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Human Rights After the Post-Cold War

Human Rights After the Post-Cold War
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Human Rights at the Crossroads
Mark Goodale
Print publication date: 2014
Print ISBN-13: 9780199376414
Published to Oxford Scholarship Online: April 2015
DOI: 10.1093/acprof:osobl/9780199376414.001.0001
Human Rights After the Post-Cold
War
Mark Goodale
DOI:10.1093/acprof:osobl/9780199376414.003.0001
Abstract and Keywords
This chapter provides an overview of the book's main themes
and summaries of the subsequent chapters. These themes, as
reflected by the contributions in the present volume,
encompass the conceptual grounds of human rights; the
contradictions of implementing human rights through the legal
and political systems of nation-states; the tensions between
ideal and localized understandings of human rights; the power
of human rights in the face of human suffering and
degradation; and the ways in which human rights practices
are shaping new conceptions of citizenship, political activism,
and collective belonging.
Keywords: human rights, nation-states, legal system, political system,
citizenship, political activism, collective belonging
University Press Scholarship Online
Oxford Scholarship Online
Human Rights After the Post-Cold War
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THE WAYS AND means of human rights continue to fascinate
and perplex, and with good reason. From the intrepid activists
on the frontlines of confrontation and outrage to the driest of
the bone-dry conceptualizers haunting the dusty stacks and
alcoves of Bodley; from the lively and deeply political
struggles over country reports within the UN monitoring
system to village-level human rights workshops that constitute
an obscure but vital part of what Eleanor Roosevelt called the
“curious grapevine”; and from the teams of forensic scientists
who exhume mass graves after atrocity to the legions of young
students around the world who embrace the idea and promise
of human rights with the fervor of revelation; all would agree
—that the importance of human rights, however it is
understood, is inextricably linked to the wider stakes involved.
These are also various, but they are bound, in one way or
another, to the linkages between the very meanings of human
life itself and the ways in which these meanings are shaped
and reshaped within the inherently contested domains of the
collective human experience: law, politics, religion, the
economy, culture. To argue about, to practice, to advocate for,
to ponder, to speculate on, to sacrifice for human rights, is to
pick up the Wittgensteinian spade and dig, for the
justifications for digging are all too obvious, and the ground is
very deep indeed. Yet the question is not whether the spade
will ever be turned, but whether it is possible at all to dig deep
enough to reach the bedrock, assuming, of course, that there
is bedrock at bottom, and it is not, to paraphrase the
apocryphal origin myth, dirt all the way down.
(p.2) So although the recent proliferation of writings on
human rights is a reflection on, and often a critique of, this
furious digging—at the same time it, of its own account, moves
a bit more soil—this deepening is proportionate to the scope
and justified by the consequences. The collective contribution
of this volume, taken as a whole, is twofold: to move deeper
down into the darkness of several well-established tunnels;
and, at the same time, to open up several promising new ones.
To do this, the authors were presented with a task that was
intended to be both liberatingly unencumbered and
provocative. They were first asked to identify a problem, or
category of problems, understood as issues that were both
particularly bedeviling (theoretically, empirically, politically,
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ethically) and particularly consequential for the broader
understanding, meaning, and practice of human rights. Five
problem areas emerged from this organic process. Broadly
defined, they encompass the conceptual grounds of human
rights; the contradictions of implementing human rights
through the legal and political systems of nation-states; the
tensions between ideal and localized understandings of human
rights; the power of human rights in the face of human
suffering and degradation; and the ways in which human
rights practices are shaping new conceptions of citizenship,
political activism, and collective belonging.
The volume’s essayists were then asked to explore these key
problem areas with scant regard for the heavy burden of
expectations—disciplinary, methodological, and ethical. They
were implored to survey critical issues as if for the first time.
Instead of the usual leaden intertextual conversation among
scholars deeply embedded in professional networks and
hierarchies, the results here are meant to capture the
exploratory directness of the original essai, in which an author
takes up a topic of singular moment in order to compel and
shape understanding through insight rather than mere
synthesis. In framing the approach of the volume, little effort
was made to foster so-called interdisciplinarity, in which a
grouping of thinkers is brought together as token
representatives of what can amount to a false epistemological
diversity. Rather, in bringing the volume’s authors together,
the questions were asked: Who is capable of insight into some
of the enduring problems of human rights? And who is willing
to bring this insight to bear on these problems at this
particular moment?
To say that the methodology of this volume is not meant to be
interdisciplinary is itself a kind of provocation. But as I have
argued at much greater length elsewhere (Goodale 2009),
debates around the different core dimensions of human rights
have been dominated by particular groupings of disciplines on
the one hand (especially political theory and academic law),
and, on the other, well-meaning efforts to draw from, but also
move beyond, the limitations of discipline that nevertheless
end up responding to—and thus being constrained by—these
same limitations. Consider the ur-interdisciplinary volume on
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human rights, which brought together a selection of responses
to a questionnaire on the “theoretical bases of the rights of
man” that was sent out around the world to individuals at the
behest of a subcommittee of the United Nations Educational,
Scientific, and Cultural Organization (UNESCO), which in
1947 was assisting the Commission on Human Rights (chaired
by Eleanor Roosevelt) in its drafting of what became the
Universal Declaration of Human Rights (1948).
(p.3) This collection of essays by leading scholars, diplomats,
and writers—and Gandhi (who was assassinated eight months
after penning his short and ambiguous reply from a moving
train)1—does indeed reflect an impressive swath of considered
and conflicting opinion on the idea of universal human rights
(UNESCO 1949). But because people were asked to contribute
an opinion as much for what they represented as for who they
were (with the exception of world-historical notables like
Gandhi, Aldous Huxley, and perhaps Benedetto Croce), what
resulted was a set of pigeon-holed perspectives from the
vantage point of mid-century that, taken together, provide at
heoretical justification for many possible, and some
contradictory, positions. And yet as the UNESCO committee
itself acknowledges (1949: 7–8, 271–272), the final report to
the drafting commission was the product of a selective reading
of the wider set of responses, a reading that was “seen to
contribute to the formulation and implementation of the
Declaration of Human rights which [was] in the process of
preparation by the Commission on Human Rights … ” (1949:
272).
So from the very beginning, as it were, collective efforts to
consider human rights in the spirit of pluralism and
intellectual openness have been plagued by two dilemmas.
First, as elsewhere, disciplinary, cultural, and religious
expectations tend to create an epistemic trap: both position
and counterposition are mutually implicated and bounded by
broader sets of (usually implicit) assumptions about what
kinds of lines of inquiry are legitimately worth pursing. To a
certain extent, then, contributors to interdisciplinary volumes
on human rights have been as much representatives of the
meta-assumptions that define these boundaries as advocates
for positions in relation to more general and cohering
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problems. The authors in the current volume have responded
to this epistemo-logical dilemma by straining to peer above the
walls of various human rights paradigms to either see what
lies beyond, or, in some cases, in order to make a clean break
of it. This is not to say that the authors do not draw from
expertise in particular methodologies or literatures. But these
weighty personal and professional legacies were meant to be
nothing more than the stones on which the authors stood; the
real purpose was to find a set of new vantage points.
And second, the history of well-meaning collective
interrogations of human rights has been marked by what
might be described as an ethical dilemma, one shadowed by
(p.4) the constraining logics of a problematic—if not false—
syllogism. It goes something like this:
(1) The postwar human rights system of law,
international political organizations, and (later)
transnational nongovernmental actors was created as a
response to the great evils of our time, including
colonialism, economic, social, political, and gender
inequality, structural poverty, and mass atrocity
(especially crimes against humanity and genocide).
(2) To destabilize this system with wonder about its
foundations, functioning, or legitimacy—in whole or in
part—through theoretical analysis, empirical research,
philosophical skepticism, or collective intellectual
exchange is necessarily to diminish the ability of this
system to respond to these great evils.
(3) Therefore, various forms of wonder about human
rights contribute to the perpetuation of these great
evils.
The response to this dilemma has been marked by extremes.
