Overview
For this assignment, you will apply some of the theories or concepts we have studied in this class to a human rights film of your choice. Specifically, you will write a short paper in which you select a theory or concept from our course and then you explain how the film reflects something about that theory or concept. Your paper must have the following required components:
· First, you will summarize the film as if you are writing for someone who has never seen it before. Summarize your film in a basic sense and then highlight the characters, storyline(s), or any other aspect on which you intend to draw in your analysis.
· Second, you will describe a relevant or resonant concept from the course readings. You will need to cite directly to at least one of the course readings in your analysis. And you will need to explain in your own words both what that concept means and how it applies to your film.
· Third, you will explain how the film reflects that concept. Here, you want to be careful to explain exactly how that concept or theory applies to your film by referencing both the definition of the concept AND the summary of the film you have just provided.
Your paper should be approximately 3-4 paragraphs. It does not have to be long; it just has to be thorough. I do not grade on meeting a specific word limit or number of pages. You should judge the appropriate length by when you are sure you have completed all the components of the paper and completed them well.
Once you have written this paper, you will also present your analysis to your classmates in our class session.
Preparing Your Paper
Step 1: Review these instructions carefully
.
Step 2: Select a human rights film. I have provided a list of some possibilities, but you can also feel free to select your own film from off-list.
Step 3: Re-read the provocation questions at the end of these instructions to keep them in mind for the next step.
Step 4: Watch the film. While you do so, take notes and look back to these instructions to see if any of the provocation questions jump out at you.
Step 5: Think about which of our course’s concepts or theories might apply to your film. Once you have thought of some, identify the specific readings from which those concepts or theories came. Pro tip: you might be able to use your answers to the reading question assignments to point you to specific page numbers.
Step 6: draft a paragraph in which you summarize your film. Keep in mind that your audience is someone who has not watched the film. Again: summarize your film in a basic sense and then highlight the characters, storyline(s), or any other aspect on which you intend to draw in your analysis.
Step 7: draft a paragraph or two in which you a) define the relevant course concept or theory and b) explain how it applies to your film. This is the bulk of the work for this project, so please take your time to do this correctly.
1. In order to apply a course concept or theory, you will first need to say which one you have selected and
define it
. You will need to do so with specific reference to the relevant reading(s), including page numbers
.
2. Once you have defined the concept or explained the theory, you should then discuss how your film reflects it. Here, you want to be careful to explain exactly how that concept or theory applies to your film by referencing both the definition of the concept you have just provided AND the summary of the film you previously drafted. If there are limits to the way your concept applies that you notice, you should also identify those in your analysis!
Provocation Questions
As you are watching your film, you will want to think about what concept, theory, idea, argument, etc. from our course might apply to the film. In order to help you, I provide below a list of questions for you to consider. You do NOT need to choose multiple questions; you can ultimately focus on the one that is most appropriate and fitting for your film. You also MAY select a concept, theory, argument, etc. that is not represented in this list of questions. You just want to make sure that whatever you select is coming from one of our course readings so that you have something to cite directly when you are writing up your analysis.
· Did this film shed light on the universality of human rights? Think of the many meanings of this concept “universality” that we encountered in the course.
· Did the story in the film reveal anything about the “overlapping consensus” on human rights?
· Did the film reflect anything we learned about “cultural relativism,” including its use as a label for political purposes?
· Did the film portray anything about the indivisibility of human rights?
· Did the film portray anything about the way human rights is used by powerful nations against less powerful ones?
· Did the film feature any performance of “proclamation and denial”?
· Did the film reflect or critique the “savages-victims-saviors metaphor”?
· Did the film involve any parties engaging in a “transnational legal space”?
· Did the film feature any character you might consider to be a “citizen-pilgrim”?
· Did the film show a case for which the proposal for a “global parliament” might be helpful?
· Did the film portray human rights “radicals”?
· Did the film feature any “pluriversal” approach?
Film Paper Rubric
Film Paper Rubric
Criteria
Ratings
Pts
Film summary
The paper includes a film summary. The summary is organized and clear enough for a reader who has not seen the film to understand the overall story. It includes the relevant details that are later used in the film’s analysis.
10 pts
Full Marks
0 pts
No Marks
10 pts
Film Analysis
The paper includes an analysis of the film using a theory, concept, argument, or idea from the course, anchored in a course reading. The analysis includes an explanation of the concept from the reading. The analysis also includes a very clear application of that concept to the film. Here, the student might even repeat some of their explanation of the concept to explain how it is showing up in the film.
10 pts
Full Marks
0 pts
No Marks
10 pts
Course reading citation
The paper substantively engages with a reading from our course. The paper contains direct page number citations to the reading. The student has explained the reading’s concept(s) in his/her/their own words.
10 pts
Full Marks
0 pts
No Marks
10 pts
Total Points: 30
A Random Selection of Human Rights Films
What follows is a random selection of human rights films. It is not at all exhaustive, but rather a simple attempt to give you some options. Most (but not all) of these are available through the library either in streaming form or DVD. You may find others through private streaming services if you like. Regardless of the platform you use, you may select from this list or another film entirely as long as it works with some aspect of our course. You may need to be creative with how you apply a concept, theory, or argument from our course.
5 Broken Cameras (2011)
“Nominated for an Oscar®, 5 Broken Cameras is a deeply personal first-hand account of life and nonviolent resistance in Bil’in, a West Bank village where Israel is building a security fence. Palestinian Emad Burnat, who bought his first camera in 2005 to record the birth of his youngest son, shot the film and Israeli filmmaker Guy Davidi co-directed. The filmmakers follow one family’s evolution over five years, witnessing a child’s growth from a newborn baby into a young boy who observes the world unfolding around him. The film is a Palestinian-Israeli-French co-production.” –PBS.org
13th (2016)
“Filmmaker Ava DuVernay explores the history of racial inequality in the United States, focusing on the fact that the nation’s prisons are disproportionately filled with African-Americans.” –Google
A Force More Powerful (2000)
“Part One begins in 1907 with a young Mohandas Gandhi as he rouses his fellow Indians living in South Africa in a struggle against racial oppression, and continues with Gandhi’s campaign for Indian independence from Britain in the 1930s. The series sheds new light on the strategic aspect of the American Civil Rights movement in the 1960s, then returns full circle to South Africa as activists help dismantle the apartheid system in the 1980s.” –Kanopy
Born in Flames (1983)
“The movie that rocked the foundations of the early Indie film world, this provocative, thrilling and still-relevant classic is a comic fantasy of female rebellion set in America ten years after the Second American Revolution. When Adelaide Norris, the black radical founder of the Woman’s Army, is mysteriously killed, a diverse coalition of women – across all lines of race, class, and sexual preference – emerges to blow the System apart.” –Kanopy
Burden of Peace (2015)
“Burden of Peace follows Guatemala’s first female attorney general, Claudia Paz y Paz. After taking office, Paz y Paz obtains spectacular results, including the arrest of a former head of state charged with committing genocide. But her determined efforts encounter strong resistance from powerful elites that have typically felt above the law. With extraordinary access to Paz y Paz from the beginning of her term, we witness her battle to bring to justice powerful criminals and corrupt politicians. Burden of Peace is an epic tale of personal sacrifice, hard-fought change, and hope.” –HRW Film Festival
Call Me Kuchu (2012)
“When Katherine Fairfax Wright and Malika Zouhali-Worrall started making this documentary about David Kato, Uganda’s first openly gay man, they were struck by the disconnect between the media’s portrayal of the LGBTI community in Uganda, and their direct experiences speaking to ‘kuchus’. Most of the LGBTI individuals they met were dedicated, joyous activists, despite the dangers they faced.” –Amnesty International
Children of War: A Journey of Healing and Homecoming (2010)
“The award-winning Children of War is a timeless and powerful communication tool on the subjects of child soldiers, international justice, and post-war recovery and transformation. Filmed in the former war-zone of northern Uganda over a period of three years, Children of War follows a group of former child soldiers as they escape the battlefield, enter the sanctuary of a rehabilitation center, and undergo a process of trauma therapy and emotional healing.” –Kanopy
China Blue (2005)
“China Blue follows the life of Jasmine Li, a 17-year-old child laborer from the Sichuan province of China who works in the jeans factory, Lifeng Clothes Factory. With workers earning only 5p an hour, the film discusses both the terrible sweatshop conditions in China and how this is particularly worrying in light of China’s growing importance as a global clothing exporter.” –Amnesty International
City of God (2003)
“The streets of the world’s most notorious slum, Rio de Janeiro’s City of God, are a place where combat photographers fear to tread, police rarely go and residents are lucky if they live to the age of 20. In the midst of the oppressive crime and violence, a young boy will grow up to discover that he can view the harsh realities of his surroundings with an artistic eye. In the face of impossible odds, his brave ambition to become a professional photographer becomes a window into his world and ultimately his way out.” –Miramax
Crude: The Real Price of Oil (2009)
“Three years in the making, Crude tells the epic story of one of the largest and most controversial legal cases on the planet: the infamous $27 billion ‘Amazon Chernobyl’ lawsuit pitting 30,000 rainforest dwellers in Ecuador against the U.S. oil giant Chevron. Winner of 19 international awards, Crude takes you inside a riveting, high stakes drama steeped in global politics, the environmental movement, celebrity activism, human rights advocacy, multinational corporate power, and rapidly-disappearing indigenous cultures.” –Kanopy
E-Team (2014)
“E-Team follows a group of fierce idealists who bravely risk their lives to expose the truth behind the world’s most horrific war crimes. When human atrocities run amok, when ruthless dictators hold a nation to ransom, that’s when the Emergencies Team (E-Team) springs into action, giving a voice to the helpless victims of human rights abuses.” –Amnesty International
El Norte (1983)
“Brother and sister Enrique and Rosa flee persecution at home in Guatemala and journey north, through Mexico and on to the United States, with the dream of starting a new life. It’s a story that happens every day, but until Gregory Nava’s groundbreaking El Norte (The North), the personal travails of immigrants crossing the border to America had never been shown in the movies with such urgent humanism. A work of social realism imbued with dreamlike imagery, El Norte is a lovingly rendered, heartbreaking story of hope and survival, which critic Roger Ebert called ‘a Grapes of Wrath for our time.’” –Kanopy
Frozen River (2008)
“After her husband deserts her, working-class mother Ray Eddy (Melissa Leo) is in great need of money to find a home. Lured by the possibility of easy cash, Ray joins Lila (Misty Upham) a widowed Mohawk who earns a living by smuggling immigrants from Canada to the U.S. across the St. Lawrence.” –Google synopsis
Human (2015)
“Human is essentially a cross section of what it is to be human in the 21st century. Filmed over three years, 20 journalists travelled across 60 countries interviewing over 2,000 people, with the film composed entirely of aerial footage and the interviewees telling their stories directly to camera. When released in 2015 Human was the first film to be premiered at the United Nations, screened to an audience of over 1,000, including the UN Secretary General, Ban Ki-moon.”
–Amnesty International
Human Flow (2017)
“More than 65 million people around the world have been forced from their homes to escape famine, climate change and war, the greatest displacement since World War II. Filmmaker Ai Weiwei examines the staggering scale of the refugee crisis and its profoundly personal human impact. Over the course of one year in 23 countries, Weiwei follows a chain of urgent human stories that stretch across the globe, including Afghanistan, France, Greece, Germany and Iraq.” –Google
Ida B Wells: Crusader for Human Rights (2017)
“Crusader for Human Rights, Ida B Wells walked the long road from slavery to freedom and equality. Her relentless public battle against the injustices of lynching won her more enemies than friends in her time, but she is remembered today as a strong woman, tireless crusader and a true American hero. An inspiring journey of courage, defeat and triumph.” –Amazon Prime
Incorruptible (2015)
“In the streets of Senegal, a youth movement rises up against a regime bent on retaining power in this chronicle of the nation’s stormy 2012 elections.” –Netflix
Killswitch: The Battle to Control the Internet (2014)
“Killswitch explores the threat internet censorship poses to our democratic freedoms and why this is one of the most important human rights issues of our time. Through high-profile academics (Peter Ludlow, Professor of Philosophy at Northwestern University; Lawrence Lessig, Harvard University’s Professor of Law; and Tim Wu, Professor of Law at Columbia) the filmmaker tells the stories of Aaron Swartz and Edward Snowden, two of the most important individuals in the digital age. In doing so, Killswitch exposes the dark, corporate forces working to control the internet for their own gain on the grounds of ‘national security’, and the heavy price for those who dare to oppose them.” –Amnesty International
Life is Sacred (2014)
“Colombian presidential candidate Antanas Mockus and his enthusiastic supporters attempt to reverse the vicious cycle of the country’s violence with an imaginative and positive election campaign.” –Google
Made in L.A. (2007)
“Made in L.A. traces the moving transformation of three Latina garment workers on the fault lines of global economic change who decide they must resist. Through a groundbreaking law suit and consumer boycott, they fight to establish an important legal and moral precedent holding an American retailer liable for the labor conditions under which its products are manufactured. But more than this, Made in LA provides an insider’s view into both the struggles of recent immigrants and into the organizing process itself: the enthusiasm, discouragement, hard-won victories and ultimate self-empowerment.” –Kanopy
Milada (2017)
“The life story of Milada Horáková, an outspoken politician in Czechoslovakia who was active in the resistance during the Nazi occupation.” –Google
No Logo (2009)
“Using hundreds of media examples, No Logo shows how the commercial takeover of public space, destruction of consumer choice, and replacement of real jobs with temporary work — the dynamics of corporate globalization — impact everyone, everywhere. It also draws attention to the democratic resistance arising globally to challenge the hegemony of brands.” –Kanopy
Nostalgia for the Light (2011)
“’Nostalgia for the Light’ is a documentary released in 2010 by Patricio Guzmán to address the lasting impacts of Augusto Pinochet’s dictatorship. Guzmán focuses on the similarities between astronomers researching humanity’s past, in an astronomical sense, and the struggle of many Chilean women who still search, after decades, for the remnants of their relatives executed during the dictatorship. Patricio Guzmán narrates the documentary himself and the documentary includes interviews and commentary from those affected and from astronomers and archeologists.” –Wikipedia
Paper Dolls (2006)
“After Israel closes its borders to Palestinian workers, people from other countries emigrate there to find jobs. Among them are several individuals from the Philippines. The men, who consider themselves female, get jobs as caregivers for elderly Orthodox Jewish men. On their nights off they perform in a drag ensemble called ‘Paper Dolls.’” –Google
Rabbit in the Moon (1999)
“A documentary/memoir about the lingering effects of the World War II internment of the Japanese American community … Visually stunning and emotionally compelling … examines issue[s] that ultimately created deep rifts within the community, reveals the racist subtext of the loyalty questionnaire and exposes the absurdity of the military draft within the camps. These testimonies are linked by the filmmakers’ own experiences in the camps and placed in a larger historical context by the voice of the director.” –Kanopy
Rana’s Wedding (2002)
“One morning, spirited Rana (Clara Khoury), a Palestinian teenager living in Jerusalem, receives a startling note from her father, Abu Siad (Zuher Fahoum) : She can either get married or emigrate with him to Egypt later that afternoon. Rana dashes off to find her boyfriend, Khalil (Khalifa Natour), but must negotiate menacing Israeli checkpoints and strict Islamic law as she races across the West Bank. She begins to wonder if she really wants to stay after all.” –Google
Selma (2015)
“Described by The Guardian as “heartbreaking and inspiring”, Selma tells the story of Martin Luther King’s battle for equal voting rights in America, spanning a three-month period in 1965. The film explores the important issues of race relations, discrimination and human rights, and reminds us how far we remain from King’s dream of equality.”–Amnesty International
Sleep Dealer (2008)
“Memo (Luis Fernando Peña) is a hacker living an impoverished existence in the degraded Mexico of the future. Upon detecting his hacking activities, the military attacks his home. Memo escapes to Tijuana, where he becomes involved with Luz (Leonor Varela), a journalist who plugs her body into the Internet and sells her memories for others to download. When Luz takes on a mysterious assignment and Memo lands a high-tech factory job, they descend into a cyber-nightmare and discover a deadly truth.” –Google
Slingshot Hip Hop (2008)
“Slingshot Hip Hop is a 2008 documentary film directed by Jackie Reem Salloum which traces the history and development of Palestinian hip hop, in the Palestinian territories from the time DAM pioneered the art form in the late 1990s. It braids together the stories of young Palestinian artists living in Gaza, the West Bank and inside Israel as they discover Hip Hop and employ it as a tool to surmount divisions imposed by occupation and poverty.” –Wikipedia
Shahid (2012)
“After being falsely accused of terrorism, Shahid Azmi, a boy from a poor Muslim family, becomes a human rights lawyer to defend the defenseless.” –Netflix
The Dark Side of Chocolate (2010)
“The Dark Side of Chocolate exposes the continued allegations of child trafficking and labour in the international chocolate industry. In 2001 the world were outraged to discover that child labour, slavery, trafficking, and other abuses existed on cocoa farms in the Ivory Coast, which produces nearly half the world’s cocoa. Over a decade on, has anything changed? An enlightening look at the hidden abuses of corporate consumerism.” –Amnesty International
The Farm: Angola, USA (1998)
“Focusing on six detainees at America’s largest maximum security prison, Louisiana State Penitentiary, ‘The Farm: Angola, USA’ met rave reviews on its release in 1998 and co-won the Documentary Grand Jury award at the Sundance Film Festival the same year. Filmmakers Jonathan Stack and Liz Garbus spent a year documenting life inside the prison, but particular stories highlight ongoing human rights abuses. Of particular note is the portrait of long-term death row inmate John Brown, who was executed a year before the film’s release.” –Amnesty International
The Look of Silence (2014)
“An optician confronts the men who killed the brother that he never knew during the 1960s Indonesian genocide.” –Google
The Pearl of Africa (2016)
“The Pearl of Africa focuses on the life of Cleopatra Kambugu — one of the first Ugandan women to live openly as a trans woman, despite incredible hostility in the country towards LGBT people. In 2014 Uganda passed an extreme homophobic law allowing life imprisonment for homosexuality. Later that year the Ugandan tabloid Red Pepper outed Kambugu, which eventually forced her and her lover to flee Uganda. A heartbreaking film of love, loss, and liberty.” –Amnesty International
The Prison in Twelve Landscapes (2016)
“The Prison in Twelve Landscapes excavates the hidden world of the modern prison system and explores lives outside the gates affected by prisons. By examining the impact of mass incarceration from outside the prison walls, the film takes us to unexpected locations — from a California mountainside where female prisoners fight raging wildfires, to a Bronx warehouse with goods destined for the state correctional system, to a rural Kentucky mining town that now depends on the local penitentiary for jobs.” –PBS.org
The Square (2013)
“Directed by Jehane Noujaim, the film documents how the Egyptian Revolution unfolded from 2011-2013. It is an eloquent grassroots level film that takes you inside the revolution in a way allowing one to understand the complexity as well as the magnitude of what occurred in Tahrir Square.’” –Cinema Humain
The Syrian Bride (2004)
“Mona (Clara Khoury), a Druze bride-to-be, lives in a village on the border of Israel and Syria. Her father, political leader Hammed (Makram J. Khoury), wants her to marry a Syrian comedian, but her move to Syria would likely be a permanent one, considering the political unrest between the two countries. The wedding planning is a nightmare, and tensions are high — especially when Mona’s siblings, who have moved on to new countries and complicated relationships, come home before the big day.” –Google
The Take (2004)
“[The film] tells the story of workers in Buenos Aires, Argentina who reclaim control of a closed Forja auto plant where they once worked and turn it into a worker cooperative.” –Wikipedia
The Trials of Spring (2015)
“When 24-year-old Hend Nafea is arrested and tortured for demonstrating peacefully in Cairo’s Tahrir Square, her pursuit of justice reflects post-revolution Egypt at an uncertain crossroads.”
–IMDb.com
The Wanted 18 (2014)
“’The Wanted 18’ is a 2014 Canadian-Palestinian animated documentary about the efforts of Palestinians in Beit Sahour to start a small local dairy industry during the First Intifada, hiding a herd of 18 dairy cows from Israeli security forces when the dairy collective was deemed a threat to Israel’s national security. The film combines documentary interviews with those involved in the events, archival footage, drawings, black-and-white stop-motion animation as well as re-enactments, and was co-directed by Canadian filmmaker Paul Cowan and Palestinian visual artist and director Amer Shomali.” –Wikipedia
The White Helmets (2016)
“The White Helmets is a 2016 British documentary that follows a group of volunteer rescue workers in the Syrian Civil Defence, also known as the White Helmets. After five years the war in Syria has killed over 400,000 and displaced millions more. In areas outside of the regime, those left rely on this group of brave volunteers, dedicated to saving anyone in need. A truly incredible account of humanity shining through in the face of so much violence and hate.”
–Amnesty International
Under the Bridge: The Criminalization of Homelessness (2015)
“’Under the Bridge: The Criminalization of Homelessness’ is a documentary film about one summer in Indianapolis, a tent city under a bridge, a man named Maurice, and the criminalization of homelessness in the United States. The unofficial “mayor” of the Davidson St. camp, Maurice is an older, dreadlocked Black man who has dropped out of “normal” society to minister to the homeless. His camp under a railroad track becomes a real community, supported by church volunteers, until police and bulldozers close in to shut it down.” –IMDb.com
Virunga (2014)
“Virunga is a documentary film that considers the implications of a UK based oil company’s attempts to extract oil in one of the oldest parks in the Democratic Republic of the Congo. Continued conflict within the region further complicates the development of the park, thereby also hindering the development of the quality of life of communities living in and around the protected area. Showing the human as well as the natural cost of the West’s continued attempts to extract oil from African countries, the film therefore connects conservation with many human rights issues prevalent in the region.” –Cinema Humain
Who is Diyani Cristal? (2013)
“The body of an unidentified immigrant is found in the Arizona Desert. In an attempt to retrace his path and discover his story, director Marc Silver and Gael Garcia Bernal embed themselves among migrant travelers on their own mission to cross the border, providing rare insight into the human stories which are so often ignored in the immigration debate.” –Kanopy
1
Having completed (or nearly completed) your film paper, you will present your work. You presentation is meant to be a summary of your film paper; you do not have to add anything extra. The purpose of this assignment is so that you can listen to one another and learn from each other’s explanations of different course themes/concepts/arguments/ideas in the context of your chosen films.
Your presentation should be about 10 minutes.(650 words) As part of this presentation assignment, you will need to prepare either A) a short PowerPoint or GoogleSlides* presentation OR B) a clear outline of your notes for the presentation. Your choice. You will submit one of these here to this assignment.
Whether in PowerPoint or outline format, your presentation submission should be clear enough so that I can use it to assess the quality and content of what you have presented in the breakout room. Because your presentation is supposed to be a summary of your paper, I will not be surprised if you draw directly from your paper in the creation of your presentation, and that is absolutely okay. Your submission of a slideshow or presentation notes is partial evidence of you giving the presentation.
Universal Declaration of Human Rights
Preamble
Whereas recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous
acts which have outraged the conscience of mankind, and the advent of a world
in which human beings shall enjoy freedom of speech and belief and freedom
from fear and want has been proclaimed as the highest aspiration of the common
people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between
nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their
faith in fundamental human rights, in the dignity and worth of the human person
and in the equal rights of men and women and have determined to promote
social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation
with the United Nations, the promotion of universal respect for and observance of
human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the
greatest importance for the full realization of this pledge,
Now, therefore,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of
achievement for all peoples and all nations, to the end that every individual and
every organ of society, keeping this Declaration constantly in mind, shall strive by
teaching and education to promote respect for these rights and freedoms and by
progressive measures, national and international, to secure their universal and
effective recognition and observance, both among the peoples of Member States
themselves and among the peoples of territories under their jurisdiction.
Article I
All human beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one another in a
spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person
belongs, whether it be independent, trust, non-self-governing or under any other
limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obligations and of any
criminal charge against him.
Article 11
1. Everyone charged with a penal offence has the right to be presumed
innocent until proved guilty according to law in a public trial at which he
has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the penal
offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. Everyone has
the right to the protection of the law against such interference or attacks.
Article 13
1. Everyone has the right to freedom of movement and residence within the
borders of each State.
2. Everyone has the right to leave any country, including his own, and to
return to his country.
Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2. This right may not be invoked in the case of prosecutions genuinely
arising from non-political crimes or from acts contrary to the purposes and
principles of the United Nations.
Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
Article 16
1. Men and women of full age, without any limitation due to race, nationality
or religion, have the right to marry and to found a family. They are entitled
to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the
intending spouses.
3. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
Article 17
1. Everyone has the right to own property alone as well as in association with
others.
2. No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in
teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
2. No one may be compelled to belong to an association.
Article 21
1. Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall
be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled
to realization, through national effort and international co-operation and in
accordance with the organization and resources of each State, of the economic,
social and cultural rights indispensable for his dignity and the free development
of his personality.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and
favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal
work.
3. Everyone who works has the right to just and favourable remuneration
ensuring for himself and his family an existence worthy of human dignity,
and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of
his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of
working hours and periodic holidays with pay.
Article 25
1. Everyone has the right to a standard of living adequate for the health and
well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or
other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All
children, whether born in or out of wedlock, shall enjoy the same social
protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be
compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all
on the basis of merit.
2. Education shall be directed to the full development of the human
personality and to the strengthening of respect for human rights and
fundamental freedoms. It shall promote understanding, tolerance and
friendship among all nations, racial or religious groups, and shall further
the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be
given to their children.
Article 27
1. Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and
its benefits.
2. Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the
author.
Article 28
Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.
Article 29
1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only
to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein.
Universal Declaration of Human Rights
Preamble
Article I
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
Article 15
Article 16
Article 17
Article 18
Article 19
Article 20
Article 21
Article 22
Article 23
Article 24
Article 25
Article 26
Article 27
Article 28
Article 29
Article 30
The Blackwell
Companion to
Law and Society
Edited by
Austin Sarat
• A Blackwell
“-fl Publishing
© 2004 by Blackwell Publishing Ltd
except for editorial material and organization ([) 2004 by Austin Sarat
BLACKWELL PUBLISHING
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The right of Austin Sarat to be identified as the Author of the Editorial Material in this Work has been
asserted in accordance with the UK Copyright, Designs, and Patents Act 1988.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise,
except as permitted by the UK Copyright, Designs, and Patents Act 1988, without the prior permission of
the publisher.
First published 2004 by Blackwell Publishing Ltd
Library of Congress Cataloging-in-Publication Data
The Blackwell companion to law and society / edited by Austin Sarat.
p. cm. – (Blackwell companions to sociology ; 11)
Includes bibliographical references and index.
ISBN 0-631-22896-9 (hardback: alk. paper)
1. Law-Social aspects. I. Sarat, Austin. II. Series.
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Blackwell Publishing, visit our website:
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2003019975
Contents
�a X
List of Contributors xm
1 Vitality Amidst Fragmentation: On the Emergence of
Postrealist Law and Society Scholarship
Austin Sarat l
PART I PERSPECTIVES ON THE HISTORY AND SIGNIFIC ANCE
OF LAW AND SOCIETY RESEARCH 13
2 Law in Social Theory and Social Theory in the
Study of Law
Roger Cotterrell 15
3 Profession, Science, and Culture: An Emergent Canon of
Law and Society Research
Carroll Seron and Susan S. Si/bey 30
PART II THE CULTUR AL LIFE OF LAW 61
4 The Work of Rights and the Work Rights Do:
A Critical Empirical Approach
Laura Beth Nielsen 63
5 Consciousness and Ideology
Patricia Ewick 80
6 Law in Popular Culture
Richard K. Sherwin 9 5
Vlll CONTENTS
7 Comparing Legal Cultures
David Ne/ken 113
PART III INSTITUTIONS AND ACTORS 129
8 The Police and Policing
Jeannine Bell 131
9 Professional Power: Lawyers and the Constitution of
Professional Authority
Tanina Rostain 146
10 Courts and Judges
Lee Epstein and Jack Knight 170
11 Jurors and Juries
Valerie P. Hans and Neil Vidmar 195
12 Regulators and Regulatory Processes
Robert A. Kagan 212
13 The Legal Lives of Private Organizations
Lauren B. Edelman 231
PART IV DOMAINS OF POLICY 253
14 Legal Regulation of Families in Changing Societies
Susan B. Boyd 255
15 Culture, “Kulturkampf,” and Beyond:
The Antidiscrimination Principle under the
Jurisprudence of Backlash
Francisco Valdes 271
16 The Government of Risks
Pat O’Malley 292
17 Thinking About Criminal Justice: Sociolegal Expertise
and the Modernization of American Criminal Justice
Jonathan Simon 309
18 Rights in the Shadow of Class: Poverty, Welfare,
and the Law
Frank Munger 330
19 Immigration
Susan Sterett 354
20 Commodity Culture, Private Censorship, Branded
Environments, and Global Trade Politics: Intellectual
Property as a Topic of Law and Society Research
Rosemary J. Coombe 369
CONTENTS IX
21 Legal Categorizations and Religion: On Politics of
Modernity, Practices , Faith, and Power
Gad Barzilai 392
22 The Role of Social Science in Legal Decisions
Jonathan Yovel and Elizabeth Mertz 410
PART V H O W DOES LAW MATTER? 433
23 Procedural Justice
Tom R. Tyler 435
24 A Tale of Two Genres: On the Real and Ideal Links
Between Law and Society and Critical Race Theory
Laura E. Gomez 453
25 The Constitution of Identity: Gender, Feminist Legal
Theory, and the Law and Society Movement
Nicola Lacey 471
26 Sexuality in Law and Society Scholarship
Leslie]. Moran 487
27 Law and Social Movements
Michael McCann 506
28 “The Dog That Didn’t Bark”: A Sociolegal Tale of Law,
Democracy, and Elections
Stuart A. Scheingold 523
PART VI STUDYING GLOBALIZATION: PAST, PRESENT, F UTURE 543
29 Ethnographies of Law
Eve Darian-Smith 545
30 Colonial and Postcolonial Law
Sally Engle Merry 569
31 Human Rights
Lisa Hajjar 589
32 The Rule of Law and Economic Development in a
Global Era
Kathryn Hendley 605
33 Economic Globalization and the Law in the
Twenty-first Century
Francis Snyder 624
Index 641
31
Human Rights
LI SA HAJJAR
Toward the end of Calling the Ghosts, a documentary film about the war in Bosnia,
there is a scene in which the two central characters are looking through a rack of
postcards. Jadranka Cigelj and Nusreta Sivac, Bosnian Muslim women who sur
vived the Serbian concentration camp of Omarska, had come to the Netherlands to
testify about their experiences before the International Tribunal for the Former
Yugoslavia. The voiceover is Cigelj, reading the card they sent to their former
Serbian colleagues in their former hometown, the ethnically cleansed city of
Prijedor: “Greetings from The Hague. Hope to see you here soon.” Those two
short sentences speak volumes about modern ethnic hatred, genocidal violence,
and torture, as well as the survivor spirit and demands for justice.
