God, the source of natural law is dead: long live international law, with its hallowed spectre, human rights. State-sponsored terror, torture, tyranny – all can be slain with its rhetoric sword. Atrocities that would otherwise be unbearable to the gaze, can now be framed within a discourse that offers, at the very least, significant potential for shaming and, in many heroic crusades, the possibility of rectification. Its current all-prevailing global presence has been resisted and embraced with equal zeal.
Globalisation has clearly contributed to the explosion of human rights speech. No corner of the world – neither broken nor blessed peoples – are immune to this glossolalia of post-modernity. An empirical universality may be claimed for human rights, but, as Costas Douzinas has cogently argued, a form of universality that devolves into accountancy – totting up how many and which treaties have been adopted by how many states – turns a ‘lofty, albeit impossible, ideal’ into ‘the lowest common denominator of state interests and rivalries’. Calculable globalisation is a mundane thing when set against the Name of the unique, singular Other.
Who is this ‘human’; what are his or her ‘rights’? In recent years, both the notion that ‘human’ is self-explanatory and that ‘rights’ are natural and eternal, have taken a direct hit. Innumerable hidden particulars have been laid bare: the ‘human’ of traditional human rights speech has tended to be a heterosexual male. He is swathed in a white skin, a Western body.
In its modern conception, at least, human rights did developed as a Western idea, drawn from Enlightenment conceptions of the Rights of Man. Then, that peculiarly Western holocaust, carried out by the inheritors of the Hegelian tradition, gave it a further boost. The intentions of those who drafted the 1948 Universal Declaration of Human Rights were honourable: a global check on state tyranny was a matter of universal urgency. But it was designed almost exclusively by Westerners or by Western-trained representatives from Asian and African countries. Even the Covenants passed by the UN in 1966 were drafted prior to the admission of many African states into that body. Inevitably, one of the main critiques of the human rights movement has been that it represents a neo-colonial discourse, opening up space for powerful nations to intervene in the affairs of countries whose political or economic systems they disagree with. Even the attempt by some human right theorists to seek out within diverse cultures, traditions that might be used to support human rights remain situated within the hegemony of Western thought (not to mention the condescending assumptions behind such ventures).
But even within the West, there is no universalist discourse of human rights. Human rights proponents sport a baffling range of labels – universalists, relativist, culturalists, humanists, interpretivists, foundationalists. Some toil in governmental offices; others are tortured therein. Many human rights campaigners – including some in this room – have forced the world to listen to victims of torture; many have also heard Alan Dershowitz endorsing the use of torture using the patois of human rights. The geographies of human rights are international, national, and local; their political landscapes include zealous secularism as well as fanatical religious fundamentalism. Even hostility to human rights cannot maintain a universalist position. As with human rights proponents, opposition is not neatly divided between East and West or North and South: a radical capitalist critique (which says that the highest value is economic self-interest), reactionary conservatism (including concerns about the excessive freedoms that might be given to groups such as women), religious fundamentalism (that recognise only the codification of norms within, for instance, the Bible, Torah, or Sharia), and left collectivism (the notion that human rights are a form of western imperialism) all vie against each other both within and between states.
As a response, universalist mayhem sometimes gives way to meticulous relativism. It was there even during the labour pains of the Universal Declaration of Human Rights in 1948. In June 1947, the American Anthropological Association submitted a statement to the Commission on Human Rights at the United Nations, asking how the proposed declaration could be ‘applicable to all human beings, and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America’? They conceded that, unless faced with a crisis of subsistence, most peoples in the world seemed tolerant of differences between their morés and norms and those of other groups. This was not the case in the history of Western Europe and America, they continued, where
economic expansion, control of armaments, and an evangelical religious tradition have translated the recognition of cultural differences into a summons to action. This has been emphasized by philosophical systems that have stressed absolutes in the realm of values and ends.
As a result, concepts of the nature of human rights had been ‘narrowly drawn’ and alternatives disparaged and suppressed. The result? Imperialism, racism, the ‘demoralization of human personality’. Because individuals realize their personality through culture, respect for cultural differences is central to any respect for individuals. The Association continued:
Professions of love of democracy, of devotion to freedom, have come with something less than conviction to those who are themselves denied the right to lead their lives as seems proper to them. The religious dogmas of those who profess equality and practice discrimination, who stress the virtues of humility and are themselves arrogant in insistence on their beliefs have little meaning for peoples whose devotion to other faiths makes these inconsistencies as clear as the desert landscape at noon.
Standards and values are ‘relative to the culture from which they derive’ and cannot be exported wholesale, let along forced upon another group. What was defined as a human right in one culture, might be regarded as anti-social in another. The
rights of Man in the Twentieth Century cannot be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people. Such a document will lead to frustration, not realization in the personalities of vast numbers of human beings.
It was a principled line, in harmony with the Association’s repudiation of colonialism and evolutionary-derived notions of ‘the primitive’. But their position was as essentialist as their foes’ universalism. The notion that there is such a thing as a stable, bounded, integrated system of beliefs and values, labelled ‘culture’, cannot be sustained. Culture is historically produced and is always in a contested relationship to structures of power.