On one side, it has been all too easy to surrender in different
ways to the certainty and promise of what Samuel Moyn
(2010) has recently called “the last utopia” (see also Goodale
2009; but see Bass 2010), whether through various intellectual
sleights-of-hand or as a necessary condition for the support of
various networks of activists beyond borders (Keck and
Sikkink 1998), humanitarian aid workers (Wilson and Brown
2011), or what Elena Baylis has described as the “post-conflict
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justice junkies” (Baylis 2008). And the looming reminder of the
stakes involved in resolving this ethical dilemma in one way
and not the other has been there from the beginning. As the
scholars on the UNESCO committee explained, human rights
form the “essential element in the constitutional structure of
the United Nations” and the “United Nations stands as the
symbol to all of victory over those who sought to achieve
tyranny through aggressive war” (UNESCO 1949: 258–259).
To question human rights, in other words, is to potentially
weaken the constitutional structure of the UN; to weaken the
constitutional structure of the UN is to diminish the victory
over tyranny; and to do this is to acknowledge that the victory
was not, in fact, complete in the first place—Cambodia,
Rwanda, Srebrenica—the list goes on, making a cruel mockery
of the “recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family.”
But on the other side, the ethical implications of the collective
endeavor to examine and understand human rights have been
obscured by different degrees of structural skepticism. In her
contribution to this volume, Rhoda Howard-Hassmann argues
that the reluctance to appreciate the relationship between the
critique of human rights and real-world suffering is the result
of broader historical dialectics that divide the world into
absurdly reductive oppositions. If it just so happens that
human rights is associated with “the West,” and the West
(within the postcolonial literature, for example) is associated
with different forms of oppression that must be challenged,
then human rights must also (p.5) be challenged. She
describes this kind of misplaced skepticism as a “habit of
denial,” one that also leads scholars to ignore the legacy and
lessons of human rights violations within the West.2
The diverse but integrated essays in Human Rights at the
Crossroads take up these—and other—ethical implications to
greater or lesser degrees, as we will see below. But what is
important to emphasize here is the extent to which ethical
considerations continue to shape the form and manner with
which questions about human rights are asked and answered.
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Human Rights “Betwixt and Between” and
Beyond
As many scholars have rightly observed, the end of the Cold
War was a pivotal moment in the modern history of human
rights (see, e.g., Beitz 2009; Ignatieff 2001). The dissolution of
the shaping logics of the Cold War created a vacuum, and the
institutions of international (and later transnational) human
rights were among those that rushed to fill it. This was also a
time of tremendous political upheaval as new nation-states
were created (most notably in Central and Eastern Europe),
and existing ones underwent internal processes of radical
reform and reconstruction. Perhaps the most important
example of the latter is South Africa, where the release of
Nelson Mandela from three decades in prison in 1990
unleashed a political and social juggernaut that led to
democratic elections in 1994 and the adoption of a post-
apartheid constitution in 1996. As Makau Mutua has argued,
“[p]ost-apartheid South Africa is the first state that is the …
product of [what Louis Henkin has called the ‘Age of Rights’]
and the norms it represents. Indeed, the dramatic rebirth of
the South African state … is arguably the most historic event
in the human rights movement since its emergence some fifty
years ago” (2002: 126).
The dramatic rebirth of South Africa and its human rights
revolution would reverberate more widely.3 From the early
1990s onward, the normative categories of human rights, and
the conceptions of the person and the collective that they are
derived from, became increasingly influential within
movements for social and political change all around the
(p.6) world.4 At the same time, human rights policy came to
shape and, in some cases, determine, the national foreign
policies of countries like Sweden and Canada, which had been
strong national advocates for human rights even during the
Cold War (see Brysk 2009). This is not to say that human
rights suddenly commanded the field without opposition.
Other models, particular those associated with religious
ideologies, continued to offer competing discourses of
personhood and its relation to social, political, and moral
action.
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But there can be no doubt that from the early 1990s on, the
logics and expectations of human rights coalesced into what
might be called the world’s only supernormativity. As Richard
A. Wilson has argued, the apotheosis of human rights in the
post-Cold War created the conditions in which even the
possibility of alternate—or modified—frameworks for social
and political transformation became unthinkable. As he put it,
human rights became the “archetypal language of democratic
transition” (2001: 1). Jürgen Habermas has likewise
underscored the ways in which human rights has become a
global moral lingua franca: “Notwithstanding their European
origins, … [i]n Asia, Africa, and South America, [human rights
now] constitute the only language in which the opponents and
victim of murderous regimes and civil wars can raise their
voices against violence, repression, and persecution, against
injuries to their human dignity” (2002: 153–154).
And yet what of the social and political movements that during
the Cold War had been conceived in opposition to an ideology
that did nothing more than promote what Marx (in “On the
Jewish Question” and elsewhere) dismissed as “bourgeois
freedoms”—illusory freedoms, that is, that will vanish when, as
Leszek Kolakowski once put it (1997: 207), the “bourgeois
society that is on the verge of collapse” finally meets its
historical fate?
Pockets of communist revolutionaries continued to dot the
landscape in the post-Cold War, presumably still committed at
some level to a theory of necessary armed revolution and a
future human society based on collective resource production
and distribution, the withering of the mechanisms of the state,
and a recognition of the changeable and historically
contingent nature of what Marx described as our “species-
being.” But as the ways and means of human rights came to
dominate the language and principles of both reform and more
radical movements for change around the world, these
isolated antiliberal holdouts came to appear increasingly
anachronistic, caricatures of their former selves, and even
tragicomic—think Kim Jong-il, the former Supreme Leader of
the Democratic People’s Republic of Korea, with his billions on
reserve in European banks; his luxury train rides, and his
regime’s racist xenophobia, all while the general population
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suffered (p.7) under some of the most appalling and chronic
deprivations in the world (see, e.g., Martin 2006).5
The Revolutionary Armed Forces of Colombia (FARC), which
has been fighting a communist insurgency against the
Colombian government for decades, had been accustomed to
receiving at least tacit, and at times more active, support from
urban left ist intellectuals throughout much of its existence.
But as Winifred Tate explains (2007), in her study of the
culture and politics of human rights mobilization in Colombia,
political support for the FARC within Colombia—which had
been on the wane since the entry of the FARC into the drug
trade in the 1980s—suffered a fatal blow with the rise of
human rights activism in the 1990s. Regardless of how much
structural patterns of social, political, and economic inequality
continued to fuel conflict and create the conditions for
widespread mobilization, the chaos unleashed by armed
revolutionary struggle delegitimized the continued use of
violence as a necessary tool of social change. Instead, the new
logics of human rights reinscribed the institutions of the state
—which had been transformed through the new constitution of
1991—so that it became the people’s only legitimate guardian
and protector and its courts the people’s only legitimate
means of redress.6
And despite having fought a relatively conventional guerrilla
insurrection as part of a broader revolution from below, the
Maoists in Nepal had no other legitimate normative choice
once they took power—through democratic elections—in 2008
than to begin the process of writing a new constitution.
Although the negotiations within the constituent assembly
have been wracked by political division and in-fighting, by all
accounts the new constitution will be suffused with the
rhetoric and structured by the architecture of human rights
(see, e.g., Appleyard 2011). When even Maoists have become
liberal constitutionalists willing to make “bourgeois freedoms”
the foundation of the post-revolutionary state, it is clear that
the discursive geography of social change has undergone a
seismic shift.
But the rise of human rights after the end of the Cold War—
the post-Cold War—took place during a period of considerable
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political, social, and economic liminality. This is in (p.8)
part what it means to underscore the end of the Cold War as a
key moment in the broader trajectory of human rights theory
and practice. It was the time when a particularly influential
social and political structure—the shaping structure of the
Cold War and its multiple antagonisms—crumbled, at least in
its most rigid and dominant forms. What came next, for our
purposes, was an extended period of normative ambiguity and
disorientation, a period in which existing ideological
hierarchies with global reach were disrupted. Victor Turner
(1967) described periods of liminality as “betwixt and
between”: they are the time when normative structures,
especially those that reflect and perpetuate inequalities of
power, become undifferentiated. Periods of liminality also
create the conditions in which new critical perspectives on
existing structures can emerge, and new communities can
coalesce around these new perspectives.
What is so unusual about the liminal period of the post-Cold
War is that these new normative perspectives were crafted
from existing materials, in this case the legal, political, and
moral foundations of human rights that were established in
the postwar settlement but which proved to be comparatively
insignificant within the logics of the Cold War. We might say,
then, that scholars like Mary Ann Glendon (2001) and Louis
Henkin (1990) were right, but their timing was wrong. As we
have seen, we do in fact live in an “age of human rights,” but
this epoch did not begin until much more recently. And if
Glendon is correct and the UDHR and the major follow-on
instruments of international human rights law did in fact
create the constitutional structure for a “world made new,”
this was a new world deferred. Indeed, in the spring of 1948,
well before the General Assembly had gotten around to voting
on the UDHR, Eleanor Roosevelt herself reflected on what she
called the “promise of human rights.” It is clear that she
understood that this new world would be very slow in coming.