When the women were incarcerated and repeatedly raped by Serbian soldiers, the
possibility of legal retribution was virtually unthinkable. The illegality of Omarska
was obvious, as evidenced by the precautions taken by the commanders of the camp
prior to a visit by foreign journalists to obscure the harms being perpetrated there.
But they had little reason to imagine, let alone fear, that they could be held account
able. At that time, there was no institutional mechanism to enforce the international
laws being violated in Omarska. But the fact that there were laws “in the books”
inspired the women, when they were released, to document their own and fellow
prisoners’ suffering. Although the initial purpose of their documentation project was
to facilitate recovery, it also constituted evidence of crime.
In 1993, when the United Nations created an ad hoc tribunal for the former
Yugoslavia, the testimony of survivors was instrumental in preparing indictments.
The postcard scene in Calling the Ghosts portrays this transitional phase in inter
national law enforcement and institution building. It also provides a vivid, ethno
graphic image of “law in action.” For Cigelj and Sivac, their transformation from
“victims” to “witnesses” is an empowering rejoinder to the violence that unmade
their world.
590 LISA HAJJ AR
HUMAN RIGHTS IN THE FIELD OF LAW AND SOCIETY
Studying the power of law to make and to change social relations is a cornerstone of
law and society scholarship. It is a shared interest in law as a social phenomenon and
force that brings scholars from across the disciplinary spectrum to this interdisciplin
ary field. However, until the 1980s, little attention was devoted to international law
or law in the international arena. Rather, the field was dominated by the study of law
in a particular country or community, or comparative analysis of law in select
countries. Research on globalization and international law has picked up over the
last two decades. Commenting on this trend, Silbey writes:
[S]tudying the social organization of law is a particularly good way to study the exercise
of power under globalization: first, because so many of these new forms of interaction
and exchange are organized through law; and, second, because to some extent, we have
already been there …. Not only is there a noticeable structural homology between
the narratives of globalization and liberal legalism, but the gap between law in the
books and law in action revealed in much sociolegal scholarship can also be observed in
the accounts and practices of globalization. Not only do we observe a consistent
contradiction -the gap between ideal and reality- but the same gap is produced: abstract
formal equality and substantive concrete/experiential inequality. (Sil bey, 1997: 230)
Human rights are a creation of international law, and therefore a manifestation of
the globalization of law. As such, they constitute a rich and relevant vein of inquiry
for law and society scholars. Moreover, like human rights discourse, much of law
and society scholarship tends to embody a commitment to justice, empowerment,
and rights.
In the Anglo-American academy, the field of law and society has been enriched by
research on human rights and related topics. Indeed, this has contributed to the
internationalization of the field itself. Conversely, the interdisciplinarity of the field
can enrich scholarship on human rights. For example, the burgeoning interest in
cause lawyering illuminates connections among legal activism, international laws,
and social movements mobilized in struggles for rights. The field’s venerable trad
ition of applying sociopolitical analysis to legal texts and institutions is inspiring
work on these topics at the international level. Enduring concerns about legal
pluralism and legal consciousness lend themselves readily to investigations of
human rights organizations and activism.
In this chapter, I provide a brief (and admittedly selective) history of human rights,
highlighting some of the concerns that resonate in the field of law and society. I am
particularly interested in one of the abiding concerns of the field: the “gap” between
“law in the books” and “law in action.” I would also note at the outset that the
concept of “human rights” has multiple meanings and interpretations; in my analy
sis, I emphasize the centrality of violence.
VIOLENCE, JUSTICE AND SOCIAL CHANGE
In the twentieth century, planned and organized violence to achieve political ends
reached unprecedented levels. But also unprecedented in this era were efforts to
construct a global regime of law to regulate and restrict violence. The relationship
HUMAN RIGHTS 591
between these two phenomena, violence and law, is dialectical. As Austin Sarat and
Thomas Kearns point out:
[V]iolence … is integral to the constitution of modern law, and … law is a creature of
both literal violence, and of imaginings and threats of force, disorder and pain …. Vio
lence thus constitutes law in three senses: it provides the occasion and method for
founding legal orders, it gives law (as the regulator of force and coercion) a reason
for being, and it provides a means through which the law acts. (Sarat and Kearns,
1993: 1, 3-4)
These three dimensions of the relationship between violence and law are useful for
understanding developments in international law. The violence of two world wars
was a constitutive factor in strengthening humanitarian law (otherwise known as the
laws of war), and international shock and revulsion at the Nazi Holocaust provided a
crucial negative inspiration leading to the creation of a new body of international law
to establish human rights. The third dimension, the violence of law, features in this
account, too, but until quite recently it remained a promise (or threat) unfulfilled.
Until the end of World War II, international laws were oriented almost entirely to
relations among states, excluding, for the most part, matters concerning the rela
tions between states and their own subjects. Sovereign states comprised a “commu
nity of equals,” and sovereignty constituted a form of supreme authority, based on
principles of independence, domestic jurisdiction, and noninterference. Most human
beings had no claim to international rights because they had (virtually) no standing
in international law. But World War II took a toll on the legitimacy of this Westpha
lian order. The grimmest lesson of the war was that the most egregious atrocities
were not illegal because there were no laws to prohibit them and no authority to
prevent them.
At the end of the war, new legal ground was broken when tribunals were established
in Nuremberg and Tokyo to try Axis leaders. The process of establishing the tribunals
and the proceedings that took place therein clarified the content and extended the
parameters of “war crimes,” articulated a new category of crimes (“crimes against
humanity”), and established the basis for a new form of rights (“human rights”).
Criminalizing and prosecuting state violence was a radical legal innovation because it
eroded states’ sovereign prerogatives to use violence with impunity. Indeed, Hermann
Goering, one of the architects of the Nazi “Final Solution,” used this transgression of
legal precedent to challenge the prosecution: “But that was our right! We were a
sovereign state and that was strictly our business.”
Even some legal experts who condemned the violence were concerned about the
legitimacy of prosecuting its authors. While law can be (and often is) used to
innovate changes, the legitimacy of law depends on an appearance of stability and
predictability. Legal reasoning appeals to precedent, to pre-existing principles, to
prevailing views about order, justice, and rights. Thus these tribunals defied legal
convention: they were created and used to hold individuals legally accountable for
violence they undertook as agents of their states, actions that were not, at the time
they were perpetrated, recognized as crimes. As Aryeh Neier explains the legalistic
critique of the tribunals:
Adherents of positive law – that is, those who reject the application of natural law or
higher law principles and who believe that only laws enacted by appropriate authorities
592 LISA HAJJ AR
are valid – argued that trying Germans and Japanese for crimes against humanity
violated the fundamental principles of legality: nullum crimen sine lege (no crime
without law) and nulla poena sine crimine (no penalty without crime). (Neier, 1998: 16)
But the heinousness of the violence overwhelmed legal conservatism in that
transitional moment. According to Robert Cover, “The defense of the Nuremberg
trials .. . was sounded at the outset in terms of the capacity of the event to project a
new legal meaning into the future” (Minow, Ryan, and Sarat, 1995: 196). In his
opening statement as lead prosecutor at the Nuremberg tribunal, US Supreme Court
Justice Robert Jackson justified the undertaking as commensurate with the rule
of law:
If these men are the first war leaders of a defeated nation to be prosecuted in the name of
the law, they are also the first to be given a chance to plead for their lives in the name
of the law [and given] a fair opportunity to defend themselves – a favor which these
men, when in power, rarely extended to their fellow countrymen. Despite the fact that
public opinion already condemns their acts, we agree that here they must be given a
presumption of innocence, and we accept the burden of proving criminal acts and the
responsibility of these defendants for their commission. (cited in Minow, 1998: 31-2)
The principles justifying the prosecution of Axis leaders were as lofty as they were
radical. In principle, individuals were being tried for crimes against “humanity” and
“peace,” not against the particular victims of their regimes. In principle, the author
ity of the tribunals derived from the “international community,” not the victorious
nations. In principle, the indefensibility of superior orders would serve as a deterrent
against future atrocities, a ringing warning of “never again.” And in principle, the
precedents established through the tribunals would enable the pursuit and prosecu
tion of other individuals suspected of engaging in similarly heinous acts. According
to Neier, “The tribunals advanced the idea that law generally, and international law
in particular, can deal with great matters and that legal process may be relied upon
to deal appropriately with the most grievous offenses by human beings against other
human beings” (1998: 18).
Along with the tribunals, in the immediate postwar period, two of the most
significant initiatives to build an international legal regime were the creation of the
United Nations (UN) in 1946 and the passage of the Universal Declaration of
Human Rights (UDHR) in 1948. The mandate of the UN, enshrined in its Charter,
made human rights a prominent theme, albeit conceiving such rights not as an end
unto themselves but rather as a means to ensure global peace and security. The
UDHR was more high-minded, declaring human rights to be “inalienable” – an end
in themselves. Although the UDHR was a nonbinding agreement, it laid out a
framework for a common set of rights that all humans could claim, and served as
a reference for subsequent promulgation of laws to codify those rights.
The postwar tribunals had operationalized the violence of law. But stripping state
agents of “sovereign immunity” and prosecuting them for political crimes had a
chilling effect on international law enforcement in their aftermath. Early efforts to
build on the Nuremberg precedent by instituting an international criminal justice
system were thwarted because, as Louis Henkin explains, “the principal powers [i.e.,
the permanent members of the new UN Security Council I were not prepared to
derogate from the established character of the international system by establishing
law and legal obligation that would penetrate Statehood in that radical way: clearly
HUMAN RIGHTS 593
they themselves were not ready to submit to such law” (cited in Steiner and Alston,
1996: 123).
Ironically, as the rhetorical influence of human rights was gaining ground, the
ground itself was eroding. In the postwar era and for decades thereafter, political
exigencies, notably states’ defense of their sovereign prerogatives and Cold War
polarizations, subverted the enforceability of human rights and humanitarian laws.
HUMAN RIGHTS AS UTOPIA
The concept of utopia, once defined as imagined perfection, has expanded to include
cures for imperfection. By this definition, any struggle or movement for rights could
be conceived as utopian to the extent that it represents a desire to make the world a
“better place” for the (would-be) beneficiaries. The utopianism of rights, and the
vision of human dignity (and vulnerability ) upon which rights strategies are based, is
grounded in modern legal liberalism: rule of law, equality among the subjects of law,
and universalized application and enforcement within the jurisdiction of law (see
Dworkin, 1977; Donnelly, 1998; for skeptical assessments, see Fitzpatrick, 1992;
Scheingold, 1974).
The idea of human rights is undisputedly utopian because it assumes and asserts
that all human beings are equal in their humanity. But since humans do not actually
live as equals, the idea is also revolutionary because it challenges hierarchies of
power and privilege upon which political, economic, and social orders around the
world are based.
Louis Henkin (1990) has described the twentieth century as the “age of rights. ”
His intention was not to proclaim a victory for rights, but rather to acknowledge the
influence of the idea of rights on the expectations and struggles of people around the
world. Indeed, the right to rights has become an internationalized – if far from
universalized – norm. Abdullahi An-Na’im defines the “human rights paradigm” as
“the idea that the protection of certain individual and collective/group rights . .. is a
matter of international concern, rather than the exclusive internal affair of states”
(2001a: 87). According to Richard Wilson: “Notwithstanding disputes over their
conceptualization and application, human rights are among the few utopian ideals
left, and there is still a remarkable degree of consensus by governments on the
principle at least that certain rights be protected under international law” (Wilson,
1997: 1).
Human rights are legal entitlements. To understand what human rights “do” or
can do, it is necessary to appreciate what rights are. Rights can be defined as
practices that are required, prohibited, or otherwise regulated within the context
of relationships governed by law. To create new rights requires the creation of new
laws, or reinterpretation of existing laws in new ways, or extension of the jurisdic
tion of laws to new subjects. The process of creating new rights emerges and
proceeds in response to changing perceptions about social needs and problems,
which, in turn, mobilizes a swell or shift in the balance of politicolegal forces to
act. The products of that process, new laws that establish new rights (or revise or
extend existing rights), impose changes by legally regulating relationships and
practices in new ways. In short, rights are both markers and means of social change.
The idea of international human rights had been in circulation for decades prior to
the first substantive steps to institutionalize it (see Keck and Sikkink, 1998; Lauren,
594 L I SA HAJJ AR
1998). One of the leading crusaders for human rights was the prominent British
utopian writer, H.G. Wells. At the beginning of World War II, Wells wrote:
At various crises in the history of our communities, beginning with the Magna Carta,
and going through various Bills of Rights, Declarations of the Rights of Man and so
forth, it has been our custom to produce a specific declaration of the broad principles on
which our public and social life is based . . . . The present time seems particularly suitable
for such a restatement of the spirit in which we face life in general and the present
combat in particular. (cited in Lauren, 1 9 9 8 : 52)
In true utopian fashion, Wells and the many other individuals and groups who
mobilized and collaborated during the war years strived both to enunciate principles
of human rights and to advocate their incorporation into the postwar international
order. While this mobilization replicated and built upon similar activities during
World War I, the failures of those earlier efforts to prevent a second global conflagra
tion fortified the movement and legitimized their demands for change. For example,
whereas in World War I nine out of ten of the millions of casualties were soldiers, in
World War II the proportions of soldier and civilian casualties were roughly even
(Gutman and Rieff, 1999: 10). In addition to concerns about the harms wrought by
the war, rights activists like Mohandas Gandhi and W.E.B. DuBois were animated by
the injustices of colonialism and racism. World War II highlighted the linkages
among these concerns; the politics of race (racial superiority and extermination),
and the conquest and control of foreign lands were central to Axis war aims, and
thus became central to the discourse and aims of the Allies’ campaign as well. The
war against fascism was pitched to the public as a fight for ” freedom” (e.g., see US
President Franklin D. Roosevelt’s “Four Freedoms” speech), and the Allies’ victory
seemed to offer an opening to connect anticolonialism and antiracism to the postwar
agenda for international legal reform.
But in the process that ensued, the utopian vision prioritizing the interests and
needs of human beings was overwhelmed by realpolitik. The changes in inter
national law after World War II that created human rights did not undermine the
centrality of states to political life around the world. Nor did the new international
institutions replace or diminish the authority and power of states over their subjects.
Rather, the creation of human rights entailed the elaboration of new international
ized norms of government to which all states would be expected to adhere, while
preserving the general principle of states’ rights as sovereign entities. Consequently,
while states’ rights were revised (e.g., they could no longer claim the “right” to
exterminate civilians), states retained their status as the premier subjects of inter
national law. Put simply, human rights obtain their ” universalizing” character from
the fact that people are subjects of states, and states are subjects of international law.
Thus the establishment of human rights simultaneously revised and reinforced the
state-centrism of the international order.
The most obvious problem with this arrangement was the lack of effective means
of global governance to ensure law enforcement. Under the state-centric structure of
the UN, states were both the governors and the governed – the makers, the enforcers,
and the subjects of these laws. This meant, for the most part, that the protection and
promotion of human rights depended on self-enforcement by states. Thus the
availability of human rights was contingent on the willingness of individual states
to behave and conform, and dependent on the system of states to act against those
that did not (see Falk, 1985).
HUMAN R I GHTS 595
While some states willingly instituted domestic reforms in keeping with their
international obligations, most refused to regard human rights law as binding and
enforceable, especially if the implications would compromise vested interests. Obvi
ous examples were resistance by imperial states to relinquish colonial possessions, or
to dismantle racial or ethnic hierarchies. Unenforceability of international law was
compounded by the dynamics of Cold War rivalries between “East” and “West,” and
superpower competitions for power and influence across the global “South.”
Certainly, the rights of “self-determination” and “equality” enshrined in the UN
Charter and the UDHR informed anticolonial and antiracist struggles, but these
moral-legal imperatives did not mitigate the difficult and often violent processes of
decolonization and desegregation.
The human rights idea was further compromised by sharp ideological disagree
ments over the nature of rights and the contested legitimacy of universalism. In the
UDHR, political and civil rights and social and economic rights were conceived as
“indivisible.” However, Western leaders and leading human rights scholars tended to
argue that political and civil rights were the priority, or even the only kind of “real”
rights, since social and economic rights could not be guaranteed or enforced without
violating the “freedom” of the market and the rights to profit and property. Leaders
of socialist and developing states and scholars committed to those goals tended to
argue that social and economic rights had to be prioritized to create conditions of
equality. This would inevitably entail limitations on political and civil rights, and
justify the use of force in putting down resistance. Socialists challenged the liberal
legal emphasis on individual autonomy and freedom, emphasizing alternatively the
need for a strong state with a centralized economy capable and committed to
pursuing an agenda to remake the social order by redistributing goods.
The other major debate about human rights arose over the meaning and legitim
acy of “universalism.” Specifically, the debate circulates around the changes envi
sioned and imposed through the establishment of international legal norms. Critics
of universalism assumed or were given the title of “cultural relativists.” Their
arguments were twofold: that human rights enshrined Western values of individual
ism (since individuals were constructed as the “beneficiaries” of human rights
law) which contradicted social arrangements and values emphasizing collective
relations and mutual duties, and that the imposition of universal standards was a
new form of imperialism over non-Western societies (see Pollis and Schwab, 1979;
Renteln, 1990).
THE ” G AP ” P RO B LEM
The paramount “problem” of human rights has always been the gap between
codified principles of rights (“law in the books”), and the enforcement or enforce
ability of law (“law in action”). To illustrate these gaps and their ramifications, we
can consider three bodies of law: the Genocide Convention, the four Geneva
Conventions, and the Torture Convention.
The Genocide Convention, promulgated in 1948, was a clear rejoinder to the
Holocaust. Its aim was to prohibit and thus deter mass killing. But the Convention
reflected a very particular – and limited – understanding of prohibited violence.
While genocide was categorized as an international crime whether it occurred in war
or peace, prohibited practices are defined as those intended “to destroy, in whole or
596 L I S A HAJ J A R
in part, a national, ethnical, racial o r religious group, as such.” The exclusion of
“political groups” and the insertion of the phrase “as such” during negotiations over
the language of the Convention were insisted upon by the major powers as means of
preserving their own prerogatives to act – including violently – against “political
enemies” (Kuper, 1994: 3 2 ) . As Diane Orentlicher notes,
What was left out of the convention is as important as what was included. Although
earlier drafts . . . listed political groups among those covered by the intent requirement,
this category was omitted during final drafting stages. Too many governments, it
seemed, would be vulnerable to the charge of genocide if deliberate destruction of
political groups fell within the crime’s compass. ( Orentlicher, 1 9 99: 1 54 )
The omissions in the Genocide Convention’s wording, as well as the lack of
political authority to enforce the prohibition preserved the very vulnerability that
the Convention was intended to rectify. Since 194 8 , millions of people have been
systematically slaughtered by their governments, and until 1993 there was not a
single effort by signatories to fulfill their own obligations to “prevent and punish”
this crime. Moreover, even military responses to thwart genocide have been pro
tested and resisted by the UN as illegitimate interference in sovereign states’ “in
ternal affairs” (see Finnemore, 1996 ).
Unlike the Genocide Convention, which was part of the “new” body of inter
national human rights law born in the aftermath of World War II, the four Geneva
Conventions (1949) fall within the domain of international humanitarian law, which
has a longer and more established pedigree. These Conventions address the legal
conduct of war, armed conflict, and military occupation, identifying and prohibiting
actions against civilians or combatants that would constitute “war crimes.” Pro
hibited practices include forced relocations and deportations, torture, collective
punishment, hostage taking, extraj udicial killings, and the deliberate targeting of
civilians during military operations (see ICRC, 1989).
The Geneva Conventions have status as “customary law,” which means that they
are binding on all states. (The alternative, “conventional law,” is binding only on
signatory states . ) As customary law, “grave breaches” of the Geneva Conventions
carry universal jurisdiction, meaning that violators can be prosecuted in any compe
tent legal system (i.e., a national legal regime ). But despite this provision, violations
of the Geneva Conventions were rampant and unpunished. As Lawrence Weschler
opmes,
[I] nternational humanitarian law has stood largely mute, palsied in part by the fear of
most national governing elites – and in particular the successive leaderships of the five
permanent Security Council members most in a position to invoke those norms – that
the glare of such attention might one day be turned on their own actions. (In the United
States this tenor of concern often took the form of the anxious assertion that “by that
logic Henry Kissinger could have been held liable for the Christmas bombing of Hanoi” –
as well he might have been.) ( Weschler, 1 9 99: 2 1 )
Like the Genocide and the Geneva Conventions, the Torture Convention outlaws
particular forms of violence. However, the former were immediate responses to
World War II whereas the latter was promulgated in 1 984. Another difference was
that the Torture Convention came into being as a result of pressure and advocacy by
nongovernmental organizations (NGOs) rather than an initiative of government
H U M A N R I G H T S 597
representatives. Indeed, torture was the breakout issue for the development of
an international human rights movement, led by Amnesty International (Al). AI,
which was formed in 1961 in response to concern about the arrest of people because
of their political ideas and activities, and concern about the torture and ill-treatment
of prisoners, led the campaign for a UN convention prohibiting torture (see
Rodney, 1996).
The Torture Convention differs from the Genocide Convention in certain crucial
ways. First, the prohibition of torture and ill-treatment extends to every human
being regardless of any aspect of his or her identity. Second, the prohibition is
absolutely nonderogable (although the definition of torture does exclude coverage
of “pain and suffering arising only from, inherent in or incidental to lawful sanc
tions” ). Nonderogability means that there is no basis upon which any state can
legally claim a “right” to torture, as the practice is defined under the convention.
Third, the Convention criminalizes the use of violence by public agents against
people in custody, which distinguishes torture empirically and legally from other
forms of violence, such as those arising in the context of warfare or conflict (see
Hajjar, 2000; Scarry, 1 985 ) . Fourth, the Convention explicitly recognizes universal
jurisdiction for the prosecution of perpetrators.
The Genocide, Geneva and Torture Conventions were created to redress problems
of violence. Did these laws make the world a “better place” ? If assessment depends
on whether these laws have been enforced, then the answer would be no. However,
the creation of these laws did articulate principles and outlaw practices that would
constitute violations, and this provided a “standard against which the conduct of
governments is measured – an indirect yet still important contribution to human
rights” (Neier, 1998: 21).
A C T I N G O N P R I N C I P L E
The history of human rights encompasses not only the creation of laws but failures
to adhere to and enforce those laws. Human rights activism is the organized
response to this failure. Because of the institutional weaknesses of law enforcement
mechanisms at the interstate level, NGOs with human rights mandates were estab
lished to operate in the breach. The various strategies deployed for such purposes
include monitoring and reporting on violations to foster awareness (see Cohen,
1995 ) , advocacy work to encourage actions or interventions to curb or stop viola
tions, and litigation to adjudicate the applicability of international laws.
Over the last 30 years, the human rights movement has become truly globalized,
evident in the mushrooming of organizations around the world and the
strengthening of transnational and international networks. Notwithstanding dis
agreements over priorities and strategies, this movement is united by a common
mandate to improve adherence and enforcement of international laws. Human
rights activism and networking developed to fulfill a panoptic function of inter
national surveillance by documenting and protesting violations. In so doing, the
harms and injustices to which people around the world are subjected have been
brought into the public domain where they demand and command an audience.
While human rights activism rarely has been sufficient to end violations, it certainly
has contributed to the influence of law in the international arena, and the influence
of international law in domestic arenas.
598 L I SA HAJ J AR
WOME N ‘ S RIGHTS AS HUMAN RIGHTS
In many ways, the kinds of activities to achieve and protect women’s rights replicate
initiatives to secure other types of human rights. Violence and vulnerability have
been abiding concerns in the construction and promotion of women’s rights. How
ever, women’s rights pose the quintessential challenge to the “universality” of human
rights, which is premised on the principle of human equality. In societies around the
world, sexual and other differences between men and women lend themselves to
understandings of gender inequalities as both derivative of and conforming to
“nature.” Moreover, gender inequalities and hierarchies have been justified as crucial
to social order and cohesion, and staunchly defended as an aspect of a given culture.
Initially, the means of establishing women’s human rights hinged on the principle
of nondiscrimination. Thus any rights enshrined in the UDHR and other inter
national legal instruments would, in principle, apply to women. However, reliance
on nondiscrimination made international law a weak resource for women because
the primary danger was envisaged as an invasive and repressive state. Consequently,
forms of violence and harm to which were women were subjected as women were
ignored by international lawmakers and thus remained immune to prohibition. For
example, violence perpetrated between family members was (until recently)
regarded as beyond the scope of international intervention.
The process of making women’s issues, needs, and vulnerabilities “visible”
entailed the extension of the human rights paradigm to previously excluded areas,
including the so-called “private sphere” of the family. The Convention on the
Elimination of All Forms of Discrimination Against Women ( CEDAW ), which
came into force in 19 8 1, established the “indi visibility” of women’s rights in public
and private life ( see Fried, 1994 ) . While CEDAW recognizes the importance of
culture and tradition, it imposes on signatory states an obligation to take “all
appropriate measures” to modify social and cultural patterns of conduct that are
discriminatory or harmful toward women.
But CEDAW failed to identify violence against women as a human rights viola
tion. Responding to this lacuna, in the 1 9 80s, women’s organizations around the
world began campaigning for international recognition and prohibition of domestic
violence as a human rights violation. In the 1 990s, domestic violence became a
major issue in a worldwide campaign to end violence against women. In 1993,
women’s groups presented a petition with almost 500,000 signatures from 1 28
countries to delegates at the World Conference on Human Rights ( held in Vienna,
Austria), demanding recognition of violence against women as a violation of their
rights. In response, the UN adopted the Declaration on the Elimination of Violence
against Women, defining it as “any act of gender-based violence that results in, or is
likely to result in, physical, sexual or mental harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring
in public or private life.” In 1994, the UN appointed the first Special Rapporteur on
Violence against Women. In 1995, the Beijing Platform of Action (issued at the
conclusion of the UN Fourth World Conference on Women held in Beijing, China)
included an affirmation of the need to combat domestic violence and outlined
specific measures to combat it ( United Nations, 1996 ).
These initiatives have extended the reach of international law into the “private
sphere,” while seeking to “mainstream” women’s rights by holding states account-
H U M A N R I G H TS 599
able for their enforcement. But the successes of this campaign also sparked criticism
and reprisals by social conservatives around the world, who have responded nega
tively to efforts to empower women and endow them with enforceable rights,
especially within the context of the family. In many societies, official and popular
aversion to enforcing international standards for domestic relationships has proven
far more powerful and influential than the forces seeking to promote and protect the
rights and well-being of women.
Debates over women’s rights have been particularly rancorous in many developing
countries (see Hajjar, forthcoming; Merry, 2001; Riles, 2 000). Indeed, women’s
rights, and the issue of gender relations more generally, have become the primary
redoubts of anxieties about the ( putative) Western imperialism of human rights.
Ongoing struggles over women’s rights exemplify enduring disputes over legal
j urisdiction and authority, namely whether international standards will prevail, or
whether other bodies of law (constitutional, religious, customary) are accorded
precedence when there is a contradiction.
T RANS I T I ONS TO J U STICE
One of the necessary characteristics of law is the realistic threat of “legitimate
violence.” Indeed, while human rights often are spoken about and championed in
idealistic terms as a means of helping people, harming people – perpetrators of
violations – by prosecuting and punishing them for their illegal actions is an integral,
if long unfulfilled, dimension of the human rights enterprise.
In the 1990s, the enforceability of international law entered a new phase, often
designated as a “transition to justice” (see Kritz, 1995a, 1995b, 1995c; Teitel, 2 000).
This phase is marked by a broadening of human rights activism and strategies from
struggles for rights to include struggles against violators. It began with the creation
of UN ad hoc tribunals to prosecute the perpetrators of gross violence in the former
Yugoslavia (1993) and in Rwanda ( 1 994). Since then, tribunals have been estab
lished or planned in other places, including Sierra Leone, Cambodia, and East Timar
(see Bass, 2001; Robertson, 2000). A “nonjudicial” alternative to dealing with
past atrocities is truth commissions, to date established in over 23 countries (see
Hayner, 2001).
Another major development was the indictment in 1998 of former Chilean dicta
tor Augusto Pinochet, who was arrested in London on a warrant by a Spanish judge,
charging torture, genocide, and other gross violations. The Pinochet case became a
precedent because of his political status as a former head of state, and because of the
willingness of a foreign national court to regard that status as irrelevant, albeit the
charges that he l d up in Britain were restricted to torture and he was released because
of “ill health” (see Sugarman, 2002). The “Pinochet precedent” was heralded as a
recuperation of the Nuremberg legacy by depriving leaders of the protection of
“sovereign immuni ty” for certain classes of crimes. But also like the Nuremberg
legacy, the enforceability of international law has had a chilling effect to restrict or
thwart the use of universal jurisdiction to prosecute officials accused of perpetrating
or abetting gross violations (see Hajj ar, 2003).
