IUC!I " £i 'sh an indicator of progress 10 mora sentiment such company cod ~ urnl 'g1 "b"I' . , '0' development of. human n us responsl I ItitS. c h er s ta~ that setS a ,urt 0- 10 . "", -,h a robust base for tht Docs aval"Iable b lIsm ... ies discou rse lIIdlcate . Norms?25 Is the moral sentiment em ergent to some areas ralher .than _~ d,26 across tIIe Lll'Uoir . Docs a moral reading of some . , patterns . of fbusmeSli h ornnr1te governance suggest a 'th m conception 0 timan d d be ' 0 con uct an c ' Y .gil )21 OoC's pragm.atism COllnsel parsimony, not exu r.mce. ne In ts. """inst ho ..... that by the moment of fi nal adoption of the Norms, lOpes 010Yh' I which Will the 'thin' :appro:aches prevail over all all or not mg approac I , surciy con-sign their futures to the normative recycle bill. subject 10

, =.

instant cyber deletion. 'fi d by th A sumnury quantitative 'hc:adcount' of obligations SpeCI Ie . "I e Articles 2-14 yields rar fewer obligations than those revealed by a smtl ar _.... .m th e Co mme ntarv count of obligations menuoncu . r 2!l Qualitatively. . I dtoo. the . . . th · ly across the Aruc es an the scope ofobllg2tlOns vanes r.I er munense fi 'lIIes Commentary. ThiS happens at least in two distinctive w.ays: fl~t,~" les obligations that may not be said to ensue from the text 0 ~rgat~~ns emerge from the Commentary; second, not all Commentary 0 I cast mandatory duties.

~ John lbwls ( 1999).

I ' (. r buslntSS " Much he~ de:: ..... nds not Just on the:: 'search for I1l(Iral umve::rsa S 0 ...-s of ,,. . r to' only cerlalrl '1"bUI on Ihe fdt neceMlty 10 lilllit Ihe e::xtcnSIQ/1 0 norms F (20113) S6l " an.. d '0"'--' __ ThomOlS W. Dunfee and limolhy L. orl ~ oorporanons .. ...... c=<=. al 567. Sc::e also DunfL'C (1999). . ' . III Ihc ~renas 2ti Alre::ady, the Norms deftly adv.lnee:: .11I0ra~uman nghts senumenlS of conSumer ~nd envlronmenu1 raghls III Articles 13 and 14. I'- b SIC hunlln n Sec (or example::, Thomas Donaldson (1989) who argues that)""," ~ " riglilS re::sponslbllJtles may e:ae::nd to mu1unatlona I corpon nons . h Com lllcntifY 21 Much of rourx dc::pc::nds on ways of compuullon; on my e::~ulII ,I e providc::s for more Ihan the ovcnl1 sum of 105 spc::cafic obhg;auons.

Mar~t

Fundame::nulisms

291

First, manifestly, even a most parsimonious code of human rights responsibilities of all business entities should include Article 3 type obhpoons that forbid these from benefiting from

wu ( n mes, crimes :against humanity, genOCide::. to"ure, forced, or compulsory ),bour, hostage taking. extra judicial or summary o r arbllrary executions, olhe::r ytObtions ofintematiorul hUnUlln:.u ian law, and othe::r cnmes :agaInst the:: human person as defined by inlemalionallaw, In puticulu internauonal humanitarian law. Equally Justified stands the Commentary extension of thiS obligation to '"stCUri£y arrangements for tr.lnsnational corpor2tions and other business CIIlrfPrises' in a post-Ken Saro-Wiw.a world ordering. In terms of imp lementation, such violations ought to incur heavy civil liability for the ratitution and rehabilitation of violated peoples and work2ble proposals iDr criminalization of stich COrpoldte conduct.29 Second, Pan E (Article 10 alld its :accompanying Commentary) obligat. . duties of 'respect for national sovereignty :and human rights' remains wholly consistent with a 'thin' code prescribing positive oblig
*

~

30 Con«tlling Ihis, see IlaXi (2000) alld Ihe:: IlIeralUre therem Cited.

On t h ll register, e::unously Ind polg:nant!y, lhe V~I"IOU~ ID1UIIIon tlilles pre::scrii:M:-d WTO agreements proVIde a good enough modd for planmng IranSllion for ...",'",,,~Implemenucion of corporate alld bU5L1\~ human rightS responSibilities. r l...L may not. h~r, be: Justifiably heard 10 JaY dUI such extended penods '"IlJCrcntly ul1re~li..o;tk.

292 The Future of HUlT\.;ln Rights

Market Fund;Ullenu,hsnu

and the Commentary. As regards 'corruption', the Norms Will now ha to ~ re2CI further in terms of the United Nations Corruption Conventio: 2003 2nd the equally recently adopted Mrican Union Convention o~ Preventing and Combating Corruption . More vt"xing, of course, remain the msensitivlty in the Norms and the Commenury toemplricallllerJtur: concerning 'corruptio n' and its impact on human rights, which identifies discrete forms o f types o f 'relationship marked by different dislnbUlion of rents betwttn the firm and the state.' These include 'SUte capture' ('de. fined as ShllpiPl,~ 'lit jomlillion of Iht basic of ,I~ gamt' via 'illici" and non uansparem private payments to public officials'), regulatory captllre (via influence that 'refers to a finn's capacity to have an impact on the fonnation of the bask rules of the game wi,hold necessary recourse to prillalt payment to public officials'), and administrative corruption 'defined as prill(l(t pay. ments to publk officials to distort the prescribed impitmtt1l(llioll of official rules and policies,.JI State capture emerges as a decisive is:'lIe o n this register, crucial to developing as well as least developed societies, and the so-called transitional post·Soviet economies. Available evidence suggeSts embryonically that human rights thresholds limit state capture, even in form s of regulatory capture. The Norms and the Commentary remam seized, however, with ~rformances of administrative corruption thus defined . From a human rights regulatory peT5pective, it remai ns IInportam to address forms of state and regulatory caprures; one hopes that further developme nt of the Norms differentiates these categories more adequately. Outside this framework, I am not confident that the relation between the Articles and tilt: commentary remain at all symmetrical, in lenns already mentioned 111 the prccedjng paragraph. For CX2mple. the proscription in Article 5 forbidding use of'forced. or compulsory labour' develops in the Commentary so far as to outlaw deployment of child labour simply because of its use of Iar~ language describing economic exploitation 'in the manner that is harmful to ... health o r development', specifically 111 ternlS of access to schooling o r 'perfonning school related responsibihties. This assumes inter-state conscnsus not yet at hand concerning the human rights of the child within and beyond the United Nations COllvention on the Rights oftbe C hild, 1989. This is deeply unfortunate, indeed. But the qu('stion is how best 10 craft normativity that centimetre by CCllwlleter paves the W2y to real-life achievement in a zodiac of globalization that profits by the theory of compar.nive advantage. Would it not be a concrete mode of achieving ameliontiofl to prescribe that multination:al and other

ntm

31 ~ Jalll(5 S. Hdlnun, GcUUlI Jones, uad Datlld Kaufman (2000.) Sec also. Upt"ndn Ihxi (1990) for a rda!ed typOlogy.

