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80 KATE NASH
Douzinas C, The End of Human Rights: Critical Legal Thougltt at the Turn of the Century
(Hart Publishing 2000)
Fraser N, Scales of lustice: Reimagining Political Space in a Globalizing World (Polity
Press 2008)
Gearty C, Can Human Rights Survive? (Carnbridge University Press 2006)
Gearty C, On Fanstasy Island: Britain, Europe, and Human Rights (Oxford University
Press 2016)
Go l, Postcolonial Sociology (Emerald Publishing 201 3)
Held D, Democracy and Global Order: From the Modern State to Cosmopolitan Governance
(PolityPress 1995)
Held D,'Law ofStates, Law ofPeoples: Three Models ofSovereign$ (2002) 8 Legal Theory I
Henkin L, 'Human Rights and "State Sovereignty'" (1995/1996) 25 Georgia Journai of
International and Comparative Law 3l
IgnatieffM, Blo od andBelonging lourneys into the NewNationalism (Vintage 1994)
lessopB, State Theory: Puttingthe Capitalist State in its Place (Polity Press 1990)
KeckM and SikkinkK,Activists BeyondBorders: AdvocacyNetwoilc inlnternationalPolitics
(Cornell University Press 1 998)
Krasner SD, 'The Hole in the Whole: Sovereignty, Shared Sovereignty and Internationai
Law' (2004) 25 Michigan Journal of International Law i075
Levy D and Sznaider N, The Holocaust and Memory,in the Global Age (Temple University
Press 2006)
McCorquodale R,'International Community and State Sovereignty: An Uneasy Symbiotic
Relationship in Warbric C and Tierney S (eds), Towards an 'International Legal
Cornmunity'? The Sovereignty of States and the Sovereignty of International Law (British
Institute of International and Comparative Law2O06) 24L
Nash K, The Political Sociology of Human Rigltts (Cambridge University Press 2015)
Nash K,'Politicising Human Rights in Europe: Challenges to Legal Constitutionalism from
the Left and the Right' (2016) 20 The Internatonal Journal of Human Rights 1295
Pogge TW,'Cosmpolitanism and Sovereignty' (1992) I03 Ethics 48
Polanyi K, The Great Transformation: The Political and Economic Origins of Our Time
(Beacon Press 2001)
Sassen S, Territory, Authority, Rights: From Medieial to Global Assemblages (Princeton
University Press 2006)
WeberM,'Politics as aVocatiort' in GerthHH andMills CW (eds),From MaxWeber: Essays
in Sociologt (frrst published 1948, Routledge l99l) 77
4
Human Rights beyond the Double Bind
of Sovereignty
A Response to Kate Nash
MarkGoodale
In Kate Nash's insightful essay on the limits of human rights, she argues that ,there
is a paradox at the heart of the project of globalizing human rigÀtsi This is the
paradox created by the difference between a particular liberal conception of in-
dividuals qua (natural) rights bearers and the postwar political and ùgal system
within which this conception was given shape and form. This was a sysiem based
on two kinds of sovereignties, both of which work to undermine the cosmopol_
itan and universalist imperatives of human rights. At the wider level, state sovet-
eignty requires non-interference in state affairs and is the westphalian bedrock of
the postwar settlement, one in which nation states stand in an equal relation to one
another through a kind of collective pact of negative [berry. of course, even at a
formal level, the postwar international system is not based on a complete and equal
form of state sovereignty, since the most powerful institution in the united Nations
(u$-the bloc of permanent members of the security council-gives to each of
the five countries a political super-sovereignty through which the principles ofthe
Atlantic Charter have at times been warped, manipulated, or ignored.
_ Below state sovereignry as Nash explains, the idea of human rights is menaced
by an even more eroding particularity: what she describes ut popilorsovereignty.
Here, at least for democratic states, compliance with universal norms through the
sovereign state is dependent on the vicissitudes of majority consent by citizens of
each nation state. The working of these two sovereignties against the postwar vi-
sion of a transnational culture of global belonging creates a double bind. on the
one hand, global justice is supposed to depend on universal human rights, or, as the
Preamble to the universal Declaration of Human Rights (uDHR) puts it, human
rights are conceived as the 'foundation of freedom, justice and peace in the worldi
on the other hand, as Nash's essay argues, the same internationar system that made
human rights the precondition for global justice did so in a way that ensured that
human rights would never be fully realized in practice, that the 'promotion of uni-
versal respect for and observance of human rights and fundamental freed.oms, (to
82 MARK GooDALE
sample again from the LIDHR's preamble) would often be limited to the level of
well-meaning humanitarian rhetoric.
