ALTERNATIVE LAW FORUM ... . , .. r. H Y J22/4, Jnfcanll)' Rvau. B'lon~.l ACC Nu '---~_7 __ .

__ _ The Future of Human Rights Second Edition

U PENORA BAX]

OXFORD UN IVSa.S ITY 1'1.855

Contents
xxv
Atkllowltdgt>mfflts " Prfjace nu AbbrtvitJrions
I. An Age of Human Rights?
2. Two Nodons of Human Rights:
'Modern' and 'Contemporary' 33 3. The Pnctices of 'Contemporary' Human Rights Activism 59 4. Too Many or Too Few
Human Rights? % 5. Critiquing Rights: Politics of Identity and Dirre~nce 115 6. What is Living 2nd lXad in Relativism?
160 7. Human Rights Movements and Human RIghts Markets 200 8. The Emergence of:m Ahenute Paradigm of Hunun
Rights 234
9. Market Fundamentalisms: Business Ethics at
the Altar of Human Rights 276
Bibliography 303
Author Index 330
336
Tllmlt I"do:

As a work in progress. various th~matlc! of this work ~tt

• presented to seminars and colloquia: Th~ Indian
Academy of Social Scien~, Pune Congress; The
Acknowledgements Ausrralasian Law Teachers Gold~n Jubilee Symposium ;
the University of La Trobc; th~ Universities of
Copenhagen and Lund; Th~ ~ntre of Ethnic Studies.
Colombo; The ~ntre of Middle Eastern Stud- ies at
Princeton University; Th~ University of New York Law
School Faculty Workshop; The Harvard Human Rights
Progrunme Roundt2bl~ on Human Rights and Univ~rsity
Education; the University of Warwick; and the R~~arch
School of th~ Australian National Uni~rsity, Canberra. I
must here especially m~ntion the sinb"lliar honour done day-long interdisciplinary dis- cussion of the first
to m~ by the University ofEsscx Human Rights Centre edition of this work.
I dedicate this book to the lamented Neelan TIruchdvam, a friend fOf ~r three decades. Ncelan-S2n (as I used to fondly c211 him)
strove w preserve a distinct and aUlhentic postcolonial, future for the rights of 'minorities,' as a mode of entrenching a hutnatle
future for human rights. He declined the prerogatives of:l. safe globalizing expatriate life as a way of making the futu~ of human
rights mo~ secure; and he lived and died close to the seem: of crime, as it were, :against human futurcs. This dedication
speaks to his living pmrnct amidst IlS, a luminous presence for the tasks of recon- struction of alternative human rights
futures.
This work owes a great deal to the stimularion offered by my students at Sydney University Dep2rtmcnt of Jurisprudence and
International Law, Delhi University Law School, Ouke Law School, W2shington College of Law, NYU Global Law Ptogr:lm.
the Law in txvelopm~nt Prognm at th~ Warwick Law School, and the National Law Schools of India (NLSUl at Bangalott,
and th~ NALSAR at Hyd~f2bad.)

Many distinguished colleagues hav~ been generous with their com- ments on the thematic of this work. Professor
Satyaranjan Sathe (my teacher at Bombay University) al~rted m~ to th~ perils ofinfdicitous styl~ of writing. Professor Lord
Bhikhu Par~kh was warmly supportive all along. Professor David Kennedy (Harvard Law School) in presenting an early
x Acknowledgements Professors Bums Weston and Stephen P. Marks
raised Ill.my friendly interrogations concerning my
paper on the thematic of this work at the NYU distinction between the 'modem' and 'con- temporary'
Faculty Workshop gt:ntly reminded me of the human rights paradigms. Bums remained agonized
heterodoxy of my footllote citations. queried the by my distinctions between 'markets' and
viability of many binary distinctions' draw 'movements' for human rights and the languages of
(especially in the ~nre of 'progress narratives') and commodification of human suffering. Steve insisted
raised the important issue of how far my work may that' name my 1999 contribution to their c~ited
be said to belong to the conventional corpus of volume as ' the voices of suffering.' Professors Talal
human rights schol- arship. Professors Nonnan Asad and V«na Das raised (at the Princeton Seminar)
Dorsen and Ted Meren, at the same event, wondered questions concerning the adequacy of my
whether the appropriation of human rights languages understanding of anthropological approaches to
might not be, after all, a 'good' omen for the future human rights. The lamented Professor Dorothy
of human rights. Other distin- guished participants at Ne1kin (with whom I had the privilege of teaching
the faculty workshop (notably Professonl mnk Law and Science seminar at New York University
Upham, Christine Harrington, and Ruti Teitel), who, Law School Global Law Pro- gram) offered detailed
while agreeing with my notion of trade-related, comments on an early draft of Chapter Eight.
market-friendly human rights, interro- gated the Professor William Twining has graciously nudged
ternlS of description. So did Professors Nathan me in the direction of understanding the fonnative
Glazer, Henry Steiner, and Peter Rosenblum at the traditions of analytic and comparative juris-
Harvard Human Rights Programme prudence in its relation to contemporary
p~ntation. globalization, a difficult task which I may, I have
realized, addressed morc fully. Professor jane Kelsey
(University of Aucldand) remained all along warmly
supportive of this difficult project.
Besides jane, among other activist friends with
whom I have had the privilege of working for
decades are: Dr Clarence Diu (President, Inter-
national Centre for Law and Development, New
York); Dr (Ms) Vasudha Dhagamwar (Director,
Multiple Action Research Group, New Delhi); Ms
Shulamith Koel1lg(Executive Director, The People's
Decade for I-Iuman Rights Education, New York);
Smitu Kothari (Lolcayan, Delhi); Wud Morehouse
(Presidcnt,lntemational Council for Public Affairs,
New Yew York); Ms Rani jethmalani (a co-founder
of WAR LAW, Women's Leg:al Action and
Research); Flavia Agnes; Dr (Ms) G«ti Sen (who
sought to
-• J
Acknowledgenlents xi
Acknowledgenlents xi
educate me concerning the .. esthetics of human
rights); and Vandam Shlva, and Martin Khor, and all
his colleagues at the Third World NetwOrk. who,
have (perhaps unbeknown to them) helped me to
sustain many a pracace of unsustainable thought.
educate me concerning the .. esthetics of human
rights); and Vandam Shlva, and Martin Khor, and all
his colleagues at the Third World NetwOrk. who,
have (perhaps unbeknown to them) helped me to
sustain many a pracace of unsustainable thought.
The a:knowledgement of activist friends remains
mcomplete WIthOut the mention at least of some
activist judicial friends: justices VR. Knshna Iyer,
P.N. Bhagwati, DA Desai, 0. Chinnappa Reddy
(India), Ismail Mahomed (South Mrica), and Michael
t and hi~ extraordinary jurisprudential labours\feats at
Kirby (Australia). Ismad embodied v.as j~ristic
energies [hat resituated many unfOlding futures of
human nghts 111 a post-apartheid South Mrica., and
beyond. Michael continues to srmbolize the oases for
hunun rights futures for the still despised sexuali-
tJes and for human rights of those affiicted by the
AIDS pandemic. Till t~ay, ~ remai~ moved
byChinnappa's adoring reception of my first major
article The Little Done, The Vast Undone: Some
Renections on Reading Granville I\ustin's tnl ltulian
ConstilIItion: A COmtntOIU! of t"~ Nation' published in
late sixties in thejoumal oflh~ Indian Law IlwiW/~
and hi~ extraordinary jurisprudential labours\feats at
the Supreme Cou'; of lndia ha:e .in tum innuenced a
~at deal my approaches to human rights thmking.
Fr~m Praful Bhagw.m I learnt a good deal
concerning the vinues of the ~ractJces of human
rights utilitarianism. Dhirubhai (D. A. Desai)
cxcmph~ed a p:ofile injudici~1 coura~ in his rohust
pursuit of the rights of the dlsorgamzcd and
orgamzed labour in India. And to Krishna, above all,
I owe: eternal gratitude for his tempestuous
summons to attend yet further to the agendum of the
'little done, vast undone'. I renuin fully aware of the
dangers of under-acknowlcd~ment of this
necessarily brief archival. . ~~ny activist friends at
the Bar, fortunately too numerous to Illcmion
II1dlV1duall~, tuvc contribu~ed a great deal to my
understanding of the w:l.YS of production of human
nghdcsness in India.
The a:knowledgement of activist friends remains
mcomplete WIthOut the mention at least of some
activist judicial friends: justices VR. Knshna Iyer,
P.N. Bhagwati, DA Desai, 0. Chinnappa Reddy
(India), Ismail Mahomed (South Mrica), and Michael
t
Kirby (Australia). Ismad embodied v.as j~ristic
energies [hat resituated many unfOlding futures of
human nghts 111 a post-apartheid South Mrica., and
beyond. Michael continues to srmbolize the oases for
hunun rights futures for the still despised sexuali-
tJes and for human rights of those affiicted by the
AIDS pandemic. Till t~ay, ~ remai~ moved
byChinnappa's adoring reception of my first major
article The Little Done, The Vast Undone: Some
Renections on Reading Granville I\ustin's tnl ltulian
ConstilIItion: A COmtntOIU! of t"~ Nation' published in
late sixties in thejoumal oflh~ Indian Law IlwiW/~
the Supreme Cou'; of lndia ha:e .in tum innuenced a
~at deal my approaches to human rights thmking.
Fr~m Praful Bhagw.m I learnt a good deal
concerning the vinues of the ~ractJces of human
rights utilitarianism. Dhirubhai (D. A. Desai)
cxcmph~ed a p:ofile injudici~1 coura~ in his rohust
pursuit of the rights of the dlsorgamzcd and
orgamzed labour in India. And to Krishna, above all,
I owe: eternal gratitude for his tempestuous
summons to attend yet further to the agendum of the
'little done, vast undone'. I renuin fully aware of the
dangers of under-acknowlcd~ment of this
necessarily brief archival. . ~~ny activist friends at
the Bar, fortunately too numerous to Illcmion
II1dlV1duall~, tuvc contribu~ed a great deal to my
understanding of the w:l.YS of production of human
nghdcsness in India.
The a:knowledgement of activist friends remains
mcomplete WIthOut the mention at least of some
activist judicial friends: justices VR. Knshna Iyer,
P.N. Bhagwati, DA Desai, 0. Chinnappa Reddy
(India), Ismail Mahomed (South Mrica), and Michael
t
Kirby (Australia). Ismad embodied v.as j~ristic
energies [hat resituated many unfOlding futures of
human nghts 111 a post-apartheid South Mrica., and
beyond. Michael continues to srmbolize the oases for
hunun rights futures for the still despised sexuali-
tJes and for human rights of those affiicted by the
AIDS pandemic. Till t~ay, ~ remai~ moved
byChinnappa's adoring reception of my first major
article The Little Done, The Vast Undone: Some
Renections on Reading Granville I\ustin's tnl ltulian
ConstilIItion: A COmtntOIU! of t"~ Nation' published in
late sixties in thejoumal oflh~ Indian Law IlwiW/~
and hi~ extraordinary jurisprudential labours\feats at
the Supreme Cou'; of lndia ha:e .in tum innuenced a
~at deal my approaches to human rights thmking.
Fr~m Praful Bhagw.m I learnt a good deal
concerning the vinues of the ~ractJces of human
rights utilitarianism. Dhirubhai (D. A. Desai)
cxcmph~ed a p:ofile injudici~1 coura~ in his rohust
pursuit of the rights of the dlsorgamzcd and
orgamzed labour in India. And to Krishna, above all,
I owe: eternal gratitude for his tempestuous
summons to attend yet further to the agendum of the
'little done, vast undone'. I renuin fully aware of the
dangers of under-acknowlcd~ment of this
necessarily brief archival. . ~~ny activist friends at
the Bar, fortunately too numerous to Illcmion
II1dlV1duall~, tuvc contribu~ed a great deal to my
understanding of the w:l.YS of production of human
nghdcsness in India.
The a:knowledgement of activist friends remains
mcomplete WIthOut the mention at least of some
activist judicial friends: justices VR. Knshna Iyer,
P.N. Bhagwati, DA Desai, 0. Chinnappa Reddy
(India), Ismail Mahomed (South Mrica), and Michael
t
Kirby (Australia). Ismad embodied v.as j~ristic
energies [hat resituated many unfOlding futures of
human nghts 111 a post-apartheid South Mrica., and
beyond. Michael continues to srmbolize the oases for
hunun rights futures for the still despised sexuali-
tJes and for human rights of those affiicted by the
AIDS pandemic. Till t~ay, ~ remai~ moved
byChinnappa's adoring reception of my first major
article The Little Done, The Vast Undone: Some
Renections on Reading Granville I\ustin's tnl ltulian
ConstilIItion: A COmtntOIU! of t"~ Nation' published in
late sixties in thejoumal oflh~ Indian Law IlwiW/~
and hi~ extraordinary jurisprudential labours\feats at
the Supreme Cou'; of lndia ha:e .in tum innuenced a
~at deal my approaches to human rights thmking.
Fr~m Praful Bhagw.m I learnt a good deal
concerning the vinues of the ~ractJces of human
rights utilitarianism. Dhirubhai (D. A. Desai)
cxcmph~ed a p:ofile injudici~1 coura~ in his rohust
pursuit of the rights of the dlsorgamzcd and
orgamzed labour in India. And to Krishna, above all,
I owe: eternal gratitude for his tempestuous
summons to attend yet further to the agendum of the
'little done, vast undone'. I renuin fully aware of the
dangers of under-acknowlcd~ment of this
necessarily brief archival. . ~~ny activist friends at
the Bar, fortunately too numerous to Illcmion
II1dlV1duall~, tuvc contribu~ed a great deal to my
understanding of the w:l.YS of production of human
nghdcsness in India.
To the Oxford University Press notably to [he
Commissioning Editor and r::' h~r colleagues I
owe: enonnous debts for copycditing and indulgent
publication schedule. .While conventional protocols
require acknowledgement of my author- ship of this
work, it remains a composite creation. The heavily
silent burdens .of the labour of this writing have been
gnciously as ever borne ~ my ~fe Prcma. I owe
some distinct debts: to Bhairav nuny thanks for ~IS
culinary mischief; to Pratiksha for bringing more
fully in view tile Im~rtal1Ce of the distinctive
practices of activist feminist ethnography of Indian
I~w; to Viplav for his constructive scepticism
concerning my un- ders~ndlllg of the .processes of
digitalization; and to Shalini for her syrn- ph~l1Ies. I
have Simply no w:l.y of knowing how our
granddaughter P:.tnpooma (now abut five years) and
 her brother Sambhav (now 23 weeks
To the Oxford University Press notably to [he
Commissioning Editor and r::' h~r colleagues I
owe: enonnous debts for copycditing and indulgent
publication schedule. .While conventional protocols
require acknowledgement of my author- ship of this
work, it remains a composite creation. The heavily
silent burdens .of the labour of this writing have been
gnciously as ever borne ~ my ~fe Prcma. I owe
some distinct debts: to Bhairav nuny thanks for ~IS
culinary mischief; to Pratiksha for bringing more
fully in view tile Im~rtal1Ce of the distinctive
practices of activist feminist ethnography of Indian
I~w; to Viplav for his constructive scepticism
concerning my un- ders~ndlllg of the .processes of
digitalization; and to Shalini for her syrn- ph~l1Ies. I
have Simply no w:l.y of knowing how our
granddaughter P:.tnpooma (now abut five years) and
her brother Sambhav (now 23 weeks
To the Oxford University Press notably to [he
Commissioning Editor and r::' h~r colleagues I
owe: enonnous debts for copycditing and indulgent
publication schedule. .While conventional protocols
require acknowledgement of my author- ship of this
work, it remains a composite creation. The heavily
silent burdens .of the labour of this writing have been
gnciously as ever borne ~ my ~fe Prcma. I owe
some distinct debts: to Bhairav nuny thanks for ~IS
culinary mischief; to Pratiksha for bringing more
fully in view tile Im~rtal1Ce of the distinctive
practices of activist feminist ethnography of Indian
I~w; to Viplav for his constructive scepticism
concerning my un- ders~ndlllg of the .processes of
digitalization; and to Shalini for her syrn- ph~l1Ies. I
have Simply no w:l.y of knowing how our
granddaughter P:.tnpooma (now abut five years) and
her brother Sambhav (now 23 weeks
xii Adcnowlc:dgtments
young) will r~ad this work in th~ir early teens,
hopefully at l~ast out of curious affection for a
vanished gnndparent!
Without diminishing in any way any of these
individual and collective debts, I need to say that the
work in your hands owes, in ways beyond mditional
labours of authorial acknowledgcm~nt, to the mAl
au/haN. If th~r~ is anything cr~ative to this work, it
owes to thr« d~cades old association with social
action struggk for th~ human rights of subordinated
peoples at divel'K siteS, within and outside India and
in particular to the heroic struggie of over 200,000
women, children and men afflicted by 47 tonnes of
MIC, in the Union Carbide orchcsmted largest
archetypal peacetime industrial disaster. From them,
and the geographies of injustice constituted by th~
'organized irresponsibility' and 'organized impunity'
of global corporations, I hav~ learnt more about
human violation and suffer- ing than the work in
your hands can possibly ever convey. I accordingly
also dedicate this work to the $uffm'tlg oj till: just, by
no means an abstract
·category.'
Preface
The warnl reader response that necessitated as many
as five reprints of the fif'S[ edition of this book
withill a year and a half of its publication was a.lso
accompanied by some distress signals conc~rning
the terseness of prose. This revised and enlarged
~dition substantially rewrites the earlier eight
chapters. Moreover, a new chapter has be~n
included which addresses the recently proposed
United Nations nonns concerning human rights
responsibilities of multinational corporations and
other business entities. This, then, may be considered
a new text.
I address, in tile main, the future of protean forms of
social action assembled, by convention, under a
portal named 'human rights'. This work
problematizes th~ very notion of human rIghts', the
standard nar- ratives of their origins, the ensemble of
ideologics :animating their modes of production, and
the wayward circumsunces of th~lr enunciation. It
revisits the contingent power of the human rights
movement. True, many a human rights wave
llounders on the rocks of sute sovc:reignty. Yet,
these very waves, at times, g:nher the strength of a
tidal wave that cmmbles th~ citadels of stale
sovc:rdgnty as if tlley were sandcastles.
Rewriting Human Rights Pasts
No contemplation of open and diverse human rights futures may remain innoccnt of their many histories. Pre-
eminent among these remain the myths of origin that suggest that human rights traditions are 'gifu oJtht W6I' It) tht mt'.
The predatory hegemonies of the 'West' itself compose, recom- pose, and even revoke, th~ 'gift', Of course, neither
the 'givers' of the 'gift' nor its rec~ivers constitute any homogenous category; nor is th~ 'gift' a singl~ or a singular
tr:ansaction. The languages of 'gift' also invite the attention to its other: the curse. ~rta;nly, the classical model of
human rights emerged as a curse for those viciously affected by colonialism :and imperialism and this work offers
many other instlllces. The patrimonial narratives of human rights origins also fctd the worst forms of cannibalistic
power appetires in some non-Euro-American societies. Far too many
xiv Preface Oppressed'
The development of human rights remains ineluctably
South regimes even reject the underlying affirmation of the
tethered to state- cnft. Forms of power and domination
equal worth of aU human beings, as if this were a 'unique'
provide: the chronicles of contin- ~ncies of the: politics of
Euro-American heritage! Authentic intercultunl, or even
governmental and intergovernmental desires. At the same
interfaith, dialogue remains a casualty of warped
moment, resistance and insurgencies also rc=constitute the
approaches to histories of human rights ideas and
political, increasingly in terms of human rights-oriented
practices.
ima~ries of societal and global development. ls it then an
If human rights conceptions are a 'Western' gin, those
egregious error to study human rights as mere: aspects of
inclined to presel"Ve this 'cultunl treasure' have much to
statecraft that ahogc=ther fail to take acCOllnt of the
le;rn't from 'Walter Benjamin's poignant aniculation:
'tnditions of the oppre:ssed'?
The politics of human rights treats human rights languages
There is no document of human civilization which is not at
the same time a document of biJ.rbarism. And just as such a and logics as an en~mble of means for the: legitimation
document is nO( frtt of biJ.rbarism, barbarism al$O taints for governance and domi- nation; it only universalizes the
the manner in which it w.lS tr:msmitted from one owner to powers of the dominant in ways that

another.! lWaltef Benjamm (1968) 256.

An alternative: reading of histories, towards which this
work hopt:s to makc= a modest contribution, insists that
the: originary authors of human rights are people in
struggle and communities of resistance. The plural- intiOIl
of claims to 'authorship' contests all human rights
patrimonies, and interrogates the distinction between the
formsof'progressive:' and 'regres- sive' Eurocentrism. Both
forms lUask the: suppression of alternate histories of the
non-European Other, its distinct civilizational
unde:rstandillgs of human rights. Neither fully recognizes
and respects the ways in which the: peoples' strugglc=s
have: innovated traditions and cultures of human rights. ~
also, thus, discover the truth that III 1M tasks of
mJ/ization ofhurflQn rightJ all JXOpfa, and aU
Mtioru, am"" Q$ rqll4f Jlmngm: and that from the:
standpoint of the: rightless and suffe:ring peoples
everywhere all.sociniD remain undu-
tkvstIcptd/tkvtWping.
Statecraft and the 'Traditions of the
Preface xv
constantly elsewhere reproduce human rightlessness and
suffering. Against this disposition, stand arrayed, the
practices of human rights activism, or the polidcsfor
human rights, enacting many a 'militan~ partlculaflsm' of
2
the local ag:Iinst the global. HOWl"Ver, even such
prxuces remam effete in the eye offuture history unless
we-human rights and social movement aClivists--e:llldidly
acknowledge that:
The tndition of the oppTC55Cd lCKhes us mat the ·state of
emergency", in which we live is not an exception but the
rule. We must atuin to a conception of history that is in
keeping with this insight. Then we shall durly rtallZC that It
is our task to bring about a real state of emergency; and this
Will imp~ our struggle against Fascism. One reason why
F:lSCism !u.s a chance is that, in the name of progress, its
opponents treat it as a historic norm. The current
amazement that the thing:; we are experiencing :ue 'sriII'
possible in the twenrieth century is not philosophicaL The
amazement is not the beginning of knowledge-unless it is
the knowledge that the view of history it gives rise to is
untenable.)
Human Suffering and Human Rights
Rewriting the past of human rights remains important for
any e:nde:avour at remote sensing their futures. Many a
paradigm shift has occurred since the enunciation of the U
niversal Declaration of Hun un Rights (UDHR). New
criricallanguages such as the: feminist, ecological, critical
race throrist have vastly transfonned the: practices of
knowledge and action for human rights. At the same:
time, the fonni!bble languages and the dialects of'nco-
libenlism' (more: accuratdy, the 'post-Fordist
authoritarianism').~ which now steadfastly foster the
conversion of human rights movements into human rights
'markets', inevitably commodify, in the process human!
social suffe:ring. I trace in this work, in particular, the
paradigm shift from ~ Univcnal Declaration of Human
Rights to that of trade-related, nurket- frie:ndly human
rights, now further aggravated by the conCUrRnt forms of
the: WIlrof'tnTor and the: WIlron 'tnTor. Both these
'wars'blightthe futures of human rights in various ways and
s human rights. It invitc=s. all over again, attention to the
forms. As if all this was insufficient
2 I articulated Ihis distinction between the polirics ".!
andfor human rights in my activist moments of work in
India in the foliOONing way (hopefully relevant 10 perfor-
mances of human rights education elsewhere): 'Mohandas
Gandhi i,ll/mud India; )awahatlal Nehru then distovmd India;
their followus, in tum, proc:eeded 10 appro- pnatc India
thus invented and discovcred; the task now 15 to re-
approprble India from Its expropriaronl'.
3 Walter Benjamm (1968) 257. 4 George Steinmetz (2203)
l23-45. $ The posl-9!11 'wan' threaten with extmcbOn the
hitheno accepted international flw dISCOUrse distincbon
bctwttn intemnional hUlMniwri4ln flw and intcrnarionaJ
XVI Prc:face
provocation to the dominant human rights discourse, I
revisit tht: troubled historits of relationship between
human sujfmlfl and human righlJ.
Obligations to minimize human suffering emerge in
contcrnponry human rigl1ts discourse as slow
1110tion, rather than as Cast-forward. kind of sUte
and public policy orientations. The generative
gnmmars, as it were, of human rights dissipate hwm.1I
and social suffering, at times to a point of social
illegibility. The most stunning example stmds furnished
by the recent (23 $(:ptember 2(04) Independent Expens
Report to the United Nations Sccrctuy Genc=ral
concerning the implementation of the Millennw
Goals. It. undcrsundably, sets the most meagrt'
standards, slated for attain- ment by 2015, for 2CCCSS to
the basic minimum needs for the poorest of the poor of
the world. The wise women and men, acting as loco
parmtfi for the 'wretched of the earth', speak thus
guardedly only to the distant future for the here-and-
now righllw peoples for whom international human
rights enunciations appear as a series of callous
governance tricks and subterfuges. Even amidst the 'war
ou terror', against the nomadic multi- tudes 6 that now
wa~ myriad 'wars of terror', the portfolio of the
'progres- si~ implementation' of the social and economic
remains cruelly thc= same as ever before. In thc=
mc=antime, innumC=r.lble histories of human
suffc=ring criss-cross and co-minglc= with the
historicity of thc= pre-9f11 and the post-9f11 Grounds
uro.
Thc= newly instituted political hc=nneneutic of
collective human security haunts any S('nsc that we
may have, or develop, concerning the futurc=s of
ways in which the scattered global hegemonies of the
eclectically fostered human rights nomlS and standards
retain an enormous potential capacity to reproduce
human/social suffering. Perhaps, the future of human
rights depends on how the 'reason' of human rights may
after all discredit the 'Ullftason' of sute
hUINIf~ts £rw. It diSturbs. and even destroyS, the ~ry foundatklns
of mternational comity. The ti~places of Ixxh the 'wal"l' render
obsoIcu- the GrotLan doctrane of ImIptJPnltPWL bdli, ""itich, in Its
ongm and development. simpl); yet p<M"erfully; Insisted that
intenu.oonal law, and human nghts bw and jurisprudence:.
stipullted an order of nOli-negotiable obhgatlons 10 numntlze
human suffering in WoIr, and war-lib: Situations of uuled
ronnlC1. More fundamentlLlly; CVl:n the IIInes of pc~e appear 10
the mmiOl1~ of rlghdess peoples of the world as little different
from the limes of war. III other wurds, l~nguagc5 ofsufferLng are
not writ as large LIItimes of peace as they art: In tulles of w.u.
The emcrging sundards of international crLlllullll.aw In war·hke
situations do not qUite extend to 5yt;temallC, sustained, Ind
planned peae«m~ denials of the nght 10 SltlShcoon oftmk hunun
needs, such as food, clotIlLng, howlng, and health. 6Th aLbpt
the figure of thought so COtl(;Cm:LI 10 Mw;:had Hardt and
AnlOmo N~ (2002. 2004).
-
Preface lWIl
sovereignty and its variously installed predatory
regimes of the dominant 'leg:alitlcs'. These constmtly
re-enact what Jacques D<:mda, readlllg for and with us
Jean-Jacques Rousseau. speaks of:
The govemmeIH or oppression all make the same gesUlre: to
break the pre'iCncc, the ccrprcscnce of all citizellS, the unanimity
of 'asscmbled peoples,' to create a situalioll of di~pen;ion. holding
subjttts so rar Ip2.rt as to Ix- mcapable of reelmg themscl-w:s
togt"ther III the ~pace of the one and !MOle speech, one and the
s:tOle . L ' persUaslVC exclI.'lIIge.
The task of rdating human suffering and human rights
renullls incred- ibly complex, even without the health
warning against the 'suffering- mongcrs,.8 'Left
legalists' now tell us that unless the politics for human
rights remains vigilantly self-reflexive, 'a politics
org:lIlizcd around pub- licizing pain constitutes a
further degradation of subaltern selves into a species of
subcivilized nonagcncy'.? We now stand encouraged to
ask: 'What if the relief of suffering is not the sole basis
of worthy political work?,lo This "141a1 if question is,
of course, ofparamoum importance in 'challenging
regimes of domination in which palpable suffering is
largely imperceptible', especially for those that 'actually
enJOY hfe under capital- ism'. tl Politics/or human
rights In its overwhellningconcern with human
suffering needs to coequally engage with the states of
suffering and to the sources of pleasure and joy 111 !tfe,
and theory, after globalization.
I hope that 'left legalism' does flOt, after all, consign
tins work to a mere exercise in suffering-ll1on~ring! I do
identify SOnte: orders of activist pleasures in thc making
of contemporary human rights, whether through the
moods of human rights romanticism, and evangelism,
or via what I name as the carnivalistic production of
human rights. Not altogether inconsequential remains
the prose of international human rights that speaks not
just of the ewr~ but also of lJ~ rnjoymtnr of human
rights by all human beings everywhe~. There is no doubt
a certain amount of biophilic (life giving or life
sustaining) energy at work in the recent anti-
globalization protests and anti-war protests.
Contemporary practices of human rights activism
celebrate the joys of the politics of desire and not only
through their capacity to inflict various types of
suffering and torment on the CEOs of global power.
The pleasures of otetivist production of human rights
diplomacy elaborately, and variously, celebrate on
behalf of
7 Jacques Dtmcb (1976) 137. 8 W<:ndy Brown :md J:U1ct I
blley (2O(2) 22. 9 Lauren Ikrbm (2002) 127. 10 Wendy Brown
and Janet 1 !alley (2002) 22. 11 Wendy Brown and Jaoct lIalley
(2002) 22.
II
communities of hurt and harm, the imposition oCpain
and suffering for the violators of hUlllan rightS,
momentarily perfor:ning the regimes of impunity that
alherwise structur.llly surround them.
Yet, at the same 1110l11el1l human rights .activist praxiS
also weaves many a compromistic textual, and par;a-
textUal. human rights designs that further ullcOlSliy
negotiate Justification for the construction of the monl
hienrchy of human pain and social 5ufTcnng enacted
by the vcry languages of 'progressive realization' of
social, economic, and cultural human rights. So do the
voguish grammars of global governance that
increasingly organize and sustain markets for human
rights which, in turn, lead to the commodification of
human suffering.
the discoursc conccming failed stlltcs. or (to invoke
Gay.ltri Spivak's troubled notion) 'failed
decoloni:ution', the grist to the mill of the: new global
hegemonies that now enact, as yet Ullsanctioned by
international law, 'pre- emptive' armed intervention and
a trigger-happy regill1echangc .141t seems, at the end
of the day, that the residuary legatees of human nghts
futu~ are human rights and sO(ul policy experts rather
than the dla~poflc ngbtl~ p=oples. The dominant
epistemiccomrnumues foster VISions of a progrmillt!
stllle, which, when not an oxymoron, gnaws at the heart
of human rights. Human rights movements entail both
the 'progressive' empowerment and discmpowcrment of
the 'state' and, thus, remain necessarily deeply
dilemmaric.
the discoursc conccming failed stlltcs. or (to invoke
Gay.ltri Spivak's troubled notion) 'failed
decoloni:ution', the grist to the mill of the: new global
hegemonies that now enact, as yet Ullsanctioned by
international law, 'pre- emptive' armed intervention and
a trigger-happy regill1echangc .141t seems, at the end
of the day, that the residuary legatees of human nghts
futu~ are human rights and sO(ul policy experts rather
than the dla~poflc ngbtl~ p=oples. The dominant
epistemiccomrnumues foster VISions of a progrmillt!
stllle, which, when not an oxymoron, gnaws at the heart
of human rights. Human rights movements entail both
the 'progressive' empowerment and discmpowcrment of
the 'state' and, thus, remain necessarily deeply
dilemmaric.
lCVlll Preface
The Pertinence of Lawyer's Law of Human
Rights
Juridical histories, or the labours of production of thc
IOlvyt,'s IllW of human rights, remain vital to all future
scenarios for the promotion and protection of human
rights. Doctrinal work testifies variously to the powcr
of the judge and the jurist (.2.S also thejuridic.2.lly
mediated forms of soci.2.1 action and movement) in the
making of the manydiver~ worlds of human fights. It also
provides some powerful discursive means of
understandmg the nature, number, and negotiations
12
concerning the scope of human fights in conflict. !-
Iowever, important though the role of the /olvytn' 1m" is,
juridification of human rights scarcely exhausts sources
of meaning and movement manifest in the politicsfor
human rightS.1l
State-bashmg libidif/lll drivt (there is no other w.IIy to
describe the pas- sional politicsfor human
riglus)}im,ulles thewherewithal of contemporary
human rights activist impulse and praxes. But it also
animates a programschrift of State refoml. The complex
narrative, in tum, generates
12 By ·nature'. [ mcan here, pnmarily, distinctions madc between
·cnforccable' and not directly 1ustlCllblc· rights. By 'number', I
re(er to Ihc dlstmctlon be"tw('(Cn ·cnu- mCl"lltcd' and
·uncnumcl"lItcd· nghl'i. the Inter ofte"n anlcuiatcd by prxticcs
of)lKhcul xtivtsm. Uy ·I"nns·. I mdlQte" herc the scope of ngllts
thus cnshrmed. gIVen that no consrituuonal gtUDnttt of human
ngllts may confcr ·absolute"' protection. The 'ne- gotiauon'
process Ii mdccd complex: It refers 10 at leasl three diStinct,
though rebtcd. aspens: (I) JudiCially upheld defimtlOllS of
ground5 of reSlnalon or regulauon of thc scope of tights; (2)
Icgl5buvely and exccuuV'Cly unmolested JudLcil,J
1I1tcrprecltlon of thc meamng, contcnt, lind scope of nghts: and
(3) thc W<1YS III which the defined hearcf"lJi ofhuman ngills
chose or chose not to t'Xt'rclS(' thclr nghu-tilis. I" tum,
prcsupposmg that they haV'C the mfomlauoo eonccnung the nghu
they haV'C and the capabllny to deploy them 111 VlILnoUS xu of
hvmg.
Il This 1$ fully "lam fest III the Dther ~rlf1tcd r('$pon§c by Ernst-
Ulrich Pc1enmann (2002) to !'tuhp Alston's cntlquc (2002) o( the
(omlcr'. mSIstence on 'mtcgr:mng' human nghu to lIlte"mauonal
tradc law and global OrgalllUIIOIU (2002).
Preface XIX
The Perils of Prediction
Social prediction concerning the future of human rights
remains a hopeless affair if all that we have at hand is
the abundance of a CIrcuit of ex-change offairy tales
and horror stories, whether concerning the exclusively
Euro- American origins of human rightS or the
postcolOnial vicissitudes ofhu- man rigllts attainment.
More is needed to redress the foundational lack of thc
lustori<>gr:lphy, and an adeqtl.2.te social theory,
ofhurnan rights.
Further. we all know how some langu~s Wither and die
and how new languages take their place. The languages
of 'honour' died With the birth of the industrial
civilization. The lanb'uab't!s of liberal redistributive
justice have died many a death, particularly slllce the
Gre:n October Revolution. So ha!> perished, at the altar
of Social Darwinism, many a language of 'progress'.
The question then arises whether hurn.:l.11 rightS
languages will also wither aw.llyand what may take
their place. Far from being unreal, the question is
already heavily posed to us by the movement of global
capitalism and technoscienrific modes of production.
The future of human rights talks remains haunted by an
inadequate understandLllgofthe various fateful impacts
of meg;l-science and hi-tech that now constitutes the
materiality or the productive forces of contemporary
globahz:ltion (the new forces of production symbolized
by digitalizations, biotechnologies, and the emerging
nanotechnology) and the attendant fonns of human
rightlessness. These redefine the bearers of'human'
riglllS, or reconstitute. yet all over again, the 'human'. IS
"E V('n to the poi11l nf ~t anolher nllyhem on the peoples of I
bl!! III the very yen of the eelebr.mon of the blCC:flIenary of Its
mdependence! See. for a poigJIant Ilarn.uvc, Peter I bllW<1rd (200-
4). " ~- , '10; asymmetncal lIlte"rmtlonal Nofth-50uth drvide m thc
mode of human nghl'i Jcnm.1edgc production furthcr aggrav.ues
the SItWUOIl ~n when furnishing a SUffiClCnt watr.lnt for roncem WIth
the (uture of humall nghts.
xx Prr:f:lcc
Iluman rights languages. and dialcctS, whether in the
genre ofla~~ges for political organizations or sodal
prOtest a~d movement, rel~1a1ll mfi- nitely various as
wetl as precariOUS. Some relauv~ly old hum:m ,"ghts now
stand threatened with extinction, as anyone sttll
worktng with human rights of labour wdl knows. New
human rig,hts language,s stand b!rthcd in caesarian
oper.nions that 'deliver' hum:Ul nghts of speCific
constItuen- cies (such as human rights ofwomcn,
children, indigenous peoples. and cultural 'minorities'),
not to mention the profusion of thl:' 'sustainable
development' and human capabilities/flourishing talk.
Some new l~n guages of human rightS such as those thOit
now flourish with ~n ontologlC~1 robustness of the
maxim Women's Rights are Human Rights' remain
overcome with the problematic discursivity of 'gender
mainstreaming'. Some others (such as the human rights
of 'despised sexualities', or of the indigenous peoples,
or people with disability) face unce.r~in flln.lre~ on ~he
variously framed and reconstructed axes of the
'recogllltlonlredlstnblltion dilemma'. No 'real' hUlllan
rights languages have yet fully emerb't:d for the
stateless peoples and peoples now caught in the vicious
webs of the war oJterrorand the war 0" terror. " It is
uncle;tr how human rights move~ents as soci;tl
movements, whether 'old' or 'new', may arrest the denll~
of human rights lan!.'1.lages.
Too Sool1, Too Late
Any endeavour at forecasting the future of human rights
osc~lIates o~ the 'too soon, tOO late' axis. On the olle
hand, contemporary lIlternatlonal human rights norms
and standards constitute. in the eye of human h.istory, a
very rt(trlt moral h'lmnn itllltrliiotl btcau~ these present, at
best, the Sites of heavily conflicted state and social
movement consensus and, therefore, simply may not
bear the weight of interlocution in terms of tile future.
16 It docs not matter much, fot the prnc:nt purposes, whether and
how wt' nuy here constrUCt SO~ importlnt distinctions bctwttn the:
bnguagt'S and dulcet!> of human nghu. I remam aware lhat the
languago= of analYSIS of'human nghu markets' I ofTer (in
Chapter 7) cuneI Ihe pou:nllal of ahenating my fnends IT! human
nghu movemenu (of which I conswer myself an IIUlgmflGl.Ilt but
~lIll an Imegral pan). Theil sense of 'hurt' may be somewhat
redccmed, I hope, when they receIve, With some warmth, my
reflectiom nn the: paradigm shift from univel'Sll human rlghu to
trade:- related. nurkc:t-friendly hUl1lln nghlS (Chapters 8 and 9)
and the C1111que of ~e: emergence: of 'modem' hum:,ul rights
pandlgnl (Chapter 2). The uncvcn rc«puOrt that ' thus anllClp.lle
SUStainS my belle:f that ~ (thOS(' of us who struggle for the
xhicvcmcm of hunun ngiltS and the amehonoon of human
sufTcrmg Iwr ,rrd _, on, as It were, ASAP basiS) need to be
ref10avc about our own practKn fuluomng the tasks of struggk
and solxbnty.
-
AU there is to human rights theory and practice, some
may say. IS Its hiIforilal prtStnt. On the other hand, it
may be said that the fmure is already happening now In
an era of extraordmary global tr.lIlsfomuuon , which
has already devoured many a powerful vision and
I.nguage of altematlvc human futures, and fully
confiscated the sight and sound of ailenullives to global
capitalism. The acceleration of historic time and space
thus render obsolete the fighting faiths of the
yesteryears. On this regtster. the question collcerning
the future of human rights stands alrc;tdy unhlsloncal ly
posed, because it is a moral langua~ (like those of
'social Justice'. 'equity', and 'redistribution') that is
simply wwustd. It fails. outside of a few contexts
(notably, of regime-inspired or supported torture and
terror), to resonate with the globalizing middle classes
around the world. Any work-like me present one---on
this SOrt of view may then, at best, only address
pas/filiI/ res, that is, the narratives of the unrealized,
and even unattainable, potentially of the languages of
human rights.
The 'too soo,,' or 'too taft' stances raise further anxieties
concerning the future of human rights. The 'tOO soon'
stance simply interrogates the worth of any future of
human rights talk. What matters, in this genre, is the
affinnation of the here·and-IlOW struggles. Futures ulk,
on this reg- ister, already marglllalius the histonc
potential of current strUCtures of hum.n rights
engagement, in the main addressing the tasks of
continuing norm-creatiOIl and implementation as an
~pect of human rlgllts respon- sibIlities of the state
Structures and conduct. On tillS Vlew, the tasks of
human rights consist in making the state ethical,
governance JUSt, and power accountable; these wk.~
will, and even ought to, continue to define, and
consume, the agendum of human rights. Any
historically premature COllcem with alternative futures
of human rights renl.1.ins then liable to the indictlncnt
of being a tragic moral mistake.
The 'too late' stance, in contrast, insists that the 'human
rights' patty is already Olltr and the sooner we get rid of
the human nghts hangoVl:r the better it will be for
human futures. State structures COlIn, thus. only
deliVl:r the rhetoric hut not the reality (materiality) of
satisfYing basic human (material and non·material)
needs. The world·hlstoric 'abell.l- tions' of'wdfarism',
and 'socialism' being said to be 'safely' ~r, the state
must reincarnate itself as the night watchman
(incidentally, I do not quite know how to feminize this
expression!) Increasingly, also, contemporary economic
globalization fosters the production ofbclicf that the sa
tisfaction of human basic needs is best ;ichieved
through aggressive protection of the nghts of the
multmational corporations and the policies of intcma.
tlonal financial institutions, regardless of the negative
fallouts on the human rights of the actually existing
human beings. especially the world's
lOcii Preface
impovc:rished. From thiS viewpoint, morallangwgcs.
especially those of human rights, Ixcome counter-
productive when they oppose: visions of new 'progress'
hcnldcd by technoscience powcr fonnations.
Forms of resist2l1ex to this kind of 'too late' stlnce
invites (in the Niettsch~11 ~nsc) the 'pessimism of the
strong', a dctcnnination to live within contradictions
while somehowcombolting the devaluation of values.
The difference between the two positions or responses is
critical. In much that gets said io this work, I takr
seriously this form of pessimism that still imaginatively
elevates the courage to resist the savagt' power of
contem- porary economic globalization.
The Problematic of Fiduciary/Suffering
Thought
This dauntingly complex task further raises the
intractable issues concern- ing agmry (wllO raises these
questions) and method (how these are posed). The
issue of agtlu:y is, indeed, crucial, entailing at least two
related, but distinct. questions: W1w Spt'tllt! tllfOlIgh
lIS u4,m wt' speak aboul IWlllan rights.' A"d 0" whose
«half ",ay u't spt'tlk?
Inescapably; those: who venture to raise questions
concerning the fum Te of human rights must confront
their own historic subject-po~itions, and be reOexive
concerning the human rights choices they make. No
matter how Ouid and contingent these subject-positions.
theories about human rights do not quite maIUg'C to
make audible that 'small voice of history'. conveying
'the undertones of harassment and pain'l7 endured by
the rightless peoples somehow as their politically
ordaincdfoll!. HQWS()C"VCr problematic the category
of the subaltml may be, or be made to appear by
postmodernistic analysis, stories emplotting the future
of human rights remain sensible for the violated only
when human rights discourses convey a smst: of Sl!
fferillg. I endeavour, in this work. to articulate a
distinctive subaltern pcrspcctivt: on human rights
futures.
But human righrs discourse gets even more complex
with the question: whose violation and suffering we
highlight, and whose: we Wlore, in this endless
discursivity on human rightS? Since human, and human
rights, violation is egregious, t"Vt'1l lhe struggle to
articulate the 'small voice of history' of those: who
suifcr-oftC'n beyond hope-putting hum:1.I1 rights to
work. entails the enactment of (what Vcena Das terms
as) the 'moral hierarchyofhuman suffering'. This work,
alleast partiy, add~sscs the ways in which the grammar
and idiom of contemporary human rights languages
entaIl the 'sublimation' of human suffering.
17 RanaJit Guha (1996) I ~t 1~12.