293

busllless enterprises to cease and desist from use of child labour 111 W2YS chat deeply affect schooling by a certain cut-off date and 111 the interim direct a percentage of their profits to the crcation o f conditions under which etublc develo pinW$outh St:ltes and societi('s can expand their effortS at child literacy and education? And here I speak o n the Issue as a child l~bc)Ur abolition fundam('ntalist!

(d)

Dlltjfj

of !mpltmellfatio"

Part H (Article 15) addresses these duties rather admirably. The Norms and me Commentary envisage these in terms of'il1ltial implementation' . First is the obligation to 'adopt, disseminate, and Implement internal rules

of operation in compliance with the Norms'. The Commentary further specifics duties of communication in oral and wrine n fonn in the languab't' of workers, trade unions, contractors, suoconcn.cwrs, suppliers, Iicen5('S, dimibucors. n.ltural or ICg:&1 ~rsons tim enter inco concr:lCts with the trallsnational corporAtion or other business ~nterpri5('. cu,comers, and other sukeholders ...

Upon th e adoption o f such procedures arise further human lights educahon obligations to 'provide effe<:ti~ training for the ir mallagers as well • workers and thei r representati~s' wnhm, o f course, 'the extent ofthcir mources and capabiliues,.J2 When the various entltlCS and persons thus C'Il1bracro prove recalcitrant, both in terms of duties 10 'refonn' and 'decrease violations', the Commentary adds a concrete obligation, not to be found in the parent Nonn obligation o f Article 15, ofcessation of'doing business with them'. Further obligations, accordmg to the Commentary, entail 'disclosing timely, relevant, regular and reliable infonnation regard. ~ their activities, structure, finan cial sitUation, and performance', espe. ctally providing infonnation ' in a timely manner (to 1everyone who lTI2y be affected byconditions caused by enterprises that might endanger health, safety, or the environment'. The obligations stand progressively cast in trnns of the 'endeavor to improve continually ... further implementation of these: Nonns' . Article 16 subjects "0 periodiC monitoring and veri ficaUOn by the United Nations, other internatio nal and national mechanisms already in existence o r yet to be created, regarding application of these ~onns'. New, and wide nnging, form s of envisaged implementation Inflect with h uman rights respomibilitics all actors, instrumentalities, and P~tforms of power and authority at all le~ls (local, regional, national,

" nus must of

COUf"S('

refer- co small·!IClII1e and other buslllcss enterpnscs.

M.1rUI

The: Future: of I-Iuman Rights

294

supranatio nal, inten12tio nal. and global}. The N o nns thus Innovate notio ns and strategics hithertO unimagined for imple me ntation of human rigillS norms and sunduds.

V Business Ethics

In

Relation to Human Rights

The Norms and the Commentary seem to have benefited little from the growing discourse concerning business ethics. The axiology of the Norms and the Commentary assumes that 0/1 human rights respo nsibiltties thilt extend to state entities extend also, both in principle, and in detail, to tr.lnsnational corpol'lltions and o ther business entcrpri~. Ilowever, many a question arises concerning the source/seat of obligation. The most fundamental question is: on w hat ethical grounds corporate governance and business conduct o ught to remain subject to some mo ral and §OCial responsibility regi me? The second o rder questions incllld ~s: What eth ical language may best i1tticulatc such obligations-the languages of Corpol'llte Social Responsibility (CSR), those of g10bill justice or those of hUllliin rightS? What kinds of norms arise from these sources? To whom arc the obligations o.......ro? Are these owed to shareho lders or to iI wide, and inherently indetenninate, :and unstable, constituency of'sukeho lders?,JJ Who remain tile duty bearers? I lOY.' rilr may we Justify 'one ) IZC fits illI' type no nnativity, regardless of the scale and econo m ic vlablhty of the enterprise? These, and rdilted issues, may nOt be igno red in ally endeavour to further promote the Norms because one person's axioms articulate another person's radinl doubt!

(a) Tht Foundational Questioll Concerning the foundationill question, even the field ofemergent business ethics grapples with but does not yet quite overcome the 'corporate Neanderthalism, associated with Milton Friedman who wrote, 'there is o ne and o nly one kind of responsibility ofbusincss-to increase its profits' ..}4 Of course, Friedmiln subjected his observiltion to a caveat: this duty of 'making as much moncy as possible' was subject to elementary obligations arising from 'the basic rules o f society, both those embodied in law and cthical custom:l5 I lowcver generously constnled, it is quite clear that the caveat docs not extend to the imposition o r ascription of wholesale and retail human rights oblig;uionyresponsibilities now explicated by the Nonn s Ebbor:ltdy defined In Anlde 22. 301 Thomas Donaldson (1989) 44-64.

l)

J5 See Mllron Fncdman (1970); Wilb Johnson (1989).