A third development was the passage in 1998 of the Rome Treaty to establish a
permanent International Criminal Court. The treaty obtained the needed number of
ratifications in July 2002. The I CC is intended for the prosecution of individuals
6 0 0 L I S A HAJ J A R
charged with the most serious human rights violations when national courts fail or are
unable to bring them to trial. But the ICC will have jurisdiction only over crimes
committed after its creation (i.e., no retroactive jurisdiction ) , and it remains a matter of
debate whether perpetrators from countries that have not signed the ICC treaty can be
prosecuted in this venue. Of particular concern to ICC supporters is the US govern
ment’s adamant opposition, including the passage of national legislation that would
punish (non-NATO) foreign countries for cooperating with the ICC, and dozens of
bilateral “immunity agreements” the US has pressured other countries to sign.
These recent developments have had substantial impact on international law, but
also reveal the durability of the “gap problem . ” The laws in the books have been
changing under the auspices of the UN tribunals and the ICC, and in response to the
“Pinochet precedent.” One significant aspect of these changes is a burgeoning merger
of humanitarian and human rights law. Ruti Teitel refers to this amalgamation as
“humanity’s law. ”
I n the emerging regime, the scope of the humanitarian law system i s expanded dramat
ically, and merged with the international law of human rights. In the new humanitarian
ism, the normative apparatus of the law of war, particularly its criminal justice
dimension, is expanded way beyond its historic role. This move . . . shifts the law of
war . . . from the periphery of international law to its core . . . The new legal humanitar
ianism emerges to address the pervasive political violence of recent years, [and] in so
doing, it restructures the reigning international value system, and redefines global rule
of law. (Teitel, 2001: 5-6)
For the international human rights community and scholars and commentators
concerned about human rights, the “new legal humanitarianism ” is being lauded as a
breakthrough in the decades-long efforts to close the gap between the principles and
practice of human rights. Martha Minow expresses the kind of cautious optimism
that has become a common theme:
Perhaps more unusual than the facts of genocide and regimes of torture marking this era
is the invention of new and distinctive legal forms of response. The capacity and
limitations of these legal responses illuminate hopes and commitments of individuals
and societies seeking , above all, some rejoinder to the unspeakable destruction and
degradation of human beings. (Minow, 1998: 1 )
But the new legal humanitarianism is also spurring resistance. “Political realists,”
who champion state sovereignty and geopolitical stability through balance-of-power
politics, are opposed to strengthening international law enforcement because it
necessarily comes at the expense of state power and discretion. Moreover, realists
argue, legal humanitarianism is a slippery slope that threatens the stability of the
international order and risks overextension (or misuse) of resources (i.e., military
and intelligence) needed for domestic/national security. The US government is at the
forefront of resistance, selectively utilizing the discourse of human rights to justify
the “war on terrorism” launched in response to the September 1 1 , 200 1 , attacks,
while rebuffing the applicability of international law to its own practices in waging
that war, and actively undermining the goals and efforts of other states to strengthen
law enforcement mechanisms.
Critics of the new legal humanitarianism also include some political and intellec
tual progressives, who see a connection between the expansion of “global law” and
HUMAN RIGHTS 6 0 1
other deleterious forms o f globalization. Tony Evans argues that the current era of
unbridled free-market capitalism and US global hegemony is just as inimical to
human rights, if differently so, as polarizing Cold War politics of previous decades.
He writes, “Since the structures and practices of globalization are the cause of most
violations of human rights, reliance on a legal system that seeks to apportion blame
and punish individuals seems misplaced” ( Evans, 1 998: 1 7).
In response to this line of criticism, Michael Ignatieff rebuts the conflation of
international law and economics: “[T]he moral globalization does not go hand in
hand with economic globalization. On the contrary, human rights activism is
working to mitigate globalization’s effects” (200 1 : 1 6). In a similar vein, Abdullahi
An-Na’im argues that
the modern concept of human rights is the product of a long history of struggle for
social j ustice and resistance to oppression that is constantly adapting to changing
conditions in order to better achieve its obj ectives . . . [A ] s local particularities diminish
under the force of globalization, the push for universal human rights becomes more
common. But since global ization reflects the unequal power relations between de
veloped and developing countries, the tension between the relative and the universal
will remain. To keep this unavoidable tension from repudiating the concept of human
rights and frustrating its purpose in different societies, there must be a deliberate effort
to build an overlapping consensus around the normative content and implementation
mechanisms of human rights. (An-Na’im, 200 1 b: 9 5 )
An-Na’im urges a balance between the emphasis on protection of political and civil
rights through prosecution and other legalistic strategies with a wider set of nonlegal
strategies in order to strengthen “nonjusticiable” claims and entitlements, namely
those relating to social, economic, and cultural rights (see An-Na’im, 200 1 b).
Admittedly, the new legal humanitarianism is only one dimension of contempor
ary human rights discourse and practice. But its importance lies in its potential to
change the content and uses of international law, and to create new goals and
consequences of legal action and activism. Equally important are the measures and
pressures mounted to inhibit law enforcement in the twenty-first century.
NEW D I R EC T IONS F O R L A W A N D SOC I E T Y RESE A RCH
At this juncture, the interpenetrations and overlapping interests of human rights
scholarship and the field of law and society are increasingly evident. In particular,
the new legal humanitarianism raises questions that beg for the kinds of theoretically
informed analysis of the organization and power of law that characterize schola r
ship i n this field.
Rapidly changing circumstances in the international legal arena have inspired calls
for more theoretical clarity for its own sake as well as to ground and guide empirical
investigations. According to Adamantia Poll is, “At present human rights scholarship
is in what Thomas Kuhn calls a preparadigmatic state, a condition that characterizes
social science theory as a whole” (Pullis, 2000: 22). While there could be no unifying
“theory of human rights” any more than there could be a “theory of law,” there is a
compelling need to develop and refine intellectual resources to understand and
explain, to support and/or to criticize the transforming impact of international law
on the global order. According to Ruti Teitel,
602 LI S A H A JJ AR
The core predicates of the [post-World War II] regime are now undergoing su bstantial
transformation that goes to the basic structure and core values of the international legal
system; but these changes are not necessarily sel f-evident, and do not easily comport
with our intuitions about the direction of international law. Therefore, we need to
better understand the constitutive interaction of law with historical experiences. This
necessitates interpretative principles regarding the development of the international
legal domain. (Teitel, 200 1 : LS )
Among many scholars working in the field of law and society, there is a sense that
we are “here together” to contribute substantively to progressive social change. The
prevailing assumption that the field is comprised of “engaged intellectuals” is often a
starting point for suggestions about the direction our scholarship should take. For
example, Boaventura de Sousa Santos encourages engaged academics to devote
more concerted attention to the relationship between law and emancipatory pro
j ects, which would include human rights.
[W]e must reinvent the future by opening up a new horizon of possibilities mapped out
by new radical alternatives . . . We must also define the emergent paradigm, this being
the really important and difficult task . . . . Utopian thinking has thus a double purpose:
to reinvent maps of social emancipation and su bjectivities with the capacity and desire
for using them. N o paradigmatic transformation of modern law would be possible
without an utopian legal su bjectivity: from the law-abiding citizen to the law
influencing citizen. (Santos, 1 9 95: 572, 573)
Scholars can play a role in influencing the development and uses of international
law by weighing in on debates over interpretations and applications of law, and
evaluating the impact of legal initiatives to promote human rights and punish
violators. The field of law and society is well positioned to respond to calls for
paradigmatic work and political engagement to service the visions of j ustice,
empowerment, and rights that underlie demands for human rights.
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7
Human Rights
Abdullahi A. An-Na`im
Human rights is not commonly accepted as a field in sociology, despite the clear
overlap in subject matter and possibilities of mutual conceptual and method-
ological influence. In terms of the organization of this volume, for example,
freedom from discrimination, as an overarching human rights principle, has
obvious implications for fields in sociology ranging from citizenship and
national identity to education, stratification and mobility, and health policy.
Specific human rights, like freedom of speech and association, are clearly rele-
vant to issues of political participation and labor. Gender, sexuality, children,
and race are major themes among human rights scholars. The relationship
between the state and civil society is central to the international articulation
and national implementation of human rights in all societies around the world,
and as such of interest to sociologists. Human rights considerations are also
relevant to the mediation of competing claims to economic and social justice,
identity, and communal autonomy, in global cross-cultural and comparative
terms. These concerns join those of sociologists over such issues as globalization
and postcolonial power relations, social movements, development, accountabil-
ity of transnational corporations for labor relations, and environmental con-
cerns.
To explore possibilities of collaboration and mutual influence between
sociologists and human rights scholars, I begin with an overview of the human
rights paradigm as the framework for the specification and implementation of
rights through national politics and international relations. Since many of the
main themes of human rights are commonly known in terms of constitutional or
civil rights (subject to the crucial difference indicated later), sociologists might
want to consider whether their familiarity with the working of domestic
(national) civil rights could enable them to contribute to mediating what I call
the paradox of international accountability for the domestic practice of
sovereign states. Mediating that paradox also calls for some understanding of the
debate over the universality and cultural/contextual relativity of human rights,
discussed in the second section. In the third section of this chapter, I discuss the
need for complementary legal and social science approaches to the implementa-
tion of human rights as a framework for justice; and provide a brief review of
some of the ways in which sociologists have addressed human rights issues.
The Human Rights ParadigmThe Human Rights Paradigm
Human rights, in a generic sense, can be seen as a framework for an adequate
response to the profound social concerns of persons and their communities. This
primarily procedural sense of human rights is about creating and maintaining
`̀ the space” for individuals and groups to achieve justice, personal security and
well-being, general political stability and economic development, and so forth.
At the same time, however, human rights norms do have a specific normative
content that reflects a certain understanding of what these individual and soci-
etal objectives mean, and how they should be realized in practice. In a substan-
tive sense, therefore, human rights have a clear ideological orientation to what it
means to be human, and how social and political institutions should work in
order to achieve certain ends. However, there is a tension between these two
dimensions of human rights. To inspire and motivate people to take them
seriously, human rights need to have significant and relevant normative content
in each specific context.Yet this is likely to be resisted by privileged and powerful
persons and groups in any society precisely because of the potential to change
existing power relations. Aspects of this tension and its implications will become
clearer after a brief explanation of what human rights are commonly understood
to mean, and how they are supposed to work.
By the human rights paradigm I mean the idea that the protection of certain
individual and collective/group rights, as discussed below, is a matter of inter-
national concern, rather than the exclusive internal affair of states. Paradox-
ically, as explained below, the same states control the processes of determining
these rights at the international level, and applying them within national jur-
isdictions. Moreover, what the so-called international community may do about
a state that willfully and persistently disregards its international obligations to
protect those rights is also subject to a complex interaction of legal principles
and practical considerations. For instance, the notion of `̀ humanitarian inter-
vention” to stop serious human rights violations within a country (as claimed by
the NATO governments who intervened militarily in Kosovo in 1999 against the
government of Yugoslavia) involves balancing such factors as human concern
about the suffering of the victims, the risks of action or inaction for international
peace and security, and the political and economic interests of the intervening
state(s), as well as the short-and long-term implications of violating the sover-
eignty of that country.
Much of the normative, as well as the procedural, dimension of human rights
is traditionally supposed to be provided for in national constitutions and laws
Human Rights 87
for domestic application by the judicial and executive organs of the state, as a
matter of national sovereignty. Earlier attempts by some states acting collectively
to extend such regimes into the boundaries of another state included interna-
tional efforts to end slavery and to protect minorities during the nineteenth and
early twentieth centuries. But the real launch of the human rights paradigm in
the generally accepted sense came about around the middle of the twentieth
century. The horrific events of the Second World War prompted strong agree-
ment by the mid-1940s on the need to effectively check the serious failure of any
state to protect the rights of all persons and groups within its territorial jurisdic-
tion (Steiner and Alston, 1996, p. 59). That was the first time there has ever been
such a broad consensus about the need to reconcile respect for the sovereignty of
a state with the protection of certain human rights as rights due to every human
being by virtue of his or her humanity, without distinction on such grounds as
race, sex, belief, language, or national origin.
But since the process of determining the nature and scope of these rights, and
approaches to their international protection, was confined to sovereign states
which were members of the United Nations (UN) in 1945, only four African
states and eight Asian states were included. The rest of Africa and Asia was
colonized at that time by the same European powers that were proclaiming the
universality of human rights at the UN. Moreover, some basic ambiguities in the
original concept continue to frustrate the prospects of its practical application.
For example, these rights are proclaimed in general terms as belonging to all
human beings, while their realization is strongly associated with citizenship of a
specific country. Although some general principles of international law still
apply to how a state may treat non-citizens who happen to be within its territory,
the distinction between citizen and non-citizen is sometimes difficult to justify
from a human rights point of view (Turner, 1993b, p. 495; 1997). To avoid these
complex issues in this brief overview, I refer to persons under the jurisdiction of a
state, instead of identifying them as its citizens.
The consensus of the mid-1940s was strongly reflected in the Charter of the
UN of 1945, which is the most authoritative document of the present interna-
tional order. According to Article 1 of the Charter, `̀ The Purposes of the United
Nations are . . . (3) To achieve international cooperation in solving international
problems of an economic, social, cultural, or humanitarian character, and in
promoting and encouraging respect for human rights and for fundamental free-
doms for all without distinction as to race, sex, language, or religion.” While
emphasizing this basic obligation in other Articles, the UN Charter left the task
of definition and implementation of `̀ human rights and fundamental freedoms”
to subsequent developments.
That process began with the drafting and adoption of the Universal Declara-
tion of Human Rights of 1948. But the Declaration is not binding as such
because, according to the UN Charter, resolutions of the General Assembly are
merely recommendations to member states of the organization. The drafting and
adoption of detailed treaties, which are binding under international law,
followed, to provide definitions of rights and their implementation. Moreover,
some human rights norms can also be found in certain principles of what is
88 Abdullahi Ahmed An-Na`im
known as customary international law, like the prohibition of genocide, war
crimes, and crimes against humanity. These norms are binding on all states,
regardless of their ratification of treaties on those matters. Some human rights
scholars argue that certain aspects of the Universal Declaration have become
binding as customary international law. For example, the prohibition of torture
is generally accepted as binding on all states as a principle of customary
international law, regardless of their ratification of the specific treaties on the
subject.
The treaties setting the international `̀ legal” standards of human rights range
in scope from earlier Conventions on labor rights (1930), genocide (1948), and
slavery (1956), to the broad 1966 International Covenants, one on economic,
social and cultural rights, and the other on civil and political rights. There is also
a growing number of specialized treaties, like the Conventions for the Elimina-
tion of All Forms of Discrimination, on grounds of race (1965) and gender
(1979), and the Convention on the Rights of the Child of 1989. Similar stand-
ards appear in the regional documents of the European, Inter-American, and
African systems (Steiner and Alston, 1996, p. 563). This legal regime also
includes principles of humanitarian law regulating the conduct of armed forces
in conflict situations, like the four Geneva Conventions of 1949, and the 1951
Refugees Convention. Human rights standards have also been elaborated
through several major international conferences. During the 1990s, for instance,
human rights principles and policies were elaborated in such documents as the
Vienna Declaration and Programme of Action (1994) and the Beijing Platform
for Action of the Fourth World Conference on Women (1995). Human rights are
integral to the mandate of specialized intergovernmental agencies like the Inter-
national Labor Organization (ILO), the World Health Organization (WHO),
and the United Nation Development Programme (UNDP).
As the increasingly wide range of local, regional, and global actors and
processes envisioned by this complex web of documents and institutions clearly
shows, the development of an international legal framework cannot mean that
the implementation of human rights be left to purely legal approaches. The basic
idea of the human rights paradigm is now firmly established in international
relations, as well as in the national politics of the vast majority of countries
around the world, subject to differing assessment of its efficacy or consistency of
its application. Nevertheless, the basic paradox remains: how to achieve effect-
ive international supervision of domestic human rights protection without
violating national sovereignty as the expression of the right to self-determina-
tion, which is itself a collective human right under the first Article of the 1966
Covenants.
From this perspective, I suggest, social science approaches would be extremely
important for understanding the processes of legal articulation and implementa-
tion of these rights as the proper and legitimate exercise of the right to self-
determination, rather than its negation. Sociological analyses are needed, for
example, for understanding the processes of social construction of rights, whose
interests are served by those processes, and the role of civil society and social
movements in generating the political will to adopt and implement international
Human Rights 89
treaties protecting these rights. Such insights are essential for mediating the
paradox of international protection of human rights through respect for sover-
eignty, instead of its violation, as explained below.
It is true that, by ratifying treaties and subscribing to international human
rights policy statements, states are indicating voluntary acceptance of human
rights obligations as limitations on their national sovereignty. But that notion
itself can be seen as entrenching, rather than diminishing, the underlying para-
dox, because it is the state that decides when, how, and to what extent to limit its
own sovereignty. First, the structure and content of any human rights treaty are
negotiated and agreed among the delegates of states, before the treaty is opened
for ratification. Second, and regardless of its publicly declared position, no state
is legally bound until it formally ratifies the treaty according to its own internal
constitutional and political process. Moreover, subject to the requirements of the
international law of treaties, a state has the right not only to enter `̀ reservations”
limiting the scope of its obligations under a treaty, but also to repudiate a treaty
that it has previously ratified. Third, the state is also intended to play a crucial
role in the interpretation and implementation within its territory of the human
rights treaties it has ratified. Where national legislation is required to incorpor-
ate international treaties into national law, as in the United States and United
Kingdom, the domestic normative content of a treaty is effectively determined by
the way it is expressed in legislative language, and interpreted through the
judicial process, of the country (Steiner and Alston, 1996, p. 26). In other
words, domestic compliance with a state’s international obligations to protect
human rights can only be achieved by the official organs of the same state.
Thus, while intended to ensure the protection of certain minimum rights,
international protection is dependent on the active cooperation of states in
limiting their freedom of action within their own domestic jurisdiction. The
paradox of self-regulation by the state of its own behavior is, of course, also
true of domestic constitutional and legal protection of rights. The crucial differ-
ence, noted above, is that constitutional rights are the product of internal
dynamics, whereas the human rights paradigm seeks to influence domestic
situations in favor of upholding certain internationally recognized standards.
In other words, the paradox is sharper for the human rights paradigm because it
has to overcome internal opposition within the country in question, without
having the power to impose its will on states which refuse to comply. The need to
mediate this enduring paradox calls for a clear understanding of the nature and
functioning of social and political forces and institutions within each country,
and in its relations with other countries.
It is not helpful to simply call for formal limitations on state sovereignty,
because that is neither practically feasible nor necessarily good for the protection
of human rights in the long term. Formal limitations on sovereignty are not
feasible because sovereignty is integral to the foundations of the present inter-
national order, as entrenched in Article 2(7) of the UN Charter and other
international documents, and fundamentally affirmed by national constitutions
around the world. Since states are the principal actors at both the international
and national levels, they are unlikely to relinquish their own autonomy by
90 Abdullahi Ahmed An-Na`im
abandoning sovereignty or allowing other actors to achieve that result. Even if
they were practically feasible, formal limitations might also be counterproduc-
tive because sovereignty is the essential expression of the fundamental collective
right to self-determination, as the practical vehicle of domestic policy and the
necessary medium of international relations.
A more realistic and desirable approach, I suggest, is to seek to diminish the
negative consequence of the paradox of self-regulation by infusing the human
rights ethos into the fabric of the state itself and the global context in which it
operates. In that way, the protection of human rights becomes the outcome of
the free exercise of the right to self-determination, instead of being seen as an
external imposition which violates that right. This paradigm shift can best be
achieved by upholding the universality of human rights as, in the words of the
Preamble to the Universal Declaration, `̀ the common standard of achievement
for all peoples and all nations.” Since external imposition will probably be
resisted as a clear violation of sovereignty, while voluntary compliance with
commonly agreed standards is likely to be seen as vindication of sovereign
authority, the universality of human rights must reflect true consensus around
the world. At a formal level, that is said to be achieved through agreement
among states, as the representatives of their societies under international law.
But according to the human rights paradigm itself, and as a matter of practical
politics, international agreements are legitimate and sustainable only to the
extent that they express the genuine consent of national societies and local
communities.
The Quandary of Universality and RelativityThe Quandary of Universality and Relativity
The issue of popular acceptance of the human rights paradigm is frequently
discussed in terms of a binary of universality and relativity (Steiner and Alston,
1996, p. 166; Negengast and Turner, 1997), as if one has to either fully accept or
completely reject the universality of certain rights for all human beings. At one
end of this purported spectrum are said to be countries which claim cultural/
religious relativity or contextual specificity to justify rejecting or qualifying
certain universal human rights norms, in contrast to those which are supposed
to fully accept the universality of all human rights, at the other end. Whereas
some Islamic and East Asian countries are commonly placed on the relativist
side, Western countries are commonly assumed to be universalist. Upon reflec-
tion, however, one can see that such a binary view of this issue is both misleading
and difficult to substantiate or maintain in practice.
A binary view is misleading in assuming either that human rights can be
culturally and contextually neutral, or that a conception of human rights emerg-
ing within one culture or context can be accepted by other cultures for applica-
tion in their context. To explain, I would first note that, as a normative system
that seeks to influence people’s behavior and direct the institutions which regu-
late their lives, human rights can only be the product of culture, to be interpreted
for practical application in a specific context. In other words, human rights
Human Rights 91
norms can be neither imagined nor understood in the abstract, without reference
to the concrete daily experience of the people who are supposed to implement
them. As indicated above, the human rights paradigm is founded on the belief in
the possibility of universal rights, due to all human beings, everywhere, as the
basis for international concern about how people are treated in any part of the
world. Yet, since any conception of human rights as a normative system is the
product of some culture(s), a given set of these rights can be perceived as alien or
unacceptable to other cultures. That is exactly the quandary of universality and
relativity: namely, how to determine universally valid and applicable human
rights norms, which would naturally tend to reflect certain cultural values and
institutions, without expecting one society to submit to the normative system of
another.
It is difficult to substantiate a binary view of universality and relativity of
human rights because that would ignore the realities of power relations in the
world, and oversimplify the positions and behavior of countries on both sides of
this alleged divide. For example, the criteria and process by which the present set
of international human rights was established in the first place were not as
inclusive as they ought to have been. As noted earlier, the vast majority of the
peoples of Africa and Asia were not represented at the UN, except by the same
colonial powers which had for decades violated the basic human rights of
colonized peoples. Upon achieving independence, African and Asian states had
no choice but to at least pretend to accept the pre-established concept, structure,
and content of the human rights paradigm as a condition of membership in the
international community. That is to say, the balance of global economic, milit-
ary, and political power relations in the postcolonial world has enabled the
developed countries to raise the human rights paradigm they have established
themselves as the condition for membership in the international community.
This does not mean that this paradigm can never become universally accepted
and applied. Rather, the point is that efforts to promote universality should be
founded on a clear understanding of the issues from different perspectives.
It is profoundly problematic, in my view, to assume that the universality of
human rights is `̀ self-evident” or has been `̀ established,” and all that remains is
to `̀ pressure” a few ruling elites in developing countries to abandon their
`̀ opportunistic” denial of the obvious. This view, on the hand, encourages
hypocrisy among the governments of developing countries who have to pay
lip-service to human rights in exchange for favorable treatment by developed
countries in such matters as development assistance, support for credit from
international financial institutions, and/or the grant of special trade status. The
nature of existing power relations, on the other hand, enables the governments
of developed countries to raise the human rights paradigm selectively, in the
service of their own foreign policy objectives (compare the US positions regard-
ing China and Cuba), without regard to the integrity and credibility of this
paradigm as a whole. The application of double standards in judging similar
situations is possible because of the lack of an independent check on the alleged
commitment of developed countries to the universality of human rights. Since
these states dominate international relations, they are the primary judge of their
92 Abdullahi Ahmed An-Na`im
own behavior, as well as that of developing countries. In fact, developed coun-
tries have not shown consistent acceptance of the universality of human rights in
their own national policies. This is reflected, for example, in the resistance of
Western countries to accepting that economic, social, and cultural rights are
actually human rights, as proclaimed by the Universal Declaration and numer-
ous international treaties (Eide et al., 1994; Steiner and Alston, 1996, p. 256).
For instance, Article 25 of the Declaration provides that everyone has a `̀ right to
a standard of living adequate for the health and well-being of himself and his
family, including food, clothing, housing and medical care and necessary social
services.” Thus, these economic and social rights are as much human rights as
the right to life, liberty, and security of person (Article 3), protection against
torture, cruel, inhuman, or degrading treatment or punishment (Article 5), and
freedom of opinion and expression (Article 19). No one would suggest that
torture or suppression of freedom of expression be condoned or tolerated any-
where in the world today. Yet there is little objection to the denial of food,
shelter, and medical care to the majority of human beings around the world,
especially those living in developing countries. Western countries also find it
difficult to accept the possibility of protecting any collective or group claim or
entitlement as a human right within an existing state, although the first Article of
both the 1966 Covenants provides for a collective human right to self-determina-
tion of `̀ all peoples” (not nations, countries, or states). Since this Article clearly
envisages political independence as a means to achieving such objectives as
political participation, social development, and economic well-being, denying
any group of people any of the essential elements of this right is a violation of the
right itself.
It is true that some economic, social, cultural, and/or collective `̀ interests” are
substantially provided for within the national jurisdictions of developed Western
countries through the normal political and legal processes of each country;
sometimes with special constitutional or legal protection against easy violation.
But the essence of the human rights paradigm is to ensure that such interests are
safeguarded against the contingencies of national politics and legal processes. In
fact, the idea emerged from the experience of Western countries which sought,
through constitutional protection, to place certain fundamental civil liberties
beyond daily politics. That is, recognition of a specific entitlement as a human
right is supposed to enhance the prospects of its practical implementation more
than can be expected from the normal political and legal processes of any
country. To the extent that they do in fact respect and protect economic, social,
and cultural rights, or collective rights, developed countries have nothing to fear
from accepting those rights as human rights. Conversely, such acceptance is
necessary whenever those rights are not sufficiently respected in the manner
and to the extent required by international human rights standards.
It is true that economic, social, cultural, and collective rights are presently
difficult to specify and enforce in the same way one can do with civil and
political rights. For example, since the right to work cannot practically mean
an obligation on the state to actually provide work for every person, the question
is: what should be the content of this right and how can it be implemented?
Human Rights 93
Collective rights raise issues of human agency in determining membership and
boundaries of groups, or more generally the dangers of elite appropriation of the
collective voice of groups and communities. However, difficulties are only to be
expected because formal recognition of these rights is much more recent, in
comparison to civil and political rights. Moreover, these rights need not neces-
sarily fit the model of civil and political rights to qualify as human rights. The
processes of concrete definition and implementation of these rights, which
require social scientific analysis as suggested here, are not likely to make sig-
nificant progress unless they are taken seriously as human rights, rather than
simply objectives of public policy.
The real reason for Western resistance to accepting these rights as human
rights, in my view, is ideological or cultural. Subject to national and regional
variations, the liberal ideology/culture of these countries tends to hold that
economic, social, and cultural benefits or services should be provided for
through the normal political process, instead of being given legal sanction as
rights. Because of its emphasis on individual autonomy and privacy, against
other social entitlements as well as the state, the liberal mind finds it difficult
to conceive of collective entities or groups as bearers of rights. Liberals may see
their views as obviously valid to every reasonable person, but that is exactly how
ideological or cultural conditioning of human behavior works everywhere. In
other words, liberal societies tend to resist accepting economic, social, and
cultural rights or collective/group rights as human rights because that is the
position of their own ideology or culture. If ideology or culture can exempt
Western countries from accepting these rights as human rights, non-Western
countries can claim the same regarding such human rights norms as equality
for women or protection of freedom of expression.
Moreover, the persistence of some Western governments in asserting chauvi-
nistic notions of national sovereignty can fairly be described as relativistic. For
example, the United States is notorious for seeking to fashion international
human rights treaties to fits its own ideological views and social institutions
during the drafting process, only to fail to ratify and incorporate those treaties
into its domestic law for application within the country itself. This is true from
the 1948 Genocide Convention, which took the United States more than forty
years to ratify, and only subject to reservations, to the 1989 Convention on
the Rights of the Child, which is now ratified by every country in the world
except the United States and Somalia. Since Somalia has had no government
since 1992, the United States stands completely alone in refusing to ratify this
Convention. It is difficult to see a significant difference between the position of
the government of the United States and those of countries like China, Iran, and
Saudi Arabia, as all of them are refusing to allow their own domestic practice to
be judged by agreed international standards. Moreover, the position of the USA
is especially damaging for the human rights paradigm, not only for its failure to
live up to claims of global leadership in this field, but also because its economic
and military power enables it to play a paramount role in shaping international
relations, as well as influencing the domestic policies of other countries around
the world.
94 Abdullahi Ahmed An-Na`im
Instead of insisting on a sharp dichotomy between universality and relativity,
it is better to perceive the issues in terms of a constant mediation between the
two poles. The realities of enduring cultural diversity around the world, on the
one hand, and global multifaceted interaction and interdependence, on the other,
challenge both the theoretical validity and practical viability of a framework of
universality and relativity as polar extremes. An example of mediation between
the excesses of both extremes can be seen in the doctrine of `̀ the margin of
appreciation” in the European human rights system ± allowing states a degree of
discretion in the interpretation and implementation of their human rights obli-
gations (Steiner and Alston, 1996, p. 601). But as elaborated elsewhere, it is also
important to strive to achieve wider and more sustainable global overlapping
consensus on human rights norms through internal discourse within different
cultures, and cross-cultural dialogue between them (An-Na`im and Deng, 1990;
An-Na`im, 1992).
In conclusion for this section, I would emphasize the need to understand how
the political will to uphold human rights is generated within civil society, or in
response to its demands. State action is more likely to happen when human
rights are accepted as culturally legitimate than when they are perceived as an
alien imposition. It is also important to address the economic dimensions of the
effective implementation of human rights, as underlying causes of violations as
well as in the allocation of resources for practical implementation of rights. Even
so-called `̀ negative” civil and political rights, like freedom of speech or protec-
tion against torture, where the state is required to refrain from certain actions,
still entail the deployment of material and human resources to implement the
necessary policies. In any case, legal protection has to assume voluntary com-
pliance as a general rule because no enforcement regime can cope with massive
and persistent violations. Social scientists can make crucial contributions to
addressing all these and other aspects of the human rights paradigm.