- production of scientific knowledge. All thiS then
Preface xXIIi
Of course, much depends on how the narrative voice is
appropriated to marshal the power to mact viSions of
human futures. The powt:r It marshals ~ollles a
mat~rial fom' II,al matts tilt allfitipattti fowm. However,
both the tnumphal eras of the bourgeois human rights
formations and of the revolutionary socialism of
Marxian imagination marshalled tillS nar. ratlve
hegemony for ~marbbly sustlined practices of the
politics of cruelty. The formcr enforced imagined
futures on the rest of the world (with itS noti~ns ~f the
colle~ve human right of the sUpfflor raus to subjugate
the "iftnor ~nt:J), ~hlle the ~a.tter legitimized many
agJllog. Al- ternate ways of the 11.'1II1II!!t/lIOtl of tradition
(as in the case of some states da!ming .Iegitimacy frDIn
.'~liticOlI' Islam, Juw.ism, Christiaillty, or Hin_
dUlsm~, like both the~ VISIOns, also, on available
evidence, augment the potential for the practices of the
politics of fierce cruelty.18
What makes contemporary human rights movements
pncwus is the fact t~at they contest all ble.k and
terrifying sway of these narrative hcgcmo- Illes. TI.ley
deny. all. {osmo/ogiral, as well as ~rmlrial,
juslifllaliol1! for the lmpoSItlO~l of 1I11Jt1stJ~ed
human suffering. And they insist on a dialogical
construction o~ suffenn~ that may be considered 1ust'.
In this, they also contest. the:: nOtlO~' of politics
asJa~; that is, the power oftheJt"w becoming
thedntlllyofnulhoTls of human beings. Even this
enterpnse, in turn. needs to negotiate and legitimize the
shiftillg '{'t"t SOmMat imvmjbk boundaries between
'IIU6Sary' and 'SUrplllS' human suffering. . The. power
that tht:y thus contest is 'political' power, the power of
IdeolDglcaJ and TC'p~ive apparatuses of the state
and of kindred globOlI knowled~govemance
fonll:uions. lncreasingly, however, digitaliz:l.tion and
blotedm~Jogies mark the emergence of
l«hllOscil!nlifk formations of power ~hat thnvc.on
appropriation oflanguagcs and logiCS of human rightS
for ca~ltal-mtcnslvc.oorpoT2tc-owned
res~lrs III the emergence of (what I describe here as)
[he Iradt:_ ~ttd, marlut:frirndly human righrs
paradigm, subverting the paradigm of Ufllvcrsal human
righrs of all human beings. The subvt:rsion is profound.
allover again the notion of being III mum stands
pcridated. The hllmall no~ stands represented, in an
era of digital capitllism, as a cyborgsituued withm
networks ofinfomlation, wholly capable of corporate
ownership whether lit terms of electronic or genetic
databases. The various huma,; genome proJects, and the
contemporary j ustifications of emergent technologies
of 1- It d mo oes l10t '11:;111er 100 ,",uh from the standpoint of
rhe vlobrcd. whether cnor_ hUl::r~nl~leUOI1 ofhum:;l"
suffenng as well as the dem:;ll ofrhe nght 10 be and 10 rem:;llll
or as beton, :;I11d COlltlllUes 10 be JU5uficd. III coslllo!
ogieal or secul.u dlscurslvl'" eourse the" f -r /lnpos ' arr.mV('
str"lIItejpe5 0 rCS1~tance drfTtr matet1:;1lly WIth caeh roman of
lUon of sufTcnng and human 'Iiobtion_
XXIV Preface
human cloning as redemptive of human suffering,
present a remarkable. if not the ultimal(\ challenge to
half a ccmury's attainment of an Ai,,'t= of Human
Rights. TechnoscicllCc, as codification of new material
practices of power. af- fects the very II11.gin:ltlon
ofhum:m rights pnxis, not the least beGlUSC the bearer
of human rights st:l.I1ds feast either as a cyborg or as an
informa- tional genetic storehouse. It is also:ll global
social fact dut fonns ofhUlnan rights c"tique stands
necessarily simated within technolog;es that they
protest. Old notions of what it means to be, and remain,
'human' have been steadily, bUt spectacularly, rendered
obsolete by tcchnoscic:nce. The notioll ofhurn ... n rights.
still sensible: in relation to state violation, now becomes
inchoate with regimes of te<:hnosdentific power that
sustain the New World Order, Inc., or the diOllectic of
'arms' and 'c;&.!ih'.19 The task now is not merely to
Imdmumd these developments but to /raus/oml these in
directions more compOltible with competing notions of

human rights futures. The book in your hands I'llises marc
questions than its answers. Even the questions it poses
may further be refined in activist theory.20 You h:we
the choice to gIVe the kiss of death to this speculative
enterprise that I here name as the future of human
rights. Ifso inclined, may I at least remind you of
Rou~au who described rightless human beings as those
'whose first ' ... "",jet gifts alo"~ are is fetters' /rrt
and Should whose we 'first then, trC2tment' with is
Rousseau, 'torture', yct whose ask the qucstion: Why
should they not I'llis<: it In compi2illt OInd, ifl may add,
itISUmYtjon~1 How 'free' may this voice be? Do the
languages of cOlltempol'llry human rights constitute
what Lac2n, momentously, 2nd in 2 different context,
rwned as 'impTlsoncd me2mng5', from which 2fter 211
the human suffering of the rightlcss peoples m2y still
seek a righteous dcliver.mce?22
APEC ASEAN CE CEDAW
lMF MAl NAFTA NGO NGI Nllru OECD
TANS TRIPS UDHR UNDP UNICEF WHO wro
Abbreviations
Asi2 Pacific Economic Cooper.ttion Associ2tion of
Somh East Asi2n Nations Christian Era Convention on
Elimination of Discrimin2tion against Women
International Monetary Fund Multil2teral Agreement
on Investment North American Free Trade:
Org2ll1zation Non-goveTllmcnul Organizauon
Asi2 Pacific Economic Cooper.ttion Associ2tion of
Somh East Asi2n Nations Christian Era Convention on
Elimination of Discrimin2tion against Women
International Monetary Fund Multil2teral Agreement
on Investment North American Free Trade:
Org2ll1zation Non-goveTllmcnul Organizauon
Asi2 Pacific Economic Cooper.ttion Associ2tion of
Somh East Asi2n Nations Christian Era Convention on
Elimination of Discrimin2tion against Women
International Monetary Fund Multil2teral Agreement
on Investment North American Free Trade:
1'1 Ikrrida (1976) 237. Xl Some rl .... lewen o(the til'lll edition, who somehow sul! believe Ihllt hutl\~n rights bngua~5 eon~l1tute the \Iltmute
Org2ll1zation Non-goveTllmcnul Organizauon
Non-~rnmentallndlviduals N2tion2i Hum2n Rights
Institutions Orgamzation for Economic Coopel'lltlon
2nd Development Transnational Advocacy Networks
Trade-~l2ted Intdlectu21 Property RightS Universal
Declaration of Human Rights United N2tions
Development Prognmme United Nations Childrens'
Fund World Health OrgaJ1lzation World Trade
... '. Organization
Non-~rnmentallndlviduals N2tion2i Hum2n Rights
Institutions Orgamzation for Economic Coopel'lltlon
2nd Development Transnational Advocacy Networks
Trade-~l2ted Intdlectu21 Property RightS Universal
Declaration of Human Rights United N2tions
Development Prognmme United Nations Childrens'
Fund World Health OrgaJ1lzation World Trade
Organization
University of Warwick November 2005
Upendra Baxi
TANS TRIPS UDHR UNDP UNICEF WHO wro
TANS TRIPS UDHR UNDP UNICEF WHO wro
Non-~rnmentallndlviduals N2tion2i Hum2n Rights
Institutions Orgamzation for Economic Coopel'lltlon
2nd Development Transnational Advocacy Networks
Trade-~l2ted Intdlectu21 Property RightS Universal
Declaration of Human Rights United N2tions
Development Prognmme United Nations Childrens'
Fund World Health OrgaJ1lzation World Trade
Organization
Non-~rnmentallndlviduals N2tion2i Hum2n Rights
Institutions Orgamzation for Economic Coopel'lltlon
2nd Development Transnational Advocacy Networks
Trade-~l2ted Intdlectu21 Property RightS Universal
Declaration of Human Rights United N2tions
Development Prognmme United Nations Childrens'
Fund World Health OrgaJ1lzation World Trade
Organization
Non-~rnmentallndlviduals N2tion2i Hum2n Rights
Institutions Orgamzation for Economic Coopel'lltlon
2nd Development Transnational Advocacy Networks
Trade-~l2ted Intdlectu21 Property RightS Universal
Declaration of Human Rights United N2tions
Development Prognmme United Nations Childrens'
Fund World Health OrgaJ1lzation World Trade
Organization
panacea for ~f2te1i of mlcal evil, have 1I11scomtrued tius SCSlllre ofhurIIllny. 1 beheve thiS llaITlltive mk well worth thc COM
o( unch:tfltlblc

undcrstlndln~. 21 1 dCrl~ Ihl5 rcfcrclKc to Elflik from Dcmda (1976) 168.

22 AJ quoled by Malcolm Bowie (1991) 60.

-
•
1 An Age of Human Rights?
1. Towards 3; 'Common Language of Humanity?' M
ueh oCthe twenticth.century.of the Chnstlan Era (CE), ~pecially its latter half, stands Justly haIled as the Age of Hum an
Rights. No preceding CCIllUry in human l history witnessed such a profusion of human rights enunciations on a global scale.
Never before have the lan- guages of human rights sought to supplant all other ethical 1anguages. No previous century has
witnessed the proliferation of endless normativity of human rights standards as a core aspect oCthe
politicsoJimergowmmemal dairt. Never before has this been a discourse so varied and diverse.:! The then Secretary
General of the United Nations was, perhaps, right to observe (in his inaugural remarks at the 1993 Vienna Conference on
Human Rights) that hum:m rights constitute a 'common language of humanity' ,3 Indeed, in some w.ays, human rights
sociolect emerges, in this era of the end of ideology, as the only um~rsal Ideology In the making. enabling both the
legitimation of power and the praxn of emancipatory politics,"
I I use the term 'hulTllln' ~ an act of rommun)Q.UQn;a1 counesy, Human stmds rTUt"Ud by the presence of mm. and perxm by a '5OU', My preferred
non-seXist version is, theucfore. ;a comblTunon of the firsl letters of both WVfds: 'huper', I await the thy when the word 'huper' will ucplac:e the word
'human',
2 Such 001 il becomes neces»ry to regularly pubhsh llnd upcb!!:, through the unique discursive insrrumentlliity of the Ulliled Nations system. m ever-
eXJU.ndmg volume'! III fine: print, the: v;ari01.IS texu of human Tights mSlrume:nlS. Sec:. Umted Nations (1997).
3 BoUtT05 BoutT05 Ghal! (1993). 4 For the: notion of ideology as a '<:1 of bngulIgcs c:lulXlemed by rd1c:xiv'ty-or as 'sociolc:ct'-sec:, Alvin Gouldlle:r
(1976); J8. Thompson (1984). A more recent vamllt oftlus is the: use of the: phrase 'dlalecu of human nghts': see Muy Anll Glendon (1991). Sec lIlso
Upcndra 8:u[I (1997). Sec, for a fuller ~rsion, http://u'l4'W.pdlrrt.otg. lind DaVId Jacobson (1996). The stlte:, he tlghlly streuc., 5tl1rKh commuted
less by sovereign agency lind more by 'a larger mtemaUOlU1 lind eon)tituuonlll order Wsed on human nghu'. Human nghu ptovtde a 'vehK"le: and
objcc:t Oflhls revolUtion'.
2 The Future of Iluman Rights of human violation stand addressed by the languages of
human rights. Nor do all violated people have equal
Whether or not a world bursting forth with IHnnan access to the languages of human rights; having access
rights norms and standards is a better world than one to a growingly common human rights language is not
bereft of human rights languages still remains an open the sal~le t~ing as marshalling the sure power to name
question. To be sure, a world rife with human rights and redress human VIolation. Impunity for human- and
curies the greater potelltial of naming human violation human rights-violation cocxi~ts with h~llnan rights
wh ich decent and reason- able peoples ought not to implemenutlon and enforcement. Fu~hcr, centllnes~ld
tolerate or permit. Nor is there much .do~bt that state, galllS of human rights struggles (such as the human fights
govcnunenul, and political choice and conduct do of the working classes) stand erased by a single strokr
r~malll liable to human rights indictment. Peoples' of the glo~lizing legislative pen. I go no further III
movements everywhere IIlterrogate me practices of the illustrating the britueness, the fungibility, ofhurnan
politics of cruelty. That, to my mind, ~s an rights norms and sundards. Human rights languages
i~lestimable pok'llial of human rights languages, forever promise more than they deliver in real hfe terms
unavailable to preVIous history. to the 'wretched of the earth'.
That being fully said, we ought to note that not all fonns Any consideration of the future of human rights
engages necessar.i1y with the cxtf20rdinanly complex
constimtive notion of potentiality. or WlUI 'the problem
of ute OQstence and autonomy ofpotenciaIity'.s In a
'>Cose. as Manm Heideggcr says: 'Higher than actuality
stands poSJibility' and we 'C'1Il understand this
phenomenology only by seizing upon it as a possi-
bility,.6 In mis sense, the future of human rights may.
well lie ~ot in meir creation (the actual ides of their
making and unmaking-thelf firs~ c~e ation) but in their
potemiality to 'decreate'/he many act~lI~ eXlsnng
worlds of human rights (the second creation). The
actually extstlng world of human rights has little or no
space, for example, for the sutcless, the refugtt, the
massively impoverished human beings, the.
indigcnou~ ~ples of the world, and peoples livmg
wim disabilities. It IS the po5slblhty of decreating thiS
world in the process of rccreatmg new worlds for
.h~man rights that gives human rights languab"l's 'the
matter, the potentiality of thought,.11 This potentiality,
in the short run, merely pursues a kmd of Real
5 GIOf§'O Agamben (1998) 44.
• Maron He~r (1962) 63. 7 I hen Invoke !lOme notions from
GIMgw Agamben (2000) 270 .
• Ibid. (2OOOb) 34.
An Age. of Human Rights? 3
Utopia that seeks the 'bettering of the bad'; in the long
run, potentiality Olav well unfold In cherished images
of a juSt and hunune futun" for all human beings (as
well as other $Cullem belllgs).
~ may well say of human rights (languages and
materialities) what Ag:unbcn (a!> far as Olle can grasp
his variegated texts) says of potelluahty in general:
human rights also mark a possibility of a revolutionary
began- nlng 'from which there springs not a new
chronology but a 'alteration of tune (a cairology)' with
me 'wcightiest consequences', 'Immune to appro-
9
priation into the reflux of fCStOration'. O n this
register, State sovereignty may no longer articulate itself
wholly outside the zones of human rights to the point of
restoration of legitimacy that justifies coloilial
enslavemellt of peoples, apartheid state formations,
4 The Future of J lum:1II1 Rights
sufferlng'• as well as the exponential growth of human rights enunci.uions. In addition. the 'post-Cold War' pnctlces of 'ethnic
wars',1S and now the so-alled pre-empuvc: disarmament wars ominously birthed through the Second Gulf War and the 'waf on
terror' also, at one :md the S21mc time, mark ways of reproduction of human rights as well as of imposition of human
nglltlessness. manifest through new orders of imposition of social and human suffenng. In this context, understanding human
rights remains a complex and COntl7ldlctOry cxcrci~ in the unravelling of their futures; in a sense, potentialities always mark
practices of genocidal politics, or the reproduction of
rape culrurcs as so many modes of'legitimate'
governance. But ulis immunity from 'appropriation into
the rcfluxof ~toration', while providing the foundation for
contemporary grammarofhuman righ ts, still leaves
open the twO realms of possibility/potentiahty that
Agamben sug- gests via the distinction between
IO
polmtia and polmtia passiva. As Agambcn
attjllfJ
provocatively reminds us, if potentiality precipitates
somc moments transition to actuality, it also betokens
'th~ pofnltiality "0'/0'.1 t Th~ polnlliality flol lo fulsomely
characterizes me contemporary world of human rights
enunciations. The practices of Holocaust ian politics of
cruelty con- tinue to outweigh high-minded declarations
0 11 human rights; and state systems continue to
innovate forever their 'inability to function without
being tr:msformed into a lethal machine' . 12 The
pol~"'iality '10110 continually informs the making of
human rights since the Umversal Declaration of Human
Rights (UDIIR).
This poteuljality "01 10 haunts evcn the millennial
dream of 'turning swords into plougllshares'. But its
narratives also extraordinarily demystify the
extraordinary histories of the centuries-long politicl
terrorism in- volved in the coloniza;tion of me non-
European peoples. Politics of orga- nized IIltolerance,
genocide, and ethnic cleansing stand universalized in
the killing fields of postcolonial and post-socialist
experience. The early, middle, and late phases of the
Cold War 13 orchestrate pf(xhgaous human , Ihld
(2OOOb) at lOS.
10 Ibid. (1987). " Ihld. (1989) 48 (emphasiS added): (1998).
12 Ibid. (1998) 175_ Iln. , n=n()(h utton of eold war' IS cruc:ul to
any understandmg orhow the 11Itergov- emll1tnul polma or dCSII\'
PUrllues Its own dlstUleuve ltinenncs. Avalbblc htenturc mdlOotCS
at least five periods: 19045-7 (the period duncten~ed by the
Yalta Confel\'nce ~nd bcgm1l1l1g5 of nuclear anlls nee as
well as of policlcs or oollummellt); 1950-68
the triumph of hope over experience even when the Iangtl2gt's, logics. and par:aJogics of human rights also stand marshalled to
:mthorize practices of mass cruelty on a global sale, whether in bourgeois, socialist, 'post-Cold War' (post-liberal) and
postmodem forms.
Even so, human rights languages, howsoever effNc, remain perhaps 1111 I/WI U't' IIIlVl.' to interrogate the: barbarism of power.
The: endowment of human rights ctnerges not so much as aiming 'to redeem what vns' but rather as speaking to a high purpose
;'0 SDvr whal was "ot,.'6 Pm wholly another vny, usb of recreating and decreating human right!. remain inseparable from those
of rethinking 'radical evil'.17
II. The Open and Diverse Fumres
The critical relation between actuality and possibility thus remains central to any preoccupation with the jill/Itt' ojhllman riglus.
This funtre IS, as all
(Ihe en of correlon): 1968--80 (dm-me); 19H0--8 (~ncwcd urns nee), 1985-8 (the pmod of Sohcbnty and Glasnost). This penodiution does nOl
directly address Ihe vanellcs ofhum~n- ~nd human nghts-violatlOns that ,he Cold War unle:lshed.liow· ever. h15lOt1~n5 of hunun rtghlS,
fonunaldy, have at-hand cbulnses of the Inlema- 1I0nai Hisrory proJCC1 oflhe W<lodrow WilMln Cenlrc, the: Open Sociel)' Arr;:hlVt'S al Ihe
Cemral EuropeJn Umversll)', and the Harvard Ptojea on Cold War SlUdles. I refer III thIS work 10 a number of srudl~ of Ihe Cold War barbarism
and genocKbI poIllKS of IhlS era.
14 J.s. l1.unllllel (1997) provides the rnO$! ~)'Stenuric cxploralion of·governlll<:nt by de~th' and dtmocidt. See also, R. Moovcdev (1972.
1977); Clive Polltmg (19911), Ene IlobslxlwlII (1995);Jollathan Glover (2001); Ikechl MghroJI (2003): Samantha Power (2002).
15 See, for an 1I1\18111ful ~n~IYSI$ of elhllic wars surrounding the former Soviet Union, M. Kaunov (1995). The corpus of DOIuld I
TOrOWlI}; (19!I5, 20(1) n:lIlllns a $:tfe Killde w grasp the forllls of pohUCIUIIOIi of ethnlcll)'. See also. Amy ChUl (2003). 1i5" I here. VUI lhe
luh(lted phrase. reiQClte Agambcn'l nOllon of a New MeSSiah . arUIIIS OUI of hiS reJdms of MelVille's Stri_ &ut/my.
t 7 See Ml.m Pu Lara (200 I).

•
An Af,e of Iluman Rights? 5
funlres are, open and diverse. However, not every hUlTlan 'achlcvement' endures in timt' and space. Some become relics of a
bygone ol1le---of nHerest only to connoisseurs of human dIVersity. Some others fumi .. h residues, out of which are f;;ashloned
the future practices of rem~l1t1on of the past. or the politics of IIlvenuon of nosulgla. Stili some others live on as cult practices of
a precocious minonty in a vastly transfomled world. In the ryes of the future, th;;at which we now name as 'IHlInan rights', may
well live on in the 'rulllS of memory'.
The notion that 'human rights' may have such radICally contingent futures may seem outrageous to many of us deeply committed
to the .alleviation of human miscry .and social suffering. Some of us who have devoted our whole lives to the struggle for
Implemenution of 'human rights· may regard such an enquiry as morally offensive to the collective histories of embodied and
lived hurts. But precisely for th.al very reason it remains crucial for us to recall that 'contemporary' human rights theory and
practice (as I name it) i .. a very recent human invcntion, perhaps safely dated as an archive of em.ancipatory secular human
praxis only a little over half a century old. At the end of the Second Christl.an Millcnnium, the remindcr of the contingency of
humall right!. achievement is, I believe, perhaps a richer resource for their futures than the fond illusion th,u 'human nghts' arc
here to sUy, well-nigh irreversible. Saymg this does not ellui! succumblllg to any 'future hype' concenung the 'cnd of human
nghts'; rather, it reminds us that the 'fulUre' of human rights sunds lIupenlied by a whole voariety of developments III theory and
practice. These, III the mam, IIlvite anemion to the:
• ~afogitJ ojhllmQII righu, 'modem', and 'contemporary', their logics of exclusion and inclusion. and the construction ofid~
.about 'human';
• ReQlitj~ of overproduction of human ngllts nonns and sundards creating governance as well as resist.ance overload that
complicates emergences of human rights futures:
• Ckvt-Iopmt'tll of posnnodemlst suspicion of the power to tell large global Stories ('rileu-narratives') that convert human rights
I:mgllages into texts or tricks of governance or domination;
n
• E."U'I;gt'tlU of the politics of difference and identity, exposing both ell1.a clpative .and repressive potential;
.• Rl.'SlIifa(ilt~ of argument!. from ethical and cultural relativism interro- gating the politics of universahty of human rights, in
ways that make POSSIble, in 'good' conscience. toleration of vast strctches of human and SOcial suffering;
• COfll"trlion of human
rights movements into hUIll.a1l rights markets;
6 The Funlrc of Iluman Rights

• Tro/l.ifomullion of the paradigm of the Universal Declaration of HlIInan Rights into a trade-related, market-friendly
paradigm of human rights ushered III by 'globalization', ideologies of 'economic rationalism'. 'good governance'. and
'structural adJustment'.

In addressing these taSks, I take it as axiomatic that the historic mission of 'contemporary' human nghts is to give voice to
hunun suffering, to make it visible, and to ameliorate it. However, the articulation of the voices of suffering always enuils
acts of representation. The notion of voice, when captUred by agencies of domilunt discourse,18 supplants the 'small
vOIce of history', conveying the urgency of everyday 'harassment and pain' in lived subaltern experience .19 However,
mtrt acts of state and social policy often begin to administer silence to the voices of suffering. One way to name the various
struggles for human rights is to say that these represent contestation over the power to ,umlt' tht lIOiu. Human rights
discourse then raises the problematic of rtprestllfclIiotl of hum an suffering, both as provid- ingjustification of politics of
governance and of people's resistance that I name 111 this work. severally, through the distinction between forms of politics

of. and pollticsJor, human rights. The notion that human rights reghnes may, or ought to. contribute to the 'pursuit
ofilappiness' remains the privilege of a minuscule of humanity. For the hundreds of millions of the 'wretched of the earth'.
human rights enunciations matter, if at all. as and when they provide. even if conlln- ~Iltly. shields against torture and
tyranny, deprivation and destitution. pauperization and powerlessness, desexualization and degradation. De- spite some
astonishing hunun rights praxes, the delivery of human rights to the masses of impoverished peoples happens in
homeopathic n"asures. It is a notable. feature of this therapy that it reproduces the symptoms as a way of advancing its
'cure'! From this perspective. the time of human rights, far from being 'instant' time, remains always a 'glacial' time. 20
Ilowcver, not all voices of suffering necessarily speak to the world of global human rights. They speak to us often in
languages of injustice that may not be expressed and measured merely in tenllS of human rightlessness. The languages of
human rights become inchoate when confronted, for eXllmplc, by the demands for global reparative justice directed to
redress

18 What I have 11\ rl1lud hen: is nOl me glohaJ 'voIce' Indu51ry eplwnmed by dte 'iJk.lrld Ibnk's ~i(t'J of'~ f-\JOf' on lIS "',lcOOlle. Sec the
c~usuc comment 011 Ihis by Thomas W. l'oggc (20(H) 17. NolC 204.
1~ RanaJ" Guha (\996) 10-12. 10 In tenns of the dlstlllcuon n:ccntly offered by Bo~vcnrul"'ll de Soll~ SantoS.
(1995.2001).

•
An ~ of Iluman Rights? 7

harm and hurt arising from past, centennial, and even Inul"~en I . rth r r u-... tennla. pracnces 0 t: po .tics 0 Cnlelty, such

as chattel sla~ry, cololllunon, the Cold ~r. and some recent post-conflict dcvasution sitWotions unleashed by the multiple
wars r( and wars OIl 'terror' ,21 Languages ofJusuce articulate the imper.ltlvcS of responsibility for human and hun'.n ngh" I ,

"", VlO 4Itlon In the world of comcmpor.t.ry human riglns, however: no. ev h violation. is necessari~y a '''",~n
rights violation, given the'ow:rall ~~rn:,:v: lmpovcnshmem of IIltcmationaJ and constitution.1 hum "gh 12 ' .m n ts
sun- dards. Throughout UlIS work, I accordingly d,ploy Holled- 'h d I . lip expres- sion- urman,:m lUlIlau nghts. violation', I.do
nO[ pursue t,he task of actw.lly bringing voices of suffering to the reahty of human ngilts. That is a subject for another
kind of work. How~ver, I try to do. the next best. I endeavour to relate the theory and pracuce of human nghts to the endless

variety orbl I a' 23 preventa e luman suuenng. Recovery of the sense and e><pC,;,nce r h " I -d tl 0 uman angllls 1 pro- VI es Ie
best hope ~here is for the future of human rights. This is a complex. and contradl~tory proc.e~s, if only because the official
 prose of hll~lal1 nghts neces.sanly normatlvlzes suffering. Iluman rights languages, logiCS, and. paralogt~ accomplish the
nanling of forms of u/lLonsliotlabl~ human/~al su~enng but only by work-a-day descriptions Ihat transform the U"lO'/S(IOIUlbf~

11110 ""/aI/ji,/ imnn.:iuon of suffen"g TI", " . bl I ' f'"~- • se Olten remam uhnconsclona y ong III ~oming. as those who work for

the affirmation of t e nghts of peoples WHh disabililies or of the indigenous population among oiliers, know nther well. '

And even that transfonnation remains open to the """""ries of ·sod· inrerpreution(vU d' . II _ .~ epl IC nfi ,para Igmanca y,

the episodiCJudlcul IIlterpretation and ~ orceme~t and General Comments of the Umted Nations human rights h~e~ty ~Ies).

The distinction between imposition of unconscionable '0' an Via atlon and unlawful human rights violation nutters a O1'eat deal

H eXdmple even' h .gt" 0"' , III a uman n lts arena like the prevention oftorture.204

-_! fuB11y ~ttend IQ thIS dlstmction, and It'l m,lny .......... Iootin
" u .... In my ""-, "
r-zitUr.t ;lX] (2005;a). ..-. f'" • ~ •• ng In

ror oc;ll11ple it look n fh to UIUlll~tclyensh;lIle' lany 1f~er.tnons 0 Ulilan ngllls and femullst thcoryeffon any Other form npe. seXIU s, ~ ... cry.

enforced prosucuuon, forced pn:gnanC)( .. and ..... u crulles S of ;:xu:1 Violence In the definitions of crime ag;unst humanity and

Cn~IIla.1 CoU;;'sU~II~.es 7 (paragraph (2)(i) and Arude H(e) (vi), Imernalional

24 Adl Ophir (1990) 94-121. the ~~O!~n?;;~ns a~ Cbuchne Haenm-Dale (2004) offer a valuable ~n~lysis of Torture. t e
Optlonal Protocol to Ihe Unlled Nations Convelltlon Against
8 The Future of Iluman Rights

Further, as every student of the oudawry of genocide knows, the normative categories constitute a part of the problem for
consider.able stretches of human suffering before these tend to become a part of the sohni~n.2S In this ~ge remain

ceded vast territories of the future of human fights to <by-to-day politics. . . The violated peoples know, in their lived and

emboched experience, the ways in which the reality of their suffering remains umwmttlblt. The limits of human rights
languages (to adapt an observation of Ludwig Wiugenstem) also constitute the li1l1i~ of their world. They also know that
even the improbable feat of translating all humtln violations into hurtultl riglllS viola- tions will not transport the
uwltlmt'tlbk into the sphere of dIe Iltlmtd. The extremely impoverished peoples of the world kno~ that dl~ many ways in
which the concreteness of their everyday suffering remains unrelated to human rights textS. The best that human rights
normativity can do is to invent serial human rights fonnulations that somehow match each human violation caused by
impoverishment, disenfranchisement, and unalloyed ·terror'. But this itself, this distance, even chasm, constitutes the very
grnmmar of the languages of human rights.
Further, in their ineffable failure to effectively enable :lIIld empower redress. human rights violations attain the SUtuS of
institutionally Wllltri- fUlblr factS. Indeed, all too often. the violated, or their next of lan, have no human rights
meanslOsuccessfully run the obstacle: r.ace~legantly ~al1led as 'access to JUStlce:'. The organidexperi("ntial
knowledge of pam and suffe:ringofthe violated dlXs not always find articulation I~l erudue lalowl- edge formauons
concerning human rights law and Junsprudence. The meta-languages of human rights thus remain p~blemauc on dIe
plane of repre5CmatJon and mediation of human sufTenng.

III. Clarity as a Form of Caring for Human Rights

Clarity of conviction and communication is a most crucial resou~ce. for promotion and protection of human rights. The.
stnlggl~ to altam It IS by itself a human rights task. However, the usk IS ~auntlllg, wh~n one shuns the self-proclaimed
postmodcmist virtue WhiCh, ev~n at .1l~ ~st moment cele.br.ates incomprehensibility as a unique form of
1I1tel1lg1blllty. Ethic~1 clarity concerning human rights is not always easy.to ach.ieve. As dtis work progresses, we will
begin to apprecia.tc that there .IS no Slllgie or simple answer to the manifestly clear question: What fights ought

25 See, Satn~mha ~r (2002); Ene D. WeIU (2003).

•
An Age of Human RIghts? 9

human beings to have? The elldeavour at justification of human nghts has understandably, though not always Justifiably,
produced complex and contradictory discourses. Even when we arrive at a land of global consen- sus 011 certain human
rights values (such as equal dlgmty and respect for all human beings, or dIe nght to life), these prOVide poor gtJIdes to
tnllslation in the official prose that enacts human rights norlllS and stan- dards and their subsequent Interpretive IlIstQnes.
Human nghts law and Juri!tprudence have to produce definitions of prohibited and pennissiblc conduct and here. often
enough, sovereign power assumes the fonn of pow(:r to legislate definitions. Undersundably, State and policy actors that
fin.aUy emerge widl international human rights treaties. dedaratioll5, and resolutions engage in definitional trade-offs;
thiS m(:ans funher that the human rights norms and standards thus produced emerge in deeply ca- veated languages. Even
such prima facie consensual formulations remain further exposed to reservations, statements of understanding, and like
devices that further complicate the search for the content and scope of human rights. Massive. and unending, acgetic
exertions remain indis- pensable to the enterprise of knowing what hurnan rights people may actUally have, even paving
the way for the form of necessitous assenion of Q IlIImtlll n"gltt to IlImltlll rigllts ttI'l(tl/iell! These quick ob.'icrvations
should suffice: here to say that crises of legibility and IIltclligiblllty always stand Installed at the very hean, as It were, of
the multitudinous production of contemporary human rights norms and ~tandards.26
Even . non-statecentric undersunding of sources of Justification for human rights (to which, in the main, this work IS
devoted) does not service ;lny pa ... mount aim of clarity. The universes of re.sisUJ1ce to power and dOmlnallOn are rife
with crises, complexity, and contradiction. Even as co~uniti~s in resistance and peoples in struggle enunciate new human
tights Ideals, they do not always agree, and, mdcro. differ greatly, on the ,:-,"ys in which these may be translated into
languages of hUO!;&n rights norms and standards. They impregnate the production ~f human rights with rather notOriOUS
constitutive ambiguities. One as Just to read, on this COUIlt, the poesy and the prose of the Porto A1agre :::: Mum~ai
World Social Forum congregations declaring somehow potential summated in the phrase: 'Other Worlds Are Possible'! All

~ .I. [II eOlltlbl, brut;ll dallty char,ICtenztt rcgllllCS of pohtlcal cruel". 11lere is no Inu<:ternuna.-.. bel I ' COllt -, Ln, or a UI, tie

perpelr:oIIor Jusufie~uon' for Ihe Hoioousl or the N elllporary forms of ethme dcallSlng. The 'devout' NUl or eontempor~ry nco- :

101.1) arc rarely affected .• L.I r Ilgl:UIo Inlell ' III ulClr DC l(' or pracllce, by amhlgtllty, whICh agonize human Ibilln.' ~Iluts III each

and every dlrecllon of the professed 'ulllvcrsahty', 'lIIchvu- ., ,and IIItcrdcpendcnce'.

10 The Futur~ of Human Rights
this en20cts ways of readi ng th~ furore potentials/possibilities of human

rights. O n older, even 2oncient, registers the ideal that proclaims the consent of the governed as the hllnus test for the
It:gitill12CY ofhun!an rights-orientcd governance, d~ not. for e,ample, speak with an equal voice as to how public
officials may be elected, what fonns governance may assume (say. in terms of the cabinet or presidential fonn), how we
 may prefer 'thin' or 'thick' conceptions of the Rule of Law, and how constitutions may providt: for relatively autonomous
judiciary, the specificity of human rights, and limitations on their scopc.n Much the same may be said concerning the
insulbtion of the insurrectionary truths onanguagc:s of self -dett:nnination. or the discourse concerning the human 'right to

development', or 'women's rights as human rights'. The genre and corpus of human rights production thus, necessarily,
oscillatt: betwt:C:n the twO commandments: 'Thou shah be always clear' and 'Thou shah never ever believe that clarity is
all'. The taSks of writing! reading texts, contexts, and futures of human rights remain awesome precisely because one
ought to respect the over-determinatioll, the excess, and the surfeit of meanings ~ntailed in statccentric 20nd
peoplecentTic multiple originatlng points of human rights. I remain aware that the fiducUlry image of writing about
human rights, 20 fonn where one takes responsibility III acts of writing on behalf of hum an rightlcssness, suffering, and
injustlce, further aggravateS the achievement of a modicum of c1anty; yet, this work is based on the belief th20t such
writing remains coherently
possible.
IV The Haunting Ambiguities of Human Rights
The very tenn 'human rights' remains indeed problematic. In the rights- talk, the expression often masks the attempts to
reduce the plenitude of its meanings to produce a false totality. One such endeavour locates the unity of all human rights to
some designated totality of sentiment such as human 'digntty', 'well-being', and 'flourishing'. Another mode invites us to
speak ofhUlmn rights as 'basic', suggesting that some others may be negoti20ble, if not dispensable at least in th~ short

run, experienced 20S a horrendously long run by the violated humanity. The deprived, disadvan- taged, and dispOSsessed

may indeed find it hard to 20ccepl any justifications for the vt:ry notion of human rights that may end up in their lifetime,
and even interboenerationally. as a denial of their right to be, and to remain,
17 I attend 10 thc:sc as~ III Chilpt:cf 5.
An Age of HullUJl Rights? II

such ate human. pomorphlc bemgs; . I y, a even narrow the Yet 'II crue new another I uSlon II . nghts . y, mode of

totalization ca that II
to cu - the ' range .J ~nVlrollment , . sus12mab1e notion. As descnpuve of hum:m nukes rigll~~ us ...... Su<' :~ um I' II1Uu:u b ,-~ to an to

ant I lOman h ro- (or wlut IS ' som ewl14t L_ lIlapproprt- - development'') uke us far be nd

ventures such al" I yo f . ...h __ .J , ... mpts at lOU lutlon o human r1f:,"ts rcuuce to a 'coherent' category the forblddin I di world
th h .. -0- rum
of actually existing human rights. g y verse As prescriptive vcnrnres, such modes simply privil_ , . ' <-~ I
prer~rrcu
v:I ues over 0 efS, t us complicating, as well at ti d' , I ' h . ...h . . mes InHIllS ling future uman , ' ny'ts I enunClallons. h
' '< I an stan ar= yield their
~Xlstenlla ourreac of In human both cases . the rigllt5 norms no· d rmatlve d complexity ~- ' '. ,nd h

o~ures wor Ii ( or, L_ Istonc bo Id t I lere s. 28 lutureS t As I . Ie IS contradictory Co ,ar not Id as to ont ventures tIe .
world dem20nds nature of in of 20 of the human totalization rights uniform develo dose bPum II t narrative. Ie