Fund~mc: nullsms

295

and the Commentary. At the most, the reference to 'ethIcal custom' 111 the

owro by the managt!rnem of 'profit-making corporatio ns with public owncrship',J6 Wlth somc severely hmitcd obligatio ns cntulcd thus to 'sta keho lders' (such as workers, consumers, and envi ronment and even the much debau:d-issue III bus1l1Css cthics d iscourse-of corporate philanthropy). Likewise, the reference to the 'basic rules of society' may extend to important duties to refralll from, for example,' hiring a hitman to murder a key witness against the finn in a major product lidbility case',J7 H owever, outside this mimmalist range, further human rights ~pol1s ibillties remain indetcnninate and contested. Both the key t(mlS of the caveat then do no mOre than counsel prudential action by m;uugers in their pursuit of maxinul competitive advanugc in domg business. Even so, the foundatio nal question in btl5iness ethics and related literature does not always attend to what the Nonns characterize as 'other business enterprises'. These, as noted diversely, typically include: wholly pnvate finns (unincorporated business associations), statutory corpor.lDam and government companies, trusts, foundations, and chariuble orpniziltions related, in one Wily or the other. to business and IIldustry, and (wnho ut beingexhausrive) human rights ilnd soc"I2l movement NGOs, and pabal citizen action agencies/fon. ilided by business and industry (whether cpisodlCill lyor in a sustai ned mode). This latter siruation becomes infinitely complicated now with the United Niltions system (prccmlllently the UNDP and the WHO), pursuit of raising resources from mulcinatiOllill corporations, some of whom remain egregious violators of human rights, ID the cause of ' main streaming' h uman rights. I am not sUSb>csting that the ill ready encyclopaedic Norms should be funhcr extended counterproductively, I do suggest, however. that the issue of extension of business ethics and human rights standards across this range is relatively unexplored, D:I WOI)'5 that renders d ifficult any theoretical critique of the Norms. Over illI, the emergent fonns o fbusincss ethks discourse suggests that ~e and commerce 'formiltions', 's)'5tcms', and practices ought to remain free zone' or ilt bc~ bear witness to extraord inary complexity of , morals by ilgrccmcnt'. Thomas Donaldson and Thomils W. Dunfee ~ tltel r immensely valuable worj.:;J9 suggest iln approach they nilme as ntegratlve Social Contract Theory'. T his approach re-posltions 'moul c~ea t m.ay suggeSt a range of obligations

';::0;al ~

17 Thollus Dunfee: and lImolhy L Fort (2000) 563 al 567. I detl ~ thiS felicltoUJ nongc of lllu51nhons from Thomas Dunfee (19991129 ·132 (p.a.tenmescs .• . III the onglllal f'Cmoved here). 19 Sec, the path-bre:along work of Davxl Gauthier (1986). 1M 1iD that Bind (1999).

296

The Future of Iluman Rights

Market Fundamentalisnu

free spaces' In tc:nns of a 'macrosocial' and ' microsocial' comracts..o by notions of 'hypernonns', 'hypergoals'. and 'authentic norms',41

(b) nle Issllt oj Appropriate Etlfjeal

LallgIltJ.~

If the fo undational question may be somehow 'satisfactorily' addressed, the contest shifts to the terrain ofappropriate ethical languages through which we may construct the ethic of trade and business, I luman rights languages, on \his register, compete with those ofCSR. These, put togt:thcr, further contrast with deontological ethical languages, Exploring first , and necessarily briefly, the languages of CSR they seem to have been in constant evolution, so much 50 that one now speaks of the third generation, ..2 The first generation showed that business entities be socially responsible primarily through corporate philanthropy, not inimical to but indeed beneficial to 'commercial success', The second generatio n seeks perhaps more than a veneer of eth ical respectability by accentuating company engagement with social responsibility; put another W2y, taking social responsibility seriously emerges as a crucial aspect of doing good business, Social responsibility he re also figures often in terms of best industry standards, Aside from minimal compliance with tax and labour laws, :m d company/industry-defined modes of self-regulation, the notions of 'corporate ci tizenship' or of 'citizens CEOs>4.l begin to uk«: seriously nsk analysis. and management. A recent United Nation~ University study presents this in terms of me Principle of Double Effect. providing for the minimization of negative side effects.« The thIrd generation of CSR languages leads o n to thc now tireless talk abom 'sustalllable developme nt' fostered by the Business Council for Sustainable .0 Students ofEugcnt Ehrlk h wdl readily under:sund this unfold~nt as InsanC.ng whll be memonbly called as the bw lrising out of the ' inner orde r of as,sociauoos' Students ofMlchcl Walzer may gnsp this in terms of some 5()I't of'spncUll ofJus ucc ' argument: human nghu or JUStlCC v~ lues, staruhrds, llKI norms entirely appropn;lIC C 10 Ihe publ ..:: spheres of govcrnlllCc/satc conduct m.:r.y thus become mapproprlll inlp05IUOns In the sphere ofmde, COllllllerce, and business. Worse slill, these lnay also prove counterproductive, 41 Om: may of course argue, follOWIng Nlncy Fruer (2003:34-7) 'ag:unsl rcductiOlUsm' and for 'perspectIVal dualislII' In Wlyt mat suggeSt Ihat govern~nc~st:ltc conduct and markcu may t1ms nOl be reprded as separate aUlononnc spheres bUI rather u s.teS of comple" and inlerloc kmg 1II1crsectlons, exh heaVily, and hiJloriu11y, pe rmea tin g Ihe Olher. I suspect that Ih.s provides the besl bet there 1~ for any wonhwh ile groundlllg of Ihe Norms, 4~ Zadck (2001). 4l C ited .n UN II)Q (2002), 44 Lene Bonullll-Lanc:n and Oddny Wiggin (2004).

m

[)evelopmcllt and related ventures 45 and furth er by the ever-proliferari disCOUrse on 'good governance'. ng The comparati,ve advantage: ~f CS.R languages is mat they open up valuable.space for In ~r,-~ nll and mtra-mdustry dialogue concemmg mlnlnul socl:1l responslblhtu:s, marking contests :lmldst :I vanety of acto principles, and 'wc:bs of influence' (insightfully described by BraithW:l~~ and Drahos). C lea,rly, as a recent UN lOO study nclliy shows. the kvds at whIch contestat10~ takes place is cruCIal; shifting CSR dlscursivity to SME (s,mall and,med,um enterprises) involves a whole vanety of cognate but ~~tln~(conslderations. This perspective, at the very least, surely invites :II teV1sl~u~.n_of the scope of the 'one size fits al l' insistence on human rights rcspons l~lhtles of all business entities tveryw/lm, even if at the end of the day, onc 15 not ever c,on ~dellt what CSR languages may signify in tenns of h~re-and-n0:-V obligatio n of I~ ~ and medium business cnterprises,#> outsIde the ethIC of conseque,nuahsm for business and indllstry, Whatever be ~h,c vantagc poUlt,ofthe critique ofCS R, its languages have te2Ched so~e ~nt1cal t,hresholds III ways that human rights languages have ret to a~qUl~e III relation to business and industry, Surely, the talk about generations of human rights does not even n=motcly approximate the development of the languages of CS R. This talk, until the emergence of the .Nonns, ~id not speci~c~lIy address human nghts responsibility of busllless an~ mdustry, In thiS light, o ne unde rstands more clearly the dense mtertextuallty of the Norms. However, th15 mdetermlnate Pt=nclopc's wc:b finely spun by the Norms does not by itself m immize the 'culture shock' thus ~used ,to trade, business, and industry, accustomed :md addicted to ptactJcallCJgIcs of voluntarism and m inimIzation of appliQuon of human rights Standards and no rms,

(() Hllmall Rights as Hypenwmu?