As Nash explains, this titizenihuman paradox'has three major long-term im-
plications for the future of human rights, First, it ensures that a brighi and often
brutal line will continue to be drawn between citizens and non-citizens, since it
is only citizens who get to enjoy universal human rights rendered into domestic
law. on the day that I write this (18 April 2018), a caravan of central American
asylum seekers has just arrived to the bizarre border region between Mexico and
the lJnited States, a dystopian Pacific beach on which a high steel border wall
stretches offshore into the roiling surf line, daring those coming north (always
north, never south) to jzsf try and swim aroundif. The embodied implicaton is
that the lives of the universal human rights bearing citizens on the northern side
of the beach wall are worth more than the universal human rights bearing lives of
the non-citizens to the south because t]ley are different kinds of lives, they are ûrst
American citizen lives.
Second, in managing this paradox in practice, as Nash explains, both states and
transnational actors must infuse human rights with self-interested content; the re-
lation of human rights to national law and development policy becomes one in
which the meaning of human rights itself is reiashioned in terms of t}re interests
of national and transnational elites. To call this effect the 'politicization of human
rights lawl as Nash does, is very different than to say, as scholars like Michael
Goodhart have done, that human rights must be understood first and foremost as
a framework for making political claims-ideally on behalf of vulnerabre popu-
lations or in the interests of progressive change.l Instead, political' here means
something more like tprical appropriation or 'rhetorical manipulationl Either
way, the practice of human rights in terms ofits paradoxical historical and concep-
tual core bears little relation to the universalizing and apolitical aspirations ofits
postwar origins.
And finally, Nash argues that the paradox underlying contemporary human
rights demonstrates precisely why'human rights'-understood as it is, not as it is
sometimes imagined to be-should not be counterposed to nationalism through
a false dialectic that envisions cosmopolitan human rights in opposition to cul-
ture, regional identity, and populism. This is perhaps the most radical argument in
Nash's essay: that in making the state the anchor around which the postwar human
rights system revolves, the very concept of human rights itself was fundamentally
altered-it was, one might say, nationalized. Even more, she suggests that the na-
tionalization of human rights, the denuding in practice of its cosmopolitan ori-
gins, is most pronounced in the area of social aird economic, rather than civil and
political, human rights. using the case of the Spanish political and social party
l MichaelGoodhart,'HumanRightsandthePoliticsofcontestatiorlinMarkGoodale(ed.),Human
Rights at the Crossroads (Oxford University Press 20 i 3) 3 1.
HUMAN RrcHTs BEyoND THE DoUBLË BrND oF sovsnsrcNry 83
Podemos as a point of reference, Nash argues that social and economic rights de-
mand localized and granular commitments on the part of communities-national,
linguistic, social-that run counter to the abstract liberal idealism that grounds
civil and political human rights. On this innovative reading, social and economic
human rights become an alternative normative means through which concrete so-
cial justice movements can take shape beyond the narrowness of cultural affliation
or political parfy but well below the level of the fictive kin group that the UDHR
describes as 'all members ofthe human familyl
In what remains, I would only add two elements to Nash's framework for under-
standing the relationship between the state, political legitimacy, conceptions of be-
longing, and the future of human rights: the first, historical; the second, critical
theoretical. In beginning her essay with an extract from the 1789 Declaration of
the Rights of Man and of the Citizen, Nash reminds us that the history of human
rights has always been marked byphilosophical and political dilemmas. indeed, al-
though ]ean-|acques Rousseau was influenced by the late-eighteenth century writ-
ings of )ohn Locke, Rousseau's major contribution(L762) to social contract theory
was a deep and radical departure from the principles developed by what Nancy
Hirschmann has called the'father of liberalisrrf.2
Whereas Locke had emphasized the importance of individuals exercising tlreir
natural rights in concert with other normatively windowless 'monads'3 in order
to form political communities, particularly for the defence of private property,
Rousseau had given priority to something quite different: Ia volonté générale, or
the General Will. Although one of Rousseau's most well-regarded contemporary
interpreters, Maurice Cranston, has argued that the general will is a normative
concept',4 its troubled afterlives have revealed both its essential ambiguity and
its relation to concepts ofnational identty, the people, and race. Indeed, the fact
that the French Declaration makes the quasi-mystical concept of the general will
its key principle while the relatively contemporaneous ;American Declaration of
Independence divides the source ofright between a divine creator and the consent
of the governed, goes some way towards explaining the quite diferent political and
legal histories in France and the United States over the succeeding centuries.
2 Nancy Hirschmann, Gender, Class, and Freedom in Modern Political Theory (Princeton University
Press 2007).
3 Mark Goodale, 'The Misbegotten Monad: Anthropology, Human Rights, Belonging' in Danielle
Celermajer and Alexandre Lefebwe (eds), The Subject of Human Rights (Stanford University Press
forthcoming).