ent many 'd 0 oors f'h . Th' timan sue 0 h f confhctmg IS ' rights' , overall ' perception' ' ,- ' a~~d . constructive Itself,

~~~anl~ de~plte r:a demise. Ity Its 0 P~~se vast HlllIan symbolic frol11.Ald~s rights, pott:ntial, one Hllxley)

wonders may oftheconflictt:d after whether all' InVlle the Ilormativity . ~ Its ressi own on polllia/~ The practices

dl'~irt-~II-dom~"Q"u of 'human and rights' poIi'''(J shelter of dt'sirt-i"-

irfSIl~'i~:~~l~:~:: incredibl d ~~
:I';~:'~~;~':;;;:'I~>:O~:>: :'~:~~~;:>:~>~:;',~,:S;,;~~:P;~~=
~~ ~rs~ctives th~ mll1atlon <;ont~xts an on in. the resistance the meaning rest aniculate of 'human
themselves rights' of this work. . I as d se parate but equal t:n t:avour to address

ghts, IIldudmg human rights , emer"" 0- in seve ra I d'« merent ' Images' ... bck; rights rights as bounlb as d20i:' :m d d as KeNS;

nghts · as markers of power, and as masking . as a defense againsl 'i an ~rot«t~n; TIghts as orgafllution of social space, ;and as

disciplinaty red dtsire.29 uenon _ and an n"'durs~ol~; of one's humam ' 'K ty, iP . rl 1fl20ry. .gh nghlS IS . as nghts expresSion as art,cuiauon,

as mil r of kJ desire:, 0 f and one and mystifICation: . s h as umilmty, forec1osur~ ' rights and of as liople'5 • In the Dc,ade Veopk's for

Human Report of Il,gh~m~n II n Iglns EdUCluon, under the auspices of Ihe ~rodllCtion I e:IiUfy at least of humal~~~ Ihrc:c

ld of humann:;gtus: IIc:mon. thus New the York. glomi now world under of pubhntion II1tercullU~1 I d ~tlonli auspKCS' the (nisi
110;1115 a SUII(brdS. prllK'pally wlthlll the: United Uctlon of llit:Cm~tlo I I~: tnnsg«:ss'oll world eonslltutc:d by naUonal T<'pro- COUIlIOil
Z9 We wHh th_'
nil SUI and the actiVist world ofhUnlan nghu III I"V'TtTIlInent
........ A (WO wor ,-'_ oa. ; r~ ndy Brown (1995) 96, fQO{not:c 2. S« also, Wendy
Brown (2002) 420-34.
\\
12 The Future of Human Rights

Some speak of 'human rights' in terms of ethical values that ought to inform collective and individual action. These values
present a contested terrain, Valut'S-talk stands here distinguished from itlltTtsts-talk. The.lattcr insists that what we call
'values' are nothing more than fo~s ofrattonal- izations of intercsts. The former distinguishes values. fr~~ II1terCSLS
by a definitional fiat: valucs arc what communitics and tndlvlduals ollght to desire as distinct from what they may Q(wolly
desire,l2 The sources of tllI~ 'oughtllcss' val)' incredibly.
An Aae of Human Rights? 13
Thus was the great Vitoria able, memorably, to raise the justification, within the Catholic tradidon, for the protection of the
natural rights of the indigenous peoples of the New World. Thus, tOO, was Martin Luther ablc to inaugurate a PrOleStallt
tradition ofnuun.1 rights that decemralizcd for ,111 believers the power of reading the word of God, uncluttered by hier-
archic monopolil.3tioll of hermeneutic powers in a few priestly hands. Thus, further, was Gautanla Buddha able to found a
whole new religion based on non-violence (aMmJll). lloadlcal lslamic hermeneutics, during the eighth and the tenth
centuries CE, also empo~rcd intc'rpretatiol1 of the verse on polygamy in the Iioly QUI7II1 dlat actually de-legitimized the
practICe of polygamy. Thus, too, was Mohandas Gandhi able to denounce the practicc of untouchability as a perversion
of llinduism and the early forms of apartheid in South Africa as un-Christian. Even as this book goes to press, the
Anglican community will decide whether allowi ng ordination of gay priests may be inconsistent with the pious reading of
the scriptures and Islamic juristic communities will continue to debate the Shllri'a-bascd Im~mli~sibility of the violent
~Iobalization of JatwtlS proclaimed by ~ma bm Laden and his peers. 1 Progressivc/r:1tdical hermeneutics of rellgton
provides a rich resource for understanding the histories and the fUture of human rights.
Secular natural law traditions present human rights as ethical impera~ Ilve.s in a vcl)' different mooe. These arise quite

simply from a 1110raV etiltcal aUdacity in which the figure of God is rendered conspicuously a~nt. Value imperative for

human conduct sund now to be derived from

Secular natural law traditions present human rights as ethical impera~ Ilve.s in a vcl)' different mooe. These arise quite

simply from a 1110raV etiltcal aUdacity in which the figure of God is rendered conspicuously a~nt. Value imperative for

human conduct sund now to be derived from

Put another way, ' human rights' defy 'easy identification':

11m! nghts are sometimes mated:as concepts, as argumentalive trum~, as fxtol") f ~uction as prccondnions ofbargainiug. as beuer-

enabhng entitlements, as o p . , " ' ckv1csJO totems, :as sources of social sohdarlty, as egltmuuon c ,'" Too many images crowd

consciousness ofhu~~n rights, The ~referr,ed , .......nival,l\ Inta .... is not just the act of pnVllegcd eplstemlc chOice or

persr---' e- , I' 'gI • )b , (arising from readmgofthe 'right' books or followmg t II: n ~t canon u also a function of (what I-
Ieidegger caned) one's tI'fOWfltlt5S III the ~rld, At the same time, the different images .. bout rights suggcs,t heaVlIY,the
diai«li(ai character of'rights', From the one and the same s~bJect-posltlon, human rights may be both 'cmancipatory' and
'repressive' ~arkers of articulation of counter-power; they emerge as signa,tures o~ a tnumph~nt 'humanity' of the
theoretical t:vcl)'one and as the regtste~ofhved, d~pl~t1ol1 of that 'humanity' and, further, as devices of
mysti~catlO~ of dlsclphnal)' and sovereign power structures, Human rights constitute dlffe;em constel- lations of
diverse subject-positions in, and through, a~nCY-II1-str~ct~~e, There is no simple way of reading forms of plur:1thty
a~d muluphclty of the fecund expression 'hunun rights'. Because the notton means dif- ferent things to different people,
these meanings n~ to be con~gurcd \II pattcnlS that entail the least epistemic violence to the rtchness of dlffer~nce,
a difficult task indeed, Further, at least in the present VIew, plurahty IS worthy of celebration only if it enables sustenance
of ~he netwOrks of meamngs and logics of popular action which, protest agamsl all fortns of human VIolation and
production of human rtghtlessness, I essay general understanding under the following distinct rubrics,

(aJ Hllman Rig/llS as Ethical Imperatives

 30 l"erT"t Schlag (1997) 1: footnote m~hcators Onlltted from the quOte " )1 To mvoke ~re nther non_ngorously, the Nlcnschcan
notlOTl of'pcnpcctlvum as the very 'geognphy ofbt-mg': Sec, Jc:m Gramer (1985) 190.
Y Sec, fOl" an Illummatlng :analysts, JulIUS Smnc (1966) 546-56.

The great discourse on 'natural rights' arises thus both within the traditions of theistic and secular natural law thought,
'Theistic' narurallaw traditions derive values from either the reason or the will of God. The diffcrence is nnportant: where
values and norOlS flow from, or stand ascribed to the WIll of God, duties of obedience he beyond human Tea- sorungand
interpretation. Only when values flow from divllle re:lSOn may human rC:lSOn mterpret their meaning and scope.
Natural rights ~rc procbimed by acts of pious reading of the scriptures. The hermeneutics of religion thus provides the
historic matrix for acts of reading human rights as etllical imperatives. The right to equality of all human beings is
grounded, after all, in that reading of the world's religious traditionswmch say that God created humans in His likeness or
image and, therefore all are equal and all humans owe coequal obligations of respect and dignity to each other.
Thus was the great Vitoria able, memorably, to raise the justification, within the Catholic tradidon, for the protection of the
natural rights of the indigenous peoples of the New World. Thus, tOO, was Martin Luther ablc to inaugurate a PrOleStallt
tradition ofnuun.1 rights that decemralizcd for ,111 believers the power of reading the word of God, uncluttered by hier-
archic monopolil.3tioll of hermeneutic powers in a few priestly hands. Thus, further, was Gautanla Buddha able to found a
whole new religion based on non-violence (aMmJll). lloadlcal lslamic hermeneutics, during the eighth and the tenth
centuries CE, also empo~rcd intc'rpretatiol1 of the verse on polygamy in the Iioly QUI7II1 dlat actually de-legitimized the
practICe of polygamy. Thus, too, was Mohandas Gandhi able to denounce the practicc of untouchability as a perversion
of llinduism and the early forms of apartheid in South Africa as un-Christian. Even as this book goes to press, the
Anglican community will decide whether allowi ng ordination of gay priests may be inconsistent with the pious reading of
the scriptures and Islamic juristic communities will continue to debate the Shllri'a-bascd Im~mli~sibility of the violent
~Iobalization of JatwtlS proclaimed by ~ma bm Laden and his peers. 1 Progressivc/r:1tdical hermeneutics of rellgton
provides a rich resource for understanding the histories and the fUture of human rights.

~"'" u . for ClCample, the IIltcl"CSt1ng analysis by C~rlcs Kortman (2003). See also, JlCndr.tl Sax. (2005).
II I

).I H.LA Hart (1961). )3 Lao Fuller (1999). • l6 john lUwls (1971. 1999). 37 jurgen I Iabermas (1996). J8 See, for a rw::m sUlcment, ~ndy Brown
~nd J:mel Halley (2002). 19 The htenwrc 15 vast. I refer here, iIIustntivdy. to the eorpus of ju(hth Butler. Allison jaggc:r, Annene B~n:r, Nancy
Fraser. Catherine MacKinnon, Manha MlIlIIQW, Martha NUSSh<lUOI, Wendy Brown, Carol Gilligan, Claudia Card, Mary jo Frog, Susan
Moller Olon, Druciib Cornell, Gay:lIn Chaknvorty Spivak. DI~nne Ikll. Chanul MoufTe, Ins M. Young, j.K. Gibsoll-Graham, Sylvia
Iknhablb, IbJCSWlI,TI Sunder lUJan, and S ... ,\aa Susen in Chapters 5 and 6. However. IlIllISt draw altenuon to twO rcluubble anthologies
concerning. respectively, the domalt'ls of Justice and care (Virgima I lekl. 1995) and fenlllll5t ePlstelllOlogy (loUise. M. Antony and Charlotte E.

Witl. 20(2). Iltlary Charlcswonh, Anne Orford. Su~n M .. ru, Ruth Buchanan,jane ~Isey, M .. rle Dcmbouf. and Sundhya PlIhuJa pf'OV1de

InSightful Cnttque~ ofpatnarch), at work III the 'new' It'Item .. tional bw and oontemponry human nghU:,

(b) Human Rig/ItS as Grllmrnar of Govmumct

Pnctices of governance ambivalendy sustam the network of meanings ~mcd 'human rights'. 'Governance', as we all know

(from earl Schmitt -~. ' ,

. . nJamm, Michel Foucault, George Deleuze, Felix Guturi, Anto- 010 Nearl and f G" , tr , • now, 0

course 10rg1O Agamben), is just one word but COnStitutes ma r: r ' " nya lorm 0 govenllnentahty and subjection

GOvernance emerges si I 1 ' ' mu talleoUS y as a complex site of human rights affirmative .. 41 ~obc"o M. UnS\'r (1983).

Pnctices of governance ambivalendy sustam the network of meanings ~mcd 'human rights'. 'Governance', as we all know

(from earl Schmitt -~. ' ,

. . nJamm, Michel Foucault, George Deleuze, Felix Guturi, Anto- 010 Nearl and f G" , tr , • now, 0

course 10rg1O Agamben), is just one word but COnStitutes ma r: r ' " nya lorm 0 govenllnentahty and subjection

GOvernance emerges si I 1 ' ' mu talleoUS y as a complex site of human rights affirmative .. 41 ~obc"o M. UnS\'r (1983).

4l Emmanuel Levm.as (1969) 87, 4) jurgc-n I bbcmJ.as (1966) 308.

john Rawls (1993) 41.
14 The future of Human Rights

the performances of reading human nature, no longer a sacred text. Secular Ilatllnl law thus derives ethical impentives
from the givens of human nature and condition. Thus, for example, H.LA I lart famously derived his 'minimum natunllaw'
nghts from certain Ilon-comingt:nt facts abom being hUI112n: all human beings are equal because all are coequally
morUiI and vulnenble to palll, hurt, and physical hann, and because all of u:. remain coequally deficient in our capacity to
order social cooperation according to the best dictates of human reason.J.4 Lon Fuller constructed the logics and languages
of human rights through contnsting, but still coalescing, monlity of duty and aspiration.):' John Rawls derives human
rights as ethical imperatives, informing the basic structure of a liberal well- ordered society that respects fully both liberty
J7
and equality.36 Jurgen Haberrnas derives the logics of human rights from discourse ethics. Man<ian and post-Marxian
J8
derive ethical imperatives of human rights (rolll a critique oflhe bourgeois fonlls ofhurnan rights. Feminist theories
critique palriard12llineages of human rights values, norms, and standards guided by visions of post_patriarchal human
society and civilizati.on.39 Critical r2ce theory impugns racism in constructions of human rights. Ecofeminism and deep
ecology critique otTers ever-new bases for re- conttptualizing hlllnall rights as ethical impentives. The move, 111 the
language's of Mantia Nussbaum and Amartya Sen, from hunan rights languages into those of human

apabilitieslflourishings offers further tm- /,Qmusmttlf dt rkht1. The ethic of human rights insists. in the contempor2ry idiom of

reflex- ivity, that bearers of human rights critically evaluate their own interests by recourse to an ensemble of values. It
emerges as a tradition of critklll morll/iry
An Age of Human Rights? 15

by which the post'rjlJC momliry of practices and conduct of states, commu- nities, and individuals (and, indeed, human
rights and soc~1 movementS) open themselves to a continual process of de-lre-lvaluation. The COft ethical values (such as

hunan dlgl11ty. IIItegnty and well-being) furmsh a platfo nn Crom which the dominant human rights ~radlg01S
(knowledge; po ..... -cr fO~lati.ons) sa~d c~nsantly IIHerrogated, even though with pro- found amblguuy and histOriC

cross-purposes. The project of human rights remains, III lIS deepest sen~. heretical. possessed of the chanstrulric prow- ess

to interrogate all received social, historical. and polmcal truths. It remains radical !tlthe sense of being 'context-smaslung' ,40
in Its propensity to cOll.5cirute forever new, and even unirnagmed prior, contexts.
At least one core value seems to command conscnsus. Respect toward the ~th~r as c~qual hllm~n is the groundwork of an
ethic of human rights, furnlshmg universally val id norlnS for human conduct and the basic struc- ture. of a j ust society.
Th~t respect, as Emmanuel Levinas memorably remll1dsu s, docs nOt conSist of the 'imperialism of the same,.·1 Rather, it
consists III the full recognition of human rights as a 'sole source of solidarity among strangers', conceding 'one another the
right to remlljll strangers',·2 In. this perspecti~, 'h u~nan rights' emerge as an encyclopedia of mul- titudmous monVethlcal
diSCOUrses furnishing standards of critical moral- Ity for t.he evaluation of all existing sates of governan~resistance
affairs. Inercaslllgl~, th~orizingjustice entails the addmsal of issues of recognition and rechstnbutl~n ~~d the basic structure of a
gIVen .society to the socle~ of s,ta~s In hlstonally evolving circlIlUstancc$ of gjobality.·3 'Hu- man nghts dlSCOUfSCS
forever arT)' the burden of a transfonnative vision of the wor!d, which demands dIal the state (and the community of state
and s~te-hke global institutions) incrementally \)('come ethial, gover- nanc~ Just, and power (in all its hidden habitats)
accountable.
16 The Future of Human Riglns

practices of politics and as a reg;ster of material political l~bours thaI forever produce fonns of human rightlcssness. The
normative human TIghts languages and logics offer conceptions of 'good' goveOlancc thou seek to assure ~rall human
rights integrity of statt: apparatuses and conduct: ;,at a meta-level, these languages, and logics address the problem
oflcgllunacy of the ~r to rule. Co-natiollals :I.nd non-nationals thus rem:1.I1l entitled [0 languages that enable exposure of
iegitioution deficit and ~n gover- nance illegitimacy as a whole. The tasks rem.ain infinitely comphcated by, especially, the
'thin' and 'thick' constructions of human rigiu,s. .
'Thin' constructions accentuate human rights procedurnhsl notions. These. once put in place, valorize human rights-
~ponsive gover~ance structures, such as periodic 'free "and fair' elections, forms of separatIon of powers, autonomous
judiciary, and legal professions. These forms do not risk any specific content. 'Free and fair' elections do nO.t legislate any
ethIcal choice between the 'first past the poll' or proportIonal representation constituting human rights-oriented
 govcrnance. The doct.rines of'sep~ra tion of powers' remain human rights-neutral conccmlng the chOIces between
constitutional monarchy and republican forms of governance, or the PresIdential versus Cabinet fonus. The structuration
of autonomous adjudication remains unguided by specific human rights considerations: there IS, 011 'thin' conlXptlonS, no
way of saying whether hfe tenures or determmate superannuating terms for apex justices. or specific modes of elevation of
citizens into justices (through executive appointment.ju- dlcia! commissions, or even Judicial election by public vote)
rcmam the more human rights-friendly. Nor do preferred conceptions of judicial due process-based IIlvigilation of power
guide us to any sure choice concerning the legitimation and direction of judicial activism. The 'thin' conceptions of , good
govc.mance', in all these and related dimel15ions, at best, prOVIde a description of necessary, but not sufficient,

conditions of the rights integrity structures of governance. . In contrast, 'thick' conceptions prescribe a substantive measure

of fidel- ity to internationally legislated human rights values, norms, and standards. Ilowever, given the extraordinary
proliferation of'hard' and 'soft' versions of human rightS, even the 'thick' conceptions have to choose among human rightS
sundards and norms that all national and s~lpranat~onal constitutionalism ought to incorporate in order to secure
IIltcnlauonal legitimacy. John Ihwls. Jurgcn Ilabermas, 80uaventura de Sousa Santos. usa Shivjl, for example, provide
different versions of minimal. human nghts sundards that may impart govemance legitimation or defiCit, as the case may
be. TIlelr human rights mmima necessarily reconfi~:es .the extant regimes of mternational human rightS in different,
and dIstinctive,

M Age of HurtWl RightS? 17

ways. They straddle rather uneasily the d«p divide between civil and pOlitical human rightS and social, economiC, and
cultural human nghts. I revisit this theme briefly agalll in Chapter 5.
All said and done, however, theory and practice of human nghts assume that both the 'thin' and 'thIck' conceptions
somdtoul prOVIde a corpus of constraints on public declsion~making power and tht: lan~ of trans- parency in public
chOIce. No g!obal South readers of the present work needs any reminder concerning the brittle and fungible nature of
these conceptions. They know full wdl the dire and brute face of power that through the langua~ of'real' or 'fake' threats
to public order and nationai security, culminates in extraordinary subversion ofhulllan nghts. They also know well, and at
great human and social COSt, the ways in which an arrogant executive power seeks to justify the suspension of even the

'thin' conceptions of human rights-oriented governance structures and pcoco . sscs m a libello~ rhetorical pursuit of social

and economic human rights. Even as human nghts values, norms~ and sundards provide ObStacles to free play of power,
these, at the same tlllle, prOVide limitless opportunities for i[1 Eutrywl,m (in the global North as well as the global South),
as we lea~l /III 01-'0" again ~rom G~orgio Agarnben, the sovereign power constantly ncgoll.ates the nnperat~~ of the
rule of law with thc reign of tcrror.~ at Iea.M from the standpomt of th~ violated. Both the 'thin' and the 'thick'
conceptions of human rights-orlentcd governance founder at the interscc_ non of the overall structuring of organized
political hfe and the everyday- nnsof SUte condu~ There is 110 assurance that rig!Its-lntcgrity governance structUT"CS,

nomutlvcly blueprinted by the languages of human rightS rna ~ywhere fully tra~late into prospects of lived

huma.n rights fo~ ali. OWcver, human nghts standa.rds and nonns continue amidst aU this to provide be hm 1.5 by h- h fi

" be n~ 3r w IC onns of barbaric governance, at least, may

severely Judged. This is, I suggest, no small gain.
 ({) Hllman Righ15 /JS LAtlguages of Global GOllmlatlct Conceptiol15 of'~ , . 'fy 1._ 6""'"' governance SlgEli a conceptual

minefield if only uccause the 'top-do • d - vary fj WI1 an grass roots notions ofits constitutive clements lot p~ oundly. ~en

entatlonal and regIOnal financial institlltions the G8 and

tI,·,-· "so.,.d
authored by, and anchored in, the practices of n

onnaUve I' I ' • . ... '.... ' " servt'\ tI ~ I~ academ IC cohorts, global 'good governance' increasingly itna~ry, Ie Illlpcrat!ves
of contemporary economic globalization. On this ,as we see III Chapter 8, human rights ofindividual human beings

~ tsS-94S«.' N1CQS Poubmul (1978): CIOrgJO Apmlx:n (1998); Upcndn R:oo (1993)
18 The Furore of Human RIghts

s«m to be ~t served by according an overweening respect to the needs, interests, and desires of transnational corpor.uions
and the 'communities' of direct foreign investors. The grass roots conceptions of good governanCe remain difficult to
warner; yet it may confidentially be said that various social movements and human rightscommullities pursue a 'thick'
conCep- tion of human rights and, indeed, go bc::yond the languages of human rights. Increasingly, movements and
communities subsume notions of human rights under a wider rubric of justice. We partially explore thLS theme later in
this work.
Activists both cohabit and critique articulations of 'good governance' offered by the internarional fin:.mcial institutions
even in their midlife crises, as also the mJatlt lmiblt such as the World Trade Organization (WfO), the North American
Free Trade Organization (NAFTA), Asia Pacific Economic Cooperation (APEC), Association of South East Asian Nations
(ASEAN), and the nascent Free Trade Association for the Americas. In addition, this critique also highlights the problem
of'demo- cratic deficit' within the paradigm of supranational governance furnished by the European Union.-45
Juxtaposing the hegemonic con«ptions of'gocJd governance' with the actiVist cntique IIlvites Marx-like labours of
understanding, :md demystificallon, of the complexity of global capitalism. I now raise ques- tions (some of which I attend
to in this work) that n«d critical response. First, how may wt: best narrate the stories concerning the originary/inall- gural
global good governance? Are instrumentalist accounts that accel.l1~ ate a single-minded hegemonic narrative accurate?
S~o/ld, are actiVist community hernleneutics justified in reading/trading transformations in language and rhetoric of glolnl
'good governance' in monotonic, rather than pluralistic, modes? Third, how may wt: understand the seismic shifts in
languages of glolnl good governance signified by large-scale narratives of '\Vcstcrnization', 'modernization',
'dcvelopmem', and 'globalization', variously embodied now, for example, in the rurgid prose of the Worl~ Bank, mar1cing
the rhetorical passage from structural adjusunem condi- tionalities to 'poverty reduction strategics'? Nimh, how do these
literary transformations actually address the formidable reproduction of human righdessness? Pifill , put another way,
what actual, real-life gains ari~ for these peoples by the shifts in the languages of good governance-global, supranational.
regIOnal, as wt:1l as the locaVglocal? Six/II, arc we justified in acts of reading that reduce human rights standards and
norms wholly

IIlslghtful amlY'ls by Pt-tcr l.cuprccht (1998), Andrew Willwns (2004), and the contnbuUOlU" In Philhp AlslOn (1999).
45 See the
An Age of Human Rights? 19

as final products of the diverse orde~disorders of diplomatic and intcr- ru-tional civil service desire within the evcr-
exp.mding United Nations system, in the service of a whole variety of foreign policy. and global corporate uscs and
abuses, under the cover of 'international' consensus? Stvtfllh, and if so, how nlay we fully understand the amazing aspect
of the resilient autonomy of human riglm nonnativity that interrogates from time to time such acts of expropriation of
human rights in the pursuit of severely self-regarding national or fCgional interests? Eigll/h. how may wt: fully understand
human rights in the formation of shared sovereignty? N inth, how far may one regard mutations in deployment of human
rights- oriented languages of good governance to activist contributions? In other words, how may we trace the itiner.tries
of partnership between 'global civil society>-46 and international agencies that reshape conceptions of 'good governance'?
Tmth, and related to the foregoing, what approaches to the Othtr of Good Governance, namely Good Resistance, thus
emergc?47

(d) Hllmall Rights as ittsllm'(tiollary Praxis

Through myriad struggles and movements throughout the world 'human rights' has bc::come an afCna of transforrnative
political pr.tctice that dl$Orients, destabilizes, and. at times. even helps destroy deeply unjust concentrations of political,
social, economic. and technologtcal power. T he transfonnation from the 'modern' to the 'contemporary' human rights
paradigm (that I describe in Chapter 2) remains inconceivable Outside movements for dccolonization and sdf-detcnni
nation. Likewise, the move- ment of'contemporary' human rights must take account of the struggles for the elimination of
apartheid, and movements directed to realization of 'women's rights as human rights'. the hurrun right to difference (right
to sexuaJ orientation and conduct), and the integrity of environment.

: See U~ndr.l. &,g (1996b) for an am.Iysis of thiS dlscu~we enoty; do For cx;unple, the evtr-mcreasmgoompkx hnbgt$ ~tv."ten
devdopment:lid and nor country conditionalities pmem one site ofintcrsecnon between 'hu(ll;In nghts' communities and me codes of globOIl

governancc. Were the Northern donOR nO( to m~lst on -nd I , I h gil .. ~ cr equa lIy, It IS e t. t cy would remam forever IIlnocem of human ~ t.\

asplr.l.nono:r achlcvcment. T"he $:Ime nuy be $:lId concerning 'democratic' u,ttuQ" "5, internationally supervised, the groundwork (as it wcre)

for political n:forma- 1 1l1 tleaided nat M S h c~ d ",' I Ions. .lIly out -o;ose IIItcrnaUonaJ NGOs work ildrnirably, and ces'y,topro ....... ~'h h ' d '"

d ckvt:1 '''''''- Uillilll rig t'l con mona mes 10 :U and lrade pohclCs of Ihe de I.lped nations. In 5ttJung 10 COIUtr.1I1I the governance pnct)CeS of the

recently mued 'nation 'hcte fl 1"1 P r.ad -Mate, t oml;aUOl1S also remam open [Q SUb)CCt1Of1 10 the emerg_ ........ ,: Ii I~ of 'global governance'. no

rmttC"r how bemgnly presented ~ human " 6" • nC'Klly.

20 The Future of Iluman Rights
Iluman rights as insurrectionary praxes provide diverse maps of the Illegality of the dominant (to paraphra~ a term of Michel
Foucault) and also of the llIass Illegalities of the subaltern peoples. The violence of the oppressro provides. as llIuch as the
violence of the dommant. a matrix for the emergence of human rights norms and sundards. 48 Even when the labels 'opprcssed' and
'oppressors' remain problematic in erudite dl~· course, and when one thinks of violence by the oppressed as human, and human
rights. Violative, the issue of the jurisgcner.uive 4? potential of violence directed to achieve better futures of human rightS may be
ignored at eonsidenble peril.
Prescinding this, the perplexities here ~ in deciphering the upward and downward linkages between mass movements for
transfonnatiol1 and their representation by an incredible variety of non· governmental organi. zations (NGOs) in dose interaction
with m.tional. regional, and interna- tional power-fomlations. The NGOs, who so pre-eminentiy lead these movements, vary in
their levels of'massification'. This variation also marks the richness or poverty, as the case may be, in terms of their potential to
articulate the vOices of the violated and authenticating tilelr visions of a just world. As such, they do not yet. fortunately, exhaust
the emancipatory potential. At the same tillle, these movemcntS pluralize meanings of human rights far beyond doctrinal
disputations concerning 'relativism' and 'ulllversaltty' that. at the end of the day, subscrvc:: the g1obal-lllterests. in-the·malang.
(e) Human Rigllts as juritii(al ProduClioll
Not all, even the most prc-eminent international lawyers, carry In and through their hfework this incredible range of human
rights meanings or significatory practices. But those who devote their singular talents to systematizing human rights law and
practice or to sculpt alternate SlnlC· tures (like the International Criminal Court) do create systems of mean· ings for human rights,
almost coequally available for the ends of governance and insurrection.
The dogmatic tradition of scholarly human rights discourse ispnlde7JIial in the bcsl--even Thomist, as well as Dcwyanso-
senses of the terlll, stressing the evolutionary chanctcr in the emerging law of human righ~.
411 I h)ve ~Iopcd tlllS theme elsewhere: see Upendn. BlXI (1987). 49 I mvokr here Robe" Covt-r', (1987) disuOCllOll belW«n '.Ium.8Cller~lIve·

and JunspathlC' violence Sec abo

Cluptcr 2. 50 See ll.K:hlrd Rony (1999) for pngmatK: notions of prude-nee as devdopcd by John
D<wy.
An Agt: of Human Rights? 21
that somehoW entails convergence of $Ute practice around specific norms and sund:lTds. In contrast, the cnneal, even radical,
scholarly human nghts practices tend to view human rights emergences in terms of brew, disconti nUIties, and fissure~ in the
canonical narratlvcsofstate sovereignty and legltllnacy. They perceive International rel.ations and organiutions as haVing a
dialectical reJal10n betw~n ~r and resistance at the level of ~ncy and structure. Put another way. this scholarly genre focuses
upon the critical practices of non· 'sovereign' but still self-detemlln.atlvc peoples m the development ofimernatiorullaw, gene~lly,
and IIltern.anonai human rights law, in panicular. 51 Both types oftheoretlcal practices have a bearing on theorizing repression but
critical practice takes this as an explicit ob· Jectivc:. Howcver, theorizing repression requires, besides the authemic cry of deep
human anguish. some considerable labours of ertldite understand- IIlg of w:lYS of power and governance, which remains the
focus of the dogmatic approach with all its 'technical' constructions ofimman rights. To be sure, a state·scnsitivc: dogmatic
approach remains liable to servicing the ends of power and governance. But it also brings to view the patholo· glcs of realpolitik in
rich detail. This is useflll---even imporunt-becausc the devil often lies in the detail!
fj) Hllmatl Rigllts as 'Cull/lre'
In '!'is discoll~, rivcn with contesution on 'ulllvc:rsahty' and 'particular- 15m, human n ghts are conceivro as cultural systems. Every
socieul culture contams beliefs, sentiments, symbols that imp:ut sense to the notion of brmg human. no matUr in how many
different reg"lsters of inclusivity. Every SOCietal culture, similarly, has traditions of understanding concern. Ing what nghts a
human being ought to have. No culture, then, is devoid of nottons about human rights, even when what constitutes these rights
nnes within the same culmTe in time and place and they vary across coffip4rable cuinJre5. Within societal cultures, distinctive

legal cultures give nse to the p' Ct" f" I I h" " d' a ICC 0 ng lts. II t IS sense, perhaps, human TIghts may be escn~! ;l5 'cultural

software'. a 'set of mechanisms of hermeneutic POwer' that mi." . I d " " what . a~, III a constant y ynamlc way, new

understandlllgs of
It means, and ought to mean, to be huma,..

" 52 Sec, Ihlaknshnan RaJagopal (2003).

t"Ultu~IM'ilalklO (1998) 273-85. &11011. of course. dots nOt address human nghts

as the ~v.'C::' I~rc. It enilbks us not only to 'understand but m domg50 helps us prodw.:e mcmbe ~at unckrstlnd' (p. 274). It 'prodw.:es the
hemlC'neuuc power that billds
rs a CUlture tosetl1er' Illd nuke,
'cultural convt'nuons possibk' (p. 278).
22 The Fumre of Ilulnan Rights

These rocicul human rights cultures relate to glolnl cultures of hllman rights. It is trivial to say that they arc shaped by the
global cullu,res and in turn shape them. The peninent question relates to the perceptIon and the reality of tillS mutuality of
detemlination. In an ~ra of ascendancy of the global cultures of human rights, socieul human nghts cuhures.an'cu~ late
relations of both submission and struggle. But cven at ,tillS level sensitivity to the tyTallny afme singular is entiai.
Corrcsp<;>odmg to the many socica.i human rights culturcs. ~iv~rsc global human rights cultures are emerging. The

reb.tions of submission and struggle at all levels arc intensely complex. The cultural software of global human rights

cultures is not, of course, exhausted, though typified, by enunciJ.tions of human rights norms and standards. There is more
to global human rights culture than ca~ be exhausted by the often, indeed all too often, Iifo~ texts of !lUn:un ~gh.ts
instruments. The kiss of life is given by interactions of soh~anty W1~llIn the emerghtg archipelagos of human .rights
activism i~t the Umted NauOI.ts system even when increasingly domlllatcd by sovere~gn sotes and now, III effect.
privatized by meta-sovereign global ~orporatlons. -:he global cul- tures of human rights remain ceaselessly dnven by
the NI.etzschean Will to Power of mynad NCO initiatives. They also at the same ume arc ~ually so driven in the 'post-
Cold War' en by a solitary hegemon, fostenT~g Pax Ameriana. The fallout of this synergy of counter-hegtmol1~cs
IS the constant rewriting of the societaVcultural software of human fights. On this view, then, it would be odd to regard
global human flgltts culture as (to borrow an evoc:uive phrase from Sharon Tn.wtt~ m the context of pn.cticcs of

technosciellce) dIe 'culture of no culture' . . or ~ou~, those who contest the ideal of the universality of human fights
mdlct global human rights culture precisely in these tenns. ~I available evidence, however, points to the reality tlut the
global hunun fights cuhure, far from being a culture of no cultures, is a culrure of many cultures.
V. Discursivity

By 'discursivity', I refer to orders of both e~lldite. and lay. (everyday) practices of the 'rights-talk'. Righ~-talk (or
d.l~urslve practices) OCCllr'i within traditions (discursive formatlon.)S04 Traditions, themselves codes for

5J Sharon Tnw«k (1988). Sol For OQmple, nghu.talk (dlscurslvc practlcc) glVc me 10 dls~;nCt, tven If rdatcd. n:gllntS (dISCUNIVC
formations): the CIVIl and political nghu n:gllllc III IIIltrllauonal law IsdlStlllct from the SOCial, cultural, and economIC nghts rc:gJllIC. The
W3y5 III whICh discursive: formatlOlU occur deltmllne whal shall count as a VIOlatlOl1 ofhulJUlI TIghts

-
An ~ or Human Rights? 23

power and hien.rchy, allocate compctences (who m.ay speak), construct (orolS (how may one speak, what (OntU of
discourse are proper), deter- nlille boundaries (what m.ay not be named or conversed about), and strUcture exclusion
(denial of voice). What I call 'modern' human rights offers powerful eX2mples of the power of the ngllts-talk tradition. In
COlltnst, whal I call 'coO[emporary' human rights discursiVlty iIIuslntes (though nO[ always and everywhere) the power
of the emergent, countervailing subahern discoursc=. When thaI discourse acquires (in moments of nrc solidarity) the
intensity of a discursive insurrection, its managcmeO[ becomes a prime task of human rights diplomacy. Dominant or
hegemonic rights-talk seeks, but never fully achieves, the suppression of subaltern rights-talk.
Human rights discursivity is marked by complexity and contn.diction becwcen (to invoke a Filipino template) the statist
discourse of dIe educated (lIIustrado) and the subversive discourse of the indigenous (I"dio).55 It is this vital distinction
which we need to address in Jurgcn Habcrmas' germinal endeavour to assign to the 'public sphere' the future of human
56
rights; that is, the belief in 'the procedunl core' of delibcntive public politics. To put the point simply (but, hopefully.
accurately) such practices of politics must entail equality of discourse between the lIIustrada and dIe I"dio. This, in mrn,
presupposes that the dominant power- structures arc a/rNdy constnllled (or that they could be so significantly constnllled)
to strive towards equal dignity in discourse between the htcnte and the ilIitcnte. the haves and the have-nots, the
tormelllors and the tormented, those who suffer from the lack of the basic necessities of life and those who suffer but only
from the surfeit of pleasure.
Further, discourse theorists often maintain that discursive pnctice COnstitutes social reality; there arc no violators,
violated, and violations outside discourse. But it ignores or obscures non- discursive or material practlces of power and

resistance. This talk diHmbodia human suffering w- and-now, for future amdiorativolredemptive purposes, whose
status (at

The pmhibulOlI , ' h d __ , . agamst romlre, crue, In uman, et>' .... mg pumshment. or treatment In the CIVIl and political nghu formation also
prohibits nghts-talk.. which equales ~blY.lIIOII or domesllC Violence as a vlolarion Ofhum;1n nghts. The latler arc: oonstICUlcd ;lJ \~IaIw)1I

olily when dlKUl'SlVC boundanes are tl':ll1sgressed. ArllhonY~lwiss (\998) 104. I b1x:rmu' 'post.mebphV<lcal' diSCourse clhies ~t IliS veN

bet ....... '0 ..... ., t ilUUrcsses the future of human Tlghlll III terms of 'nn<t.industrlal .........lelles' Th , " .-- rt'<I.l . ' IS. Wile cruelal for Ihe future of

hun1311 rightS III IIII1Jlrnd<! dlSCUrsiV1: ""illS. points to an equal, but nol separate. need for re.mtagmlllg the fUlure of human ~ for Ihe
l"dill.
JUTgcn Ha1x:nnas (\996) 304-8.
I
I II
By the use of the notion of 'pan.logics', I connate the notions oflDglc and rhetoric. Pandigm.:l.tic logic follows the 'causal'
chain of signification to a 'conclusion' directed by the major and the minor premise. Rhetorical logic does not regard
argument as 'links in the chain' but nther as legs to a chair,58 Wh2t matters in rhetorical logic is the choice of topoi,
littrary conventions that define sites from which the processes of suasion bt"glll. These arc rarely gove:rned by any
pre~given ropoi but, rather, dwell in that which OtIC ,hitlks Ollt oug/1i1O argllt about,S,) Hllman rights logic or paralogics
are all about how one may, or oug/II, to construct 'tedllliquts of ptrsucuioll [aJ] a IIIt'i1llJ of (rttltflll tlWtlmlw.'60

!7 A polm cruelly csubhshed, for enmpk. by the 'prodUCtIVe' technologic, enulled III nunufxture and dlslnhullon of Iandllllnc5 or
weapons and mStruments of mus destruction. 11 would be excessive 10 gy dl~t these arc commuted by dISCUNV~ prxucC$ aud do
not ClOst outside of Ihcst' pracuct'S, The m:uenahty of non-<hscunl\oe prxued. arenas, and fomlauol15 IS rdallvely amononlOW of
dlscou~ throncs.
It IS another nutler that human nghts discurslvc pDCIICC'$ arc abk. al IInll:5. to highlight v!Ctlmagt caused by deploymenl of thc:sc:
lC(:hnologlc:s as hUlllan nbohts Vlobllvt. In50far as It 1.5 possible for lhe WI '-"Otd to be u ld, I)~d Harvey has conic d0$C51 to gymg II:
'DIscourse and language nuy be a \,ul locus of snugg\e. HUI they arc not only or CVCII nc:cess:.anly lhc: most lmpoTtllm pbcn of
struggle:'. llivid I brvcy

(1996) 113.
51 JulIUS Swot (1964) lV. 59 Exprcsstd bnl1untly by Umbc:no &0 Ihus: For cxample, I em argue as foUQW5: 'What others ~ havmg
been Ukcll av,r~y from me is nOl: their propeny: il15 wrong to take from othel'$ wru.115 thelt property: but II IS not wrong 10 ~torc the onginal
order of Propeny, puttlllg back InlO IllY lunds whal was onglll:l11y in my hands'? 'But I C~n also argue: 'RIght:! of propertY arc
t
sancuoned by the xtual posllC!ililon of the thing: If 1 uke from someone wlu IS actually In d1elt pos$C5sion, I comm" an an against
rightS to property ~nd therefor<: Ihefl.' Of course, a third argument is possible. namely: 'All property IS per se theft: uk.mg propeny
from propcrty-()wlleN means r<:slormg equlhbnU ll1 violated by ongm~1 theft, and ther<:forc ulongfrom the propc:rutd thc fnnu of
the" theft I~ not JUst a right but a duty', Umbc-no Eco (1995) 104 (emphasIS 2dded). toO Umbc-no Eco (1995) 105. I bolTO"N Eco's
phrase: explaining the u sk of thew"'
The human .rights wt-IIW that enacts and enhances these techniques of s~ion IS multlf,mous, contingent, and continually
fragmcnted. That we- ",-JS i!> both an arufact of power as wel.1 as of resistlnce. Iluman rights d,SCOllrst' relTl2nlS, In order
to be such, rrtthOOy J'l2ffWII. It cannot exist or endure outs~de .t~e ''''Cbs of Impassioned commitment and networks of
CI'tltiltlli"l soltdanllt1, whether 011 behalf, or at the behest. of dominant or sutul~m ~Ia.s.scs. ao.'h claim the ownership of a

trmuformotillf vision of po/itia, cf Q/ltlflptltlOlI of posslblt' hW1U1II jillllm. The hi.<aonc significan~ of 'human rights' (no matter

w~at we pc~onn with this potter's clay) lies 111 the denial of adminIStered regllnes of disarticulation even when thiS I rfi . f

' amounts on y to the pe oration 0 the escutcheon of dispersed sovereignly of state powe'"

VII. Future(s) of Human Rights

VII. Future(s) of Human Rights

A sense of unease haunts my heavy invocation ofth, not" fie f . Ion 0 t Ie IUture o human nghts. In a sense, this future is
 already th, -'I ofh " h . ' y_ uman ng ts :r' manner, andc.lrculilstance. ln a sense, what may constitute the future :::ry of

human nghts depends on how imaginatively one defines both m co.ry and movement, the challenges posed by the
processes of giobal- I~on. athlrea~y we are urged to appreciue the 'need to relocate' human n~"b III c current processes f I ,"

F __ , d d' 0 c lange. rom tins vll'U1tV\int what -.uS lIlan ate IS the verv od f " -"" r- , trjIeci Pr . "I. me a smull/rut adJlmmrnl of

IIlImatl righls n.therlll~~ak :;:=ts ?f r~c~mg moral languages of human rights appear not to th fi ur globahzmg' human
condition m W2YS that these did a Gandh~, orerunncrs and founders of human nghts: from a Grotius to
A sense of unease haunts my heavy invocation ofth, not" fie f . Ion 0 t Ie IUture o human nghts. In a sense, this future is

already th, -'I ofh " h . ' y_ uman ng ts :r' manner, andc.lrculilstance. ln a sense, what may constitute the future :::ry of

human nghts depends on how imaginatively one defines both m co.ry and movement, the challenges posed by the
processes of giobal- I~on. athlrea~y we are urged to appreciue the 'need to relocate' human n~"b III c current processes f I ,"

F __ , d d' 0 c lange. rom tins vll'U1tV\int what -.uS lIlan ate IS the verv od f " -"" r- , trjIeci Pr . "I. me a smull/rut adJlmmrnl of

IIlImatl righls n.therlll~~ak :;:=ts ?f r~c~mg moral languages of human rights appear not to th fi ur globahzmg' human
condition m W2YS that these did a Gandh~, orerunncrs and founders of human nghts: from a Grotius to

A eonU':isting visi ' rights futur"" on I' stresses rooted Utopianism'. It construCts human .. .. as ental Ing non-t h . f totes If

tech . . « nocratlc W2YS 0 Imagmg human fu- . nocrane Imamng toke r. d ' h " forms md stru D' s or gra.nte t e persistence of

political non~teehnocra~~rcs, .at le~t short of collapse through catastrophe', the citizen-n'"I~,. ,W2ys denve

sustenance from the exemplarv lives of the y D' illS at work ·d ' h "' by either deli, al~u st us w 0 embody a refusal to be bound

. renee or aeqUlcscen . . , Joy in communi . . ce to stltlsm and 'relate fulfillment [0 10 ry, !lot matenalist acquisition'. 62 IS work

straddle . bt-tween the glob r ~ llllCCrt2l1lly the Illany worlds of human rights the Vision of to a IUUon (doomsday)

possibility of human future and u plan transformation animated by the exempb.ry lives of

" UN Conllll ~ Richn 'SSlOn on Iluntan Righu (1997) d Falk (1995) 101-3. .
24 The Future of Hmmm Rights

least from the sUlldpoint of lh~ that sufTer) is vrry oosmrt, j,ulmJ 10 a poilll of (mdry of IlftOry. The non-discursive order
S7
of reality. the materiahty of human viobtion 15 just important, if not more so, from the sundpoint of the viobtcd.

VI. Logics and Paralogics of Human Rights

III gentnl.

An Age of Human Right:!? 25

The human .rights wt-IIW that enacts and enhances these techniques of s~ion IS multlf,mous, contingent, and continually
fragmcnted. That we- ",-JS i!> both an arufact of power as wel.1 as of resistlnce. Iluman rights d,SCOllrst' relTl2nlS, In order
to be such, rrtthOOy J'l2ffWII. It cannot exist or endure outs~de .t~e ''''Cbs of Impassioned commitment and networks of
CI'tltiltlli"l soltdanllt1, whether 011 behalf, or at the behest. of dominant or sutul~m ~Ia.s.scs. ao.'h claim the ownership of a

trmuformotillf vision of po/itia, cf Q/ltlflptltlOlI of posslblt' hW1U1II jillllm. The hi.<aonc significan~ of 'human rights' (no matter

w~at we pc~onn with this potter's clay) lies 111 the denial of adminIStered regllnes of disarticulation even when thiS I rfi . f

' amounts on y to the pe oration 0 the escutcheon of dispersed sovereignly of state powe'"

I\\
26 The Future of Human Rights
6Jl>rofessor P.tlk mentIOns Mother TelT~ BLshop Desmond 11,1Iu. Paulo FreLre. I..cch Woilesa Kim Dat Jung, and Pctnl Kcll)\ UUI
alollgo;idc: these: charismalie figures there are '(~untlcss other women and men \O,'C will never k.now'. Ikhind every legendary human
TightS life lie the lives of hundreds of human beings. tiO less exempbry. The a sk of IlLstOrtography of humall righlS IS to roll back the
order.. or atmonYTllLutton. Thts ask geu comphcated In some troubiesollle ways by many a media.poroul UN-accrcdlled and sdf-
cerufied NOOs who obscure from VLew the unJu~ moral heroism embldu:d In ev.:ry<by exemplary lives.
64 See also the
prefx:e 10 the first edlliOn VI-IX.. 6$ Kohen Cover (1987). 66 See. for example. Thomas !.qUinn (1989).
An Age of Ilum.m Rights? 27

IX. An Age of Radical Evil as well as an ~~ ~ Age of Human Rights rrom this Stand . .. . Ag.:- of Hum p?

lnt, I~ IS wurth TC'QUmg. over and over again, that the This Ka . an ~ghts IS also, at the same time. the Agr of Radical Evil.

ntlan notion 1...- • . • I ~" ~ I ·1 uc;ars reIteration m I:mnah Arendt's C'nundation of • ...... CVI 3S a ·st II . bunun be' ructura e ement III

the realm of human affairs' in which 10 Punish I~ a~ 'unable to forgive what they cannot punish and ... unable at las turned

OUl to be unforgivable'.7lI 'All we know' sh '" . . .... '" aUtlce Gbsman (1996). ~, for elQnlpl Ani . __ OJ 6 ~d 7. 1:, IUt

KklOlIlal1, a/ld J~n Kkmnun (1997) 25. See also 111 S~hen Gill (2003 ~ IlannahAtc ); Jane Kelsey (1999. 1995). See aho Chaplets 8

and 9.

IX. An Age of Radical Evil as well as an ~~ ~ Age of Human Rights rrom this Stand . .. . Ag.:- of Hum p?
 lnt, I~ IS wurth TC'QUmg. over and over again, that the This Ka . an ~ghts IS also, at the same time. the Agr of Radical Evil.

ntlan notion 1...- • . • I ~" ~ I ·1 uc;ars reIteration m I:mnah Arendt's C'nundation of • ...... CVI 3S a ·st II . bunun be' ructura e ement III

the realm of human affairs' in which 10 Punish I~ a~ 'unable to forgive what they cannot punish and ... unable at las turned

OUl to be unforgivable'.7lI 'All we know' sh '" . . .... '" aUtlce Gbsman (1996). ~, for elQnlpl Ani . __ OJ 6 ~d 7. 1:, IUt

KklOlIlal1, a/ld J~n Kkmnun (1997) 25. See also 111 S~hen Gill (2003 ~ IlannahAtc ); Jane Kelsey (1999. 1995). See aho Chaplets 8

and 9.

IX. An Age of Radical Evil as well as an ~~ ~ Age of Human Rights rrom this Stand . .. . Ag.:- of Hum p?

lnt, I~ IS wurth TC'QUmg. over and over again, that the This Ka . an ~ghts IS also, at the same time. the Agr of Radical Evil.

ntlan notion 1...- • . • I ~" ~ I ·1 uc;ars reIteration m I:mnah Arendt's C'nundation of • ...... CVI 3S a ·st II . bunun be' ructura e ement III

the realm of human affairs' in which 10 Punish I~ a~ 'unable to forgive what they cannot punish and ... unable at las turned

OUl to be unforgivable'.7lI 'All we know' sh '" . . .... '" aUtlce Gbsman (1996). ~, for elQnlpl Ani . __ OJ 6 ~d 7. 1:, IUt

KklOlIlal1, a/ld J~n Kkmnun (1997) 25. See also 111 S~hen Gill (2003 ~ IlannahAtc ); Jane Kelsey (1999. 1995). See aho Chaplets 8

and 9.
ndl (1958) 24; Carlos Sanllago Nmo (1996);J~n Copjcc (1996).
ndl (1958) 24; Carlos Sanllago Nmo (1996);J~n Copjcc (1996).
61
countless ClUzcn_pilgrims. Yet. it su~sts that human rights, as Ian. gua~s of power and of insurrection, have not
onc but many futures.

VlII. Suffering

Save when expc<hent, the statist human rights discourse in its enunciations of human rights does not rdate to languagcos
