Ch. 18-International Human Rights by NYU Law Center for Human Rights and Global Justice

Chapter 18. Critical Perspectives

The preceding chapters of this book have underscored many of the major challenges faced by the international human rights regime (IHRR). Before surveying responses to those challenges, it is helpful to acknowledge that, when we talk about ‘human rights’ or even about the ‘regime’ or the ‘movement’, we are generally not focusing on the totality of the multi-faceted system, but we do not then specify exactly what it is we are talking about. We might be referring to conceptions based on broad philosophical or religious ideas, to local culturally-derived values, to a system that falls under the rubric of human rights in national law, to the specific normative framework embodied in something we call international human rights law, to the interpretations of rights adopted by leading courts and other bodies, or to the institutional framework that has been established at the international or regional levels. This lack of specificity has been a major problem when it comes to some of the sweeping overall assessments published over the past couple of decades, which have too often focused on human rights tout court and found ‘them’ inadequate, ineffectual, problematic, counter-productive, or even destructive.

At the international level, refuge is frequently taken in the term ‘implementation’, in the sense of giving effect to the agreed norms, but this term is often invoked at such a level of determined generality as to tell us rather little about what is actually happening. For scholars, it might be more productive to consider whether the focus should be on: vernacularization in the sense of translating norms at one level into a language in which they can be understood at another; ‘awareness-raising and sensitization’ to use the term adopted by the Inter-American Court of Human Rights; mobilization by social movements; legalization, juridification, norm domestication, or constitutionalization as the lawyers get their hands on the concept; or institutionalization, as governments or intergovernmental actors seek to establish arrangements by which to give effect to the obligations and responsibilities of different actors. Of course, these processes, far from being independent of one another, are often very closely linked. But for analytical purposes, it is helpful to keep such distinctions in mind.

Almost a decade ago, César Rodríguez-Garavito, in ‘The Future of Human Rights’, 20 Sur (2014) 499, noted the extent of the uncertainty facing the IHRR as a result of: ‘(i) the rise of a multipolar world with new emerging powers, (ii) the emergence of new actors and legal and political strategies, (iii) the challenges and opportunities presented by information and communication technologies, as well as (iv) the threat posed by extreme environmental degradation. He highlighted some specific problems, in particular ‘the hierarchical nature of traditional human rights discourse and movement, asymmetry between North and South organisations, overlegalisation of human rights language, and the lack of concrete assessments of human rights outcomes.’ He argued that human rights practitioners could either respond in a defensive manner by acting as gatekeepers, or could engage in ‘reflexive reconstruction that reimagines practices and boundaries to generate productive symbiosis among diverse human rights actors… .’751

Today, the challenges and the questions to which they give rise are even more urgent. Consider the following overview:

NEHAL BHUTA ET AL., INTRODUCTION IBID. (EDS.), THE STRUGGLE FOR HUMAN RIGHTS (2021) 1

[We live] in an era of faltering democratic institutions and practices, dramatically destructive climate events, collapsing economic growth, renewed attention to systemic racism and police brutality, global pandemics, and some of the most unequal distribution of income and wealth recorded in over a hundred years. These profound crises occur against the background of the collapse of long-standing assumptions that had structured politics and international relations. Even as the previous epoch-making political-economic settlement (whether we call it Keynesianism, Embedded Liberalism, Welfarism, or something else) comes dangerously unwound, it has come under renewed criticism for reproducing the legacies of colonialism, imperialism, and slavery, and for embedding the normative status of a concrete type of social persona: white, male, able-bodied, heterosexual. Can contemporary human rights laws and practices meet these and the many other challenges we face? Should the seventy-year project of legalizing human rights internationally be pushed further, paused, or rethought? …

751 See also L. Fletcher, ‘Power and the International Human Rights Imaginary: A Critique of Practice’, 14 J. Hum. Rts. Prac. (2022) 749.

One productive starting point is that, even as the relationship of human rights to social and political change is everywhere shifting and contested, human rights remain the closest thing to a global lingua franca for representing, framing, labelling, and demanding redress for injustice and social suffering. … [O]rganizations and groups non-profits, social movements, and loose collectives embrace the language of human rights in all regions of the globe, and have successfully used human rights to advance justice and accountability. The shared language of rights can be used to express and legitimate values, concerns, and needs, and can be an important organizing tool. Global movements such as those led by indigenous peoples, peasants, workers, women, and people with disabilities have organized to claim human rights and demand that their rights be recognized in law. The attention that can be garnered by claims of human rights violations can and has been used to label economic, political, and institutional structures as fundamentally unjust and inadequate. Formal human rights institutions can be used to spotlight abuse, focus attention on issues, serve as platforms for advocacy, and pressure governments to reform. They provide space for advocates to unite across borders, raise the profile of national struggles, and articulate their demands in new ways.

A course book such as this is designed to stimulate the reader’s thoughts and reflections rather than to provide answers to the most challenging questions that arise. Accordingly, it cannot pretend to provide an overall evaluation of the regime as a whole. But it would be remiss not to provide some sampling of the flood of assessments or critiques that have emerged over the past two decades.

Probably the most compelling analyses of the effectiveness of human rights have been written in the context of detailed studies focused on particular rights, groups, institutions, or countries. Conversely, the harshest critiques have often been of a general and all-embracing nature, such as Stephen Hopgood’s, The Endtimes of Human Rights (2013), or Eric Posner’s The Twilight of Human Rights Law (2014). We have considered above various claims that human rights are irredeemably Western in origin, content and implementation, and will not revisit those arguments here. But other commentators portray the almost complete failure of the IHRR, and sometimes point to unintended consequences that have left the victims of injustice even worse off. This is sometimes attributed to misplaced strategies, unduly narrow interpretations, or unacceptable omissions. However, other critiques suggest that the regime has either knowingly or inadvertently displaced, discouraged, or suppressed alternative approaches that might have been more effective.

One of the most detailed empirical studies, focused on the domestic impact of human rights treaties, is Beth Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (2009):

… [F]ormal commitments to treaties can have noticeably positive consequences. Depending on the domestic context into which they are inserted, treaties can affect domestic politics in ways that tend to exert important influences over how governments behave toward their own citizens. Treaties are the clearest statements available about the content of globally sanctioned decent rights practices. Certainly, it is possible for governments to differ over what a particular treaty requires – this is so with domestic laws as well – but it is less plausible to argue that the right to be free from torture, for example, is not something people have a right to demand and into which the international community has no right to inquire; less plausible to contend that children should be drafted to carry AK-47s; and less plausible to justify educating boys over girls on the basis of limited resources when governments have explicitly and voluntarily agreed to the contrary. Treaties serve notice that governments are accountable – domestically and externally – for refraining from the abuses proscribed by their own mutual agreements. Treaties signal a seriousness of intent that is difficult to replicate in other ways. They reflect politics but they also shape political behavior, setting the stage for new political alliances, empowering new political actors, and heightening public scrutiny. When treaties alter politics in these ways, they have the potential to change government behaviors and public policies. It is precisely because of their potential power to constrain that treaty commitments are contentious in domestic and international politics (at 4).

International law is not a panacea for all ills. It will not eliminate ruthless dictators, end racial or gender discrimination for all time, or raise all humans to an acceptable standard of living. These international legal commitments are not magic bullets. They have helped but not cured the rights deficit … . … The principles espoused in [human rights treaties] have garnered broad official acceptance worldwide. There are disagreements among states over the exact meaning of some of their provisions but also widespread acknowledgment of their authoritative character. These treaties have inspired some of the most significant constitutional changes within countries in the past three decades. They have touched off domestic debates, provoked demands, and raised the expectations of ordinary citizens. They have been used at crucial moments and critical junctures by litigants and judges to shape domestic law, institutions, and practices for the future. In many cases, people are much better off because of international human rights law than they would have been in its absence (at 350).