~: ~tchove~ to ahe~ative

languages of human righ ts responsibilities raIses host11e recepuon problem/situatio n, The inItial resistance also

~5 1n th actJ . WiI)'S 3t bnngto mind Andrew RIlW'eU 'sanalyslJ (1996) and cqw.1l., trcnch3n1 Y1SI cntlqUC5' fX cou 'sct' , ' fo r CXlImpIc, ) am~ I'd ~l gew.ty and Jeffery 5 1, Claire "(1998) and

(200J)tse the lu mm ousd.scourse of Naomi Klein (2000, 2002.) 5« al~ An11 Zamm' l ; LIIC Feny (1992), ' 1

fun I

mUSI of C?urse add that my de!ICnptlon o f ~u~tlce 10 Sunon Zadeek's superb analysis.

these Ihree 8'=neratlOns docs not do

The UNIOO narn&l1ve bt lSI 1cs, understtlKbbly, WIth progr.nnm auc confidence or course 10 the

'

co~slderable rell life

lOme smu::ro5lles

\\om needs 10 be done to ca rry Ihe CSR langu.a~

?f bUSlIlCSS and

UCcc:n Stones

mdustry and the namuve provjdes an accoun t of that we may not ignore,

Market Fundamenulisms

298 The Future of Human Righlli

ari~s (rom gnnd economic theory. w~ich (~ we know since the pioneer_

fRonald C~) views the mseruon of human rights sund:l.rds mg corpus 0 . ' I and no m lS primanly In the dictio n of ma nag1~ g transac::tlon CO!.lS; lUlll:r.n righ ts languages. alongside o thers t~len stand ~ewed as factors of produc_ tion'Y Rights, including human nghts, constitute no trump,,5. renulllIng ,

infiOltely negotiable in do ing business when they enter

:It

a

In

manage.

men tlenterprise decisions. . A normative discourse that m~ beyond tius conscq~ent1ahst frame or rights-onentcd nOtions, ental" s some son 0 fco,nm,'onent to Mr.Ilitarian -0' h ' o. conduct lsj' ustified independently of the o utcome un d cr W h Ie actIon ' I-I '" what matters aTC not consequences of act/conduct o f one' 5 actions. -:aCT... , .' • but ' a variety of Tules, principles, or COl15lr.unts mvolvmg mon,1 duty and '··-'f' . 48 This 'deontolnmcal ethic', seems to be affirmed th e nature 0 f act I...,... -~' . , by the Norms, which disallow o ngoing recourse tra~mg. away ~uman " " Deo "ol""";cal ethic rniscs the already heavIly SIlenced Issues/ I ' . 50 I I' Tlglts. I -D' thematics concerning emerging approaches to globa Ju~t1ce . . n t ~ sense, human rights nomlS and stand~rds, h~er admlr.l~ly IIlstall by the Norms, remam ethically sclmble only IIlsofar authoTlzed by approaches to global justice. . f Out :all this po~ considerable difficulties. In his notable extenSIo n 0 th........-v ofj'usoce to illlernation:aljustice,John Rawls, the foremosl plnloso~-'1 .., , f th I of peoples docs not find It pher enunciattng Justice va ues 0 e aw '. . sible to foreground for corporatio ns and other busmess entltl~~ any ::ific duties o f justlce.SI Perhaps, there is no sure way ;Od.edllC2l1~ adjudlc:llte the chOIce betwttn tYJO constitutive clements 0 ISCOUrse. '7

See, for CXllmpk, the analysIs of v:ilOOUS approxhc:s of'wl:alth nlal'tlimUtlOn' m

Nicholas Mercuro and S~ G. Medina (19'17). 48 See FranckJ. Garcia (1999) at 1022. -t9 See for thiS nooon. Garcia (2001). SO See'Thomas W. Pogge (2002); Upcndn Haxi (2004). not " < •• John Rawls (1999) 35-9, 59-88. Corpontc and buslncss cllUt'b~ 1 do ,•• """"'. . I f I I f la apphc~ e to .. ~ fc~ture '" hiS enuncl;ItIOII of eight prlnClp cs 0 t Ie ~w 0 PCOP I' a~pc(t ~ n.>nI"S of SOCieties. nor as any (OllSritutlV( feamre .o f thc bttcr. On t u5 , orrup.... d n._ (2002 200-4) Of course Rawls rcma m concerned With pu bl Ie 1 ( Upcnn,~ " , d II hen, III eonuu 0 ~s an aspect of 'background culture, with Ie great wc:a t I I ffeet non , I lc asks: 'is It any wonde r th~t congrcsslonal lcgniallon 15. m e . ~ ec:onollllc power . b . I her where b W'i written by k>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 .. m<:, precl:;ely heC,,"u5C thelle btter mechallisms tnggc:ror.tl avouilncc of shared resPOld lbdlty. Fifth. me ~ham:l poh tlcal T«pOT1siblhty model n the end of the day 'mvolv<:s coordmauon wnh othen to x hlt'VC ...ctu.Ilt;t:' (at 387) Ifonly bcca.ae It IS 'more forward.lookmg than b.ckwardIookmg' (at 3811). Sutth, ovcr.tll. Young nUIIIQln~ that the concept of ~ed pohtlcal responsibility fCmams ·gen<:r.tbuble and applies to any suuctunl ITIJUStlCC' (at 388) prectsely benusc eontemjXItaI)' economiC gIobilizarion sigmfiC$ an Inlnlensc order of ethlOl interconnectedness. It remains Ullporunt to stros, in the pr~nt conteXt. that advoacy of thiS approach does not altogWtcr supplant the kgalliabllJ ty (both ciVIl and cnminal) approach. Young, suspects, would theTeforc wdrome the proposed UN Norms; and mdet'd read, in the light of her awlysis, that the Norms nuyevcn he saKi to Implicitly advance the model of sh~red politiol ~nsibility. Even 50, the qUC'Suon remams: does lICcentwled emph;lSis on reforrrVinnov.lI1on of the legal hablhty tnodd carry any advcrse potential for the shared political responsibility model? Put another way, how best may we approach an undc:r.;Qndmg of the: complcmenQrlt1CS of both the approaches? Space ronstr.l1 nts forbid funher anal)'5"is of tillS aspc:ct. It i! abo tnle that the shued political responsibility approach olTer a more rollJ1d~-d educal bnguagt than do the fr.tCl\lred languages of·corponle Cltl7,enshlp' or CSlt Yet it IS not fu lly den. given Young's dlStillCtiVC: emphases concerillng eol1cell~ 1110nl agency of all globalized human bcUlgs and enuncs to work together to produce Just results III the future, how all tlus l1llIy n: ndc:r the CEOs of mult1l1ational corporauoJls. the leaden ofGS, as well as the ge ne:rals and focx sokhen of 1IllCmatlo,,~1 alld TCb'lOllll financial IIlsuturions, cloK COl1S.lId. or even etlucal near·dones. or human TIghts actiVIsts.