In an increasingly globalised world, characterised by rapid changes induced by mass media, technology, emigration and immigration, and global capitalism, the key question becomes: how do we decide which rights are universal (that is, able to transcend cultural peculiarities) and which are local (and, by implication, peripheral). The question is crucial because globalisation is primarily an issue of power – of the ability of one group to define its own local values or characteristics as ‘global’ while designating another groups’ values or characteristics as ‘local’. Globalisation always depends upon localisation. The group with most clout decides. Designating certain values or characteristic ‘local’ denies significant agency in its adherents. For instance: on the one hand, claims that the Middle Easterner’s culture is anti-secular (and thus ‘behind the times’), governed by appeals to absolute (religious) authority, and regulated by ‘cultural’ factors, deprives the Middle Easterner ‘both of a formative role in the global arena and, conversely, of reasons for behavior that might have international origins’. On the other hand, it enables the pre-eminent power engaged in defining human rights (the United States) to operate a kind of ‘globalised localism’. Thus, many American commentators define ‘universal rights’ as those rights enshrined in the Universal Declaration of Human Rights of 1948. But they frequently limit their discussion to Articles 1 to 21 of the UDHR, which deal with civil and political rights. That is, they remain silent on Articles 22 to 26, which give rights to social security, work, leisure, medical care, education, and equal social protection for children ‘whether born in or out of wedlock’. This narrowness of vision suggests that they are reading ‘human rights’ less through the UDHR and more through the lens of the American Constitution.
As Costas Douzinas insists,
the business of government is to govern, not to follow moral principles. Governmental actions in the international arena are dictated by national interest and political considerations, and morality enters the stage always late, when the principle invoked happens to condemn the actions of a political adversary.
Since 1948, the human rights debate has always been about domestic priorities. As Kirsten Sellars observed in her The Rise and Rise of Human Rights (2002), Eleanor Roosevelt, the chair of the newly established UN Human Rights Commission, threatened to resign rather than allow W. E. B. Dubois to place his appeal against lynching and racial discrimination on the agenda of the General Assembly. She told Dubois that ‘it would be better to look for and work for results within this country without exposing the US to distorted accusations by other countries’. Of course, the Soviet delegates were happy to fight for the rights of American blacks, using the issue for ideological point-scoring against the West when denounced for gulags and political repression. The chief threat to human rights is the state; yet the state is the organ for the implementation of human rights.
Human rights are a cultural phenomenon and, as such, are in constant flux – both in time as well as between and within nation-states. In other words, the pursuit of human rights is a cultural process, infused with competing politics relating to social action. Take the example of what must be one of the most cited usages of human rights language – that of Chinese dissidents in 1989. These dissidents employed both a language of dissent that was universalist and languages of cultural particularity, depending on political context. For an example of the former, take a speech by Fang Lizhi, a key figure in the protest movement, in a speech delivered in Beijing on 25 February 1989, a few months prior to the massacre. He said:
As time goes on we are arriving at more and more universally valid concepts, ones that can be applied everywhere…. human rights are such a concept. Human rights aren’t the property of a particular race or nationality. Every human being has from birth the right to live, to think, to speak, to find a mate. There are the most fundamental freedoms a human being has. Every person on the surface of the earth should have these rights, regardless of the country he lives in…. The validity of human rights does not depend on the particular culture involved. Cultural biases are fine if you are not asking questions of right and wrong. You can like whatever kind of food you want to and so can I. This is a question of preference, not truth. Taste can be altogether a function of a particular place. But truth cannot. Truth doesn’t distinguish between localities.
But it would be wrong to conclude that Chinese dissidents were ‘reaching outside of their ‘own’ tradition’ and ‘appropriating’ ideas drawn from ‘Western liberalism’. At other times, the most common rhetorical tactic involved referring to the legacy of May Fourth Movement of 1919, known to some as the ‘Chinese Enlightenment’. This language of rights exuded a patriotic aspiration of Chinese greatness. As a cultural language, ‘human rights’ is always in the process of evolution, appropriation, revolution.
Even within European history, there was nothing static or natural about the specific forms taken by human rights. Indeed, these rights arose in a period of intense crisis and in the face of extreme political, cultural, and religious hostility from innumerable sectors of European ‘culture’. The so-called Western concept of human rights as understood today is simply one instance of human rights: the result of a range of ‘obstacles, misunderstandings, learning processes, achievements, and failures’. It is an example, not a model or template. In other words, there was never any ‘essentially Western’ conception of human rights, but a series of heartily contested versions and modes of action. As Heiner Bielefeldt put it,
human rights do not constitute a set of essentially Western values that are to be exported on a global scale. Rather, what underlies human rights is experiences of structural injustice culminating in those ‘barbarous acts’, that, as the ‘Universal Declaration of Human Rights’ of 1948 emphasizes in its preamble, ‘have outraged the conscience of mankind’.