The most important accomplishment of the Commission was
not the establishment of new legal mechanisms or political
institutions. Rather, it was to create an international
consensus of sorts around the “outstanding value in setting
before men’s eyes the ideals which they must strive to reach,”
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the most important of which was the idea that certain “rights
are considered inherent rights belonging to every human
being” (1948: 475, 477).
But if the post-Cold War was a period of liminality in which the
existing raw materials of human rights were formed into a new
“archetypal language” at the same time that historical
circumstances created the conditions in which this language
could be put to use in ways unimaginable in 1948, this period
could not last forever. As with most periods of liminality,
eventually structure emerges and new lines of normativity are
redifferentiated. And yet the process of redifferentiating the
terms of democratic transition and social change,
transnational legal accountability, and even frameworks for
national moral education (among other signs that the post-
Cold War, at least in terms of human rights, has ended),7 has
brought different dimensions of the postwar human rights
project to a series (p.9) of crossroads. These are the
crossroads that represent practical choices for policy makers
and human rights activists concerned primarily with
implementation and enforcement; analytical choices for
theorists of the philosophy, politics, and practice of human
rights; and ethical choices for those who would use human
rights law, rhetoric, or imagery to confront pathologies of
power. The 15 essays in this volume—which divides into five
parts, each one corresponding to one of these key crossroads,
or clusters of related problems—explore the significance of the
most important of these crossroads; analyze the implications
of making particular choices and not others; and, perhaps
most significantly, reflect on what these choices mean for the
project of human rights going forward.
Regrounding the Idea of Human Rights
The first cluster of significant problems reflects the fact that
the idea of human rights remains contested.8 The ripening of
the project of human rights during the post-Cold War did not
lead to greater consensus about the basic philosophical
questions that have surrounded the idea of human rights since
the late 1940s. Nevertheless, these questions must now be
considered in the context of both a deepening cross-cultural
practice of human rights, and—as we have seen—the growing
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dominance of human rights as the principal transnational
normative framework for linking conceptions of the person
with social and political action. What this means is that the
idea of human rights is embedded in, shapes, and is shaped
by, the practice of human rights in law, politics, and policy
making.9 And because the idea of “human rights” and its
implications remain so multivalent, it is particularly
susceptible to the kinds of appropriations and folk theorizing-
on-the-run that Sally Engle Merry (2006b) has described as
“vernacularization.”10
This has created the unprecedented conditions for a new kind
of deliberative exchange on some of the most important and
contested questions about human rights, through (p.10) which
both traditional and organic intellectuals—if I may be
permitted to stretch the Gramscian categories—participate in
the formation of what I have called elsewhere “ethical theory
as social practice” (2006). For those who are willing to
observe and listen, it is possible to argue that the widening
scope of what David Chandler (2007) has described (in a
slightly different context) as “communicative theorizing” on
questions of human rights represents the organic emergence
of what the UNESCO Philosophers’ Committee tried (and, in
my opinion, failed) to create from above: a chaotic but
deliberative global public sphere in which the “theoretical
bases of the rights of man” are being debated in dusty village
squares, in trade union meetings, at sessions of international
monitoring committees, around the water cooler (or around
the chicha bowl), and in academic conferences and in the
pages of volumes like this.
In his contribution, Michael Goodhart offers a new way to
understand this emergent global public sphere and then
makes an argument for regrounding the idea of human rights
within what he calls the “politics of contestation.” He argues
that the most important meanings of human rights for people
are derived from the claims they make in the name of human
rights. He does not believe that the project of human rights is
advanced by treating human rights claims as moral claims,
even if people might themselves experience the practice of
human rights in fundamentally moral terms. His essay
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introduces an alternative ontology of human rights that is both
normative and based in the empirical experiences of claiming
human rights. As he argues, “[h]uman rights claims are
political demands in the broadest sense. They are normative
claims—claims about how things should be—but that is not the
same as saying that they are claims about moral truths … To
invoke human rights is to challenge the order of things, to
confront structures of power and privilege.”
Similarly, Eva Erman’s essay examines the fraught
relationship between political demands and moral claims, in
this case within a series of dominant assumptions about the
inextricable link between human rights and democracy. The
conceptual relationship between human rights and democracy
is particularly important to interrogate because both travelled
similar paths in the post-Cold War, paths that tended to
converge both discursively and politically. This was especially
true in the transitional periods of postconflict reconstruction,
in which human rights-infused constitutions and the iconic
purple fingers of newly-enfranchised citizens reflected the
impact of a tightly bundled package of legal and political
reforms.
Erman argues that it is a mistake to understand human rights
and democracy as mutually and necessarily implied, since the
dominant conception of contemporary democracy is
“instrumental,” and the dominant conception of human rights
is “intrinsic.” She is skeptical of the solution to this dilemma,
inspired by Hannah Arendt, through which a “right to have
rights” functions as a kind of bridge that mediates between
the instrumental legitimacy of democracy and the intrinsic
legitimacy of human rights. She argues that the right to have
rights cannot, in fact, function in this way because it is both
conceptually and practically disconnected from agency, which
is the foundation for (p.11) democratic legitimacy. As she
explains, “rather than trying to justify democracy intrinsically
as part of a theory of human rights … through a universal
moral right to have rights, there is much to suggest that we
should instead see them as two separate normative ideals,
which under certain circumstances are strongly related
whereas under other circumstances they are not.”
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In their respective essays, Michael Perry and Ari Kohen go to
the very heart of the modern idea of human rights and
reexamine what is generally taken to be its most basic
foundations: the question of human dignity, its implications for
normative agency, and the grounds for making dignity the
crucible through which the conduct of states (ours and
others’) is measured. As Perry explains, the major
international human rights treaties embody a causal normative
link between human dignity and what amount to both rights
and obligations, since the fact of human dignity demands
certain (specified and unspecified) actions (by individuals and
states) and forbids others (also both specified and
unspecified). Despite the vague cross-cultural resonance (and
the outdated gendering), the very first article of the UDHR
gives the lie to the assumption that a wispy thin, minimalist
conception of rights and obligations—inspired by what Isaiah
Berlin would have called a commitment to “negative
liberty” (1958)—forms the bedrock of the postwar human
rights system. As it says, “All human beings … should act
towards one another in a spirit of brotherhood.” Perry’s essay
is both a reflection on, and critique of, the formal agnosticism
in the UDHR and follow-on documents about both the grounds
of human dignity and the grounds of the rights and obligations
demanded by the “spirit of brotherhood.”
He examines the three major ways in which these foundations
could be grounded. As he has done elsewhere (e.g., 2007), he
analyzes both religious and secular frameworks for explaining
the relationship between human dignity and inviolability and
finds that the absence of a “transcendent reality” (quoting
Charles Taylor) leaves a secular grounding “open to serious
question.” A religious answer to the questions why do human
beings have inherent dignity?, and why should we treat others
in a spirit of brotherhood? is much more intelligible both
conceptually and (perhaps) ethically. But, as Perry
acknowledges, it suffers from what might be called a political
defect in that many people around the world who are—or who
want to be—committed to human rights reject “any and all
religious worldviews as implausible.”11 Perry then considers
two further possible groundings (altruism and “self-interest
generously conceived”) and concludes that the three are not,
in practice, mutually exclusive, that in fact there are some—
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perhaps many—who are committed to the cosmopolitan
promotion of human rights because they are committed to
variations of all three major groundings.