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Author 1ndeJr 331

Author Index

Abu-Lughod,J .236 Adorno, T. 223 Agamben, G. 2, 3, 4, 13, 53, 132, 138, 228, 229 Agnes, F. ISO Albrow, M. 235, 246 A1exandrowicz, C. 120 Ali, Shaheen Sardar 102 Alkire, S. 202 Alston, I~ xviii, 18, 107, 114 A]thus~r, L 59, 60 Amencan Anthropological Association, In Amena.n Auocuuon for World Health, 157 Anand, A. 70 Andrewll. L. B. 279, 271 Anghie, A. 120 An-NOlim, A. fIl Anonymous. 70 An-Pyong. Jlk 41 AntOny. L. M . 14 AppOldurai, A. 241, 246 AquinOlS, St Thomas 26 Arendt, H. 27, 130, 131, 133, 143, 147 Arrighi, G. 70, 237 Asad, T.196, 197 Atali, J. 239 BOldiou, A 193 Bagguley, p. 115. 120 BOlter, K. 195 SOlkhtin, M. M. 139

&lbus I. 122 &libu, E. 70 Ihlkin, J. M. 21 B:.unford, J. 171 Ihrsh, R. 136 Ihssiouni, M. Cherif 1 I lhudriJlud, J . F. 98 »OlumOln, Z. 156 Ihyefsky, A. 54 Beck, U . 95, 116, 118, 264 1kcker, G. 220 Beia, C. 286 Bamford, R. 201 BenjOlmin, W. xiII, XII Benthall, J. 223 Berbm, L. xvii Bernstein, J. M. 121 Boc:ur, Ihrlw. A. 270 Bonunn-l.01rsen L. 296 Boothe. W. C. 149 Bourdieu, P. 67, 219, 289 ~n, T. 86 Bowie, M . xxiII Boyer, R 242 Boyle, K. 163

BrOldiotti, R. 135 BnithWOlitc.J. 64, 65, 71, 97. 237,239 Brenner, R. 235 Brighouse, II. III British Medin] Assoc;~tioll 265 Brown, W. 48. 55, ISO, 154, 158, 162

Bruno, K. 249

,

BuchOlnOln, A. 188 Bunwoy, M. 60, fIJ, 101. 242 Burk, D. L 270 Burley. J. 270 Butler, J. 135. 160, 161. 167, 1f1J, 175 Buttel, F. H. 202. 211 Callero, P. L 16, 119 Camus, A. 56 Unan, P. 260 Drdenas, S. 64, 93 Cudens. J. H. 61 Castells, M. 60. 66, 206. 212-13, 220, 225, 243 Caufeld, C. 261 COlveJl, S. 197 ChOl.l1dler. D. 65.79 ChOlndoke. N. 206 ChOlnock, M. 148 Ch...,lt'S'NOrth. H. 265. 266 Cmmov;a, S. 71 Chasblon, A. 101 Clutteljee, R. 264 Chell. J. 236 Chin, G. 214 Chomsky, N. 157 Chua, A.. 245 Cixous, H. 149 CiOlphml A. 286 Cbude, R. P. 265 Cohen, Robin 201, 21 I Cohen, S. 222-3 Cole, P. 190 Coombe, R. 241, 253 Copjc<, j. 27 Cover. R. 20, 26, 188 Cow...n, J. K. 130 Cox, L. 120 Cranston, M. 81 D'A.m~to,

A. 251 F. 34, 41 D~nid, E. V. 188 D~nncr, M. 108 D~Jlm~yr,

Das, V. 31, 148, 197, 198 D~vis. M. 102 Debord, G. 156 Dc:leu%~, Gilles 136, 137, 158. 165 Dembour, M.8. 13, 14, IS, 151 Dc:rrlcb,J. -'(vii, xxiI', 128.156. 198 DI ScefOlno. C. 159 Doruldson, T. 290, 294, 295 Donnelly, J. 107, 108 Dorsey E. 211 Douz;nas, C. 38, 162.280 Drahos, P. 64. 65, 71, 97, 237, 239 Drew, E. 171 Duggard, J. 89 Dunfee, T. W. 290, 295, 299 Dworkin, R. 164

E:lgleton, T. 124 Eco, U . 24 Ehrlich. E. 296 Elioc, T. S. ~ Engel, K. 251 Engles, F. 122 Bani, G. 36 Escobar, A. 65. 70 Esposito. J. L 193 Estcv.l., G. 83, 142, 143 EVOlns, M. 7 FOlIk, Rich01rd A. 25, 47, 265, 266 Fe~thentone, M. 241 Ferry. L. m FlAN.2SO Fine, R. 55, 121 , 139 FitzpOltrick, P. 29, 45, 21, 28, 130 Forsyth, D~vid B. 71 Fort, T. L 290, 299 Foster. K. It 271 FOllcault, M. 31, 48, 61, 63, 64, 66, 11 8, 204 Fowler. A. 93 Fnllkena, W. K. 195 Fnsc:r, N . 45, 146, 296 Friedlll~n. M. 258. 292 Friedman, W. 139