SETTING THE SCENE

Before considering a range of critical snapshots, it is helpful to supplement earlier materials in this book by providing some relevant context in terms of the legal, historical and sociological debates in this area. Robert Howse and Ruti Teitel provide an insightful reminder that a narrow or legalistic understanding of compliance cannot capture the reality of the situation. Ryan Goodman and Derek Jinks examine some of the socialization techniques present in the IHRR, and Philip Alston warns of the pitfalls of selective historical accounts.

ROBERT HOWSE AND RUTI TEITEL, BEYOND COMPLIANCE: RETHINKING WHY INTERNATIONAL LAW REALLY MATTERS 1 GLOBAL POLICY (2010) 127

… [T]he conceptual, and more recently empirical, study of compliance has become a central preoccupation, and perhaps the fastest growing subfield, in international legal scholarship … .

Looking at the aspirations of international law through the lens of rule compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of international law to politics.

One reason that compliance is often seen as a central problem for international legal scholarship is the challenge (by realists and some but not all positivists) that law is only really law when accompanied by authoritative interpretation and enforcement (see Morgenthau, 1948). A focus on compliance, or more adequately perhaps obedience (see Henkin, 1968), aims to deflect such a claim by asserting that there is a range of considerations including reputational effects/long-term self-interest that lead to compliance with international law, regardless of the absence of authoritative interpretation and enforcement in most instances.

Such a response at once proves too much and too little. …

… It is worth noting however that one of the most sophisticated positivist accounts of law, that of H. L. A. Hart, rejects the notion that legal obligation implies effective coercive sanctions, specifically informed by a consideration of international law. According to Hart:

To argue that international law is not binding because of its lack of organized sanctions is tacitly to accept the analysis of obligation contained in the theory that law is essentially a matter of orders backed by threats. This theory, as we have seen, identifies ‘having an obligation’ or ‘being bound’ with ‘likely to suffer the sanction or punishment threatened for disobedience’. Yet, as we have argued, this identification distorts the role played in all legal thought and discourse of the ideas of obligation and duty (Hart, 1961, pp. 217–218).

…

The following are some of the possible effects of international law that are not captured by the notion of behavioral ‘compliance’ with a ‘rule’ of law… .

International law (norms and/or institutions such as courts and tribunals) may shift in whole or in part decisionmaking, interpretative and/or legitimating power from one set of elite actors to another (for example from diplomats, foreign policy analysts and military planners to legal professionals such as judges, lawyers and law professors). This effect is autonomous from that of compliance: in some cases, legal professionalization may lead to more compliance, and in some cases less. In others, it could even lead to ‘ultracompliance’: effects which go beyond what is desired from the perspective of the objectives of the legal regime, and which may even be perverse.

…

International law can affect the way that policy makers view international problems and conflicts (for example in terms of clashes of rights as opposed to balancing of political or economic interests) and their perception of the constituencies to whom they are accountable in addressing such problems and conflicts. …

… [There is] an internal difficulty within the ‘compliance’ perspective. Goldsmith and Posner, for example, maintain that unlike ratification of human rights treaties, ‘democracy, peace and economic development’ have been shown to enhance human rights protection; however, this contrast assumes that democracy, peace and economic development occur entirely exogenously of the effects of international human rights law. If … international human rights law helps to lock in transitions to peaceful democratic conditions, then it may ultimately lead to what is usually conceived of as compliance, but only through a normative effect that is caught in the first instances by focusing on something other than rule compliance.

While Eric Posner … tends to dismiss the influence of the International Court of Justice (ICJ), based on the number of judgments it has emitted and their purportedly distant effects on the controversies decided (Posner, 2004), the jurisprudential acquis of the ICJ on such essential questions as state responsibility, countermeasures and treaty interpretation has been repeatedly invoked, in for example, investor–state arbitrations … . …

…

Rather obviously legal agents bargain in the shadow of the law. … States, instead of simply ‘complying’ with international legal rules may bargain in light of them, and around them. …

[In the context of] the international legal duty to punish crimes against humanity, … the increasing likelihood of such prosecutions given the creation of an international criminal court may well affect peace or regime transition bargains between parties to a conflict, for instance making it more difficult or less plausible to use amnesties as a bargaining chip for acceptance of a peaceful, negotiated transition. On the other hand, with the ICC in the background now, and its ability to enforce international criminal law during an ongoing conflict, more cautious or restrained behavior by some of the participants in the conflict may result, and this could actually make a transitional bargain easier. … [T]hese effects do not even come into focus if one centers the analysis on effects on ‘compliance’ with the duty to prosecute and/or the duty to cooperate with the ICC for instance.

GOODMAN AND DEREK JINKS, SOCIALIZING STATES: PROMOTING HUMAN RIGHTS THROUGH INTERNATIONAL LAW (2013)

Chapter 1: Introduction

First-generation scholarship in international human rights law, in our view, provides an indispensable but plainly incomplete framework. Prevailing approaches suggest that law changes human rights practices either by materially inducing states (and individuals) or by persuading states (and individuals) of the validity and legitimacy of human rights law. In our view, the former approach fails to grasp the complexity of the social environment within which states act, and the latter fails to account for many ways in which the diffusion of social and legal norms occurs. Indeed, a rich cluster of empirical studies in interdisciplinary scholarship documents particular processes that socialize states in the absence of material inducement or persuasion. These studies conclude that

RYAN

the power of social influence can be harnessed even if: (1) collective action problems and political constraints that inhibit effective material inducements are not overcome and (2) the complete internalization sought through persuasion is not achieved. ..

Our aim is to provide a more complete conceptual framework by identifying a third mechanism by which international law might change state behavior what we call acculturation. … We do not suggest that international legal scholarship has completely failed to identify aspects of this process. Rather, we maintain that the mechanism is underemphasized, insufficiently specified, and poorly understood, and that it is often conflated or confused with other constructivist mechanisms such as persuasion. …

Chapter 2: Three Mechanisms of Social Influence

…

A. Material inducement

The first and most obvious social mechanism is material inducement whereby states and institutions influence the behavior of other states by increasing the benefits of conformity or the costs of nonconformity through material rewards and punishments.

B. Persuasion

Persuasion is a mechanism of social influence documented principally by psychologists and sociologists and applied by others to the spread of norms across states. Persuasion theory suggests that the practices of actors are influenced through processes of social “learning” and other forms of information conveyance that occur in exchanges within international organizations and transnational networks. Persuasion “requires argument and deliberation in an effort to change the minds of others.” Persuaded actors “internalize” new norms and rules of appropriate behavior and redefine their interests and identities accordingly. … The touchstone of the overall process is that actors are consciously convinced of the truth, validity, or appropriateness of a norm, belief, or practice. …

C. Acculturation

Another important mechanism of social influence, in our view, is acculturation. … Whereas persuasion emphasizes the content of a norm, acculturation emphasizes the relationship of the actor to a reference group or wider cultural environment. … Accordingly, acculturation encompasses processes such as mimicry and status maximization. The general mechanism induces behavioral changes through pressures to conform. Individual behavior (and community-level behavioral regularity) is in part a function of social structure the relations between individual actors and some reference group. Actors are impelled to adopt the behavioral practices and attitudes of similar actors in their surrounding social environment.