Kohen’s essay likewise takes up the interrelated problems of
how the fact of human dignity can be established and how we
can be certain that there is a universal consensus on (p.12)
both the fact of human dignity and human rights, the latter of
which follow, for Kohen, naturally from the former. Kohen
argues that the fact of human dignity is rooted in a
particularly human form of self-consciousness, one that
provides the basis for self-aware actualization. Because all
human beings possess precisely the same biological capacity
for action-directed self-consciousness, there are certain things
that we have a right to do for ourselves and others, and
certain things that we owe to ourselves and others.12 There is
an international consensus about the fact of human dignity—
though not about a biological-normative grounding for it. And
there is an international consensus for the fact that universal
rights and obligations are a necessary consequence of human
dignity. This consensus is reflected in the large and expanding
corpus of ratified international human rights documents and
legal and political institutions like the International Criminal
Court. Kohen’s argument is both profoundly non-metaphysical
and, we might say, empirical; the epistemology that shapes it
is tentative and pragmatic. Kohen himself is clear about where
his argument for dignity and human rights fits in the wider
political economy of this debate. As he says:
there is no mistaking that this is certainly not the strong
sort of theoretical defense that [some scholars] desire …
While my [argument for human dignity and human
rights] relies on subjective rather than objective truths
about human beings and their agreements, this might
well be the best we can ever do, given the fact of cultural
pluralism, and it is undoubtedly strong enough to ground
the international law and institutions that have arisen
from the foundation of the Universal Declaration of
Human Rights.
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Human Rights and the Problem of the State
The second crossroads that the project of human rights
confronts after the end of the post-Cold War has its origins in
the set of compromises that were necessary to establish the
UN itself from the ashes of the Second World War. The
Westphalian system of inter-national relations, which emerged
in fits and starts as a response to an earlier cataclysmic
conflict—the Thirty Years’ War in Europe13—proved tragically
unequal to the task of either preventing, or containing, the
level and scope of global violence and eventual genocide that
marked the first half of the twentieth century. Key to this
system of global governance is the principle of sovereignty,
which makes states autonomous, ultimately responsible
(p.13) for the welfare of citizens (or subjects) within their
borders, and obliged to respect the autonomy of other states
through noninterference (see, e.g., Hinsley 1966).14
Although the Westphalian system of relations between
sovereign states is supposed to function as a barrier against a
whole range of abusive and illegal actions by states, in fact,
the principle of sovereignty has evolved into something like a
principle of international self-interest, in which states do more
or less what they want to do if they are able. Stephen Krasner
(1999) has argued that what might be described as the late-
Westphalian system amounts to a form of collusion—
particularly among the relatively stronger states—that he
describes as “organized hypocrisy.” In other words, this
system of (formerly French, now primarily English speaking)
diplomats, international laws, principles of mutual aid, and
regional pacts of nonaggression is structurally incapable of
(for example) preventing a state from rearming, issuing
threats against its neighbors, reconstituting itself in terms of a
racist nationalist ideology committed to genocide, and then
directing its national economic and political resources to the
creation of a war machine that will be unleashed on the world.
If scholars like Krasner are right, then the tragedy of the first
half of the twentieth century was not an aberration, the result
of an otherwise sound system of global governance that had
failed to function as it was intended. Rather, the widespread
conflagrations—including the atrocities perpetrated by
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empires both before and between the two world wars—were, if
not entirely predictable, then at least enabled by the structural
incapacities of the existing international system.15 After the
application of relatively righteous force had finally checked
the ravages of an evil made banal (at least for the time being),
the victorious nations were faced with a dilemma, the
resolution of which was never really in doubt: whether to
reinforce the existing international system of autonomous
sovereign states, perhaps with greater doctrinal clarity and
institutional depth, or to build a system that would transcend
it by subsuming the principle of sovereignty within a new
framework of trans-national global governance. As Mary Ann
Glendon has argued, the creation of the human rights
movement in the broader postwar settlement was only
possible because it was seen as a marginal and largely
symbolic gesture within the more central process of
reestablishing the foundations of international relations—that
is, reorganizing the hypocrisy. As she explains:
So far as the Great Powers … were concerned, the main
purpose of the United Nations was to establish and
maintain collective security in the years after the war.
The human rights project was peripheral, launched as a
concession to small (p.14) countries and in response to
the demands of numerous religious and humanitarian
associations that the Allies live up to their war rhetoric
by providing assurances that the community of nations
would never again countenance such massive violations
of human dignity. Britain, China, France, the United
States, and the Soviet Union did not expect these
assurances to interfere with their national sovereignty.
(2001: xv–xvi)
But even if “to the astonishment of many, human rights would
[later] become a political factor that not even the most hard-
shelled realist could ignore” (2001: xvi), the fact remained that
it was, in a sense, doomed to take root within an international
system that could only but prevent its full flourishing. Two
essays in the volume explore aspects of this ongoing structural
contradiction. Tobias Kelly examines a common problem with
the legal framework of international human rights: the fact
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that international law must become nationalized in order to be
enforceable.16 States voluntarily ratify international
conventions—often with substantive reservations that alter
both the letter and spirit of the law—and then must legislate
them within and among existing legal regimes, often in the
face of tremendous national skepticism and misunderstanding.
Although compliance with treaty obligations—via the
nationalization of international law—is increasingly monitored
by both international and nongovernmental bodies and
activists (see Merry, this volume), the interpretation and
implementation of human rights law remain subject to the
altering logics of intranational politics and uncertain cultural
expectations.
For Kelly, it is the 1984 UN Convention Against Torture that
shines a light onto the difficulties that legal nationalization
creates for the development of human rights law at a global
level. As he shows, the United Kingdom has selectively
enforced its obligations under the Convention, in part because
it alone is responsible for ensuring its compliance with a very
difficult and controversial convention. More important,
however, is the fact that the crime of torture invokes images of
brutality that cannot be easily reconciled with a long-standing
national self-image. Kelly argues that the culturally
problematic connotations of torture do not officially influence
the selective application of the Convention. But they do
function subtly to shape what he calls the “politics of
prosecuting torture.” This is reflected in the fact that the
torture law in Britain “remained … dormant for over 15
years,” and when it was finally applied, it was used to convict
an Afghan warlord in 2005 for crimes allegedly committed
during the Afghan civil war in the 1990s based primarily on
evidence given “by video link from the British Embassy” in
Kabul. (As Kelly explains, (p.15) the “Home Office was
worried that if all the witnesses came to the U.K., that they
would end up claiming asylum.”) But at the same time, British
courts refused to use the torture law to prosecute British
soldiers who had been accused of using “systematic and
deliberate” violence that led to injuries and the death of one
Iraqi detainee in Basra. In the absence of a superordinate
legal and political enforcement structure, there was nothing to
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prevent the culturally inflected and unequal application of a
human rights law that is meant to protect bodily integrity and
dignity without regard to national boundaries.
Finally, Karen Faulk’s essay takes up another consequence of
the Westphalian architecture of the postwar (and post-Cold
War) human rights system: the fact that important aspects of
states’ and citizens’ responsibilities change as human rights
law and discourse become more relevant within a nation’s
legal and political life. Her case study is Argentina in the late
1990s, a time in which human rights organizations were
becoming influential within national dialogues over rising
unemployment, abuses committed during the time of the
military junta, corruption within the government, and violence
in urban zones. As she explains, a key tension in these national
debates was between the category of citizenship, the
responsibility of the state to its citizens, and the emergent
category of human rights, which suggested to Argentines that
their claims on the state could be rooted in “a broader
membership in a human collective that is not (in theory)
limited by [the] state.”
As a response, Faulk points to an alternative conception of
human rights that draws from Hannah Arendt’s critique of the
dangerous abstraction at the heart of the postwar human
rights project—what Arendt (1951) called the “human being in
general.” As Arendt argued, it was at the exact moment when
a person embodied the abstract “human” in human rights—
that is, when citizenship, and thus the capacity for sociality,
had been taken away—that she was most vulnerable. For
Arendt, this meant that rights must be circumscribed by the
protections of national citizenship. Faulk, however, takes
Arendt’s insight in a different, and more synthetic, direction.
She argues that human rights should be developed beyond the
nation-state, but only in terms of what she calls “forms of
cooperation”—protest groups in Argentina provide her
example—that both demand accountability from the state, and
create interlinkages between organizations around the world
that are similarly committed to the promotion of collective
well-being. It is “the promise of [a] new politics of solidarity”
that for Faulk provides a way out of the Arendtian paradox.
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Politics and the Practice of Human Rights
Another cluster of core dilemmas that will continue to
challenge the consolidation of the project of human rights
after the post-Cold War can be found at the crossroads where
the legal, political, and discursive logics of human rights
confront the ambiguities of what scholars have called the
practice of human rights (see Goodale and Merry 2007). This
is a way of conceptualizing the normative implications of what
Merry has described in (p.16) different places as the
“vernacularization” of human rights: the forms of alteration
and resistance that occur during the now-expansive
actualization of human rights law and governance within
ongoing processes of legal implementation, political change,
and social mobilization (see, e.g., Merry 2006b). The
challenges of vernacularization were, at least implicitly,
acknowledged from the beginning. When Eleanor Roosevelt
anticipated a time when a grapevine of human rights would
entangle itself into the very fiber of societies around the
world, even she understood that there was never going to be a
straight line from the UDHR to the realization of a world made
new.