Author Index 333

332 Author Index Frog. Mary J. 135, 159 Fukuyama, F. 239, 244 Fuller, L 14 Gabmc:r, M. 234 Gall~c:r, C. 265 Gallung. J. 39, 106, lOS, 110, 143, 279.298 Garcia, F.J . 279, 296 Garfield, J. 41 Gauthier, D. 295 Gdl, A 145, 166 George, S. 84 Gewirth, A. 38, 82, 162, 175. 176 Ghali, Il B. 1 Gibson, J. 113 Gibson-Graham, K.J. Giddens A 116,217 Gill, S. 27, 141 , 174,263 Gillies. O. 221 GIlligan. Carol Gtorgetti, C. 76, 255 Girard, R. 35 G llSman. M . 27 Glc:ndon, M . A I G I~r,J. 4 Gold, R. E. 270, 272 Goldh~n, D.J. 48 Gordon. R. 245 Gorz, A 244, 269 Gould, K. A. I Gouldnc:r, A I Granier, J. 12 Grec:n, M . 113, 249 Grec:r, J. 250 Griffiths, A 135 Grotius, II. 43 Guha. R. xivji, 6. 37 GUrvitch, G, 145 Gusfield J. R. 201 Guturi, F. 136, 137, 165. 168 Gutto, S. B. 48 ,·labc:mlU, J. 14, 15, 16, 23. 36 Hac:nni-Dllc:, C. 7

Hallett. G . L. 134 Halley, J. xivji, 14 Haltw..rd, P. xix, 247 Hannum, H . 127 Haraway, O. 270 Hardt, M . xvi, 243, 245 Harr, J. 86 Han,H. LA 14 Harv.url Human RighlS Pmgnm 30 Harvry. D. 268, 275 Hay, C. liS Hayner, P. 30, 86 H c:gd, F. 167-8, 299 Hc:ideggcr, M. 2, 12, 115 Hdd, V. 14 Heller. A. 149 Hdlman, J. S. 249 Hc:nkin, L 104 lIc:rskovilS. M. J. 178, HIS Higgins, Tracy E. Hirst, P. 236 Hobsswam. E. 4 Hollingsworth, J. R. 242 Horkheimer, M . 223 Huber, P. W. 271 Igwtieff, M. 189 lngram. O. 37 lntemarion~ Commission on Peace and Food, 84 Imcnutional Council for Human RightS, 281 Jackson, E. T. 231 Jacobson. D. 159 Jagger, A. K. 55 J ame!iOn. F. 239 Jenkins, D. 264 Jessop, B. J8 Johnson. W. 294 Johnsmn II. 201 Jones, C. 61 Jones, G. 249, 292 Juma. C. 270

Kaldor, M. 205, 206-7 ){am, I. 34 KatZ, J. 265 K:lUfman, D. 292 Kaul, I. 193.212, 216 Kaunov, M. 4 Kelsey. J. 27, 244, 249 Kennedy, D. 208 Kennedy. P. 244

Kmg, E. King, Kelvin M. 265 Kingsbury, B. 129, 246 Kittichaisarec, K. 100 )(Jaus, G. 199 )(Jcin, N. 241, 245, 247 )(Jt:inman, A. 27 )(Jcinman, J. 27 Kosckcnniemi, M. 28 Kosscllcck, R. 42, 114 Kraiuuer E. L. 22J Krimski, S. 22J Knstcva. J. 149 Kritz, Neil J. 30 Krugc:r. M. 2n, 282 Kumar. Madhurcsh ,Kundera, M. 108 Kurtman, C. 13 Kym hciu. W 139, 189 l.aclau E. 147, 159. 160. 162, 163, 167, 175 ~d,J. 133 Lara, M. P. 4 un.na, E. 201 ush. S. 116, 242, 268 uwycr's Commiltec for Human Rights. lOS !.efo", C. 63 Lt-uprttht, I~ 18 Levlllas, E. 15. 38, 156 Luclw. G. 140 Lyourd, J. F. 156

Macintyre, A. 40, 81, 184 Macrae). 102

Maine, H . 139 MamwlII, M . 44, 133, 153 Mann,J. 171 Mann. Paul de, 143 Marks, S. P. 184 Marks, S. 239 Marquard. 0. 32 Marqundt, S. 136 Marx, K. 64, 122, 204. 235 Mayer. c.J. 261 Mayne. R. 73 Mayo, B. R. 194 Mbc:mbe, A. 51, 186 McAdam, D. 201 MeLem, P. 186 McNeil, P. M. 265 Mead, M. 119 Medema, S. G. 298 Medvedev, R. 4 Meehan, J. 130 Mehu, D. 264 Mehu. U . 45 Melucci, A. 206 Menchc.r. J. 130 Mercuro. N .298 Merry, S. E. 135. 178 Mcyc:r, A. E. 181 Mcyc:r. W. ,.1. 261 Mgbeoji, I. 4 Milner, W T. 261 Mmnow, M. 30 Mistry, R. 153 Montgomery. H. 134, 135 Mouffe. C. 148, 149, 159 Muchlmski. P. T 2n, 281 Mulhall, S. 142 Muuffar, C. 192 Myrdal. G. 269 Nair, Il.. 79 Negri, A. 35. 241, 243 Nelkm, I). 270, 271 Nelson, I~J. 211 Nietzsche, F. 12, 157 Nmo, C.S. 27

334

Authoc Index 335

Author Index J

Nordlinger, E. A. 98 A. 124 Norris, C. 193 Norval, A.J. 148 N~unl, M . 117.2 13, 270 Norn~,

Rony. R. 20, 38, 142. 176, 179, 194-5 Rosemont, II. 41 Rounder, L S. 36 Rousseau, ).). x;ri"

Row!:II, A 256, O'Brien, M . 115 Ophir, A. 7 Osicl, M. 30

Parekh, 8. 44. 45 Pashubnis, E. 8. 62 Palerson, ). 271 ~thak. Z. 150 Pe<:heux. M. 148 Peffer, R). 194, 195 Pennll. S. 115 f'l:tersmOlnll , E. xviii ~ttil , I~ 37 Picciono, S. 73 Pitkin, I I. F. 126 Pittman , ). R. 40 "'t;g<. T. W. 6. 286. 296 Pollis, A. 193 Pontlng. C. 4 Poulantta5. M. 7 Pound, R. 163,1!J7 Power. S. 8, 100, 133. 17 1 Powers, T. 171 ~h