… Actors, in an important sense, are influenced by their environment; indeed, this generalized influence is one important way that “culture” is transmitted and reproduced. Although culture is typically understood as “learned behavior,” much of what actors absorb from their social environment is not simply “informational social influence.” Social influence is a rich process one that also includes “normative social influence” whereby actors are impelled to adopt appropriate attitudes and behaviors. An actor need not be unaware of these influences these processes can be subconscious or fully apparent. …

Despite the obvious similarities, acculturation differs from persuasion in important respects. First, persuasion requires acceptance of the validity or legitimacy of a belief, practice, or norm acculturation requires only that an actor perceive that an important reference group harbors the belief, engages in the practice, or subscribes to the norm. Accordingly, persuasion involves complete internalization. Acculturation can involve complete or incomplete internalization. Second, persuasion requires active assessment of the merits of a belief. Acculturation processes, in contrast, frequently (though not invariably) operate tacitly; it is often the very act of conforming that garners social approval and alleviates cognitive discomfort. Persuasion involves assessment of the content of the message (even if only indirectly); acculturation involves assessment of the social relation (the degree of identification) between the target audience and some group (and of the importance of the issue to the group). Acculturation occurs not as a result of the content of the relevant rule or norm but rather as a function of social structure. Acculturation depends less on the properties of the rule than on the properties of the relationship of the actor to the community. Because the acculturation process does not involve actually agreeing with the merits

of a group’s position, it may (but does not necessarily) result in outward conformity with a social convention without private acceptance or corresponding changes in private practices.

PHILIP ALSTON, DOES THE PAST MATTER? ON THE ORIGINS OF HUMAN RIGHTS 126 HARV. L. REV. (2013) 2043, 2076

[In The Last Utopia: Human Rights in History (2010), at 8-9, Samuel Moyn famously claimed that ‘it was … only in the 1970s that a genuine social movement around human rights made its appearance’. He adds that ‘[f]ew things that are powerful today turn out on inspection to be longstanding and inevitable. And the human rights movement is certainly not one of them. [This] … means that human rights are not so much an inheritance to preserve as an invention to remake – or even leave behind …’.]

By detaching today’s international human rights regime from its deep roots and dismissing the relevance of the many historical as well as intellectual struggles to define a shared understanding of the subject, [historical revisionists led by Moyn] are able to present us with a clean sheet from which to begin their own speculations as to both the nature and the origins of the human rights movement. … [One result is that] there is a struggle for the soul of the human rights movement, and it is being waged in large part through the proxy of genealogy.

B. The Road Ahead

Any meaningful history of human rights must disaggregate and address separately the different analytical dimensions of the overall enterprise. The enterprise of “human rights” consists of too many distinct facets to be reduced to one or two variables. The history and power of ideas, the force of grassroots social and political movements, the impact of legal and constitutional traditions, and the influence of institutions at both the domestic and international levels constitute indispensable elements that need to be factored into any effort to understand the origins, nature, and potential significance of the present regime. Several lessons emerge from [recent historiography].

1. The Intrinsic Polycentricity of the Human Rights Enterprise. Each of the different historiographical approaches has something important to offer, but we should be very wary of any single account that purports to have found the answer to the puzzle and to have invalidated alternative interpretations. The human rights enterprise is intrinsically complex and multifaceted. Its origins are to be found in different and multiple sites, and they cannot usefully be traced back to any single source or through examining the evolution of a single theme, process, or institution.

2. Linear Claims as a Suspect Class Histories that rely on strong claims of continuity over a long period of time are inherently questionable. Thus, for example, the history of antislavery alone … has been a remarkably circuitous, uncertain, and often tragic one, even in the limited period from 1807 to the present. Claims of a direct lineage over a century or two will generally imply elements of consistency and perhaps even inevitability that do not resonate with the actual path that history has traced, and this is certainly true of the struggle to abolish slavery. …

… [In the history of human rights] there are crucial continuities as well as discontinuities, and neither should be overlooked or underestimated.

3. The Need for an Analytical Framework. Given the polycentric nature of the overall enterprise … “human rights” might be thought of as: (a) an idea, including careful consideration of the extent to which vocabularies are interchangeable over time; (b) an elaborated discourse, going beyond basic ideas, but not requiring institutional manifestations; (c) a social movement, including a definition of such a movement and specification of why it is significant; (d) a practice, or an institution, that resembles in at least some respects the elements that we might consider important today; (e) a legal regime, either at the national or international level, or both; or (f) a system that is capable of effectively promoting respect for the rights of individuals and groups. Each of these categories would constitute a plausible focus for analysis, and each is likely to be linked to the other, thus forming elements in the historical genealogy of the system. An isolated focus on one or another will inevitably

produce different accounts of the origins, antecedents, precursors, and so on … . The choice of focus will also produce different causal accounts.

4. The Power of Ideas. At the end of the day, the most compelling reason for the importance of genealogy is to be found in the history of ideas. But human rights does not consist of a single idea. Much of the recent literature seeks to single out one particular element that is then said to have transformed an otherwise amorphous mass of claims and assertions into a suddenly coherent body of “human rights” that had not previously existed. To the extent that [Jenny Martinez, in The Slave Trade and the Origins of International Human Rights Law (2012)] seeks to mark out the origins of a regime that consists of the elements that would be most prized by a twenty-firstcentury international lawyer treaties, courts, and enforcement her case is strong. Nor is she oblivious to the broader political and societal contexts in which this regime emerged. But the weakness of the bolder claim that she makes is that she fails to trace the historical evolution of either the basic normative claims of the antislavery movement or the techniques that were pioneered at the time. Even if the case can be made that today’s norms and institutions look much like those of yesteryear, any compelling genealogical claim needs to be demonstrated rather than surmised.

For Moyn, the key transformative step is that the claim made by an individual is directed to the international community, rather than to the state of which the individual is a citizen. But this step is just one among many in the long and winding voyage of the concept of human rights, the evolution of which continues. There is no single element, no single idea that enables us to declare that the notion of human rights has reached a definitive threshold that not only marks it off from all that has gone before but also makes it qualitatively and fundamentally different. We are looking at a continuum, albeit not a linear one. …

5. The Role of Power Power, in both its positive and negative iterations, must be an integral part of any history of human rights. But power comes in many shapes and forms ranging from military force to the soft power of ideas. …

THE PAST AND FUTURE OF HUMAN RIGHTS: SNAPSHOTS

In reading the materials below, keep in mind questions such as the following:

• When we speak of the IHRR, what exactly do we have in mind? Is it necessary to disaggregate the different component parts of the regime (concepts, norms, laws, institutions, social movements, etc.) to arrive at nuanced and meaningful judgments, or is the ‘system’ sufficiently coherent as to be susceptible to a single overall assessment? How do the authors below conceive of the ‘regime’, ‘movement’, or ‘system’ that they are addressing?

• Given the magnitude, extent, and persistence of the violations that we see worldwide, does it follow that the IHRR has failed? That it is entirely inadequate?

• How much of the authoritarian and populist backlashes against human rights can be attributed to the shortcomings of the regime, or alternatively to its successes?

• How could the IHRR be reformed? Or should it be abandoned/scrapped and replaced with something very different? If so, what form might that take? What alternatives have the critics of the existing system suggested?

• Reflecting back on the many issues and sub-regimes explored in this book, which of the assessments below seems to best capture your own perception?

• To what extent has the overall IHRR been unduly path dependent, or been captured or distorted by one or more political or economic ideologies? How rigid or flexible has it proven to be? How well has it adapted in response to new challenges?

• Are the successes of the regime really significant, or are they largely pyrrhic or marginal?

ABDULLAHI AHMED AN-NAIM, DECOLONIZING HUMAN RIGHTS (2021) XII

In the absence of verifiable means of evaluating the level or degree of actual protection of human rights, factors such as the ratification of treaties, adoption of laws, and descriptive self-reporting by states or highly selective

and arbitrary reporting by international human rights organizations (NGOs) are taken as “evidence” of negative or positive human rights performance by the state. The priorities of so-called donor governments and northernbased NGOs are taken as the sole reliable means of promoting human rights in postcolonial states in Africa and Asia.