Complementary Legal and Social Science ApproachesComplementary Legal and Social Science Approaches
In view of the complexity of effective response to a wide variety of possible
human rights claims in any society today, one should always consider as many
approaches to the implementation of these rights as possible or advisable in one
setting or another. Many factors affect the implementation of human rights, such
as the level and quality of political commitment to the implementation of
administrative, educational, and other policies, allocation of economic
resources, and civil society activism. These and related factors cannot possibly
be effectively addressed through purely legal approaches, though the latter will
remain indispensable. In this final section, I offer an evaluation of legal
approaches, followed by a brief review of how some sociologists have
approached human rights issues.
The early emphasis on legal approaches to the protection of human rights will
probably continue for the foreseeable future because of the universalization of
European models of the state through colonialism, with its centralized powers
Human Rights 95
over political processes, economic activities, social relations, provision of essen-
tial services, and so forth. As those models of the state persisted into the
postcolonial world, thereby entrenching the central role of the state in national
politics and international relations, the human rights paradigm adopted a legal
approach for the protection of human rights. Indeed, the whole human rights
system has generally emerged from the liberal approach to individual civil rights,
as judicially enforceable limitations on the powers of the state in order to protect
certain vital interests of the population. Accordingly, the judicial enforcement of
these rights as a legal entitlement became the basis for the credibility of admin-
istrative, political, educational, and other policies and processes, as the source of
operational definitions of each human right and as the mechanism for the
mediation of competing claims of rights. But the limitations of purely legal
approaches to constitutional rights at the national level are even more constrain-
ing for the international protection of human rights because, as noted above, the
latter has to overcome domestic resistance without having the power to impose
its will.
Generally speaking, the legal protection of rights assumes the prevalence of a
certain conception of the rule of law, independence of the judiciary, and execu-
tive compliance with judicial determinations. The legal enforcement of rights
also requires a certain degree of political stability for the proper development of
an independent and credible judiciary, as well as a legal profession that is willing
and able to represent all human rights litigants before the courts. These pre-
requisites are frequently lacking, especially when legal protection is most
needed. For example, the legal systems of most African countries suffer from
serious problems of poor legitimacy and accessibility, as well as lack of human
and material resources (Ake, 1994). The complexity and procedural formality of
postcolonial legal systems make it difficult for most Africans to have effective
access to legal remedies. Structural and contextual difficulties include prolonged
and complex political instability, economic underdevelopment, lack of
independence and technical resources for the judiciary, and the inadequacy or
poor quality of legal services. Under such conditions, it is not surprising that
people will simply abstain from resorting to the courts for the legal enforcement
of their rights.
This is not to say, however, that all prerequisites must be present at once
before people begin to use the courts to vindicate their human rights. On the
contrary, it seems to me, there is a synergy between the requirements of legal
enforcement, on the one hand, and public confidence in the process, on the other.
Since people will probably resort to the courts whenever there is the slightest
chance of obtaining relief and justice, even a low level of public confidence may
contribute to the development of an independent judiciary, and attract the
necessary legal advice and representation, which may enhance public confidence
further, and so forth.
But, as already indicated, even the best system for the legal protection of
human rights will not be sufficient because the implementation of human rights
requires different approaches. The mandate of the human rights paradigm in
general is to simply provide effective redress, not only legal remedy, for every
96 Abdullahi Ahmed An-Na`im
violation of human dignity and the rights of any person or group. Article 28 of
the Universal Declaration provides that `̀ everyone is entitled to a social and
international order in which the rights and freedoms set forth in this Declaration
can be fully realized.” It is difficult to see how this original broad vision can
materialize without substantial contributions of sociologists and other social
scientists. The preceding analysis may have already suggested some ways in
which social science approaches can make such contributions. As a human
rights lawyer, I will now try to envisage how sociologists can improve our
understanding of a set of interrelated issues of shared concern, by way of
illustration, without presuming to speculate about specific ways in which they
might do that.
Only a very few North American sociologists, like Rhoda Howard (1995),
have consistently and systematically addressed human rights issues in their work
in the past (Reynolds, 1998). But stronger interest seems to be emerging more
recently, including efforts to examine the reasons for the earlier lack of soci-
ological analysis of these issues in other parts of world as well. For example,
Bryan Turner draws attention to the silence in sociology about human rights,
and finds it puzzling, given the interest of sociologists in such subjects as social
movements, social membership, and the general themes of globalization and
mobilization (Turner, 1993b, p. 490). A discussion of Turner’s outline of a theory
of human rights, and the debate that followed (Waters, 1996b; Turner, 1997), is
beyond the scope of this chapter. The point here is to note the sort of interrelated
themes Turner is suggesting for analytical connections between sociology and
human rights issues. For example, recalling that the human rights paradigm
seeks to protect rights at the domestic level from an international perspective,
without the power to impose its will over national sovereignty, one can appreci-
ate the crucial role of social movements for and against this paradigm in
different societies. However, while sociologists are familiar with the role of
social movements in relation to domestic constitutional rights, as noted above,
they now need to consider the impact of what is commonly known as `̀ globa-
lization” on the possibilities of international protection of human rights in the
domestic context.
As the means for achieving and safeguarding the interests of their members,
social movements have traditionally been engaged in the negotiation of compet-
ing claims among themselves, and in relation to the state as a hegemonic political
institution. Some social movements succeed in substantially influencing the state,
in pursuit of their own objectives. With the universalization of European models
of the state through colonialism and its transformation of the postcolonial world
system, as noted above, human rights non-governmental organizations (NGOs)
have become the operational arm of social movements throughout the world, at
both the national and international levels (Steiner and Alston, 1996, p. 456).
Social movements or groups, however, tend to perceive the human rights
paradigm as either supportive of or antagonistic to their values and social
objectives to varying degrees. All social actors need this paradigm for the
`̀ space” it ensures for them to organize and advocate their view, through free-
doms of opinion, expression, and association, as well as the support it might give
Human Rights 97
to their normative claims, such as freedom of religion or the rights of ethnic or
cultural groups, and so forth. Yet social actors often try to claim the benefits of
the human rights paradigm, while rejecting aspects of it that they deem to be
contrary to their own values and objectives. This common inconsistency is at the
heart of the universality/relativity debate discussed above, in that while all social
actors would welcome the human rights paradigm to the extent that it affirms
their own values and facilitates their own work, very few are willing to accept
the totality of this paradigm and its implications, at least regarding matters they
deem to be fundamental to their own position.
In their analysis of these social process at the domestic level, sociologists
should also consider the international dimensions of the present age of multi-
faceted globalization (Woodiwiss, 1996; Axtmann, 1997; Merry, 1997). The
dynamics of social movements and NGO activism are increasingly influenced,
if not shaped, by transnational forces and global processes. This is as true for the
advocates of the rights of women and indigenous peoples as it is for those
concerned with development and environmental issues. The human rights para-
digm is contested by all these and similar social actors at the international as well
as the national level. Indeed, since globalization itself is not a neutral phenom-
enon, as it tends to enhance existing power relations, sociologists should seek to
apply their conceptual and methodological insights to the working of global
forces and processes at the local and national, as well as the international, levels
(Cheah, 1997; Bauman, 1998).
Concluding RemarksConcluding Remarks
By the very nature of its subject matter, and the dynamic processes of the
articulation and implementation of its normative content, the human rights
paradigm offers sociologists and other social scientists a very rich and useful
research agenda. As it seeks to negotiate the relationship between the local and
the global, the human rights paradigm can benefit from sociological analysis at
both the national and international levels. Moreover, the human rights paradigm
raises questions about the conceptual possibility of the universality and validity
of cross-cultural moral judgment. From a sociological perspective, these types of
questions relate to such issues as the meaning and implications of personhood
and human dignity in interpersonal or communal relations, gender and child±
adult relations within the family and wider community, questions of race,
ethnicity, and religion within and between communities, the nature and role of
religion in public life, and the nature of the state and its institutions in relation to
society at large. Sociological analysis is also necessary for mediating the tension
between procedural and substantive aspects of the human rights paradigm; that
is, their role in ensuring `̀ the space” for struggles for justice, as opposed to being
specific expressions of substantive justice in individual and communal relations,
including questions of affirmative action or positive discrimination.
In conclusion, however, I wish to emphasize that even when judged on its own
terms, the protection of human rights is only part of the answer to the major
98 Abdullahi Ahmed An-Na`im
issues of social justice facing all societies. Other theoretical approaches and
practical strategies for the realization of justice will of course always remain
necessary. Accordingly, the invitation here is for sociologists to contribute to the
further development and clarification of the human rights paradigm as a major
component of the framework for justice within and between societies through-
out the world. As sociological issues become increasingly transnational and
globalized, it is clear that human rights are too important to leave to lawyers
and a few political scientists.
Human Rights 99
The Relative Universality of Human Rights
Jack Donnelly
Human Rights Quarterly, Volume 29, Number 2, May 2007, pp. 281-306 (Article)
Published by Johns Hopkins University Press
DOI:
For additional information about this article
Access provided by University of Washington @ Seattle (31 Jan 2018 00:24 GMT)
https://doi.org/10.1353/hrq.2007.0016
https://muse.jhu.edu/article/215033
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HUMAN RIGHTS QUARTERLY
Human Rights Quarterly 29 (2007) 281–306 © 2007 by The Johns Hopkins University Press
The Relative Universality of
Human Rights
Jack Donnelly*
AbSTRAcT
Human rights as an international political project are closely tied to claims
of universality. Attacks on the universality of human rights, however, are
also widespread. And some versions of universalism are indeed theoreti-
cally indefensible, politically pernicious, or both. This essay explores the
senses in which human rights can (and cannot) be said to be universal, the
senses in which they are (and are not) relative, and argues for the “relative
universality” of internationally recognized human rights.
INTRodUcTIoN
This essay explores several different senses of “universal” human rights. I also
consider, somewhat more briefly, several senses in which it might be held
that human rights are “relative.” I defend what I call functional, international
legal, and overlapping consensus universality. But I argue that what I call
anthropological and ontological universality are empirically, philosophically,
or politically indefensible. I also emphasize that universal human rights,
properly understood, leave considerable space for national, regional, cultural
particularity and other forms of diversity and relativity.
* Jack Donnelly is the Andrew Mellon Professor at the Graduate School of International Stud-
ies, University of Denver.
The tone of this essay owes much to a long conversation with Daniel Bell and Joseph
Chan in Japan nearly a decade ago. I thank them for the sort of deep engagement of funda-
mental differences that represents one of the best and most exhilarating features of intellectual
life. I also thank audiences at Yonsei University, Ritsumeikan University, and Occidental
College, where earlier versions of this paper were presented, and more than two decades
of students who have constantly pushed me to clarify, sharpen, and properly modulate my
arguments.
Vol. 29282 HUMAN RIGHTS QUARTERLY
Cultural relativism has probably been the most discussed issue in the
theory of human rights. Certainly that is true in this journal. I have been an
active participant in these debates for a quarter century, arguing for a form of
universalism that also allows substantial space for important (second order)
claims of relativism.1 I continue to insist on what I call the “relative univer-
sality” of human rights. Here, however, I give somewhat more emphasis to
the limits of the universal.
In the 1980s, when vicious dictators regularly appealed to culture to
justify their depredations, a heavy, perhaps even over-heavy, emphasis on
universalism seemed not merely appropriate but essential. Today, human
rights are backed by the world’s preponderant political, economic, and
cultural powers and have become ideologically hegemonic in international
society. Not only do few states today directly challenge international hu-
man rights, a surprisingly small number even seriously contend that large
portions of the Universal Declaration do not apply to them. An account that
gives somewhat greater emphasis to the limits of universalism thus seems
called for, especially now that American foreign policy regularly appeals
to “universal” values in the pursuit of a global ideological war that flouts
international legal norms.
1. coNcEpTUAL ANd SUbSTANTIVE UNIVERSALITY
We can begin by distinguishing the conceptual universality implied by the
very idea of human rights from substantive universality, the universality of
a particular conception or list of human rights. Human rights, following the
manifest literal sense of the term, are ordinarily understood to be the rights
that one has simply because one is human. As such, they are equal rights,
because we either are or are not human beings, equally. Human rights are
also inalienable rights, because being or not being human usually is seen
as an inalterable fact of nature, not something that is either earned or can
1. Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-West-
ern Human Rights Conceptions, 76 Am. Pol. Science Rev. 303–16 (1982); Jack Donnelly,
Cultural Relativism and Universal Human Rights, 6 Hum. RtS. Q. 400 (1984); JAck Don-
nelly, univeRSAl HumAn RigHtS in tHeoRy AnD PRActice (Ithaca: Cornell Univ. Press, 1989);
Jack Donnelly, Traditional Values and Universal Human Rights: Caste in India, in ASiAn
PeRSPectiveS on HumAn RigHtS (Claude E. Welch, Jr. & Virginia A. Leary 1990); Jack Don-
nelly, Post-Cold War Reflections on International Human Rights, 8 etHicS & int’l Aff. 97
(1994); Jack Donnelly, Conversing with Straw Men While Ignoring Dictators: A Reply to
Roger Ames, 11 etHicS & int’l Aff. 207 (1997); Jack Donnelly, Human Rights and Asian
Values: A Defense of “Western” Universalism, in tHe eASt ASiAn cHAllenge foR HumAn RigHtS
(Joanne R. Bauer & Daniel A. Bell eds. 1999); JAck Donnelly, univeRSAl HumAn RigHtS in
tHeoRy AnD PRActice (2d ed. Ithaca: Cornell Univ. Press, 2003); Rhoda E. Howard & Jack
Donnelly, Human Dignity, Human Rights and Political Regimes, 80 Am. Pol. Science Rev.
801 (1986).
2007 The Relative Universality of Human Rights 283
be lost. Human rights are thus “universal” rights in the sense that they are
held “universally” by all human beings. Conceptual universality is in effect
just another way of saying that human rights are, by definition, equal and
inalienable.
Conceptual universality, however, establishes only that if there are any
such rights, they are held equally/universally by all. It does not show that
there are any such rights. Conceptually universal human rights may be so
few in number or specified at such a high level of abstraction that they are
of little practical consequence. And conceptual universality says nothing
about the central question in most contemporary discussions of universal-
ity, namely, whether the rights recognized in the Universal Declaration of
Human Rights and the International Human Rights Covenants are universal.
This is a substantive question. It will be our focus here.
2. UNIVERSAL poSSESSIoN NoT UNIVERSAL ENfoRcEMENT
Defensible claims of universality, whether conceptual or substantive, are
about the rights that we have as human beings. Whether everyone, or even
anyone, enjoys these rights is another matter. In far too many countries today
the state not only actively refuses to implement, but grossly and systematically
violates, most internationally recognized human rights. And in all countries,
significant violations of at least some human rights occur daily, although
which rights are violated, and with what severity, varies dramatically.
The global human rights regime relies on national implementation of
internationally recognized human rights. Norm creation has been interna-
tionalized. Enforcement of authoritative international human rights norms,
however, is left almost entirely to sovereign states. The few and limited
exceptions—most notably genocide, crimes against humanity, certain war
crimes, and perhaps torture and arbitrary execution—only underscore the
almost complete sovereign authority of states to implement human rights in
their territories as they see fit.
Except in the European regional regime, supranational supervisory bodies
are largely restricted to monitoring how states implement their international
human rights obligations. Transnational human rights NGOs and other
national and international advocates engage in largely persuasive activity,
aimed at changing the human rights practices of states. Foreign states are
free to raise human rights violations as an issue of concern but have no
authority to implement or enforce human rights within another state’s sov-
ereign jurisdiction. The implementation and enforcement of universally held
human rights thus is extremely relative, largely a function of where one has
the (good or bad) fortune to live.
Vol. 29284 HUMAN RIGHTS QUARTERLY
3. HISToRIcAL oR ANTHRopoLoGIcAL UNIVERSALITY2
Human rights are often held to be universal in the sense that most societies
and cultures have practiced human rights throughout most of their history.
“All societies cross-culturally and historically manifest conceptions of human
rights.”3 This has generated a large body of literature on so-called non-western
conceptions of human rights. “In almost all contemporary Arab literature on
this subject [human rights], we find a listing of the basic rights established
by modern conventions and declarations, and then a serious attempt to trace
them back to Koranic texts.”4 “It is not often remembered that traditional
African societies supported and practiced human rights.”5 “Protection of hu-
man rights is an integral part” of the traditions of Asian societies.6 “All the
countries [of the Asian region] would agree that ‘human rights’ as a concept
existed in their tradition.”7 Even the Hindu caste system has been described
as a “traditional, multidimensional view[s] of human rights.”8
Such claims to historical or anthropological universality confuse values
such as justice, fairness, and humanity need with practices that aim to re-
alize those values. Rights—entitlements that ground claims with a special
force—are a particular kind of social practice. Human rights—equal and
inalienable entitlements of all individuals that may be exercised against
the state and society—are a distinctive way to seek to realize social values
such as justice and human flourishing. There may be considerable his-
torical/anthropological universality of values across time and culture. No
society, civilization, or culture prior to the seventeenth century, however,
2. This section draws directly from and summarizes Donnelly, univeRSAl HumAn RigHtS in
tHeoRy AnD PRActice (2d ed.), supra note 1, at ch. 5.
3. Adamantia Pollis & Peter Schwab, Human Rights: A Western Construct with Limited
Applicability, in HumAn RigHtS: cultuRAl AnD iDeologicAl PeRSPectiveS 1, 15 (Adamantia
Pollis & Peter Schwab eds., 1979); compare Makau Mutua, The Banjul Charter and
the African Cultural Fingerprint: An Evaluation of the Language of Duties, 35 viRginA J.
int’l l. 339, at 358 (1995); David R. Penna & Patricia J. Campbell, Human Rights and
Culture: Beyond Universality and Relativism, 19 tHiRD WoRlD Q. 7, at 21 (1998).
4. Fouad Zakaria, Human Rights in the Arab World: The Islamic Context, in PHiloSoPHicAl
founDAtionS of HumAn RigHtS 227, 228 (UNESCO ed., 1986).
5. Dunstan M. Wai, Human Rights in Sub-Saharan Africa, in HumAn RigHtS: cultuRAl AnD
iDeologicAl PeRSPectiveS 115, 116 (Adamantia Pollis & Peter Schwab eds., 1979).
6. Ibrahim Anwar, Special Address presented at the JUST International Conference: Rethink-
ing Human Rights (7 Dec 1994) in HumAn WRongS 277 (1994).
7. Radhika Coomaraswamy, Human Rights Research and Education: An Asian Perspective,
in inteRnAtionAl congReSS on tHe teAcHing of HumAn RigHtS: WoRking DocumentS AnD Recom-
menDAtionS 224 (UNESCO ed., 1980).
8. Ralph Buultjens, Human Rights in Indian Political Culture, in tHe moRAl imPeRAtiveS of
HumAn RigHtS: A WoRlD SuRvey 109, 113 (Kenneth W. Thompson ed., 1980); compare
Yougindra Khushalani, Human Rights in Asia and Africa, 4 Hum. RtS. l. J. 403, 408
(1983); mAx l. StAckHouSe, cReeDS, Society, AnD HumAn RigHtS: A StuDy in tHRee cultuReS
(1984).
2007 The Relative Universality of Human Rights 285
had a widely endorsed practice, or even vision, of equal and inalienable
individual human rights.9
For example, Dunstan Wai argues that traditional African beliefs and
institutions “sustained the ‘view that certain rights should be upheld against
alleged necessities of state.’”10 This confuses human rights with limited gov-
ernment.11 Government has been limited on a variety of grounds other than
human rights, including divine commandment, legal rights, and extralegal
checks such as a balance of power or the threat of popular revolt.
“[T]he concept of human rights concerns the relationship between the
individual and the state; it involves the status, claims, and duties of the former
in the jurisdiction of the latter. As such, it is a subject as old as politics.”12
Not all political relationships, however, are governed by, related to, or even
consistent with, human rights. What the state owes those it rules is indeed
a perennial question of politics. Human rights provide one answer. Other
answers include divine right monarchy, the dictatorship of the proletariat,
the principle of utility, aristocracy, theocracy, and democracy.
“[D]ifferent civilizations or societies have different conceptions of hu-
man well-being. Hence, they have a different attitude toward human rights
issues.”13 Even this is misleading. Other societies may have (similar or differ-
ent) attitudes toward issues that we consider today to be matters of human
rights. But without a widely understood concept of human rights endorsed
or advocated by some important segment of that society, it is hard to imagine
that they could have any attitude toward human rights. And it is precisely
the idea of equal and inalienable rights that one has simply because one
is a human being that was missing not only in traditional Asian, African,
Islamic, but in traditional Western, societies as well.
9. For detailed support for this claim, see Donnelly, univeRSAl HumAn RigHtS in tHeoRy AnD
PRActice (2d ed.), supra note 1, at ch. 5; RHoDA e. HoWARD, HumAn RigHtS in commonWeAltH
AfRicA, at ch. 2(1986).
10. Wai, supra note 5, at 116.
11. Compare Asmarom Legesse, Human Rights in African Political Culture, in tHe moRAl
imPeRAtiveS of HumAn RigHtS: A WoRlD SuRvey 123, 125–27 (Kenneth W. Thompson ed.,
1980); Nana Kusi Appea Busia, Jr., The Status of Human Rights in Pre-Colonial Africa:
Implications for Contemporary Practices, in AfRicA, HumAn RigHtS, AnD tHe globAl SyStem:
tHe PoliticAl economy of HumAn RigHtS in A cHAnging WoRlD 225, 231 (Eileen McCarthy-
Arnolds, David R. Penna, & Debra Joy Cruz Sobrepeña eds., 1994); for non-African
examples, Abdul Aziz Said, Precept and Practice of Human Rights in Islam, 1 univeRSAl
Hum. RtS. 63, 65 (1979); Raul Manglapus, Human Rights are Not a Western Discovery,
4 WoRlDvieW (1978); Adamantia Pollis & Peter Schwab, Introduction, in HumAn RigHtS:
cultuRAl AnD iDeologicAl PeRSPectiveS xiii, xiv (Adamantia Pollis & Peter Schwab eds.,
1979).
12. Hung-Chao Tai, Human Rights in Taiwan: Convergence of Two Political Cultures?, in
HumAn RigHtS in eASt ASiA: A cultuRAl PeRSPective 77, 79 (James C. Hsiung ed., 1985).
13. Manwoo Lee, North Korea and the Western Notion of Human Rights, in HumAn RigHtS
in eASt ASiA: A cultuRAl PeRSPective 129, 131 (James C. Hsiung ed., 1985).
Vol. 29286 HUMAN RIGHTS QUARTERLY
The ancient Greeks notoriously distinguished between Hellenes and
barbarians, practiced slavery, denied basic rights to foreigners, and (by our
standards) severely restricted the rights of even free adult (male) citizens.
The idea that all human beings had equal and inalienable basic rights was
equally foreign to Athens and Sparta, Plato and Aristotle, Homer, Hesiod,
Aeschylus, Euripides, Aristophanes, and Thucydides. Much the same is true
of ancient Rome, both as a republic and as an empire. In medieval Europe,
where the spiritual egalitarianism and universality of Christianity expressed
itself in deeply inegalitarian politics, the idea of equal legal and political rights
for all human beings, had it been seriously contemplated, would have been
seen as a moral abomination, a horrid transgression against God’s order.
In the “pre-modern” world, both Western and non-Western alike, the
duty of rulers to further the common good arose not from the rights (entitle-
ments) of all human beings, or even all subjects, but from divine command-
ment, natural law, tradition, or contingent political arrangements. The people
could legitimately expect to benefit from the obligations of their rulers to
rule justly. Neither in theory nor in practice, though, did they have human
rights that could be exercised against unjust rulers. The reigning ideas were
natural law and natural right (in the sense of righteousness or rectitude) not
natural or human rights (in the sense of equal and inalienable individual
entitlements).
Many arguments of anthropological universality are inspired by an
admirable desire to show cultural sensitivity and respect. In fact they do no
such thing. Rather, they misunderstand and misrepresent the foundations
and functioning of the societies in question by anachronistically imposing
an alien analytical framework.
I am not claiming that Islam, Confucianism, or traditional African ideas
cannot support internationally recognized human rights. Quite the contrary, I
argue below that in practice today they increasingly do support human rights.
My point is simply that Islamic, Confucian, and African societies did not in
fact develop significant bodies of human rights ideas or practices prior to
the twentieth century. The next section offers an explanation for this fact.
4. fUNcTIoNAL UNIVERSALITY
Natural or human rights ideas first developed in the modern West. A full-
fledged natural rights theory is evident in John Locke’s Second Treatise of
Government, published in 1689 in support of the so-called Glorious Revolu-
tion. The American and French Revolutions first used such ideas to construct
new political orders.14
14. JoHn locke, tWo tReAtiSe on goveRnment (London, W. Wilson 1821) (1689).
2007 The Relative Universality of Human Rights 287
The social-structural “modernity” of these ideas and practices, however,
not their cultural “Westernness,” deserves emphasis.15 Human rights ideas
and practices arose not from any deep Western cultural roots but from the
social, economic, and political transformations of modernity. They thus have
relevance wherever those transformations have occurred, irrespective of the
pre-existing culture of the place.
Nothing in classical or medieval culture specially predisposed Europeans
to develop human rights ideas. Even early modern Europe, when viewed
without the benefit of hindsight, seemed a particularly unconducive cultural
milieu for human rights. No widely endorsed reading of Christian scriptures
supported the idea of a broad set of equal and inalienable individual rights
held by all Christians, let alone all human beings. Violent, often brutal, in-
ternecine and international religious warfare was the norm. The divine right
of kings was the reigning orthodoxy.
Nonetheless, in early modern Europe, ever more powerful and pen-
etrating (capitalist) markets and (sovereign, bureaucratic) states disrupted,
destroyed, or radically transformed “traditional” communities and their
systems of mutual support and obligation. Rapidly expanding numbers of
(relatively) separate families and individuals were thus left to face a grow-
ing range of increasingly unbuffered economic and political threats to their
interests and dignity. New “standard threats” to human dignity provoked
new remedial responses.16
The absolutist state offered a society organized around a monarchist hier-
archy justified by a state religion. The newly emergent bourgeoisie envisioned
a society in which the claims of property balanced those of birth. And as
“modernization” progressed, an ever widening range of dispossessed groups
advanced claims for relief from injustices and disabilities. Such demands
took many forms, including appeals to scripture, church, morality, tradition,
justice, natural law, order, social utility, and national strength. Claims of
equal and inalienable natural/human rights, however, became increasingly
central. And the successes of some groups opened political space for others
to advance similar claims for their equal rights.
The spread of modern markets and states has globalized the same threats
to human dignity initially experienced in Europe. Human rights represent
the most effective response yet devised to a wide range of standard threats
to human dignity that market economies and bureaucratic states have made
15. See Donnelly, univeRSAl HumAn RigHtS in tHeoRy AnD PRActice (2d ed.), supra note 1, at ch.
4; compare Michael Goodhart, Origins and Universality in the Human Rights Debate:
Cultural Essentialism and the Challenge of Globalization, 25 Hum. RtS. Q. 935 (2003).
ARvinD SHARmA, ARe HumAn RigHtS WeSteRn in oRigin? A contRibution to tHe DiAlogue of
civilizAtionS(2006) extensively and critically explores the wide variety of senses in which
human rights have been held to be “Western.”
16. HenRy SHue, bASic RigHtS: SubSiStence, Affluence, AnD u.S. foReign Policy 29–34 (1980).
Vol. 29288 HUMAN RIGHTS QUARTERLY
nearly universal across the globe. Human rights today remain the only proven
effective means to assure human dignity in societies dominated by markets
and states. Although historically contingent and relative, this functional
universality fully merits the label universal—for us, today.
Arguments that another state, society, or culture has developed plausible
and effective alternative mechanisms for protecting or realizing human dig-
nity in the contemporary world deserve serious attention. Today, however,
such claims, when not advanced by repressive elites and their supporters,
usually refer to an allegedly possible world that no one yet has had the
good fortune to experience.
The functional universality of human rights depends on human rights
providing attractive remedies for some of the most pressing systemic threats
to human dignity. Human rights today do precisely that for a growing number
of people of all cultures in all regions. Whatever our other problems, we
all must deal with market economies and bureaucratic states. Whatever our
other religious, moral, legal, and political resources, we all need equal and
inalienable universal human rights to protect us from those threats.
5. INTERNATIoNAL LEGAL UNIVERSALITY
If this argument is even close to correct, we ought to find widespread active
endorsement of internationally recognized human rights. Such endorsement
is evident in international human rights law, giving rise to what I will call
international legal universality. The foundational international legal instru-
ment is the Universal Declaration of Human Rights. The 1993 World Human
Rights Conference, in the first operative paragraph of the Vienna Declaration
and Programme of Action, asserted that “the universal nature of these rights
and freedoms is beyond question.”
Virtually all states accept the authority of the Universal Declaration of
Human Rights. For the purposes of international relations, human rights
today means, roughly, the rights in the Universal Declaration. Those rights
have been further elaborated in a series of widely ratified treaties. As of 6
December 2006, the six core international human rights treaties (on civil and
political rights, economic, social, and cultural rights, racial discrimination,
women, torture, and children) had an average 168 parties, which represents
a truly impressive 86 percent ratification rate.17
Although this international legal universality operates in significant mea-
sure at an elite interstate level, it has come to penetrate much more deeply.
Movements for social justice and of political opposition have increasingly
17. Ratification data is available at http://www.ohchr.org/english/countries/ratification/index.
htm and http://www.ohchr.org/english/bodies/docs/status.pdf.
2007 The Relative Universality of Human Rights 289
adopted the language of human rights. Growing numbers of new interna-
tional issues, ranging from migration, to global trade and finance, to access
to pharmaceuticals are being framed as issues of human rights.18
States that systematically violate internationally recognized human
rights do not lose their legitimacy in international law. Except in cases of
genocide, sovereignty still ultimately trumps human rights. But protecting
internationally recognized human rights is increasingly seen as a precondi-
tion of full political legitimacy. Consider Robert Mugabe’s Zimbabwe. Even
China has adopted the language (although not too much of the practice)
of internationally recognized human rights, seemingly as an inescapable
precondition to its full recognition as a great power.