of human pain and social suffering. In contraSt. peoples suuggles against regimes of politics of cruelty stand roo«:d in the
direct experience of. pain al~d suffering.64
Even so, human rights languages problem2tlze notions of suffering. Suffering is ubiquitous to the point of being natural.
Pain and suffC'rmg arC' egregious; som~ forms of suffering a~~ cOllSid.ered 'n.ecessary'. and ~1llC' 'unn«C'ssary'.
Different cultural tradmons weigh SOCIal suffermg as JUS· tified' or 'unjustified', making the definition of suffering
difficult. Indeed. one way to measure the social effect of human rights. is to index th~ new fon115 ofjustifiablC' suffering
it invents. Gender equahty makes patriarchs suffer everywhere. The overthrow of apartheid in the U nited ~tates has made
many 2 white supremacist suffer. Prison guards and officl2ls. suffer when their custodial sovcreignty is assailed by prison
reform favourmg the rights of the inmates. People in high places suffer when movementS. against corruption achieve a
modicum of success 2nd we all get en1311 from Chilean groups that urge us to think of the suffering im~sed on
I)il~ochel by the extradition proceedings. And, as we all know, ~Ih.tant practices of thC' right to sdC-detennination by
insurgent groups clamung autonomous statehood and communitarian identity of~n enDil incredible hum2n and social
suffering. . . Human suffering oriC'nted toWards, and caused by, human nghts !lnple· menDtion is both creative and
destructive of human potential. It IS jurisgconerative in a constitutive sense 65 bC'in~ a for~ of impositi~n of sttular
social suffering. It is destructive of suffenng legltlmated by rehglOus tr:aditions through a cosmology.66 In a sense, human
rights discursivity
)egiomatcs only for:ms ,of impos,itiol.l of secubr suffering. Howevcr, even this imponant distinction rcmams
Inherently unsable bcOlUSC it sunds nurkcd by m.any a boundary between necessary/unnecessary suffermg. 67 not alW2YS
68
fully sensitive to the problematic of culturaVprofesslon .. 1 appro- priation of hum.an suffcnng.

Crucial for prescnt pu~ is the f~t that ~ hUlmn nghts instru- mcms. r~mcs, and dlscurslvity cnOlict distinctive
hlCrarcille5 oflcgitimatcd pain and suffering. Statist human nghts regul1cs scek to legitimate capital punishment (despite
the nomlativity of progressive elimirution); provide for suspension of human rights in situations of 'emergency'
(howsoever nwnccd); promote obstinate division between the e::xercise of civil and political rights on Ihe:: one hand, and
that of social, economic, and cultural rights on the other. Similarly, some global human rights policing. via the e'mergcnt
~t-Cold ~ar regimes of 'sanctions', and overt military inter- wn~on causlllg maSSIVe, flagrant, and ongoing violations, is
sought to be Justlficd III the name of making human rights secure::. Even non-statist (and alMt sight 'pr~essivc') human
rights discursivity justifies imposition of hunun sufferlllg In the name of self-dctennination, 'liberation', autonom)l and
Kle::nuty movements. Further, contemporary proces~ of globalilatio~ C'..act a new dramalUrgy ofjuSfifiabf~ human

suffering III WoI)'S that re::nder human rightS langua~s IrrelC'Vam 10 thC' emC'rgent new thC'Ologics of free trade and

mvcsmu~nt.69 llJC"visions of the future of human rightS depend on our po\\-er not ~ fUme a~ order of ~I but in our
ability to articulate a normative 0( b concC'mmg the ethIcal unjuSfyUlbliry of ecruin fonns and formations
umao suffcnng that the ~mc of evil incamates.

IX. An Age of Radical Evil as well as an ~~ ~ Age of Human Rights rrom this Stand . .. . Ag.:- of Hum p?

lnt, I~ IS wurth TC'QUmg. over and over again, that the This Ka . an ~ghts IS also, at the same time. the Agr of Radical Evil.

ntlan notion 1...- • . • I ~" ~ I ·1 uc;ars reIteration m I:mnah Arendt's C'nundation of • ...... CVI 3S a ·st II . bunun be' ructura e ement III

the realm of human affairs' in which 10 Punish I~ a~ 'unable to forgive what they cannot punish and ... unable at las turned

OUl to be unforgivable'.7lI 'All we know' sh '" . . .... '" aUtlce Gbsman (1996). ~, for elQnlpl Ani . __ OJ 6 ~d 7. 1:, IUt

KklOlIlal1, a/ld J~n Kkmnun (1997) 25. See also 111 S~hen Gill (2003 ~ IlannahAtc ); Jane Kelsey (1999. 1995). See aho Chaplets 8

and 9.
2tI The Futtlrt of Iluman Rights

maintains, 'is that we em neither punish nor forgive such offences and that they, therefore, transcend the realm of human

affairs and the potcntlalllle~ of human power'? ' Arendt wrote in the aftermath of the Holocaust and the inconsistently
heroic moral ways onts rcdrcssal that led to the j,lJ./mtion of the Nuremberg (and Tokyo) principles. These no doubt, paved
the way for addressmg. III some normative modes, the CQlll5trophic practices of politics-natiolul and global since then.
Since then, tOO, practices of radical evil have been UIH- versalized, and stand innovated through many a gulag. The
radical evil that we may neither punish nor forgive has grown apace. But, curiously, (at least, from a 1-iumean standpoint)
the moral ought stands derived from an illlumum is. Put another way. radical evil is the womb that nurtures the embryo
of the 'contemporary' human rights.
The notion of f3dical evil provides, at one and the same tillle. the dynamism for the birth and growth of'contemporary'
human rights as well as intimations of their mortality. tn coping with violations that exceed the possibility of punishment
and forgiveness, situations of radical evil (as we shall Stt shortly) also take us beyond the human rights nOnl1S and sun·
dards they help us establish. Even as sintations of radical evil accelerate nOnllative consensus against such evil, acntal
ways of handling the after- math of t:ldical evil lead us to action that flouts, over and over agaUl, that new-born human
rights-orientated nOnllativity. On this tcmin, the 'IIIOIIU(' (in the sense of violent nonnlessness) of the perpetrator unites with
the aI/emit (in the sense of the powerlessness) of the viobtcd.72
lfwe were to duuk of radical evil in these terms, the future of human rights must indeed, appear very bleak. Radical evil is
imposition of suf· fering beyond redress, remorse, rights, and even recall. Perhaps, dlis IS W~lY it appears unwise to
think about colonization (and its Siamese tWUl, imperialism) as an order of radical evil in the same way that one dunks of
e
it in the contCXI of modem genocidal politics. And, perhaps, the sanl pntdential m ood chancterizes our unwillingness and
inability to name the Cold War as an order of radical evil. There has been no endeavour to establish the pervasive Cold
llCS
War violation of human rights as crll against hl1lnanity, no acknowledgement of responsibility, no conversation about
fOnlls of reparation and restitution. This organized moral amnesIa undermines the very foundations of contemporary
human rightS; human rights cultures may not be robust for the future when based 011

7L Ibid. 12 In order w grasp tins obsc':rv,ltion one Ius only w unbcanbly rcblc on~l( to Ihe cnncal cvcnu of 9111 and the crud
Mghamstan and Iraq arlCmlalhs.

An Af!j:. of Ilurnall Rights? ~ / ,0 COf11pn=hensivcly org:mized politics of oblivion of the horrend~ and
recent human violatJon. The very conceptualization of 'ndlcal evil' may lead us to dunk of its Other b the rouune, everyday
CV11 Wllh WhiCh, and somehow, hunun nghts norms and sundards may wrestle more e£fecuvdy. There are nuny reasons
why wt" may not kave this Issue uncxanuned, at least from the sWldpomt of the suffering of those violated.
The notion of radical evil addresses, at least m the context of the emc:rgcntilltemariOlullaw, the problem of how 10 dC1lI
retroactively with massive VlO.I.a~OIlS ?fhuma.n righ~ ~ the exceptional state or regime. In this sense, It Idenufies radical
evil WIth genocidal practices of power. It focuses juristic and popular energies on the problem then of how best to temper
justice with mercy. truth with reconciliation, the past with the future. But radical evil also flourishes autonomously outside
the multiplex ~~es of ~olonialism, imperialism, and the Cold War, though in some Sltllauons sllll detennined by these.
Necrophilic fonllS of power indwell many a structural site, a fact mercifully (frolll the standpoint of the vio- Iued)
sol11e:vhatcognized in the contempot:lry international human rights law md Jurisprudence thai address:

- CiVil socic:ty-sanctioned, culturally groundcd,lllnnan violations such .. the oppresSion of womer)" ,

~Tbe dhanr~.u~ctioned ca5te sr.;tem, which sull justifies in embodied ng the Vloianons of those born into untouchability;

rm:.. Th; t
ph~t of the forgotten peoples (indigenous communities under must ;; extinction, recalled only as sites of

human genetic diversity that

rescued before they are extinct);

• Th rgh IQuaI Ie pit of millions of women and g1r1-childrcn condemned to s avery through forced trafficking in women' • C .

• militia;onscnprion of children and young persons into state or insurgent

- Pcopleslivingu d d" d n ercon Itlonsan contexts of mass impoverishment.

ihe danger of co '} h" , radical '} ' UNe, ,s t lat I 's kind of dlaspora of the notion of eVJ conCiseat' . notion is called Ii r . e~ ItS

majesty al~d power. But that diaspora of the from the" stand ~I III cont~l11porary human rights engagement, at least riahts
de ..... d _~ 1t of the VIolated. The future of'colltempot:lry' human ... ~11 s, Irom this stand . d I Ubckn;~nding f ' . pamt, a great

ea more on comprehensive IIrophlc po]' . 0 t:ldlcal evIl, both as the practices of conccntt:ltcd cata-
Itlcs and as everyday structural violation.
30 The Future: of I-Iuman RightS
In this sense, the quest for relating the future of human rights to human suffering remains fateful for the fumre of human
rights; human rights I:mguages, being products of intergovernmenul and. NGO politics of desire of necessity
problematize some forms of suffenng over other!>. 111 panicular, m01'21 negotiation of suffering sec~ to redress the
'pa~t' of Olttl'2g':Ous human violation through constructions of a future liberated from systemic propensity for such
violation.
Such constructions entail contradictory happenings. If the vIolated acquire nartati~ voice. the narrative: authority resides
elsewhere. The truths that emerge are not insurgent truths but truths that stand nation- alized; the past is allowed to speak
only to scrve the futll~e. And yet, the:re is no assurance that that future will be rethercd to makmg human nghts secure.
Nor are the violated put in a position of any authority to sculpt that fmure even as they yield to projects of national
reconstruction of their biographies and histories of pervasiv~ huma." suffering, which have: irrevocably extinguished
their life projects 111 the htany of torture, tyranny,
and terror. I refer here to the devices, barely a quarter-Celltllry old--of truth and reconciliation conllnissions.13 These mark a
moral, and human nghts, movement forw.ard. No such devicesemergcd in the wake of decolomzauon. lin this day, no
imperiaVcolonial power has even thou~~ht it poss.,ble to apologizt to the ex-colonial peoples! Nor are any reparations
~en Imtlglll- ablt. VicwW from this perspective, the device-led by the nations of the Third World-<locs mark :a
noteworthy s-ingul:ar moral advance.
At the s:ame time, all this occurs within :a peculiar foml:ati~n of what must be called the political «o,lom)' oj
'contt'mporary' humall nghlS: That formation precludes any detcmlination of complicity and culpability ?f hegemonic
world powcrs that insull. arm, and promo~ (or. ~thelW1sc aid and abet) regimes, which thrive all along on
austrOphlc poi1tlCS of cruelty. And even as truth commissions tend to become the order of the day, ~he moral
negotiation of suffering, thus entailed, remains deeply flawed, 111- apable of :addressing the tjfi£itnl (austS oj lumlan
violatioll.
The processes also remain deeply flawed frolll the perspectives of. the violated. The violated p«>ples emer~ only as
tiC
uaffalt'5 before C01nprOnllS structures ofaccountabiIity, in the shaping of which they are accorded no primary voiu.
Their testimony becomes the raw material for 'national rc~ construction'; their primary suffering and violation becomes '
nationalized
7) Sec Marc Oskl (1997): Harvard Human RIght! Prugnm (1997): pl"1~ilb D. I.hyner (1997>:John Duggar<! (1999) V7: NellJ. Krm:

(1995):JOOllh Shklar (I:::: earlO$ Sanuago Nmo (1996); Martha Mumaw (1998); GwITre:y Robertson (1

An Age of Iluman RightS? 31

aU ~r ~m .74 And without any assurance of :aug men uti on in the huma.Jl righb sensitiVIty of apparatuses and agents of
national and global gover- nance, such mor:al negotiation of suffering th flves on the tthic c{th, vioI4ltd. ~ny a Buddhist

pllliosophcr evoked the Buddhist doctnne of kanma (comp4s.!.ion) for Pol Pot.~s
Contemporary human fights cultures hover between 'retribution ' to the ..,;obtors :md the. displays .of. forgIveness of those
violated, manifesting somehow the e~h,eal supenoTlty of those irreversibly VIolated. Ptrh:aps, or pcrh:apS not quite, the
future of human fights depends on how this monl negotiation of suffering is, III the dcc:ades to come, made more inclusive,
 participatory, and JUSt, from the sundpoint of those violated rather than mal of the perpetrators. In raising these anxious
questions, I do not wish to belittle the small and even si~ificant, steps. ~hlls far ukcn. The praxes of making cata~
strophIC practICes of the politics of cruelty aCCOllnt:able arc akin to the work of agt'S .th:at build the great formations of
coral reefs. Yet, in the absence ofangUished ne:-v forms of reflexive human solidarity, 16 the current WOIl- drr ofhuman
nghts remains fragile.
,. 'S mee memory IS a "ery Imporul1l fxtor m struggle (really; 111 fxt. struggles cIrwdop a kind of COllSClOUS IllOYIng forward of hIStory), If

one controls peoples' ~ one: controls thclr d~IOIsm And olle also .... mro'· .,~., ._ .C kn irdgc of I _ . ~V u ... , _ .•. ~ne nee, u.elr ~::I I l(' prrvM>US
..

stmgglc::s ... : MlChc:l Fououh (1989) 89 at 92. deari ~r admlluslrauon of publIC Ill('mory and fornu of orgamzmg oblivion ~y :rrferred fornu of

govc:mMlCe aud )"egJlll(' styles for marugmg pohricr.1 ,f lit the VlObtcd hm: their 0W11 hutory. whICh should Kk~ly ma~ this ~ < pcJY.'Cr
commgc-m upon moments of colhslOn bc:twcc::n thc 'rnr.rr.lti~ truths
pow.:-r ~rxI. lIlsurgem truth of VlelllfiS', pumng to stress 'the power of powt: to :"-:'; and tonne:nnng fomu of sute power Itsc:lf, ..... hen

'aJlXK)US about :hc: = 1.Ipawm ~~. It IS In the: agony of pov.~r ... .rut the POSSlblhty ofJUSUCC" In~IIs'. (1994) 28 n 32:

Rc:f1ectu)tIs on NamllUve Rights and VlCtmuge', 111 Upc:ndn Baxi " . Similarly In aski P:t h Qlnd,lIon ' _ ng noc- e:1 to expre» pubhe

relllon!! (just before the British I\nd Oorfj PTlXttdmg.'S bcg;m) al massIve and flagr:lIIt ~at1ons ofhunlan nghts ("Ycn ~ha:un Invoked Ihe

higher ethic of the vml~ted. The South Afncan 1hJth and

1& Vee ~ consundy appc:alcd to Ihe e:duc of fOTglvencg .

• the h~: :.. has shown du! the 'lnnct 'NOrld' of the Vlolatc:d 'too m.s history' thai 'RIu ty 1"eS1SUnec to eonfiscallon of lIIe:moty. She aslu: t
kind of hum I .. _ ~\-'IU I an 50 1u,aT1ty can one cstabhsh Wldl people: III thc face of th, ...... on tlat the . I COrnrne:ntl > I re IS an nnpu.'iC to

tnnsform tillS ~ulTe:tlng into a monl COIkctrvcIY~~n ~here a WAy III whICh OurkllCIIII', COntentIOn, thaI pain shared 1liiy be r....

trarufonned to bear WIllies.. to the monl hfe: of the comlllullirv .... UTtec!Cd> 10 m. f .,. IIIDunon the . W t l)otlOI1S 0 creallOtl of monl

coTIIlllunrty lrnIy we State :mel SOCiety in the fx-e of such terror? Vttna Das (1995) 19()..1.
I,
32 The Future of Human Rights

, I'd ' I trivcs rise both to the figuration of thlt J 1011'" Pcrlll.ps thIS 50 I 2ntya so 0" 'b I ' n • I way 'phenomenon of overtn

cn
una IZltlon . O mptllS4lorand lh~~t 1: run~ f the day, 'the escajX into unindlcublhty'''' Both. in tunl, Slgtlh 7' at f g1e ob

t rv\Wf':T that cause egregious hUl1un, and for the very sources 0 a 1"- " - •• . violation. Unless these causative. even ongmary

POII'f'rs oj human nghts. d ' __ ~ by the power of human nghts to prevent 'tlditlJi tllil stan conlTOlllrU . d I b ' ' d 'b'I''Y' the

·ulOre of human rights must, rem:un cep y 0 scure 'umn lCt2 I I , I' as well as insecure:.
T7 Oclo MarqlUrd (1989) 22-37. 711 Ibid., al 49-57.
 2 Two Notions of Human Rights 'Modern' and 'Contemporary'
I. Authorship and Ownership T
he dominant discourse presents the very notion of human rights as 'me gift of the West to the Rest', Not merely arc the
terms used here problematic. but equal ly SO is the posited relation among them which is susgestive of a twofold
capability/prowess in the 'West' of independent oriamation and of graciolls generosity, I lowever, the meuphor of 'gift'
rcnwns radler esotenc when we recall its preconditions for generosity include wholesale theft of nalions and enslavement

of peoples in the fouoding moments of colonialism 1 and in some recent moments of nco- coIonw ckvclopment, where the

'gift' emerges 111 terms of new forms of wa.a1agc, lIlc1udmg the regimes of trade, aid, development, and human ritrhts

conditionality. 1bc notion of giftasa unilater.1I action complicates tbe anthropologically 9aIidated nature of gift as acts of

reciprocity among coequals. And I do not nm begin addressing the question of distinguisiling lx:twttn 'gift' and 'CUJ"sc';
mol[ is, when the rt:trosp«tivdy constructed 'gift' of human rights IIands accul3Cd by coloninrion in its myriad forms. Nor
do I pursue here -specific undersunding of the epistemic violence involved in lumping totDether vast masses of humanity,
cultures, and civilizations. going lx:yond - bistoric time of the 'West' and somehow constituting the 'Rest' and,
analogoUSly, the undifferentiated ideolOGical reduction aflhe constitutive ~ns of the West,.21hcing these. and related
aspects, remains the task . a future work, but this chapter addresses, in bold outline. the inherent Violence of the paradigm

of the 'modern' human rights. _ ' "',;&ctkcs of tonquesl and eoloni7.atlon relilaln Inconeeivable of descriplion in any 2 allgll;tge. be
~ofeso;or Istv;tn Pngany, Illy dl~hnguishcd colleague al \Xr';\lWICk. oflcn $3YS that ~ Euro..~ecogtl1tt an)'lhmg Ihat he
knows of EUrop<' In my referena: to it, and ~. non formations! ThiS 1$ a precIOUS I'Cmlnder of dlslmctlon bctwttn the
1c!lmpen;t1 and IUbJuptcd/sumltem rullO'1S and peoplC5 of Europe.
34 The Futurt of HUlU:1Ifl Rights

It remains important to identify at the outset the strong and the weak hegemonic claims in the stories of the origin of
human rights. The strong claim (I name this as the 'impossibility thesis') insists that human rights traditions 'could only
have originated in the West'.' The weak claim com- prises twO ideas: first. human rights traditions 'originated historically in
the West' (the historic claim) and, second, human rights 'have been propagated from the West' (the evangelical claim).· Put
together, these three claims inflect the dominant diSCOUrse concerning human rights both on the platforms of governance
and resistance.

(a) TIlt Eva'lgtiila/ Claim

The point concerning the evangelical claim is not its accuracy but rather the nature of politics it represents. Both human
rights and religious evan- gelism invite the distinction between 'the qualin- of the message' which may be 'intrinsically
sound' and the 'role of the messenger', who may be 'suspect or obnoxious'.s Most activist communities in the global Somh
regard the role of the human rights messenger (the state functionaries of the capitalist societies of the western world, and
development planners and programmers including those of the World Bank and the International Monetary Fund (IMF» as
obnoxious. Inded. human rights activism thrives on its power to demonize the messengers of human rightS. The quality of
the message also constitutes a problem for human rights evan- gelism because human rights are propagated the most by
those vc;.ry predatory powers which respects them the least in their dealings with other nations and ~ples. The predatory
character of the message commences its long career with the notion that subordinated/colonized peoples lack qualities that
make them recognizably human. The peculiar notion of the White Man's Burden aimed at tr.msfonning 'savages' into

recognizable human beings who then may be considered eligible and wonhy recipients for the 'gift' of human rights. The
White Man's Burden, or the 'civilizing', mission, conceals from vic:w the 1ustifications' for imposition of extraordinary
violence sustained across generations. Immanuel Kam presented this notion with considerable epistemic violence when
he, in manifestly gentle teons. described all this as a process in which certain 'guardians have SO kindly assumed
superintendence over 'so great a proportion ofmankind'.6 It was

} Joh3n G31tung (1994) 13 (emphasIs added).

• Ibid. (1994). 5 Fred Dallm3yr (2002) 173 (1998) 71-.3 (0 Imm~nud Kant (1784) 32-50.

-
Two Notions of Human Rights 35

a deeo even kindness I alllzatlon; in . a V3Stiy , that Itassumes . decolonizcd also killed, other world. This myriad idea and
..
of ' at t u tllnes I c: I age • e qua d ocs ll yVio not ' I elll dle Ii arms Wlth " I can bm a I so t note h e • socialist here __ ..I only
st 1 Ie aplta ist 'Wild ~t'
in passing ~St' proselytized • that nOIJ"U" its v erslOns I 0 f mouyng " _._- I all hununs nurkmg E

. Its mto gt U 'fi' rot evange '. emanopal4."'"

~
r--'" Th" n ~s m~ugu a,h r lea reconsmuoon I er, miSSion .... so . l
hum:in , mimetic . u ... . t bemgs. as requiring It may proceeds emerge The for violent capitalist as vast a worth
. 1.._ '"'

tie
stretches reconstitul,on 'Wild y t rcclpu=ntofthe of . Wi est time ' of constructed and I riv.alry among the leading Emo
nOIl-
noble s ace .p Empires, 111" n who I nOllilC 'nO _gI IS Its uc " conceive acquISitive nc" t gI h e. tiS 0 old b . m a

remam . I' Ization and . tum, coloniution . mimesis' new. succe msensible and, . ed 8 now translates ed ' as ;II moral later

imrvor",-ve r- into the by outside the paradi 'war the gm on glob S I error h'fi its a I ' 0 narratlVes/lllstones . r lor Cold f H"

comemporary Istones h uman . ttl.. w-.. - pean r ' sp progress h moons.; eres 0 "f cco. of . human . of

~o::!~~;:~lrgeOIS ~ocialist human. righ~ ca.pullIllsm 7vangelism as. illsum~iently conceived

obal - I'
human, all hum.an inviting bein P!Uits ex- I d h e rcvoluuoll~ry discred' glta Ism socia an . Th mng t 1St t hee
.. msu
comrade-<ltIzen transformation nouon ' proJcct of . Thi the scoequa . of Violent m IClent II - YVIO overthrow '
UrgcolS human illlo a
bo I em project - of global in cap;- critically of'the White Man's Burden' also r«onstituted it
M.a:xp:;;~~ue:led m~s energy ag:unst colOnization llInd imperialism:

h nation Panth unun eon at only all . Proples gt: levels when s, and empowered an Lemn d beca III ' d-"d and, IVI ua t~

later, I s Vllo became . Mao. I ently critiqu~ recognizable replaced the the bourgeois and Enligh sum tenment IClent domi-
' I y imagination of human futu~~~rtICU ators. and earners, of a post-capitalist

addressed It remains h importa nt to ~o~e t h at th e socialist human rights evangelism ~ a~ owev~r, the ~Isslon of
human rights to the 'West' itself Its civil a~d d r~;IC~S assailed the capitalist 'West' that vigorously reduced po mca
nghts to the sacrosanctity of the rights to property

""", 8 's", an • d Robe" AllIomo Young ' Negri (2001)" (2000). • flo u~ventura de SoU$;! Santos (1995 . 20021" , M Ie h x l IrIJme~is Rene th~n

Glrad mere (1978 Iml~tio 1986) I I cd ~K3leS liS collcemmg Ihe 1110T(' complex 1100ioli of ......~I on AcqUI51U\~ Ihe from

Olle one mirll~1.S h~nd 3nother and mvol viol al:~ enee, r (Ie r:velops ::~~f VlCtlll1i!9=. ~ sU/!&C:Sts dl" 'CQn ~n'. even SOCl3 "

,~ t~ .-.... , tmI use ifT~rrs y be they further and 3 m·--~ where desiglule "",n:u tnrth Ihe by 'two rebllon~llIp. of thephenomenonofl1umctic

It the mUllelie dcsrl"1lble ~red. betwttn rivals 10 011 One the attempl ~llOthe,' mimeSIS other)' ~"
36 The Futurt of Human Rights

. . d raue rights of the people to and contract; It proselytized collective e~;d cost of b'lliags. Of course, be and to tc=main,

human, ~n at the h . :ained s'"'tic-9 the ' . I th apiuliSt conttptton fern • neuher the SOCia 1St nor e . d . ctices have varied d f

cvangehsm an Its pra conditions an contexts 0 . . . of states and peoplcs within enonl1ously 11\ tenns of coercIVe

l.naOl~U~atl~ng the various phases of the the 'spheres of influence' consutute unn

Cold War. ~...I' histories SOlve to Sl.y that human I d t ursuc herC' the o;traorumary d o no p . . ' of future history--

complex an rights evangelism rC'mal~S-II~~~a:~ights millcnarianisms that signify contradictory. The

conflIcted. h d th- 'truly' human condition h . n ofbemg uman an "- and rcprese,lll t e notlo r while dialectically providing scope

for diminish .dlfference and ~Iura I~ If far too many violem sins against insurrectionary human ~ghts ~ I· f I um.n
rights both by the I 1..- muted In tIe name 0 I , peoplc lave uo.;en com .... rv historv also records many . d . "'"Ill powers con

tempo, .. , I 'I dommantan msur>:,- .' h I· n -specially through the . f human rig ts evangc 151 , .... a benign practice 0 I ·ghts NGO

Human rigllts futures, . . ' of many a Hunan n . 1l1lSSIOnary practices f h wo.d promoting a new global II be nthepower o t es ,

~:~~ r~~~~:~ and~cc plcntintde of the ploughshare.tha~ ~~:W. replerushe~ the

SOli in ~ys that may harvest future human ngil

(b) nit Hislon(al Claim

. . I " h er remains indetcrminate--even exposed The 'hlstoncal c allll , OWCV , th. Western' societies and d tratlon To say that

e non- to contrary emons '. f h man rights is patently untrue; I In dId not possess notions 0 u . I ood cu tu . the idea of being
human, and having ng Its, !it l-~~er, a s-the langua~s of theistic natural expressed m different la~~ ~h man
they did.
rights in the 'Western' tradition law. 10 A close I~k at t~e .;gt,n:f~u;an beings were also sim ilarly deri~ed.

alsoshovtSthat natu~a~ th: historic claim that human rights. tradition::. One may t~en say . Ties mainly that a
particular type

:;~~:;~d~~~~~;'::;i~t:7t~;:si,~~~~T.:i~n ::~i~

~i:~~:'r~~:~~~j~,~~~ human righu) ongmated t1~ere. . IS IS a . ts worthy subject for

future tllStonans of human ngh .
vcr
·hl. Ii I d 1 prophetic rewlIlgofeoo - 9 See: Guyla torsI (1979) fOT all 105'W,t u ,an d~Je. n Iloabt;",as (1996) for an h o;ach~ to tlgl1ts: an

urgt gtllce hc:rwc:to t e: t\Oo'O appr , ed t 0, 'lQCphst' clemeots Wlth!!l the: bour- unde:nl<lodlOg of the 'welfare: sate as 111 101 1 gtOIs

Ideology and pncuce:. ( m). ArvlIld Shaml.ll (2003); t..c:roy S. RoullJcr 10 Sec. fOf elO.111plc:, Tu We:.mmg I . (al.) (1m).

-
Two Notions of Humm RIghts 37

(() 77,~ Impossibilil)l n~is

The stronger claim sigtlified by the 'imposslbllity thesis' (hul1un rights tr~dltlons r~l11ain irtlpcwibk of origin outside the
West') links causally the el11~rgcnce of human rights traditions With the rISe and growth of capitalism. Such traditions, It
is said, remam Impossible of emergence III the pre-capltalist soci.1 fonn.tiOI1$ and socialist formations. The socialist
fonnatlons begin their itineraries by the revolutionary overthrow of the sancmyof property rights as furnishing the
quintessenc~ of human rights. The e;lrlicr social fomlation$ (or modes of production) wert dominated by conceptions of
human duties or responsibilities, not human rights. Further, prt-<~pitalist fonnations lack not merely tr~ditions of human
rights btu even 'his[Qry,.11 From this perspective, certainly, the prt:-<apitalist forma- tions remain genetically devoid of
ide.s and ideals of human rights.
The impossibility thesis may be read on several registers. On a world- historic plane, it makes a descriptive claim, which is
self-validating. If 'hum.11 rights' signify a typically bourgeois and proprietary notiOIl of the human, it necess.rily follows
that they ~mer~ only in a capitalist social fomlation. This leads at least to twO further Implications: neither pre- capitalist
nor socialist formations Illay, by defillitlon, be said to have any tradition of human nghts and the really IIlteresung
dimension then is provided by the ways III which capitalist tra<iltiOIlSOfhulllan rights develop over time. Put another way,
both theory alld practice of human rights in the capitalist mode of prOOuction develop III distinct historic modes that
provlde a variety ofjusriCicatory languages for human rights. 12 The even- tual glob31 diffusion of bum an rights traditions
III the late twentieth cen- tury CE sits somewhat strangely with tillS Impossibility thesis simply because human rights
evangelism now assumes universality of human rights, not tethered to any specific histonc mode of production.
On ;J different register, human rights traditions remalll based on a ttrtain ontology; self-constitution of a human being. or
being human, becomes possible only with, and within, the idea of an individual human u a free and rational agent
responsible for her/his choices and, over v.lSt stretches of historic time, capable ofparticipallon in the deliberative foml of
COmmon life, that is, politics. L3 Notions of self evell within bourgeois

" 12 See:, for a wnhc-ring crlllque:: of tillS po5mon, IhnaJlt Guh~ (2002).
1 Alrc::.wy gc::oe:ratly nDled 111 Chapler I; sec: Oil$(), DaVid

Ingram (2003). buwJ 10 the:: Arislo!thOin sense:, Ihll c:once::lVt"s the: e:lUun as a bemg who \mows both to rule: and how to be ruled,
Plulhp 1\::1111 (2001: 104-24) dcvc::1op.s 010 lnsightful lrWYSI$ offrcc:dom as 'fitoc:u for rc::$JlOltsll>lhty' wnhlll which 11 remains

jusllfiable: to 'Peak of collectivltlcs as 'pc:rwns' and 'sc:!v«'.

38 The Futu~ of Human Rights

tnditions of hum.an rights are scarcely exhausted by the imagery of the individual, egoistic, ~n pannoid sclf;14
ver.;ions of the communi~rian self also emerge (sex, in particular, ChapteT'S 5 and 6). nlese latter vt:T'SIOnS,
however, bear a consldenble similarity to many a pre-capiulist notion concerning the self in society. and suggest that
IS
commUluties foster logics and panlogics of human dutit$ that overall justify human rigllIS. The impossibility
thesis, 1 suggest, is tOO closely tied ( 0 the dominant diSCOUTk of the egoistic bourgeois self and begins to weaken
when we take full account of communitarian logics of identity and rights.
No matter how human rights traditions may be thus conceived- historically or ontologically-the Clpitalist state-fonn
emerges, in different historic moments. as a contradictory site both of negotiation of connict between different
fractions of capital, on the Olle hand, and as the site of 'reconciliation' of antagonism between labour and capital, 011
the other. 16 Typically, the bearer of rights, the subject oflaw, stands doubly constituted as a self-detcnninative and as
a 'subjected' subjectP Modern human rights arise, as :l.lready noted, within secularizing State formative p~c~ices.
where the authority to rule forfeits claims to divine, or SCIl1I-dIVlllc origin. The contest. often fierce, for secure
political ~oyahy thriv~s?n rlris- worldly practices of politics. not otlltT-worldly ~once~tlons of COSI~IC Justice:
human rights I:l.nguagcs, logics, and paralDglcs, aflSC only Wlthlll :I. mlheu where the legitimacy of goverlunce
becomes possible within realms of negotiation among fractions of capital, and labour. The el11ergen~c of the
'Western' human rights traditions is understandable only wuhln the dialectical role of the state constituted by the
imperfecubility of either a collective capitalist or labouring class, outside the ambivalent Clrcer of state mediation.

II. Consequences

The 'weak' and the 'strong' claims, cumulatively, accomplish a result where non-Western traditions are considered
bereft of notions of human rights. Neither did they experience the rise of capitalism with which the origins of ,
modern' human rights is inextricably interlinked; nor did they atOll1 the 'flourishing of theoretical knowledge
[Stll>inur\ through which European humanity passed' 011 the way tow:l.rds 'its modernity' .18 Such consciousness

14 Thl5 15 a typically H.ortl~n deScription; Sec, Rlcll1rd Rort)' (1999). I ~ Sec, Alan GcWlrth (1996) 71- 165. 16 Sec, Uob Jes50P

(1990): Nicos Poul~ntUtS (1978). 17 Peter fittpatnclt (1992, 20(1); CostaS Ooutmu (2002).
• 1 Emnunud I..cv1nas (1987) 119.

>

Two Notions of Human Rights 39

 ofhurnan rights that occurred in the non-WeStern societies is said to be purely due to the patterns of Imposition and
diffUSion of the Enlightenment )del!> among them. It was the mimetic adaptaoon of these Ideas that enabled, ~cn
empower~d, th~ ~lon-WtSt commumties of knowledge and pD"<ocr to IIlterrogate their traditions devoid of notions
of human rights and to transfonn these. Even today the Third World of thought and action contmues to be mimetic,
picking up cogniuvt: bits and pieces from the smorgasbord ~f the critique of Enlightenmcnt from Marx, Nietzsche,
Freud, and their u?canny successor.; such as Hdd~r, Habennas, Rawls, Fouca~lt, or De.~da. Overall, human rights

discursivity, according to the narraovc of on.~ns, TCmains tethered to the patrimony of the West' intellectual

tradltlons. The .strong claim furt~er assc.r:s that this ought to be the casc. It maps the enmc human w~r1d III ambitious
hegemonic spatia-temporal terms that define a nonnative, and narrative, epicentre of human rights in the 'West' and a
'periphery' subject to a series of quakes and aftershocks of human rights. The 'periphery' is either a supplicant or an
outlaw. Eim it is a 'periphery waiting to receive whatevt:r comes from the West' or~: constltu~es :I. 'recalcitr.mt evil
refusing to receive the word, and goods and sclVlces that follow through an incorporation as a second class We t'

(for whom a 'harsher treatment may be in order',11I nle strong c1ai~ entads at least three: salient ideas:

•. . ant(;I/ism, with the West as the causal eenter of the world; ImilltfSQ/ism, with dar kJea tlm ~h:lIt IS boood for the West IS good
for the world; and a good/MJ ~m"" margmahzmg CVlI, trylllg to beat evil wuh cru~s or deter it with 110111 ~"',

~ 'impossibility thesis' crystallizes the commonplaces ofEurocentric- ~kast, ~ree.cemuries o~d-thought

that smacks of overt epistemic l7Ic1sm. thesiS disables any IIltercultural, multicivilizational discou~ on the
gmealogy of human rights. From :1.11 this, it is a but :I. short step for the ~~all ~est' to impart by:l.

mixofpersuasivt: and coercive means to the n.eSt tlemftofh ' h n" SOc II "': uman rig ts. liS III turn also contributes to a
r.a earlllng loss on both sides: the givers and the receivers of the 'o1ft'
reflexive II OWever bee 1/ ' I 0' , ....... .' ause a

t1atwns am ~ples COlli! tn/wlllot! riuhts as tqllal strOll"'"' ~ ...... temlc h T . b · ;:. <S"~' bon UlnJ Ity remams a aSlc postulate

for intercultural communica-

~t the service of the future of human rights, .. ;aoJoh~n Galtung (1994) 13. ~~~~ Galtung (1994) 13. h 1$ SPbm'''1 to frII/i.u

that Ihe~ wotd!i were written act'n.tmg Second Gulfw,u and the inaugun.1 '~l war "" terror' .
40 The Futu~ of Human Rights
The~ originary meu-narntivc leads to a kind of genesis amnesia; the 'Enlightenment' epoch that gave birth to the hbenl
'modern' nOtiOns of human rights (especially to human nghts to pro~ny, n1akms the VOWtr of a few the destiny of
hundreds of millions of pd)ple). III effcct, g1ob;!hzed extraordin;!rily cruel practices of Social Darwinism, Planned
dc~trucllonof 'traditions' , cultures, environments, and ptopks was everywhere considered necessary and desirablc--
6~cially during the long dark nlglll of colonia\k ism-in order for til(: ideas aud practices of bourgrois legaliry and rights to
flounsh worldwide. The projcct of world soci;!\ism, thougl1 inspm~d by very different visions and values, followed the
same itinerary for the construction of new human futures. So does the project of contemporary economic globalization,
where free trade and commerce (so free as to make the State into a clonc of global capital, manifest througl1 the
transnational corporate capital) arc presented, in the long run, as the harbingers for a secure future for human rights.
Communities in struggle, and people in resistallce, have contested, oftcn at the price of unspeakable human viola- tion,
these hegemonic versions of human futures and human righ~.
 The future of human rights is serviced only when theory and practice develops the narrative potential to pluralize the
originary mcu-narraUvts of the past of human rights, beyond the timespace of the Euro~an llnap- nation, even 11\ its
criucal postmodern incamations. This work outlincs the beginnings of a mammoth usk. But it needs reiteration that such
an endeavour must rest on the premise thal a/l IUllionI come tU slra"gtts 10 W wit oj prol«tion alld promo,",n oJ/wman rigillS.
nth
To say this is not to deny dut the Euro-American discourse made a headstart. from the scvcntet: century onwards, III
dabontingthe 'modem' conceptions ofhurnan rights. But It does imply that these conceptions (as we see later) were
'tradition- constituted' and 'tradition- constitutive,21 and wcre consistent With the catastrophic practices of cruelry towards
the non_Euro-American Other. Since all concepts are history· \aden, one also needs to make similar inqulr· ies, requiring
the invention of'non-Vkstern' traditions of thought in ways that anticipate and reinforce the contemporary human rights
discursivil)'. The progress of interlocution of'non-~tern' traditions lies, perhapS,l1l the following series of questions:
• I low did the classical traditions of thought (African,n Buddhist, Confucian, Hindu, Islamic, and indigenous civilizations)
configure the notion of what it meant to be IIIIIIUlII?
11 5«, for all elaboration of thiS inSightful dIstinction, Alasd~lr Macintyre (11}88l
1_11,326-&1. zz See, John H.. Pittman (cd.) (1997).
Two Notions of I lumm Rights 41
• In what ways do these traditions rdate human rights to Y.llues of equality, dlgJ'lIty, and Justice III SOCial and political
rdulOllsiD

• To .. _nvalcnts .,. _ _ . thc exteut ,l~ to the 'od m that ern these ' notions . traditions of rights. had whatOlhn no Iingu""', tro

pes or carrl semIotic 'ed tnO!: L_ bunkn.

• What approaches in these tndltions toward~ J""

be

- - govemanc~ or educ ... ...s. of~"Cr i25 may said to antiCipate non-Western line ~o rh uman , .... b. pncuccs. these? righb . •

What . I anguagcs , intcrplayexists H ow be an st d may those between we: to trace be the discovered complcocity - 'modcm '

and in and the 'conte e Ontl;wlctlon t ra d" _.J mporary mona " I ' taught h h uman among

diIcursM 'IIIIk caaonWi ~~ _~' Aside __ wb "''' 'm from ry lor co .... TJ _ I Ollia so . Ie all . I long, I" this, a.uer 15m ' and

it was 1I11l0vated is nnpcrialism indubitable brutally much incoherent ,Ie which that of the~", thc ,I ..... of <YJ E western ra n an

I'g! d" • I mons, 111 . con fran 1tenment I mman though, nghts . Indian Lokman - . aaxiacl' . Uw- o the It' ..... red Th maxi (Ill

t't 1 1 the 'S d.'~'flra} first . ( . se decades If. -determination) of the twcnti is my e th bIrthright century CE) and ya to J a-t

diIiaas • GIadbi Souch American ofhum~n who Africa c":11 slave Botl ri~~ engcd ra -...ed -..I "'lbthe _ __ "_""'&"

..... 10 "6'.tenmem forms a ... • .... multicultural ~, ut'atlonofruct of ' _ lega contemporary h 1U01" t 1e Simply early ' but could

st'll I not VICIOUS, comprehend .. lonllS a Mohandas of apartheid e~p~es de~traditiollaltzcd the Eurocentric tra- F'ed r .

tnd nc . J- ~o Itlon k' . Do,:n r" of IIltenunonallaw uglu I e human cy more postmod powerfully turn . Thel ernlsms ~f . rights

r than the h erolC , may 26ninetccmh that . critical whichdel e resistance ever resulted glUmat accomplish. theorv centurv " d-
 d may '1 ........ . and I' ed be es a

:: - "::.:"~-=' . fi>r ex;,mpk ,~~:::~: rh ~,:~~,~"~::'~~I:;;

-:;:~'T.:~-:~~979J ..._ ulthc pnnclpk ofself-<k I a(' ICVed a splnlwl fOunwtlon for dJr~ pohocal J -i.~ Garfir

For an Id ' by a.'peel (1998). Stanley a ra(ilcaJ of $Itugg:\e T~ll1blah Tl'-m~I~: (l964 ICtmll13t1on. t1on

global/llIhtaTlSIII 0 ). Ilt-nry Fte«lom frOm Jap;ancsc rule for Ko and IllIpenallsm. a struggle fu; th~ Duddl11st tndll1ol1 . 1{05eIllOI1l
(1998). and gencrally also

...... No.., ~n 1I10llS 1II~lghtful of ra;dhnn/lil daborallon j;~:~"~"~:""~;d:~,"::""~UN of I II

Umkd
fon...
'U 0

f InStrulllcrus SC<' tall ey

nlllbl~h CI1Shrtllll1g (J964). Ihe
Practl Nauon~ S of II ill! plradlgnullc racial dl5(:llmlll ahon, .

tight 10 5elf-dc'~ .
nouons lCCnophobl~, III the Buddhist and and llllOlcrancc _nllln~uon, and CC$S, akan 10 slavery and forced l~bour,

revisited by 'h, mmu.

42 The: Future: of Iluman Rights
When, If ~r, (given the present mode of production of knowledge about human rights) the 'originary' historyofhuman rights
is written from non-Euro-enclosed perspectives, the future of human rights will be mOTe secure than it is now.
HI. 'Modern' and 'Contemporary' Human Rights
The need for SOme periodiz,:uion ari~ in any approach to the study of history, and social theory, of human rights. The
ordering principles for periodization are not readily at hand and any constnJcnon of these remains liable to contention.
Were one to 'date' (I evoke the multiple meanings of that term here!) the birth ofhum.m rights with the American and
French Revolutions, one mayweil label the era thus bcginningas the era of'modetn' human rights. The term 'modem' here
marks the consolidation of a Westphalian international law and order. It also signals a whole variety of ideological
~ustifications' for colonization and world domination. Further, it also provides a register of major developmem in industrial
capitalism.
In contrast, 'contemporary' human rights begin d1t~ir career with the end of the Second World War, the birth ofdn: United
Nations system and the end of the Old Empire, and the rise of world historical alternatives to global capitalism. It signifies
the timespace of the beginnings of a POSt- Westphali;,m political and legal order. This is also an era of the Cold War, in
all its brutal ph~, as well as of the momentous Universal Declaration of Human Rights, :lIld its accumulating normative
progt'ny.
Even when. in terms of conceptual and social histories of 'modernity. the contrast I draw may,faute de mkux, misiead,27 I
believe that it offers a workable OlIpproach to the problem of periodization. The contrast be- tween the 'modem' and
'contemporary' human rights paradigms that I here propose emerges as follows. First, in the 'modem' paradigm of rights
the logics of oxlusion are pre-eminent whereas in dle 'contemporary' paradigm the logics of indusioll are paramount.
Second, the relationship between human rights languages and governance. conduct and practices differ markedly in the two
paradigms. Third,the 'modem' enunciation of human rights was almost ascetic; in contrast, contemporary enunciations
present a carnival. Fourth, contemporary paradigm inverts the inherent modernist relationship between Iwmall rigHIs and
Huma" sltjJmllg.
 n
My description of the paradigms is distinctly oriented to the EuropC'a imagination abouthllman rights. An adequate
historiogr.tphywill, of course, as indicated, locate the originating IanguagcsoOlUmall rights far beyond the
77 At. k~SI In teons of COflcrplU~1 ~nd socl .. 1 hlslones, see Remh .. rdt Kouclk<'k (2002).
Two Notions of Iluman Rights 43

European spacetime. J focus on the 'modem' pred~1 L __ " bo I . Y uc:cause of Its desuuctlve ImpaCt, t 1 111 terms of social

consciousness. d ' I h be n orgam.zauon on that w IIC may named, clumSily and with d .... p h I ' , ..... uman VIO anon as

'ptt_' or 'non- modern. ' Countless vanations exist even within the Ell""'....... ' 'Vr~ n spacetIme. Moder_ OIty w;I!o constructed

there as oppositional to the)\n ' , . tradiUons ofH cllenic thougllt, as any rcaderofLeo S:;,en~ cons~fUlted by 'The
Three Waves of Modemity,2tI surely kno"- Th"" ods germma .essay, ....... e m em typically nwks the advent of

secularization of state fomlati· .... p ~ ha' , ' C . . ... ra ...... ccs t t steddlly but su~ly trallSlonns the dISCOUrse on 'natural righ~' ' h

'h 'gh , . IIUO W at we now ~ as . uman ~ ts. DesPite rheological, iusrutturahst languages via whICh dlls translation occurs the

im ..... ratives ofh 'gh' nd fr d·· ' r - ulllan rl ts shift their grou om IVine reason and will to human reason and "':11 Th h '1!

KXk- ' I b I .... . Uste m a so em races a lugo GrotiliS with his memorable e, h : __ '-'I' (. . . . . np aslS on _ • .,-._malfa oa I

mSlstence on minimization of rr: . . Francisc Vi " sUllerlllg III war) and a o Ittona who valiantly proselytized, against the

Church (to the ;n o~ ~~~y~. and the Emperor (to the point of treason), the human ts.o e I~ l(;enous peoples of the

New World. Jerem Bentham's IIOCOnous crltlques of natural rights and fUrl M _ .> .~ bourgeo h ' ' a'A 5 cnuque of the Cimr

til IS E uman rights, tho.rOl~ghly secularize the diSCOUrse. At the same Ibt • , e uropean moder~lty IIlvcnts the Idea

of Pr~ under which A1JPO.~ICS of cruelty entailed 111 colonialism stands ethicaHYJ'ustifi d "liS IS well known

The " wh " , Imlpora ' h . . .qucstlon IS ether what I call the 'con- IIImtofJ ' u: an ~Ights paradigm remains merely the
dynamic unfold_ devdopm e m em. Put an~ther way, Standard rutrntives ofhul11an rights '~ ent suggc=St, and

remforce a continuity thesis wh,'ch" h - .... lIlporary' h . h ' InSISts t at IDthe tnts f' ~ma~ ng ts c~nstitute no more than a

series offootnotes dar · ~ III em concepllons of human rights. From this vi . ~~::::~~l a~~ar::I~~ of

~od~rui~ itself leads to stru;:~t; PI'Ovickd th . etermmanon; If the Enlightenment tradition c:nticaJ wh e
lJ~petus for an Age of Empi~ it is also said to fUrnish the ICCond ~r:::~al ~or nationalist freedom struggles

beginning from the Phctices of pol' .Ie n~netcenth century CE. If it justified unconscionable For CVerydirne Itl~S 0

mass crucl~ i~ also justified insurrectionary pr:uris. IOwards a new r;:g1lon °lfrh~darkslde 111 the Enlightenment
lay the opening '_ I It. n tillS deeply Clawed . rnporary' h ' perspective, the emergence of IleQllogiCS of thell;~an rl~1S

merely ~arks the unfoldmellt of the imlna_ ... OUthne of re lid· o;:tern hu~an. nghts. I provide later in this chapter .. p

lanOn of tillS mIndlessness of the cOlltinuity thesis.

ko Stn uss (1975).
44 l1lt Future of Humm RighlS

IV. The Loglcs of Exclusion and inclusion

The notion of human nghts-histoncally the rights of rMII- lu!. ~ confronted With rHO pc'rpleXities. The first eoneen\S the nature of
lurman fUture (the Is question). The s«ond concerns the qUC:;lI~n of who 15 to be counted as 'human' or 'fully' hunUJ1 (the
Ollgh, question). While tht first continues to be debated both in theistic and secular tenns,?I the M'cond question occupies the
JO
centre sta~ of the modem enunciation of hUlllan rights. The critena of individuarion in the Europc'a,~ libera.1 tradlUon
of thought furnished some of the most powtrful cx.clus,onary ld~ IT1 COn· structing a model of human rights. Only those
bemgs were to be regarded as 'human' who were possessed of the capacity for rt'a5011 and autonomous moral lvill. What coullted
as rt'asorl and I/!jJJ varied in the long devclopment of European liberal traditiol15; however, the modern p;radi~11 ,of humal,1
rights, in its major phases of development, exclu~cd slaves, hea~hens. 'bart»rians', colonized peoples, indigenous
populations, women. cluldren. the impoverished, and the 'insane', at various times and in var.lous ways, from those considered
worthy of being hearers of human Tight!.. Tht discursive devices of Enlightenment rationality constituted lht'gramnurs of violent
social exclusion. The 'Rights of Man' wt:re human TightS of.,,1\ men capable of autonomous reason and will; and va.<;t numbers
of human beings were excluded by this peculiar ontological cOI\StnlCuon,11 aldlough by no meal\S dle excl~sive

pre~tive of '~odernity· . .ll . ' Exclusionary critena haV(' prOVldcd the signature UlIle of the modcm conceptions of
ned
human rights. The foremost hiswrical role perfon by these was to accomplish the justificatio" cf ,Iw UtYI4Sfifwbk:
namely, colouUl/1SfII

2'i The theistic ~ I;fXe the origtns of human namre tn Ihe DWlflC Will; d.- secular do 50 In oonnllgeocics of evolution of life 011 earth. The

dlClStiC 3PProXhtS. evw when re<:ogl1lZmg the holiness of all ~anOil. IIUlst on Mln hemg created ~ God', mllgt and. therefore,