Since human rights are by definition universal claims asserted and realized by self-determining human beings, our ability to define and implement these norms is integral to our humanity. The present state-centric international law system and its institutions can provide only limited and contingent protection of human rights norms. Shifting the human rights paradigm from state-centric bureaucratic formalism to people-centered social and political movements will still need states or other forms of large-scale political formations that are subject to total transparency and effective accountability.

… [What is needed is] the mutual linking of being human and human rights, whereby perceptions of what the human is define the scope, content, and methods of the protection of human rights, and the quality of being human is enabled and realized through the protection of those rights. By “human rights,” I mean moral and political entitlements that are due to all human beings equally by virtue of their humanity, without any distinction on such grounds as race, sex, religion, or national origin. … I prefer to present these rights as moral and political – instead of legal – entitlement because the legal dimension is futile without sufficient moral foundation and the political will to implement it.

[Asked by the UNESCO Courier in 2019 how respect for human rights can be ensured, An Naim replied that:

… human rights should be defined by the people who accept and live by them on the ground, and not imposed by former colonial powers on their former colonies or by delegates of post-colonial states, and international bureaucrats.

Second, human rights norms must be implemented through realistic contextual steps that are suited to the needs and resources of relevant communities, and not by enacting highsounding legislation to be presented at sanitized meetings of international organizations, and diplomatic or academic conferences.

Third, strategies of implementation must be deeply contextual, and under the control of the human subjects of these rights everywhere.]

UPENDRA BAXI, THE FUTURE OF HUMAN RIGHTS

(3RD ED., 2008) IX752

… [W]hile human rights languages provide a striking arena for questioning the barbarity of power and domination, these at the same moment do not exhaust the range of normative politics. Other evaluative ways also exist that are often in conflict with the ethical languages of human rights. … [There is a] need for constant vigilance against an assumption that human rights norms and standards, and even values and sentiments, instantly justify themselves in terms of the attainment of human/social welfare as distinct from the states of human well-being, or as serving the tasks of just social orderings, nationally, regionally, or globally. The languages of justice remain relatively autonomous of the languages of human rights … .

… This book explores three distinct but related domains of making, remaking, and unmaking of non-material human rights culture (sentiments, symbols, and values) as well as the material culture of human rights (the infrastructures of power and authority which promote and sustain the articulation of human rights norms and standards).

… Endeavours at making and remaking contemporary human rights norms and standards … remain more crucial than may be ever fully glimpsed or garnered via the endless (and already sterile) debate about the ‘universality’ and ‘relativity’ of human rights.

752 Baxi’s work has been described by W. Twining, General Jurisprudence (2009), at 430, as ‘diffuse, polemical, and difficult to summarise.’ Nonetheless, he offers an excellent overview of it, using Baxi’s own words. See also W. Twining (ed.), Human Rights, Southern Voices: Francis Deng, Abdullahi an-Na’im, Yash Ghai and Upendra Baxi (2009).

…

[T]he various declarations of human rights since the [UDHR] spawning human rights treaties and related instruments and constitutional enunciations, all in constant interplay, make space for the struggles for the attainment of human rights; these at the same moment also preserve some ultimate or terminal forms and zones of sovereign governmental discretion; in sum, the overall production of human rights free zones of domination and governance. The production constraints thus posed are scarcely amazing. The astonishing feature of the polymorphous production of contemporary human rights norms and standards, at all levels … is its normative exuberance and excess. The crucial question then is this: How may we read or render legible as well as intelligible these forms of what I name here as the ‘carnivalistic’ production of human rights exuberances/excesses? Do these speak to us about some new messianic futures of human rights, or even to some future histories of the humankind? Or does all this primarily, and after all, constitute the cunning of instrumental political reason?

[Baxi draws a strong distinction between the ‘politics of human rights’ and ‘politics for human rights’.]

… It remains rather easy to describe the politics for human rights in the languages of ‘transformative’, or even as ‘redemptive’ politics. … [But in] this genre, the ‘transformative’/’redemptive’ politics of the State/sovereignty-oriented production of dominant and dominating truths stands constantly exposed as an expedient order of cruel and wounding falsehoods.

The ‘best’ practices of politics for human rights invoke and use the ‘transformative’/’redemptive’ imagery differently indeed. In these genera, communities in resistance and suffering (the worst-off) peoples offer the labours of popular and societal resistance to the various forms of the politics of domination and governance. Human rights and social movement activist practices become possible and legible on a register that marshals the power of utterance of the political truths of the suffering peoples and communities in resistance. While the politics of dominance thrives upon the practices of nationalization of truth and the unending nurturance of governmental monopoly over definitions of ‘the’ public interest or the common good, civil society formations (or more accurately put the ensemble of diverse practices of social and human rights activism) contest this monopoly of a singular and totalizing narrative of official authorial voice. Resistance the myriad forms of articulation of counter-hegemonic power thus makes the best narrative sense for the uncertain promise of human rights futures.

I say ‘uncertain promise’, if only because there exist no easy alternatives to the problematic of representation, that is the activist art and craft of speaking with, rather than for the suffering or the worst-off peoples. Speaking for (acts/feats of ‘political’ representation) remains the standard way of dominance/governance; speaking with suffering peoples constitutes the ‘substance’ of politics for human rights. Not all human rights NGOs thus labour to speak with the suffering peoples, despite their professed aims and the problem of representation thus becomes acute with some contemporary tendencies towards the conversion of human rights movements into human rights markets. Many practices of human rights activism fail indeed to restore to suffering peoples, and indeed even claim for themselves the most precious of all human rights the constantly claimed human right to interpret human rights. Nonetheless, I here offer overall some grounds for a belief that in the main various styles of engagement with the politics for human rights aspire at being, and remaining, historically worthy of this designation.

SAMUEL MOYN, THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY

(2010) 212753

When the history of human rights is told beyond myths of deep origins, it illustrates the persistence of the nation-state as the aspirational forum for humanity until recently. The state was the incubator for rights claims, both in the rise of the absolutist state, with its well-disciplined interior order and colonialist exterior expansion, then in the creation of the modern nation, in which citizenship and rights, identification and contestation, were always bound up with each other. The relevance of the nation-state was amplified, rather than qualified, in the World War II alliance politics that led to the marginalization in the United Nations of the human rights that some wartime rhetoric had featured. It was geographically dispersed in the anticolonialist imagination, in which

753 For a review, see S. Benhabib, ‘Moving beyond False Binarisms: On Samuel Moyn’s The Last Utopia’, 22 Qui Parle (2013) 82.

the new human rights were understood as a subversive instrument against imperial rule in the name of liberation and the construction of new states around the world. The perceived crisis of the postcolonial world, however, made the globalization of the nation-state unattractive as the sole formula for the achievement of modern freedom. Accordingly, rights finally lost their long connection with revolution.

The international human rights movement became so significant, then, neither because it offered a rights-based doctrine alone nor because it forged a truly global vision for the first time. Rather, it was the crisis of other utopias that allowed the very neutrality that had made “human rights” wholly peripheral to the aftermath of World War II when taking sides in a contest of programmatic visions seemed so pressing to become the condition of their success. …

But the very neutrality that allowed for human rights to survive in the 1970s, and prosper as other utopias died, also left them with a heavy burden later. For even if their breakthrough depended on their antipolitics, human rights were soon affected by two transformative changes. First, the moment that favored pure moral visions passed, not least in American party and electoral politics, as Jimmy Carter’s brief presidential career illustrates so vividly. Second, and more important, partisans of the human rights idea were forced to confront the need for political agenda and programmatic vision the very things whose absence allowed for their utopia to emerge so spectacularly and discontinuously in the first place. If human rights were born in antipolitics, they could not remain wholly noncommittal toward programmatic endeavors, especially as time passed.