M. S. 142. 143

Pring. G. W. 260 ROli, S. M. 65, 201 , 21 I Rajagopal, 8 . 21, 120 ROlmsastry. A. 254. 286 Rawls, ). IS, 16,99, 162, 290, 298 Rieoeur, P. 149 Ridgway, ). 267, 297 Rifkin, ). 244 Robcruon, G. 30, 17 1 Robcnson, R. 130. 238, 242,

245, 266 Robinson. C. 186 Rohit-Arnau, N .

m

Ruigrok, W. 238 Rummel, ). S. 4, 54 Sandel, Michel Santos, B. 6, 16, 35, 47--8, 89, 155, 172, 208, 2J4 S.u o-Wiwa, K. 60 Sathe, S. P. 109 Sayyid, B. 182 Schlag, P. 12. 81 Schon, D. A. 115 Searle,). 208-10 Sedgwick, S. 130 Seider, R. 136 Seila, A Y. 238 Sen). 70 Sen, A 141. 212, 235, 245 Shanm, A. 36, 41 , 162, 166 Sherry, S. 82 Shiv.Jl, I. 16, 47 Shblr, ). 39 Shohat, E. 186 Siddiqi, M . S. 93 Silver, B.). 49, 69, 205 Simmel. G . 121-2 Skbir, L 88, 239, 242 Smith, A M . 190 Smith,). 211 Smith, S. B. 166, 167 Snow, D . A. 201 Spelman, E. 135 Spivak, G. C. 182. 185, 246 St. Clair). 267. 297 Starn, R. 186 Steinmeu. G. XII Stiglmayer, A. XII Stone. J. 12, 44, 128. 163. 179. 278 StnUS5, L 43 Sunder Rajlln, R. 150. 159

•

Sunstein, C. R 170 SWift, A. 142 Tmlbiah, S.). 41 Taylor, C. SO nylor, M . 167 Teson. F. 193 Thompson, E. P. 260 Thompson, G. 236 Thompson, ). B. 1 Tilly, C. 236 Todd, E. 171 Tonusevski, K. 198, 221 Touraine, A. Tra-week, s. 22 Tmbek, D. M. 234 Tuin, P. 44, 45, 54, 62, 78 lldder, R. V. 238 TmTlOlIlOV, V. A 208 Turner, T. 178 lWAIL, 48

Watts, M.). 72 WeIlTlmg. T. 36, In, 195 Wemberg. A. M. 271 Welllgmner, R. A 121, 122 Wetssbnxlt, D. 'En, 282 Weltr., E. D. 8 Weston. 8. II. 46, 265, 266 Wiesbcrg. R. 48 Wiggcn, O. 296 Williams, A 285 Williams, R. 44 Wilson, ). 206 Wilson. R. S. 136 Wilson, R. A 130 Witchell, J. 136 Witt, C. 14 WiItb'Cnstcin L. 8, 138 Woodiwiss, A. 23, 236 'W'right. S. 271 XIX; Article 19, Internationlll Centre

us otIkc of Technology Assessment, 267, 270 Unger, R. M. IS, 98 Urry, ). 116, 242, 266

Agamst Censorship, 1S
VilOria, F. 13

Willerstcm, I. 70, 237 \v.I.lsh, E. 201 Wilier, M . 296 \v.I.u:mun P. 70, 204

Zx. L 147, 162, 167 ZlIdck. S. 296. m

m

um mlt, A. 2.i~ek, S. 82, 160, 167, 175, 191 Zwi, A. 102

•

Theme Index

Amnesty Imcmattonal, 79-80, 211 ,

246 animal rights, 7S-9 Bhopll cltlStrophc, ;ti-«ii, 88, 118, 252, 264, 288 biotcchnology, 269-72 citizen pilgnms, 25 culture, 142-4

enlightenment, the 35. 37, 39, 47, 48 globaliution capit:1iism, lnd 212 chlner of Hunun Rights of the Globli Dpital, and 258-9 conceptton5, of 235-41 contemporary forms, of 236-41 continuities, in 231-41 de-globaliution, and 239 diversities, of 242-4 end of nltio n-stue, and 245-52 evaiuuion, of 244-5 foreign investment, and hUlllln ngllts, and 258-64 1lI1tcriality. of 264 narntive$ of, 236, 245 new IIltemltion:ai military o rder, and 236. 241-2 nUc\Clr energy and WC:lpon~ and 265-8

nulCri;ility, of 264 perverse fomu, of 262 regubtion, l nd 237-8. 271-2 risk society, and 261. 266 snuller, fo mlS of 23M 'Soft' sutes, and 248-52 transactional and reb'ulatory fonns of, 238-9 t~c was tes. and 251-2 Grameen Bank, 232 Greenpeace 226, 246 humln nghts [Sec lisa globalizatIon, human rights activism, identity, NGOs, movements, rebtiv1sm, suffcrIIlg. universality, United Nltions Norms for Corporate Responsibility, and Women's Rights as Iluman Righl$] ldjudication, and 85, 163 aid conditioru.libcs, and ambiguities, of9, 10-12 anomie, and 28 authorship, of 33 basic m:cds, and 105, 108-9 bureaucratization, of 92-4 Clplhilities, lnd 212 clarity, and 8-10 Cold War, and 42, 52-3, 55. 93, 174,239 colonization, and 35 contemporary and mode rn, 42-4 cosmologies, lud 26 (:()StS, of 91-2

Theme Index culture, and 21-2 de-coloniution, and 30, 70, 79 di:.llogism, and desire, lOO 11-12 dlscursivity. of 22-4 Endologics, and 244 education, and 9 ethICS, and 12-15 ethnocenu15m. and 178 essentialism,lnd 134-7 Eurocentrism. and 192 evangelism, lnd 34--6 evii, and 27-30 Exclusion, and 44-5 expertise, and 97-8 'failed' States, and 246 Feminization, of 159 food, and 257 fore ign investmem, and 261 fomlS , :md 120-4 Future, of m-xxii, 4-5, 25-6 genealogies, of 8 generations, of 106 global govenllnce, and 17-19 ~rnance, and 15-17, 61. 62,