apabk of perfcroon m ways no Other hemg III the '" _ L L.· , _ •• ncv<'ho-solluttC ~ IS; secular/SCK'ntlflC appro;;r.cbcs VlCW ml1nall IX'mgs a.~

COInp"'" t'~/~ n pJ tc:ms co-dClenmncd by hoth generic endowment and env\rt)I\ITleTII and;; luI\' cxpcnment;tlJon. like all other objectS;n
'nature'. These dIfferences could be (~I fIOl" been) dcscrihed III I1lO1'e iiOphlsricJ.lC:d ~nd wider ways. a t;t.k attempted by ""
lumatural,st dunu,,; 11«. for ClQ.l11pk, the ovel'Vlcw by Julms SlOne (1%5)d 1~ :l0 See l3Iukhu Parekh (191:18) 1-22: lbymoncl

W;lhalll~ (1983) 161- 5. UiX" r;I (2003). 62 n 7' p,tf1C1o' )1 See I\-tcr fltzp~trlck (1992) 92-1<15; Mahmood Mamdam (1996) " .
T11It! (2004). , liS .. -ll"~ » lteh.0\'1 tr.idmoil5 s ....... uhted ."nd mil do. LI1 ontolOoglcal c"n~lTUctiO .....01 r-- , . I-......A >. I f dit' .... -

Cl«ludcd. for c:ompie, umouctublo, rendcnng them ""J"'~ ulC pa e 0 systc:ln: sec: Upendn Sui (1995).
Two Notions of Hunun Rights 45

.. """"",,,ISm That Justification was inherently racist: colonial powers ~ a coJlccllve human nght of 'supenor' ract's to
dominate the 'inft'ric-'r' one!>. Contrary to the suncUrd descriptiOn ofhbcral rights pan.- digrt1 that makes It a stranger to the
conccpUOIl of collectlvc nghts, the para,hWl~ of <modem' hUI1l~n Tights marks the bcgI~nin!:? of the recog- onion ~ll tht'
coliCCtlve nghtS of European nations to own other peoples, ~d' terTitoTies ...... ealth, and resources. The Other In nuny ClSes
 ceased 10 ('Xist before the 1I11periai law formations as the doctrine of 'ara rll/lfills, (oUowulg Blackstone'S scandalous
JJ
distinction between the inhabited and uninfuhiled coionics. Since the Other of dle European imperialism was, by dcfill1tion, not
human or fully human, 'it' was not worthy of human rights; at the very most, Chnstian compassion and charity may fa!;hion IOIDC'
Ikviccs of legal or jural paternalism. That Other. not being hmm.n or fully human, was also liable to being merchandized in the
slave market or reduad 10 being labour-power commodity to be exported within and ICtOIS the colonies. Not being entitled to a
right to be and to remain a human being, the O ther was .made a .stranger and an exile to the language _logic of human Tights
bemg fasluollcd, slowly but surely, in (and for) .. ~t. The clasSical hberal theory and practice of human rights, ill its ~ er.a was,

thus, IIlnoc~nt of the ullIV('rsality of rights, though no IIIIIIFt 10 Its rhetorIC. 1'hto ~tul'1l_ collective human right of the
'superior' races to rule the ::::.: ones IS the only juristic justification, if any be possible, for colo- ... unpcn.ahsm (and ItS
contemporary nco-unpenahst incarnations)
• ~ m many shapes and fonns. One has but to read the 'dassic' 0( John Locke. and even to solne extent of John Stuart Mill, to
%""~: range of talents dL"Votcd to the Justification of colonialism. 34 de: esc diSCOUrses WC'TC dle violent Joglcs of human

ecology and ~ll[aJ. logICS that cOI\Structed the collective human right of the IIIo.n ~ SOCletles to gove.m die 'wild' and

'sa~' races. All the welJ- JIk,ed. tit I C'S .of the .formatlVe" era of classical liberal thought were de- IDd ..... ~I e. ogtcs o~

nghts to property :md progress; the state of nature .... , 'iOcICty· soc IDa ' - lad the .' la rWlIusm combining the mfantalization
of'races' Iltatunty of the s f ' T . lID CoIoni ' h I tages 0 CIVI n:auon. The collective human right fJIod' of ~ t h cess weJl.ordered

peoples and societies for the collective ..... 1'Iot I. t as well as of humankind was by definition, indefeasible as CIrIIItrad.e:-

so HI the least weakened in the CIITiOliS logical reasoning by the

lOllS of cvolvlllg liberalism.

~1992) 72-91; ~:c. also, Puncu 'I\lIIt (2Q04). kh (1997); Uday Mcht;t (199!!).
46 The Futun: of Human Rights
V Human RightS Languages and Powers of Governance
The lang\l~ges of human rights remain central to usks and prOlCtlCcs of govcrn~nce. as exemplified by the

constiruti~ elements of the 'modern' paradigm of human rights-namely, the collective human right of the colonizers to
subjugate 'inferior' peoples and the absolutist right to property. The mamfold, though complex, justifications offered for these
'human rights' ensured that the 'modem' European nation-state: (inUlgillN (ommuni_ lin on o ne register and 007 James Bond-
type communi/iaon another regisler) WlS able to marshal the right Ie property as a right [0 imperiuIII and dominium The

construction of a collective human right to coloniaVimpcrial gov~ernance is made sensible by the co-optation oflanguages
of human rights into those of racist governance abrood and class and patriarchal dOlnmation at home. The hegemonic function of
rights languages, in the :.crvice of gollfnrance, at home and abroad, consisted in making whole groups of people socially and
politically jllvisiblt. Their suffirhlg was denied any au- thentic voice, since it was not constitutive of 1m man suffering.

'Modem' human rights, in their originary narrative, entombed massc!> of human bein~ ;n shrouds of necrophilic administration

of regimes of Silence. In contrast, the 'contemporary' human rights paradigm (as we shall set shortly) is ~sed on the premise of
radical sclf-detenmnation. It is, there- fore. endlessly inclusive as far as norms and standards of human nglns are concerned. In
this paradigm, governance may no longer be based on conquest or confiscations of peoples. territories, and resources. Further,
every human being is now to be counted as human; forms of govemanc~ may no longer legitimize themsel~ by
 practices of overtly institutional- ized racism. Self-determination insists that governance be based on tht recognition of equal
worth and concern for each and every human person- Further, as the contemporary human rights theory and practice devc:lops
it interprets self-dcternlination by the recognition that each and every human being ought to have a right to witt. the right to bear
witneSS 10 violation, a right to immunity against disartitllUlfiotl by concentrations of economic. social, and political formations.
Rights lang\lages, no lon,ger ~ tXllllsillfly at the service of the ends of governance, thus open up Sites

resistance and struggle. VI. Ascetic Versus Carnivalistic Rights Productioll , '
. The 'contemporary' production of

human rights is eXliberant.J5 1"h15 IS Ii virtue compared with the lean and mean articulations of humall rights I
35 See for an mSlghtful (JV(:1'VIew; BUrl\5 H. Weston (1997).
Two NOUOll5 of 1·luman Rlglus 47

_ _ ..L-~' conceived penod.ln fra nkl y ' the: 'modem' III tcmlS tc that • COIItrUl, the procesSt'S of lormulation r era, the

authorship ofh umann 'gh ts were . of both contempo~N $lol«"U"':' ' ' - .. an dE urocOltnc ' I h uman nghts ' arcUlC"'asm gJ
I d
Ylnc USlvean

Olten f1luked by inten~ nego L_ f . tlallon uctween tbt practitioners 0 human TIghts activism and ofhum~n
f

. " repression. The aucbonwidlln . .L_ un;; h1p d 0 ISClP contemporary I mary power f 0 human human nghts nghts ' die Unlled .

Nations Ltc and regional • networks remams enunciation • As a resu n,ulu, I t, exercISed u h d' urnan mous, ~thin ngh" .

even . eaunoatlons proUicrate, becommg as specific as the 1.- fr ' lIIPII 1iesDDWS~dd notJ11ef'e"

_--.I dIeT ,~ ___ _ _ ............ QM;.lUtOWIO anse h.-.n sue an h 0 0 f d

. ' d' ten , h lspersa m 'gh rum, I ts ; sustam. _l. Ule 0 f labour only mhstalled in human [ I ey II yncw, reach out I uthertounthougJl '

to The 'modern' no"o major mOvement and Illinority rights rights enunciations 'discrete' and 'insul',' t o f ,Justice ' networr..:'l om

which 11 0 f h uman ngh" ' uclllg l.. is TI ""~i:~ry~~~ctJVl~ an mcremental .. .. . mmonues constituencies.. .. ,-,
.

:rent. th"" 37
VILJ-Juman Suffering and Human Rights
 but~~rt~~p;e!~~~=_Crit.ically end S of the h twentieth
..... .... ...... -*"n.I. _the righ

cemu ..... ., CE • we I ac k a SOCial ' . necessary address only a whole to highlight thea Zn~ bo
f"~~S' It IS

the ~~ ..... c".J04 katonc phr:uc ron~

U.S. from the f~n
152 Ii n.4 (1938). lOW OQ(notc4mU"iItdSId/tSV.CaroltM

~ the nghts of enunciaoons me prl child thus m cmb ~~ IncntlOn very different onkrs of tf..... "'I:;'IiIiI.t: "'taefta:,
ctbt emergmg
~o(buman tIrfIoraoon ~ (I) IlIOCUImeoryofhum' IQSOrutional genealogies :md ngh of ts hi-tech nghts; d human

hUlll.lln ngtn' to
l5CUl"SIVC rq;iJ1lt'$ of on (c) h nghu um..;,n lheo tasks ;m form~tlons; refi nghts, collfron . moven=~8 ugees nghts I

1:;:1 . Uf, mdlgenous peopb,

onentauon), pnsoncrs ~'sh and m (b) pre-modem' ts asylum-:seckcrs, to comem proJt~ as deSlgJlate socl~1

gays and
porary of moveffiCnts; • engerw:icnng bodlCSof~ 'lode n doourwlt ~nd m children ' , ~nd mose in h' h and 'comempo- W Ie md

I,
subaltern hlUl'Un rights; (e) Impxts of :: ~~~!~:, .... :~~.:-~-;"~ ...... _. npt!. ~_. IlbofJ to
bee
E of ven
illusttiluve
. dl~ppea~

f
onlinS human as righ;: ' and (g) I"crementally 0 Ihe er"Ol ~ n:mn';to practlCC of human nghts; (f) the probkm..;,tic:: the economICS and the

bod les of refleXIVe kJlowled I

pohtica' CCOIlOmyof of' nd avaIlable II leary ' .In . but the remallllll Imagin~tion ges. se~rch n selecc
''''I,;'o'.h;;unlan 'rights thea
areas, tht'SC of ora socl~1 new thoughl genre ' I ~t the n made of endeavour human by Rlch~rd ngh IS Falk

ry :'::h"Y If
a
:nll
(1995).t;~ :r.actlce. ~b~~y Im,per.auvc , Sh Daunting I'll .. 1f "(",one tins In989), SS difficulties IS

asp1ration. ~n
10
8ow\lCmura !lOme
make
of
5Cnsible
entaIled But mese de I
48 The Future of J luman Rights
task of establishing linbges ~twcen human suffering and human rightS. The modem human rights cultures tracing their
pedigree to the Id~a of Progress. Social Darwinism, racism. an.d patr~a~chy (central to the,Enhgllt,- enment ideology)
· I d ,· ,39
Justified a global Imposition of cruelty as natural , h 'et lea. an even Just . TIle modem liberal ideology that gave

birth to the very nouon of human rights, howsoever Euro-enclosed and no matler how ~iven wi.th cont~ diction between
liberalism and empire,40 regarded the Imprniltton of dire and extravagant suffering upon individual human beings as
wholl.y justi- fied. Practices of politics, barbaric even by the standards of theological a~ld secular thought formations of
the Enlightenment, were somehow COI~S,ld ercd overalljusufiable by State managers and ideologues, and the !",lltIcal

unconscious that they generated (despite, most notably, the divergent struggles of the working classes). Making human

suffering invisible was the hallmark of'modern' human rights formations. Suffering was made invisible because large masses
of colonized peoples were not regarded as sufficiently human or evel.l as potentially human. The latter invited, whe~
necessary, total destruction; the fonner, violent tutelage. Although sentient, objects of conquest and subjects of European
property rights regimes, the slave and the :olol1lal subject were closer to the order of dungs or beasts, whose suffermg was
not Important enough to trump the ear«r of the Enlightenment proJ!:n. As their lordships of the Privy Council succinctly,
and WIth elegant cnlt:I~. put It (in 1919), SOllle natives may be 'so low In the scale of ~Ial organization' as to render it
'idle to impute to such ~ple a shadoll' oj n,~lrIJ known /0 Ollr law':'1 Indeed, their suffering had no VOice, no language.
and knew no rights.
Sousa SantoS (1995. 20(2); Wendy Brown (1995); Roberto ManG'lbena Unger (1996); Shadnck 11.0. GUllO (1993), and me prinCIpal
arm:ub.lors of Ihe Third World and International uw Movement (TWAlL) including Anthony Allgble, Balakmhnall Rapgopal,James Thco
Gam!!. Otnora O·Kufour. Uhupmder Ch1011ll. \bub NeSSlah. and Mukau Mutll.
19 ThiS 'Justlficaooll' boomcnngcd III the foml of politics of gl:nocldc III the Th1rd Reich, often mulling 11\ cruel comphcity by 'ordmary' citizens III

Ihe worst foullcb- t1on~1 IIlOnlent.~ of the prCJ;CnI-day forms of ethmc cleanslIlg. Is dIll stllndpol1l1 allY more cOl1lestltble 111 thc vnite
of the WrItings of Damel Jonah Goldhagcn (1996) alld Richard Wlcsbe:rg (1992)?

«l Uday Mehta (1<mI). ~1 JII "" Sofithml WtodeJU! \19191 AC at 233-4 (emphJ.§ls added.) In contml, Ihe Ul$IIffititudy IlImlllU wttC: capable of
nled
suffenng but llielr suffering vns 10 be: amello by an ~rulOn of me rtghts (as powers) of lhost who ~n: suffiCiently human (lhuS, the
p"lriI1e plInM ~t of Ihe husl».od or the father over women and children).

D
Two Nouons of Human Rights 49
In contJ'2St, the post-Holocaust and post-HiroshimalNag:wki angst ~sters a normative horror at human violauon. The
'contemporary' human nghts discursivity is rooted in the illegiumacy of all forms of the politics of cruelty. No doubt, what
counts as cruelty varies enormously ~n from one human rights context/instrument to another.42 Even so, there are now in
place finn jllS lognU norms of International human rights :and humanitarian law which dc-legitimate as well as forbid,
barbaric practices a.f power i~ s~te as well as in civil society. From the standpoint of those Violated, thiS IS no small a
g:Jiin; the community of perpetrators rcmaim incrementally vulnerable to human rights cultures, howsoever variably, and
this matters enomlously for dIe violated. In a non-ideal world, human rights discursivity seems to offer, if not an 'ideal',
the 'second best' option.
No matter how many contested fields may be provided by the rhetoric of universality, indivisibility, interdependence, and
inalienability of human nghts, contemporary human rights cultures have constructed new criteria of at least delegitimation
of power. These increasingly discredit any attempt 10 base power and rule on the inherent violence institutionalized in im-
perialism, colonialism, racism. and patriarchy. 'Contemporary' human ngh~ make possible, in most rcmarbblc ways,
engaged as well as renexive di"ourse concerning human suffering. No 10n~r may practices of power, abetted by grand
social thcory,justify beliefs that sustain willful inniction oflurm and hun as an anribute of sovereignty or of a good
society. Central 110 'contemporary' human rights discourse arc vision~ and ways of con- 1Cruct101l of an ethic of power which
prevent the imposition of surplus reprcs~lon ana human suffering beyond the needs of regime-survival, no matter ~ow
~vagandy determined. The illegitimacy of dll;' languages of Imnu.s:c~t10? becomes the very grammar of
international politics.
Thedlstmctlon between 'modern' aud 'contemporary' fomls of human rigflts IS focused in t4king sldfning miol/siy. In
the 'modern' human rights
~Fo . r example: 15 capital punishmenl 10 any fonn and with wh~tcvCT JusriflCltion & Jlncncr of cruelry? Whrn docs dlscrumn~tlolI, whether based

on ..... nder class or taR!:' a~UIl _L, f o· • . ,. Ie mr ann 0 lOTlure proscnbed by International hunun nghts sl~ndaT(h and nonns? When may fonns of
scxual hara5smenl at (he workplace be de~ribcd as an upcct of cruel, mhomane. and de~ding trI~~tmem. forbidden under (he currcnI

~mr of Inu.:rnauonal human right! standards and nomls? 1)0 IIOII-COnSCn5Ual sex PflIctICes Wltiun nurriagc relatIonS/lips amount 10 rape? I)Q JII

form~ of child labour

=nt
Are me~ Img:mon proJeCt! CtCallng eco-cx.les and
10 cruel practice, on Ihc ground thaI the CQnfiscatlOn of childhood is an ~ R'5S;Iblc human vlollilon?

• runental dcstructiolv'degradallon ktSof dcvclopmcnul crurlry? Arc programmes 'I1.is ~UIl:S of structural adjusl1l1em all aspcci of the polmcs

of Imposed suITering?
range of qucstioos is vast and, undoubtedly, more may be: added.
50 The Futun:: of Hunun Rights

paradigm. it was thought possible to take human rights seriously WIthOUt taking human suffering ~riously. H Outside the
dOl11am of la~ of W1r betwttn and among the 'civilized' nations, 'modem' human rights rt. garded large-scale imposition of
human suffering ~s jwl and ri~1I11l pursU1l of a Eurocentric notion of human 'progrm'. That diSCOUrse Silenced hUIlUn
suffering. In contraSt, 'contemporary' human rights paradigm is anuTUteU by a pohtics of intemational desire to render
problematic the very 'rOOon of the poIitia of crudty.

VIIl. The Historic Processes of Reversal

The processes by which this reversal happens in the col1tem~rary era art complex and contradictory and require recourse to
human rights mod~ of reading til(: histories of the Cold War and, now, the new Cold War. While no capsule narrative is ever
reliable, I present here, in bare outline, five ways that have shaped the thoory and practice of 'contemporary' human rights,

(a) FragmmtM UuivtrSQlity of 'Collttmporary' I·/I/man RighlJ

It would not be too much to say that the defining feature of the 'contem- porary' world has been the rise and faU of the principle of
~f the right to sclf-:4etennination in India, the
self-:4eternu- nation. Beguming. in particular, its career with the historic assetUon
principle g10lnlizes Itself, In the early phases of the Cold War, through a r:ldic~1 insistence on. tl.1C IlIegttl~ macy of
colonialism, Although severely defiled to people hvmS. unde acnullyexistingsocialism, the Soviet Union promoted
sclf-:4etenmnatlOll abro.ad, through the granunar of wars of national liberation, SocialISt ideology powerfully discredited j
ustifications for imperialism and c~OI1l: zation, while manipulating a startling level of support among the neW, 'non-aligned'
nations for brutal repression in l-Iungaryand Czechosl~

and beyond, . . ' cnC(' The division of the rest of the world mto twO giant sphercs of Influ, ) (itself a cuphemism sheltering
.. be
unconscionable forms ofhulIlan \llol~tgh,on had a profound impact on the fonnation of'contcmporary' human ~ I"; Cd
. ratcti In II
The practices of right to scI - eternunauon came mcaree

r
~ g' III lhe: fof"
4J ~ the I1lIe«'5l1ng analysis oon«tnlng 'mllllmlUtiOn ° luncrlll JrcId4'Jf matlvc ""nod of'modem' human nghts in Charles
'ny\or (1999) 124, 140-3, I IflIIC ... - , ' 'h ' '''IlS 10 nilnl Tay\or'l obscrvauon thn In 'eontemporary Onll'5 W'I: ave new rca...... , perh'1-""
luffenng but W'C also Ixk a reason to overrKte the mini~ltil~gof $u[f~rlllg Ii. r I. best understood in n::buon to the notion of rachc.al evil
dl$Cusscd III Chaptc
Two Notions or Iluman Right'> 51

r hcgtmony and domination,'" The 'self' proclaimed to be %detem1inauon' thus stoOd constituted by the play ofheg\"monic ~
This necessarily imphed that d~e birth of the 'new' natlons was ~ also markd by the superpower lin position of enomlOUS
suffenng ~ crudl)', Justlfied by either the progress of world socialism or global ~ In this sense, nco-colonialism is born Just when

the practices of* right to self-:4etermination seem to succecd,4S Neo-colonialism not merely shaped the context for the birth of
the ..... SU~; it also worked itS way to,contain the newly-found sovereignty oflbe Third World. The need to mallltain 'spheres

of influence' provided jaIIi6c:atiOn for nunufacturing. Instal Ii ng, and servicing regimes and cliques of~ in the Third World that
 engaged over long stretches of time, with ~ in all kinds of gross, flagrant, massive, and ongoi ng human rights
-.
1be task of consolidation of the territorial boundaries of the former -.mal sates J>OSC.d another limit situation for the

universality of the right . 1IIf'..detrmunatJon, The 'new' nations of Asia and Mriea somewhat
I' ~Iy,insls~~ that t~lc.right

to,self-detcrTllination extended only .. tiIaIIioru of c1~SSIC c~lomahsl~, avaIlable to their peoples only ona in IiIIIIIIIIy:

to detenmne their collective status as sovereign states within th ••• of ' II . e II mtcrnauona aw, That fi gh t, o nce exerd~, was

extinguished ,. future times; .thiS pmumed that the 'Iogic' of colonialism which ... aU sorts of different peoples, cuhum, and
territories vessels of ...... unity should continue in the post-colony. The postcolonial state tomehow to erc-ate-()Ul of many
natlon5-a single 'nation-statc,.46

,"': 'Monroe ,Docmne' of tbe Umted SQles soon round It'> countcrpan in the DoctrlDc , unredeemed by ,'" prmCiples of .L . "-__ .L _I, ". .L - ,. r ~

world, U"" .............. 1 .. In UlC VJslon 0 ~ and forces other than idcoq,'Yalso mflucnced the poliocs of 5upe~r ~ ss;,bc7fior mfluenct also

rmrked the Impenal scramble rorworld resourca' Uai.ed';:Sl uds, IlOQbly ods, mmenls, forest W'Calth, IIItc~tlo[\,J1 WltefWlly.'l· ~ A~ns

C}u,~r was, thus, obscenely mampulucd, for example in ~ .......... _ ' , w-fla, Congo and t"'-. .. ~ • • ~_ 1m '.' ' .... 5t ""Ian Ctlse5-rnana~mem' 111

superpower _ pcn;Ulsnl HIQtmtro tsclr II h of $Clf..d..: ' I a over ag,ull 111 t e pby or the theory and lIcoIoruu ·tcmllnanon, The dccololllzmg

world w.lS m thc process ""'" ~""'in .......... tlQI1. Sec Adllile Mbc be ' ,.--",.. , -~ of the 'sPCfi' fi m (2001) ror a VIVid analy.'ll~ III Ihe MriQn

N" .. ,,, I hCl IC orm or moblllu uon or space and «'SOUrce" , t lin t e l<ic:ol<><neal ' r . aid lito r -"" n::cQlI1posmon (I thc world, the

inlu~uon, by Nehru "--_ . ° a non-ah'''led c . r . --.:tnJlOt;ll ' I "" OmmUllity 0 Stltcs played ~ highly creationiSI role tbc U:b'!~u~an rights.
It dcployed the symbohc apll<ll of the voting '':=:::;~ 5bnda:.:;ora Gctl[:nl Assembly to improVJsc nchly the creation or , debT-. f~ or huoun

nghl$. These envtSioned a JUSt international so um1n nghl$ V!OI~dons. created by 5UPCrp<JWet rivalry. To
52 Th~ FUlurc of Human Rights
This enterprise proved hazardous in the extreme both for the new national governance eliteS and for those who professed
radical right to self-detennmation that now perceived the claims of 'national unity' as a species of nco-colonialism. The
Cold War provided both a creattve slinlll- Ius and a bloody limit to this kind of assertion.
The creationist logic of the right to sclf-detennin:uion, however, gave languabrt: to the aspiration to the politics of identity
and difference withm the 'new' nations. The processes by which the right to sclf-detenninallon was eventua1ly
dc_radicalized WC~ not only interpretive or semiotic per- formances. They were also exercises in near-complete
 militarization of the ways of governance, as also of resistance. The twO supe~rs, and their satellites, be it recalled, conu-
ibuted heavily to the militarization of the Third World states in ways that instinttionalized the potential of horren- dous

violations of human rights being perfected in that great normative workshop called the United Nations. Far from being dead

on arrival, the logics and paralogics of the human right to self-determination brought to the contemporary worlds of power
new forms oflegitimation crises and democratic deficit. At the samc tillie, from the standpoint of those denied sclf-deU!
rn1ination, the postulate of universality of human rights emerged as a deeply fragmented notion. The vaunted universality
of the right to self-deU!nnination thus stands frag- mented in the ~ry moment of its enunciation.
(b) Tht Cold J.%r NawraliZlJlion of H,mum Rights ViolafiotlS
T he politics ofhuman rights in the form:ative era of the Cold War invented its own ways of naturalizing (or de-
problematizing) human suffering. The Cold War, consistent with the traditions of politiol cruelty in the Euro- Atlantic
stateS, restructured the modernistic criteria of exclusion. Those suspected ofbcing 'communists' in the claimed spheres of
the 'Frt:e World' and 'bourgeois sympathizers' or 'capitalist roaders' in the claimed spheres of the socialist world were
oc
subjected to permanent states of emergency: the rt ign of terror and genocidal practices of politics. Enemies of'dem -
racy' in one sphere or of 'socialism' in the other were txtludtd from the

be sure, the rcgllnes m the: Third World also, and at the: n me time, deplo~d ,he Cold WAr Justlficauon~ for v\oiltion of

hUlmn rights. In this period of the Cold WJr. we sec the: e:me:~llCe of contndiction betwet.:n human nghts norm-c:rcauon at

the: global level (politlcsforhuman "ghu) With a cla,m, In the name: of"~tlon-bulldlng'. te
10 v,ob thete: W\th Impunity at

home (politics of human righu). The unive:rsality of hu~ righu geu fractured all over ag:un along the :lXlS of nonn-c:rcatlon and
e:vcry<UY violation.
Two Notions of Human Rights 53

'.N' "''''1''''',''1.' ",,.."";0',"' Wlthm continuinewly hU~1a1l thiS pass. proclaimed 'I N wi ~ hi' t 1e human m ad ern'

rights in the nonus emergent and sta paradigm n da r ds ,mar- of the k eme~llce. rights. Human rights acquired a

fragmented ' um- these word~ I~ the sense of lived histones of the hberal as well as soclailst societies. These presented the of
the US McCarcl!yism as 'natural' in the ~)'Stematie nus-

of thousands of communists' (in I I ,d onesla " 10 .L u le 19605 one example) or reigns of terror in the Soviet Umon and .......

,sta'~. Ov~rall, new for~1S of govern mentality by death and IOIDOOO,POfol"'""c.s ..... eM h us emerged." The

concentration camp emerges as egemomc goverrunce, providing a 'lIybnd oflallJ (md

two Imru }wve b«Ol1lt indistinguishable,.48 .... rp,is;,,~ly, m rep herOIC res SIOI1. .' indiVidual T1 . Ie ' contemporary' and mass

resistance human ensued rights-in-the- ' d espue '

:~~:~;~7:i~~:'~:~;~'~
uch to . the . practices to Not emerge :~~:i~:~ of to resistance as understand a the force vOICes and '
the questioning martyrdo of ways the in violated. which m, the agalOst might The

cllis . the very future ofhul11an rights. Those who would iii ,::~:-;~~~ontem~rary do human rights only in terms
ofimer- O-pohucs of desire, ignoring. thus, the human
a great disservice to the future of human rights.
(() Otulalvry of RtJ(lsm human normativity shows a ~markable, even ; ~~~~~~~~~~::~~:~'~~:';j ' . . . .
of Declaration institutionalized on the state Elimination racism. Con'- ..... 1973 ntton ' on Dlsctlmmatlon. the Sup pression ,

1%3. an d and PUllIshment t ' nding with of the the Crime Inter . I" .,. ...... standard rife cam WI:"p, ,Urt ,:resentS i
gtlhagamst supe~er er I a memorable human rightS convergence .rivalry and discord. The articulation ' a h whole Ii

raCIsm, vaTi all e'l tv forms 0 f ' IIltcrnatlonal of intolerance . human ' even of and xeno- rights ~;; lIC0 t~n reflect (though, at

times, also lead) the CO self-d S_te ,.~teT~l1natlOn, lorms.

~o

pies III thus. stntggle begins and its communities IOllg march in towards resistance th~
54 The Fururt of H Ullun Rights
The recent United Nations Conference Ag3inst Racism (Durban, 20(2) suggests how intractabk the taSks of combating
'racism' after aU ~nulll. Its dclibcratiollsle..ding to the Declaration and Plan of ActIon wt"rc polanzcd by activist and
South govemmel11l.1 critique-and c=vtn dcnun. dation---of the Stlte of Israel for its conduct towards the PalCSllllLJIl
people's Just aspirations and for the violation ofthcir hum:m nghts. Indeed, the considerable evidence: of anti-Israel
sensibility that has led an bradl scholar-3Ctivlst to dub Durinn as 'the anti-racist' racist conferencc'.4'1 Unfortunately. as
wdl dIe 'Islamophobia' in the: ~ of9!t t also enacted at Durban some im~nnissible racist reconstruction of imageries.
Further, the claims for rcpantions for historic injustices (including slavery) raised uncomfortable concerns for those who
specialize in addressing the COil- temporary forms of 'racism' rather dun their historic lineages.
The critique and counter-critiqtlc, of course, makes a serious contribu- tion when it condemns all fonns of new global
racism in emergence via a series of xenophobic and intolerant discursive feats on all sides. To review the entire Durban
proceeding is a taSk for another monogn.ph. True, a social theory of human rights devoid of cridcal race theory ill-serves
human rights futures. SO ll~r, it also seems to lack dIe resources to fully address critiques. and counter critiques. of both
aggressive and cruelly Violent forms of Zionism and the assertions of Palestinian sclf-detcnmnauoll, these Vlolent spirals of
r:lIcial hatred, xenophobia. and related forms of intolerance. These remain scarcc::ly fully uldrcsscd, or redc<:mcd. III the

p~nt view, by passional engagements and enngcments, even when inevitably enacting constantly bloodied and animated,
intcnsely partisan. understandings. The futures of outlawry of racism, thus, offer an obsunatt agendum for contemporary
humall rigllts fonnations, shot throUgil with violent constitutive ambiguities without any promise of endings, rendered the
more intransigent by the violent racial stereotypes marking enactments of dIe new 999 years-type leasc:!purchase of
terror
future histories of racism. xenophobia, and lslamophobia throUgil the languages of dIe 'wars "f ' and 'wars Otl terror'.
Even as dIe nomutive movemcnt outlaws institution- alized racism, including thc apartheid state fonnations, it also S(.'CIlIS
to relocate these on fCgisters of the ncw politics oj, and for, human nghts. I low. amid .... t aU this, maya ncw 'Reason' for
ed
human rights be fonll and enYJOlllbed widlin the 'Unreason' of globalization and its manifold
~ Sec, Anne lt1~f~ky (2002) 65-74, who wntet: 'Durb~n ga~ us aJ1u_Sel1l1U~T1 III the n':l.Ine orfi!.dltllll! rxi~rn.
ExduslOII ~l1d lsoiatlOll of the Jewl~h $Ute III the t",lll( or tTIultllnerah~m. Durban provides ~ pbtfonll of h~te and
oui
VKlk:lv;:e, wluch \llIsht ttl be de;lCtlvatcd down before It corrupts the: cnUK' agerl(b or the Unlled Nall .
50 See the analYSIS in l'atnru TUitt (2004) 1-20. 37-55.
Two Notions of Human Rights 55

~ms' is indc<:d a question that may well defiue d f: d fi the futures of human rigllts. ' e ace, or e raud,

(d) Tht Marxitm Critique

P,. . onnatton also umvcr·
The Marnall critique of boUrgeoiS human righ~ fi . I sahzes Itsc In exposmg many a genetic fault

hne iu th bo . .c_ li od I f h ' e urgcOIs,asalso u,.; sOCIa st, m e s 0 uman nghts. In the c t f h . . . on e)C( 0 rat er sparse diS- cou~
~') th I e o-Amencan
concernmg M.ano.an contributions (at least in th Angl . hoi Iy sc 2f orults to e t leary and histo"" of the

fi . f ' • h 'gh . , onnatlon 0 contem- porary uman n ts, I may here randomly list the folio . f 1lIIpJICt. First, philosophic cottage
m
industry of'left legal' 'd~ng types 0 us aU the virtues of dcmystifYing the Ian'" d "1 ~oursc [each ...... 52 <'_. d'..

o·lagcS an r letoncs of human ..... ts. 0.>«011 , post-SOCialist' as well as' st-liberal' . . . . poK the distinct problematic of

recognitioPO f ,fe~1Jmst crUlques ~ . n 0 women s ngllts as h .... ~ now articulated in terms of the ',ee . . " . uman

(Cbaptrr 6) TI ' d M ' . . ognmolv'redlstnbutlon dilemma'

• 1If;, aooan critiques of imperialism have nurtured ~'!:;:a~~:rec~ tdh~t .has p~omot~d r:lIdical

dccoloniution of the =r~~ , vane ltmeranes of Its de-socialism 53 Po rdt . . ... coombuted forms of no . . . . u, the cntlque

nnatlve artlculalJon of I ' . 0Ia' natura! resources S4 Fijih . . . peap es sovereignty .... Justice, within' wh::h' '; Inst4l! ls
crucial conceptions of d istributivt" ...... MId standards may be: a ~~e colHcl~p?rary human rights values, .... dws.

powerfully raised th sal II ~o remain Just . The Marxian critique oljlMia t{hunJlJtJ ri~1Is S' h e ~ -m~portant question,

the very question ~ has (d . th'!XI, at east III terms of nonnative discourse the iaao.ation of :a~:~ e m.~y p,hasc:s of

the Cold WAr) contributed ~ the _Ittd promori .al constitutional conceptions of human rights protec- on,nunyaspect.Sofrvv;:

1 '1 .. ....... to the M . I ss r_ACO oma constnutlorulisms bear anoan egacy. " !II: ~ Brown (1995, 2003)' Bob Fine (200 g , Brown

and f lail (mz ' I); Upcndra Bax! (1993). See, especiall R cy ), Alison M. Jaggt:r (1983). 501 A )\ oben Young (2001). PI-...: ~re

IlSung. wuhoul ade I h . of dat PUI'Jl'Osc1 the rel('Vam ,; 'II ate ISlOrlcal analysn, may mislead. But for the bourgeoiS P . re c,:oces are: the

conspiCUOUS a_ncc of rot«tion _~ UnIted Naropc, rty fights III the' Imernatlonal !JIlt of Rlgl," .ndPc gh and IOn5 DI..'Clar.1tJon 1\0 • •
 u,rQll ~ Wealth, Ihe Declu:'lIion ~ on . rnu.Jlent Sovt-reiSlity over Natural Re- t.Ie.. -:: the New Intcrnauo 1 Social Progress and
Developmellt, the Dec- Th idhlnfOOl1lt,on Orde~aal~~or~'C?rder. the (aborted) Declaration on the ~ IS appens vanously. j:."

e antlon on the Right to DevelopmenL ~: Prtvatc property n~~~~~lCOlomal State form derog:.ucs from the PUblic rC$OUfCes b ' the Stlte

emerges nOl: JUSI as an alloarive ut as a constltuuonally authoriud ....... ~ . .. ~~", ..... mlf: agenl In Its
56 The Future of Human Rights

Confrontc:d by its own nemesis, the ~stemlmodern tradition ofhum~n rights has :It long last begun its new long journey of
critical enga~menl with its own reactionary human rights-violative potential. It has achieved this partly by a.rrivlng through
the long and tOrtUOliS process of COI1~truc· tion of a. welfare.state paradigm WIthin the bourgeois formation in all 115
56
contradictions and complexity, a difficult history thatJurgcn i la~nnas h~ traced for us 10 his ~rminal 'WOrk. (e) New
Fomu of Global Solidanty

The brutal ideological competition for global supremacy created, dialec_ tically, the political space for solidarity on both sides for
voices of civil society to emerge in variegated pursuits of the politics/or human rights. The histories of transnational solidarity
generating new human rights cultures, even in the most difficult milieux, remain preciolls for readings of human rights futures.
From the present standpoint, 'contcmpornry' human rights come into existence with the movements for the abolit1On of chattel
s\;!.very, cross-national support for self-determination (at lea ... t as decolonu:ation), the outlawry of war as 'politics by other
means', and the expanding arcs of solidanty intemv;ning intemational working class, eco- logical, and fenunist movements. The
pattem of solidarity that emerges is overlaid with ideological contradictIons, and not only through the I1ml- tifarious contortions
ofEuro-Marxism. It raises further difficult questions concerning the ways of understanding the birth of a whole new form of
global thought and action in which concern with hum:m rights transcends national boundaries and interlocution of political
S7
thought and theory :as socially and ethically 'neutral' social practice.
All this then awaIts the discovery of a Foucaldian
tpisfertl~ for human rights.
As offering interlocution or critique of paradigms governance and stlte power everywhere, human rights become floating
signifiers, not embed· ded in sovereign territoriality. The 'global institutionaliz.ation of human

own nght: It owns and manages national infnstfUCtUral Krviccs, rlluonahu·d enter- prt~S, and SUIUtOry corponliollS, as well as

govtnllllCnt COrnpill1les. Third, III o;omc SIIUlUOIl~, postcolomal constitutionalism marks a slcady emergence of lhe SI.lIC In tIJ( forml of
finance upluhsm. Fourth, !llela-Ievel SUIC F1Vc-Yeilr Pb,1U bcrolll(: bolh tIJ( vehicles of nallonal CC01I01ll1C governance as well as devIces

servlCll1g humlrl r~ econ01m es. Thc IlistorlCS of pre-globahud South constllUlIOluh~rns n~'Cd rCITI ' from hll1mn tights perspect1V'CS,
111 thIS cpoch of nmp;Jnt globahutloll

56 Jurgen I bbc::rmu (1996). ~7 1 tu,ve In I1lmd here Ihe: transition from the dictum orlkscartc$: '1 flullk, thIft!It' I .m', 10 the
radIcal motto or A1bc::rt Camus: 'I rtbd, rMrrforr WI' arr.'

Two Notions of Human Rights 57

,SI! ' 'fi th - rights' ,Slgnt les c mter·penetratton of dl(: worlds of the politics for burna» nghts and the worlds of power. The

violence of the Cold W: d dle unfoldmg ncw~ld Wu, innovate the politiCS ofhuman fights ~~ I submIt, by the
ongm~ and development of the Cold'" r b ' ___ ~_~ b war lonn;;!Uons ue aboexc=uo;unQW ythe post-Cold War ortheNcwCold
, . ' war. fa po itik.
m RIII This capSu e narrative IS heaVI ly sugg.:stive of the mam ( __ '. 1 •. _ h • . h ' ceso VWlfflCtWlthm
whic contemporary uman nghts paradlgnl has emerged. It seems always the case that thc ('mergent di.seourse on human rights is
h '1 JW':I.'>IUC on hum;;!n suffering. C3Vl y

IX. The Emergence of the Politics 'of' and 'for' Human Rights

lbis capsule narrative also, hopefullv renders I -bl - -- tba tit h' f ' I' egl e my .senpt that IIlSISts t c. IstOryO .contemporary' human

rights ;;!ctivism has its origins in dat practices of resIstance 10 the Cold War global fo . . (h - - a(crud<y Gl b 1 . I rmatlon:;o t

epolincs . .0 a , reglona, nalional, and loe .. l human rights str I d ~ments m the Cold Wa . , ugg es an . . r era wttnessed !lew

practices of the politics of erudry toapOlllt that, at times, converted the whole we Id 'commulllues' of I WI r Into scattered

IIincd. . gu ags. . len reprcsslon was the most severe :md sus- summonlllg terms Ilk 'liberation' 'democl':lrV' d 'h ripus' convc'~

i d I ' '--, an even uman . uhis , ... '" mages an t Ie reality of aggressIve State·telTorism. It is . mn!::onc ~mb that th e protc;;!n

focta l life of the polituJ ojlli/ttUlII rights 1Iinbpan~_stmct1on to the poIitiaJor human ngll" ~gins Its almOSI

cacsarea~

Pohticsojbuman righ d I th riabb lOth cis IS cpoys esymbohcorcuhuralcapiulofhuman P:JbaI gri~ :~d of man,2gement ~f

dlS~ibutlon of power, in national and ntQ aggression a~~:;~buman fights beco,:"e the pursuit of politics- ~ . . y o.ther

m('ans. Politics ojhuman rights at times _ associated WIth terronst repression of realms fh expression h d' be 0 uman autonomy

raImg idC':Q1 ,were lssent comes treason and !>)'Coph;;!ncy of the ~tiona~ assumes the comm~nding height of free

expression. And ~ as plotn~cy de~t1y uses III this form of politICS visions of global No h commandlllg heights for

ideological compliance. 59 ~fol~ except tile mJOlmioll ill hlltllall £en.sibility-;;! rather romantic ,0 coursc-rnarks lhe passage
from the politics «if!luman rights

: "' •• Id Ilobcruon (1992) 133.

, to a POI~[ that even In tim JO-CIllcd rra ofhmnJn nghtS, fonnc r officials or ~ McCanh party VOICes full-thrmlcdly seek 10 ~UStlfy'

hoTTO _ ... _ aspirations anJ :;gJIIlC and lhe, vanous lechmques of desublhu uon ~ gtmcs as po meally 'senSible' programmes!
58 The Future: of Human Rights
. n-· to the tortured and tormented voices of the:
to the politicsfor human rightS. This new form of sen~ibility, arising fro", th

ViOla ..... · . f~, th,t order

e responSive ...... . ' "''', speaks to us of an al'tmo~ politics s«king, against the heavy odds of tht h
ofp ............... <: which makes the st.lote InC~Illt'n
IStoneso "'_ .. _. '~--. • tally more ethical, governance progressively ~ust, and
stru-..les which these name draw heaVIly on
power increasingly hi The
VOICes
aCCQunU e. ~ 'd d h cultural and civilizational

resources richer than those P~I e y the til'llt and space of the Eur~ndosed imagirution of human fights. whIch they also
seek to inn()V;lte. .
The historic achievement of the 'contempo,racy' human ,fights ~lovt. menu consists in positing peoples' polity against sute
polity; or m ,t/l( assertion and articulation of visions ofhurnan future. through the ~~t1~ of the politics for human rights, tha~
''
the shrivel.led soul.ofRealpol~tlk m~t , . I AlII e "me time tillS stru~le IS overlaId by the IlIStonclty forever resls . I , t>&' . . . f
r.lclices of human rights activIsm. I turn In the next
o contemporary p . h ood I ad chapter to the ways of this happening, wh ich

c~nstltute t e m ,. met I , and message of the 'contemporary' human rights movements, In dttply heterogencous ways.

3 -
The Practices of 'Contemporary' Human Rights Activism

I. Leading Questions ,... ,,_wars, T development

he
clcasity, of
practices
much norms, diversity, lively
of

human rig/liS activism

of and the discussion. and standards 'modern' direction, and The and unending and rich 'contcmponry'
emerge differently in the
their diversity flows histories of of human human interpretation have rights. been a rights ItiC"JlC'
funher any presentation of the histories of human rights ac-

wbethcr 'modern' or 'contempor<lry' . 'ftn m"'a, • remains Imporunt to understand human nghts activism as a set forms of

social actlon, that engage: the 'labour of transfonna- a s F .... uY In do, the then present the practices oplllion, ofhurnan human
nghts rights actiVism aCtivism works work with with and the IW ofhum<ln suffcnng aosing from the demal of dignity, equal

aDd conce-rn for all hurn,lIt beings. Its transfonnative pnctices human rigbtlcssne-ss at myriad institutional sites and with

divcr- -"hanaan 0I"....! P'T ~ I WtoIogicai r~ DIbonaI, ".ghLS preservatIon. of human supranational,

nonns orientations. ngllts and protection, practices. nonns These and transnationaVglobal) promotion, and rC'main They

standards produce directed and at renovation alllevcls both to and the politics further nomutive and (local, '!land repair prx- re- ~

Ihia of nghts; the 'poilucs put differently, of production' they reinforce, and the 'production a5 well as reinvent, ofpolitics'.2 the
SOUnd too abstract for impatient readers. all I need to do is to refer

I i;;~.:; a(~fbf(lmutl()n of r rodUCtKIn)' tr.ln.dimll~tlon (1969) 166. Althusscr of dctcnnm~te offcn a nutcmlist
g:.~n TlIW theory Inaterbl ofpl1lCtlce, 11110 a detcnni- which effected by a dctennll1ate human labour using deter- But~ (1985).
60 The Future of H uman Rights
them to the re<:ent ex2mplcs of the Ogoni Bill oflughtS3 and the Zap:.. Declaration of 1996,4 tllQ I focus here mainly on

a few characteristic features of PnoctlC contemporary human nghts :activism without, hopefully, eSM:lltiaJIZI~
01 . 'h 'gh " If ' h d go< Flfst. bcc:ause uman n ts Itse IS suc a WI e-ranb'1ng tlouon practices involve many distinct forms of
tr.msfonnauve labour; hu~ rights praxes demonstr.l.te that (to borrow a phrase from LOlliS AlthUSsa-) 'all the levels of
sodal existence arc the sites of practlces',s Second, wtu~ human rights practices are relatively autonomous they also
remain sit\Ult1I within the structure of production,6 It is in this sense that I later (in Chapters 7-9) variously approach the
tendency of conversion of human rights movements into hmn:m rights markets and the h~avily g1ol»Iiu- tion-mediated
forms of'trading away' human rights, Third, these practices asSlimc different fornls: thus, one speaks of distinct sets or
types of prac- tices, such as political, ideological, technical, and sdentifldtheoretial practices relating to human rights,
Fourth, human rights activist prutictS raise some profound issues concerning authorship and authority of reflex- ive
human rights actors,
II. 'NGO-ization' of Iluman Rights ActiVIsm
Almost all contemporary human rights prxtices taU an associative fontL that of non_governmental org.nizations, The
impact of the NGOs on Ibr nuking and working of human rights is so considerable that contempoWf human rights may
~main unintelligible outsid(' thelT netwOrked practlCCt The NGO-isation of human rights is a pt:'rvasive ~ality. And
yet the 't'(l\ t('TIlI NGO mystifies in each of its three constitutive t('rlllS,
First. as any logical :analysis of the qualifier 'non' makes It imnltd~tth obvious, it remains recklessly

over_inclusive; the pr('fuc foregroU~ its nonsensical character; logically put, the prefIX 'non' would lI\d

l Ken Saro-WIWol (1992), 4 Manuel Castells (1996), . ' Ahh~ ~ I adopt here some features of tr.lllsformatlVe prn:uce deSCribed by tJrPI ' 6 An

adequately materialist theory of human nghu acU\l,~nl doc) ral~ .t>1rd' queStions coneCnllTlg the 'detcrnllnanolllll the last lllsunce' , I
c
aVOId here dllS plirtpiJI Hut I do agree w!th MIchael Burawoy (1985:9) that human rlglm pncu ", ", , . ' d I 'rcbuo . .A UleJCapahly located wnhlll

mIcro-apparatuses of domUlanon an I Ie ~ thf1l"'" latter 10 sute apparatuses' The qUCSti011 has been vaTiously approach k~ Mantian Critique,
flOll
the bw and economIcs-type theorlzmg, the law Jnd d~
a \IP" genre, and, recendy, III erloqucs of contemporary cconOftllC globahU ,
ovcrvteW, sec Upcndra Baxi (2003) 469-70,
The prxticcs of'Comemporary' Iluman Rig/us ActiVism 61
.... 1 cb~ is not 'govcrnmental'-from squirrels to stars, cleplunts to
With this logicallr nO:lscnsical character, one m:ay want .... rc:ach of the qualifier l1,on by ~y111g that It denot('s any

thlllS ~" -.KESS which or 'gov('rnmentahty', IS or o n be said to be: Put another the Other of way, It signifies 'governm

an~nn " I _ --.II twCf)'thing unrebted , to, or III opposition wuh , whatever..... .... may want g .,,)I.an by 'governmem ,

HOwt'Ver, It IS hard to Specify what stands thus ...... iCD III erleclrd Much _ . . NtcS.:an UI ~ fine ..L WiK
Wlththestateasr~ferrmgtoarrangementsofpo U'..n ~~ here __ exercise h UJnamtanan place, U1 ' d

depends :arc resources, th CIT . 0 governmem I f I IUS practIces , I Sl1C on 7 I necessarily I and ' The how power, 0 developmental

expression we f " IS ' h an Ilowever wish uman adversarial Idea to rigllts 'non-goverl1lnen'~I' understand that ' th,·o .- ••

mTee terms, we usually and broadl wer over peop I es

Y
activisn, not all or NGO' s "on.. p ractlces see c Irontauona NGO . k ... to 0 may s . f produce contest h uman I .. Ulen ' ' ' 10
programme~ and policies in ways that contribute , and even realization, of human rights, In this respect remain co-
governmental rather than pwtl-goveTllmental'
foster sustainable 'government' through ostensibl; whole pr~ctlces by elected officials and state administra_
 ;:::~":~lll!~~I:~~o~trallsgovcnun('ntal •Iju"'~ , Ie. . I lilppcns, ,too ' most {j cw COntest NGOs

policy and political :actors

the work arbltJ'arllless Wltiun . the of parameters the . notion hum;an nghts fate or faith to the

acddental ract f rntory do not controlled go SO f: ar as by to a assert state, With Even cosmopolitan NGOs th at pursue theory

tasks that 0 OQc's equivalent life chan so "" of ;accentuated ' a . H feucla I pnvdegc-an by " '~te TIl I t inherited be ra I

democT:lcies status that is .".,." ran, Founu" In melr (2000, ,ntr~l 208-9) ~1Iggt:Sf5 th~1 gove-mmellt rrm~ins concerned with

;:;:t~~"""'~~;.""';~S' ~'''',rn. Ihll1ktnR~nd ~lId \Q . SUbsIS::;S nllsfununes' on', 'lIIen ,ermory III t:::',thrlr rebuo so on' a ' II

nd lIlen ~o Imu, other WIt thhrlr dungs ItS Imbnc:atJon s ...... r-- th~t lfi .IC are qu~ CUStoms, WIth I ItIes, thingli c I habIts llIl~le, that III relatloll

to IhO$C sull other thillgs tha; ~II\ (1995) 331-49 S;I;h as famllle, epldclIlICS. and ckuh and 50 on', th~t '(Pvtll Ihe su ~2. l3ulldlllg upon tlU)

lIlslght, Ch~rlcs Jones .k-. \l,'e: hkthhtlOd ~ ... y need n~ to th to ask at h vc 50IlIeQnc w Ph a y recQglll7.ably these arbltraflness will

chara.ctcnsucs h ~vc hUIIIJII ell of h er one's CXlStence',

more 5hould anccslry; ...... ealth "n ..... place ofbinh 50 than fa r they I owa".s can _ .• '
62 The Futun' of i-Iuman Rights

The second notion-governancc--signifies 'modes of objectification that transfonn human beings imo subjects', or the ways
III which 'a human hemg turns himself or herself imo a subject,.9 These modes and ways of ~r In stllte and SOCtcty
constitute a subject that is .at oncc ~th 'free' and 'detenninc:d' . 10 Progressive critiques of human nghts 1T12I1lUIIl that the
languages of modern hunun rights constitute: human rights s~bJt'(ts as humans who are 'depolitidzro', 'egoistic' vectors
of constnlctton of 'an illusory politics of equality, liberty and co~~munity in the d~m;lIn of the stllte' in ways that nusk
'material condmons of unemancipated. inegalitarian civil society,.11 Jf so, unrdlexi~ NGO p~~Ce5 of human rights
activism participate in the rc:produ:tlon of subJC'Ct1o,~. and, ,thus. disrupt any 'pure' essence that may be said to llurk

the being of non- goven1llleutlil'. . The phrase 'non-governmental' also obscures from VK'W the fact that as 'organizations'
NGOs themsel~ stand infected by governmental and b'OVernance processes. Most NGOs arc birthed, o~nically o~
throU.~l caesarian modes. within the specificity of legal auspIces; they enjoy I.cgttl- mate existence only within the rib
"Ours of the state and law-~ncttoned associatlonal forms. Even transn:lctional advocacy networks rem,un cxposed to
forms of mn!>governmental regulation, as, for example. acc.rcdltauon within the United Natious system. Funher, all
NGOs have their mtemal code5 of governance; their internal 'constitutions' embody a diver'>C p~t terning of leadership,
deciSion-making processes, hien.rdut:$ of power, and arnnboements of accountability. lndcul, most NGOs themsdvt's face
dilemmas of legitimation not wholly dissimilar to tha.sc that coufroll~t the very boovcmance structures which they often
syste:mlcally oppose.
The appellation 'non.govcmmental' misleads because most NGO- endeavours remain directed to either
strUcmraVinstimtional state reform or episodic amelioration of state policy and conduct. The qualifier 'n~ governmental'
does not also enable us to neatly separate or dlstulgul5 fonus of human rights activism associated with people's movements