From the mid-1990s on, the empirical study of diverse human
rights practices around the world has revealed a basic tension
that has consequences for both human rights advocacy and
the theory of human rights. When human rights law and values
are rendered into the multiple vernaculars (legal, cultural,
political, ideological), as they must be, how far can they be
stretched before they become something else entirely,
something unrecognizable, even to those who embrace the
broadest possible understanding of human rights?17 And are
there both legitimate and illegitimate forms of
vernacularization? Do the earnest attempts by Zapatista
activists to develop an organic understanding of human rights
differ from the kind of cynical manipulation of, and even
resistance to, human rights that is often associated—rightly or
wrongly—with leaders involved in the so-called Asian values
debate? It is obviously not sufficient to answer these questions
by simply drawing a distinction between what we might call
ethical practice on the one hand, and, on the other, what
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might be described as “mere politics,” since for many scholars
and activists it is precisely the fact that human rights can and
do function as a potentially emancipatory “politics of
contestation” (see Goodhart, this volume) that give them—
whether as law or as “protean forms of social action”—their
deserved urgency and ultimate legitimacy. Three of the essays
in this volume take up these problems of politics and the
practice of human rights.
In his essay, Daniel Goldstein examines the implications of
what he describes as the “process of reception and
transformation, [the] dialectic in which transnational
conceptions [of human rights] are made meaningful within—or
rejected on the basis of—local realities, themselves … already
conditioned by their broader inclusion within transnational
networks of economics, politics, and culture.” He has been
conducting research in the marginal periurban barrios of
Bolivia since the mid-1990s, which has given him a diachronic
perspective on the coming of human rights language and
institutions to the country from the early years of the post-
Cold War through the rise and eventual election of Evo
Morales, Bolivia’s first self-identifying indigenous president.18
(p.17) As he argues, the best intentions of both transnational
human rights NGOs and governmental agencies newly created
to enforce a broad human rights mandate come up against the
demands of citizens for security and the right to enforce direct
forms of community justice. Even more troubling for Bolivia’s
human rights revolution is the fact that some citizens in urban
areas have come to believe that “human rights” are
responsible for many of the social, economic, and political
vulnerabilities that the national project of human rights is
meant to overcome. Although the belief that human rights
protect, and thus enable, street criminals and a broader
culture of criminality, reflects, as Goldstein puts it, “a lack of
deep connection with the ideas” of human rights, the fact
remains that on-the-ground human rights activists in Bolivia’s
cities must adapt and even transform their message. At the
same time, the language of human rights is also used within
more broadly political processes in Bolivia as a new category
of denunciation, a new and powerful framework for
condemning “the difficulties facing poor rural and urban
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Bolivians, who [have traditionally been] neglected and
abandoned by the neoliberal state and its allies. …” The result
is that the vernacularization of human rights in Bolivia
produces a hybrid that is constituted by both “positive and
negative valuations” as well as local understandings that are
deeply and, at times, problematically idiosyncratic.
Adam Rosenblatt’s essay reveals yet another important
dimension within the hybrid processes of human rights
practice: the way that systems of ethical commitments—
including human rights—can clash with each other despite, or,
perhaps because of, the best of intentions. He studies what he
calls the “politics of sacred graves” that the increasingly
influential international teams of forensic scientists encounter
during exhumations aft er mass atrocity. These teams, which
now see their investigative work as a necessary phase within a
broader project of human rights enforcement, often must
confront religious and historically specific perspectives on the
dead that clash with the rigorous requirements of forensic
science at the service of human rights. The work of these
human rights forensic teams is characterized, as Rosenblatt
puts it, by a simple formula: find the grave, gather the
evidence, identify the bodies, and document findings. Their
work is bracketed by the imperatives of forensic ethics
through which the truth of mass atrocity is dispassionately
made known by technologies of discovery that are meant to
create “revisionist-proof history.”
But these human rights and forensic norms can clash with the
ethics of the sacred that shape the treatment and preservation
of the dead. Rosenblatt focuses on the controversy
surrounding the exhumation of graves in 2001 near the town
of Jedwabne, Poland, where much of the town’s Jewish
population was massacred in 1941. After a group of Orthodox
rabbis protested, the Polish government halted the forensic
investigation, and the human remains that had been recovered
were returned to the mass grave. The exhumation was
eventually abandoned, and the controversy surrounding the
1941 massacre—which involved the extent to which the town’s
non-Jewish population had participated in the killings—
remained (and remains) unresolved. As Rosenblatt explains,
the problem for the religious authorities was not that the
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scientific investigation would (p.18) disturb the remains, or
otherwise fail to respect the dead. It was, rather, that the
process of human rights forensics must make the unknown
known in order to do justice for the victims. But the places of
the dead are sacred, and the sacred is, among other things,
ultimately unknowable. As he says, the “sacred marks
offcertain spaces as unknowable, fearsome, inaccessible to
human knowledge: not because of our technical limitations but
because the activities and knowledge of the living community
require voluntary limits.” Rosenblatt’s essay concludes with a
proposal that would allow human rights scientists to engage
more closely with the cultures of sacredness that tend to be
present, and even coalesce, around symbolically charged
spaces such as mass graves.
The final essay in this section is by Sally Engle Merry, whose
research on the vernacularization of human rights has been so
illuminating (see Merry 2006a). As she does in her 2006 study
of the networks that have been created to implement and
monitor the 1979 (1981) Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW), here
Merry likewise examines the implications of transforming
international human rights legislation into recognizable legal,
political, and cultural forms. The specific problem she takes up
is the expanding use of quantitative indicators to measure
national compliance with international human rights treaties.
As she shows, the use of indicators requires both reduction
and translation. The complex phenomena of human rights
compliance and violation must first be reduced to their
simplest expressions; these are then embedded in data sets
that can be measured, compared, and ranked using the
language of social and development statistics. But this two-
step process elides the fact that the events, histories, and
political contestations that comprise the “data” on human
rights compliance are like the fractal shores of Britain (or any
other coastline): their length is impossible to measure as it
really is because it is infinitely long (or, in this case, infinitely
complex).19
Nevertheless, as Merry argues, here as elsewhere the
measurements are made as much to satisfy broader political
and social demands as to capture something essential about
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the thing being measured. The enchantment with quantitative
indicators of human rights compliance, which to advocates can
be compared cross-nationally without regard for how the
underlying data were provided, coheres naturally with the
broader narrative of universality that shapes the postwar
project of human rights itself. If human rights are universal,
then so too are the experiences of compliance and violation,
which for proponents of human rights indicators become just
another set of complex phenomena that are caused by
patterns of predictable human behavior. As Merry shows,
human rights indicators have become something like the
grease that allows the wheel of international human rights to
keep turning. As treaty monitoring bodies have become much
more powerful in recent years, cross-country indicators have
become a technology of knowledge that (p.19) can be used to
control state behavior (especially the relatively weaker ones)
and establish parameters for global accountability.
Confronting Pathologies of Power
As international relations scholars of human rights, in
particular, have demonstrated, there is a power to the way in
which international institutions, transnational advocates, and
opposition social and political movements have been able to
draw on different dimensions of human rights to check—
however slightly—the most excessive abuses of some nation-
states (see, e.g., Risse, Ropp, and Sikkink 1999). As we have
seen, this instrumental power against the state was envisioned
from the beginning as the principal mechanism of the postwar
human rights system—despite remaining latent for decades—
and it was, in a sense, codified through the broader
Westphalian architecture of the UN system itself. And beyond
international human rights and the conduct of nation-states,
there is a moral power to the idea of human rights that offers
both a new instrumentality of social and political action and
(as we will see in the next section) the possibility of a new
logic of self-constitution.20
But there is another, darker and perhaps more primal, way in
which power and human rights will continue to be intimately
connected. We must never lose sight of the circum-stances
that gave birth to the UDHR: the half-century that introduced
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the world to total war and genocide, a time in history in which
the level and scope of human destruction both defied
comprehension and became banal, in Arendt’s chilling
analysis. As the Dutch cultural historian Johan Huizinga put it
(writing about another dark period), “to such an extent had
the horrible become familiar” (1985[1924]: 134).21 And yet
despite the hope that the new international human rights
regime would provide a mechanism through which the
“community of nations would never again countenance such
massive violations of human dignity,” they continued to mark
our troubled species, if only in more geographically bounded—
but no less appalling—forms. Nevertheless, the logics of
universal human rights—with all of the assumptions of equal
human worth, universal appli-cability, inviolability, and self-
determination—remain for many the best and, indeed only,
oppositional current, the only normative vision that offers the
hope of a future without genocide, among others
manifestations of what Paul Farmer (2003) described as
“pathologies of power.”