International legal universality, like functional universality, is contingent
and relative. It depends on states deciding to treat the Universal Declaration
and the Covenants as authoritative. Tomorrow, they may no longer accept
or give as much weight to human rights. Today, however, they clearly have
chosen, and continue to choose, human rights over competing conceptions
of national and international political legitimacy.
6. oVERLAppING coNSENSUS UNIVERSALITY
International legal universality is incompletely but significantly replicated at
the level of moral or political theory. John Rawls distinguishes “comprehen-
sive religious, philosophical, or moral doctrines,” such as Islam, Kantianism,
Confucianism, and Marxism, from “political conceptions of justice,” which
address only the political structure of society, defined (as far as possible) in-
dependent of any particular comprehensive doctrine.19 Adherents of different
comprehensive doctrines may be able to reach an “overlapping consensus”
on a political conception of justice.20
Such a consensus is overlapping; partial rather than complete. It is politi-
cal rather than moral or religious. Rawls developed the notion to understand
how “there can be a stable and just society whose free and equal citizens are
deeply divided by conflicting and even incommensurable religious, philo-
sophical, and moral doctrines.”21 The idea, however, has obvious extensions
to a culturally and politically diverse international society.22
18. AliSon bRySk, HumAn RigHtS AnD PRivAte WRongS: conStRucting globAl civil Society (2005).
19. JoHn RAWlS, tHe lAW of PeoPleS xliii–xlv, 11–15, 174–76 (1999); JoHn RAWlS, PoliticAl lib-
eRAliSm 31–33, 172–73 (1993).
20. RAWlS, PoliticAl libeRAliSm, supra note 19, at 133–72, 385–96.
21. Id. at 133.
22. RAWlS, tHe lAW of PeoPleS, supra note 19. Rawls’ own extension involves both a wider
political conception of justice and a narrower list of internationally recognized human
rights. The account offered here is Rawlsian in inspiration but not that of John Rawls.
Vol. 29290 HUMAN RIGHTS QUARTERLY
Human rights can be grounded in a variety of comprehensive doctrines.
For example, they can be seen as encoded in the natural law, called for by
divine commandment, political means to further human good or utility, or
institutions to produce virtuous citizens. Over the past few decades more
and more adherents of a growing range of comprehensive doctrines in all
regions of the world have come to endorse human rights—(but only) as a
political conception of justice.23
It is important to remember that virtually all Western religious and
philosophical doctrines through most of their history have either rejected
or ignored human rights. Today, however, most adherents of most Western
comprehensive doctrines endorse human rights. And if the medieval Christian
world of crusades, serfdom, and hereditary aristocracy could become today’s
world of liberal and social democratic welfare states, it is hard to think of
a place where a similar transformation is inconceivable.
Consider claims that “Asian values” are incompatible with internation-
ally recognized human rights.24 Asian values—like Western values, African
values, and most other sets of values—can be, and have been, understood
as incompatible with human rights. But they also can be and have been
interpreted to support human rights, as they regularly are today in Japan,
Taiwan, and South Korea. And political developments in a growing number
of Asian countries suggest that ordinary people and even governments are
increasingly viewing human rights as a contemporary political expression of
their deepest ethical, cultural, and political values and aspirations.25
23. Heiner Bielefeldt, “Western” versus “Islamic” Human Rights Conceptions?: A Critique of
Cultural Essentialism in the Discussion on Human Rights, 28 Pol. tHeoRy 90 (2000) makes
a similar argument for overlapping consensus universality, illustrated by a discussion
of recent trends in Islamic thinking on human rights. See also Ashwani Kumar Peetush,
Cultural Diversity, Non-Western Communities, and Human Rights, 34 PHiloSoPHicAl foRum
1 (2003), which deals with South Asian views. Vincanne Adams, Suffering the Winds of
Lhasa: Politicized Bodies, Human Rights, Cultural Difference, and Humanism in Tibet, 12
meD. AntHRoPology Q. 74 (1998) presents an account of the suffering of Tibetan women
activists that stresses their instrumental adoption of human rights ideas to grapple with
injustices and suffering that they understand in very different terms. For a looser account
of cross-cultural consensus, see HumAn RigHtS in cRoSS-cultuRAl PeRSPectiveS: A QueSt foR
conSenSuS (Abdullahi Ahmed An-Na’im ed. 1992).
24. AntHony J. lAngloiS, tHe PoliticS of JuStice AnD HumAn RigHtS (2001) offers perhaps the
best overview. HumAn RigHtS AnD ASiAn vAlueS: conteSting nAtionAl iDentitieS AnD cultuRAl
RePReSentAtionS in ASiA (Michael Jacobsen & Ole Bruun eds., 2000); tHe eASt ASiAn cHAllenge
foR HumAn RigHtS, supra note 1, are good collections of essays.
25. “Confucians can make sense of rights out of the resources of their own tradition.” May
Sim, A Confucian Approach to Human Rights, 21 HiSt. PHil. Q. 337, 338 (2004). Compare
Joseph Chan, Moral Autonomy, Civil Liberties, and Confucianism, 52 PHil. eASt & WeSt
281 (2002); Joseph Chan, Confucian Perspective on Human Rights for Contemporary
China, in tHe eASt ASiAn cHAllenge foR HumAn RigHtS, supra note 1. On Confucianism and
modern social and political practices, see confuciAniSm foR tHe moDeRn WoRlD (Daniel A.
Bell & Hahm Chaibong eds., 2003).
2007 The Relative Universality of Human Rights 291
No culture or comprehensive doctrine is “by nature,” or in any given or
fixed way, either compatible or incompatible with human rights. Here we
circle back to the insight underlying (misformulated) arguments of anthro-
pological universality. Whatever their past practice, nothing in indigenous
African, Asian, or American cultures prevents them from endorsing human
rights now. Cultures are immensely malleable, as are the political expressions
of comprehensive doctrines. It is an empirical question whether (any, some,
or most) members of a culture or exponents of a comprehensive doctrine
support human rights as a political conception of justice.
All major civilizations have for long periods treated a significant portion of
the human race as “outsiders” not entitled to guarantees that could be taken
for granted by “insiders.” Few areas of the globe, for example, have never
practiced and widely justified human bondage. All literate civilizations have
for most of their histories assigned social roles, rights, and duties primarily
on the basis of ascriptive characteristics such as birth, age, and gender.
Today, however, the moral equality of all human beings is strongly
endorsed by most leading comprehensive doctrines in all regions of the
world. This convergence, both within and between civilizations, provides the
foundation for a convergence on the rights of the Universal Declaration. In
principle, a great variety of social practices other than human rights might
provide the basis for realizing foundational egalitarian values. In practice
human rights are rapidly becoming the preferred option. I will call this
overlapping consensus universality.
7. VoLUNTARY oR coERcEd coNSENSUS?
Is the transnational consensus underlying international legal and overlap-
ping consensus universality more voluntary or coerced? The influence of the
United States and Western Europe should not be underestimated. Example,
however, has been more powerful than advocacy and coercion has typically
played less of a role than positive inducements such as closer political or
economic relations or full participation in international society. Human rights
dominate political discussions less because of pressure from materially or
culturally dominant powers than because they respond to some of the most
important social and political aspirations of individuals, families, and groups
in most countries of the world.
States may be particularly vulnerable to external pressure and thus
tempted or even compelled to offer purely formal endorsements of interna-
tional norms advocated by leading powers.26 The assent of most societies and
26. Even that seems to me not obviously correct. I read hypocrisy more as evidence of the
substantive attractions of hypocritically endorsed norms.
Vol. 29292 HUMAN RIGHTS QUARTERLY
individuals, however, is largely voluntary. The consensus on the Universal
Declaration, it seems to me, principally reflects its cross-cultural substantive
attractions. People, when given a chance, usually (in the contemporary world)
choose human rights, irrespective of region, religion, or culture.
Few “ordinary” citizens in any country have a particularly sophisticated
sense of human rights. They respond instead to the general idea that they and
their fellow citizens are entitled to equal treatment and certain basic goods,
services, protections, and opportunities. I am in effect suggesting that the
Universal Declaration presents a reasonable first approximation of the list
that they would come up with, largely irrespective of culture, after consid-
erable reflection. More precisely, there is little in the Universal Declaration
that they would not (or could not be persuaded to) put there, although we
might readily imagine a global constitutional convention today coming up
with a somewhat different list.
The transnational consensus on the Universal Declaration arises above
all from the largely voluntary decisions of people, states, and other political
actors that human rights are essential to protecting their visions of a life of
dignity. Therefore, we should talk more of the relative universality of human
rights, rather than their relative universality.27
8. oNToLoGIcAL UNIVERSALITY
Overlapping consensus implies that human rights can, and in the contem-
porary world do, have multiple and diverse “foundations.” A single transh-
istorical foundation would provide what I will call ontological universality.28
27. Laura Hebert in a private communication pointed out that I previously described my
views as weak relativist or strong (but not radical) universalist, but that in an earlier
version of this essay I used the label weak universalist. The careful reader will note that
here I have avoided such formulations in favor of a notion of relative universality that is
open to differing emphases. This reflects my growing appreciation of the advantages of
approaching the continuum between relativism and universalism less as an ideal type
account of all possible positions and more in terms of the spectrum of views that hap-
pen to be prevalent among actively engaged participants in the debate at a particular
time and place.
The actual spectrum of views actively engaged at any given time and place is likely
to cover only a portion of the ideal type spectrum. My arguments have always been
formulated primarily, although implicitly, with respect to the former. Over the past
decade, much of the relativist end of the Cold War era spectrum has disappeared from
mainstream discussions. Therefore, views such as my own that once appeared near the
edge of the universalist end of the spectrum now appear more moderately universalist. I
must also admit, though, that given this new political context I have intentionally given
greater emphasis to the space available for diverse implementations of universal human
rights norms. See Donnelly, Human Rights and Asian Values, supra note 1; Section 13,
14 below.
28. For a recent attempt to defend ontological universality, see WilliAm J. tAlbott, WHicH
RigHtS SHoulD be univeRSAl? 3–4 (2005).
2007 The Relative Universality of Human Rights 293
Although a single moral code may indeed be objectively correct and valid at
all times in all places, at least three problems make ontological universality
implausible and politically unappealing.
First, no matter how strenuously adherents of a particular philosophy
or religion insist that (their) values are objectively valid, they are unable to
persuade adherents of other religions or philosophies. This failure to agree
leaves us in pretty much the same position as if there were no objective
values at all. We are thrown back on arguments of functional, international
legal, and overlapping consensus universality (understood now, perhaps, as
imperfect reflections of a deeper ontological universality).
Second, all prominent comprehensive doctrines have for large parts of
their history ignored or actively denied human rights. It is improbable (al-
though conceivable) that an objectively correct doctrine has been interpreted
incorrectly so widely. Thus it is unlikely that human rights in general, and
the particular list in the Universal Declaration, are ontologically universal.
At best, we might find that an ontologically universal comprehensive doc-
trine has recently and contingently endorsed human rights as a political
conception of justice.
Third, the ontological universality of human rights, coupled with the
absence of anthropological universality, implies that virtually all moral and
religious theories through most of their histories have been objectively false
or immoral. This may indeed be correct. But before we embrace such a
radical idea, I think we need much stronger arguments than are currently
available to support the ontological universality of human rights.
Overlapping consensus, rather than render human rights groundless,
gives them multiple grounds. Whatever its analytical and philosophical
virtues or shortcomings, this is of great practical utility. Those who want
(or feel morally compelled) to make ontological claims can do so with no
need to convince or compel others to accept this particular, or even any,
foundation. Treating human rights as a Rawlsian political conception of
justice thus allows us to address a wide range of issues of political justice
and right while circumventing not merely inconclusive but often pointlessly
divisive disputes over moral foundations.
9. cULTURAL RELATIVISM
Having considered a variety of possible senses of “universality,” I now
want to turn, somewhat more briefly, to several different senses of “relativ-
ity.” What makes (or is alleged to make) human rights relative? Relative to
what? We have already seen that they are historically relative and that, at
best, ontological universality remains a matter of debate. The most common
argument for relativity appeals to culture.
Vol. 29294 HUMAN RIGHTS QUARTERLY
Cultural relativity is a fact: cultures differ, often dramatically, across
time and space. Cultural relativism is a set of doctrines that imbue cultural
relativity with prescriptive force. For our purposes we can distinguish meth-
odological and substantive cultural relativism.29
Methodological cultural relativism was popular among mid-twentieth
century anthropologists. They advocated a radically non-judgmental analysis
of cultures in order to free anthropology from unconscious, and often even
conscious, biases rooted in describing and judging other societies according
to modern Western categories and values.30 Such arguments lead directly to a
recognition of the historical or anthropological relativity of human rights.
In discussions of human rights, however, cultural relativism typically ap-
pears as a substantive normative doctrine that demands respect for cultural
differences.31 The norms of the Universal Declaration are presented as having
no normative force in the face of divergent cultural traditions. Practice is to
be evaluated instead by the standards of the culture in question. As the State-
ment on Human Rights of the American Anthropological Association (AAA)
put it, “man is free only when he lives as his society defines freedom.”32
Rhoda Howard-Hassmann has aptly described this position as “cultural
absolutism”33. Culture provides absolute standards of evaluation; whatever
a culture says is right is right (for those in that culture).34 Rather than ad-
dress the details of such claims, which usually involve arguments that other
29. John J. Tilley, Cultural Relativism, 22 Hum. RtS. Q. 501 (2000) carefully reviews a number
of particular conceptions and cites much of the relevant literature from anthropology.
Compare Alison Dundes Renteln, Relativism and the Search for Human Rights, 90 Am.
AntHRoPologiSt 56 (1988).
30. melville J. HeRSkovitS, cultuRAl RelAtiviSm: PeRSPectiveS in cultuRAl PluRAliSm (1972).
31. Even Renteln, Relativism and the Search for Human Rights, supra note 29, at 56, who
claims to be advancing “a metaethical theory about the nature of moral perceptions,” thus
making her position more like what I have called methodological relativism, insists on
“the requirement that diversity be recognized” and the “urgent need to adopt a broader
view of human rights that incorporates diverse concepts.” Alison Dundes Renteln, The
Unanswered Challenge of Relativism and the Consequences for Human Rights, 7 Hum.
RtS. Q. 514, at 540 (1985). Such substantive propositions simply do not follow from
methodological relativism or any causal or descriptive account of moral perceptions.
32. Exec. Comm., Am. Anthropological Ass’n, Statement on Human Rights, 49 Am. AntHRo-
PologiSt 539, 543 (1947).
33. Rhoda E. Howard, Cultural Absolutism and the Nostalgia for Community, 15 Hum. RtS.
Q. 315 (1993).
34. A variant on such arguments popular in the 1980s held that each of the three “worlds”
of that era—Western/liberal, Soviet/socialist and Third World—had its own distinctive
conception of human rights, rooted in its own shared historical experience and conception
of social justice. See, e.g., Hector Gros Espiell, The Evolving Concept of Human Rights:
Western, Socialist and Third World Approaches, in HumAn RigHtS: tHiRty yeARS AfteR tHe
univeRSAl DeclARAtion (B. G. Ramcharan ed., 1979); Adamantia Pollis, Liberal, Socialist,
and Third World Perspectives on Human Rights, in Toward a Human Rights Framework
1 (Peter Schwab & Adamantia Pollis eds., 1982). This story was often associated with
a claim that the West was focused on “first generation” civil and political rights, the
socialist world on “second generation” economic, social, and cultural rights, and the Third
2007 The Relative Universality of Human Rights 295
cultures give greater attention to duties than to rights and to groups than to
individuals, I will focus on six very serious general problems with substan-
tive or absolutist cultural relativism.
First, it risks reducing “right” to “traditional,” “good” to “old,” and
“obligatory” to “habitual.” Few societies or individuals, however, believe that
their values are binding simply or even primarily because they happen to be
widely endorsed within their culture. Without very powerful philosophical
arguments (which are not to be found in this cultural relativist literature on
human rights) it would seem inappropriate to adopt a theory that is incon-
sistent with the moral experience of almost all people—especially in the
name of cultural sensitivity and diversity.
Second, the equation of indigenous cultural origins with moral validity
is deeply problematic. The AAA statement insists that “standards and val-
ues are relative to the culture from which they derive so that any attempt
to formulate postulates that grow out of the beliefs or moral codes of one
culture must to that extent detract from the applicability of any Declaration
of Human Rights to mankind as a whole.”35 The idea that simply because a
value or practice emerged in place A makes it, to that extent, inapplicable
to B is, at best, a dubious philosophical claim that assumes the impossibil-
ity of moral learning or adaptation except within (closed) cultures. It also
dangerously assumes the moral infallibility of culture.
Third, intolerant, even genocidal, relativism is as defensible as tolerant
relativism. If my culture’s values tell me that others are inferior, there is
World on “third generation” solidarity rights. See Stephen P. Marks, Emerging Human
Rights: A New Generation for the 1980s?, 33 RutgeRS l. Rev. 435 (1981); Karel Vasak,
Pour une troisième génération des droits de l’homme, in StuDieS AnD eSSAyS on inteRnAtionAl
HumAnitARiAn lAW AnD ReD cRoSS PRinciPleS in HonouR of JeAn Pictet 837 (Christophe Swinarski
ed., 1984); Karel Vasak, Les différentes catégories des droits de l’homme, in leS Dimen-
SionS univeRSelleS DeS DRoitS De l’Homme. vol. i. (André Lapeyre, François de Tinguy, & Karel
Vasak eds., 1991). micHeline R. iSHAy, tHe HiStoRy of HumAn RigHtS: fRom Ancient timeS to tHe
globAlizAtion eRA (2004) presents a relatively sophisticated post-Cold War version of this
argument. For a counter-argument, see J. Donnelly, Third Generation Rights, in PeoPleS
AnD minoRitieS in inteRnAtionAl lAW 119 (Catherine Brölmann, René Lefeber & Marjoleine
Zieck eds., 1993).
The three worlds story suggests that level of development and political history impose
priorities on (groups of) states. Socialist and Third World states, it was argued, could
not afford the “luxury” of civil and political rights, being legitimately preoccupied with
establishing their national sovereignty and economic and social development. While
usually acknowledging the long run desirability of civil and political rights, they were
dismissed as (at best) a secondary priority, a distraction, or even a serious impediment
to progress in countries struggling to achieve self-determination and economic develop-
ment. The claim, though, that benevolent governments that denied civil and political
rights could deliver development more rapidly and spread its benefits more universally,
unfortunately found almost no support in the experience of developmental dictator-
ships of the left and the right alike during the Cold War. Quite the contrary, pursuing
economic and social rights without civil and political rights in practice usually led to
poor performance in realizing both, particularly over the medium and long run.
35. Exec. Comm., Am. Anthropological Ass’n, supra note 32, at 542.
Vol. 29296 HUMAN RIGHTS QUARTERLY
no standard by which to challenge this. A multidimensional, multicultural
conception of human rights requires appeal to principles inconsistent with
normative cultural relativism.
Fourth, cultural relativist arguments usually either ignore politics or
confuse it with culture. The often deeply coercive aspect to culture is simply
ignored. As a result, such arguments regularly confuse what a people has
been forced to tolerate with what it values.
Fifth, these arguments typically ignore the impact of states, markets,
colonialism, the spread of human rights ideas, and various other social
forces. The cultures described are idealized representations of a past that, if
it ever existed, certainly does not exist today. For example, Roger Ames, in
an essay entitled “Continuing the Conversation of Chinese Human Rights,”
completely ignores the impact of half a century of communist party rule, as
if it were irrelevant to discussing human rights in contemporary China.36
Sixth, and most generally, the typical account of culture as coherent,
homogenous, consensual, and static largely ignores cultural contingency,
contestation, and change. Culture in fact is a repertoire of deeply contested
symbols, practices, and meanings over and with which members of a society
constantly struggle.37 Culture is not destiny—or, to the extent that it is, that
is only because victorious elements in a particular society have used their
power to make a particular, contingent destiny.
The fact of cultural relativity and the doctrine of methodological cul-
tural relativism are important antidotes to misplaced universalism. The fear
of (neo-)imperialism and the desire to demonstrate cultural respect that lie
behind many cultural relativist arguments need to be taken seriously. Norma-
tive cultural relativism, however, is a deeply problematic moral theory that
offers a poor understanding of the relativity of human rights.
10. SELf-dETERMINATIoN ANd SoVEREIGNTY
Self-determination and sovereignty ground a tolerant relativism based on the
mutual recognition of peoples/states in an international community. Self-de-
termination, understood as an ethical principle, involves a claim that a free
36. Roger T. Ames, Continuing the Conversation on Chinese Human Rights, 11 etHicS & int’l
Aff. 177 (1997).
37. For excellent brief applications of this understanding of culture to debates over human
rights, see Ann-Belinda S. Preis, Human Rights as Cultural Practice: An Anthropological
Critique, 18 Hum. RtS. Q. 286 (1996); Andrew J. Nathan, Universalism: A Particularistic
Account, in negotiAting cultuRe AnD HumAn RigHtS (Lynda S. Bell, Andrew J. Nathan &
Ilan Peleg eds., 2001). Compare also Neil A. Engelhart, Rights and Culture in the Asian
Values Argument: The Rise and Fall of Confucian Ethics in Singapore, 22 Hum. RtS. Q.
548 (2000); Elizabeth M. Zechenter, In the Name of Culture: Cultural Relativism and
the Abuse of the Individual, 53 J. AntHRoPologicAl ReS. 319 (1997).
2007 The Relative Universality of Human Rights 297
people is entitled to choose for itself its own way of life and its own form
of government. The language of “democracy” is also often used. Democratic
self-determination is a communal expression of the principles of equality
and autonomy that lie at the heart of the idea of human rights.
Whether a particular practice is in fact the free choice of a free people,
however, is an empirical question. And self-determination must not be
confused with legal sovereignty. Legally sovereign states need not satisfy
or reflect the ethical principle of self-determination. Too often, repressive
regimes falsely claim to reflect the will of the people. Too often, international
legal sovereignty shields regimes that violate both ethical self-determination
and most internationally recognized human rights—which brings us back
to the relative enjoyment of human rights, based largely on where one
happens to live.
Often the result is a conflict between justice, represented by human
rights and self-determination, and order, represented by international legal
sovereignty. Non-intervention in the face of even systematic human rights
violations dramatically decreases potentially violent conflicts between states.
We can also see international legal sovereignty as an ethical principle of
the society of states, a principle of mutual toleration and respect for (state)
equality and autonomy. However we interpret it, though, legal sovereignty
introduces a considerable element of relativity into the enjoyment of inter-
nationally recognized human rights in the contemporary world.
11. poST-STRUcTURAL, poST-coLoNIAL, ANd cRITIcAL
ARGUMENTS
The growing hegemony of the idea of human rights since the end of the Cold
War, combined with the rise of post-structural and post-colonial perspectives,
has spawned a new stream of relativist, or perhaps more accurately anti-
universalist, arguments. Although often similar to earlier cultural relativist
arguments in both substance and motivation, they typically are based on a
very different sort of anti-foundationalist ontology and epistemology38 and
tend to be specially addressed to the context of globalization. They seek
to challenge arrogant, neo-imperial arguments of universality, and draw
attention to “the civilizationally asymmetrical power relations embedded
in the international discourse,” in order to open or preserve discursive and
practical space for autonomous action by marginalized groups and peoples
across the globe.39
38. Critical Marxian perspectives, however, make similar arguments from a foundationalist
perspective. See, e.g., tony evAnS, uS Hegemony AnD tHe PRoJect of univeRSAl HumAn RigHtS
(1996); HumAn RigHtS fifty yeARS on: A ReAPPRAiSAl (Tony Evans ed., 1998).
39. Anthony Woodiwiss, Human Rights and the Challenge of Cosmopolitanism, 19 tHeoRy,
cultuRe & Society 139 (2002).
Vol. 29298 HUMAN RIGHTS QUARTERLY
Although some versions of such arguments are dismissively critical,40
many are well modulated. “[T]he seduction of human rights discourse has
been so great that it has, in fact, delayed the development of a critique of
rights.”41 They claim that a lack of critical self-reflection has made human
rights advocates “more part of a problem in today’s world than part of the
solution.”42 There are “dark sides of virtue.”43 The uncomfortable reality,
whatever the intentions of Western practitioners, too often is “imperial
humanitarianism.”44
In these accounts, universality per se—and more particularly the ten-
dency for universal claims to intellectually obscure and politically repress
difference—is targeted more than universal human rights in particular. Con-
versely, even many fairly radical post-structuralist and post-colonial authors
reject normative cultural relativism in favor of a more dialogical approach
to cross-cultural consensus that is not in the end dissimilar to overlapping
consensus arguments discussed above.45 This, I believe, is a reflection of a
growing sophistication in the discussion of relativity and universality -on
both sides of the old divide.
12. JUSTIfYING pARTIcULARITY: UNIVERSAL RIGHTS, NoT
IdENTIcAL pRAcTIcES
Over the past decade, most discussions have tried to move beyond a dichoto-
mous presentation of the issue of universality. Most sophisticated defenders
of both universality and relativity today recognize the dangers of an extreme
40. For example, Makau Mutua writes of “the biased and arrogant rhetoric and history of
the human rights enterprise,” which is simply the latest expression of “the historical
continuum of the Eurocentric colonial project.” Makau Mutua, Savages, Victims, and
Saviors: The Metaphor of Human Rights, 42 HARv. int’l l. J. 201, 202, 204 (2001). The
hegemony of international human rights norms, in this reading, amounts to granting
Western culture “the prerogative of imperialism, the right to define and impose on others
what it deems good for humanity.” Id. at 219.
41. Makau Wa Mutua, The Ideology of Human Rights, 36 viRginiA J. int’l l. 589, 591
(1996).
42. David Kennedy, The International Human Rights Movement: Part of the Problem?, 15
HARvARD Hum. RtS. J. 101 (2002).
43. DAviD kenneDy, tHe DARk SiDeS of viRtue: ReASSeSSing inteRnAtionAl HumAnitARiAniSm (2004).
44. Gil Gott, Imperial Humanitarianism: History of an Arrested Dialectic, in moRAl imPeRiAliSm:
A cRiticAl AntHology 19 (Berta Esperanza Hernández-Truyol ed., 2002); compare Susan
Koshy, From Cold War to Trade War: Neocolonialism and Human Rights, 58 SociAl text
1 (1999); Pheng Cheah, Posit(ion)ing Human Rights in the Current Global Conjuncture,
Public cultuRe 233–266 (1997). Michael Ignatieff, Human Rights as Politics, Human
Rights as Idolotry, in HumAn RigHtS AS PoliticS AnD iDolAtRy 3, 53 (Amy Gutmann ed., 2001)
expresses similar worries from within a very traditional Western liberal perspective.
45. See, e.g., Bonaventura de Sousa Santos, Toward a Multicultural Conception of Human
Rights, in moRAl imPeRiAliSm: A cRiticAl AntHology 39 (Berta Esperanza Hernández-Truyol
ed., 2002); Berta Esperanza Hernández-Truyol & Sharon Elizabeth Rush, Culture, Na-
tionhood, and the Human Rights Ideal, 33 u. micH. J. l. RefoRm 233 (2000).
2007 The Relative Universality of Human Rights 299
commitment and acknowledge at least some attractions and insights in the
positions of their critics and opponents.
At the relatively universalistic end of this spectrum, I have defended
“relative universality.”46 Towards the relativist end, Richard Wilson argues that
ideas of and struggles for human rights “are embedded in local normative
orders and yet are caught within webs of power and meaning which extend
beyond the local.”47 Near the center, Andrew Nathan uses the language of
“tempered universalism.”48
This more flexible account of universality (and relativity) makes a three-
tiered scheme for thinking about universality that I have long advocated
particularly useful for thinking about what ought to be universal, and what
relative, in the domain of “universal human rights.”49 Human rights are
(relatively) universal at the level of the concept, broad formulations such as
the claims in Articles 3 and 22 of the Universal Declaration that “everyone
has the right to life, liberty and security of person” and “the right to social
security.”50 Particular rights concepts, however, have multiple defensible
conceptions. Any particular conception, in turn, will have many defensible
implementations. At this level—for example, the design of electoral sys-
tems to implement the right “to take part in the government of his country,
directly or through freely chosen representatives”—relativity is not merely
defensible but desirable.51
Functional and overlapping consensus universality lie primarily at the
level of concepts. Most of the Universal Declaration lies at this level as well.
Although international human rights treaties often embody particular concep-
tions, and sometimes even particular forms of implementation,52 they too
46. Towards this end of the spectrum, compare Fred Halliday, Relativism and Universalism
in Human Rights: the Case of the Islamic Middle East, 43 Pol. StuD. 152 (1995); Michael
J. Perry, Are Human Rights Universal? The Relativist Challenge and Related Matters, 19
Hum. RtS. Q. 461 (1997); Charles R. Beitz, Human Rights as a Common Concern, 95
Am. Pol. Science Rev. 269 (2001).
47. HumAn RigHtS, cultuRe & context: AntHRoPologicAl PeRSPectiveS 23 (Richard Wilson ed.,
1997); compare Fred Dallmayr, “Asian Values” and Global Human Rights, 52 PHil. eASt
& WeSt 173 (2002); Charles Taylor, Conditions of an Unforced Consensus on Human
Rights, in tHe eASt ASiAn cHAllenge foR HumAn RigHtS, supra note 1; Penna & Campbell,
supra note 3.
48. Nathan, supra note 37; compare Preis, supra note 37; Declan O’Sullivan, Is the Declara-
tion of Human Rights Universal? 4 J. Hum. RtS. 25 (2000).
49. Donnelly, Cultural Relativism and Universal Human Rights, supra note 1; Donnelly,
univeRSAl HumAn RigHtS in tHeoRy AnD PRActice (2d ed.), supra note 1, §6.4.
50. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),
U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, arts. 3, 22, U.N. Doc. A/810 (1948),
reprinted in 43 Am. J. int’l l. 127 (Supp. 1949).
51. Id. art. 21.
52. For example, Article 14 of the Convention against Torture specifies that:
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress
and has an enforceable right to fair and adequate compensation, including the means for as full
rehabilitation as possible. In the event of the death of the victim as a result of an act of torture,
his dependants shall be entitled to compensation.
Vol. 29300 HUMAN RIGHTS QUARTERLY
permit a wide range of particular practices. Substantial second order varia-
tion, by country, region, culture, or other grouping, is completely consistent
with international legal and overlapping consensus universality.
Concepts set a range of plausible variations among conceptions, which
in turn restrict the range of practices that can plausibly be considered
implementations of a particular concept and conception. But even some
deviations from authoritative international human rights norms may be, all
things considered, (not il)legitimate.
Four criteria can help us to grapple seriously yet sympathetically with
claims in support of such deviations. For reasons of space, I simply stipulate
these criteria, although I doubt that they are deeply controversial once we
have accepted some notion of relative universality.53
1) Important differences in threats are likely to justify variations even at
the level of concepts. Although perhaps the strongest theoretical justification
for even fairly substantial deviations from international human rights norms,
such arguments rarely are empirically persuasive in the contemporary world.
(Indigenous peoples may be the exception that proves the rule.)54
2) Participants in the overlapping consensus deserve a sympathetic
hearing when they present serious reasoned arguments justifying limited
deviations from international norms. Disagreements over “details” should
be approached differently from systematic deviations or comprehensive at-
tacks. If the resulting set of human rights remains generally consistent with
the structure and overarching values of the Universal Declaration, we should
be relatively tolerant of particular deviations.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Pun-
ishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No.
51, art. 14, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in
23 i.l.m. 1027 (1984), substantive changes noted in 24 i.l.m. 535 (1985).
53. I am implicitly speaking from the perspective of an engaged participant in international
society. A different and more complex “subject position” may be important “on the
ground” where ordinary people have more local and particularistic understandings of
their values. I suspect that much of the “talking past each other” in debates on cultural
relativism and human rights arises from taking arguments that may be well formulated
for a particular setting, be it local or international, and applying them directly in another
discursive setting, without the adjustments required to give those arguments resonance
and persuasive force in that context. For example, in much of rural China today, direct
appeals to internationally recognized human rights are unlikely to be politically effica-
cious, and often will be positively counter-productive, either for mobilizing peasants
or persuading local authorities. Those working directly to improve the day to day life
of Chinese peasants needs to give central place to this fact. But I would suggest that it
says more about the Chinese state and the enforced isolation and systematic repression
of Chinese peasants than about “Asian values.”
54. Defensible categorical differences between “developed” and “developing” countries, I
would argue, involve, at most, differing short-term priorities among particular interna-
tionally recognized human rights, not major differences in the list of rights appropriate
for individuals in such countries.
2007 The Relative Universality of Human Rights 301
3) Arguments claiming that a particular conception or implementation
is, for cultural or historical reasons, deeply imbedded within or of unusu-
ally great significance to some significant group in society deserve, on their
face, sympathetic consideration. Even if we do not positively value diversity,
the autonomous choices of free people should never be lightly dismissed,
especially when they reflect well-established practices based on deeply
held beliefs.
4) Tolerance for deviations should decrease as the level of coercion
increases.
13. Two ILLUSTRATIoNS
Article 18 of the Universal Declaration reads, in its entirety, “Everyone
has the right to freedom of thought, conscience and religion; this right in-
cludes freedom to change his religion or belief, and freedom, either alone or
in community with others and in public or private, to manifest his religion
or belief in teaching, practice, worship and observance.”55 Most schools of
Islamic law and scholarship deny Muslims the right to change their religion.
Is prohibition of apostasy by Muslims compatible with the relative univer-
sality of Article 18? Reasonable people may reasonably disagree, but I am
inclined to answer “Probably.”
The variation is at the level of conceptions—the limits of the range
of application of the principle of freedom of religion—in a context where
the overarching concept is strongly endorsed. Most Islamic countries and
communities respect the right of adherents of other religions to practice
their beliefs (within the ordinary constraints of public order). Prohibition
of apostasy also has a deeply rooted doctrinal basis, supported by a long
tradition of practice. I think, therefore, that we are compelled to approach it
with a certain prima facie tolerance, particularly if it is a relatively isolated
deviation from international norm.56
Persuasion certainly lies within a state’s margin of appreciation. Freedom
of religion does not require religious neutrality—separation of church and
state, as Americans typically put it—but only that people be free to choose
and practice their religion. Furthermore, there is no guarantee that the choice
55. Universal Declaration, supra note 50, art. 18.
56. Even where there is a broad pattern of systematic violations of international human
rights norms, we often would do well not to focus too much on the issue of apostasy,
which is likely to have a much stronger internal justification than many other violations
of internationally recognized human rights. A better strategy, at least where apostates do
not suffer severely, would be to work to improve broader human rights practices, with
the aim of creating a situation where we would be “willing to live with” at least some
forms of prohibition of apostasy.
Vol. 29302 HUMAN RIGHTS QUARTERLY
be without cost. A state thus might be justified in denying certain benefits
to apostates, as long as those benefits are not guaranteed by human rights.
(Protection against discrimination on the basis of religion is one of the
foundational principles of international human rights norms.) It may even
be (not im)permissible to impose modest disabilities on apostates, again
as long as they do not violate the human rights of apostates, who remain
human beings entitled to all of their human rights. And the state is under
no obligation to protect apostates against social sanctions imposed by their
families and communities that do not infringe human rights.
Executing apostates, however, certainly exceeds the bounds of permis-
sible variation. Violently imposing a specific conception of freedom of reli-
gion inappropriately denies basic personal autonomy. Whatever the internal
justification, this so excessively infringes the existing international legal and
overlapping consensus that it is not entitled to international toleration—al-
though we should stress that the same constraints on the use of force apply
to external actors, even before we take into account the additional constraints
imposed by considerations of sovereignty and international order.
Consider now Article 4(a) of the Racial Discrimination Convention,
which requires parties to prohibit racial violence and incitement to such
violence and to “declare an offence punishable by law all dissemination
of ideas based on racial superiority or hatred.”57 Article 20(2) of the Inter-
national Covenant on Civil and Political Rights similarly requires that “any
advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law.”58 Such
requirements have been rejected in the United States, where free speech
includes even “hate speech” that does not incite violence.
Here the issue is balancing two competing human rights, rather than
a conflict between human rights and another value. Any resolution will
require restricting the range of at least one of these rights. Therefore, any
approach that plausibly protects the conceptual integrity of both rights must
be described as controversial but defensible. American practice with respect
to hate speech clearly falls into this category.
Because incitement to violence is legally prohibited, US practice involves
only a narrow deviation from international norms, with respect to one part
of a second order conception, in a context of general support for the over-
arching concepts and conceptions. Furthermore, the deviation is on behalf
of a strong implementation of another vitally important human rights. And
57. International Convention on the Elimination of All Forms of Racial Discrimination,
adopted 21 Dec. 1965, art. 4, ¶ a, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969),
reprinted in 5 I.L.M. 352 (1966).
58. International Covenant on Civil and Political Rights, adopted 19 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 20(2), U.N. Doc. A/6316 (1966),
999 U.N.T.S. 171 (entered into force 23 Mar. 1976).
2007 The Relative Universality of Human Rights 303
it is deeply rooted in legal history and constitutional theory. I can imagine
few stronger cases for justifiable deviations from international norms.
Targets of hate speech may indeed be harmed by that speech. They re-
main, however, protected against violence. Conversely, prohibiting speech
because of its content harms those whose speech is restricted. It also ef-
fectively involves state imposition of a particular viewpoint, which is prima
facie undesirable. Reasonable people may reasonably disagree about which
harm is greatest. Toleration of the American refusal to prohibit hate speech
thus seems demanded, even from those who sincerely and no less reasonably
believe that prohibiting hate speech is the better course of action. Americans,
however, need to be respectful of the mainstream practice and be willing to
engage principled arguments to conform with international norms.
These brief arguments are hardly conclusive, perhaps not even correct.
(I am inclined to think that my argument on apostasy accepts too great a
relativism.) I think, though, that they show that the (relative) universality of
internationally recognized human rights does not require, or even encour-
age, global homogenization or the sacrifice of (many) valued local practices.
Certainly nothing in my account of relative universality implies, let alone
justifies, cultural imperialism. Quite the contrary, (relatively) universal human
rights protect people from imposed conceptions of the good life, whether
those visions are imposed by local or foreign actors.
Human rights seek to allow human beings, individually and in groups
that give meaning and value to their lives, to pursue their own visions of
the good life. Such choices—so long as they are consistent with comparable
rights for others and reflect a plausible vision of human flourishing to which
we can imagine a free people freely assenting—deserve our respect. In fact,
understanding human rights as a political conception of justice supported by
an overlapping consensus requires us to allow human beings, individually and
collectively, considerable space to shape (relatively) universal rights to their
particular purposes—so long as they operate largely within the constraints
at the level of concepts established by functional, international legal, and
overlapping consensus universality.
14. UNIVERSALISM wITHoUT IMpERIALISM
My account has emphasized the “good” sides of universalism, understood in
limited, relative terms. The political dangers of arguments of anthropological
universality are modest, at least if one accepts functional and international
legal universality. In arguing against ontological universality, however, I
ignored the dangers of imperialist intolerance when such claims move into
politics. This final section considers a few of the political dangers posed by
excessive or “false” universalism, especially when a powerful actor (mis)takes
its own interests for universal values.
Vol. 29304 HUMAN RIGHTS QUARTERLY
The legacy of colonialism demands that Westerners show special cau-
tion and sensitivity when advancing arguments of universalism in the face
of clashing cultural values. Westerners must also remember the political,
economic, and cultural power that lies behind even their best intentioned
activities. Anything that even hints of imposing Western values is likely to
be met with understandable suspicion, even resistance. How arguments of
universalism and arguments of relativism are advanced may sometimes be
as important as the substance of those arguments.59
Care and caution, however, must not be confused with inattention or
inaction. Our values, and international human rights norms, may demand
that we act on them even in the absence of agreement by others—at least
when that action does not involve force. Even strongly sanctioned tradi-
tions may not deserve our toleration if they are unusually objectionable.
Consider, for example, the deeply rooted tradition of anti-Semitism in the
West or “untouchables” and bonded labor in India. Even if such traditional
practices were not rejected by the governments in question, they would not
deserve the tolerance, let alone the respect, of outsiders. When rights-abu-
sive practices raise issues of great moral significance, tradition and culture
are slight defense.
Consider violence against homosexuals. International human rights law
does not prohibit discrimination on the basis of sexual orientation. Sexual
orientation is not mentioned in the Universal Declaration or the Covenants,
and arguments that it falls within the category of “other status” in Article 2
of each of these documents are widely accepted, at least at the level of law,
only in Europe and a few other countries. Nonetheless, everyone is entitled
to security of the person. If the state refuses to protect some people against
private violence, on the grounds that they are immoral, the state violates
their basic human rights—which are held no less by the immoral than the
moral.60 And the idea that the state should be permitted to imprison or even
execute people solely on the basis of private voluntary acts between consent-
ing adults, however much that behavior or “lifestyle” offends community
conceptions of morality, is inconsistent with any plausible conception of
personal autonomy and individual human rights.
I do not mean to minimize the dangers of cultural and political arrogance,
especially when backed by great power. US foreign policy often confuses
American interests with universal values. Many Americans do seem to believe
that what’s good for the US is good for the world—and if not, then “that’s
59. I probably would not object to readers who took this as implicit acknowledgment of
certain shortcomings in some of my previous work on relativism, although I suspect
that we might disagree about the range of applicability of such criticisms.
60. For clarity, let me explicitly note that I am not endorsing these judgments but simply
arguing that even if they are accepted they do not justify violating human rights.
2007 The Relative Universality of Human Rights 305
their problem.” The dangers of such arrogant and abusive “universalism”
are especially striking in international relations, where normative disputes
that cannot be resolved by rational persuasion or appeal to agreed upon
international norms tend to be settled by (political, economic, and cultural)
power—of which United States today has more than anyone else.
Faced with such undoubtedly perverse “unilateral universalism,” even
some well meaning critics have been seduced by misguided arguments for
the essential relativity of human rights. This, however, in effect accepts the
American confusion of human rights with US foreign policy. The proper rem-
edy for “false” universalism is defensible, relative universalism. Functional,
overlapping consensus, and international legal universality, in addition to
their analytical and substantive virtues, can be valuable resources for resist-
ing many of the excesses of American foreign policy, and perhaps even for
redirecting it into more humane channels.
Indirect support for such an argument is provided by the preference of
the Bush administration for the language of democracy and freedom rather
than human rights.61 For example, the introductions to the 2002 and 2006
national security statements use “freedom” twenty-five times, “democracy”
six times, and “human rights” just once (and not at all in 2006).62 Part
of the reason would seem to be that human rights does have a relatively
precise and well-settled meaning in contemporary international relations.
“Democracy” is both narrower and more imprecisely defined, especially
internationally.63 And “freedom” is a remarkably malleable idea—“rich” or
“empty,” depending on your perspective—as a review of the roster of the
“free world” in the 1970s indicates.
International legal and overlapping consensus universality can provide
important protection against the arrogant “universalism” of the powerful.
Without authoritative international standards, to what can the United States
(or any other great power) be held accountable? If international legal uni-
versality has no force, why shouldn’t the United States act on its own (often
peculiar) understandings of human rights? Even the Bush Administration’s
preference for “coalitions of the willing” provides indirect testimony to the
attractions of the idea of overlapping consensus.
61. Compare Julie Mertus, The New U.S. Human Rights Policy: A Radical Departure, 4 int’l
StuD. PeRSPectiveS 371 (2003).
62. See available at www.whitehouse.gov/nsc/nssall.html; www.whitehouse.gov/nsc/nss/2006/
print/intro.html. The prefaces of the Clinton national security statements of 1996, 1997,
and 1999, taken together, use “democracy” twenty-one times, “human rights” seven times,
and “freedom” six. See available at www.fas.org/spp/military/docops/national/1996stra.
htm; www.fas.org/man/docs/strategy97.htm; www.dtic.mil/doctrine/jel/other_pubs/nssr99.
pdf.
63. Donnelly, univeRSAl HumAn RigHtS in tHeoRy AnD PRActice (2d ed.), supra note 1, §11.3
Vol. 29306 HUMAN RIGHTS QUARTERLY
The contemporary virtues of (relative) universality are especially great
because the ideological hegemony of human rights in the post-Cold War
world is largely independent of American power. As Abu Ghraib indicates,
international human rights norms may even provoke changes in policy in
the midst of what is typically presented as a war. The international and
national focus on Guantanamo—which on its face is odd, given the tiny
percentage of the victims of the War on Terror who have suffered in this bit
of American-occupied Cuba—underscores the power of widely endorsed
international norms to change the terms of debate and transform the mean-
ing of actions.
International legal universality is one of the great achievements of the
international human rights movement, both intrinsically and because it
has facilitated a deepening overlapping consensus. Even the United States
participates, fitfully and incompletely, in these consensuses. Not just the
Clinton administration but both Bush administrations as well have regularly
raised human rights concerns in numerous bilateral relationships, usually
with a central element of genuine concern. (The real problem with American
foreign policy is less where it does raise human rights concerns than where
it doesn’t, or where it allows them to be subordinated to other concerns.)
And all of this matters, directly to tens or hundreds of thousands of people,
and indirectly to many hundreds of millions, whose lives have been made
better by internationally recognized human rights.
Human rights are not a panacea for the world’s problems. They do,
however, fully deserve the prominence they have received in recent years.
For the foreseeable future, human rights will remain a vital element in
national, international, and transnational struggles for social justice and
human dignity. And the relative universality of those rights is a powerful
resource that can be used to help to build more just and humane national
and international societies.
Fr a n k l i n W . K n i g h t
The Haitian Revolution and
the Notion of Human Rights
The Haitian Revolution, long neglected and occasionally
forgotten by historians, represents one of the truly noteworthy
achievements in the annals of world history. Among its many ac-
complishments was a bold, though unsuccessful, attempt to advance
universal human rights in the early nineteenth century. The measure
was bold and farsighted. Had it succeeded, one of the greatest rev-
olutions in the modern past would have fundamentally changed the
course of history and the relations between the peoples of the earth.
One of the cruel ironies of history is that so little is known or re-
membered of one of the greatest and most noble revolutions of all
time. And it is especially ironic that hardly anyone anywhere today
associates Haiti with either democracy or the exercise of human
rights. Nevertheless, Haiti played an inordinately important role in
the articulation of a version of human rights as it forged the second
independent state in modern history.
Haiti failed spectacularly as a symbol of political freedom. Yet
it established and maintained a viable state for more than a cen-
tury when state formation was a novel undertaking anywhere.
The attempt to promote human rights also largely failed because
those ideas were so far ahead of their time; even acknowledged
The Journal of The Historical Society V:3 Fall 2005 391
T h e J o u r n a l
humanitarians of that era failed to recognize the full equality of
all persons. After all, it was not until after the Second World War
that the then newly established United Nations made the pursuit
of human rights one of its goals. The Haitian ideals failed because
Haiti not only sought political freedom but also equality for black
people in a world where the power structure was overwhelmingly
white—and whites held a rigid, hierarchical view of the world that
they refused to have challenged at that time. Although they won
their freedom, the Haitians lost the long postwar publicity campaign
along with the early struggle to make human rights an international
issue. By the middle of the twentieth century, however, the history
of white-on-white atrocities and extreme forms of genocide forced
the world to reconsider the notion of international human rights—
which has become one of the interests of the United Nations since
1947.
In order to understand the Haitian role in the development of hu-
man rights it is vitally important to examine the context of that un-
usual revolution that took place in the French colony on the western
part of the island of Hispaniola at the end of the eighteenth century.
The Haitian Revolution
The Haitian Revolution represents the most thorough case study of
revolutionary change anywhere in the history of the modern world.1
In ten years of sustained internal and international warfare a colony
populated predominantly by plantation slaves overthrew both its
colonial status and its economic system and established a new, in-
dependent political state of entirely free individuals—with former
slaves constituting the new political authority.
As the second state to declare and establish its independence in
the Americas, the Haitians had no viable administrative models to
follow, but eighteenth-century revolutionaries, unlike their succes-
sors, did not look for precedents. The British North Americans who
declared their independence in 1776 left slavery intact in their new
state and in any case theirs was more a political revolution than a
392
The Haitian Revolution and the Notion of Human Rights
social and economic revolution. The success of Haiti against all
odds, however, would make social revolutions an extremely sen-
sitive issue among the leaders of political revolt elsewhere in the
Americas during the final years of the eighteenth century and the
first decades of the nineteenth century.2
The genesis of the Haitian revolution cannot be separated from
the wider concomitant events of the later eighteenth-century At-
lantic World, as has been noted repeatedly by such writers as Laurent
Dubois and David Geggus.3 Indeed, the period between 1750 and
1850 represented an age of spontaneous, interrelated revolutions,
and events in Saint Domingue/Haiti constitute an integral—though
often overlooked—part of the history of that wider world.4 These
multifaceted revolutions combined to alter the way that individuals
and groups saw themselves and their worlds.5 But even more, the
intellectual changes of the period instilled in some political leaders
a confidence (not new in the eighteenth century, but far more gener-
alized than before) that creation and creativity were not exclusively
divine or accidental attributes, and that both general societies and
individual conditions could be rationally engineered or re-ordered.6
All this clearly indicated that the world of the eighteenth cen-
tury was experiencing a widespread revolutionary situation. Not all
of such revolutionary situations, of course, ended up in full-blown
convulsing revolutions.7 But everywhere the old order was being
challenged. New ideas, new circumstances, and new peoples com-
bined to create a portentously “turbulent time.”8 Bryan Edwards,
a sensitive English planter in Jamaica as well as an articulate mem-
ber of the British Parliament, lamented in a speech to that body in
1798 that “a spirit of subversion had gone forth that set at naught
the wisdom of our ancestors and the lessons of experience.”9 But
if Edwards’s lament was for the passing of his familiar cruel and
constricted world of privileged planters and exploited slaves, it was
certainly not the only view.
For the vast majority of workers on the far-flung plantations un-
der the tropical sun of the Americas, the revolutionary situation
393
T h e J o u r n a l
presented an occasion to seize the opportunity and fundamen-
tally change their personal world, and maybe the world of oth-
ers equally unfortunate.10 Nowhere was that reality more sharply
demonstrated than in the highly productive and extremely valu-
able French Caribbean colony of Saint-Domingue between 1789
and 1804. The hundreds of thousands of African slaves and tens
of thousands of legally defined free coloreds found the hallowed
wisdom and experiential “lessons” of Bryan Edwards to be a de-
spicably inconvenient barrier to their quest for individual and col-
lective liberty. It was a sentiment motivated by differences not
only of geography and culture but also of race and condition.
Masters and slaves interpreted their worlds in quite different
ways.
Within fifteen turbulent years, a colony of coerced and exploited
slaves successfully liberated itself and radically and permanently
transformed its slaveholding world. It was a unique case in the
history of the Americas: a thorough revolution that resulted in a
complete metamorphosis of the social, political, intellectual, and
economic life of the colony. Socially, the lowest stratum of the
society—the slaves—became equal, free, and independent citizens.
Politically, the new citizens created the second nominally indepen-
dent state in the Americas, and the first independent non-European
state to be carved out of the European empires anywhere. By so
doing they not only declared that all men within their new state
would be free, but that they would all enjoy equal privileges as well.
In short, the Haitian Revolution abolished social rank and privi-
leges based on status, color, condition, and occupation. Their lead-
ers hoped that Haiti would become a genuine model meritocracy. In
this they elevated human rights above civil rights.
Intellectually, the ex-colonists gave themselves a new, if not
entirely original name—Haitians—and defined all Haitians as
“black,” thereby striking a shattering psychological blow against the
emerging intellectual traditions of an increasingly racist Europe and
North America that saw a hierarchical world eternally dominated
394
The Haitian Revolution and the Notion of Human Rights
by types representative of their European-derived somatic norm im-
ages.11 In Haiti all citizens were legally equal, regardless of color,
race, or condition. Equally important, the example of Haiti convinc-
ingly refuted the patently ridiculous notion, still enduring among
some social scientists by the end of the twentieth century, that slav-
ery produced “social death” among slaves and persons of African
descent.12
In the economic sphere, the Haitians dramatically transformed
their conventional tropical plantation agriculture, especially in the
north, from a large-scale latifundia-dominated structure into a soci-
ety of minifundists, or small-scale, marginally self-sufficient produc-
ers who reoriented their production away from export-dependency
to an internal marketing system supplemented by a minor, although
considerably varied, export market sector.13 These changes, how-
ever, were not accomplished without extremely painful dislocations
and severe long-term repercussions both for the new Caribbean state
and its society.14
The Haitian model of state formation drove xenophobic fear into
the hearts of the great majority of white people along the Atlantic
seaboard, from Boston to Buenos Aires, and shattered their com-
placency about the unquestioned superiority of their own political
models.15 To Simón Bolı́var, himself of partial African ancestry, it
was a model of revolution that was to be avoided by the Spanish-
American states seeking their independence after 1810, but he sug-
gested the best way was to free all slaves.16
The Atlantic Context for Revolution
If the origins of the revolution in Saint-Domingue lie in the broader
changes of the Atlantic World during the eighteenth century, the im-
mediate precipitants must be found in the French Revolution.17 The
symbiotic relationship between the two remained extremely strong
and will be discussed later, but both resulted from the construction
of a newly integrated Atlantic world community during the seven-
teenth and eighteenth centuries.
395
T h e J o u r n a l
Those broader movements of empire building in the Atlantic
world produced the dynamic catalyst for change that fomented po-
litical independence in the United States of America between 1776
and 1783. Even before that event, Enlightenment ideas had agi-
tated the political structures on both sides of the Atlantic, overtly
challenging the traditional mercantilist notions of imperial admin-
istration and appropriating and legitimating the unorthodox free
trading of previously defined interlopers and smugglers.18 The En-
lightenment proposed a rational basis for reorganizing state, society,
and nation.19 The leading thinkers promoted and popularized new
ideas of individual and collective liberty, of political rights, and of
class equality, and even to a certain extent, of social democracy that
eventually included some unconventional thoughts about slavery.20
But their concepts of the state remained rooted in the traditional
Western European social experience, which did not accommodate
itself easily to the current reality of the tropical American world, as
Peggy Liss shows in her insightful study entitled Atlantic Empires.21
Questions about the moral, religious, and economic justifications
for slavery and the slave society formed part of this range of in-
novative ideas. Eventually these led to changes in jurisprudence,
such as the judgment reluctantly delivered by British Chief Justice
Lord William Mansfield in 1772 that the owner of the slave James
Somerset could not return him to the West Indies, thereby implying
that by being brought to England, Somerset had indeed become a
free man. In 1778 the courts of Scotland declared that slavery was
illegal in that part of the realm. Together with the Mansfield rul-
ing in England, the Scottish decision meant that slavery could not
be considered legal in the British Isles. Those legal rulings encour-
aged the formation of societies designed to promote the amelioration
in the condition of slaves, or even advocating the eventual abolition
of the slave trade and slavery.22
Even before the declaration of political independence on the
part of the British North American colonies, slavery was under
attack from a number of religious leaders—among the Quakers
396
The Haitian Revolution and the Notion of Human Rights
and Evangelicals, for example—and political leaders—such as
William Wilberforce [1759–1833], Thomas Clarkson [1760–1846],
and Granville Sharp [1735–1813]. Anti-slavery movements flour-
ished both in the metropolis and in the colonies.23 In 1787, the Abbé
Gregoire [1750–1831], the Abbé Raynal [1713–1796], the Marquis
de Lafayette [1757–1834], and others formed an anti-slavery com-
mittee in France called the Société des Amis des Noirs, which took
up the issue in the recently convened Estates General in 1789 and
later pushed for broadening the basis of citizenship in the National
Assembly.24 Their benevolent proposals, however, were prematurely
overtaken by events.
The intellectual changes throughout the region cannot be sepa-
rated from changes on the ground in the Caribbean. During the
eighteenth century the Caribbean plantation slave societies reached
their apogee. English and French (mostly) absentee sugar producers
made headlines in their respective imperial capitals, drawing the at-
tention of political economists and moral philosophers.25 The most
influential voice was probably that of Adam Smith [1723–1790],
whose Wealth of Nations appeared in the auspicious year of 1776.
Basing his arguments on the comparative costs of production, Smith
insisted “. . . from the experience of all ages and nations, I believe,
that the work done by free men comes cheaper in the end than that
performed by slaves.”26 Slavery, Smith further stated, was both un-
economical and irrational not only because the plantation system
was a wasteful use of land, but also because slaves cost more to
maintain than free laborers.27 Smith did not condemn slavery as
immoral, although, as Jerry Muller points out, Smith thought “eco-
nomic stagnation was coupled with the degradation that goes with
personal dependency.”28
The Caribbean Plantation System
The plantation system had, by the middle of the eighteenth century,
created some strange communities of production throughout the
Caribbean—strange in the sense of being highly artificial constructs
397
T h e J o u r n a l
involving labor inputs from Africa, capital and managerial
direction from Europe, and provisions from mainland America.
These colonies largely produced tropical products such as sugar,
coffee, cotton, and tobacco for overseas markets in Europe, Africa,
and North America. Strange, too, because despite the ideas of Adam
Smith, those coerced Caribbean societies were, at times, enormously
productive as well as profitable.29
Elsewhere I have referred to this unintended consequence of the
sugar revolutions as the development of exploitation societies—a
tiered system of interlocking castes and classes all determined by
the necessities, structure, and rhythm of the sugar plantations.30
French Saint-Domingue prided itself, with considerable justifica-
tion, as being the richest colony in the world. According to David
Geggus, in the 1780s Saint-Domingue accounted for
. . . some 40 percent of France’s foreign trade, its 7,000 or so
plantations were absorbing by the 1790s also 10–15 percent
of United States exports and had important commercial links
with the British and Spanish West Indies as well. On the coastal
plains of this colony little larger than Wales was grown about
two-fifths of the world’s sugar, while from its mountainous
interior came over half the world’s coffee.31
The population reflected the structural distortion of the typical slave
plantation exploitation society in tropical America. A white popu-
lation of approximately 25,000 psychological transients dominated
a social pyramid that included an intermediate subordinate stratum
of approximately the same number of free, black, or miscegenated
persons referred to throughout the French Caribbean colonies as
gens de couleur, and a depressed, denigrated, servile, and exploited
majority group of some 500,000 workers from Africa or of African
descent.32
Those demographic proportions would have been roughly famil-
iar for Jamaica, Barbados, or Cuba during the acme of their slave
plantation regimes.33 The centripetal cohesive force remained the
398
The Haitian Revolution and the Notion of Human Rights
plantations of sugar, coffee, cotton, and indigo, and the subsidiary
activities associated with them, especially cattle-raising and local
food production. The plantations, therefore, molded both local so-
ciety and local economy with a human umbilical cord—the transat-
lantic slave trade—that attached the colony to Africa. Sustained
economic viability depended on the continuous replenishing of the
indispensable labor force by the importation of African slaves.34
Nevertheless, the system was both sophisticated and complex, with
interlocking commercial marketing operations that extended to sev-
eral continents.35
If whites, free coloreds, and slaves formed the three distinct castes
in the French Caribbean colony, then these caste divisions over-
shadowed a complex system of classes with corresponding inter-
nal class antagonisms across all sectors of the society. Among the
whites the class antagonisms were between the successful so-called
grands blancs and their associated hirelings—plantation overseers,
artisans, and supervisors—on the one hand and the so-called pe-
tits blancs—small merchants’ representatives, small proprietors, and
various types of hangers-on—on the other. The antagonism was pal-
pable. At the same time all whites shared varying degrees of fear and
mistrust of the intermediate group of gens de couleur, but especially
the economically upwardly mobile sector of wealth, education, and
polished French culture.36 For their own part, the free non-whites
had seen their political and social abilities increasingly circumscribed
during the two or so decades before the outbreak of revolution. Their
wealth and education certainly placed them socially above the petits
blancs. Yet, theirs was also an internally divided group, albeit with
a division based as much on skin color as on genealogy. All slaves
were distinguished—if that terminology may be employed here—by
their legal condition as the lifetime property of their masters, and
were occasionally subject to extraordinary degrees of daily control
and coercion. Within the slave sector, status divisions derived from
a bewildering number of factors applied in an equally bewilder-
ing number of ways: skills, gender, occupation, location (urban or
399
T h e J o u r n a l
rural, household or field), relationship to production, or simply the
arbitrary whim of the master.37
The slave society was an extremely explosive society, although
the tensions could be, and were, carefully and constantly reduced
by negotiations between and across the various castes.38 While the
common fact of owning slaves might have produced some common
interest across caste lines, that occurrence was neither often enough
nor strong enough to establish class solidarity. White and free col-
ored slave owners were often insensitive to the basic humanity and
civil rights of the slaves but they were forced nevertheless to negoti-
ate continuously the ways in which they operated with their slaves in
order to prevent the collapse of their fragile plantation world. Nor
did similarity of race and color facilitate an affinity between free
non-whites and slaves. Slaves never accepted their legal condemna-
tion, but perpetual militant resistance to the system of plantation
slavery was neither inherent to Saint-Domingue in particular, nor to
the other slave communities of the Caribbean in general.39 Specific
cases of systemic breakdown resulted more from the coincidence
of any combination of circumstances than from an inherent rev-
olutionary disposition of the individual artificial commercial con-
struct. Slave resistance did not appear to be a major preoccupation
of Caribbean slave owners before the Haitian Revolution. In any
case, to see the slave society as precariously poised between polar
extremes of accommodation or resistance is to deny the complex
operational features of that, or any other society.