frotn those sponsored by self-serving politi~1 regim~ an~ ~le~r~ l~f t~ business, and industry, which
also amculate theIT dlstlllctlve ult(;rt'S the prose of human right. ...

'J MIchel Foucault (2000) 32(j. . . \9921: 10 See. E.il P;t..~I\Ubll1s (1978): Wendy BrowII (1985): Pr:ter F.lzpmul;. ( CosQ~
 l)oU:I;IIl.l. (2000: 183-28): P:ltricia Tuin (2004). rtf'! II ~ndy UtO'Wf1 (1985) 114. They also onend a JUl"br cnuquc It> con.t"1I1PO

hUf\l~n nghts fotm~lIon (as .... Ie nott in Ch~plCr 5), I III" ... . I h~r:tSsnlCnl ~ 11 For UOimple Ihe eXJwlU.ng consc.ousness

eonccmmg ~X1u !OfI workpl~ Ius ~n to amlCt (~t leU! m tOOu) WOIYS of NGO Ultcmal adnlU"SI~I
The Practices of 'Comempol"llry' Human Rights Activism 6J

The third tenn--governmemality-invites attention to ...

.. The ensemble fonned by Ihe mSUlUlions. procedures. alla~s ~nd n'flccuons, cbt calculatiOns ~nd taetlc.s. that allow Ihe exercise
0£lh15 vcry specific though albeit complex {onus of ~r, which has at Lts Q~I population, as Its pnnclp;t.l from of knoWledge
politic~1 economy, ~nd liS CSSC'nual lechlllcal mcallS appar.UUSH of ,ecurity ... \J

Human rights actrvism also crystallizes 'complex {ornts ofpowcr'. It drvclops its own, often distinctive, {onns of this
en.scmble. While one may think that human rights activism s«ks to engraft a grammar of conduct by stipulating
'governmentality' standards that control 'conduct of con- duct', it also, al the end of the day, remains enclosed within its
fonns. For example, when human rights action activates judicial review powers and process it also reinforces 'specific
though albeit complex forms of power' as well as the 'principal form of knowledge economy'. That form involves, ill the
words of Claude Lefort, 'development of a body of law and caste of spcci.1lists' that sustain 'a concealment of the
mechanisms indispensable to dac effective exercise of rights by interested panics', even as they also prunde 'the necessary

support for an awareness of rights' .14 And human riIfns actIvism stands often silenced by the 'technical me.ns' directed to

die preservation of the 'apparatuses of security' as we now learn yet once apm m a post-9/I! world ordermgs, despite the
recent American Supreme Court's landmark ruling concernmg the residual due process rights of the ~wumo Say
incarcerated.
~ te:nn 'organiZ1ltion' also misleads IIlsofar as It overlooks the poten- .. of dlSOrgalllzcd or spontaneous soci.al action
directed to the promotion ... ptotcction of human rights. It over-rationalizes the Idea of human ~~vi~. The key feature of
many a notable NGO (as we see in ~ 7) lies precisely in its amorphous character. _ Away OUt of all this perhaps lies in drom

thatdcscribe NGOs in te: ...... r .... . ·third ' . ''''-'' Clear! .sector , relatively autonomous from the sute: and the market. ~
thiS difference suggests, ill relation to markets. the pronounced ~c of a profit motive. But (as we suggest III Chapter 7) the

di5tinction Illata n human rights movcments ~nd markets now stands increasingly ~d Funher, were we to develop a

Bourdicu-typc notion of symbolic L-... .' the cmphasis on lIon-profit-making characteristics becomes prob- -aattc. Indeed

NGO k " I " n their , s see to maxll1l1Ze t lelr III ucnce and ~ugmcnt POWcr-basc!>. The notion that human rights activism

shuns power ci;hel Fuuc~ult (\997) 219-2(l.

\Ide Lefort (1998) 260.
64 The future of Hurn:,m Rights
and influence IS counter-intuitive as well as coumer-productive. Practices of human rights necessarily aspire to attain
counter-power or 110n-d0I11I_ nating political influence th.u we may want to name as a form of ahnlistlc or fiduciary
power, which p~nts ilSClf as being more Ilistorically apablc to ukt human and social suffering seriously than fonns of
government .. , power. Such self-Imagery enables human rights NGOs to sharply dlStlll_ guish themselves from business
and industry cartels and. specifically, re- ginu'-sponsored NGOs. I suggest later in this chapter tlut thiS, too, remains
heavily problematic. Overall, for the present, I maintain that we do not have adequate ethnographies of human rights
activist practices that would reinforce the notion of the 'third sector' beyond its potential constitution by the altogether
virtuous exclusion of profit and power.
III. NGOs as Networks of Practices
Reading human rights practices through the 'NGO-ization' of the world raises the second question: How may we
distinguish human rights NGOs from otllers? Is it an egregious error to narrow the domain ofhull1an fights activism to
specifically human rights NGOs? Of COUTSe, tillS question is entirely snperfidd for the vanishing breed o( readers o(Karl
Marx's Kapual (Volume O ne, C hapter Scvcn) tlut describes in great and grave detail how partnenihip with
progressiw:--or, at least, broadly human rights-inclined- policy and political actors and the learned professions (including
the theo- logical) emerged to give birth to, and further progressively encode. the Magna Carta of workers' rights through
the regulation of hours of work. as well as the progressive outlawry of carccral exploitation. Likew\se, contemporary
human rights activist practices demonsmte their highest accomplishments through creative penormances of partnership
amongst learned professions, mass media journalism, activist academics, the dis- senting scientists and technocrats. It
generates 'contests' of principles and actors as well as 'webs of influence' .15
On another register, the question o( reading still persists. How may we ftad these patterns of working together? Do they
tend, more often than not, to legitimate :md reinforce credentials for domination or do they sharpen prospects for
f
authentically human rights-oriented performances of power? Indeed, how far may the NGO human rights activism ic.el
U John Hnlthw;lIIe alld Peter Drahos (2000) 475-301. O ne must also lIIelude Within tins tile' tlOlme betwec'1I
nauonallTlStltuuons of human nghts: see, SoIU~ orden» (2004).
The Pnctices of 'Comemporary' Hunun Rights Acovism 65
begin the itineraries onts own ethical corrosion that variously appropriate huntan cooPtation, sulTering as a spectacle, thus
raising the spectre of complicity, or even corruption o( human nghts activism? In what ways does an exp:msive notion of
human rights activism complicate tasks o( roistancc and struggle? This chapter and. indeul, much o( thlS work rc:OUIRS
eng21ged with (what some leading literary theorists name as) the 'artXlcty o( judgement'.
More specifically put, how may one read/place, along the axis of domi- ll2r:ion and resisunce, the manifold cross-
professional practices of human rights activism? This question assumes importa.nce on many arenas and siteS.
Coopcr.l.tion as well as ambivalence marks relatiOnal pattems. First, wbile activists have encouraged and welcomed the
emergence of activist Justices who have. across the North-South divide, made somc distinctive contributions towards
securing human rights within their jurisdictional spheres, they also remain ambivalent concerning the rolc of adjudicatory
power [0 ameliorate thc reproduction o(the old and new forms of human rightlessness. Second, while transnational human
rights advocacy net- .orb ~k to foster collaboration with state and policy actors on a terrain
• diverse as 'ethical' or 'moral' foreign policy, 16 or fair trade and ethical awnU11ent, or funhereven collaboration and
cooperation by human rights ICtIVllots with international Civil 5C:lV3nLS and natlonal bureaucrats,l7 inter- national and
regional financial institutions, and whole networks of aid and clrvelopment funding agencies and (oundatlons, they also
remain reflexive, even dlstmstful, of such partnership among professions. Ukewise. third, Innsnatlonal advocacy networks
that increasi ngly accomplish human rights Obtcomes across a vast range o(intergovernmental sites IS remain agnostic
concerning the within-nation levels o( tr.mslation of the rather heroic «lDsensual feats thus achieved. Fourth, as we see

briefly later in this chapter. practices of human rights activism become enclosed in a creeping ICIeIittsm of human rights.
This occurs at last at two distinct levels. ~unun rights activism no longer has the choice to remain confined to JUndlC:ll-
political levels when it deals with arenas heavily overlaid by
" Ch
~~dler I
11 w::ays that now also ~ve5 w::ays of 'nllht:uy humamt.mamsm'. See. Invid

(2001). I pursue sollle o(dlese linklges III thiS chapter and in Chapter 9. Bm 11 remains \IIoorth notmg that III lIl.lny a SoUlh society
incumbent as well all rtctlred bureaucrats ~ III wonhwlule efforts at fostering hllllUll nghl~ culturc~. SlJa.1 ~~ Anuro Escobu (1995);John

Bnlthw.ute and Peter Dnhos (2000); l.eslte '" ( 5); Shlrln Roll (2002). SIgnS ofhopc IIlduck the rontemponry movement. ~nplc, cory Protocol.
agalll5t geneUC3l1y mllLlted (oods, paru.llly codified now by the Cartagena
66 The Future of Hum~" nights

sutuuve multinational difficulties corporate in frami big ng science human and rights high diSCOurse technology around as the
biotcehllol~ ve'Y' on. ogy, digitalization. and uses of nuclear eLlerb'Y for peaceful ~nd war~hkt pu~s so deeply rt.:veal (sec
Chapter 8), Further, the v~'ry dl'i('ourse 0( human nghts performance and achievements tends to expo~ new forms of scienusm In
the exponenually growing speciahst human rtghts tafIt concermng tndicatorslbenchmark&lmeasurement. Both the~e ~re:nas
con, front human rightS activism with tasks of engab'Cmt:m with 'technopolitics', that is, creative forms of engagement that
somehow construct and imt;U conversation among communities of science/technology With those of human rights,19

rv. Variety of Activisms

The tlrircl question complicates the terrain by problcnutizing conceptUalization of 'activism' itself! It abo straddles many
Important distinctions betweell 'movement', ' resistance', and 'struggle', ActIVism lTUy be so episo{hc as not to acqUire a vis;age
of a movement. It nuy parukt features of a movement WIthout necessarily signifying even the rem()l:( reSidues of relations of
struggle or rCSI!>tanCC, Or. It may J,cqUire features of rcsistance wlthOlit coming ncar the richness of the notion of
~trugglc:,llI In a world of historic MarlClan/soclalist moment, the keyword was 'Strt1ggk', In the post-Marxian world, we
trade in symbols so value-neutral a~ 'movc- Illcnts,21 or Ideology-lInbued notlOI1S of'reslstance',22 My chOice of ~ temt
'activism' aim!> at eomblfllflg elements of 'struggle' and 'reslstancc III way:. that allow bC)lh as deference to the subJcctlVines ill

resistance, In this I tains thaI stmggles, properly power linked with knowledge, almost 'objective' so wholly competence, called,

of social peoples follow are theory-type 'an III Michel and opposition struggle qllaliflCatiOn-struggl' Foucault , descnpttoll and to

commuI I Ie who effects as "WO'r llluts wdl

ts
0

,21
agaUlst secrecy, deformation, and mystifying representatton IInposed on peope, Thefouffh, 1 and related but dlstmct,

question , ' concems I ' o the: r SOClo- i C list origllls of human rIghts actiVism,
t Ihl'~ ISSues.
19 Rlchnd Pierre Cbude (2002) provuk5 an cnS"smg d I"cU5)IO!l" 1vill

" :10 The dlSlmCtlOn~ dr.Jwn here W1l1, [ hope, b«omc ck~r III t c 'u "lq u~111 ~lll' I-' uffered 21 !>tt, In thiS M;!.nuel chaptcr. Dstcl1, (1996), and for

loOlllC nuJOl' dl .... gr«Ill<.1U. UI'CuJp ~ 12(00). :u See, U~I~kl15hn~n IhJ~~1 (2003),
n MIChel Fouc~ult (2000) 330,
The PractICCS of ·Contcmpon.ry' Hunun RIghts ActiVISm 67

rebtcdfifib question direc,ts, attentIon to some ~cxin~ I~~ues con- ~ fOrTl1sofhunlOl11 rights acuVls',ll, OftheSt', the dl!

>unction belWtell ~ d tfu(wral forms of human nghts activism remalllS of pal'2l11oum "... an S Episodi( human r~gh~

activism, that responds 10 here-and-now ~d human rights. Vlolatlon, crUCially dlfccted to dlll1l1l1sh lived! ::::;-tcd
human suffcnng, mayor may not assume the Visage of a human m~ment, Nor may it address the structures of human/social

~,S/nIC/ljral human rights activism that :lSplfes to state and suprastatc ~ reform attends, in the main, to the causation (and,

hopefully, mtrasaJ) of human righdessn('Ss; its intentiorulities and impacts remain Ilwayl mdcterminate. It re,lrui~ open as

,well to the approprianon--even .-imi1ation-af human nghts msurrecuonary langu~ mto the heavy .... of gowlTWlce. Ferbaps,

this distlllction remains one of degree, rather than ofland, To . . rather large examples, episodic activism combats practices of
hostile ..... discrimin:Hion and violence and practices of torture 011 a day-to- ., ... in the expectation that incremental progression
(now curiously ~. 'gender mainstreaming') in human rights culturc Illay thus be .. c r.t. whereas structural activism blueprints
deSigns of social , cultural, _potick:aJ revolution (macro-level transformations) that seek to dimi- _propensities for human,
and human rights, vloJatton, The asplTation ".programmeof actio n writ largt' 0 11 the Convention on Elimination
IIfDiIcrimirution Against Women (CEDAW) (the Women's Convention) ..... a most conspicuous result of structul'2l humnl rights

activism, n: Iwbuus (as Pierre &urdicu described modcs of ~uled disposi- -).: or the matrlccs, of human nghts acuvism

matters decisively for ., ~plation cona:mi,ng the future of human nghtS: thus, for ex- -..e. b grc;!.t decolomzauon

movementS-the harbingers of'contem- ~J' tunan rlghts-differ very greatly from some current movements -l'CnWn h 'I

Plllir:itsand eavi y resourced by m:e~as aid, trade, and development --1ICadi programmes and by multlllauonal corporate

philanthropy that -... nghly marks the transfonnatioll of human rights movements into ts markets,

110e __ , V. Questions Concerning O rigins and H istories "'---:-" «I'<cd b d" '-.unt on ' ut IstmCt, question
concerns the complex socio- ...... oo:ns of human rights activism, Iluman rights actiVIst praxt"s CU!tutllly cmbedded
and ;!.utonomous, These also remam
68 The Future of Humm Rights

~ndosc:d within n:U1onal political histories, and processes, even when empowt:red by netwOrks of tr.lIlsnatioll~1 human
ngh~ advocacy and action. Often enough universalistic assertions ofhum:m nghts norm~ :and stand:ards launch culture
wars in which the 'n:aoon:al' human rightS tndl_ nons confront styles ofth~ 'glob:al' imposition of human rightS. I explore
th~sc: :and related issues in Chapter 6. Equally important renulll~ the qu~stion of relationship between th~ 'Old' and the
'new' social movements and human nghts movementS: How may we navigate the Scylla of reduc_ tion of all social
movem~ntS to human rightS movc:m~nts and the C harybdis of reduction of all human rights movements to the merely
juridical?
nle question concerning origin further directs attention to the realm of territorialities. The swtlllh question is this: I low
may we grasp theter- ritories thc boundaries as well as the borders of human rights actIViSt formati'ons? How do the
changing patterns of dc-territorialization and rc- territorialization of human rights activism occur, and with what historic
impact? By de-territorialization, I here signify transportation of issues and arenas of great concern to human rights activists
from intensel.y I~a! le~els to Wlder transnational advocacy netwOrks; likewise, re-tctrltOtlahZ3Uon SU@;brests dlelr
rep;atriation to local settings. In yet an older ~~r~-Delcuze3n) senS(: tcrritoriality 3150 refers to the struggle for
t«ognmon and power even 311long non-sovereign actors, including the NGOs. Their tmfwan fonn a secret history of
contemporary human rights actiVIsm. But any hUlll3n rights person who has worked close to the gro.und knows how
S(:rious these can ~. Further, distinctIVe North-South dlfferenuals In the pursuit of the realiZ2tion of 'contemporary'
human rights produec oppo- sition between the 'grass-rootS' and 'astrornrr varieties of human nghts activisms. These
present twO la~ domains of territoriality III terms of geography of difference and those ~f n~nnative dive~ity. I. low
llIay ~~ devclop en3bling n:l.rf2tivcs of the hlstoncs of th~ rel2uonshLp of comp mentary and conllict among th~ NGOs?

And further: How rn3Y we tract the distinction between movements and marketS, and the now stc:!.dr . h . I rkets'

conversion of human rights movements mto lIllIall ng Its rna . All this, especially the last question, illvites attention to the

prior his· tories of human rights activisl practic~s. By common convention, tlh' . . d i d lleJas t1e 3ssembl3gts of the

practices of resistance 3n strugg c stan nal 'old' social movements-which did not have access to the contc1l1pOl"i~ . I d
 r I · c'"""ncc. languages ofllllllun tights but, rat ler, pave ways lor t lelr elll ' 1;0- # The 'old' SOCial movements mclude at le3st
r t rnauol'll
five specific forms: the I~OVC I h 11I~1lt for dIe abolition of chattel slavery, 1 e movement lor Lil e

2S Up<"ndn Ibxi (2000) 1l--45 al 36-7, and the htenture therem Cllt"(!
The Practices of 'Contclllpor.lry' Hum3n Right'l Activism 69

bIJIIWIiurian law, the suffragist movement, decolonizatlon movements, aDd the worki ng class mov~l1lents. 26 To

name all th~se logether IS to invite ,arntion to their disparate origins. dcvclopment, and futures.
Even to outhn~ these in a Mr~ sketchmg reqUIres extraordmarycourage, bordcnng on foolhardiness. But this is pr«isely
the narrative fisk I IIn~t e.xpose myself to in order to suggest tltdr rich dIVersIty in relation 10 some formative human
rights histones. The first two movements were tnSPircd by recourse to varying tnditions of natural righb emphasizing, ~a.I1,
the right to«, and torrmaitl, hUlmn. The third Signifies stntggles against gender-based exclusion from civic participation in
politics, presag- ing 2. wider movement for women's rights as human rights. The various dKoIonization movements
generate the principle of self-determination, ~timating the collective human right of the European peoples to an
emp~.

1ltc workmg class movements present the confl icted history of the right oCassociation 3nd thus signify the proto-history

of all contemporary human nptsmovements. The struggle for legitimacy and recognition that encode tIiIIories of trade

uniOIl lIlovements everywhere testify to the power of tDCial movements to constnim and compel the state to acknowledge

the Iep:im;tcy and legality of cenain forms of associauonal activityP This jIntic.aJiu tion constitutes 3n melucuble aspect

of flourishing of almost C'MI society associ3tions. The working class mo~ments produce new e.IIen oflegality that

recognize the human rights of workers: at th~ same - , this production of politics (emancipation from nnmiscration) also ...
to the politics of. production (new forms and opportunities for tbnination and repression that justify limitations on th~
collective right tJ«rikc. once upon a time furnishing a description of their 5Cmi-SO\Ier~ign ~). The relationship be~en

juridicahzation and movemt"nt remains t.decd complex and contradictory; it opens up as many spaces for practices

af'hunun rights activism as it also further ttl{f~s. E~n when articulation

~ ~ I~ 110 longer politically correct to rIlenllon In tillS llstmg the Great October ~on and IU aftennath,. Bm a future hlstori31l of

human nghu may not be thus ~, lbed. She may al~ dlsaggrcglte the 'h~tmg' offered here, In temu of dcgrees "-t:aI or ·pubhc'

panlClpaUOI1, the wlfhm-5y:.tclIl and c)(tn-sy:.tCIIlIC challenges they ~Iy, and put together, pose to the emrenched models of

bourge<Jtslpatriarchal 27 nghl$, and subscquclII world 11l~loric IIllp~U. And cwn today. tlus 5tru~e oominues III lI1any pms of the

world. Sec, generally, ":''' ."",'.'"lver (2003) for an mSlghtful R:V1CW of labour movelllcnu and 'gfol»liu_ 11 1870s
that traces workmg·.dass struggles III Ihe idiom of restsuntt r.lthcr \'kttrnagc, a '1U.rr.l.llvc of workmg-class fomlauon III wtnch
 events unfold III a nrne_space, see, al~, MKhacl UUr.IWO)' (1985).
70 The Future of Human Rights

of human rights movements into sanctioned juridici forms confers an order of comparative social and political advantage,
juridicalization of movements (the modes of sute recognition and the attendant pathways of legal regulation) necessarilyatTects
the powcroftheirvoice. Indeed, labour law and jurisprudence begin to regulate and trim the strength of their numbers and forms of
pre-incorporated social powers of struggle. Even so, the histories of working class struggles narrate the transfomlaUvc labour of
practices that, as it were, confront the minuscule with tht prowess of the multitude. In contrast, much of current human tights
production remains the work of human rights elites and entrepreneurs. Outside of the bloody and bruised history of trade union
movements for the title oflegitimacy and legality, and sitting in deep contradiction with the pMadigm of 'modem' human rightS,
lie the sites of 'anti-systemic' movements 28 that in the main eng:a~ visions of large-scale social trans- formation. Such
movements profoundly interrogate global hegemony and domination in all their habiuts and appeal to languages both of human

rights and glob.11 jusriee.29 we, however, learn also to read their situated ness, which de-radiclize somcwhat their space
(autonomy and legitimation) and ideological thrust. Struggles against decolonization, for c)Qmple, thus tend to becOlm struggles
for autonomy in postcolonial nation fOrlltalioos that operate within the finn collective grids of territoriality, representation, and
repression. So do many a current struggles against globalization as the discourse of the '\\brld Social Forum at Porto Alagrc and
Mum!»i so richly demonstrate, Anti-systemic movemcnts become tr.mslated into practices of resistance directed primarily to
refornling the state and global governance.
JO
The early intimations of the anti-systemic movements mark the birthing of contemporary NGOs. They were readily facilitated
by the formative traditions of modernity accompanying the advent ofEuro-American legal- ity, which also provide registers of
contradiction: for example, the reprcs· sive denial of human rights movements in colonial possessions and thcir

:za See, for example, G'av;lnnl Arrighi (2000), Andre Con. (1982), Etienne Bali~ and Immanuel WallentCln (1991).
2'1 See,
forClCllnpic:, NaomI KleIn (2000); Anonymous (2OO1);Jai Sen, AnIta !\lund. Arturo Escobar, Peter Woltc:tIllal\ (cd.) (2004); Jai Sen
and Mad.huresh Kum:ar (2003)· J() like lbe: Ptnnsylv'lIlu 50nety (or Promoting the AbohtlOn o(Sbvery In \71$. the BmlSh and Forelgrt
Aflu-Slavery SocIC'ty III 1839, the Ilenry Dunam (1116l) Gcnc:V' rubllc WeI(are Soc,Cty (Ille pn'(unor of the Imemat/onal Red Cross) and
Ihe: UIItf" national consortium, mclusivc of the: Intemnional FcdeTlltion of Trade UnionS, dIal kd to the: prototype: HIgh
Comml5SlOUCf of Refugees in 1921. See, Karsten NoW"" (1996) 578 al 582-3.
The Practices of 'Contemporary' 1-lunJan Rights Activism 71

joI1dlCal f1ouriS~ling in the metropolis. In a related, but diffcrent, mode it ~merges dUring the career of the Cold War
constitutionalism.
31
Not all forms of practices ofhurn:l.n rights activism necessarily Signify 'anh_~tel1l1c' movcments. Rather, they display a
remarkable evolution- ary profile :l.S, for example, the tripartite format of conscnsual production of tntcrnationallcgality via the
Intcrnational Labour Organization32 or the hunun nghtS production under the auspices of the United Nations systelll. In a sense,
thi!. process has resulted 111 the creation of a milieu of participatOry culture of global governance, which then tends to
univc~lize itself as a virtue of all forms of political governance. If the proct'5S has incrcm.entally a~gIllel1ted ~he

legitimacy of the ever-growing corpus of the UllIted Nations agencies and auspices, mcluding some exposed to very severe

legitimation deficit,)) it has also, no doubt, created a puinc tr.msgoverrunental space for global initiative for justice and ...... ~

........ The history of the early precursors of the present day NGO connuu_ ~ h:t.s yet to be written. But we know at
least this much. Firsl, inter- IIIOOIUI NGOs, III the .ea~ly part of the twentieth century CE, though few m number, were vast III
J5
Impact, especially in thc sphere of creation of IlllimUnonai humanitarian law. Stco/ld, civil society org'lIllz.atiolls were,
 • fact, mdlstlllgliishable from the great SOCial movements such as ami- ~ labour, and suffragist movemcnts. Third, clements
of metropolitan civil SOCiety, especially Church-based groups and movements, assumed ~er voluntary assoclanonal fom~s in
colonial settmgs, in ways ~mforced, as well as reSisted, pr:w:uces of colonial powcr.J6 Amrtll,

~ See. ~perull): John Urall.hwaite and Peter DnhO$ (2OCWl), 11 Brlllhwane and Dnhos (2OCWl) 222-55. IiOa ~tld I]lnl;:
(1996). ThiS rcpon rebles to FY95 pr~s report on coopt'ra~ ~ /llhe World Hank and the NGOs. The FY95 refers to Ihe fiK;lI yen

an ~ ==:.:,ly 41 pt't Cent oflhe Ibn!;: p~ conuancd proviSIOns ooncernmg

on~~I~Ple, hUTIIln righes NGOs have been SOIhent in anlculauon oflhe Idea ~ ~~ Crnnmal Court: sec Stt:vc ClumoVitz (1997)

183,266.1 mcnnon thiS NGO PUrsuol ~" II1U1tr.1tcs more than ally <xhu thc hlStotiC lon~ty of p~ ~ -"'kI tk. Ihe ;l(cOillph~hmem

of a very dilTlCuh ~tructural tn.nsfomuuon III 15 A. tt I' See al~, generally, John Urallhwalle and Peter Dnhos (2000). , Or txlll1pJe

the r, "_" ClIIIIort.UllI of N ' creahon 0 t Ie ''''' CI"OSlI and dr~ by an IIltenutlonal -1921 ~ DOl COs tlul led 10 lhe CTeaUQf1 of the Illgh
ComnllS$lOner of Refugees lIi 'n th' . td B Forsyth (1996) 235: Steve CharnOVltx (1997) 183. ~m c~~r y 11lstorlCll of

CQlonlali~m tlut emer&." as a (onll of mercamilist ~"'I alldehartered JOiI,. .nock companies, the rdationship among European
nu~totuncs Wtte deeply connlCtCd. Willi imposttlOn of dlt~1 rule
72 The: Future of Human Rights

relativdy autonomous, pc'aceful as well as violent, movements fo -- dd l -- h -bd" rklf. dcternlmaUOIl an eco omutlon ave

contrl ute lar more du.n is rently understood or acknowledged. Fifth , and not [0 be: ovcrloo~ tends to be: tll(~ case in
fragmentary accounts of the (:Vollmon of COnte porary human rights-is tile importance and impOlict of

1I1ternOlitiollOlll fIl. cialist OlInd communist movements. All this points toOl compc:lllIIg~ 7 a general history of
humOlin rights movements OIlS sociOilI movements, a: this has yet to fully emerge.

VI_ Space.
These prefatory remarks do not fully address the tasks of theory or hiStory but merely foreground, and Tather eclectically,
some concerns that accom. pany an understanding of the staggering diversity and density of contem. porary NGOs.l 7 I
pursue this understanding within widely divcrgent histories of their formation and development, in three distinct but
related ways: in terms of naming and description; modes of organization and connectivity; range of resourcing, agenda,
auspices, and ideolosr·
This sp:ace has m:ade possible a wide variety of NCO practices. Thnt practices may be briefly inventoried as follows:

• Fulllrt r"IItPlting: Contrasting with the rather cffete tcrm 'conscious- ness raising', a whole variety of practices of
hUIl1:a1l nghts actiVIsm co- imagine alternate visions of human future, de-legitimating the relgntng conceptions. The
simple but powerful pnctices interrogaung rarom. colonialism, violence, and discrimination against women, social
exdusKll'. and environment;ll degradation, for CX2mple, create conceptions of aliti'· native just as well as (tAring human
furnres. .
• AgtrUk-sttling: Many NGO practices seek to create an agendum 01 political :and social action :arising out of their
conc~ptions ?f ah~": human futures-the most conspicuous ex:amplcs hewg provided Y environmenul and women's
human rightS movements.

bl role 111 !erP by the colofllzmg power. missionary actiVity pbyed a conslden e f odrt1 cJ of spread of IIIe1'llC)' and education in the

colonies and III Ihe creation (lb EJ!lrll" Ihe colOlllzed to spread Ihe new religion as \\.'ell as of loyal ~ubje,ts of I ',olurle" These

geocnl observ~uons here will suffice, given the eJCtnordnlary IIlflCt)\ dUn" ity; and contradictIOn III the rebtionshlp between the Church

and Ihe suer c:olollluuon. 05 (ZOOZI ".J 17 1 kre I may only refer interested readen 10 the diSCOUrse: of Sail! W~tcS (2fIIln to the
mo re specifICally focused analysu of'petro-lIlOlence' by M,eh;w:lJ.
The: Practiccs of 'Contemporary' Human Right! Activism 73

w: NGOs arrive on the United Nations platforms (:and ~r as first draftspersons or co-authors of human rightS

:.,ooD<""cIEquaIlY, theyc?mbat with great vi~ur developmentS that ..... ... the fragile normaUVlty of human rightS.

• ~t.1(jllt: In the still dismal sit~tion of continuing direct. or sponsoml violations of human rights, NGOs pc'rform a Wide

~ of wks or roles Icadmg to human "ghts Implementallon. These wrictY . ombudspcrson,expost, investigative, lobbying,

and 'ouse lawyer- ~~hC advocacy roles. These. tasks/roles entail dose colla~ration :;. prinI and dectronic mass

media and related learned profeSSions.

• SdidtuUY: NGO practices seek to sustain, even empower, national "1ocaI--~1 rights activism against pnctices of the

politics of cruelty. JIDMIfuI gloNI condemnation against repression ofhmnan rights activists " em has created ~
global ~ulture of empathy f~r those who struggle ... plerneru human rights agalllst all odds. Emergmg networks of soli- ~n

and among NGOs endow them with a fiduciary power, ..un possible the pursuit of human rights-to deploy the sanitized

Nacioru prose-in 'difficult situations'.

." _ same time, it is abundantly clear that there is not Ot/( but !III."f6olN(:;CI,_. Indeed, one might say, pc'rhaps with only a
slight there arc, at the end of tile second C hristian millennium, as there ~ human rights. One major issue for compara-
rights is to construct maps that chart the plural, , territories of praxes ofNGOs . Sma these possess pown-s of self-
defimtion, .any endeavour to pattern the worlds nuy Sttm foredoomed to failure. When ~ add to this the ideologues, who

work with or influence the NCOs, the task ~I the more formidable. And any mapping Will be fraught probkm.atlc nux of

descriptive and prescriptive elements. This W IIIStmtly evident when one seeks agreement on conceptual cat- IUCb as the

following:
":"'~~It IS, the geography of difference (at the levels of existential ,~ _ , regional, national, interregional,
supranational, global); .--r- In terms of fH' I - d - r - o_lIea Ogtes, an narratives 0 persistence over

~I moblliutioll of mfornlc:d public oplllion againsl Ihe Mullilaleral ~ .. ~~"",~~.m~'~":.,<~~!::~:~_:~~_ I

progresS 1011 on behalf .ind at the behesl

I I, one 5Dikmg Otafnplc:. Sec Sol Piccouo and Ruth M3ynt'
74 The Future of Human Hights

time; • Agttlda: classification ofNGOs in temlSofthe specific configuntlons of human rights they seek to promote and protect;

• Rllidily: marking capabilities for transformation of initially cspouS('d agenda:

• Rtfltxivil)': providing a register for cumulating apericntlal lcanung_ enhancing sco~ for future transformative praxis;
• AUlOnDrtly: in relation to forces of OXlptation;
• ToI~rarjo": devclopmem of understanding for divcrgence and plurality within the inner dynamic of day-to--day working
and of respect for Sister NGOs in the same or similar fields of action;
• Aaomrtability: direcuy to those constituencies of violated peoples, rather than indirect forms which relate to
accountability to donors and funders for human rights action;
• Exuflrlllt: reflexive monilOring of attainmcn~ven achievements;

• Solidarity: providing sco~ for human rights altnlism, notjrm 'nct- working'.

In the real world, NGOsare consuntlyexposed to evaluation bydlversc msrrumcntalitics: governments, the Uni~ Nations
system , thc donoralld funding agencies, human rights advocates, and, occasionally, by cOllsum- ers/bcneficiaries of
activism, and even the security forces. I descnbe SOUIt of these ways III Chapter 7 by the metaphor of human rights
'markets'. But there docs not exist, to the beSt of my knowledge, any full-fledged normative approaches to the
understanding of the diverse worlds of the NGOs. This remains important, in the prcscnt view, because of UIC rapid
emergence oftrade-relatcd mark£t-friendly NGOs who also seek to marshal the languages and rhetoric of huma.n rights to
their own distinct ends- a.Il aspect that I briefly explore in Chapter 8.
Further. the distinctive patterns of govemmentality of NGOs, in turn, collidc Wlth those of organized political society (the
state/law formations). This happens primarily on the register of theory and practice of represen- tation. Many human rights
l
activist formations radically suggest that actS! feats of political representation of peoples by the elected officiab do no
ex/uulS/ the idea of representation. In this, they diverSify the ve ry idea of political represclltation that contests forms of
clectorallegitl1nation. ThiS extraordinanly complcx decollstrucrion coequally acquiesces and contestS logics of power and
domination. However, NGOs acceptjuridicalrzauon of their very 'being', as it were, when they assume 'legitimatc'
cxislenct'
The Pracric" of 'Contemporary' HUIlI;ln Rights Activism 75

within the boundarics of law and administntion through formative de- yjtt5, such as a trade union. trust, charitable society,

coopen.trve socicty. or even a com~any. Thus .cons~ltuted and infected by stltC power that subjects them III both d.lerr baSIC

Structures and ongoing o~n.tions to ove:n11 governance superrntendence and surveillance, they also contest. at umes
radically, Statc legitimatIon.
All this J~ads to very diverse .p~iccs of the politics of naming that connmul shlf~. TIlUS, the constitution of self-identity
of human rights acuvist fonnat1ons undergoes a variety of exigent naming. I r.mdomly list some as follows:

• Civil Society Organizations (CSOS);

• International non-governmental organizations (INGOs);
• ISOS, a Francophile usage for the INGO;
• Non-governmental Development Organizations (NGDOs);
• Environmental NGOs (ENGOs);
• Indigenous Peoples' Human Rights NGOs (IPIIR.NCOs);
• Women's Rights as Human Rights NGOs (WIIR-NGOs);
• LnbigaytbiscxuaVtromsgender NCOs (LSBT-NGOs);

• Child R;ghts NGQ, (CR-NGo.). "Ibis already formidable listing, I have, in an earlier writing, proposed:

• Ptoples Organizations for lXmocratic Rights (POOR);

• Organizations of the Rural Impoverished (ORP); : Participatory Organizations of the Rural Poors (PORPs);
Saeed Action Groups (SAGs);

• Anti. poo Pa .. (Aoo..PQP- r, roelpatory Organization of the Rural Impoverished RPS) ;

• Assoc· - lations of the Urban Impoverished (ARP-NGOs)· • GI ba ' • 0 I Commons NGOs (CC-NCOs). 8wtn this listing

d xl . ... also oes not e laliSt the ulllverse. Thus. by way of example WItness the proliferation of: '

• Busllles~ d . • • 11 UStry-sponsored NGOs (BINGOs); 8uslOe~ d n Ustry-sponsored Environmental NGOs (Bl£NGOs);

76 The Fumre of Human Rights

• Rt:gime-sponsored NGOs (RS-NGOs);

• The Kofi Annan-led Global Compact NGOs (GC-NGOs):
• The lFI-sponsored!mediated NGOs (IFI-NGOs).

Thest: naming practices have histories of their own. All put together, they variously !lurk ways of internal differentiation
withi.n praxes of human rights activism. Thcse also provide diverse ~ndersundll1gs of SOcu.1 and historic melanges of
contemporary human nghts values, standards, and norms.
Attcmpts to resolve difficulties of naming practices may seek to ~isen. gage market-permeated and state-sponsored NGOs
fr~m the bcll1g. of 'purc' non-governmental organizations. How .m~y we dlscngage s~clfi. cally market-sponsored
associations-or aSSOCiations sponsored by II1ler- national coalitions of trade and industry-the sUUlsofNGOs? The
BNGOs (business-sponsored non-govemmental organizations) claimed and won the same statuS as ENGOs, and even
outnumbered thesc, at the Kyoto Conference on Climate Change.39 To take another ex:unple, 1 lud the privilege of
chairing a massive and marathon meeting ofNGOs at the 1993 Vienna Conference on Hun12n Rights, where the regimc-
sponsorcd NGOs claimed equal time under fair rules of procedure for participation: had they more substantially populated
this Conference, its eventual outcome would have bee:n wholly different! Regime-sponsored NGOs offer mort eloquent
justification for violations of human ~ights OIl illtern~t1onal fon than .'lute officials, claiming equal represenutlonal
power with people· based NGOs.
The difficulty here posed is indeed serious: any denial of rcgi":,eI industry-sponsored groups the starns of NGOs is, at the
thre~hold, VIO- lative of the human rights to freedom of spttch and expressIon and of association. The reality is that they
marshal resources outstripping ~host available to people's NGOs, and command an asymmetriC21l--even mau' thentic-
voice, in regimes of human rights enunciation; however, the logics and languages of human rights also at times act SO as to
tt
legltlllla their power and influence.

VII. 'Anti-Human Rights' NGOs

Precisely because: of this, i~ has bec~me dimc~h to d~,:, briglll :~~ between the pra- and the antI-human nghts
practices of aCtlVISIIl. The 'anti-human rights' is properly affuced to NGO movements that seck to
11Ic PDCtices of 'Comemporary' Human Rights Activism Tl

.-o.fv. for enmple. crimes against humani~ trafficking in human beings -:;IsGve.labour-type practices, genocide and ethnic

cleansing. apartheid, s intolerance and xenophobia, :;r,nd Justify the worst forms of pa- ~~I and child labour excessc:s.40

In the post-9!11 world, it also extends a'ilJClf_Sryled 'terrorist' NGOs which now sprout websites deuihng lethal

::;:t5 and cvcntual bloody executions of 'hos~'--:-feats of politics of Ity that mime equally, but for dm reason not

Justifiably, the 'war on ~'wastelan~s of human rights at Guant.mamo Bay and its less arche- typal reproducuons c1~ere.

Beyond this, however, the expression 'anti-hunun rights' poses a moment o(danger. Human rights enuil res~~ for fundamenul

freedOl.~ of speech and expression. conscience and relIgiOn, assembly and asSOCiation, how- J(IICftI"COnstricted and
constructed in the everyday lifeofhuman rights Law, policy, and administration. Abov~ all, und~rlying all huma~ rights .is.

the ....." righl to interprtf allilumoll nghu. Practices of human rIghts aCDVlsm ..mse and enjoy this right in plenitude and

justly so. At the same time, ktioes not speak with one voice concerning the meaning ofhUll1an rights, ellen Ilferally; at suke.

Thus, those who advocate abolition of capital paaishment continue to disagree with pro-life communities that regard ..twwia

and abortlon as violation of the human right to life:; hate speech 6idts free speech votaries; readings that celebrate human

sexuality in .,.. dut forbid same-sex marria~s or related forms of intimacy stand ~ contested. by the lesbigay/transgender
activists; and the sphere of _ buman nghts of the child enacts lIlany a combat betwttn pragmatists .. fundamenulists (that
is, those who would outlaw all fonns of child ...... and those who remain content widl its regulation). The: tempution at

name-calling should be: resisted; to nallle fonns of IIatnan right advocacy as anti-human rights simply because they may ~
from our own preferred interpretive pursuits in itself amounts to .- violation of the basic human right to interpret human

rights. All that - may justifiably say is that one's proffered moral reading of human ri&hts (generalizing for the present

e
context the celebn.ted theses of Ronald ~n) possesses greater 'integrity' bec~use it seeks to make the best PGIIibl sense, or
fit, with the ongoingdiscollrse.-41 The overall superiority 0( one's own preferred reading of IHnnan rights values, sundards,

and IIOrrns requires serious hen11eneutical as well as dialogical labours. Surely. • • ~ All theliC e'xpresslons now marslUiI a

stttled r:1ln8C' or munmg both III pubhc ~nal bw and human ngh~ I"w and Jun5prodcnct. Indeed, lOme' have even tit<: Stltus of bdngju.l

fogt'lU, peremptory ulIf:rnauonal law nonns that no .. ~, ''''h,,, nuy viobte'.

UPCndr.a Ih:ta (2003) and the Dworlan 11Ie'r.lmre therdn clled.
78 Thc Futurc of Human Rights

42
one may COLInt this as the coll5titutive. even if problematic, a~pell of contemporary hunun rights activism.
What nuy olle say about activist human rights fonnatlons that adopt violent meallS to achieve their own preferred intcrprcutions
of Inullan rights? A careful response to this question will need to dr.aw SOllie finc distinctions conceming 's;Ulctioned' and
'unsanctioned violencc', U It ..... ould seem that a 'reasonablc' degree of'symbolic violence' in public protc~~ In favollr of human
rights or by way of exposing violation is no 10118'=r considered wholly illegitimate. By symbolic violence, onc refers to v.l.1l.
daliution, even destnlction of public property (buildings, public transpon vehicles, govenunent offices, including even police
stations, even !lolate. maintained agricultural nurseries for genetically mutated plants,+! for example); the practice of such
violence may have an indirect impact on the human rights of those affected; but is not considered a human rights but a criminal
law violation, Were a global lIldo;: of public toleration of sym· bolic violence ever to be prepared, it would at least show that, as
compared to the North , such violence is routine in the Somh where effective cmninal proseclltion is conspicuous by its absence.
In contrast, violence directed 21 private property sa:ms less tolerated,
The borders and boundaries between symbolic violence that may ft- malll somehow sanctioned and 'real' violence is brought home
III !>evenl modt.-S, These take several discrete and indeed discrqunt fonn ... : froOl anil1l;!ol rights actlVlsm to 'terronst'
movements. The former practices expand human rigillS activism by contcsting die amhropomorphic d IM· 2Cter of human
rights; these engage in violent direct ;!oction, IIldudmg intimidation ;!ond phYSical attacks on die cxpcrimeno.l sites and
occa:.ionally target the homes of researchers. According to one estimate: for dlt: United States, 'more than 600 criminal acts in
the United States slllce 1m causing damagt=s in excess of $43 million doUars' have occurr('d.~s In

42 The same counscl c;rtCnds to minimalist rcadmgl> or bII5I11CS.~ and mdusuy" sponsored 'humln rights· NGOs, whcther in the fidd
nlcnl
or devdopmcnt, envlron , or glob.ll rree tr.Kk. I explol"C thi5 In 3 different but related wmext III Ch;!pter 9
-0 See,Patncla 1l11"'~ IIIslghtful l lu lysis (2004) 91 - 114. +4 Vivid CX'IInplC\l sund rumislj(:d by Ihe A/lpiko movemcnt III indl~ Ihal
ul'roo{t(l and deslroyed Eucalyptu.~ plants rrom SUIC lIurseries and the rccem snml~r Gr\'cllpc;ICC VCIIIUI"C III the UllItcd
Klnbodom in rebtion to gctlt'tlc~lIy mo(bfied rood rl,lIltS. ~ .~ Sec hltp:llU'ufW1,tlmpmgms.o'!l. Thc selic 1Il\ICstment 10 proll~'(:t
II1du~lry .. l!) (I research ~Itct can also be qUltC subst:&nri~1; III J~nu~ry 2001, (pccui ~yl1lcnt o( h 11111 lion w~s made by
the Ilomc Office 111 thc Ulliled KIIlKdolll to ~5"51 ~; Cambndgcslnl"C PolICe (or the dTcctive mamgcmcnt or protclilS ~t 1-
luII11I1",..:k'11 ScICIKt'5, Ca..rnbndgr:-.
Thc Practiccs of 'Contemporary' Iluman Rights Activism 79

~ons of violent recourse animal rights protection (and not all animal .;,)tts actiVIstS take recourse to violence) lhe human rights
of the scientISts QlrCher stand directly infringed and threatened, It remains doubtful III such siO»POIiS w speak merely of
symbolic violence.
Violence that assails, and huns or destroys, indiVIdual or group phYSical aDd psychic integrity is considered as human rights

Vlolation when under. Dknt by state actors; the question now arises whether slllular violence by pon_state actors may be
described as criminal Violence rather than human ..... ts violation. The paradigmatic situation of miliuntlanned autonomy/
lC(:tSSionist movements has raised the issue concerning the applicability olthc standards of international humanitarian law to
 insurgent groups, at kasI those that have acquired 'characteristics of a government'; at least olle South activist author has now

suggested that human rights NGOs may nen be said to have a specific 'mandate' to remaill (without, of course, lIIIioning acts of
state terrorism against them) at ann's length from such bmatiOIlS,-4(i Because of the fact that processes of decolonization and
self- dclnmination may never be said to be exhausted with the: fonnatiOIl of arwpostcolonial (and now post-socialist) societies,

it does not advance any Ianan rights fUlU res (in lCfms of the tasks of policy. dialogue, o r solidarity) IKODdtmn violent
autonomy/secession movements as wholly 'anti-' human ... happenings. No doubt, the iSSue of violence and subjectivity is very

4I!IIPIex. mdeed. 9(11, and Its aftermath and aftershocks, further complicates this picture

• understandably feady, and heavy, but stili very diverse, recourse to 110 .. '1«' of'terrorism'. Pre-9/11 approaches to
'definitions' oftcrrorism .... m.ational law were tentative and mired in the semantics of 'terror' 1IIIus human (at least political)
'emancipation'. Post-9/1 t developments ' lI.erlt a rather flattening discourse in which each and every non-sute act/ fIIIhorship
of masr/collective political violence, by definition, emcrges as '-'orism' and, therefore, as massive, Oagn.nt, and ongoing

violations of ....... nghts. It seems now intO/luivabl, that any autonomy/secessionist ~ rights-oriented movement may

e~ape. the condemned auspices of Al-Qacda. Indeed, the post-9ft I legislative enactments throughout 1Ducb of the world
render even a single empathic act of reading such ~rnents an exercise of complicity with potential and actual 'mass

tliernatlonal terrorism'! Univefsallzation of global political paranoia poses

::ave a threat to the future of human rights

as threats enacted now, and SUch recurrently haunting cruelty, since 9/11. A glo~l1y fostered

"s" • iU'IJ Nair (199I!) and thc dlJCOUTk or Amnesty Intcnuuorul that hc *, III a different VCIn, lliVld Chandler (2001).

80 The Future of Il ullI;l1l Rights

paranoia thus rc~onstitutes Osama Bin Laden as the arch obituary Wrlter for thc demise of human rights futures. However,
questlomng massi~ violence directed to re-making the world 'safe' for human fights emaLls no endorsement of human, and
human rights, violations by performanCes ohnass international terTorism'. At stake, then, is the 'unreason' of violent and
impassioned commitment stl.nding in contraSt widl dlc 'reason' of human rights.
Politics of human rights provides rcgimc-<xpedient and easy-mmdcd realpolitik understanding of current and ongoing 'wars
offerTor' and 'war 011 terTor'. Politics for human rights open up the scope for practices of reading that respttt the living presence
of the dead, ;howcver obscure', and the human rights of the unborn future ~nerations, 'however remote'.47 In the contemporary
post-9f1 I moment of dread, I realize. that such summons remain open to state-sponsored indictment of 'terrorism'. Any serious
pursuit of the politics for human rights entails acts of resi~tance against such forms of imposed 'manyrdom'.

VHf. The Habitus of Activist Human Rights Formations

 Politicsfor human rights t'C"news as well as exhausts human rights energics and synergies. Some activist human rights
formations complain of rxluuu- tioll (which I name as human rights wtaritU'M). Some suspect. gIVen the history of the
politics ofhum:m rights, sinis~r imperialistic manoeuvm animating each and every hunuu rights enunciation (what I name as
humall rigllls WQrinw). Some activists celebrate virtues of dialogue among the communitie!> of perpetr.nors and those
violated (what is named as hUllUn rights diQ/ogism). Some celcbn.te human rights as a new globalfaitl, ora """ civic
rdigion (what I name as human rights rvtmgdism). Those who pursue the vocation of historic redemption through UN-
sponsored human rights diplomacy (through the movin!¥removing of the langua~ in brackets III UN 'summit' declarations,
programmes of action) perfonn low intenSIty evangelism. a feat that I describe as human rights romal1ticism. SOllie hUl11an
rights activists believe in 'aborting' as it were, global instruments favouring the rights of the global capital opposed to the
universal human rights of human beings (what I name as the 'fret ,hoi,,' politicsfor human rights.) Some activist NCOs
v
believe that human rights lIornulliv;ty can be beSt produced by manipulating the itineraries of global diplomatic. illlcrgo '

crnmcntal, regional, and national careers of those who earn a living througb .7, here p:.lraphme T.S. Eliot (1962) 44. Sec, for a