Born of the yearning to transcend politics, human rights have become the core language of a new politics of humanity that has sapped the energy from old ideological contests of left and right. With the advancement of human rights as their standard, a huge number of schemes of transformation, regulation, and “governance” contend with one another across the world. But if in the thirty years since their explosion in the 1970s human rights have followed a path from morality to politics, their advocates have not always forth-rightly acknowledged that fact. Born in the assertion of the “power of the powerless,” human rights inevitably became bound up with the power of the powerful. If “human rights” stand for an exploding variety of rival political schemes, however, they still trade on the moral transcendence of politics that their original breakthrough involved. And so it may not be too late to wonder whether the concept of human rights, and the movement around it, should restrict themselves to offering minimal constraints on responsible politics, not a new form of maximal politics of their own. If human rights call to mind a few core values that demand protection, they cannot be all things to all people. Put another way, the last utopia cannot be a moral one. And so whether human rights deserve to define the utopianism of the future is still very far from being decided.

SAMUEL MOYN, NOT ENOUGH: HUMAN RIGHTS IN AN UNEQUAL WORLD

(2018) 216754

The real trouble about human rights, when historically correlated with market fundamentalism, is not that they promote it but that they are unambitious in theory and ineffectual in practice in the face of market fundamentalism’s success. Neoliberalism has changed the world, while the human rights movement has posed no threat to it. The tragedy of human rights is that they have occupied the global imagination but have so far contributed little of note, merely nipping at the heels of the neoliberal giant whose path goes unaltered and unresisted. And the critical reason that human rights have been a powerless companion of market fundamentalism is that they simply have nothing to say about material inequality. The chief worry about human rights is not that they destroy the very distributive protections they set out to afford, let alone that they abet “disaster capitalism.” In too many places, those protections never existed. And global capitalism is hardly the only or even the main source of state abuses. …

… Precisely because the human rights revolution has focused so intently on state abuses and has, at its most ambitious, dedicated itself to establishing a guarantee of sufficient provision, it has failed to respond to or even recognize neoliberalism’s obliteration of any constraints on inequality. Human rights have been the signature morality of a neoliberal age because they merely call for it to be more humane. …

754 For a review, see G. de Búrca, [Review of Not Enough, by Samuel Moyn], 16 Int’l J. Con. L. (2018) 1347.

Could a different form of human rights law or movements correct for their coexistence with a crisis of material inequality? There is reason to doubt that they can do so by changing radically for example by transforming into socialist movements. There is no contradicting the moral significance and possibly even historical success of human rights when it comes to combating political repression and restraining excessive violence or indeed, although more controversially, in campaigns for economic and social rights. But whenever inequality has been limited, it was never on the sort of individualistic and often antistatist basis that human rights share with their market fundamentalist Doppelgänger. And when it comes to mobilizing support for economic fairness, the chief tools of the human rights movement playing informational politics to stigmatize the repressions of states or the disasters of war are simply not fit for use. It is in part because the human rights movement is not up to the challenge that it has been condemned to offer no meaningful alternative, and certainly no serious threat, to market fundamentalism. … The truth is that local and global economic justice requires redesigning markets or at least redistributing from the rich to the rest, something that naming and shaming are never likely to achieve, even when supplemented by novel forms of legal activism.

JOSEPH R. SLAUGHTER, HIJACKING HUMAN RIGHTS: NEOLIBERALISM, THE NEW HISTORIOGRAPHY, AND THE END OF THE THIRD WORLD

40 HUM. RTS Q. (2018) 735, 743

Most of the new historiography comes out of a strain of intellectual history that largely disregards or dismisses ideas that did not occur to or circulate among European and American academic thinkers; more curiously, it does not seem to count history itself as an idea, as something that is mobilized (in the form of historiographic stories that are told and re-told about the origins, identities, and destinies of human rights) on behalf of some interests and not others. Despite dismissing the traditional Western progress narratives of human rights as so much mythmaking, the new historiographers rarely try to account for the political and social power of myth (or historiography, in its academic form) that is, the particular historical, political, and other “sociofunctionalist” effects that “mythopoeic narratives” themselves produce in the world. To put it most polemically, the new historiography takes neither the Third World (its people and nations) nor the power of historiography (that is, itself) seriously as agents of history in their own right, as agents that affect the character and understanding of human rights and international history. To my mind, then, this new historiography is salutary only insofar as it troubles the potted history of human rights, opens (or re-opens) new windows of opportunity, and amplifies the chorus of skeptics (many from the Global South), who have long maintained, with Malawian historian Zeleza, that “human rights are not organic to or a natural result of a fictive western tradition going back to ancient Greece, a teleological narrative of retrospective appropriation that is fundamentally ahistorical and intellectually flawed.” For the most part, however, it fails to engage with those historians, and insofar as the revisionist history displaces and obscures those vital critiques, resubordinating non-Western histories, theories, and accounts of human rights to the new historiographical hegemon, it becomes as much a monolithic part of the problem as any other oversimplified history of the European pedigree of human rights part of the historical hijacking of human rights described below.

ZACHARY MANFREDI, RADICALIZING HUMAN RIGHTS THE BOSTON REVIEW (21 JUNE 2022)

Although [the] legacy of left skepticism about human rights retains valuable lessons for advocates, our political moment also provides opportunities for the reconceptualization and radicalization of human rights programs. Contemporary appeals to human rights arguably have the most to offer by developing a more egalitarian dimension to the politics of human rights. The traditional liberal conception of human rights as individual entitlements limits the capacity of the state to regulate private power and mobilizes state authority on behalf of private property and capital accumulation. By contrast, progressive appeals to human rights can link this language to a normative vision for a more just social order and the provision of public welfare. Developing an egalitarian vision requires moving beyond a guarantee of sufficient minimums and instead emphasizing how radical social and economic inequality stifle the realization of a more robust and radical human rights project.

… [C]ritics have long observed that a narrow focus on “rights talk” and formal equality can obscure and even ratify substantive inequalities. …

Two contemporary trends in the left criticism of human rights are particularly notable. [Manfredi discusses the work of Samuel Moyn and of anthropologist Talal Asad.] … Critics worry that the legal protections offered by a theory of human rights predicated on a consumerist subject will focus primarily on creation of “free markets” and justify policies that intensify social and economic stratification. Left critics of human rights also observe that different rights regimes encourage and produce particular self-conception among rights holders: if a human right to private property or wealth accumulation is enshrined in law, it helps establish a framework for how people evaluate their life projects.

Recent work by Jessica Whyte and Quinn Slobodian advances this argument and showcases how neoliberal reformers often relied on the language of human rights as part of their own political programs. In Globalists: The End of Empire and Birth of Neoliberalism (2018), Slobodian shows how Geneva School neoliberals who were instrumental in the development of postwar international institutions such as Ludwig von Mises, Fredrich Hayek, and Wilhelm Röpke framed human rights as “xenos rights,” that is, rights of security for foreign capital and protections of private property against state expropriation. In addition, Whyte’s 2019 book The Morals of Market: Human Rights and the Rise of Neoliberalism shows how “neoliberals developed their own account of human rights as moral and legal supports for a liberal market order.” As Whyte documents, neoliberals relied on human rights to advance a consumerist vision of the welfare state subject to means-testing and compatible with international human rights instruments. They appealed to human rights as reason to oppose postcolonial projects of economic redistribution and industry nationalization, including notably opposition to the New International Economic Order. And they turned to human rights as justification for radical programs of reform in Chile and elsewhere that focused on privatization, deregulation of financial markets, and destruction of labor unions.