(p.20) Several of the volume’s essays explore the different
ways in which these pathologies both confirm and confound
the deep logics of human rights. Alexander Hinton takes up
the enduring problem of human nature and mass atrocity
through the lens of the Cambodian genocide. He examines
what he calls the “paradox of perpetration”: the fact that
millions of our fellow human beings can and do, under certain
circumstances, perpetrate systematic acts—and cultural
programs—of ultraviolence against millions of others. He
argues that the semiotics of genocide—in which the language
and cultural symbolism that capture the experiences of, and
justifications for, acts of excessive cruelty, come to
characterize those who commit (or order) such acts—obscures
a set of deeper truths about what he calls the “path to
perpetration.”
Hinton’s essay uses the case study of both prisoners and
guards at the infamous interrogation facility Tuol Sleng to
complicate the binaries that structure the language of
genocide and the assumptions about human nature and
culpability that underlie them. What marks the semiotics of
genocide is the naturalization of its categories, which has
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profound implications for understanding and prevention. As
Hinton explains, the category of perpetrator is constructed in
one of two ways: first, perpetration is located on a spectrum
from savagery to civilized that evokes earlier unilineal
evolutionist explanations for human and social difference; and
second, the perpetration of genocide is seen as the
consequence of individual or collective psychosis. Both
explanations for perpetration establish it as a category that at
the same time implies other, equally problematic, categories
(of the civilized, of the normal, even of victim). By contrast,
Hinton offers a processual approach to understanding the
causes and experiences of genocide that identifies a set of
“primes,” which are “subprocesses that coalesce to create a
context in which genocide may take place” (see also Hinton
2005). By emphasizing the processual contexts of genocide,
Hinton’s essay manages to recover the basic humanity even of
people who commit the most unthinkable of acts during these
tragic historical synergies. They might be culpable of the most
horrendous crimes against humanity, but they are still human.
Alison Brysk argues that the ways and means of contemporary
human rights provide a powerful mechanism for constructing
relational bridges of solidarity that can bring people to new
forms of claim-making, social action, and deep, existential
empathy. Her essay develops a communicative account of
solidarity in which the practice of human rights stands “at the
nexus of the social and personal, legacy and choice …
[J]ustifying human rights means providing both an ethical
basis for normative claims and a motivational basis for social
action.” Like Hinton’s, Brysk’s essay argues for a process of
humanization that must encompass both those who suffer and
those who cause suffering. To do otherwise is to maintain the
social and interrelational conditions that can lead to
“meaningless … and mass murder” (quoting Arendt), since
solidarity demands universal ethical recognition—for
oppressors as well as victims—and recognition implies action.
For Brysk, human rights is the ideal language for this form of
solidarity, and the practice of human rights is the means
through which it is instantiated. The practice of human (p.21)
rights, grounded in a relational ethics of care and mutual
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recognition, is, in Brysk’s words, “an applied art for [both
confronting] and healing pathologies of power.” Beyond the
ethical, the practice of human rights also reflects a “social
ethos of strategic interdependence,” since there are social and
political implications to reconceiving of human rights as a new
form of transcultural interrelationality. Although the legal
regimes of human rights are necessary for “diffus[ing] and
embed[ing] a … locus of accountability,” solidarity demands
networks of relationality and practice that go well beyond law
and the state itself. As Brysk argues, drawing from the
Portuguese sociolegal scholar Boaventura de Sousa Santos,
solidarity at the grassroots can “foster a counter-hegemonic
form of globalization,” and in this way human rights are
rearticulated as the normative logic for the emergence of what
Hardt and Negri (2000) called the “multitude”—a global civil
society mobilized against exploitation and structural violence.
“Are Westerners Human?,” Rhoda E. Howard-Hassmann asks
in the provocative final essay on the relationship between
human rights and pathologies of power. Howard Hassmann’s
essay explores what she calls the “historical amnesia” that
both perpetuates a series of false binaries—such as oppressor/
oppressed—and prevents the lessons of human destruction
within the colonial West from informing our broader
understanding of the causal relationship between the
deprivation of rights and genocide. And here “pathologies of
power” has a double meaning. First, there is the power of
intellectual critics of human rights, who have, Howard-
Hassman argues, minimized the political importance and
potential universal resonance of the postwar project of human
rights by locating it along an “unbroken chain of Western
conceptual and cultural dominance [that stretches] over the
past several centuries” (quoting from Mutua 2002: 15).
Howard-Hassmann rejects the reverse orientalism of critiques
of “Western” human rights discourse that emerge, in
particular, from a broader tradition of postcolonial studies,
since they depend on the kind of reductive categories of
culture and history that postcolonial intellectuals normally—
and rightfully—decry.
And second, there is what might be called the pathology of
imperial guilt: the ethical and intellectual paralysis that
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accompanies a historical process of earnest critical reflection
on collective sins of the past. As Howard-Hassman explains,
the recognition of collective responsibility for the historical
tragedies of colonialism, slavery, capitalist exploitation, and
imperial war makes it difficult for Western critics of human
rights to acknowledge the full implications of a simultaneous
legacy of “liberalism, social democracy, labor agitation,
feminism, gay rights advocacy, and antiracism that [also]
characterize much of the social history of the West in the last
two centuries.” Among other (largely unintended)
consequences, this pathology of imperial guilt leads critics to
deny what Fabian (1983) would call the “temporal
coexistence” between Western oppressors and their non-
Western victims, since the dichotomy Western oppressor/non-
Western oppressed is built on a rejection of coevalness that
keeps the non-Western Other categorically locked into a
reductive, and even imaginary, past. The denial of coevalness
is fatal to the project of human rights. As Howard-Hassmann
puts it, the alternative principles of (p.22) radical temporal
and ontological equality that form the foundation of human
rights are not (pace many critics) “actually hegemonic … They
should be.”
Reproduction in the Age of Human Rights
The final crossroads that confronts the project of human rights
after the end of the post-Cold War is formed around the
relationships between law, social and political organization,
and subjectivity. When Eleanor Roosevelt underscored the
“educational” purposes of international human rights above all
others (as we have seen), she gestured toward a kind of
reproduction in which the transformative potential of human
rights begins not with legal or political reform, but with new
patterns of self-constitution. That this moraldiscursive function
of human rights has become so pervasive over the last 20
years helps explain a paradox: the fact that the emergence of
a full-blown human rights subjectivity in different parts of the
world has been only tangentially related to human rights
implementation, enforcement, and governmental advocacy.
It also helps explain the ethical practice of someone like Lucio
Montesinos, a smalltown official in a very remote region of
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rural Bolivia (see Goodale 2008). He lives in one of the poorest
regions in one the poorest countries in the Western
Hemisphere. But after receiving training in the theory and
ethics of human rights during the 1990s in the ubiquitous
talleres, or workshops, sponsored by the NGOs that
proliferated in the region, he underwent a process of self-
transformation through which he came perceive his local
moral universe as a microcosm of a wider, and now different,
moral universe—the universe of human rights. And yet the
consequences of this transformation for Montesinons were not
conventionally instrumental; his new sense of moral self did
not lead him to seek to change local laws or political customs,
or to petition the national government for greater protection
of rights. Instead, he came to see himself as an agent of a
wider moral transformation in the province. He wanted others
to similarly self-constitute in terms of this new—and, for
Montesinos, true—knowledge of human relations, possibilities,
and categories of belonging. There was a practice here—and it
was intentional—but it was more of a public moral
conversation with a radically new normative vocabulary than a
movement for social and political change animated by human
rights.