71 , 85 genocide, and 8, 254 history, and 144-5, histories, of 40-1 holocaust, lnd 25 hunun nlture, and 137-42 international law, and 127-30 images, of 11-12 Impossibility thesis, lnd 37-9 indigenous peoples, and 270-1 Insurrection, and 20--1 jus 'ogmf, and n justice, of 127 juridical productio n, of 20-1 languages, of ;ti.x-Jor, .:0.;1', 8, 9, 101-2 bwycr's law, of .\'JIiii logics and plralog1cs, of 24-5 mainstreaming. of 250 MAl, and 112,

337

markets, of 103 Marx, lnd 90 MlJ'lOan Crluque, of 55-6 musurt mem, of 113-14 mUlIeS/S, and 38-9 morality, of 14-15 nature and number of; xviii nltural rightS, and 13-14 nuc!eUlzatlOn, and ongm s of. 36-8 overproduction of 33, 99, 104--6 paradigms, of 42-3, 234-5, 252- 5 participation, and 110-11 plurality, and 12 politics oj, and JOT, xiv-xv, 80, 82. 83, 84, 85, 86, 152-6 polyethnic TIghts, and 189-90 potentiality, and 2-4 production, of9, 46-7, 95-9, 213 pesudospcciation, and 169 qUllity control, and 106-9 racism, and 53-5, 191-2 rdlCXIvlfY, and 14.99, 115-20 reSlonal mstrumcnts, and re$lsunc~5truggles, and 19-20,

66--7, 103 nghdessness, and 59, 130-4, 153 nsks, aim 261, 264, 266 ronunucism, of 90--2 Silnctions, and 157, scienusm, and 65-6, 134 self-dctennnution, lnd 50--3 Socill Darwinism, and 40 social theory, of 47-8 solidanty, and 73, 74, 102 soft law, of 27~9 software , of 21 technoscience, and xxiii-«'\;II Terror, and XlHClIi, m, 157, time. and 143-7 Trade-related, market friendly, parldigm of 258-64 unto uchability, llld 145, 152-3 VIolence, and 3M w;lrineSS, and 82-5

338

Theme Index

wearineu, and 81-2 WeslOlufiallon, and 192-3 White Man's Burden, and 34-5 human ngllls :lCbvism 'anti-human righu' practices, and

76-80 ami-systemic nlOVemenu, and 70-1 buruucrallulton, of 92-4 corruption, of 65 costs, of 91-2 hislOries, of 67-n juridlcaliution, of 69-70 professions, and 64-5 n:alism, and 94-5 social movcmentli, and 68-9 social practice, and 59-6) terrilOrialization. and 68 ulli~lUlity, and 170-5 varielles, of ~7 worker's righlll. and 69-70, 236-7 Idenllty C:lSte, and 145. 152-3 communiunan belonging. and

ISO-I difference, and 159 Empowennent, and 154 idenuficauon pracuces, and 149--50 namlUw monopolies, and 156-9 IUmllive righu, and 31 politics, of 15J--6 postmodemism, and 154. 159 Sdf-delenninalion, and 50-3 subject-positions. and 14S-9 subversion rights, and 151-2 truths, about 147-8 movementli emaneipalOry eharKlcr, of 20.3-6 juridicali ulion, of 207-12 human rightS, and 21~16 markets, and 216-220, 220-3, 233 notions, of 201-3 'old,' and 'new' 204-6,

Theme lndex 339 regulation, of 226-33 value-neutrality, and 212-16 non-govemmenul organizations accountability, of 232-3 !Urning. of 75--6 Mapping of, 64, 73-4 nurket rationality, and 219-20, 221-2 Ikd Cross, 71 regulation, of 226-33 resources, and 217-19 Spaces, of 72-3 techniques of, 222--6 'Third sector', and 67-8 violence, and 78--80

n,

relativism [see also universality) American Anthropological Association, and In-8 multicultunlism, and 188-92 suffering. and 196-9 Types, of 193-6

SLMPS 260-1 social action litigation 225 suffenng adjudication, md 163 appropriation, of xrii-«Xivi authorship of rights, and commodification, of 219-20, 222-<> compassion fatigue, and 222 corponte philanthropy, and 218 i:krrida, and 154, 155 Discourse, and 24--5 genocide, and 8 global ClIpiulism, and human tights, and 26-7, 47-50 holOC:lust, and 3, 28 justifications, (or 26-7 mass media, and 155--6, 223 millermial developmem goals, and xvi moral anthropology, and 387

left legalism, and xviH;vjii ndical evil, and 27-32 representation, of 6 reSISWlCe, and 2l-4, 102-3 sanctions, and 27, 157 sdf-detennination, and 138 solidarity, and 31-2 technosciencc, and xxiv truth commissions, and 30--2 un-narneablity, of 8 UDHR xv, 3, 42, 157, 159, 268, 269, 164-5, 168, In, 181-2 UNDP, 109, 146, 216 United Nations Nornu for Corponte Responsibility business ethics, and 294--6 corpor:lte social responsihility, and 296-7 corruption, and 257, 291-2 criticisms, of 2n, 282-3, 288, ethical langu~s, and 296-7 hypemonns, and 297-300 implementadon stntegies, of

29'-4 intertextuality, of 278-81 nonnativity, of 300--2 McBride Principk$. and 257 scopr, of 281-3

specific duties, under 289-93 state obligauons, under 284-5 Sulhvan Pnnelples, and 257 Umversahty absolute, and HI5--8 antifoundatlO!Uhsm, and 175-9 Asian w.luC$, and 184 Dtaioglsm, and 86-9 fngrncmed natutC', of 50-2 notions, o( 161-4, 167-9 Marx, and 162 glomlization, and 170-5 hegel, on 167-9 histories, of 179-85 human rights, and 163-7 Women's Rights :IS Iluman Rights CEDAW, and 67, lOS, 181,288 identity, and 150-1 Essentialism, and 153 difference, and 151-3 re$Crvations, and SIuJt &"" CQX, and 150-1 VIOlence, and 146, 152-3 World Bank 71, 249 World Social Forum. 70 wrO. 18, tl2, 157 ZapaUSta, 225