We should not deny the purchase of these critiques, but … the growing contemporary focus on the social and economic dimensions of human rights already helps recast them in ways that depart from neoliberal formulations. …

… [I]n some respects, the substantive content of rights claims championed by recent progressive political actors differ dramatically from the rights preferred by neoliberal reformers. Human rights to education, housing, protection from racial discrimination, gender equality, union membership, sustenance, and water all emerged over the course of the twentieth century, and new rights instruments and declarations were often developed in response to the demands of left social movements. … [N]umerous radical thinkers have relied on the language of human rights. In this sense, the progressive turn to a more robust vision of social and economic rights language might be seen as an attempt to resuscitate a more radical tradition of human rights advocacy as an alternative to mainstream liberal and neoliberal formations. This work requires recognizing the plasticity of law and its potential to develop in new directions. This does not mean we should fall prey to what international law scholar Susan Marks has called “false contingency” regarding rights that is, the assumption that human rights are infinitely malleable and repurposable for left politics. But in the twenty-first century context of extreme economic inequality, claims that there are human rights to food, water, non-discrimination, housing, and labor protections may prove more protean and radical than previously imagined.

… [C]ritiques of human rights call our attention to the importance of developing a more radically egalitarian vision of human rights advocacy. Egalitarianism, in this sense, should not be construed as merely a matter of formal equality before the law: the insistence, say, that all members of a polity have “equal rights” in the sense of equal claim to a minimal set of rights claims. Rather, a genuinely egalitarian politics of human rights should underscore the ways that radical social, economic, and political inequality necessarily enable widespread violations of human rights. This is not only because, practically speaking, the concentration of private wealth makes it difficult to achieve even the minimum guarantees of basic economic and social rights. Extreme inequalities in wealth also create disparities in political power and fundamentally undermine democratic control over economic governance. Radical inequality thus undermines human rights because it stifles even the basic right to equal say in the democratic political process that ought to determine what social and economic orders reign.

…

Recent progressive takes on tax policy are particularly interesting examples of how one might develop such an egalitarian account of human rights. As a matter of political rhetoric, progressive politicians have framed their tax proposals specifically as a reaction to both insufficient minimums and to radical economic inequality. Moreover, in a substantial sense these programs have an inherently egalitarian dimension: reducing the holdings of the wealthiest (while either not decreasing or increasing the wealth of those with fewer resources) reduces economic inequality. Framing progressive taxation as a human rights issue then implies an affinity between realizing human rights and securing a more egalitarian social order.

PAUL O’CONNELL, ON THE HUMAN RIGHTS QUESTION 40 HUM. RTS. Q. (2018) 962

Critiques of human rights abound. This is by no means a recent development, but the very ubiquity of the language of human rights in our age, means that a plethora of critiques of human rights have proliferated over the last forty years. While it is true that such critiques arise from various points along the ideological and political spectrum at times making strange bedfellows of critical theorists and reactionary politicians what we might, broadly, term “the left” has provided particularly fertile ground for critical accounts of human rights. Notwithstanding these critiques, and a recent spate of declarations about the demise of human rights, social movements around the world continue to frame their struggles and demands, at least partly, through the language of human rights. This can be seen in struggles for housing in Spain and South Africa, land in Brazil, racial equality in the US, or water in Ireland, to name but a few. This presents us with an interesting disjuncture. Throughout the world, millions of people are attempting to confront the misery and injustices heaped upon them by the contemporary global order through, in part, mobilizing the language of human rights to advance and defend their interests. At the same time, many of the putative critics of this extant global order disdain, by implication, such efforts through a sometimes bald, sometimes sophisticated, critique and dismissal of human rights.

This disjuncture between critical theory and critical practice raises a number of crucial questions about the relationship between ideas and social movements, law and struggles to bring about social change, and, for present purposes, about the role of human rights in emancipatory politics. It raises, at a critical historical juncture, the fundamental question of how individuals and groups committed to fundamental social change should engage with human rights. The argument developed here, put briefly, is that while many of the critiques of human rights raise important concerns, they fail to meaningfully address the central question of the relationship between human rights and social struggles. In contrast to such critiques, it will be argued here that human rights can and should be deployed in emancipatory political projects today, but that reaching such a conclusion requires us to go beyond narrow, formalistic, and overly juridical concepts of what human rights are, and stress the centrality of social and political struggle in the formulation and defense of human rights.

In the contemporary era of austerity and commodification, communities struggling for water, housing, health care, and food find that their immediate struggle also requires thinking about broader, structural issues. The assertion of a human right, in these contexts, becomes, of necessity, a rejection of the logic of the market, of the basic impulse of the capitalist system.

SALLY ENGLE MERRY, THE STATE OF HUMAN RIGHTS CONSCIOUSNESS: NOT YET ENDTIMES

NEHAL BHUTA ET AL. (EDS.), THE STRUGGLE FOR HUMAN RIGHTS (2021) 62

[A]re human rights really on the verge of disappearing? It is certainly the case that many human rights institutions have become more bureaucratic and stodgier; and that human rights organizations in many parts of the world are under threat. Yet the appeal of human rights has always resided in the ideal of justice, fairness, and equality that they represent. These remain appealing ideas globally, even if the institutions designed to promote and enforce human rights are in themselves increasingly unable to do so. …

Human rights … refer to a set of ideals about how governments should treat their citizens and about how all humans should be treated. These ideals, moreover, have the imprimatur of a global consensus. Although there has been a great deal of sophisticated and valuable scholarship about whether human rights are ‘effective’, measured ‘effectiveness’ is not the only way to evaluate the importance of human rights. After all, we do not judge the value of national laws because they are effective, but because they articulate goals that we would like to make effective. Most national and international laws in fact have an impact in the absence of sanctions, operating instead on the basis of voluntary compliance with a set of rules and ideas that people (or collectives) come to accept. But they are also routinely violated. …

Recognizing the continuing importance and strength of human rights requires looking for them in different places. These places are not simply the HRC or the regular meetings of the [treaty bodies] but also the offices of small NGOs and the streets of poor neighbourhoods. Understanding human rights in practice requires looking at the way the ideas they promote have become part of everyday life for many people around the world.

…

The resilience of some broad conception of human rights in communities around the world rests in part on the universal concern with justice, although it is defined in many ways. Every society has conceptions of justice, although the specific norms and procedures used to produce it are quite variable. Many of these conceptions are grounded in religion while others are based on community standards or state enactments. Human rights differ, however, in that they offer a relatively secular conception of justice rooted not in a particular state but in the consensus of a large majority of states. Thus, they are legitimated by a transnational consensus that gives them a kind of power beyond that of state law. It is far from the only transnational conception of justice, of course. Many religions are transnational and carry these ideas, such as liberation theology, while political ideologies such as Marxism and democracy and the rule of law provide alternative ideas of justice.

This does not mean that there are not problems with human rights as a global model for justice. It offers an over-individualized idea of justice that does not always address the structural causes of inequality. It establishes a platform below which no person or society should fall, but it does not explicitly tackle inequality. Although it covers social and economic rights as well as civil and political ones, the former are often not as well supported and implemented. Human rights as a global justice ideology have not resolved the difficult question of the incompatibility of universal applicability and respect for local cultural practices. States that feel threatened by human rights activism are increasingly shutting down human rights organizations. Yet, human rights ideas remain a major force in global consciousness.