Several essays in this volume take up the dilemmas of
reproduction in the age of human rights. Ronald Niezen
examines the way in which international human rights law has
become what he calls a “strategic epistemology” through
which certain categories of belonging and accounts of
personhood are legitimated while others are excluded. These
range from ethnonyms like “Achole” to the category of
humanity itself. Niezen argues that the new forms of
knowledge created through international law have altered
both participation in social and political life and our
understanding of the grounds of moral practice. If
international human rights law is “reinterpreting common
understandings of (p.23) human life and, through the
feedback loop of identity, redefining human experience,” this
is in no small part because it enters a world that it has, in a
sense, created, a world of “commitments and starryeyed
memberships of NGOs, [a world filled with] all the energy of
activists in global networks of human betterment, consuming
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and acting on the ideas that appear in its reports and press
releases.”
For Niezen, the constitutive logics of international human
rights are most starkly revealed, and have been most
problematic, within the international indigenous rights
movement. As he explains, indigenous people did not exist
before a decades-long series of legal initiatives by the
International Labor Organization. As he puts it, “[t]he truly
aston-ishing feature of the indigenous peoples’ movement is
the effectiveness and rapidity with which [a set of apparently]
common qualities and ideals w[as] translated into a global
identity and regime of human rights, driven by an
unprecedented groundswell of popular support.” The category
of indigenous that gives rise to this regime of human rights is
built on a dialectic of “suffering and cultural virtue” that
makes a legal and political history of colonialism and
exploitation the incongruous source of “collective wisdom.”
What worries Niezen is the way in which the construction of
an indigenous human rights regime traps both claimants and
supporters into black box of what he calls “romantic idealism,”
in which “[i]mpossible standards of resilience are built into the
demand for spiritually elevated victimhood,” public supporters
of indigenous peoples are shielded from the ambiguities of
actually existing oppression, and indigenous leaders and
activists are compelled to articulate their demands and futures
in terms of a “fundamentally incoherent category with global
appeal.”
Harri Englund’s essay first historicizes, then moves beyond,
the classic debate over whether human rights can reconcile a
tension between individual autonomy and collective identity.
As he explains, this debate has shaped a broader discussion
around culture, colonialism, and modernity in Africa, in which
African intellectuals and political leaders have promoted an
Africa-centric account of rights as a form of what might be
described as normative nationalism. But as he argues, the so-
called liberal/communitarian debate within human rights—as
it has drawn from African history, real or imagined—is marked
by “assertions and counterassertions, including the self-
congratulatory redemption of economic and social rights as
integral to the Western canon of human rights … [that are] …
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more ideological than scholarly.” But rather than offering yet
another supposed solution to the individualist/communal
problem, Englund instead uses examples from the study of
poverty and disability as a point of departure for a pragmatic
conceptual alternative that attributes rights to neither
individuals nor groups but to relationships.
He picks apart some of the most influential literature on
human rights, suffering, and capabilities to show how a nexus
between personal autonomy and freedom connects diverse
efforts to expand the rubric of human rights to cover all
possible areas of contemporary claims making and justice
seeking. For example, he shows how Pogge’s writings on
human rights and poverty revolve around a basic assumption
that the real problem (p.24) with poverty is that it
“undermines personal autonomy and can make … people lose
their capacity to act as moral agents.” Similarly, he reveals
Martha Nussbaum’s emphasis on liberty and self-
determination to be a hollow abstraction that is an unreliable
guide to the kinds of claims that the people among whom
Englund does research actually make. As he puts it, when a
scholar (like Nussbaum) “identifies in world poverty the
dilemma of how each and every life can have the preconditions
of liberty and self-determination’ [quoting from Nussbaum
2000], we may well query what idea of freedom is at issue.”
He then shows how Malawians make claims based on a
radically different rights ontology, one in which normative
obligations are both grounded in, and performed in terms of, a
web of social relationships that intertwine dependency and
duty. Here rights—entitlements to make claims—repose
neither in the individuals who comprise the webs of social
relationships nor in the community of which individuals are a
part. Rather, as he explains, the “rights these claims express
are particular to the relationships”; they inhere in the web of
dependencies. People actively cultivate these dependencies as
a “form of freedom,” and these carefully nurtured
relationships form the most important “basis for specific moral
and material accomplishments.”
In the final essay of this volume, Pheng Cheah examines the
tension between the specific form of reproduction demanded
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by human rights and what he calls the “concrete
institutionalized project[s]” that are necessary to fulfill
obligations under international law. Cheah argues that despite
the fact that the kinds of suffering, vulnerability, and distress
that compel a concern with human rights are tangible,
immediate, and often brutally embodied, the legal-moral
response is to reframe these as violations of “sovereign
humanity” itself. Think of the ultimate example of this
disjuncture: the legal category of “crimes against humanity.”
With each rising degree of brutality, bodily destruction, and
social extinguishment, the underlying acts come closer and
closer to being—in the ultimate instance, for purposes of
human rights—violations not against those who are being
destroyed but against what Cheah describes as the “collective
subject over itself.” The production of humanity, in this sense,
comes through its recognition, or self-recognition, the extent
to which people are willing and able to see themselves in a
mirror that reflects back an image that is both amorphous and
ennobling at the same time. And yet when the project of
making humanity is made concrete, as it must be, when the
mirror is held up by the state, for example, it becomes
necessary to make decisions about acceptable and
unacceptable uses of people. As Cheah explains, when these
decisions are made through human rights instruments—a legal
phrasing that suggests here “tool for the making of
humanity”—it is only a short distance to the
instrumentalization of specific human beings, which
undermines the making of humanity.
Cheah uses the case of the International Covenant on
Economic, Social, and Cultural Rights (ICESCR) to illustrate
the “structurally problematic character of sovereign
humanity.” What is so revealing about the ICESCR is that it
creates a distinction among categories of human rights
through which the state must take progressive and rational
(p.25) steps to create specific social and economic
preconditions for the achievement of “freedom from fear and
want.” At the same time, states must work to create these
conditions with available resources and through the
constraints imposed by global markets and the agencies of
international development. Despite the fact that the UN
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Committee on Economic, Social, and Cultural Rights has
specifically said that human rights cannot be sacrificed in the
short term to promote the kind of economic growth that would
allow a state to increase the “maximum of its available
resources,” the reality is that labor must be mobilized
instrumentally within the logics of a global market system that
depend on structural vulnerabilities. How else could a state
enlarge its resources so as to meet its obligations under the
ICESCR? As Cheah demonstrates through the example of
patterns of female labor in the developing postcolonial South—
factory labor in export industries, foreign household and
domestic labor, and the proliferation of sex-labor industries—
the state rationally justifies conditions of vulnerability through
either the right to work or as a necessary stage in a longer
process of economic development that will ultimately foster
increased well-being. As Cheah explains, “[i]t is difficult to
monitor such … calculations and to regulate their negative
consequences in a conjuncture where the idea of human
capital development has become so thoroughly
institutionalized in UN policy discourse.”
Conclusion: Human Rights at the Crossroads of
Theory and Practice
As the essays in this volume reveal with provocative lucidity,
the contemporary project of human rights finds itself
simultaneously at a range of fundamental crossroads of theory
and practice. That this remains true after the end of the post-
Cold War—after the end of a two-decade period of transition
and ambiguity, after the emergence of human rights as the
most significant globalized moral lingua franca and logic of
social and political change—demonstrates that the normative
redifferentiation of the present has not led to the kind of
clarity and sense of resolution that many human rights
activists and advocates for the liberalizing benefits of
globalization had hoped for. At the same time, the sheer
hegemony of human rights today demands new modes of
critical engagement, particularly since the voice of the
traditional intellectual is only one among many within what
has become a vibrant and increasingly diverse global public
sphere of debate and practice.
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And yet as the contributions here demonstrate, there is still an
important space for scholars of human rights who understand
the ethical stakes involved but who also are willing to push up
against the conceptual and empirical boundaries that have
grown up around human rights over the last 20 years. As we
have seen, this volume’s essays push up against some of the
most important, and rooted, of these boundaries, but others
remain. Because the enduring problems of human rights go to
the very heart of both contemporary possibilities for new
forms of justice and future visions of what Habermas called
(p.26) the “postnational constellation” inhabited by a
reconfigured “universe of moral persons” (2001: 108), it is all
the more critical that they be taken up in a spirit of
epistemological pluralism that is nevertheless tempered by the
knowledge that for many people, human rights is the only
spark of hope in the otherwise unrelenting darkness. The
essays in Human Rights at the Crossroads endeavor to strike
this delicate balance.