further an~lys'$ ofdlC ",-art! and em. t<"rror, Upendra 8:00 (2005).
The PDcticcs of 'Contempor.uy' Hum;ln Rights Activism 81

_ symbolic capital o~ h~rna? rights (this I IUme ~ burtQUlraNzQtj,on of ~ rights). Some mSlst (like me) that the real birthplaces or

sites of JIUnUIl nghts arc far removed from the ornate rooms of Internauonal conferences-being located in the struggles in the
farm and the factory, the ~ and the hearth (this I name as human rights rtalism).
1'besI= genres of'contempon.ry' human rights attitudes and approaches any implications for the construction of tile future(s)
ofhum:m·rights. J include in the narrative voices not just human rights NCOs but also cbinkrrs oriemed to human rights that

exercise a measure ofinfluence on Ihc contemporary worlds of activism. IX. Human Rights Weariness

Human rights ~an·tlt'.SS takes many forms. Nonnative weariness signifies utatr of moral fatigue with hl1man rights
languages and logics. Its dis- dpIttd residual energies contest the very notion ofhl1man rights as a m oral IInpage and rhetOric
in different strokes that hastily improvise variations .. Bentham's robust attack describing natur.ill rightS as 'nonscnse on ..... The

idea that the notion ofhUlnan rights is itselfincoherent leads _the conclusion that there 'are no such rights and belief in them is
one .... belief in witches and unicorns'.49 In much the same vein, it is said ... becal1sc human rights mean different thinPfl to

sl
different people,50 .pam rights have no 'robust ontological identity' and rights-talk only ~ the problem.
The Sttond weariness fonnation, related to the first, signifies nostl.lgia old OOIditioru for doing ethical and moral theory. The

indictment here dw the rights-ulk instead of addressing 'virtue' and 'goodness', 'duty' IBII 'rcsponsibility', fosters conflicted and

adversarial notions of social \DOPCr.iltion, displacing old notions about human perfectibility and ~unitari:1.Il hannony. To the
extent that such displacement occurs, it IIid, the gulfbetwecn the individual and community widens in WoIys that )In:lcnOte and
enhance 'atomism' over 'connectedness', 'abstraction' over CIOfttextua.lity', rights over responsibility, 'independence' over
'rebtional'

• .. See, for elClmpl('. tll(, acute mterrog;.uon by Mauric(' CranSlon (1983) 1-17 . ... AlaS(bIT M:.Iclmyre (1981) 69. - ''''gh ~ ts arc cast u

subsuml1huC$, as rel:.ltlOns. ;;as (rames. Rights arc also Ca..I'l ;;as "--..J...~fPOhtlc:.I1 redress or k~ KIIQn,:.IS the lll«h.lIllSmS through
which conflicts --.., ..... '<1 or med1ated,:U Ihe: endpomts III polllial and legal struggles. They arc casl SC<'nes., ;tg\'ndcs, and purpose$.

In limn, nghtll ("~n register on :all 50TU of Sc ~ networks ... ' PleTT(' Schl;tg (1997) 263 at 264. h~ (1997) at 265.
82 The Future of Hum:m Rights
rationality that contradict feminist and comlllunitarian notions concernlllg human rights. S2 This second type of rights

weariness manifests moral aruaeties by tbe power of the suggestion that the very idea ofhUlnan rights is a 1II0ro/ nriSfakt. It is
unnecessary, for my present purpose, to deal with this kind of COn. tention. Sl But it remains necessary to draw attention to
this enormous ethical enervation with the languages, logics, and paralogics of human rights.
X Human Rights Wariness (1) Types of Representational Powm
Rights U'OriIlW chancterizes the communities of perpetrators of human rights violation as well as the communities of the
violated, Oil whose behalf (though not always at whose bt>hesl) human rights activist practices speak to the world.
Articulation of rights wariness involves the problematic of "pftS('llIoliolJol polWr.
Given the logic of sovereign represenution of'peoples' by 'states" and of states In turn by political regimes .and cliques, it
becomes often p!»slble for the he.ads of states and governments (no matter how they reach the pinn.acle of power) to claim
pre·eminent representational power to speak on ~h.alf of their peoples. And they .articulate typical forms of rights
W2rincss. One fonn of it provides the representarion of contcmpol'2ry human rights t",dilion as a thre.at to civilizational
and cultunl values, of which of course the leaders and the regimes claim to ~ exemplary guard· ians and custodians.
Another, and related, form consists in the represcn· tation that condemns cOlltemponry human rights .as lx=ing itself a
foml ofadial evil, one that needs to lx= condemned in the name of God and the Holy. Yet another foml of rights W2riness
takes an equally strident secular voice: COntemporary human rights, 'Western' in their origins, are langwgcs of
necrcolonization, concealing new designs of a progressive Eurocentrism. S4
But this representational char.r.cter is ambiguous .and multiplex, affect· IIlg the pnctices of what I call the politics oj and
politics Jor human rights. Vigilant rights-wariness, as an attitude of confrontation with the polities
52 See. for an excellent anaJyslS, Su~nna Sherry (1986) 543 II 590. 1) H~r. the defence of the Idea ofhuman nghts and the wk of
demonslI;1tLIIg that nghts arc nOI anlnhell(al to lhe rommUllIty has been provided, gcnmnally, by the life-work of Alan G~rth. See,
especially, hiS re«m work (1996).

•
504 Cf SI;lvuJ td.ek (1999.)

The Prxtices of 'Contemporary' Human Rights ActiVIsm 83

fbU"un rights, often collapses when otherwise indefensible regimes stand .upported agalllst the 'imperialism' of a

solitary superpower. In these: .aornents. a natlonalist defence of state sovereignty and sovereIgn equahty ol all states
becomes curiously unproblematic even for the practitioners of eM poiLticsfor human rights. Indeed. an all tOO trigger-
happy global policy of A&x /tmeri(atlo carries with it high costs of escalating human rights- wariness in communities
where emhusi.asm for the protection and pro- monon of human rights has developed .as a resource, howsoever fngile, for
tDJ1Sformative practices of politics. This surely bodes ill for the future oChuman rights.
At other moments, when charactcristie<llly repressive and brutal politi· cal ttgirncs and elites seek to monopolize the
narrative voice in the idiom ... gntTImar of the ~ian', 'Islamic', 'Latin American', or W'ric.an' ap- poaches to human rights,

rights·W2riness remains the only response tnilable for those engaged in the difficult practices of the politics Jor human

rights. T he invocation of rich and diverse civilizational traditions ~ .". wicked or evil regimes or leaders .amounts to no
more, from the pcnpeaivc of the violated, than an endorsement of the power to create _sustain their Own ~ner.r. of violent

social exclusion, by proclaiming ..... , or no, human rights for culturally constituted inferior or despised pcoplts. H~er.
incre.asingly, human rights communities also seek to exercise IIfIaenucional powcr 011 behalf of the violated, the very time

and space «what I c.all the politicsfor hum.an rights. Just as state managers often ~nce human rights univers.alism, so do
 some thoughtful and an· lIMbed acrivists. Some activist thinkers insist that universal human rights ~ is after all a global
agenda that threatens the 'pluriverse of thought, 1CIiOa. and reflection. ,55 They insist, .and often with good reason, on the
'*ed to break free from the oppressiveness of the Universal Declaration tfHunun Rights'56 (and its progeny) and struggie

to avoid locating inside -.elf the 're·colonizing', 'contemporary Trojan Ilorse' called Universal ~ Rights.S7 This kind of

manifesution of human rights W2riness illdicates a concern for plurality and multiplicity of activist perception that ~ .and
~llerv2tes at the s.ame time the future praxis of human rights. '""'P'Otallons III comparative SOCIal theory of human
rigllts are urgently :!u,,=d to ~sess the diverse potential, for the future ofhum:lII rights, of
· ... ·"·wariness.
56 GUuavo Estcva ;lnd Madhuti Sun Pr.tkash (1998) 25. fhld .• 126.
ibid. 133-4.
84 The: Future of Human Rights
(;;) C .. i«< ....
Th~re ar~ other, less dramatic, occasions when communIties of P<lwt of social ideolog;cal acuvists practices share that: a
platform of rights w.lrincss. This happc' ns and III
• d~monstrate th~ dualism of standards in the ('ValuOluon of hu rights performance;S8 ~
~ te.stify that the Noreh consi~tently refuses to ,assume humOln rights obhg:Ulons to the South, whether 111 terms of
"fHlra11OII.s of p;ast injUries and mayhems inflicted 011 the ex-colonial societies and indigenous peoples 0( th~ world or in
terms of dedication of even a meagre perccntage of its resources to alleviate conditions of extreme global
impoverishmemoUSc'd all too of tell by its own global economic domination;
• archive the betrayal, ('Ven burial, by the North of its human righb cOlluniunems, especially through its promotion of
regimes of indebttd. ness and policies of 'structural adjuslment,;59
• critique, in the arena ofsU5binable development policies, the North', failure to assum~ burdens commensurate with its
sdf-aslollmed leOldcrs!up role;60
• lament the human rights diplomacy of the North, comphcit of tht worst viola lion of human rights of the peoples of the
South both In thr Cold War and the now nascent post-Cold War era,61
The politics I?fhuman rights in the South, naturally, seeks to US( dus commonality between itself and its Other-the
politicsJar human ngllB- tOw.lrds its own ends. Rights wariness, in this context, has to combat. 011 the side of activist
thought and praxis, the extraordinarily riglus-denyt" political appropriation, by unscrupulous national regimes, of their
cntl~ of global ·order'. The mode of negotiation of this constant and fe appropriation has much to do with the future of
lts
human rigl .

SII The Nonh IS un:lble. despnc . Its . proud boast 10 Ill:lkc til: I WO rid I $.I(e unJII' ((]I' .::m:UIl15tl1nCCI democr.II:Y, . 1$ unwilhng and 10

create pD.::u.::es that en,::our:lgc condirions masslV<:, withm . Its ongomg. own Jurlsdl.::tlOn an d fb"""lll ~.- 10 VI( c I~IJI)III of
hun un rights at homc. S'J SUs;ln George (\994). nd fOOd t.O Sec, gcnelOllly, the neport of the Imemauonal CommiSSIon on l'eac~~
India"
' (1994), .::h.urcd, not surprisl1Igly, by M.S. SwanlLn;uhan, the' at h er 'ofu.c Green nevoluuon! 61 NO:lIll Chomsky (1994).
"!be pra.::rices of 'Contemporary' Human Rights Activism 85
(iii) ~ri"ess of rltt Vwlartd
W2rinCSS IS also IOcreasingly an attribut~ of the conscious- that finds th.:1t the perpetrators of the gravest Violation the

ethic of human rights to serve their own ends . The 'origirury' habitats of Euro-American cultures provide cl1a4 11ft· for

the wotSt perpetratOrs of human rights Violation-from _UveD ;;a Pinochct. They fed mystified by the see-saw of judici;al
 j.5'*"'~~i:"~~.~ThCY weep one <by upon hearing that the Lord Chief Kingdom, not merely quashes

the arrest ofPinochet dut a 'fonner sovereign' is entitled to human rights respect at ~ ;;award of huge legal costs. They also

weep, though with Ii!' ~'l<"Y: when a narrow majority of the House of Lords cilrefully that decision. And the day after
they weep at the nullification of Lords of their own judgement on the ground that one \1Ir'a5 'biased'! And the day after they
begin to celebrate small that allows prosecution for 'alleged' acts of torture com- the United Kingdom brought into legal
being for itself ,Ill convention prohibiting torture and cru~l, inhuman, and traanent or punishment. ~:.~!=: and depressed
moods they find It difficult to und~r " five decades after tile Nuremberg and Tokyo trials, the should waver III locating in
int~rllational law a rights- ~ing of sovereign Immunity (as that problematizes the as the order of Illlpunity!). All this

remforces their an nghts-talk is Just the !lise of gollmlQtUt. They know, at the day. that what J>OY.·cr gives today as rights

can be bken aWOly . tomorrow. Their rejoicing is authentic when a judicial ~:::?~,~,~ powerful hap~ns. But

they also remain aw.lre that PI . Judirul discourse, which preserves the autonomy and of heads ofgovcrnments and states, in

the title of sovereignty ~"''''''Y. may still preserve mtact structures of repression. The protection of their human rights

under the auspices of cfhuman rights is a contingent feat; and they join, if at all, Cor and gra~e, cOludoll, the heralding

of rare Judicial triumphs as the polmalfor human rights,

86 The Future of Humall Rights

XI. Dial"", -"" 111 Incre~lTlgly. everyone IS asked to believe that the bc~1 way fo dialogue between the communities of the

violated and the ;;atd 11 tbt But the production o~ ~he best way forward dlfTcr~, dcpend~tr;fOr\
loc;atlon wnhlll the polmcs of, as well as jor, hum;all rigl'b My d g on Ib . . . IStlne· ... _ also sunds severely tested on this

terram. ....'1] In the model of the politics of human rights. 'truth eOllllllLSsio . their poor cousins, called intcrIutional hC:l.rings,63

embody this tJ: nS dt and towards dial~sm. It will take this work far ;afield to explore, even ~n ~ outhne. the history of
' . "el I h .. os, and
recent truth commissions, their funcho d YSlunctions. ear y. trut commiSSions reCover narratives of suft in

seeking to impart the edge oOmman suffering to human righlSdiscu~nng Because of their national, regional, or global
auspices, truth COlllllliSS: often marshal a range of authoritative data, often denkd to hUlllan rigbb NCOs' fact-finding reportage
activities. More importam, the former carry some potential of policy action that the latter, at best, unevenly colllnwxi. NCO
reportage m;ay primarily expose; it may influence but not dirccly comptllS2tc victims, rehabilitate them, or exercise prerogatives
of punish- ment or pardon. These rem;ain the tasks of sovereign SUIC power, ~ less of how one Imy prophecy the end of the
nation-state.
All this is wdl known, as are the large questions th:lot surround dx processes and outcomes of truth commissions. These reb.te co
wap III which such devices result in the promotion and protection of huflUll rights. Clearly, when the outcomes signify outriglll
grants of amn~ty 10 dle most helllous violators of human rights, il stretches the iUliIgil11Uoo to assert tlut internatlonal!r-binding
human rights treaties and custOflUfY law are protected thereby. It is at le~t ;arguable that regimes of anl~ and confident future
violations of hum ;an rights are positively correlated.
6J uu~hcd, mosdy by colKemcd NGOs. :oIt dIC Site of v;l,rIOU5 Unned NJIl<IDJ 5ummlts In recent YCHS.

6f See, ~~sclll~ B. I layner (l~ ~5;. UFli,tt/ Nario~1S Commis.<wu 011 HIIIII"II-:: Sub-C,,,,,,,uiJlon on Pm>r!IIIlHI
nll
rfDis.r",n,"4f10n (nlJ PfO{ffflOIl rfMmo (l; SIUJy()rltt/ ,#III ,/It Righl'o Rnti'"rWn, ComptnS4liou alld RrhabililIJlionfOr vl(li'~ifGftISS
Iljolallon~~. R(fhts lind FUIIIJlltllfn'lI1 FrMIomJ UN Doc FJCN.4ISUH.2119'JfVIO.July 26. 1 • vln Hoven. Spcci~l Rapporteur;
and rebtcd materials Cited 1!l Ch~pter I ( ... 6S GcnCr.ll anmc~ty <as m llait!, El Salv;idor) or )(!lcetlVe prJetl(e~ of

artll~:I1"" probably, III the CiI5C of South Nnea) carry a tendency to undf:rIluue the !'IcY> .nd . d 111111101l, rights flU rogrns eml)()
(h~od. for =mple, III the genOCide. IOrlurC, .scnll anti-apartheid convelltlOlIJ. thr Co"'"
66 See. the Umted Natlolls CommiSSIOn 011 Hunull RISllls: Heport on sequences of Impurity. UN Doc.FJCNA/I99CV13 (1990).
11te Practices of 'Contemporary' Human Rights A.c:tivism ff7

ioo ...... ""~,,,d'""':III) '_O~~'~~~:"~'~::~~~" politics of memory only cn1JanCe the pT:lctitts of the politics of
organited oblivion. at ~;:~~~~~~;:: ofpcrpetmors. It is unlikely in the extreme!lut : feel redressed by high moral summons of

fOrglveness and be bygones. Those who have expenenced genocidal 'forgiven' by the community of human rights policy refuse
to bc persuaded to take such counsel seriousty.
fo nn of dialogism occurs with the emphasis on the .... DOl universality, but of plun'vmality-a diSCOUrse thaI takes ...,. ...
moderate perspectives on ~uman rights. The fonner ;anchors . . . cruth of grass roots expenence and vision that enables us to

.............. ~ in 1 um~rse. but ill a,pluriunivcrse; that the universality in the by human nghts propag:.tol'S exists only in

their mi- '::~::IU~~:~~,:~~~::,j:, of'intercultural hospitality' based ~ a dialogue which chan~s its own

~:~~~;'m::od::erate' forms of di;alogism insist on thc construction ~ . . of'universal cultural lc:gitimacy' for the standards
Xl
lDk'nu~,onal human rights. Put another way, dialogisrn mutuality of hum:l.n nghts responsibilities through the re- ~uch tha.t

no cultural or civllit;ational tradition be :i1S devoid of crucial ideals of human 'dignity'. 'integrity', ~lcc'm or self a.nd

soci;al worth. Abdullahi An-Nairn's iIfIlsIamk on what he calls 'constructive methodology' (for the Law III WoIys tha~ makes

it compatible with human rights ~~ ~:;:~')n'~h~';'j !P~";~C:es ~n constant. and creative, interaction
and IDd th III the rullT2tIve paths of'tradition' 'rno- hu~ommon future of;a constantly self-difTerentiating, '~"'ogi.coI

Ity, :"!tatcver be the fate of the implicit 'theory,' the - _r."'ksdllt Summons for critics and evangelists of human " " Oun yimpo , I

!"'1Iic... f . rtall[ Irom t Ie standpoint of those violated o POWer III civil society d ' .1 ' With all I " an state III ule circumstance t
lelr dlsagreemclllS, the r;adical 'grass rOOts
Snglm~yer (1992) tl2-169 ::.-~, and Madhun Surl llrakuh (1998) at 125.
AIuncd An-Nairn (1992) 431.
88 The Future of i-Iuman RightS

postmodemists' do not s«m to me to have much to offer by way of Pr':I.Xl1, after the ghosts of 'universality' have been
finally slain or pm to rest.
Other fomlS of human rights dialogism practi~ the idea, for exanlple that a handful of NGOs can dialogue with a handful
ofCEOs of ll1ulti~ nationals to produce implemenution of human rights results. In a se:~ this remains simply Quixotic
because the latter must inCV1ubly dcplo; such dialogue as elaborate public relations/media invcsuncnt exerCise: .aitntd at
strengthening their business competitiveness. This may seem harsh to those hum.an rights friends who devote their
energies and ulents to pro- ducing volunury codes of conduct ;,md organize effective consumer ~is.. lance. I appl.aud these
effortS with the c;aveat that such dialogism may not always perform inter-gener.ltionally.enduring human rights
accomplish_ ment, especially when ethical investment becomes, at the end of the day, no more than a global market
practice devoted to enhancing competitive edge. I do not wish to seem to deny, stil1less to gainsay, episodic human rights
windfalls that matter a great deal to consumer-victims of unfair trade/market pr2ctices. 71 Nardo I wish to underestimate the
contnbutions that Naderite and post-Naderite consumer movement cultures have made to the growing corpus of human
rights-based pr2ctices of resi:.tance. These have, undoubtedJy, opened the locked doors of corporate wrongdoing. and at
times in ways that 00 matter to here-and-now peoples. But tilLS havlllg been acknowledged in all its fullness, it also needs
to be noted that the structures of global capital remain hum.an rights-responsive only in terms of marketlindustry
competitive adv.an~.72
Tow.ards the end of the twentieth century CE world, profound human rights violations a~ no longer the sole esUtc of
sovereign sutes or orders of rebellion (so typical of 'civil' w.ar or strife). The nussive formations of global c.apiulism-
whether manifested by transnationaVmultlnational corpor2tions or international financi.al institutions and their nom\advt
cohorts-have .also shown a remarkable resilience to legitimate grave and continuing violations of human rights.as people
victims in Ogoniland and Bhopal, among myri.ad others, know and tell us. No doubt, devices of peoples' tribunals (such as
the Pennanent Peoples' Tribunal, a successor to the Bertrand Russell Stockholm Tribunal on War Crimes 111 Vietnam) offer
innovative ways of~. But these sc.arcely archive even a prctimi- nary orienution to the articulation of transition to a
human right:. regime. forms that may articulate 't/lr rigllllo bring I,ulon'fal capita/is'" 10 lrilll ill (/ lI'lJrld

71 Sec, for a VIVid accoUnt, Leshe Skbir (1995), and Ch.;,pccr 9. 7:1 Should you doubt thiS proposition, you only 11«<1 to IT<J(/, IM:r and
(~r ~III. the genre of literature exemplified by A Cil1il AtIioft.
The Practices of 'Contemporary' Hum:m RightS Activism 89

."...r1l For those victimized by the processes of globalization, nothing

mort insistent today th:1Il such a venture. ICCftlSl)ialogIsm assumes proadur21 deliberative rationality, which accords
che dignity of due process to the most heinous perpetrators of human, .... human nghts, violation and to those who
accomplished wholesale liqUiCboon of that very notion. But this runs a gr.lVe fISk of delegitimation ~t me violated of the

very idea of human . nghts; they may juIdY decry the speclacular reproduction of human nghts-oriented due ~ p.anoply of

protecti~n to those who qui.te con~c:lously deployed dItir gcllocid.al prowess agamst peoples strugghng agaUlst such power-
fOrmations?' The due process fetishism and the valourization of 'nell_handedness' (exemplified by the South Mric.an Tnnh

and Recon- dIiaQon Commission in a 'both-to-blame'-type moralism) does r2ise .-.e issues concerning the mode of

production of belief in the idea of 'human rights' among the growing communities of misfortune and iI!fusticc.75 For the
violated, sllch fonllS of dialogism seem to serve more
•• shield, than as a sword against the perpetration of terror as a mode fi.,..-emance.

XII. I-Iuman Rights Evangelism

 • ~tgI':nce of human rights faith communuies is, as Iloted earlier, DIXIble feature of the worldwide promotion and
protection of hu- _ nghts. The Illternation.al Bill of Human Rights is their sacred text; ~ rights education is their mission;
and the peoples of the world .. con~gation. The evangehstS believe in the power of the Intl/ltfQ of iltlenability,

indivisibility, lnt~rdependence. and universality. TIley aim at al:iod of moral, even spiritual, regeneration through

creation of human .... CUltures in which ~;J.ch and every human struggle will ~ converted at human rights struggle. In
their endeavour, sonle human rights NGOs PI'Ictisc robust dialogism with the worlds of power and communities of
Pftpnrators; they believe that human rights .aspirations and values can ~

~ hilt Bow."entur.I de Sousa Santos (1995) 359-60. The (ur of'fe<Ulblliry' should not ...... ~Ut thiS Important progmmsthrijf, although S~ntOS'

agendum needs particl~tive -1:"'ment. ~E~n the internatiQnal Ccwtnant on CiVil and fuhtiC;l1 ltights TerogrllUS the ~ of ~UspcnSlon

ofhuman rights III tlmeJ of emergcncy where the 'emergency' '1\ .tt-t Itself <U Justified regulle of eUl"t.1llment o( 'baSIC' human ngllts . . See

the agonitmg Judgement by Justice blllal! M~homed m ....tw,tia,. 1>nJpIn' v. Pmidnrf oj/lit &UfliAjrif" (1996) (4) SALR 671: and the
critique, 1I1~mulol1ll.l bw perspective, by John Duggard (1999) 277-312.
90 The Future of Human Rights

rmdc to penneate structures of state and global corporate power. For the mngeJists, human rights constitute a new civic religion. .
TIle communities of religion, notable precursors and compamons to the 5ttUlar missionaries of human rights, incorporate aspects
of the human ~ts faith as all integral aspect of their belief and practice. Most notable has been the historic work of Church
groups who have not merely rc· VI'OI'ked their dogma (as in the case of liberation theology) but have been xtuallyengagro in
human rights struggles from apartheid ~uth Africa to Us! Timor. The Church associations have also led, and at urnes funded,

the activities of human rights groups worldwide. Together, the secular and religious evan.gelists pr~~ote a J'O":'er:ul ItlOriI

vision. The fact that it is highly susceptible to political appropriation (as was the case" during the Cold Wu and may even be said to
some extent 10 Ix: aspect of post·Cold War politics) does not gainsay its authenticity. ~ history of human rights evangelism has
yet to be written. But when it is written, the role of evangelists in shaping initiatives for human rights tduc.ation. and even
nonn<reation, will find a prominent place.
To be sure, the overall impact of the patterns of evangelism (wlllc~ is 001 one phenomenon but many) must remain debatable.
Some may'1.ueso~ tilt very notion of human rights as a civic religion. Others may subject ~llS notion to the same withering
criticism that Marx visited upon the notion ri religion. although it is difficult to see human rights becoming the 'opiatt:' of the
masses while still constituting the 'sigh of the oppressed'. It may also be said ~ profane the very idea of the sacred to endow
iconic s~tuS towt are, after all, messy politiClI tnde-olTs and powcrCllculus entulw in global diplomacy responsible for
human rights uonn<reatlon .. And those who would elevate all discourses and struggles to the human nghts IIIiIntra remain justly
liable to the indictment of creating a mas~er ~e~ discourse, betraying. in the pf'ClaSS, creativity, diversity, and sohdmty ill

human resisunce to violation. XIII. Human Rights Romanticism

, . . , 'gl'" "" poP·'oU' A slIlgular feature of contemporary lUman n Its les III d presence ofNGOs at the site of norm--
<:reat~on in global cOI1(ercuc:~~~. summits from Rio to istanbul, and the ntcVluble: reviews styled as .ts FM:!Plus-
Ten' review confe~nces. The UN confe~nces and surnnl~ Iuvt provided an unparalleled opportunity for bringi:ng the
blirgeo~1 as growth of NCO communities around hydra-headed issues ~uc.gI ts bodiversity, population planning.
development, habitat, and women s n I
The Practices of 'Contcmporary' Human Rights Activism 91
human rights. Each of these events is marked by a series of 'prepcoms'

• r;ltory committee meetings), and followed by the 'plus-five'/plus- ~iew meetings, allowing for participatory stocktaking of

the COIll- anancnts made by the state parties or by the heads of governments. AtcJ'tdited human rights groups enjoy observer
SUIUS III thedIplomatiC conferences, where they seek to lobby governments to incorporate what they think [0 be more progressive
texts or fornlUlations.
This summation docs not do justice to the rich diversity of the pro- a:ss-a usk for another treatise. Anyone who has the pnvilege
of partici. pation Of has followed events closely knows about the great alli:mces, coalitions, caucuses, friendships and enmities,
and netwOrks of power and iaBlKnce characterizing the enonnity of NCO interaction among them· Jdvn and with their

governmental Others. I look only at the aspc:ct of t.uman rights romanticism that such processes generate. By 'romanticism', I

designate the processes of politics of hope and plwill, abundantly present at these events, which gi:ve NCO participants • ..:nse
of achievement disproportionate to 'real' life accomplishment. Coastructivism, however. teaches us all to take with caution the
notion of . , 'rea!' ; to be sure, many 'smnmit'-going NCQs feel truly empowered the participation. At the same time, most actual

ungible outcomes occur DmS of carefully circumspect texts of declarations and programmes of 1CIion. These entail the
famed battles over brackets. The drafting process ~lyenuils a large numbc:rofparcnthetical fonnulations, from which choice has
to be made. The NCO participants seek to innuence, !Jrotasonists or anugonists, theVolrious bracketed formulations. The best

..-1he brightest NCOs dedicate singular energi~ to this task. Successful lltib,ingouocomes are usually experienced or
presented as historic achieve- IIaIts of NCO communities.
Dtcentrahzation of international human rights nonn--creation is, of "*nt, a creative innovation of the: last quarter-century of the

Age of Haman R.ights. But there are costs, too.76 And by 'costs' I do not draw IItImtion to the astronomic investment of
resources enuiled in these ftitob. facilitating NCO-state interaction, though this, when put together, ...,. exceed several times the
national budgets of many a less developed

~In d~hl1c:llmg th~ COStS, I rely on my dose omcl'Vl:f'.mvolv1:me:nt WIth !IOlIIe: .... t"1CIP~nl$ m dlc Copcnhab-en Social

Summit 011 IXwlopme:nt. the Beljmg mfe:n:n.cc on Vobme:n. and the: Isunbul Summit on I bblUt, and my own ~~:: In the Vicnna

World Confe:n:nce on Iluman Rights. I n:m:lln aware that I! J offer remam 'pre-scientific' (bued :IS they are 011 personal

clCJ>Cri~nce 0{ empirical analysi~) but It rcmalns unportam w open up to contcstltJOIl tht' hunun nghts romanticism.
92 The Future of i lurrun ltights
and devdopmg country, singly or in combination. I ~fer rather to the high costs involved in the pursuit of the politics of
ho~.
SUlllmarily p~sentcd. these costs include:
• A crttping transformation of intensely involved NGOs in the mla~ of international civil servants;
• Displacement of the agenda of tquillJblt mJislribwiol1 toward!. tru: agenda of global gollmumu; n
• Enfeeblement of the potential of fornlS of creative antagomsm into harried postures of compromise and coo~ration;78
• Consauction offuture horiwllS for NGO acrivi~through programmes of action which influence allocation of resources;
• A considerable loss of reflexivity among NGO communities concern· ing these costs.
Romanticism at times ill·scrves the constituencies legitimatmg the NGO communities.
XlV The Bureaucratization of Human Rights Activism
Bureaucr.nization of human rights occurs :It many sites of human fights activism practiccslorganization~netwOrks. Not
all NGOs may be described in tenns of rule-bound, hierarchical. specifically accoulluble, profcs-- sionalized organizations,
But. increasingly. NGOs--cspecially the larger Olles (whether In terms of geographical spread, scope for human rights
action, resources. support base, or r.111gt: of lletwOrking}--do acqUIre some traits distinctive to bureaucratic
80
orp.nizatiolls. Social reproduction of
T1 Upendra Ihx!. (1996b) pp, 525-49. 78 Smcc tlme.cormnml5 for the pnxluction of ncgotmmg textS and firul decb· noons and programmes press
heavily; nc«SSiutmg the emcrgence of 5utemellts of concerns which dlSSlp~te the urgency of ooncencd :action ali. for eX<lmple. With ";-
Food and Agnc:ultlln: Otpnrutloll (FAD) Righi to Food Dedaral10 n al1d Prognn1 ActIOn. TIle RlgllI to Food becomes the right to food
stl"llrll}'. the bller nOW HIsulh~ Ilsclfas a food security $)'1ftnI, in tum, generating hybrid fonllS of 5OCIal lCIIV1S!llI~ whICh a Cnllll«!
l llankcoukl even thmkof emeringintoan agrctment wnh ~ Mons;ln~f 79 TIle Projecl apphcaliorl5 for NGO funding have a bener
pro~pl:ct of suecd' ~ they elm relate these to some pal":llgnph III declarations and progr.ullIlleS of K UOfI concerns dams, see Upcndr;r IbJd

(2002). cvoI>'f IOThis IS ulesapablc beausc NGOs, 111 order to funcuon df« uvd Y, !lced:kS Jrrd pohc~ or awr~he5 concerning:

rccrll1tmenl of pcnomld. allocauol1 of 1111[' n:sponslbllmcs. ovt'r;rll ooordrnal101l of:rctMID programmn. mechanismS of ilCCO roJeI- abllrty.
loy.Ilty. and Cllllandcne, capxlty.btrildLIlg. and $usumablc le:rdcrslup See. genmlly. A. Fowkr (1997).
The Pnctiees of 'Contemporary' Human Rights Activism 93

.. .,...1\0. further entails the passa~ from the ciurismaric to the more rou. .....-- d h· 81 B . tiDiJCd lea ers tp. ureaucrattc

NGO cultures also devdop Wlth the aced 10 raise rcsourc~s adCCl.uate to human rights prOJects; in the process, itIJPW'.

and human ~gllts, Vlolauon always beoomes proJectized, We noritt .. COfl1plt'XIty of thts aspect ofbureaucr.atlution of

human rights tn some deWl in Chapter 7. foe the prestlll purpose, dIe development of the national human ,.15
inst~tut~Ons (NHRls) r~lllains adequate to tllustr.ue patterns of ~ucrauZ3Don o~ human nghts. These institutions typically
include ombudspcrsons. national human rights commissions, and other agencies f.{fK c:x:ample, for th~ protection of

human rights of women. millennially dcprMd peoples, d~sabled peoples. children. and disorg,mized!unorgJ._ ailed

labour) established under the state auspices. A recent comparative _ estimates the existence of about 300-500 NHlUs, 'of
which, .. the .. popula~ type". n~ional .human rights commission ... has at least ..-trupled s.lIl~e I~. The Impact ofNIIRls, in
general. and human ...... commlss~ons. I~ particular, is hard to assess. A comparative study 1If'~ Asia- Pacific ~e,gtOlI

measured on Indicators of'agenda·seuing. n ile -.on, acco~n~blhty, and socialization' suggests indetenninate human Wafla-
cntunci IIg Impact, w h ile demollstraung problems of'independence tlillllparency, and relations with NGOs'.1O •
• story, then, is the same almost everywhere: more and more state ~ Me established :lnd justified as a creative stlte response

to peoples' ~ for a futu~e making human rights secure. Large agencies with _':'mdmg ~n~ high governmental
 visibility nourish everywhere. Their
=ry for sl~ficallt .action varies enornlously depending on specific

Ei uhm"" mcJudmg thos< ["""ed by the ;n"",;ngly priv.t,;,ed ~zed nuss ~edla. ~bsent significant public

participation in con. esc .agen~les. their personnel are both regime-favoured and ~ ~ ~ IS thelT ~rfonnance. The logics
of ' Institutional trap' bc- ... asmglyand painfully obvious as their agenda grows and tasks __ ~el1.surate resources,
Cttlve
multiply. Excepting when these agenci~ _h:u adj.ud~catory forms. they tend to become yet another se for
S4
aspirations of human rights attainment. And even when

;
. Slumeem 5 dd (200 ;:~=:~:;;, I Iqlll I) explores sollie IIltl"KUble problems of $uccession of sccond-lmc Ie~derslup.

Cardelus (2004), (2004) al 44. e: '''",''''tt'"Ln' ~) otTers a more quahfied and complex plC1lm:. Hut the obscrva. PUt e",~ lex!
rebtc' to the ambivalent r«epuon of NI IRls, Innill1~ for
USlasm nurks the ptOpo$ll for the esublisbmem of conullinions
94 Thc Futurc of Human Rights
they assumc an adjudicatory form, moments of anguish at their fe .. ts ovcrwhelm momcnts of celebration.
Prcscinding all this, it remains the case dtat such agcnpes burcaucnUlt human rights and hunun sutTering. Sene/governance
reform IS scucely enhanced by human rights communities indwdling the habitus of the state ideology and apparatuses. They
ugularly confiscate people's Jural IIlnova. tioll and inventiveness. The future of human rights, if any, lics 1I111111tnling fomu of
ptlrtiriptllOry gownumu.

xv. Human Rights Realism

By 'realism', I wish to draw attention to a perspective that insists that human rights values, standards, and norms are created by
people's pT2XeS of resistance and struggle. Human rights activism merely provides an aspect of these praxes. On this
perspective, the originary narratives that trace the birth of human rights in dIe Declarations of the Rights of MD/I need re~lacement
by a history of human struggles for human rightS futures. l luman rights realism, in my sense of it, is the precursor of
'contemporary' human rights. To realize this, we need only to ask.: would decoloniution ha~ become the international noml
without peoples' struggles associated with leaders such as Gandhi, Mandela, and others? Would apartheid ha~ become a scandal
but for Gandhi and Mandela and his followcrs?Would the mottO, 'Women's Rights are Human Rights'. havt been conceivable in
the absence of the heroic suffragist and labour movc· ments? Not merely this. The UDHR, the twO Covenants, all the conven-
tions on gender :lIld racial discrimination summate the triumph ofhullIan
My colleagues III Ihe Indian natiolUl "WOmen's It"KJV('nlt'nI elnlt'd me for a .... hlk fOr opposlllg the land of IcgIsbuon that now
estabhsht'$ me Women's ComllllSSlOO. So did Illy human nghts fnends for my opposition 10 Ihe way III whl(h ttlt' Indian HlI.mn

Rights Cornnllsslon was structured. Myoppositlon was based on the premise Ihal!best boches may cnd up posing yrt another hurdle
 for human nghts activism! Fortunl~ty; thiS hu nQt been quite the QS( with the human rights ,01l1l11lSS10n InstallceS su~7 occur

wherc the prcscll« of these agencies have been margmally useful !JUI, ~ cd :KIIVI)I (On5('115115 SU~Sl\ tilal their eXisten(e and

funclioI1IIIg h3VC ~ISI.) cOlllphal nghlJ and people's movements. th II! To reiterale after all, It was a nun ,ailed 111ak. who :tlthc birth
b \111m"'''''
of Ihe ty,."Cnt,l( n century CI!, prodallnro that 'SlI'tlrlfj (decoloIllUotion!indepenclcnee) is my Imthrwh', '10> h d
usemon that earnro hlll1 ~v.lgc solitary confincmem III srlllS In u III _..-d 1ilC: nude It lIl(oherent. And It wu a man ailed Mohandu

G:mdln who (01111"'''''- If" tint essay of refusal of early forms of apartheid. Genentlons of legt"n~"ry WO::t4e confronted
Jntrun::hal pohlla III the We~t whkh found 'hbenl delnocn<:)' com~ With Ihc (lViI and pohttcal discnfnrn:hlSemcnt of women.
The Practices of 'Contcmporary' Iluman \tights Activism 95

rilhcs movementS-movements that finally tramfonned 'modem' intO 'contemporary' human rights paradigm.
XVI. 'Freedom's Children' and 'Midnight'S Children'
The practices of contenlpor.uy human nghts, thus, remam enormously varicd and connicted. Thesc practices embody diverse

mtcrest and value- onrntations, all under the banner of'human rights'. And these enable the 60urishing of different fonns of

politics of andfor human rights, imparting boIh a measure of cogency and incoherence to the field of human rights .3 whole.

This rich diversity may in itself constitute some sort of human rights accomplishment, insofar as the many ways of rights-talk and
related fOrms of social action tend to create (to borrow the felicitous phrase of Ulrich Beck) 'something like a to-cptralillf or
allnsisfit i/idividllalisll1'.SIJ But it another sense, the forms of human rights wariness and weariness, e.pecially of the violated,
may pose substantial setbacks to future deveI- qnrnts in the promotion and protection of human rights.
'M+rtthtd of I/II!: tartll lIIIift', ~'I lIaw no/Mllg 10 lcut bill lilt chaills of IIIlIflali ""«rivism' may well become the slogan of
tomorrow. When the violated W that like previous languages (of distributive justice, revolutionary ...rormation and the like)
'human rights' languages, too, fail to address 'lfabdeMness and violation, the future of human rights must 1>«ome IIdica.IIy
IIlSCCUTC. Ulrich 8e<k's type of communitarian individualism, ~r satisfying to 'FreWom's Children' (as he prefers to name the

IPftJjtc1 of the youth in Europe, the inheritors of a 'second modernity') lUay -....form the worldfor tllrll1. But it may still, and

forever, perhaps, leave - - wholly intact the structures of global opp~ssion for (to generalize .SIIman Rushdie metaphor)

the 'Midnight's Children' everywhere in the Foanh World. As and when future practices of human rights solidarity tIaiId bridges

of communicative hope between the twO, the future of ~ rights may well be born.

.. Ulrich !hie (1998) 9.

4 ------------------------------------- Too Many or Too Few

Human Rights?
I. Production of Politics and Politics of Production I
s it the casc th~t we IlOI.v~ too ~any human righ~ enunciations, sUcb that may be said to entail a en sls of overproduction of
human rigbl1 standards and norms? Does the endless proliferation of human rights norms and sunducls {'uuil a policy and
resource overload which no government or regime. howsoever conscientlolls, can bear? Is 'O'o'Crpro- duction' an aspttt of
global production ofbdtt::fthat each and every nup human/social problem can be best defincd and solved by rccoul"S( to tbr
talismaniC human fights enunciations? Or IS It simply an aspcclofswtep: interests purmed by States, transnational
governmcllu! netwOrks, and (:ntrcprcllt'urs of human rights activism generally? Funher, what may \W say to the
contemporary deployment by the muhifanous, CVclIllotOnom: harvesting of these talism:mic properties?' What 'politics of
producllon and 'production ofpolitics'2 informs hum:m rights overproduction?,
The notion of'overproduction', of course, rests on many assumpuO!U concerni ng the arenas, silU, MIOrs, resourw, and
rejlexivity. Armas of produc- tion of human rights nonns and standards vary both spatially (mterna- tional, supranational,
regional, national, and local) and temporally! . I dC""t"""T terms of histones of cultures of huma.n rights and IIlsututio na mem
if only because different exigencies of power politics shape new

I May Ihe aggrc.-gal)()flS of Qpltal and teChnology be dlu bkd at.,.";!)'" from ~ . r gI I rightS!> I llpon Ihe eapluhn belief thai prOlCenun 0 ItS n
liS as lUtn~l1 I rul' For assurance the~ 15 for lhe amelioration of the hfe-<ondillon of the pm eP t.......,1J . I I I Is and lrart ""- tx:Imple the as~rlcd

mterest groups of mtemauon3 aIr mes. lote • d'-- ' I I I ftourlsm an Ii'~':': usiduowty lobby the UN to procl::um a UTIIVCts:l lunUIl ng II 0 onft Mill" of
preW.tot II1VCSlment 0tg;llllulions xtwlly succcroed In producll1gaadcath y{a~ lateral Agreement on Investment whICh. III a hreta] sense.
cunsmutes for human nghu as ~ know them. See. funher. ChaplC:r5 8 and 9.
2 MIChael BuDWO)' (1985).
Too ~y or Too Few Human RightS? rn
n
'gins enunciation). It is not clear what arenas the buma n actually addresses. Sitn of human rtghts pro- the arenas: sites for

normative and institutional pro- .,ary -centric' peoples' struggles and SOCial movements fC11l311l state , . .. d I . . for human

rtghts enunC131101l an comp lance; various netwOrks constituting intergovernmental and conduct and operations constitute
ncw sites for human and achievement. ikU)rs designate a complex field, already III the prevIous chapter.) Their
deliberative labours of concerning nonns and standards only offers a panial and overproduction. The problem of resOflrces
for and standards presents a crucial dimen- of'overproduction' rdates the costs of with costs of implementation of human

rights at all levels. entails the labours of both critique and reconstruction and h .... "'" on the ongoing production of
human rights norms and
the politics of the production of human rights nomlS and ranams encyclopedically constrained; these norms and stan- ~.
like the Biblical camel, through the eyc= of the needle ~rlapp\llg, and conflicted state sovereignties. This is the
•• wby 111~1 human rIghts enunciauons at all levels (national, regional, and international) are slow III emergence and .
HI.!.lorics and fomls of the politics of production shape I distinction between the ;hard' and 'soft' law; the scope of
trafficking between these forms-owhich laacr in tillS chapter. Further, the relation between macro, ~~:';: politics of
production at various sites of human rights ~ remains extremely important.

sites ate populated by experts, by beings recognized by :~ ~=::::~:;~::::~: networks, entrusted widl the task of for-
norms and standards. Expertise stands constituted 1;~!~~:~~~;:~, and messy dynamics of power and parronage.
~ IIlforming its constitution have varied. With the ideological representation in the constitution of the

.:~~~Ui"l',hl,'"u;.;n~;",';d~l ;N~~';'i;~o~n:,s,;s:Y',;;'~;';m';,;n,;O"nlo:nger
prev'llls. Consid- I . happily gender parity conStitution of hUl11an rights expertise within the United Other
 govemmentaVintergovernmental siles. Overall,
I finely nuanced an~lysiJ. John lJDliliwalle and Peter Dr.ahos (2000).
98 The Future of ' Tuman Rights

a mix of SlructuI7I1 constr.lints and functional autonomy char.lcterize such eKp(:rtise. an a~a under(:XJ>lored in a compar.ltive

social thwry of hum a .~ 4 n n ty .ts. Micropolitlcs. occurring at various sites-sQme invisible even to a glo- bal public view-offers
a different perspective concerning the rel:.tlVe autonomy of human rights production. This is the shopfloor level, as it ~re, not
wholly deternlined by macropolitics. Wlrlcing within I7Ither sever.e budgcu ry and mandate constraints. the Independent Expens,
the Special Rapporteurs, and the speci.alist consulunts within the Umted N atio ns system (howsoever thus named, designated,
and elevated) need to negotiate further their own functional autonomy within the overall hicrarchy througl~ .which the ca~eer of
huma~ rights enunciations may proceed. The poiLucs of produrnon ;at these: Sites reflects the combined and uneven production
of expertise between the North and the South. T hus, major drafting responsibilities stand assigned to the North expertise: which,
in turn, has to accord some deference to their South colleagues who compensate their technical deficiency which their
ideological self- positioning. To avoid any possible misunderstanding, I must here imme- diately add that some South expertise,
being the better informed about global production of human rightlessness equals, and even surpasses, available forms of North
expertise. But surely. this does not always duum- ish the cutting edge of the North expertise which, more often than not, plays a
dominating role 111 the writing of human rights texts and the construction of the models of their 'responsible' imerp~ution.
In allY event, m icropolitics ofh uman rights production remams decisive in terms of distribution of voice, leadersh ip, and
legitimacy. How far all this may serve networks of production that foster patron-diem relationship, and how far these: innovate
authentic collabol7ltion across the NorthlSouth knowledge/power divide arc issues that still await empirical exploration.
Moreover, macrQl'meSQfmicro sites of the production of human nghts euuUciations result in both produltion and ydu{fion (Jean
Bal1drillard~ draWS this distinction in other contcr.s). Whereas production makes the mvisible visible, seduction makes the
visible invisible. Anyone familiar wnh the ways in which the United Nations human rights discursivity IS produced needs no
instruction in understanding how the final texts render invisible the original, :lJld often lofty, aspiration. There is also the

d;mC!l~ioll or

• All area In whkh JOmc slgl1lficant work 11\ polmcal scIence h;l.~ begun 10 tlUiIt' prollllSlIIg COlllrlbullOn III terms of dIfferential autonomy
rS
of policy ~nd 5UIC ;KW : ~. EA Nordllll~r (1981). RobertO M. Un~r (1984), III a dlffc rcm Vi:L11. Jdd~ lhe methodological.

msutuuonal. OCCUpatIOnal. and 'SUbsUIIIIVC' autonomy I.fthc 1;1\\ , Jean Ibudnlbrd (1975).
Too Many or Too Few Human Rights? 99

~ism of the producers, be they the authors of internatiorul human rilhu, the makers of modern cOllStitutions. or the NGOs who

smpe (or dUnk that they shape) many a new enunciation. In a ~nse, then, human ....us production often also enuils patterns

of ~uction. a loss of orders "rel1exivity of what is being produced at whose cost and for whosc= galli, ind«d to the point of
being afimakd production. The 'overproduction' metaphor conceals from view the human rights authorship of the violated. When
production of human nghts normativity is S«T1 primarily, or even wholly, as an act of collective labour of bleary-
cyeddraftspcrsons and negotiators somehow hammenngout. in the uncanny early morning moments, the last minute consensus
on an accepuble phrase_regime, one is looking exclusively at the process of enunciation as III aspect of heroic enterprise by

imernational career bureaucr.lts, diplo- ... and privileged professional NGOs. The eosmopoliu n labour thus iaftsted makes

possible human rights instruments. A full history of the processes of governmental and activist diplomacy in the making of con-
tanporary human rights has yet to be written. Such narratives will, no 4oubt, testify to the considerable body of NCO
achievement, both in -.ns of their accelerated learning curve in handling international nego- dMionsand their fl7lctured integrity

in the production of authentic human liFts nonns and sundards. Because compromise is inevitable in the final Iacb rtl1~ing

divergent state and 2Ctlvist agenda and concerns, activist

...,cy alms at the produo ion of 'overlapping consensus06

that now so ill:n:dibly informs :acts of global hunun rights diplomacy. II.Suffering 1\c ~tives of both the production of
politics and the politics of tmduction, however. remain inadequate without a gnsp of the historical ~ Iivro expcri~nce. of.
huma~ suffering caused by human violation, . ~ not qUIte live III public memory. We need, 011 this register. to :'-ingUish
between the catastrophic imposition of suffering and the ~yness' of human. and human rights, violation. Catastrophic via- 0(

tad often paves the way for authentic consensus in naming the order 'IIIins leal evil (genocide, apartheid, torture, sexual

exploitation crimes fDhib t humanity, for example) and fashions human rights lcchnoiogies to ~tt where possible and punish
where necessary such forms of gross, ~ ng, and flagrant human violation. Even for such situations, as the story of Raphael