WENDY BROWN, ‘THE MOST WE CAN HOPE FOR . . .’: HUMAN RIGHTS AND THE POLITICS OF FATALISM

103 S. ATLANTIC Q. (2004) 451

Is the prevention or mitigation of suffering promised by human rights the most that can be hoped for at this point in history? Is this where we are, namely, at a historical juncture in which all more ambitious justice projects seem remote if not utopian by comparison with the task of limiting abuses of individuals? Is the prospect of a more substantive democratization of power so dim that the relief and reduction of human suffering is really all that progressives can hope for? If so, then human rights politics probably deserves the support of everyone who cares about such suffering. But if there are still other historical possibilities, if progressives have not yet arrived at this degree of fatalism, then we would do well to take the measure of whether and how the centrality of human rights discourse might render those other political possibilities more faint.

RATNA KAPUR, GENDER, ALTERITY AND HUMAN RIGHTS (2018)

This book explores the imaginary possibilities of freedom in the aftermath of the critique of human rights. Addressing this issue in relation to gender and alterity, I specifically focus on how, in light of such critique, freedom is to be envisaged once the emancipatory claims of human rights have proven disingenuous, false or simply unrealizable. In the global context, freedom remains defined as a liberal, external pursuit, involving the

accumulation of further rights by a rational, finite and individual subject. The critical legal project, including postcolonial and feminist interventions, has successfully dismantled the façade of this claim, exposing the regulatory and governance structures of human rights. The central endeavour of this book is to consciously explore the imaginary possibilities that have emerged in the aftermath of critique by centring and examining articulations of freedom available in non-liberal, alternative epistemologies. I address alternative registers that present radical insights on freedom as based on discrete understandings of the subject which are distinct from/remain beyond the reach of liberal individualism, and posit notions of self-scrutiny, reflection, discernment and the turn inwards as central features.

The focus on non-liberal (as opposed to illiberal) articulations of freedom pushes against the liberal positioning of human rights as indispensable central instruments in struggles for freedom, and further questions their capacity to realize this goal. The discussion not only exposes the parochial, provincialized identity of human rights as liberal, overwhelmingly Western and Eurocentric, but also displays the destructive capacities nestled in the liberal claim to ideological supremacy – one that ultimately seeks to retain its dominance over all others through its coercive formulations of how to be, and be free, in the world. The notion that divergent understandings of freedom have always existed outside of the liberal and neoliberal imaginaries and related market terms is either barely considered by those who shape, support and implement the rights regime, or considered inherently alien and therefore irrelevant to the recursive ideological currents within the fishbowl. … [F]reedom should be actively delinked from the human rights project as formulated and imposed by the liberal imaginary, and should instead be explored within a range of dynamic and existing alternative philosophical spaces. By exploring whether, and how, non-liberal vocabularies of freedom can address and alleviate the current disillusionment with human rights’ capacity to deliver on their emancipatory promise, the book marks a conscious and productive shift in the direction of visualizing the concept of freedom from outside the liberal fishbowl, and exploring considerations of freedom that have always existed beyond the fishbowl.

My analysis is not framed within an either/or binary – that is, between support for the human rights project and a specific intervention (which can have disastrous and unintended consequences), and a refusal to intervene that closes its eyes to the repression and violence experienced by sexual and religious minorities and women (for the most part, it is generally alleged, in rogue, non-Western states). Instead, my starting premise accepts the idea of human rights as a project that is already affected by – and overtly and covertly implicated in – structures of power, laying bare the fallacy of human rights as linked to an external, optimistic pursuit of freedom. … [E]ven the minimalist claims of human rights advocates – that rights can alleviate human suffering and do not have wider effects – are invariably advancing maximalist projects, such as the need for thriving markets or the embedding of a particular notion of the female subject as unveiled, sexualized and autonomous. … The trail of disorder, chaos and, at times, unanticipated but irrefutably harmful outcomes produced in and through human rights advocacy … underscores the urgent need to identify new ways of pursuing freedom. …

RADHA D’SOUZA, SOCIAL MOVEMENTS, LAW AND LIBERAL IMAGINATIONS

(2018) 6-7

Right claims conceal what is entailed in our relationship to land and nature. Indeed, right claims facilitate the transformation of places into properties and homeland into home-market. Yet, even the more radical movements on land such as indigenous peoples’ movements that are opposed to the very notion of land, forests and water as property frequently end up supporting the idea of ‘human’ rights to land.

[In 2009, a speaker] for the radical Mapuche movement in Chile … relied on the UN Declaration on the Rights of Indigenous People [UNDRIP] as the legal justification for the creation of an autonomous, self-governed Mapuche region. Why do indigenous peoples whose land claims arise from being synonymous with Time’s claim to places find the need to invoke an international statute enacted in remote places like the UN headquarters in Geneva as recently as 2005 to make their claims sound ‘reasonable’? Social movements sometimes argue that right claims are nothing more than conceptual vehicles that validate ethical and moral claims. The need for legal justifications to validate their land claims invite us to consider why ethical claims are articulated as legal claims in the first place. Further, are right claims strictly ethical claims with no ramifications for law and politics? Right claims as ethical justifications do not lead us to questions why the [UNDRIP] was

adopted, who the actors driving the adoption were, and the timing of it coming as it did in the wake of sweeping neoliberal reforms of international order.

… Right claims as ethical and moral claims divert attention from the context, the actors and the mechanisms at work … . The powerful indigenous critique of individual property rights in nature ends up reifying the dualism of property and ‘human’ rights on which liberal rights are founded.

… [T]he rights discourse today is a cacophony of discordant voices. Each actor in coalitions to promote this or that right … has a different understanding of rights, of its history, its philosophical presuppositions, and above all expectations. Each actor canvassing for this or that right is located within a distinct type of institutional setting and carries a particular ideological orientation to rights. Arguments about rights in international coalitions and campaigns take the form of ‘my version of rights is better than yours ...’ . This argument is analogous to the argument ‘my god is better than yours’, an argument that ultimately relies on faith, a belief that cannot lead a rational engagement about god, yours and mine. …

SYLVIA TAMALE, DECOLONIZATION AND AFRO-FEMINISM (2020)

207

[The] regime of international human rights protections has indeed proved inadequate to liberate marginalized groups, let alone African women, from the multiple oppressions they suffer. Many commentators have highlighted the limitations of liberally-conceived human rights in securing gender-related liberties to women and sexual minorities. … Neither International NGOs … nor local NGOs are likely to deliver freedom beyond some limited survival. This is because their ideological orientation is largely based in Western liberal individualistic understandings of rights rather than in underscoring the critical vitality of group rights. All of them operate within the universalistic and essentialist norms that undergird the international human rights framework and the concept of gender, respectively. Inevitably, the decolonial project would reject the racism that underlies the ideas of universalism and essentialism.

JACK SNYDER, HUMAN RIGHTS FOR PRAGMATISTS: SOCIAL POWER IN MODERN TIMES 755 (2022)

239

… A top priority on the global human rights agenda should be to lead the way in advocating for reform of the globalized forums of free speech to empower professional journalists and regulate monopoly tech platforms.

Finally, the human rights movement needs to be far more circumspect and consequentialist in choosing to intervene in the entrenched cultural practices of societies that are not yet liberal and modern. …

… To organize and mobilize a potent mass movement for the rights cause, three strategic adjustments offer promising avenues.