As others (including Bielefeldt) have argued more fully, just as there is no such thing as the Western concept of human rights, there is no such thing as the Islamic concept either. Equally, as the debate in the mid-1990s about injecting ‘Asian values’ into human rights illustrates, there was nothing particularly ‘Asian’ about the end-result (it was based on Conficianism and thus ignored Asian countries throughout South Asia and parts of South-East Asia: according to the Japanese political philosopher, Tatsuuo Inove, the debate degenerated into a form of ‘Asian orientalism’). The Asian Human Rights Charter of 1998 concluded that the ‘exhortation of spurious theories of ‘Asian values’’ was ‘a thin disguise for their authoritarianism’.
In other words, the pursuit of human rights is in itself a cultural process. It is misleading to set human rights against culture. Rights operate through social action. We don’t have to choose between universalism and cultural relativism because rights exist ‘as part of a continuous process of negotiating ever-changing and inter-related global and local norms’. Universal human rights are (in the words of Pierre Bourdieu) ‘nothing other than the most universal gains of previous struggles’.
Today, the global human rights community has entered a newly dangerous phase, with the strongest and most violent nation in the world repudiating its most fundamental tenets. It would not have surprised people in this room. Americans have long viewed human rights as a foreign policy issue, and not something for themselves. Human rights must be followed by every nation, except their own. Everyone here can name examples. The United States was the only country to refuse to sign the UN Convention of the Rights of the Child (it wanted to continue to execute children under the age of eighteen, flouting Article 6.5 of the United Nations International Covenant on Civil and Political Rights). It did not ratify the Convention on the Elimination of all Forms of Discrimination Against Women, unlike 169 other countries. For commentators on the right, this Convention was ‘the work of international forces promoting abortion rights, sexual freedom, and promiscuity, while undermining motherhood’: it was ‘one more attempt to impose global norms on the U.S.’ In 2002, it backed out of the Rome Treaty over establishing the International Criminal Court, on the grounds that it might be used against Americans.
But the crisis is coming to a head. In 1999, a leading human rights commentator confidently proclaimed that a ‘thin’ universalism had been accepted (‘at least in theory’) by all governments in the contemporary world. These ‘thin’ human rights included, amongst others, the rights not to be tortured or subjected to prolonged arbitrary detention. He continued:
These rights have become part of customary international law, and they are not contested in the public rhetoric of the international arena. Of course, many gross human rights violations occur ‘off the record’, and human rights groups such as Amnesty International have the task of exposing the gap between public allegiance to rights and the sad reality of ongoing abuse.
But, he observed, this was ‘largely practical work... Theoreticians can contribute with suggestions for expanding, and rendering more meaningful, this empirical, de facto consensus on universal rights’. Sadly, it was not to be: within a couple of years, theoreticians were no longer engaged in expanding this ‘de facto consensus’ on fundamental human rights, but actively involved in dismantling it. Gross human rights violations were not occurring ‘off the record’, but in the full and approving glare of the American public. Serious human rights abuses were (and are being) overlooked in the name of American ‘security’ and in the ‘crusade against terror’. In Guantánamo Bay, and other detention centres in Iraq, Afghanistan, and the British-owned island of Diego Garcia in the Indian Ocean, hundreds of prisoners are held without due process and ‘stress and duress’ (‘torture’ to you and me) tactics are employed. No longer does the threat to basic human rights come from rogue dictatorships, but from the heart of the so-called democratic empire. ‘Thin’ universalism is not slim but skeletal.
And so what of the future? For many people around the world, the logic of human rights must first achieve the material preconditions for equality. But this can only happen if the West is willing to make sacrifices in their own wealth. In the West, the conversion of formal rights into economic and social ones was ‘based on huge transfers from the colonies to the metropolis’. But now, ‘while universal morality and rights’ may ‘militate in favour of reverse flows’, such action is politically implausible. Costas Douzinas warns:
When the unbridgeability of the gap between the missionary statements on equality and dignity and the bleak reality of obscene inequality becomes apparent, human rights… will lead to new and uncontrollable types of tension and conflict. Spanish soldiers met the advancing Napoleonic armies, shouting ‘Down with freedom!’. It is not difficult to imagine people meeting the ‘peacekeepers’ of the New Times with cries of ‘Down with human rights!’
But we should not despair. Human rights do not arise out of universal, timeless moral truths, but are a function of social struggles in the real world. In the end, the only justification for human rights rests in the ways in which they have, in the past, served to protect individuals and groups from abuse, however defined within historical communities and within historical time. The symbolism of the language of human rights has struck a chord amongst people worldwide and is being used to develop an ethic of care and responsibility – whatever scholars may wish to say about its foundational essentialism (in both its universalist and relativist formulations). Rights are a form of culture, or of imagining the real. They ‘entail certain constructions of self and sociality, and specific modes of agency’. And, as Douzinas reminds us, they ‘exist’, even in the absence of treaties and signatories:
When the American civil rights activists assert the right to equality, when torture victims all over the world claim the right to be free in their bodily integrity, when gays and lesbians in homophobic cultures proclaim the dignity of their identity, or when an abandoned lover demands his ‘right to love’, they acted, or are acting, strictly within the human rights tradition.
This is where human rights has triumphed: it has provided a language of rebelliousness and dignity, the dignity that belongs to each ‘unique, singular person who has place and time, gender and history, needs and desires’.
Comments