Lcmkin (who invented the term genocide and " Invoke here UIIS ferund notlOIl of Joon Rawls (1993a).
100 The Future of IIUnIan Right!>

worked himself to dath in penury to persuade governments and Statts to outlaw it) mimmalist definitions of proscribed state and
indlVidlQl conduct rule the roost?
Between I-Iolocaustian suffering and human rights enunciation fall the shadow of sovereignty; the translation from human/social
sufTcnn; to an ordering of human rights responsiveness and ruponsiblhty rClTlai~ the slow but assiduous labour of production
across ~neratlons as fUlly exemplified by at least a century-old exertions that now mature In t~ creation of an International
Criminal Court, whose Statute provides an impressive array of potentiality to penalize catastrophic human violation. From the
s
standpoint of women's rights as hum.an rightS, Article 7(2)(1) of the Statute remains a mOSt remarkable adv;lIlcc indeed. Even
so, 'crimes of aggression' specifically left undefined (and, therefore, unindlctable) will cntail decades of definitional labour;
further, the provision that lIlVCSts the Security Council to abate prosecutions for the crimes designated by the Statute may limit,
9
overall, the real life operation of a frab'lle conSensus now textualizcd. Forever inadequate, sllch incremental accretion of human
rights production remains the best bet, as it were. Even on a register of rebellion at horrendous human, and human rights,
violation all we have is the scale of evolutionary historic world time. The problematic of/ram· llI/iot! of the atastrophic forms of
suffcring into languages of hUlmn, and human rights. still haunts human rights futures now-in-the-malang.
Recalcitrant fomls of the eve.rydayness of human, and human rights, violation also pose the problematic of translation. Not as
dramatic as the procluction of Holocaustian human/social suffering, everyday experience of suffering caused by starvation,
malnutrition, hunger and related forms of mass impoverishment and daily disenfranchisement of dIsadvantaged persons and
peoples invites only forms of slow motion human rights responsibility and responsiveness. One has, for ex::I.mple,just to read
word byword the proceedings of the United Nations Rome Summitconceromg human right to food, and plus-five review and
retrospection, to realize Its constitutive ambiguities, which mark and measure the distance be~n norm enunciation and human
suffering. I refrain from any aggtawung analysis here of the Millennial Declaration and the most recently rcleast'<l Draft Report
lO
of the United Nations Millennial Projcct.

7 Salllanth~ l'uwer (2002) pp. 15-60. • d ILn dus It cnhauecs the range of CTLm('s against humamty by mclu LIllo> WLt L ntt"gory:
 r
·rape:. 5t":xu;I1 slavery. ('nforero pro:;tltution, f()l'"cfd pregnancy. enfurced stC - LILUtlon. or any othc-r fonn of sexual violence of
eompar.abk gravity'
9 &e. Knangsak KimehaL5arcc (2001) at 27-37, 206-55. 10 Sec. Umtt"d Nallons (23 $epte'mber 20(4).
Too Many or Too Few Iluman Right!>? 101

The production ofhum:lIl rights nonnativity, oven.Il, suggests a difficult .elaponship to human suffering. The slow motion
tn.nslation is the first ,. of difficulty; the second stands furnished by the forms of fractured ~nsuS. the necessarily compromistie
formulations that alone marshal iDttrstate consensus, the .anarchic state-party conduct encapsulated 10 the ~ to frame
reservatlons/derogauons, even concernmg the principal ~ and. purposes of carefully. ne.gol1~tcd treat~~s: II The Site of
Im~le. .-mtacion IS often marked by dlfferenllal capabIlities of State, and CIVIl ICJCic"rY. actors; delivering human rights to

12
rightless peoples and persons is eft'II more difficult than accomplishing normative enunciation. The iIurth site provides a

register, which elides insurrection and repression. When suffering peoples take their human rights seriously enough to aebd.
whether by everyday micro and at times larger patterns of macro (llisance, we witness some radical assertions ofh1l111an righL'i

production .. implementation from below. As Michael Burawoy evocatively de- ICIibes this:

politics docs nm hang from clouds; Lt nscs from the ground: and when the _' ..... tremhles, so does it. In short, while produellon
politics nuy nOI h~ve a effect on politics, itncvcrtheless 5("15 11111115 on and precipitates interventions _ lUte.1)

lD mponse, human rights, as languages of govenlance, come instantly, .... I 100 often, into play. Subaltern militmt conduct and
movement that ~ macropolitical redistributive shifts (such as food riots, occupation public premises by the homeless, violent
uprooting of genetically

• cd food products, civil disobedience directed against large irrigation ~ and mega-urbanization. and polity reconfiguring

'separatist', 'self- tilttrmination', or secession) stands presented on thIS register as instantly '-nan rights' threatening. As
languab~ of governance, human rights ~s stand all too often deployed in the service of production of belief ~s I~ 'l~w
and order', public security, combating criminality and acts 'trrronsm . These forms of state resistance adversely affect the W2YS
of

IlSee C u . tupte'f 6. ec...!IS IS most conspicuously viSible even In ~ mhol post-apartheid South African -co.., lion,

which mxle enforceable &QClal and economIC nghu. The ConstilUtion~1 ~ .... ,,"'," alremy begun th.c proceu of COllver~II.JIL

of theiit' ellforce~ble rights into 't. of public pohcy, deferrmg to the 50verClgrl prcl"'OgoltLve of the C-XCQltivc. It fot elQnlple,

held that Ihe right 10 hOU$1I18 15 only a nght to :llXe~s to an ~~~~:~f::j~~'~::~; policy and process. St.~,
for a mose recent statement.
102 The Future of 1·luman Rights

human rights production and implementation. The I~cs of colleCttVf; hunun security trump even minimal observllncc of
 basiC human rights in mally a situation. T hose subjected to everyday experiences of rightlC)sness and human viol.a.tioll
stand subjected to a code of human rights re~POn_ sibllities; protest at their plight becomes legitimate only within the
wider logics of 'collecuve' human security and development. At stake, clearly, here are issues wider dun the indictment of

'overproduction' may ever fully invoke. . ' However, the relationship between the expenence of suffenng and the impulse
towards resistance, the labour of suffering, remains contingent at least in three ways. First, patterns of solidarity that guide
common programmes of resistance vary according to the 'nature' and 'scale of thc production and distribution of
human/social suffering. For ex:Imple, food riots do nOt always occur during famines l4 and occur even less, under-
standably enough, during the wars of starvation. IS S.econd, be.licf systems that constitute faith communities minimize
potential for resistance; hu- man rights languages do not have the slighteSt ~r to overcome suffering which comes to
human beings as God's gift or curse. Nor may, by the same token dissentient and heretical interpretive communities
rcconstnlet 'tn- dition~' via any significant recourse to 'secular' human rights cnunciations. Equality before Allah may be
radically construed to ensure equality before mcnl6 and, indeed. may enhance women's rights as human TIghts; at me

same time, piety and fidelity to the word of God must remain thegnmdnonn, even for Islamic women in resistance. TIlird,

while the remarkable power, even prowess. of social movemen~ old as wdl as the new, contribute to increasing legibility of
human/social suffering (making suffering legible constitutes, as it were, the very soul of human rights and social activism),
ove
onc may note ruefully that such m .- ments may problematizc human/social suffering only eclectically. eve~ If in the
very best sense of the term. The languages, logics, and paT2logtcs of human rights do not coequally attend to all the
estateS of hunUIl suffering. They prioritizc the relation between human suffering and h~ nun rights differentially as their
discursive work proceeds through C national, regiOlul, and global networks. Thus, for eXlllmple, basiC hU~ ri ... llts

claims of people with disabilities have yet to find a force ~~ til' . . ' Furtll<.r. movement that transforms them into a full

nonnative enunclatton . f the 'jurisdiction' (reach) of rnovcmments d~ not match thc praxes 0

14 Ammya Sen (1981): M,ke Dn,s (2001). IJ Sec. JOilllna Macrae and AlllhQny Zw. (1994). 16 Shaheen Sardar Ah (2002).
Too Many or Too Few Iluman Rights? 103

~ of popular sovereignty, in the deepest sense of counterin[¢marshal- Iiogfunposlllg an overweening allegiance of state

and society. Fonns of pcoric and programmatic aspiT2lion and achievcment lead neces~rily to spcciJlization in responding to
hllnunlsocial suffering. Tosay thiS IS to pose _ contndlction betWttn the concrete labour of human suffenng and the
abstract labour of the production of univcrsal human rights lal1gtlab~s.
In ally evclll, thc labours of suffcring (that is, acts, practices, formations ~ ~isQIlCC' that question the legitimacy of sources
of suffering) rurnish cht . , history of authorship of human rights and their futures. Any 6acu~ writing of the history of the

formation of 'overlapping consensus' III intentational human rights production presents a contested terrain. How may we

relate thus the lived labours of suffering with the human riFts diplomacy, necessarily overwhelmed by usks of negotiation

that IOIIIdK>w render amendable, often heavily 'bradcr:ted', texts ripe for lin- .-ac resolution by the community of the
heroic rights-producers? How .., wt distinguish the difference of degree, even of kind, between the ~ but vital sectors of

international human rights production and the ;..J sectors of dIe norm-creative political economy of human Tights? ...
bbours of the social reproduction of the labours of suffering sund .... transacted? How do patterns of activist human rights
diplomacy wpoduce, even replace, this vast informal sector? Unlond, and mil7lcu- t..Iy ,urvivlllg, 'post-Marxian' folks

may even say that continual illIlD- :...aoo III forlll) of human and social suffering signifies performances in .... wcltlon;
that is, the more the production of human rights norms and ~, the less visible become the material sources of their
violation .. the differcnt modes of production merely tIS(: the specucle ofhulluni ..aaJ suffering as raw materials for the

strategic production or Overpro- iIIaion serving the manifold strategic ends of governance and domin:nion.

Ill. Production and Markets !:a notion of 'production' is usually associated with markets. Human ~rkcts

(brieOyexplored in Chapter 7) include both marketsfor. and ~ n ngllts. In the imagery of market, human rights

enunciations -.;, ,of Course, as symbolic public goods and services that seck to 'caItu n certain modcs of thc production

ofbelief.17 The production of the ~I sortw.lre' of contempor.ary human rights IS a complex and con- "!' ..... ,'1<v· ;and a
multi-layered, process, an understanding of which is . for the notion of 'overproduction' to be at all sensible.

- . gt'ncl7olly. [n~ Kaul. tI 1M. (2003).

104 The FulUre of Human Rights

In the absence, or more favourably put, the nascence of a comparati~ social theory of human rights, I address here only the
i~sue ~f overpro- ductiOIl1S a contlictcd site. Overproduction impl ies a relatively (111)cfficient business practice, one capable
of redemption by planned dUl1lp~ng polic1Cs, for eJQ.mple, manifest in (cruelly for captive markets) nghts-on ented good
go~mance policies of the World Bank. 'Overproduction' came~ with it the management overload typically associated with the
management of excess. Ideally, production of goods and services should be marked by efficiency, constructed as production not
just in terms of the .quQmif}' but also theqIUl/iry. In global markets. at rimes, costs of 0vc:rprod~cnon of ~ and services are
passed on to captive consumer constltUenCiCS of the Thlr(1 World. Shockingly enough, this may also hold true even for [he
production of contemporary human rights norms and stmdards. For exa~ple, not just the White House and Capitol Hill, but
distinguished Ammcan scholars are often heard to say that the disinclination ohhe United States to ratity international human
rights instruments is understandable, even jl1stifieti, by the existcnce of a nourishing tndnion of constitutional nghts and judicial
18
review. In comple~ ~Iain wo~ds, this means ~12loverp~oductJon of human rights is an altru1Stlc exerc1se for
the bemghted Tlmd World societies in their historic trySt with democr.atic self-governance, The 'logiC', to.put the matter rather
strongly, 15 similar to that dcployed by the capums of shoddy pharmaceutical products in justifying expon ofhaz.ardous drugs

prohibited at homel . ' . At the site of production, namely the Umted Nations system, effiCiency in the production of
contempon.ry intcmation~l human r.igh: St;ln~rd5 r.aises new and difficult issues19 as does the notion of quality.
EffiC1ency

18 The doyen of American human rights romlllunit)< Professor Loms l lenkm, for c:x:..mple hlIs maintained this VleW consis~lldy.
1
AI a rr:a:nt Harv .. rd II1Iman Rights Progran:me meeting edebr.lIUng the fift~nth year of the prognmmc (16- 7 ~ ba 1999) he reiterated
cnnw
his VIew dUllllternatlonal human Tights nomls and sun ,_I , U . -" s i r blCClll may not be neeesury, or even deslnhle, or Ihe nll~'U utes,
gIVen Ie strong trachnon of Jlldieia\ review. . Ie vICi 19 Judgements about efficKncy of human nghts produetlon ",l1"'I<Iln comp "l)C11t

oonteiled as is frequently symbohzed by Jibes about fiBt and busmCSS cb~s frtq or , """erN 111~Ianon flyers deb3ting III five-sur hotel rom

om SlnteSles concemlng ,._ .. " fh T1~ nght to food. The question of unproductive elq)Clld,run: III the productlOIl (I foUr lilt rights rebln to
ways III whkh re$Ol.lrees could be channelled 10 PTOb'TllllUlleS 0 promOtion and procccuon of hunun nghts.
1) EffiCIency oflh( deliberauve process ludmg to production 0 n on
:lI The probkm of quality SlIgg6ts the followmg areas: f d fl dClClIlll(n!). (

~1)Ii
c_ by " _ r b1 "pre~el1l;&U effiCiency being measured "cn: conslu<:ratlOns 0 eqUlt'" C panICipatlOn as .......:11 ;as levels of cxpcrMt or
mSIght;
T oo Many or Too Few I luman Rights? 105

.-; <;und for cost-effective production of hUlllan rigllts standards and gOI'fIls. This is a matter, but only in part, of available

budgetary outlays widun the United Nations system and additional costs lOtemahzed by the ,.mber stateS, relative to other

priorities in the tield of promotion and procrction ofhuman rights-o~entcd devclopl~c:nt polioes and progr:unmes. If the overall

cost of production of human rights norms and standards is IOsubsuntialthat mecting o ther rights-related prio rities becomes

difficult, Iben one may adjudge the enunciative process as inefficient, provided that one found a safe basis for assuming that

such processes, 10 the tirst place, aun af attainment of human rights. The notions of efficiency are further complicated by the
insistence on ... uruver.wlity, interdependence, indiviSibility, and inalicmbility of hu- __ nghts. Eminently desirable: according to
the: prevailing models of ICIi9ist human rights hegemonies, these four malltrtu introduce impon- ~ in the markets for the
manufaclUrc/production of symbolic/de- tiper public goods named as human rights. Judgements concerning the e8icicncy and

quality of the enunciation of human rights standards and aonns arc indttd very difficult and, at times even impossible, even

amidst ...snvours to achieve this.

Thil> becomes clear especially in the: struggles that seek to redefine the aapc: of human rights by acts of tn.nslation of
materUl and non-material ... IntO human rigllts languagt"s. The constant endeavour to convert "'intO rights, howsoever
problematic, is the hallmark of comcmporary ........ rights, However, such human rights ventures make difficult any .....

Judgement conceming efficiency and quality. To take a large ex- 1IIpIe: w~n Certain sets of rights entail duties ofherc and now

enforce- _(as with the Covenant on C ivil and fblitieal Rights) and certain others - IUbjttt only to the regime of 'progressive'
realization (as with the

~ Clanty and eommll1l1cablhty (or tra~sbu.blhty) of negou~ted tamal outrolllC!i: MInk Lewl$ of conscllsus n:xhcd (on
mdlVidual formulaUOIlS and the tCXt as a ~mensus bels bemg measured, Plnly, by the c:xtcllt of rcscrvanons. ~ , dedaratlons, and

Statemellts of undcmandmg when the Tlghl enun· whm Iakc$ the form of an ITlternanonal treaty and by patterns of voting power ddin. II

aSSUllieS forms of decbraoons or Il:solutlo!l5; sp«1ficlly or dlffusc:ness of Gems of VIOlative behaVIOUrs and levels of xcounubllity
mQllIIoring or

It for the promotion and protection, mdudmgstratepes ;:n ngtlll education: cduru for collecuve reVlCW ~nd reformulation that go beyond
those I III ~nns of pius-SOl'" plus-IO Umtcd Nauoru revkwconferences IntemaUonal human nghtol declarations.
106 The Future of Human Rights
Covenant on Social. Economic and Cultunl Rights) how does the four ma"'ms in the evaluation of the effectiveness of
rights:nc: a~ 11le constant endeavour to convert needs into rights results C{;\Tllc:5) of rights enunciations: at times
described as 'generations' of rights~n w~ declared by a colour scheme of 'blue', 'red', and 'green' humall,attl~
Those visually di~bled (political correcmess forbids the usc of th nghll.' sian 'colour-blind') folks ouy not quite know
which colour; CXpres. signify the emerging recognition of the collective rights of thei ~ investor, global corpontions, and

intemational financial Cl.Plta1_inO:~1gn of global capitalism. BUI this much is compellingly clear: the erne

on, collective human rights of global capital present a fonnidable chal1cll~t the pandigm inaug~m,ted by

the .Universal Declantion ofHumalll\i~= I have explored In the prece:d1l1g chapter the wa~ ill which the aston-
ishing quamiry of human rights production generates varieties of experi- ences of skepticism and faith, These experiences
form ways of reading human rights, p:micularly in tenns of their ove:r- or under- productlOD. I highlight here four
principal ways of reading.

rv. Q uality Control in International Human Rights Production

The question of how the production of human nghts iUay be best orp- nized within the United Nations system has been
with us ~mC(' the Universal Dcdantion of Human Rights. The middle phase of the CoW W2r witnessed severe:
conteStation by the First World states of the unpr«- edented nonmtive leadership of the Second and the Third \\bod Untced
Nations member-states. Their effortS included, for example, the <lSwn. ing nonnative: fnmeworks like the Declarations of
the New \\brld Infor- mation and New International Economic Order. This contestation. (roI1l time to time, raised the
issue oflcgitimacy and quality contrOl of ~ creation. When First World states failed to abort or amend these Ie diplomatic
moves, they ambiguously abstained or voted ag2inst thest OIl the floor of the General Assembly of the United Nations, for

. I •. bly reso1ul1
Ail this led to some unusual doctrinal disputations ;md enlergenCCS, ~ I ' examp e, some espoused the

notion that the Genera rusetll ht- and declarations concerning human rights produce 'soft' law (a I 'I"~ . , ' I h . IlactualU
mlsm lor saymg t 12t t esc were devOId of any po LIIca or. . ~htf1 rights praxis/effect). Some others maintained that th,is
',soft 13"bcc\lIII" freque:ntly reiterated in subsequent textual practice, dId, Indeed,

11 See, Johan Galrung (1994) 151--6.

Too Many or Too Few I-Iu!nan Rights? 107

is. II acqUired some sort of Cllstom2ry obligatory status,22 The (mJuel1t textual rtitention of th2t which was originally

not ........ :acts of Telter.ation IIlto 'law' (a code of bmdmg norms for ;".'0<") has furnished an IInpomm resource for

dIe development iI*f1l<I0olul law of human rights. The narr.Ulves of origtns and l ::~~~n:o~.u~-,on remaIn an

Important aspect of any compantive social

a task I do not pursue here. :2:~~:~~~;::::.~!~th~e organiz:at1on21

efficiency of the production of

Within the United Nations system haunts the fJI contemPOrary human rights. It
 understandably nises questions .II .. &'DC bicn.rchic control over rights production-questions that re- relevant in the post-
Cold War tirnespace, Increasing au- agencies Within the system is seen as hazard that ought to be as Illustrated by the
debate over the Right to Deveiopment.2J . manner in which the United Nations Treaty Bodies through of Ceneral
Comments precipitate somewhat unan- obligation:; upon state parties now begins to emerge as a For example, the

Convention on Elimination of Discrimi- : ::'~""7,omen (CEDAW), in its textual formulation. barring the
of Article: 6
rc:latlllg to the: outlawry of sex-trafficking- In lIS orlgma! IIltcnuon, WIth dis<rimiMtiOtl, not vioitrlCe, . Even when the

CEDAW Articles 14 and 16 seek to obligate to ehmlllatc, or 2t least to combat, g.:nder discriminatory -f, .. Wn""dy
relations and arnngements, they do not address these , , ,"Ilmare, and sustairlLd violaru", oj. a,.d violma agoitut, IWI/In!.
ckvice of the Genenl Conunellt, the: CEDAW Committee: SO~t to ~dress tius lack by ensing the distinction between ::::

~nJct: The reports, v.:hich the state parties are required obhga. ' mrnlttec: (under Article 28), now e:ntail further infor-

(JOIlS on I measures on both counts. While this is c _ tnnsformation of treaty -obligations thus , ont1l1ue to contested

UDII~d Nations s St f S . . I m dh' y em 0 pecla Rapporteurs (beings who are ~~l~ffi~ fields or have expertise thrust upon

them) also C IClellCY discou . tl hi' I Qu I rse troug t Ie Ie t emergent need of a lty Management. ~ h ier~rchical management

science

I Wish to mdlClilt Illl! dcliber:lIle aluence of eltallons! The which mil fill several floors of nlode f readers to follow th'$ dlKOUrsc on
dlClr own, unltd l oa fOOtnote CHatlon, whl(:h would he so:ver:d ~ long!
(1985): Phlhp Alston (1991); bUi $«, Upendra 8axJ (199&),
108 The Future of Human Rights
notion that. one hopes. will tIt'lltr inflict the discourse on the multIfarious and anarchic human rights creation!). However,
the Issues that ariSe do need a brief mention. First, aside from the issues of cybcrnc=tic COntrol wtthm the UN hierarchy
on the production of human rights norms, thc~ is the question of matulgt'mtlll of prolifaatioll, viul to the credibilIty of the
enterprise of rights-creation entrepreneurship, especially III the conversion of human needs into human rights. May we
tJtCroDrily translate all human needs into human rights languages? To quote Milan Kundera:
The world has become nun's right wd everything has to become ~ righl. the deSIre for 1~ the right to I~; the desire for ITSI the right to reSI; the
de~ire for friendship the right to friendship; the desire to exceed the speed Inuit the right to exc«d the spttd limit; the desire for happiness the right
to h~ppllless; the deSIre to publish a book a right to publish a book; the desire to shout III the strCCt In the middle of night a right to shout in the
middle of the lIighl.24
While Kundera perhaps ignores the nerd to tr.lIlslate certain human needs into hllm:m rights,25 he docs bring home the
mindlessness of the enterprise of COil version of each and every humall desire, need, or wane into a regime of human
rights governed by the fout man/rlU! This indicUllcnt of mind- lessness, I believe, assumes importance under the
pandigJnatic transition from the UDHH. to the market-friendly, trade-related mode of human rights production (I elaborate
this in Chapter 8). Global capital also launches enterprises that seek to conven its needs into a human rights pan.digm. Is
this per st less eligible,lwonhy?
Second, the consunt conversion of needs into rights assumes that the rights-regime is the principal mechanism for
arranging human well-being. Nonnative renderings ofhunun needs into human rights, it is true, create a space empowering
people's movements to expose comradictions be- tween political thetoric and structures ofincquity. Occasionally. the
activist adjudicatory powet and process may also. besides sharpening the contra- diction, deliver some:: rral results, as the
26
experience:: of the Indian social action litigation suggcsts. But more often than not the rights languages seem to
cnhance:: the power of the state. For example, the right to health must, in some measure, empower state:: action on
medical education and profeSSIon; the right to housing must empower the state to regulate markets
24 Milan Kundcn. (1991). Even Kunden did not, unforlunately, allllclp~le Ihe lopes) orGuamallllllO ll~y and Abu Ghnib: see. the poignant
analYSIS 10 Mark Danner (~ and the Lawyer', eoUl/muee ror Ilurnan Rights (2003).
25 See,JOh:.ul Glltung (1994), who addresses the lacunae III conu~lIlponry hUIlWl nghtS sund~rds III non-recognition or the ngllt to
sleep or dcJ~ltc whIch m~ru:r III circumstances of ~prnsl~ tonu~.
416 Sec. Satyaranp.n P. Sathe (2002) and materials cited Iherc.
Too Many or Too Few Ilumall Rights? 109

III ~I propeny and at times even empower 11 to confiscate large urban etD'Cs in ways dee~ly violative of the human right

to properTy; the nght education and literacy must empower the state to regulate the free ~t in the provision of educational
services. In the process, the bureau- c:ratiution/mechanization ofhllm.an rights occurs In ways that are inimIcal 110
nghts.attalllment. This bureaucratization of human nghts, in rum, augments among the ostensible benefiCIaries the culture

of despair con- ceming human rights. V. The COSts of Human Rights Inflation
Some readings question the value and the utility of innation of human rights. The question of 'costs' of overproduction

raises several consider- ations. First, there is the issue of resources allocated, within the United Nacions system. to the

production, promotion, and protection of human Jisbts. On an expansive view of these phrases, almost all the resources

would in onc way Ot the other seem to be dedicated to these goals, while my agency-specific count the human rights
allocation would appear -.m.ndy in need ofaugmelltalion. Additional protocols to human rights 1IaOes (as is the case with
the recent welcome Protocol for CEDAW) entail lillmrdiate here and now budgetary allocation. Pleas for increased alloca-
for human tights promotion activity have been intensified with, and ~. the Vienn.a Conference on Human Rights.
Whatever be the dd hoc flllDlutiOIl of the matter. the larger issue of costs rdali~ to benefits from htmcnt on human rights
will always cecite contention among the 'iilnnber States, agencies, and accredited NGO communities. Second, the issuc of

socialization of costs for human rights activities of t.r UnIted Nations system has led to a critical exchange between the

NGos and the system. The United Nations Development Programme ~P) ways of mainstreaming ofhu111an rights

justified the raising of ces from global corporations (inclusive of the worst violators of ~ rig?ts) evoked contesution as

symptomatic of the coming crises *tai l'C$Qurcll1g the human rights agenda.v The socialization of costs of ~tunlllg human

rights agenda now renders 'legitimate' partnership GIoba7tne offending mul~illatiollals~ especially via Kofi Annan-
ill~pired Compact (as we bneny note 10 C haptcr 9). Equal partnershIp is a n
up
AG : or NGOs recently queried the UNDP'. mltlative al esublishmg $2 ~l SusQIrI~ble Development FOICiilty, WIth I11lI1al 5CCd money

endowments corporanolU WIth the mO$I t'gfegtOUs hlllmn righu viol~tion record. For lhe or correspondence, and nlmules of the NGO mectlllg
WIth the UNDP. """"'.COrpu'o:"rh.O!J. '
110 Th~ Furur~ of 1·lurnan Rights for legitimation ofhmnan rights CUltures. There are
some real lessons to be learnt here from comparable
nice sounding. even stunning. phrase; it, nevenheless, cOntrover~ sics on 'foreign' funding of South NGOs and
carries the potential symbolic, and indeed 'real', COSts governmental agenciC'S.
Docs this endless normativity ~rform any uscful
function in the 'real' world? Is there an effective
communication (to invoke Galtung's tri- chotomy)
among the norm-senders (the UN system), norm-
receivers (sovereign states), :md norm-objccts (those
for whose benefit the rights enunciations are said to
have been nude)?2lIWho stands to benefit the mOSt by
fonnslforums of the overproduction of human rights
norms and Stan_ dards? Or is it merely a symplOm of
growing democratic deficit, directed to redrfiS
legitimation traffic between nonn-senders (the UN
system) and nonn-rtteivers (the member-states)?
Vl. Over-politicization?
A third reading. from the standpoint of hi gil moral
theory, warns us against the danger of the assumption
that the languages of hum:1.I1 rights arc mc only, or the
very best. morallanguagt's we have. lluman rlghe.
languages are hybrid ethicallangua~s affirming
contradictory values: soven:ignty and self-
determination, property and redistribution, autonomy
and solidanty, equality and hierarchy in international
orderings (as with the Security Council and With
nuclear prowess), globalization of conditions of extreme
impoverishment and human 'dignity'.
Were we [0 conceive human rights as markers of
contestation of claims that necessarily enbil mediation
through authoritative state illstrumen~\i ties, including
contingent feats of adjudicatory activism.
overprodUcDon thesis locates social movements on the
grid of power. Being ul[imately state-bound, even the
best of all rights-pcrfonnances (as has been o~ten noted
in progressive critique of human rights) typically
professionahzc, atomize and de-(:ollectivize energies
for social resistance, and do no[always re-cne~ze
social policy, state responsiveness, civic empathy; and
political mobilization. Not alt~ther denying the
creativity of rights 1a11~ this reading minimizes its
role, stressing instead the historic potentla.l 0 lived
relations of sOicrifice, support, and solidarity in the
midst of suffcnng.
VII. Participation as a Value
A fourth reading vieW5 production of human rigllts as,
perhaps, the ~t hope there is for a participative making.
and rc-nukmg, ofhumOin fuw .
lfI See, Joh:rn Galtung (199-4) 56-70.
Too Many or Too Few Iluman Rights? III
• _un1CS a world historic moment in which neither
the IIlstitutions of OInee nor the processes of mOirket,
singly or in combination, are ::=;t equipped to
fashionjusl JW/PItJtljuluftj, It thrives on the potentlal
ol"."nt5' pclililJ (not as a sySltm but as chaos), which
mOly only emer~ by III ensemble of singular energies of
dedic:uion by NGOs (local, national, regional,
supranational, and global.) No other undersbnding of
women's movements celebrating the motto 'Women's
Rights are Iluman Rights' is, pcnmplc. possible exc~pt
tlte one which regards as lustorically necessary tad
feasible the overthrow, by global praxis, of univcrsal
patriarchy in all lID vnted :md invested sites. This
reading Sttks to combat patriarchy pcmstent even i~ t~e
making of ~uman rights and ~ ~xplor~ ways of
OfCfComing the hmlts of human nghts languages,
which constitute very a6en the limits of human rights
action. All the same, 'participation' represents a
complex, and contested, ter- ... We, at le:lSt, need to
distinguish several realms: participation as
l:Iegroundingstniggles to formulate 'concrete' rather
than 'abstract' human tft'Its nomIS OInd sbndards;
participation for implementation amidst the IIrady
atuined norms and stmdards somehow formulated
throllgll ilU- ~ rights diplomacy; and participation :lS
fOrlllS of coequal, power/ 'lllliamce movement for the
ren0V2tion of extant norms and standards. three
distinct. but related. 'moments', Impertinently speak to
the ~ of human rights 111 different accenWinOections.
There is further ~ the issues of 'costs' and 'gains' of
participOition. best featured in -.:king statement
concerning workers' participation, equally applicable
human rights production: 'YOII participate, II-'t'
participat~, but ',e makes the profit'! Deciphering
the constitutive ambiguities of 'participation' tllraains
an important task for those who pursue human rights

futures. 'IIIeed. these haullt the very notion of
'participation,.29
VIII. Interrogating the Overproduction Thesis
Afifth reading questions the ~ry notion of
owrproductiotl of human rights ~ and standards. Not
merely does the global enunciation of rights ~ong,
often elephantine, gcsbtion pcriods30 but also much
normative .... . produces, more often, only 'soft' human
rights law (exhortati~ btJOIlS, declarations, codes of
conduct, etc.), which do 110t reach, or
Sec. for a rcfined diSCOUrse. I brry Rnghousc (1996) pp.
187-208.
I~ the ease wilh Ihe Dccl;lt1luon of the RII~hts of Indlgt"MUJ
Peoples which ~ a Iasl fronuct of comenlporary human
ngJlIs d~"dopmem_ M. Chcnf (1994) ofT~ra a u$(:ful
approach 10 lhe normatlVC sugn, willch he ebssiflCS ,decbt1lllVe,
prncnptlVC, enforc~mcm, and cTlmmahution sugcs.
112 The Furore of Human Rights
even at times aspire. to the status of operative nonns of
conduct. The 'hard' law enunciauons of human rights,
which become enforceable norms. It may be argued, are
very few and low in intensity ofapplicallon. ContCIl\.
pon.ry human rights production remams both sub--optimal
(wh~tever may be said in comparison with the 'modem'
period) and inadequate. Tht' task is. on this View, to
achieve an optimal produCtion of internationally en.
force:llble human rights.
IX. Too Many Rights, or Too Few?
These ways of reading GlIT)' within them all kinds of
impacts on the nature :lind future of human rights. A
fuller understanding of these impacts is an important
:IIspcctof social theory of human rights. Clearly, those
inclined to believe the overproduction thesis would
marshal abundant support for the vit:w that we have too
many rights enunciations. With equal cogency, those:
inclined to 'put human rights to work' may maintain that
'real'human rights are tOO few. T hose who feci excluded
from the contemporary human rights regime (in
parucu!:1lr, the prou.gonists of human right to sexual
onenution or. more gencral ly, to a non-homophobic
dominant culture of govern:mce) may, with conSiderable
justification, maintain that the tasbofhuman rights
enunciation havcJust barely begun. And. in a curious
supplemclltaTlty. the :llgents and managers of
globaliz.:lltion ioslst that there il> greater t>eopc and nero
to protect the human riglns of global capital III ItS great
march to progress through digitalization and
biotechnology.31 Equally. those con· ccmcd widl the
rights of'naturc' and sentient beings (other than human
beings) lament the p.tucity of relev:mt human rigllts
standards and norms. This not of perceptions conceming
n
over-lunder-production ofbunu rights nonnativity .trises
due to the titanic clash of twO cultures of human rights: the
culture of the politics of human rights and .dlat of the
.po~u~ for human rights. The latter combats as
overproduction dIe re81m
protection of the rights of global Glpital, while celebrating
oductlon
the n~oI h Co 1._ · . emergent rights of p«)ples. T
c onner sec~ parsllllony III pr I new human rights standards
and nonns that serve the values ofUIll.vc,; Declaration ofl
luman R1g1lts, while being hospitable to the caplI.al-fnenl
~ human rights enunciations (witness the prolifer~tion
of the WTO lega In " I M 1"1 I A ..... c e IllC[lt 0 and the
n:cently demised draft proposa s on uti atera ''I;' Investment
(MAl)). IghtS No reasoned Judgement on the mode of
productio~ of hum~~1 ~t Will is thus possible. One
would go so far as to say that none IS dt'slr~b .
kcl-fr.c:pd.ty 11 Sec, Chapters 8 and 9, for a full ebbonuon o(
tnde_rdated. nur para(hgln. now emergelll. of the human nghts
of the global c.1Ip".1l1
Too Many or Too Few Human Rights? 113
my view, a sad moment in the fUnlre history of human
rights when :';octucuon ofbcliefin the overproduction of
human TIghts becomes ~I. despite the heavy questions
thus far raised in this analysu.
X An Excursus in Human Rights
Measurement
I did not attend, in the first edition of this book, to the
complex, even iJrbiddmg, writing on human rights
measurement via 'mdlcators' and "be8CfmWks' produced
both within and outside the Umted Nation sys- J because I

then thought that this discourse belongro more to the pare
of accessing hu~an rights achicv.ement rather th:lln human
rights ,...tuction. I now reahze that I was mistaken because
fonns of human ~ measurement talk cannot be quite
sep.trated from human rights llelfuc:tion talk, and that the
measurement talk thus far raises some ad- IdcmaI
issues for understanding human rights
production/reproduction. . . . DOW rather summarily follows
offers, J hope, an evell more complex
8lerstandingof'contemporary' human rights
production/reproduction. ~;=~:~~. measured when we
ItIfd$ljrt hum:llll rigllts?This somewhat ~ question
concerns the ways in which measuremcnt talk pro- the
very threshold to identify some core lisung of human
rights. iooIlif;"'l!tf" 'core' renders m:llny human rights
enullci:1ltions peripheral. 'core' listing stands V21riously
identified.lJ Ineluctable. thus, re- me obstinate difficulties
posed by hUlIlan nghts production; that,
is co be measured, escapes mcasuring. even lacks a
measure!
of this talk, riglHly, relates to the 'progressl~ realization'
of the 1Io~ ,,,1,,,,.1, and economic human rigllts. What do
we measure even .. .II? Do we measure nonnative
entitlements or codes of state =~: thus arising? Or, do we
measure states of fulfilmentlrealiza- kinds of measures
remain apt for the 'core' civil and political the one hand,
:lind the social, cultural, and economiC rights, on
Iimportance of measurement literature both as a moment
oCIpponunity and of danger. The moment of opportunity
needs to
",,,,,""",,, Gr~n (2001) now provtdes a recent, handy, and
COIllp<'fCllt 5urwy of this
,~~,C:~:~""" (2001:1069) refers toJohll Gih.wn'.
Dith"o"aryofllum~m Righu Law that 'Identifies
sixty.four human Tighu derIVed from mtCTll.lt!onal legal fOUr
hUIn~n rights derIved (rOlll the UN Dcdu'auon'. Unsatisfied
by tillS, (at IOn-6) $c:venl (unher notlOIl$ conecrmng the 'core
COnlcnt' of
114 The Future of Hum:ron Rights
~ taun seriously because it overflows the boundaries of
the ~chnG narcIssistic human rights measurement
pleasures. Vanous conStruCtlonso( measures described
radler felicitously as 'indicators' and '~nchmarks' do help
a work~a-day measurement of huma~l rights
perfornunces hut they also ~ar theIr many
statlstlcaVmeduxiol<>g1cal, as wdl as Idcological,
huth. marks. Measurement relates in a profound way to
dIe patterns of the politics of production, and indeed
'~rproduction' of the poitucs oj, and for, human rights.
Philip Alston, with characteristic insight, identifies the
tasks thus involved in tcmts of ;promoting the usc of
appropnate lenni. nology' and 'establishing social
accounubility,.l5 On a wider level, mea. surement talk
thus seeks [Q facilitate disengagement of development
indicators from human rights.specific oncs. Put another
way, the former makr: human rights negotiable in the
pur5Uit of wider developmental policy projects,
whereas the latter posit non-negotiability of certain
11tIman rights productions (human rights as trumps) in
any form of planned pursuit of development. Clearly,
some development indic:nors also serve a<; the tasks of
human rights measurcment.36 But not all necessarily do
this.37
The momcm of danger, on the other hand, stands
constlluted by a growangSlit1ltLs," oOmman rights
talk/discourse. Autononllzatlon of human rights
measures, whethcr through the languages of 'indicators',
or me qualitative langu.ges of '~l1chmarks', at the end of
the day, furnLshes an abund.nt shOWIng of the
inexo",ble nexus between d}(: 'technic.tl' and tM
'ideological' in the very constitution of me human rights
talk. Thr unlit}'. and even value. of this talk lies in
straddhng this disLlIlction ron ways tlul furnish
standards for here-and-now accountabiliry. Grass-roots
human rights activism maywdl find in this
ramcrtechnized discourse some furthn arsenal of the
'weapons of the weak'. At the same time, the
measurements talk needs translation into the vernacular
and popular human righlSdlalectS. Even so, I remain
agnostic: I simply do not know how all human rights
sdentism may, after :l.1l, facilitate new human righlS
fumrcs. [ say thiS becauSt: scientism in other spheres
(as we note in Chapter 8) now promotes some orders of
invidious distinctions between 'true' science and ~unk'
science. I do not quite know whether the growing
scientism of the mea- surement talk will same day
create a disposition that regards the popular, and
activist. ways of mC:l.suring the fail ures and
shortcomings of human rights production as 'junk'
 science.
35 Philip Alston (1998). tiJI\. )6 For ex:llllplc, infant morulity.
nutcmal health, htcncy and d elllenuryC"dI!CJ1 and absolute
IlIlpovt:rlshment mdlcalOn. uctI"I1¥ 37 For u.ample:. nauonal
mcome. uvmgs, mduslnaland agrICultural prod mdlcators.
widl the situation' at hand. I I-low we renect all our
circum- capabilitics, and choices and where we go in
real life with our to reflect, and indeed how far we may
W;lIlt to develop these ~main vast and open questions.2
Nor is it clear that our powers ~:;::~;.~ for reflection

- 5
Critiquing Rights Politics necessarily lead us to 1110",1 action or ethical 1
of Identity and Difference Rational reflection often remains instrumenul in temIS of

rela· of means [Q ends that we chooSt: to pursue; and it is

L Some Necessary NOtes on Reflexivity
oth in individual and associational :l.cts of life we are
apt to reflect the choices and decisions that we nuke, or
not always the that rarioru.1 choice and action
neccssarily serve altruistic interests or ~:: In this ~nsc,
perhaps, one may view reflection in terms of k thinking
'as opposed to 'meditative thinking.'l Ik.a.. 'rbr ~pacity
for reflection itself now stands variously problematized
in ..... SOcial theory as 'reflexivity'. This is a notion

l
t~~;:': ~in~~the context of
may have made, and
circumstances we face, opportunities we have,
we may
develop. Here 'reOection' suggeSts a kind of wise and a
capacity for evaluation of our conduct and revising our
Reflection also guides liS in rcl:l.ting or assessing our
present ...,on '0< engagement with the world. of which
we arc a necessary part stnse: at least of being placed
with many historics.~
~ DJ\. 5<ho" (1983) 242. ~ .... "" .. "e:Qmple, we as humans,
surrender at umes our mdlvldual and coil\"l,:tlvt' fo to reflect
to SOllie: wider force or e:nmy oUls,de: God, or some
supreme otee, an 1.'oscmbl.tgC of ,han~ll1auc figur.lUon or
persolUge, UlsutU(10ns such I ~"",,,.;,proccsSC:$ of
production, exch:ange, and cOllsumpdoll typified by lIIarkel, •
produced by culture:, dOn\uu(1on, and IIIStory. th~1 Martm
Ilc,de&>er (1996) gcrmmally otTers. fotan llIteI"CSung

within it, and III ~lIlg in a 'reflexive 1I ....... "'·on OVCIVl(:W, MlU"tlil O'Bncn. Sue Penna, and Colm Hay

(cds)
116 The- FuturC' of Ifuman Rights
In one: se:nse:, rdlexivity implie-s and entails the: practice:s of radical d and insecurity conce:ming the sources of our
capacity to know and un~u~ stand the: world and our powers to act within it. We: explorC' tillS. In ~. follOW'S (as also

in the: e:nsuing chapter), in the contextS of the: nura W t f" 1'" I . • d' . , d · I' , by« o . ~mve~h Ity, re atlVlsmd.' 'In antHoun
atlona Ism . These reflt'xivt critiques t row open to ra 101 unceruinty the fonm of confidence: th which some of us may
articulately assert hunun rights ide;!.I.!>, va~ languages, standards, and even norms that address their 'unlvt'rsality~'
In anothC'r sense:, discourse concerning reflexivity now stands pr~n 'ed in languages of'reflexive modernization', referring
s
to large·scale proces' of global historical transformation. Reflexivity involves two fdal: but distinct notions concerning
construction of self in society and th production of Iht' social. 'Structural'finstitutional' reflexivity rt'fers to th: use of
information about the conditions of ;l(tivity as a means of ordering and redcfining what that activity is,.6 Put another way,
It 'consists in the fact that social practices arc constantly examined and rt'formed in the- light of incoming information
7
about these very practices. Ihm altering their character'.
In this se:nse, production and consumption or the activity of making and exercising human rights art' dearly social
practices. The myriad social practices of the: making of human rights-both tvtryday and tXlraoroirUJry production' of
human rights nornlS, sundards, and values-at all levcl~ (international, supranational, regional, national) remain
indubit2bly a rC'. flCXl\,(, process. Institutional rel1exivity,:IS concerns the making of human rights, occurs at many a site,
the United Nations system and pcople/s movements providing astoundingly dive~ registers.
Sdf-refle:xivity involves understanding 'the self as reflexively unckr· stood by the person in tenns of his or her
biography'.? This design.tto a 'uniqudy hunun capacity to become a subject of oneself. to be both a subject and an
object,.10 In this double constitution, often noted JO philosophical rel1ections on human rights ;;tond most notably in
recent times by Michel FouC;;t,ult, the subject of human rigllt is both se:lf..determming
5 S«. for a:llIlple. UITI(:h Beck, Anthony Giddens, and Scon ~h (1m). Ii Anthony GIddens (1994) 86. 7 AmhollY Giddens (1990) 38.
• Tins workmg dIstinction rcfe-rs 10 forms of ralher roullne, as cOJT1~rcd Wlr~ exce-puon~l human nghts production. We m~y differ
concernmg Ju,UfiOIIOIlS r. assigmng the production 10 one or the other cale8OI')' iiowcver, lIIost WIll ~gJC'C' ~ eltllllple. th~t Ihe
Unl\'e1'S)1 Declaralion of H uman Rights belongs to Ihe exu~ordu~cs. ~n«= com~rro wnh lIIuch of Its p~ny. I do not here develop
further ex;unp
') Anthony Giddens (1991) 53. 10 Peter <AUero (2003).
Cmiquing Rights 117

...,delC'nnined.1I If the.stlb~e<:t is constituted (as Individ~1 persons or ,.riJIA collectiVIty) by IUlVwg rigltu that

se:rve: as caches of the basiC nutenal well ~ non-material human needs satisfaction, this posse:ssiou of nghts ;'~t5,

capacities, entitlementS) also make:s it into an object ofhunun PfI.tts W1thm given politicO-Juridical structures of

govern.1IIlce. Put another ... the bearer of ~uman rights. a.t .[~le S-ame time IS also constmued as IIcIfff of human nghts

responslbllmes as defined by a gIVen Juridico-. poIiIial ordering. Reflexive pracfices of resistance to domlllation also

~lI1g1y remain human rightS oriented. This then suggests the 'sources aflClf' become increasingly human rights imbued.

Increasingly, too, all ~ selves tend to be regarded preemint'ntly as human rights selves. The fonnation of'selr as human rights

self enuils celebration of human .... langu.tges logics and paralogics in prefert'nce to the ethicallanguagcs "4uties
or of care; this invites JUSt Illt'asure of anxicty.12 Yet. few of us ...... ethically question the category of crimes against
humanity, which ~ the human rights of others to be human and have basic human Likrwise, contemporary IHlTnan
rights movemellts restS se(:ure on belief or assumption that ne:itht'r individuals nor groups may renounce human rights;
constitutive se:lf-determination notions ntelld so far as authorizing se:lling onese:lf 11110 chattel or sexual or slave·hke
situ2tion.
self-refleXIvity complicates constructions of Idenmy because: it well tlmltslS fonus and langua~ of contcmporary human
rights standards, and values. The choice ofbelongmg to a faith commu· ..... ,10 a whole series of identitylidentification
practices, which also on appeals 10 human rightS and fundamental fr~onlS of the and enjoyment of human right to freedom
of conscience and Yet, at the same time these communities re:strict the r.mgc of rights communities mayexercise.lndct'd,
men and women even contest other people: h2ving accc:ss to rights to freedom, . in the discourse: concerning the
reproductive rightS of women. _ traditi~ns thu~ '~f1exiveIy' cOlllbinC' to. 'frccze' the domi- ..... notions of IIltl1nate human
aSSOCiation through varie- dense: scriptural exegesis of holy/sacred texts.
.. ...... and . ,

emergences of both individual and collective human rights self- happen when sdf-reflexivity practices of the rightle:ss
peoples a certa~1l associational fOflll and historic dynamic. Such practices senal human-and human rights-violation into
collectively
. s« ,and in whal order of prlonty Ihese nt<ly bot hSlcd. rC'llllni dlffieull . U . for ~ recent anal)'lilS. Ml.nhl NWisbaum (2000).
pcndn &xt (2003) ~nd the 1t1Cr:IlUrC' therenl CIted.