Haiti, nevertheless, presented the classic case of breakdown. Both
its internal dynamics and its colonial connection provided the per-
fect coincidence of time, place, and circumstances that permanently
shattered the construct of the slave society. Both the context and the
coincidence are vitally important.
Without the outbreak of the French Revolution it is unlikely
that the system in Saint-Domingue would have broken down in
the fateful year of 1789. And while Haiti precipitated the collapse
of the system regionally, it seems fair to say that a system such as
400
The Haitian Revolution and the Notion of Human Rights
the Caribbean slave system bore within itself the seeds of its own
destruction and therefore could not last indefinitely. According to
David Geggus in A Turbulent Time,
More than twenty [slave revolts] occurred in the years 1789-
1832, most of them in the Greater Caribbean. Coeval with the
heyday of the abolitionist movement in Europe and chiefly
associated with Creole slaves, the phenomenon emerged well
before the French abolition of slavery or the Saint-Domingue
uprising, even before the declaration of the Rights of Man.
A few comparable examples occurred earlier in the century,
but the series in question began with an attempted rebellion
in Martinique in August 1789. Slaves claimed that the gov-
ernment in Europe had abolished slavery but that local slave
owners were preventing the island governor from implement-
ing the new law. The pattern would be repeated again and
again across the region for the next forty years and would
culminate in the three large-scale insurrections in Barbados,
1816, Demerara, 1823, and Jamaica, 1831. Together with the
Saint-Domingue insurrection of 1791, these were the biggest
slave rebellions in the history of the Americas.40
In the case of Saint-Domingue—as later in the cases of Cuba and
Puerto Rico—abolition resulted from an economically weakened
and politically isolated metropolis at the end of the eighteenth cen-
tury. But the eventual demise of the slave system resulted from a
complex combination of internal and external factors.
Revolutions in France and Saint-Domingue
The local bases of the colonial slave society as well as the structural
organization of political power could not have been more differ-
ent in France and its overseas Caribbean territories. In France in
1789 the political estates had an extremely long tradition and the
metropolitan social hierarchy was firmly established by genealogy
and antiquity. In colonial Saint-Domingue the political system was
401
T h e J o u r n a l
relatively new and the hierarchy was determined arbitrarily by race
and the occupational relationship to the plantation. Yet the novelty
of the colonial situation did not produce a separate and particular
language reflective of its reality, and the limitations of a common
language (that of the metropolis) created a pathetic confusion with
tragic consequences for both metropolis and colony.
The basic divisions of French society derived from socioeco-
nomic class distinctions, and the popular slogans generated by the
Revolution—Liberty, Equality, and Fraternity as well as the Rights
of Man—did not (and could not) express sentiments equally appli-
cable in both metropolis and colony.41 What is more, the Estates
General, and later the National Assembly, simply could not under-
stand how a common language would divide Frenchmen at home
and overseas. And yet it hopelessly occurred.
The colonies were not homogenous. They were also geograph-
ically and socially distinct. French Saint-Domingue was, in ef-
fect, three separate though contiguous colonies—North Province,
West Province in the center, and South Province—each with its
own administration. The large sugar plantations with their equally
large concentrations of slaves found in North Province were not
typical of West or South Province. The linguistic imagery of the
Revolution resonated differently both by social groups and by
geography.
The linguistic confusion sprung from two situationally differ-
ent foundations. In the first place, the cahiers de doléances of the
colonies represented overwhelmingly not the views of a cross section
of the population, but merely of a small minority, composed in the
main of wealthy plantation owners and merchants, and especially
the absentee residents in France. Moreover, as the French were to
find out eventually, the colony was quite complex geographically
and the wealthy, expatriate planters of the Plaine du Nord were a
distinct numerical minority. The interests and preoccupations of the
middling sorts of West Province and South Province were distinctly
different.
402
The Haitian Revolution and the Notion of Human Rights
In the second place, each segment of the free population accepted
the general slogans of the Revolution to win acceptance in France,
but they then particularized and emphasized only such portions as
applied to their individual causes. The grands blancs interpreted the
Rights of Man as rights and privileges pertaining to bourgeois man,
much as did Thomas Jefferson and the framers of North Ameri-
can independence at Philadelphia in 1776. Moreover, grands blancs
saw liberty not as a private affair but rather as greater colonial
autonomy, especially in economic matters. They also hoped that
the metropolis would authorize more free trade, thereby weakening
the restrictive effects of the mercantilist commerce exclusif with the
mother country. Petits blancs wanted equality, that is, active citizen-
ship for all white persons, not just the wealthy property owners, and
less overall bureaucratic control over the colonies. They also stressed
a curious fraternity based on the accidental whiteness of skin color
that they equated with being genuinely French. Gens de couleur
also wanted equality and fraternity, but they based their claim on
an equality of all free persons regardless of skin color, since they—
even more so than petits blancs—fulfilled all other qualifications
for active citizenship.
Slaves were not part of the initial discussion and sloganeering,
but from their subsequent actions they clearly supported liberty. It
was not the liberty of the whites, or even the free coloreds, how-
ever. Theirs was a personal and individual freedom that potentially
undermined their relationship both to their direct masters and the
plantation on which they lived. This interpretation clearly jeopar-
dized the material wealth and well-being of a considerable number
of those who were already free.42
Both in France and in its Caribbean colonies the course of the
Revolution took strangely parallel paths. In France, as in Saint-
Domingue and the other colonies, the Revolution began with the
calling of the Estates-General to Versailles in the auspicious year of
1789.43 Immediately conflict over form and representation devel-
oped but it affected metropolis and colonies in quite different ways.
403
T h e J o u r n a l
In the metropolis the Estates-General, despite not having met for
175 years, had an ancient (albeit almost forgotten) history and tra-
dition. The various overseas colonists who assumed themselves or
aspired to be Frenchmen and hoped to participate in the metropoli-
tan deliberations as well as the unfolding course of events did not
really share that history and that tradition. In many ways they were
new men created by a new type of society—the overseas plantation
slave society. Those French colonials were quite distinct from the ex-
perience of the planters and slave owners in the English Caribbean.
For example, Edward Long of Jamaica was simultaneously an in-
fluential and wealthy member of English society as well as an estab-
lished Jamaican planter. Bryan Edwards was a long-serving member
of the Jamaica Legislature and after 1796 a legitimate member of
the British Parliament, representing at the same time a metropoli-
tan constituency as well as overseas colonial interests.44 The French
political structure had no room for such duplication.
At first things seemed to be going well for the French colonial
representatives as the Estates-General declared itself a National As-
sembly in May 1789 and the National Assembly proclaimed France
to be a Republic in September 1792. In France “the subsequent his-
tory of armed rebellion reveals a seemingly irresistible drive toward
a strong, central executive. Robespierre’s twelve-man Committee of
Public Safety (1793–94), gave way to a five-man Directorate (1795–
99), then to a three-man Consulate, followed by the designation of
Napoleon as First Consul in 1799, and finally to Napoleon’s coro-
nation as emperor in 1804.”45 In the colonies the same movement
is discernible with a significant difference—at least in the provinces
of Saint-Domingue. There the consolidation of power during the
period of armed rebellion gravitated toward non-whites and ended
up in the hands of slaves and ex-slaves or their descendants.
Seen another way, the political structure of metropolis and colony
diverged in two crucial ways. In the first place the metropolis moved
toward an increasingly narrow hierarchical structure of power even
as the state moved away from dynastic succession to national
404
The Haitian Revolution and the Notion of Human Rights
administration in a declared republic, while in the colonies,
especially in Saint-Domingue, power gravitated democratically
downward to the actual majority of the population. In the second
place the metropolis pursued a policy of political exclusion elim-
inating royalists, but seeking to expand the power base as well as
privileges of the bourgeoisie. In the colonies, however, once the slave
revolt broke out the quest was for a leveling or elimination of all dis-
tinctions of social class and political power—although this was not
an idea universally accepted at the beginning of the revolt. Clearly, as
Laurent Dubois points out, the new citizens of the French Caribbean
colonies expanded the political conception of the Enlightenment by
enfranchising a group of individuals whose inclusion vastly enlarged
the conventional idea of universal rights.46
With the colonial situation far too confusing for the metropolitan
legislators to resolve easily, the armed revolt in the colonies started
with an attempted coup by the grands blancs in the North who re-
sented the petits blancs-controlled Colonial Assembly of St. Marc (in
West Province) writing a constitution for the entire colony in 1790.
Both white groups armed their slaves and prepared for war in the
name of the Revolution in France.47 When, however, the National
Assembly passed the May Decree of 1791 enfranchising propertied
mulattos, the whites temporarily forgot their class differences and
forged an uneasy alliance to forestall what to them appeared to be
a more serious revolutionary threat of racial equality.
The determined desire of the free non-whites to make a military
stand to secure their rights—also arming their slaves for war—made
the impending civil war in the colony inevitably a racial war.
The precedence set by the superordinate free groups was not lost
on the slaves who comprised the overwhelming majority of the pop-
ulation. If slaves could fight in separate causes for the antagonistic
free sectors of the population, white as well as non-white, they could
fight equally on their own behalf. And so they did. Violence, first
employed by the whites, became the common currency of political
change. Finally in August 1791 after warring for almost a year on
405
T h e J o u r n a l
one or another side of free persons who claimed they were fighting
for liberty, the slaves of the Plain du Nord applied their fighting to
their own cause. And once they had started they refused to settle
for anything less than full freedom for themselves. When it became
clear that their emancipation could not be sustained within the colo-
nial political system, they created an independent state in 1804 to
secure that freedom. It was the logical extension of the collective
slave revolt that began in 1791.
But before that could happen, Saint-Domingue experienced a pe-
riod of chaos between 1792 and 1802. At one time as many as six
warring factions were in the field simultaneously: slaves, free per-
sons of color, petits blancs, grands blancs, plus invading Spanish
and English troops in addition to the French forces vainly trying
to restore order and control. Alliances were made and dissolved
in opportunistic succession. As the killing increased, power slowly
gravitated to the overwhelming majority of the population—the
former slaves no longer willing to continue their servility. After
1793 under the control of Toussaint Louverture, himself an ex-
slave and ex-slave-owner, the tide of war turned inexorably, assuring
the victory of the concept of liberty held by the slaves.48 That was
duly, if temporarily, ratified by the National Assembly in September
1793. But that was neither the end of the fighting nor the end of
slavery.
The victory of the slaves in 1793 was, ironically, a victory for
colonialism and the Revolution in France. The leftward drift of the
Revolution and the implacable zeal of its colonial administrators,
especially the Jacobin commissioner, Léger Félicité Sonthonax, to
eradicate all traces of counterrevolution and Royalism—which he
identified with the whites—in Saint-Domingue facilitated the ulti-
mate victory of the blacks over the whites.49 Sonthonax’s role, how-
ever, does not detract from the brilliant military leadership and polit-
ical astuteness provided by Toussaint Louverture. In 1797 he became
governor-general of the colony and in the next four years expelled
all invading forces (including the French) and gave the colony a
406
The Haitian Revolution and the Notion of Human Rights
remarkably modern and egalitarian constitution. He also suppressed
(but failed to eradicate) the revolt of the free coloreds led by André
Rigaud and Alexander Pétion in the South, and captured the neigh-
boring Spanish colony of Santo Domingo, freeing its small number
of slaves. Saint Domingue became a new society of equals with a
new political structure as an independent state. As a reward, Tous-
saint Louverture made himself governor-general for life (July 1801)
much to the displeasure of Napoleon Bonaparte.
The Distinctiveness of the Haitian Revolution
Why did the revolution follow such a unique course in Saint
Domingue that eventually culminated in the abolition of slavery?
Carolyn Fick presents a plausible explanation when she writes:
It can be argued therefore that the abolition of slavery in
Saint Domingue resulted from a combination of mutually re-
inforcing factors that fell into place at a particular historical
juncture. No single factor or even combination of factors –
including the beginning of the French Revolution with its cat-
alytic ideology of equality and liberty, the colonial revolt of the
planters and the free coloreds, the context of imperial warfare,
and the obtrusive role of a revolutionary abolitionist as civil
commissioner – warranted the termination of slavery in Saint
Domingue in the absence of independent, militarily organized
slave rebellion . . .
From the vantage point of revolutionary France the aboli-
tion of slavery seems almost to have been a by-product of the
revolution and hardly an issue of pressing concern to the na-
tion. It was Sonthonax who initiated the abolition of slavery
in Saint Domingue, not the Convention. In fact, France only
learned that slavery had been abolished in Saint Domingue
when the colony’s three deputies, Dufay, Mills, and Jean-
Baptiste Mars Bellay (respectively, a white, a mulatto, and a
former free black), arrived in France in January, 1794 to take
407
T h e J o u r n a l
their seats and asked on February 3 that the Convention offi-
cially abolish slavery throughout the colonies . . . .
The crucial link then, between the metropolitan revolution
and the black revolution in Saint Domingue seems to reside
in the conjunctural and complementary elements of a self-
determined, massive slave rebellion, on the one hand, and the
presence in the colony of a practical abolitionist in the person
of Sonthonax, on the other.50
Such “conjunctural and complementary elements” did not appear
elsewhere in the Americas—not even in the neighboring French
colonies of Martinique and Guadeloupe.
The reality of a politically semi-free Saint Domingue with a free
black population ran counter to the grandiose dreams of Napoleon
to reestablish a viable French American empire. It also created what
Anthony Maingot called a “terrified consciousness” among the rest
of the slave masters in the Americas. Driven by his desire to restore
slavery and his demeaning disregard of the local population and its
leaders, Napoleon sent his brother-in-law General Charles Victor
Emmanuel Leclerc with about 10,000 of the finest French troops in
1802 to accomplish his aim. It turned out to be a disastrously fu-
tile gesture. Napoleon ultimately lost the colony, his brother-in-law,
and most of the 44,000 fine troops eventually sent out to conduct
the savage and bitter campaign of reconquest. Although he treach-
erously spirited Toussaint Louverture away to exile and premature
death in France, Jean-Jacques Dessalines declared the independence
of Haiti on January 1, 1804.
Haiti, the Caribbean, and the Americas would never be the same
as before that portentous slave uprising of 1791. The idea of liberty
as a fundamental principle of human rights slowly took life among
slaves in the Americas.51
The Impact of the Haitian Revolution
The impact of the revolution was immediate and widespread. The
anti-slavery fighting immediately spawned unrest throughout the
408
The Haitian Revolution and the Notion of Human Rights
region, especially in communities of Maroons in Jamaica, and
among slaves in St. Kitts. It sent a wave of immigrants flooding
outward to the neighboring islands, and to the United States of
America and Europe. It revitalized agricultural production in Cuba
and Puerto Rico. As Alfred Hunt shows, Haitian emigrants also pro-
foundly affected American language, religion, politics, culture, cui-
sine, architecture, medicine, and the North American conflict over
slavery, especially in Louisiana.52 Most of all, it deeply affected the
psychology of the whites throughout the Atlantic world. The Haitian
Revolution undoubtedly accentuated sensitivity to race, color, and
status across the Caribbean.
Among the political and economic elite of the neighboring
Caribbean states the example of a black independent state as a viable
alternative to the legally recognized Maroon communities compli-
cated their domestic relations. The predominantly non-white lower
orders of society might have admired the achievement in Haiti, but
they were conscious that such an example could not be easily dupli-
cated. “Haiti represented the living proof of the consequences of not
just black freedom,” wrote Anthony Maingot, “but, indeed, black
rule. It was the latter which was feared; therefore, the former had
to be curtailed if not totally prohibited.”53
The favorable coincidence of time, place, and circumstances that
produced a successful Haiti failed to materialize again elsewhere.
For the rest of white America, the cry of “Remember Haiti” proved
an effective way to restrain exuberant local desires for political lib-
erty, especially in slave societies. Indeed, the long delay in achieving
Cuban political independence can largely be attributed to astute
Spanish metropolitan use of the “terrified consciousness” of the
Cuban Creoles regarding what had happened in Saint Domingue
between 1789 and 1804.54
Nevertheless, after 1804 it would be difficult for the local politi-
cal and economic elite to continue the complacent status quo of the
middle of the eighteenth century. Haiti cast an inevitable shadow
over all slave societies. Anti-slavery movements grew stronger
409
T h e J o u r n a l
and bolder, especially in Great Britain, and the colonial slaves
themselves became increasingly more restless. Most important, in
the Caribbean the whites lost the supreme confidence that they had
before 1789 about their ability to maintain the slave system indef-
initely. In 1808 the British abolished their transatlantic slave trade
and dismantled the British colonial slave system between 1834 and
1838. During that time free non-whites (and Jews) were given po-
litical equality with whites in many colonies. The French abolished
their slave trade in 1818 and their slave system, reconstituted after
1803 in Martinique and Guadeloupe, limped on until 1848. Both
British and French imperial slave systems—as well as the Dutch and
the Danish—were dismantled administratively from the center of
their respective empires. The same administrative dismantling could
be used to describe the process for the mainland Spanish American
states and Brazil. Slavery in the United States ended abruptly in a
disastrous civil war. Spain abolished slavery in Puerto Rico (where
it was not vitally important) in 1873. The Cuban case, where slav-
ery was extremely important, proved far more difficult and also
resulted in a long, destructive civil war before emancipation was fi-
nally accomplished in 1886. By then, however, it was not the Haitian
revolution but Haiti itself that evoked negative reactions among its
neighbors.55
The Haitian Revolution and Human Rights
The great but frequently overlooked contribution of the Haitian
Revolution lies in its fundamental articulation of the notion of hu-
man rights, not just in Haiti but also throughout the world. Haiti
was the first country to articulate a general principle of common,
unqualified equality for all its citizens, although special privileges
remained for soldiers and the political elite. Nevertheless, the fun-
damental concept of a common humanity ran deeply through the
early Haitian constitutions.
Europeans thought in terms of civil rights rather than general
human rights. They assumed that the civil state was analogous
410
The Haitian Revolution and the Notion of Human Rights
to the body and that each component had attributes from which
certain differential privileges derived. Viewed this way, society be-
came irreversibly ranked hierarchically, and non-Europeans as well
as women, children, the mentally handicapped, and the socially
delinquent remained irrevocably inferior to all European men. It
was this notion that permeated the constitution of the United States
and made problematic the incorporation of free non-Europeans in
the emerging state until well into the twentieth century.
Haitians to various degrees thought everyone in the state—
regardless of gender, rank, occupation, color, or place of origin—
was equal. They sought to construct a state and a constitution to
reflect this. They sought, as Laurent Dubois terms it, “a colony of
citizens.”56 By declaring that all Haitians were black as well as free
they sought—unsuccessfully but conscientiously—to remove race
and color as fundamental criteria of nationalism, or as the French
described it at the time, “citizenship.” That they failed to implement
their ideas does not indicate that those ideas were either absent or
flawed. They were, like so many other good ideas, articulated too
far ahead of their time. The ideas foundered miserably against the
harsh pragmatic necessity of establishing a viable administration
in a war-ravaged state constantly threatened by hostile and envi-
ous neighbors. In the long run, Haiti did not have the power and
resources to impose itself politically and militarily on the Atlantic
World.
The failure of the Haitians to elevate human rights over civil rights
would be repeated many times in many places around the globe, not
only by aspiring states but also by idealistic organizations. One of
the most poignant cases was that of the National Association for
the Advancement of Colored People (NAACP) in the United States,
as meticulously recounted in the recent brilliant book by historian
Carol Anderson, Eyes Off the Prize: The United Nations and the
African American Struggle for Human Rights, 1944–1955.57 After
the Second World War the United Nations articulated a charter for
human rights, a notion still actively debated. A century and a half
411
T h e J o u r n a l
before the Haitians tried to do the same in their constitutions. The
bold Haitian example should neither be forgotten nor lost as we
enter the third century of Haitian independence.
NOTES
1. The bibliography on the Haitian Revolution is large and growing. For a sample
see Colin Blackburn, The Overthrow of Colonial Slavery, 1776–1848 (London:
Verso Press, 1988); Philip D. Curtin, “The Declaration of the Rights of Man in
Saint-Domingue, 1788–1791,” Hispanic American Historical Review, 30, 2 (May
1950), 157–75; David Brion Davis, The Problem of Slavery in the Age of Revo-
lution 1770–1823 (Ithaca: Cornell University Press, 1975), 27–179; Alex Dupuy,
Haiti in the World Economy: Class, Race, and Underdevelopment Since 1700
(Boulder: Westview Press, 1989); Carolyn Fick, The Making of Haiti: The Saint
Domingue Revolution from Below (Knoxville, TN: The University of Tennessee
Press, 1990); John Garrigus, “A Struggle for Respect: The Free Coloreds in Pre-
Revolutionary Saint Domingue, 1760–69,” unpublished Ph.D. dissertation, The
Johns Hopkins University, 1988; David Geggus, Slavery, War, and Revolution: The
British Occupation of Saint Domingue 1793–1798 (Oxford: Oxford University
Press, 1982); David Geggus, “The Haitian Revolution,” The Modern Caribbean,
edited by Franklin W. Knight and Colin A. Palmer (Chapel Hill, NC: The Univer-
sity of North Carolina Press, 1989), 21–50; Eugene D. Genovese, From Rebellion
to Revolution: Afro-American Slave Revolts in the Making of the Modern World
(Baton Rouge, LA: Louisiana State University Press, 1979); François Girod, De la
société Créole. Saint-Domingue au XVIIIe Siècle (Paris: Hachette, 1972); Robert
Debs Heinl and Nancy Gordon Heinl, Written in Blood: The Story of the Haitian
People 1492–1971 (Boston: Houghton Mifflin, 1978); Alfred N. Hunt, Haiti’s
Influence on Antebellum America: Slumbering Volcano in the Caribbean (Baton
Rouge, LA: Louisiana State University Press, 1988); C. L. R. James, The Black
Jacobins: Toussaint L’Ouverture and the San Domingo Revolution (New York:
Random House, 1963. First published in 1938.); David Nicholls, From Dessalines
to Duvalier: Race, Colour and National Independence in Haiti (Cambridge: Cam-
bridge University Press, 1979); Thomas O. Ott, The Haitian Revolution 1789–
1804 (Knoxville, TN: The University of Tennessee Press, 1973); George Tyson, Jr.,
ed., Toussaint L’Ouverture (Englewood Cliffs, NJ: Prentice Hall, 1973); M.L.E.
Moreau de Saint Méry, Description topographique, physique, civil, politique et
historique de la partie Française de l’isle de Saint Domingue (Philadelphia: Chez
auteur, 1796); P, My Odyssey: Experiences of a Young Refugee from Two Rev-
olutions, edited and translated by Althéa de Peuch Parham (Baton Rouge, LA:
Louisiana State University Press, 1959), and Alyssa G. Sepinwall, The Abbé Gre-
goire and the French Revolution: The Making of Modern Universalism (Berkeley:
University of California Press, 2005). The best studies to date of the Caribbean
aspects of the French Revolution, however, are Laurent Dubois, A Colony of Cit-
izens: Revolution and Slave Emancipation in the French Caribbean, 1787–1804
(Chapel Hill, NC: University of North Carolina Press, 2004), and Laurent Dubois,
Avengers of the New World: The Story of the Haitian Revolution (Cambridge,
MA: Harvard University Press, 2004).
2. See especially, Jorge I. Domı́nguez, Insurrection or Loyalty: The Breakdown of
the Spanish American Empire (Cambridge: Harvard University Press, 1980), 146–
69; Lester D. Langley, The Americas in the Age of Revolution, 1750–1850 (New
Haven: Yale University Press, 1996), 159–77.
3. Dubois, Avengers of the New World; David P. Geggus, ed. The Impact of the
Haitian Revolution in the Atlantic World (Columbia, SC: University of South
Carolina Press, 2001); and David Barry Gaspar and David Patrick Geggus, eds., A
412
The Haitian Revolution and the Notion of Human Rights
Turbulent Time: The French Revolution and the Greater Caribbean (Bloomington:
Indiana University Press, 1997).
4. See R. R. Palmer, The Age of the Democratic Revolution 2 vols. (Princeton: Prince-
ton University Press, 1959); Lester D. Langley, The Americas in the Age of Revo-
lution 1750–1850 (New Haven: Yale University Press, 1996); James H. Billington,
Fire in the Minds of Men: Origins of Revolutionary Faith (New York: Basic Books,
1980).
5. For an example see Alyssa Goldstein Sepinwall, The Abbé Gregoire and the French
Revolution.
6. Franklin W. Knight, “The Disintegration of the Slave Systems, 1772–1886,” Gen-
eral History of the Caribbean, Volume III The Slave Societies of the Caribbean,
edited by Franklin W. Knight (London: UNESCO/Macmillan, 1997), 322–
45.
7. A case in point is England, where the revolutionary situation was defused through
reformist politics.
8. The phrase is taken from the title of A Turbulent Time: The French Revolution and
the Greater Caribbean, edited by David Barry Gaspar and David Patrick Geggus
(Bloomington: Indiana University Press, 1997).
9. Quoted in J. H. Parry, Philip Sherlock, and Anthony Maingot, A Short History of
the West Indies 4th edition (New York: St. Martin’s Press, 1987), 136.
10. The quest for individual and collective freedom was widespread among all slaves
and occasionally new views of society and social relations embraced both slave
and free, but rarely did these revolts involve the establishment of a state as in the
case of Haiti. In Coro in western Venezuela, a free republic was declared in 1795
that would have fundamentally altered the social status quo but it had a very short
existence. See Domı́nguez, Insurrection or Loyalty, 55–56, 151–60, and Geggus,
Impact of the Haitian Revolution.
11. It is uncertain why the Haitians selected this name for their new country. It rep-
resented one of the pre-Hispanic chiefdoms that existed on Hispaniola of which
the population in 1804 presumably had no connected memory. It is interesting
symbolically that the Haitians would choose an indigenous American rather than
an African name for their new state.
12. Orlando Patterson, Slavery and Social Death: A Comparative Study (Cambridge,
MA: Harvard University Press, 1982). The idea may also be found in Fick, Making
of Haiti, 27: “To assure the submission of slaves and the mastership of the owners,
slaves were introduced into the colony and eventually integrated into the planta-
tion labor system within an overall context of social alienation and psychological,
as well as physical violence. Parental and kinship ties were broken; their names
were changed; their bodies were branded with red-hot irons to designate their new
owners; and the slave who was once a socially integrated member of a structured
community in Africa had, in a matter of months, become what has been termed
a ‘socially dead person.’” It is hard to accept such a totally nullifying experience
for Africans in the Americas for two reasons. The first is that Africans constructed
the new American communities along with their non-African colonists, and per-
manently endowed the new creations with a wide array of influences from speech
to cuisine, to music, to new technology. The various bodies of slave laws were a
patent recognition that although slaves were property, they were also people requir-
ing severe police control measures. Non-Africans established social contacts with
them and their mating produced a mélange of demographic hybridity throughout
the Americas. In the second place, Africans produced offspring in the Americas
and these formed viable communities everywhere—communities that were duly
recognized in law and custom. For a remarkable case of achievement and upward
social mobility see Marı́a Elena Dı́az, The Virgin, the King, and the Royal Slaves of
El Cobre: Negotiating Freedom in Colonial Cuba, 1670–1780 (Stanford: Stanford
University Press, 2000). The development of viable Afro-American communities
throughout the Americas does not in any way negate the fact that slavery was a
413
T h e J o u r n a l
de-humanizing experience permeated with violence and exploitation. Nevertheless,
the imagery of “social death” greatly exaggerates and does harmful violence to the
reality of enslaved people in the Americas.
13. Alex Dupuy, Haiti, 55–57.
14. Franklin W. Knight, The Caribbean: The Genesis of a Fragmented Nationalism,
2nd edition (New York: Oxford University Press, 1990), 196–219.
15. See John Lynch, The Spanish-American Revolutions, 1808–1826 (New York:
Norton, 1973).