4 Maurice Cranston, 'Introduction in Jean-Jacques Rousseau, The Social Contract (flrst published
1782, Penguin Books 1968) 37.
I.
84 MARK GooDALE
Nevertheless, the key point is that the French Declaration,-which, as Nash
rightly emphasizes, exercised an inordinate influence on the global history of
human rights, was grounded in a vague philosophy that neither gave priority to the
individual nor to the sum total of individuals acting as a collective. Rather, the gen-
eral will preceded individuals and was imagined to act as an ever-present check on
individual liberty (something that has caused scholars to view Rousseau as either
an 'early-fascist or early-communist, at all events a totalitarian s).
Thus, from the verybeginning, as it were, the principles lthat] ... subsequently
became so taken-for-granted as to be invisible', that is, that 'humans have rights
as such', as Nash puts it, were to a large extent both anti-individualist and anti
universalist Despite the fact that the French Declaration begins with the recogniz-
ably abstract statement that 'men are born and remain free and equal in rights', this
assertion is quickly betied by the antecedence and normative preeminence of the
general will, as we have seen. But as the history of the French Revolution and the
nineteenth century would reveal, it was the coequality in the Declaration of 'man'
(which meant men, and only some men at that) and titized that would prove to be
so problematic for both the history and contemporary understanding of human
rights. This was not onlybecause titizerJ implied amember of aparticular political
community and not simply a member of the imagined 'human familn although
this was true enough. It was becaus e'citizeri became a keyword that gestured to-
wards socialist politics, the redistribution of economic resources, and eventually
the purging of elites. During the Paris Commune of 1871, most notably, citoyen/
citoyennebecame alternately a badge of honour and a brutal epithet that marked a
dividing line between rebellion and mass atrocity.6
This tension between the violence of differentiated belonging and the aspir-
ations of human rights carried over into the twentieth century and shaped global
history in important ways up to the Second World War and the eventual adoption
of the UDHR in its aftermath. For example, to keep with the French experience, the
French Third Republic (i870-1940) sawthe French colonial empire expand con-
siderably on the basis of an ideology which attempted to reconcile republicanism
with colonial domination. This tortured linkage was made most influentiully by
the Breton philologist Ernest Renan, who supported both the rights of citizenship
and self-determination at the same time in which he was a leading advocate for the
French empiret mission civilisatrice on the basis that the French occupied a higher
place within a hierarchy of races compared to colonized populations.T Thus, right
up until the years in which the UDHR was drafted, what Nash describes as the
titizen/human paradox had become deeply intertwined with the full history of
s Ibid,34.
6 iohnMerriman,Massacre:TheLifeandDeathof theParisCommuneof 1871 (Yale University
Press 2014),
7 Gilles Manceron, Marianne et les colonies: [Jne introduction àl'histoire coloniale de Ia France (La
Découverte 2003).
HUMAN RTcHTS BEyoND THE DoUBLE BIND oF sovsnprcNrv g5
human rights itself, a history marked by contradiction, colonial justifi.cation, and
nationalist terror.
During what I have called elsewhere the prehistory' of human rights,s that is,
the roughly two years from the creation of the commission on Human Rights to
the adoption of the UDHR in December 1948, these tensions played out within the
processes-both deliberate and chaotically ad hoc-that were the basis for produ-
cing a declaration of human rights for the new international order. Even among
those who had agreed to participate in a supposedly global survey on the prin-
ciples of human rights undertaken by the united Nations Educational, Scientific
and cultural organization (uNESCo), a survey whose results were intended to
shape the content of what became the UDHR, the question of the relationship be-
tween the individual and the collective, between negative and positive rights, and
between the state and society, were treated in widely divergent ways.
Yet even across this philosophical diversity, there was at least one important
trend among the UNESCo responses: a general puzzlement, which was expressed
at times with poetic outrage (..g. by TS Eliot), that the several institutions of the
embryonic international system were insisting on a biII of human rights as r}.e foun-
dation for the future. As Morris L Ernst, one of the founders of the American civil
Liberties Union (ACLU), put it at the time, 'it seems to me that we are ûnished with
the era of passing general resolutions in regard to liberty and freedomle And for the
many traditional leftists at mid-twentieth century-both those who participated in
the LD{ESCo survey and otherwise-there was no question about the validity of
human rights in relation to the socialist and communist systems that followed from
the Russian Revolution. For them, human rights was a late-eighteenth-century so-
lution to the problems of feudalism that had no contemporary relevance in the face
of global inequality and the structural violence of capitalist accumulation.
