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, diver