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Notes:
(1) Gandhi’s brief and admittedly hurried response to the
UNESCO questionnaire—itself a revealing text since it guided
the framing of the responses that were, taken together,
supposed to demonstrate a global consensus on human rights
that was “sufficiently definite to have real significance both as
an inspiration and as a guide to practice” (1949: 255)—seems
to reject the normative privileging of rights, whether in India
or elsewhere. As he says:
I learnt from my illiterate but wise mother that all rights
to be deserved and preserved came from duty well done.
Thus the very right to live accrues to us only when we do
the duty of citizenship of the world. From this one
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fundamental statement, perhaps it is easy enough to
define the duties of Man and Woman and correlate every
right to some corresponding duty to be first performed.
Every other right can be shown to be a usurpation hardly
worth fighting for (1949: 18; emphasis mine).
(2) In her essay, Howard-Hassmann tells a story from her own
life that illustrates her point with a startling poignancy. The
place was McGill University and the time was the early 1970s,
when young progressive intellectuals were mesmerized by the
habits of denial of other dialectics. As she explains, “many of
my acquaintances worried about being too bourgeois.’ I
remember debates about whether we would be willing to kill
our own parents in the name of the Revolution.”
(3) An anecdote: After his unprecedented election as the first
self-identifying indigenous president of Bolivia, Evo Morales
undertook his first foreign trip as head of state in early 2006, a
journey that took him through Europe to South Africa. As one
of his closest advisors told me during a research interview in
2009, South Africa was their real objective. They saw the visit
as a pilgrimage to allow them to learn at the feet of the ANC
leaders and their earlier efforts to make human rights the
foundation for a new kind of nationstate. What was one lesson
they took away? That the South African constitution did not go
far enough; it was too compromising, too much the reflection
of concessions to interest groups that did not share the same
cosmopolitan optimism of the ANC constitutionalists and
political leaders. See Goodale, N.d.
(4) Examples of the rapidly growing influence of human rights
within processes of reform and revolution in the post-Cold War
would include those in Mexico (Speed 2008), Nepal (Leve
2007), Swaziland (Wastell 2007), Bolivia (Goldstein 2007;
Goodale 2008), First Nations Canada (Niezen 2009), Palestine
(Kelly 2006), and Malawi (Englund 2006), among many others.
(5) In an essay and review of B. R. Myers’s (2010) recent book
on propaganda and supremacist ideology in North Korea, the
British writer and provocateur Christopher Hitchens argues
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that the regime of one of the world’s last communist states is
“even weirder and more despicable than you thought” (2010).
(6) For example, Articles 93 and 94 of the 1991 constitution
specify, in part, that “[i]nternational treaties and agreements
ratified by the Congress that recognize human rights … have
priority domestically”; that the “rights and duties [enumerated
in the constitution] will be interpreted in accordance with
international treaties on human rights ratified by Colombia”;
and that the “enunciation of the rights and guarantees
contained in the Constitution and in international agreements
in effect should not be understood as a negation of others
which, being inherent to the human being, are not expressly
mentioned in them,” this last provision being a sort of
reservation clause for the age of human rights. And Article
95(4) makes it a legal duty of citizenship to “defend and foster
human rights as a basis of peaceful coexistence.” (But notice
here that the reinscription of personhood and the grounds for
action in terms of human rights is imperfect. The definite
article that would have completed the transformation—el
fundamento, or the basis—is missing, leaving the normative
door open for other justifications for action and other—
perhaps more nationalist—conceptions of citizenship.)
(7) A preoccupation with the philosophical, legal, and
institutional aspects of human rights—as crucial as these
obviously are—has obscured the importance of what might be
called the moral-didactic intentions of the postwar human
rights project. Again, as Eleanor Roosevelt explained, “[W]e
have found that the conditions of our contemporary world
require the enumeration of certain protections which the
individual must have if he is to acquire a sense of security and
dignity in his own person. The effect of this is frankly
educational. Indeed, I like to think that the Declaration will
help forward very largely the education of the peoples of the
world” (1948: 477). The moral-didactic purpose of human
rights is perhaps most clearly symbolized by the articles in the
Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) that require nations to “take all
appropriate measures” to “modify the social and cultural
patterns of conduct of men and women” to bring them within
the provisions of the conventions. For a major empirical study
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of efforts to implement and monitor CEDAW around the world
during the post-Cold War, see Merry 2006a.
(8) See, e.g., Beitz 2009; Perry 1998; Ramcharan 2008.
(9) For a broad range of empirical examples of the relationship
between the idea and practice of human rights throughout the
post-Cold War, see the two collections Goodale and Merry
2007 and Cowan, Dembour and Wilson 2001; see also Brysk
2002.
(10) For a revealing example of the way the idea of human
rights is often theorized from below, as it were, see Speed’s
(2007) empirical study of the importance of human rights to
Zapatista activists in Chiapas, Mexico, during the mid-1990s.
In the course of their struggles with the Mexican state,
Zapatista leaders developed a full-blown ontology in which
human rights are grounded “in their exercise.”
(11) I describe the problem with a religious grounding for
human rights as political because, as we have seen, consensus
has been such an important principle for the promotion and
justification of human rights from the begin-ning. That is to
say, just because many people reject a religious explanation
for human rights does not mean that such an explanation is
necessarily wrong; it just means that their objections must be
taken seriously.
(12) Although his essay does not make this linkage directly,
Kohen’s biological-normative grounding for human dignity
resembles the theory of human capabilities developed by
Amartya Sen (e.g., 1985, 2005) and then Martha Nussbaum
(e.g., 2000).
(13) For a reminder of both the devastating social, economic,
and cultural impacts and the centuries-long political and legal
consequences of the Thirty Years’ War, see Peter H. Wilson’s
(2009) definitive recent study.
(14) In his classic work on the “law of nations” (1928), Brierly
makes the point that although the Westphalian system made
nation-state sovereignty its bedrock, the doctrine of
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sovereignty had first been explicitly formulated somewhat
earlier, in Jean Bodin’s De Republica (1576).
(15) Of course, from Hierocles to Kant, it had long been
recognized, at least by theorists concerned with the sound
ness of concepts rather than the brutal truths of what would
later be called Realpolitik, that war would inevitably haunt a
world in which political identity and belonging were
circumscribed by anything less than the world itself. But these
cosmopolitan visions have often been dismissed as utopian—
that is, impossible to realize and thus dangerously naïve.
(16) Even the International Criminal Court (ICC), which has
the responsibility for prosecuting the most serious of human
rights violations, does not have universal jurisdiction. The
accused must be a member of a state that has signed the
Rome Statute and this is just the beginning of a series of
limitations to jurisdiction—also the result of acrimony and
back-room horse trading—that underscore the continuing
hegemony of the nation-state during, and now after, the post-
Cold War. See the articles in Part 2 of the Rome Statute; for a
recent critical analysis of the ICC, see Clarke 2009.
(17) At the far end of this spectrum are the various discursive
approaches that theorize human rights as a particularly
consequential, and fraught, mode of contemporary (sometimes
“modernist”) social action. See, for example, the writings of
the postcolonial legal scholar Upendra Baxi, who examines
those “protean forms of social action [that are] assembled, by
convention, under a portal named human rights’” (2002: v).
(18) The rise of Morales was made possible by the human
rights revolution in Bolivia during the mid-to late-1990s, and
the new constitution (2009) reflects this fundamental shift in
the nation’s normative orientation. See, e.g, Goldstein 2012,
Goodale 2009, N.d.
(19) I am referring here to the mathematician Benoit
Mandelbrot’s celebrated 1967 Science paper, which
demonstrated that the measured length of something as
complex and irregular as a coastline is a necessary function of
the scale of measurement, not its actual length.
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(20) Elsewhere, I have found it theoretically useful to
distinguish between two types of moral power in the way the
idea of human rights is deployed in practice. “Connotative”
power refers to the many ways in which the idea of human
rights is appropriated as a kind of moral gesture; “denotative”
power refers to more specific efforts to harness human rights
laws and institutions in the course of ongoing struggles
(Goodale 2007).
(21) As the intellectual historian Isaiah Berlin reflected later in
his life, “I have lived through most of the twentieth century
without, I must add, suffering personal hardship. I remember
it only as the most terrible century in Western history” (quoted
in Hobsbawm 1995: 1).
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