Finally, beyond the historical, I would make a critical theoretical observation in
relation to Nash's essay. To return to Nasht invocation of the Spanish political and
social parry Podemos, what interests me here is not its 'meteoric electoral success
in spain in recent years', as revealing as this might be. Rather, it is the fact, as Nash
also underscores, that its ideological platform is both infused with principles that
align with human righis advocacy and grounded in national, regional, local, and,
indeed, ecological specificities, In this sense, the rise of Podemos carries important
lessons for the future of human rights, since its hybrid positions suggest that
^ 8 Mark Goodale (ed.), Leners to the contrary: A curated Hktory of the uNEsco Human Rights
Sanzey (Stanford University Press 2018).
e Quotedinibid,2gg.
II
86 MARK cooDALE
human rights norms must be vernacularized in terms that are immediately recog-
nizable and woven into relevant histories. This becomes all the more important in
an era in which anti-human rights politics makes its claims on people's hearts (and
sometimes on tleir minds) precisely on t}le basis of its deep relev€ulce, whether for
the protection ofculture, or on behalfofnational interests, or at the service ofeco-
nomic security.
Indeed, in Podemos's dizzyngly elaborate 394-point Programme-one that
bears all the marks of a movement led by academics with a certaia affinity for the
organizational zeal of the Fourth International-'human rights' are mentioned
only three times, and then only in the context of quite speciûc and nationally
embedded-that is, non-universal-justice demands: Point 260 calls for the cre-
ation of a government human rights ofice; Point 261 draws attention to the im-
portance of the human rights to memory and truth in light of Spanish history; and
Point 316 calls for the 'reestablishment of the right to migration [and] respect for
human rights on the southern border', also a direct reference to an ongoing na-
tional conflict.l0 Yet across the remaining 391 points of Podemos's platform, one
can discern the spirit of human rights promotion comingled with a wide range of
ideological orientations. The result is a formidable politics of counterhegemonic
resistance that, as Nash puts it, 'does not demonize non-nationals or minor-
ities ... at the same time it also ... demandls] the social and economic rights with
which many of those tempted by right-wing populism are concerned in Spain'
III
In light of these various implications, we therefore arrive at several conclusions
regarding the future of human rights understood in terms ofboth limits and possi-
bilities. As Nash's essay convincingly argues, the orthodox account of human rights
that 'rose and fe11'11 during the first two decades of the post-Cold War did so in
part because it was grounded in certain conceptual dilemmas, which played out
by weakening human rights in legal and political practice. A reformulated human
rights would be one that rec ognizedthese limitations and sought to move beyond
them. An important first step would be to leave to the side the universalist orienta-
tion of human rights in favour ofvernacularized projects-as with Podemos-that
retained the progressive vision of human rights translated into concrete and his-
toricized categories. Most radically, this would imply the normative abandonment
of uniyersalhuman rights itself in exchange fot pluralhaman rights. This is not an
10 podemos, Programa 2016 <http:/lwww.iasonrisadeunpais.es/programa/> accessed 31
]anuary 2019.
'1r L6riAllen,T/leRiseandFallofHumanRights:CynicismandPoliticsinOccupiedPalesfire(Stanford
University Press 2013).
HUMAN RIGHTS BEYOND THE DOUBLE BIND OF SOVEREIGNTY 8/
arid recipe for relativism, however, but rather the suggestion that the articulation
of rights for all humans necessarily imposes constraints that have rendered human
rights, as Molm has put it, 'not enough'.12
Bibliography
Allen L, The Rise and Fall of Human Rights: Cynicism and Politiæ in Occupied Palestine
(Stanford University Press 2013)
Cranston M, 'introduction' in Rousseau IJ, The Social Contract (first published 1782,
Penguin Books 1968)
Goodale M (ed.), Letters to the Contrary: A Curated History of the itr}JESCO Human Rights
Surtey (Stanford UniversiÇ Press 2018)
Goodale M, 'The Misbegotten Monad: Anthropology, Human Rights, Belonging' in
Celermajer D and Lefebwe A (eds), The Subject of Human R$lrts (Stanford University
Pressforthcoming)
Goodhart M,'Human Rights and the Politics of Contestation'in Goodale M (ed.), Human
Rights at the Crossroads (Or,ford University Press2013) 31-44
Hirschmann N, Gender Class, and Freedon in Modern Political Theory (Princeton
University Press 2007)
Manceron G, Ma rianne et les colonies: Une introduction à I'histoire coloniale de la France (La
Découverte 2003)
Merriman l, Massacre: The Lift and Death of the Paris Commune of 1871 (Yale University
Press 2014)
Moyn S,Nof Enough: HumanRights in anUnequalWorld (Belknap Press 2018)
Podemos, Programa 2016 <http:l lwww.lasonrisadeunpais.es/prograrnal> accessed 31
Janaary2019
12 SamuelMolm,NotEnough:HumanRightsinanUnequalWorld(BelknapPress2018)'