First, the power of religious zeal and networks should be tapped more assiduously. …

Second, human rights activism needs to focus much more on core rights values that speak to the interests of the majority groups in a society: to the majority ethnic, racial, and religious groups; to the broad middle class and dominant occupational groups; and to local civic leaders in mainstream communities. Instead of addressing mainly the powerless and downtrodden, activists need to emphasize issues in which everyone is in the same boat of exploitation by abusive elites and extractive factions. Emphasize inclusive civic rights such as equality before the law, due process, respect for the right to property and the fruits of one’s labor, curtailment of monopoly power in markets and employers’ coercion of labor, access to health care and pensions, and systematic checks on arbitrary abuse of official power in dealing with citizens. Activists are of course already in

755 See also J. Snyder, ‘Human Rights Pragmatism: Problems of Structure and Agency’, 139 Pol. Sci. Q. (2024) 21.

favor of these things. What needs to be different is that activism that highlights discrimination against weak or stigmatized groups should always be framed as a message that links abuse of the minority to similar abuse of the majority. …

Third, to get a big, powerful coalition, activists need to mobilize around big, hot-button grievances that unite everybody. One such issue is corruption, which is a top-priority issue for human rights activism because it links to every other kind of human rights abuse: abuse of office, due process, discrimination, torture, atrocities, and every kind of economic, social, and cultural right. …

[T]he rhetoric of rights needs to avoid shaming, especially outsiders’ explicit or even implicit shaming of widespread, entrenched cultural practices, which only plays into the hands of backlash against rights. Instead, rights persuasion will work better if the conversation is two-way, if vernacular normative ideas of the community are taken into account, and if local notables are fully engaged as intermediaries in packaging global and local concepts in a form that works in local politics. Nonetheless, activists need to find ways to vernacularize rights talk that does not proceed down the slippery slope toward “normalizing deviance”: for example, torturing or lynching criminals to protect the “human rights” of the community; “persuading” refugees to agree to go back to an unsafe homeland by making their refuge even worse.

GRÁINNE DE BÚRCA, INTRODUCTION REFRAMING HUMAN RIGHTS IN A TURBULENT ERA (2021) 1

… [A] growing array of populist and illiberal authoritarian leaders across the world, supported by the continued rise of the far-right …, have overtly contested, distorted, and dismissed the idea of human rights. Domestically they enact and encourage increasingly repressive policies and practices against vulnerable parts of their population and against human rights defenders as well as capturing and controlling independent institutions, and internationally they seek to undermine and weaken human rights institutions and processes. And while many human rights scholars have opted for a business-as-usual approach in the face of rising illiberalism, some of the loudest intellectual voices from both progressive and conservative quarters have expressed deep disenchantment with the human rights enterprise. Prominent scholars and public intellectuals have variously dismissed the language, ideals, practices, and achievements of human rights law and advocacy as flawed, inadequate, hegemonic, confining, overreaching, apolitical, peripheral, or pointless. Human rights approaches have been accused of being tools of Western imperialism, an elitist and bureaucratic legal paradigm, a limiting expert discourse which crowds out emancipatory political alternatives, which limits its ambitions and hides its own ‘governmentality’, an intellectually ‘autistic’ culture, an anti-politics, and a companion to neoliberalism.

Yet at the same time that scholars, particularly in the global north, have been outdoing one another with ever more scathing and dismissive critiques, human rights movements, protests, and practices have been abounding and spreading. There may be turbulence in the form of growing political repression and illiberalism, … but there has also been turbulence in recent years in the form of widespread social justice protests and grassroots mobilizations. … The discourse of human rights continues to be used by many progressive social, environmental, indigenous, labour, and other movements and campaigns for justice … .

What is it that explains these two opposite sets of developments? Is the apparently continued vitality of the human rights movement and the conviction of the many actors worldwide who invoke human rights in their quest for social, economic, environmental, and other forms of justice, little more than the remains of a movement approaching its final stages …? Or do the pessimistic and often scathing diagnoses of the human rights sceptics fail to give due credit to the drivers of human rights movements, to the conditions under which and the reasons why they continue to emerge, grow, and flourish?

[T]he human rights movement remains an inherently attractive and appealing one, due to the universally asserted values on which it is based, its continued vitality as one among various languages and tools for challenging injustice, and the adaptability and creative potential of human rights ideas, law, and advocacy to generate legitimacy and help to promote positive change and reform even under turbulent and rapidly changing national and global conditions. … [I]n contrast to accounts that present the human rights movement as elitist, apolitical, top-down, or bureaucratic, the experimentalist account of international human rights law and advocacy …

understands human rights instead as the product of ongoing interaction and contestation between an array of actors, institutions, and norms: between the claims and demands of people affected and concerned, the international norms and institutions which elaborate and monitor their implementation, and the domestic institutions and actors which reinforce and support those claims.

The potency and legitimacy of the human rights project rest on three main foundations. First, it is based on a deeply-rooted and attractive moral discourse that integrates at least three core values: human dignity, human welfare, and human freedom. Second, these values and their more detailed elaboration in various international legal instruments have gained widespread (even if thin and uneven) agreement among states worldwide. Third, the human rights project is a dynamic one which is activated, shaped, and given its meaning and impact through the ongoing mobilization of affected populations, groups, and individuals, and through their iterative engagement with an array of domestic and international institutions and processes over time.

CÉSAR RODRÍGUEZ-GARAVITO, HUMAN RIGHTS 2030: EXISTENTIAL CHALLENGES AND A NEW PARADIGM FOR THE HUMAN RIGHTS FIELD

NEHAL BHUTA ET AL. (EDS.),

THE STRUGGLE FOR HUMAN RIGHTS (2021) 328

… [W]hile human rights are not in a state of crisis, they are undergoing a moment of transition that raises systemic challenges for the movement. Some challenges come from outside the field, such as technological disruption, populist authoritarianism, the climate crisis, rising inequality, and the end of the Euro-American order. Some others are intrinsic to the architecture and the modus operandi of the traditional paradigm of human rights advocacy, such as strategic stagnation, fragmentation, and competition, insufficient long-term vision, unmanaged complexity, and narrow membership and audiences.

I have argued that, although those challenges create an existential risk for the movement they are indeed the meteorite in the firmament , they do not necessarily spell the end of the human rights project. To avoid the collision, however, business as usual will not do. The traditional paradigm of human rights is plainly inadequate to deal with the simultaneity, the speed, and the depth of those challenges.

In order to contribute to a new paradigm of human rights for the next decade, I proposed ways out of the current impasse that draw on lessons from other fields, from journalism to public health to human-centred design, as well as from disciplines that human rights actors have yet to incorporate into their toolkit, from social psychology to geology to social innovation. My aim has been to flesh out an intermediate approach between despair and defensiveness, one that vindicates the rich history and continued value of the human rights project, while searching for and experimenting with new ideas and initiatives capable of disrupting the field’s dysfunctionalities and finding solutions to its urgent problems.

To that end, I have suggested that we view the human rights field as an ecosystem, rather than as a hierarchy. In an increasingly complex and interdependent world, human rights strategies need to be informed by biology as much as by law and politics. They need to be more focused on symbiosis and much less on policing the current boundaries of human rights.

I proposed three types of disruptive interventions that could build up a human rights ecosystem: a more collaborative mode of operation, greater sense of time (both long term and short term), and heightened attention to narratives, emotions, and frames capable of connecting with larger constituencies and other social justice movements.

Constructing a human rights ecosystem is easier said than done. For international NGOs, this implies a difficult challenge: transitioning from the vertical and highly autonomous modus operandi that has allowed them to make key contributions, to a more horizontal model that would allow them to work with networks of diverse actors. For domestic organizations, this entails pursuing strategies that allow such organizations to connect to one another and using new leverage points created by increased geopolitical multipolarity, as well as opening up to non-legal professionals, social movements, and online activists. For all actors in the field, this shift implies embracing an experimental approach based on a greater willingness to try new strategies, expand the repertoire of tactics, cultivate new organizational forms and funding models, and develop capabilities for and openness to learning and adjusting to rapidly changing circumstances.