16. Langley, Americas in the Age of Revolution, 196–200.
17. See Gaspar and Geggus, A Turbulent Time.
18. These changes have been examined more thoroughly in Atlantic Port Cities: Econ-
omy, Culture, and Society in the Atlantic World, 1650–1850, edited by Franklin
W. Knight and Peggy K. Liss (Knoxville, TN: University of Tennessee Press, 1991).
19. While there is a wide range of opinion on exactly when the Enlightenment started,
there is better consensus on what it was: a major demarcation in the emergence of
the modern age and the French Revolution. See Franco Venturi, The End of the Old
Regime in Europe 1768–1776: The First Crisis, translated by R. Burr Litchfield
(Princeton: Princeton University Press, 1989); Peter Gay, The Enlightenment; An
Interpretation, 2 vols. (New York: Knopf, 1967–69).
20. See David Brion Davis, The Problem of Slavery in Western Culture (Ithaca: Cornell
University Press, 1966), especially, 391–445.
21. Peggy K. Liss, Atlantic Empires: The Network of Trade and Revolution, 1713–
1826 (Baltimore: Johns Hopkins University Press, 1983), 105–26.
22. Blackburn, The Overthrow of Colonial Slavery, 99–100.
23. Duncan J. MacLeod, Slavery, Race and the American Revolution (London: Cam-
bridge University Press, 1974).
24. Ruth F. Necheles, The Abbé Grégoire, 1787–1831: The Odyssey of an Egalitarian
(Westport, CT: Greenwood Publishing, 1971), 71–90.
25. See, for example, Eric Williams, Capitalism and Slavery (Chapel Hill, NC: Uni-
versity of North Carolina Press, 1944); Robert Louis Stein, The French Sugar
Business in the Eighteenth Century (Baton Rouge, LA: Louisiana State University
Press, 1988); and Patrick Villiers, “The Slave and Colonial Trade in France just
before the Revolution,” in Slavery and the Rise of the Atlantic System, edited by
Barbara L. Solow (Cambridge; Cambridge University Press, 1991), 210–36.
26. Adam Smith, The Wealth of Nations (Abbreviated edition. New York: Penguin
Books, 1974. First published 1776), 184.
27. The debate over relative labor costs of free and enslaved workers has not ter-
minated. See Did Slavery Pay?, edited by Hugh G. J. Aitken (Boston: Houghton
Mifflin, 1971); Robert Fogel and Stanley L. Engerman, Time on the Cross: The
Economics of American Negro Slavery (Boston: Little Brown, 1974).
28. Jerry Z. Muller, Adam Smith in His Time and Ours: Designing the Decent Society
(New York: The Free Press, 1993), 121. The extract is by Muller, not Adam Smith.
29. Except for tobacco, the primary export crops were all introduced into the Americas
by Europeans. Sugar cane came from India via the Mediterranean and the African
Atlantic Islands. Coffee was Arabian in origin. Cotton was Egyptian.
30. For a description of settler and exploitation societies see Knight, The Caribbean,
74–82. This did not indicate that sugar production was the only economic activity
or that all the Caribbean islands concentrated on sugar production. It did mean
that sugar production and its collateral activities dominated the trades and eco-
nomic calculations of metropolises and colonies during that period. B.W. Higman
has examined the history and use of the term “sugar revolutions” in “The Sugar
Revolution,” Economic History Review, 53:2 (May, 2000): 213–36.
31. Geggus, Slavery, War, and Revolution, 6.
32. The demographic proportions varied considerably throughout the Caribbean. For
figures see Knight, Caribbean, 366–367.
33. Knight, Caribbean, 120–58.
414
The Haitian Revolution and the Notion of Human Rights
34. See Philip D. Curtin, The Atlantic Slave Trade: A Census (Madison, WI: University
of Wisconsin Press, 1969); John Thornton, Africa and Africans in the Formation of
the Atlantic World, 1450–1680 (Cambridge: Cambridge University Press, 1992);
Colin A. Palmer, Human Cargoes: The British Slave Trade to Spanish America,
1700–1739 (Urbana: University of Illinois Press, 1981); Herbert S. Klein, African
Slavery in Latin America and the Caribbean (New York: Oxford University Press,
1986); Paul E. Lovejoy, “The Volume of the Transatlantic Slave Trade: A Synthesis”
Journal of African History, 23,4 (1982): 473–501; David Eltis, Economic Growth
and the Ending of the Transatlantic Slave Trade (New York: Oxford University
Press, 1987).
35. See Slavery and the Rise of the Atlantic System, edited by Barbara L. Solow (New
York: Cambridge University Press, 1991); The Atlantic Slave Trade: Effects on
Economies, Societies, and Peoples in Africa, the Americas, and Europe, edited
by Joseph E. Inikori and Stanley L. Engerman (Durham, NC: Duke University
Press, 1992); The Uncommon Market: Essays in the Economic History of the
Atlantic Slave Trade, edited by Henry A. Gemery and Jan S. Hogendorn (New
York: Academic Press, 1979).
36. Garrigus, “A Struggle for Respect.” See also, Stewart R. King, Blue Coat or Pow-
dered Wig: Free People of Color in Pre-Revolutionary Saint Domingue (Athens,
GA: The University of Georgia Press, 2001).
37. Regardless of the extreme degree of coercion it is fatuous to insist that slavery
obliterated from Africans and their descendants the ability to be creative, so-
cially active, and even to establish some modicum of self-respect and economic
status. See Roderick A. McDonald, The Economy and Material Culture of Slaves:
Goods and Chattels on the Sugar Plantations of Jamaica and Louisiana (Baton
Rouge, LA: Louisiana State University Press, 1993), and especially its excellent
bibliography.
38. Philip D. Curtin, The Rise and Fall of the Plantation Complex: Essays in Atlantic
History (New York: Cambridge University Press, 1990), 103–10, 160–69.
39. Michael Craton, Testing the Chains: Resistance to Slavery in the British West Indies
(Ithaca: Cornell University Press, 1982).
40. David Patrick Geggus, “Slavery, War and Revolution in the Greater Caribbean,”
in Gaspar and Geggus, A Turbulent Time, 7–8.
41. Curtin, “The Declaration of the Rights of Man,” 157–75.
42. Curtin, “The Declaration of the Rights of Man”; Ott, The Haitian Revolution,
28–75.
43. The French Revolution may be followed in, inter alia, Simon Schama, Citizens: A
Chronicle of the French Revolution (New York: Knopf, 1989); Leo Gershoy, The
French Revolution, 1789–1799 (New York Holt, Rinehart, Winston, 1960); Albert
Soboul, The French Revolution, 1787–1799: From the Storming of the Bastille to
Napoleon, translated from the French by Alan Forest and Colin Jones, with a
new introduction by Gwynne Lewis (London: Unwin Hyman, 1989); Gaetano
Salvemini, The French Revolution, 1788–1792, translated from the French by I.
M. Rawson (New York: Holt, 1954).
44. On Long and Edwards see Edward Brathwaite, The Development of Creole Society
in Jamaica, 1770–1820 (Clarendon: Oxford University Press, 1971), 73–79; Elsa
Goveia, A Study on the Historiography of the British West Indies to the End of
the Nineteenth Century (Mexico: Instituto Panamericano de Geogafı́a é Historia,
1956), 53–63.
45. James H. Billington, Fire in the Minds of Men: Origins of the Revolutionary Faith
(New York; Basic Books, 1980), 22.
46. Dubois, A Colony of Citizens, 250–66.
47. Carolyn Fick, “The French Revolution in Saint-Domingue: A Triumph or a Fail-
ure?” in Gaspar and Geggus, A Turbulent Time, 53–55.
48. Toussaint Louverture always wrote his name without an apostrophe although many
French and non-French writers have, for reasons unknown, used L’Ouverture.
415
T h e J o u r n a l
49. Robert L. Stein, Léger Félicité Sonthonax: The Lost Sentinel of the Republic
(Rutherford, NJ: Farleigh Dickinson University Press, 1985).
50. Fick, “The French Revolution,” 67–69.
51. Anthony P. Maingot, “Haiti and the Terrified Consciousness of the Caribbean,”
in Ethnicity in the Caribbean, edited by Gert Oostindie (London: Macmillan Edu-
cation Ltd., 1996), 53–80.
52. Hunt, Haiti’s Influence on Antebellum America.
53. Maingot, “Haiti”, 56–57.
54. For the “Africanization of Cuba scare” see Arthur F. Corwin, Spain and the Abo-
lition of Slavery in Cuba, 1817–1886 (Austin: University of Texas Press, 1967),
115–21; Philip S. Foner, A History of Cuba and its Relation with the United States
2 volumes. (New York: International Publishers, 1963), II, 45–85; Luis Martı́nez-
Fernández, Torn Between Empires: Economy, Society, and Patterns of Political
Thought in the Hispanic Caribbean, 1840–1878 (Athens, GA: University of Geor-
gia Press, 1994), 33–40; Robert L. Paquette, Sugar is Made with Blood: The Con-
spiracy of La Escalera and the Conflict between Empires over Slavery in Cuba
(Middletown: Wesleyan University Press, 1988), 184–186, 265–266; Gerald E.
Poyo, “With All and for the Good of All”: The Emergence of Popular National-
ism in the Cuban Communities of the United States, 1848–1899 (Durham, NC:
Duke University Press, 1989), 6–7, 86. For the impact of the Haitian Revolution
elsewhere in the Caribbean see Philip D. Curtin, Two Jamaicas: The Role of Ideas
in a Tropical Colony, 1830–1865 (New York: Atheneum, 1970. First published in
1952.); H. P. Jacobs, Sixty Years of Change, 1806–1866: Progress and Reaction in
Kingston and the Countryside (Kingston: Institute of Jamaica, 1973), 12–37; Brid-
get Brereton, A History of Modern Trinidad, 1783–1962 (Kingston: Heinemann,
1981), 25–51; Hilary Beckles, A History of Barbados (Cambridge: Cambridge Uni-
versity Press, 1990), 78–79; Edward L. Cox, Free Coloreds in the Slave Societies of
St. Kitts and Grenada, 1763–1833 (Knoxville, TN: University of Tennessee Press,
1984), 76–100; Frank Moya Pons, The Dominican Republic: A National His-
tory (New Rochelle, NY: Hispaniola Books, 1995), 91–164; Valentin Peguero and
Danilo de los Santos, Visión General de la Historia Dominicana (Santo Domingo:
Editorial Corripio, 1978), 125–78.
55. See Aline Helg, Our Rightful Share: The Afro-Cuban Struggle for Equality, 1886–
1912 (Chapel Hill, NC: University of North Carolina Press, 1995).
56. Dubois, A Colony of Citizens: Revolution and Slave Emancipation in the French
Caribbean, 1787–1804.
57. Carol Anderson, Eyes Off the Prize: The United Nations and the African American
Struggle for Human Rights, 1944–1955 (New York: Cambridge University Press,
2003).
416
Universalizing Human Rights: The Role of Small States in the
Construction of the Universal Declaration of Human Rights
Susan Eileen Waltz
Human Rights Quarterly, Volume 23, Number 1, February 2001, pp. 44-72
(Article)
Published by Johns Hopkins University Press
DOI:
For additional information about this article
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https://doi.org/10.1353/hrq.2001.0012
https://muse.jhu.edu/article/13764
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https://muse.jhu.edu/article/13764
HUMAN RIGHTS QUARTERLY
Human Rights Quarterly 23 (2001) 44–72 © 2001 by The Johns Hopkins University Press
Universalizing Human Rights:
The Role of Small States in the
Construction of the Universal
Declaration of Human Rights
Susan Waltz*
I. INTRODUCTION
In the fifty years that have passed since the United Nations General
Assembly approved the Universal Declaration of Human Rights (UDHR),1
literally hundreds of books on the subject of human rights have come to fill
the shelves of major university libraries in the United States and around the
world. Human rights has claimed the attention of scholars in several
disciplines, and the notion is alternatively approached as a philosophical
idea, a legal concept, or a political project. Human rights readily finds a
home in Western political philosophy, where theories of natural rights and
social contract are well-anchored and help elaborate the modern concept of
human rights. This concept has also been discussed in comparative
philosophical frameworks.2 Human rights as a legal concept is part of the
bedrock of contemporary international law, and neither legal scholarship
* Susan Waltz is Professor of Public Policy at the Gerald School of Public Policy at the
University of Michigan. From 1993–1999, she was a member of the International Executive
Committee of Amnesty International, and from 1996–1998, she was chairperson of that
governing board. She is author of Human Rights and Reform: Changing the Face of North
African Politics (University of California Press, 1995).
1. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),
U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948), reprinted in
43 AM. J. INT’L L. 127 (Supp. 1949) [hereinafter UDHR].
2. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (1989); JOHAN GALTUNG, HUMAN
RIGHTS IN A ANOTHER KEY (1994); ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND
POLITICS (1995); HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS
(Abdullahi Ahmed An-Na’im ed., 1991); Michael Freeman, The Philosophical Founda-
tions of Human Rights, 16 HUM. RTS. Q. 491 (1994).
2001 Universalizing Human Rights 45
nor discussion of the international implementation mechanisms (and their
flaws) is wanting. The study of international human rights as a political
project, however, has been relatively neglected. A political project refers to
concerted efforts to build a public and worldwide consensus around the
idea of human rights, including political strategies, diplomatic initiatives,
agreement of explicit principles, and conclusion of an international accord.3
The field of international relations is the most natural disciplinary home for
such inquiry, but until the 1970s, the paradigmatic attachment to the notion
of sovereignty excluded virtually all treatment of human rights. Scholars in
international relations tended to view concern with human rights as a matter
of domestic governance, and thus out of their domain. It was only with
discussions of transnationalism, international regimes, and the limits to
political realism that human rights began its slow creep into that literature.4
Political analyses of international human rights began to appear in the late
1980s, and today they are complemented by a growing body of writings
about the construction of international human rights as a political project.5
As this article will demonstrate, recent scholarship on the political
origins of the Universal Declaration has proved enlightening. Efforts to
account for both inspiration and political motivation have taken several
scholars deep into archives, and in the process several forgotten or obscured
facts have been unearthed. As the erstwhile unproblematic history of the
UDHR has been reconstructed, it has become more complex, and more
nuanced. One of the subtle but powerful truths to emerge is that no single,
straightforward story about the origins, shape, and content of the Interna-
tional Bill of Rights can be told.6
3. I have borrowed this term from Tony Evans, whose usage is similar. See TONY EVANS, US
HEGEMONY AND THE PROJECT OF UNIVERSAL HUMAN RIGHTS (1996).
4. The evolution of this literature can be traced over several decades through publications
in journals such as International Organization, World Politics, International Studies
Quarterly, and Millenium.
5. See DONNELLY, supra note 2; R.J. VINCENT, HUMAN RIGHTS AND INTERNATIONAL RELATIONS (1986);
DAVID P. FORSYTHE, THE INTERNATIONALIZATION OF HUMAN RIGHTS (1991) [hereinafter FORSYTHE,
INTERNATIONALIZATION]; HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY
TOWARD LATIN AMERICA (1981); DAVID P. FORSYTHE, HUMAN RIGHTS AND U.S. FOREIGN POLICY:
CONGRESS RECONSIDERED (1988).
6. The Universal Declaration of Human Rights together with the International Covenant on
Civil and Political Rights and the International Covenant on Social, Economic, and
Cultural Rights comprise the “International Bill of Rights.” For many months between
1946 and 1948 there was active debate about whether or not to have a single document
and the exact form any document(s) should take. After the Declaration was acclaimed
in 1948, debate continued as to whether there should one or two main treaties. Largely
due to pressures from the United States—whose own internal political landscape had
changed dramatically from 1945 to 1952—the covenants were split. See EVANS, supra
note 3, at 89–92.
In this article, the term “international bill of rights” has two meanings: (1) when
capitalized, this term refers to the three documents, namely the UDHR, ICCPR, and
Vol. 2346 HUMAN RIGHTS QUARTERLY
This article focuses on the little known story of the contribution of small
states. To orient readers, it begins with a review of the familiar accounts, the
scholarship at our disposal, and the historical treatment that gave rise to the
UDHR. Four distinct roles of small states are then discussed. In the most
minimal role, small state delegations bore witness to the proceedings that
produced the text of the UDHR; their representatives also participated
actively in the debates. Delegates from certain small powers accepted vital
leadership roles; on some issues they fought hard to see their concerns
reflected in the final text. After this systematic review of the contributions of
small states, the article concludes with reflections on the complex history of
the UDHR, some cautions about overemphasizing the role of hegemonic
states, and speculation as to how the document we have inherited might
have been different without the participation of small states.
II. FAMILIAR ACCOUNTS AND
LESS FAMILIAR SCHOLARSHIP: A REVIEW
The historical account of the UDHR best known in the United States begins
with the Roosevelts.7 In his 1941 State of the Union address to Congress,
Franklin Delano Roosevelt delivered the well-known Four Freedoms speech,8
providing a rhetorical touchstone for many who subsequently took up the
cause. So influential was the notion of “fundamental freedoms” that the
1941 speech is considered by many as the seminal contribution. However
important was Franklin Roosevelt’s contribution, though, his widow’s role
was more celebrated: from January 1947 to June 1948 she chaired the UN
Human Rights Commission that produced the draft Declaration.9 In her own
time, Eleanor Roosevelt was famous—or infamous—as an advocate of
social justice. In the years after her death, however, a number of film
documentaries have popularized an understanding of her leadership role in
promoting international human rights.10
ICESCR; and (2) when not capitalized, it refers to the entire political project before it was
known that there would be three, not one, document.
7. See M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the
Development of International Protection for Human Rights, 9 HUM. RTS. Q. 19 (1987).
8. Roosevelt’s speech proclaimed freedom of speech, freedom of religion, freedom from
want, and freedom from fear. See LOUIS HENKIN ET AL., HUMAN RIGHTS 1108 (1999).
9. For additional insights into Eleanor Roosevelt’s role, see EVANS, supra note 3; Johnson,
supra note 7; JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVENTURE
(1984); A. DAVID GUREWITSCH, ELEANOR ROOSEVELT: HER DAY (1973). As the Chair of the
Commission of Human Rights, Eleanor Roosevelt was invited to introduce the draft
UDHR to the Third Committee for formal debate. See U.N. GAOR, 3d Sess., 3d Comm.,
Pt. 1, at 32–33 (1948) [hereinafter Third Committee Records].
10. See, e.g., THE ELEANOR ROOSEVELT STORY (Richard Kaplan ed., 1966); ELEANOR ROOSEVELT: A
RESTLESS SPIRIT (A&E Home Video 1994); THE AMERICAN EXPERIENCE: ELEANOR ROOSEVELT (PBS
1999).
2001 Universalizing Human Rights 47
From this side of the Atlantic there are few challenges to a view that the
Roosevelts shaped and molded the human rights story, and indeed, many
consider the human rights project to be no more and no less than an
American project.11 Alternative views persist, however, and there are
variations to challenge even this most basic story. The fact that the UDHR
was finalized under the shadow of the Eiffel Tower allows France to call
itself the birthplace of universal human rights. The version of the story
commonly told in France puts renowned legal scholar René Cassin at center
stage. Cassin had great influence over the final draft text and was awarded
the Nobel Peace Prize for his role in fostering the UDHR. As part of their
own political legacy, the French recall that the Rights of Man manifesto
arose from the French Revolution. When the freshly created United Nations
Economic, Social and Cultural Organization (UNESCO) decided in 1946 to
conduct an international survey on the multicultural basis of the philosophi-
cal idea of human rights, French philosopher Jacques Maritain was among
those chosen to participate in the study. That UNESCO investigation had no
appreciable impact on the political project of human rights (which was
carried out by the Commission on Human Rights, under the aegis of the
Economic and Social Council (ECOSOC)), but Maritain’s active participa-
tion nevertheless buttresses the French claim to sponsorship of the human
rights project.12
In recent years, scholars have had opportunity to peruse many contem-
poraneous documents and retrospective accounts. Eleanor Roosevelt’s
rather circumspect views were published concurrently with her own
participation in the process, as installments in the news column “Her
Day.”13 Her autobiography contains additional notes, as do some of her
private papers and US State Department documents.14 John Humphrey, the
United Nation’s first Director of the Division on Human Rights, published
his own memoir in 1984, presenting the account of another player central to
the political process of constructing the UDHR.15 More recently, in 1996,
British political scientist Tony Evans developed an account of the interna-
tional human rights project that privileges hegemonic interests. Grounding
his carefully researched and well-documented study in the dominant theory
of international relations, he argues that the UDHR was an American project
that rose, and fell, with the tide of US interest.16 Studies of US domestic
11. See EVANS, supra note 3.
12. See JACQUES MARITAIN, On the Philosophy of Human Rights, in HUMAN RIGHTS: COMMENTS AND
INTERPRETATION 72 (UNESCO ed., 1949). See generally HUMAN RIGHTS: COMMENTS AND
INTERPRETATION (UNESCO ed., 1949).
13. See GUREWITSCH, supra note 9.
14. See ELEANOR ROOSEVELT, THE AUTOBIOGRAPHY OF ELEANOR ROOSEVELT (1992). For an account
based in part on a review of Eleanor Roosevelt’s private papers, see EVANS, supra note 3.
15. See HUMPHREY, supra note 9.
16. See EVANS, supra note 3.
Vol. 2348 HUMAN RIGHTS QUARTERLY
politics during the Truman-Eisenhower transition also help explain the
waning of US interests in a project initially championed by a US president.17
An alternative perspective on political dynamics is offered by William
Korey, whose richly anecdotal version of the story emphasizes the arguably
crucial role of nongovernmental organizations.18 Representatives of some
forty-two US-based and international nongovernmental organizations were
invited to the April 1945 San Francisco conference that created the United
Nations. Although formally they served in an advisory capacity to the US
delegation, they contributed to debates and influenced delegates from their
position offstage, in the corridors and private meeting rooms. It was thanks
to their lobbying efforts that a Human Rights Commission was created, and
of course it was that body which was charged to draft the Universal
Declaration.19 Jan Burgers’ investigation of political developments during
the interwar period also emphasizes the role of non-state actors in
promoting the human rights idea. Archival research led Burgers to uncover
evidence that a groundswell of support for creating international human
rights standards was growing among civic groups in Europe and the United
States well before the worst Nazi atrocities were known.20 His work has
been expanded by Paul Lauren, who traces the international human rights
movement back to the late nineteenth century.21
Finally, there has also been scholarly scrutiny of the drafting process
itself. A group of Scandinavian scholars published an article-by-article
examination of the origins of the Universal Declaration in 1992, and their
work supplements accounts published several decades ago.22 More re-
cently, Johannes Morsink has opened UN archives to consider both the
process and the politics of the initial drafting phases. His book The
Universal Declaration: Origins, Drafting, and Intent is by far the most
comprehensive and authoritative work on the authorship of the Universal
Declaration.23
17. See RICHARD O. DAVIES, DEFENDER OF THE OLD GUARD: JOHN BRICKER AND AMERICAN POLITICS 153–
83 (1993); DUANE TANANBAUM, THE BRICKER AMENDMENT CONTROVERSY: A TEST OF EISENHOWER’S
POLITICAL LEADERSHIP (1988).
18. See WILLIAM KOREY, NGOS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: “A CURIOUS
GRAPEVINE” (1998).
19. See id. at 36.
20. See Jan Herman Burgers, The Road to San Francisco: The Revival of the Human Rights
Idea in the Twentieth Century, 14 HUM. RTS. Q. 447, 465 (1992).
21. See PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN 72–138
(1998).
22. See THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY (Asbjørn Eide et al. eds.,
1992). See also NEHEMIAH ROBINSON, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ITS ORIGINS,
SIGNIFICANCE, APPLICATION, AND INTERPRETATION (1958); ALBERT VERDOODT, NAISSANCE ET SIGNIFICATION:
DÉCLARATION UNIVERSELLE DES DROITS DE L’HOMME (1964).
23. JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND INTENT
(1999).
2001 Universalizing Human Rights 49
III. SMALL STATES AND THE UDHR
Despite the rich historical resources now at our disposal, at least one
version of the story remains untold as an account unto itself. Some 250
delegates and advisors from fifty-six countries were accredited to participate
in the construction of the Universal Declaration, but most scholarly
attention has been directed to the role of a few delegations. The story of the
majority remains enshadowed. It is that story, and most particularly the role
and contribution of states that would come to be known as the Third World,
that is most intriguing. Parts of their story, of course, have appeared in other
versions, often as interesting sidelines or incidental elements. This article is
intended to present a systematic review that allows readers to understand
the contributions and appreciate the commitment of participants from these
small states. Similarly, the author hopes that this presentation will inspire
researchers from countries that played significant roles in the historical
process to extend this investigation to the debates and positions developed
within their countries’ delegations.
In reassembling this account of the UDHR’s birth, the author makes no
claim to present the main version of the story, much less the “true” version
of events that unfolded from 1946 through the early 1950s. To the best of
the author’s knowledge, the material presented below is truthful and
represents one accurate version of events that transpired, and this version is
an important one. Novelists, filmmakers, and literary critics have helped us
appreciate the value of considering a story from alternative perspectives,
both to capture complexity and to query a given account that might
otherwise go unexamined. At very least, the story of Third World contribu-
tions and contributors enriches our understanding of the range of political
dynamics and concerns that were brought to the table as the International
Bill of Rights was being negotiated. It also sheds light on the knotty question
of the universality of human rights.
Unfortunately, a coherent story that accents the role and contributions
of small states is not easily told. The narrative assembled is complex and
interwoven. Elements that in more familiar versions of the story commonly
figure in the foreground must recede here, and more obscure events,
prominent in an account that privileges the smaller states, require additional
explanation. Except to those intimately familiar with historical events of the
post-war era, there is risk that the sheer detail of the story, organized as a
narrative, would overwhelm and bore even the most tolerant. The account
that follows is thus organized to preserve the goodwill of readers. Rather
than recount a chronologically ordered narrative, the author has identified
four principal roles that Third World participants played. In the pages that
follow, the author offers anecdotes to illustrate and substantiate the claim.
To engage directly with the material that follows, some familiarity with
Vol. 2350 HUMAN RIGHTS QUARTERLY
the most basic sequence of events in the UDHR story is required as pre-
sented in Figure 1. The UDHR went through several distinct phases, and the
anecdotes that will be recounted come from various phases. It will also be
useful to consider that the argument presented is not that small state
participants dominated the debate over the UDHR. The argument here is
more modest, and the threshold of proof accordingly lower. The claim made
is a simple but important one: a wide range of participants outside the
Western bloc made significant contributions to the construction of the most
elemental international standard of human rights, and they were aware at
the time of the significance of their words and deeds.
Well before the opening of the San Francisco conference that was to
create a United Nations, the idea of establishing an international human
rights standard was in the air. The concept of a worldwide declaration of
human rights can be traced back at least as far as the 1920s, soon after the
nongovernmental Fédération Internationale des Droits de l’Homme (FIDH)
FIGURE 1
A Brief and Basic History of the UDHR Project
Phase I. Germination of a political idea
1945. United Nations created, in San Francisco. Human Rights is included in the UN
Charter, and ECOSOC asked to appoint a Human Rights Commission charged to
produce an appropriate international framework.
Phase II. Drafting the UDHR
1946–48. The Human Rights Commission, in various incarnations, worked on drafting
the UDHR for two years.
Main questions addressed in the drafting phase included whether there would be a
single document, and what form it should take—a statement of principle only, for
example, or a fully developed and legally-binding treaty. The final outcome was a
Declaration of Human Rights, followed by two legally binding international human
rights covenants.
Phase III. Formal Debate of the UDHR
Fall 1948. Completed draft referred to the UN General Assembly’s Third Committee, for
formal debate by accredited delegations.
December 1948. Modified draft UDHR referred to a plenary session of the UN General
Assembly. Passed without dissenting vote (8 abstentions).
Phase IV. Creating the Human Rights Covenants
1966. Two formal covenants approved and opened for ratification in the early 1960’s.
The International Covenant on Civil and Political Rights and the International Covenant
on Social, Economic and Cultural Rights entered force in the mid-1970’s. Together with
the Declaration, they comprise the International Bill of Rights and are today the bedrock
of international human rights law.
2001 Universalizing Human Rights 51
was created in Paris.24 Later, in 1939, aging science fiction writer H.G.
Wells published an impassioned plea for a mid-century declaration that set
humanitarian standards for future generations.25 His own version of such a
declaration was disseminated in many languages.26 The 1941 Atlantic
Charter signed by Roosevelt and Churchill, and subsequently endorsed by
forty-four additional countries, referred to human rights and fundamental
freedoms.27 It galvanized popular support and raised many hopes around
the world for social justice in the areas of race relations, women’s rights,
and colonial rule. US Undersecretary of State Sumner Welles was a strong
advocate of human rights, and under his guidance, a working group at the
State Department made some initial efforts at drafting their own interna-
tional bill of rights.28
It seemed natural that the idea of a human rights declaration would find
its way into proposals for a new worldwide organization of United Nations.
It did, but barely. Papers prepared by the United States in preparation for
meetings at Dumbarton Oaks referenced human rights, but support was at
best lukewarm. Though it will seem ironic today, of the four Sponsoring
Powers, it was China that was most supportive of the idea.29 The Chinese
argued that a central purpose of the United Nations should be to enforce
justice for the world. To that end they were prepared “‘to cede as much . . .
sovereign power as may be required.’”30 Neither Churchill nor Stalin,
however, recognized China’s status as a great power, and China’s views did
not carry substantial weight.31 For their part, both the USSR and the United
Kingdom resisted the idea of human rights.32 So did US Secretary of State
Cordell Hull, who in the meantime had forced the resignation of Sumner
24. See FDIH Homepage (visited 25 Oct. 2000),
25. See H.G. Wells, Letter, War Aims: The Rights of Man, TIMES (London), 25 Oct. 1939;
H.G. WELLS, THE RIGHTS OF MAN OR WHAT ARE WE FIGHTING FOR? (1940) (for the original draft
of his Declaration of Rights and additional commentary on human rights).
26. For a discussion of Wells’ work, see Burgers, supra note 20, at 465–68 and LAUREN, supra
note 21, at 152–53. Lauren notes that Wells’ declaration was translated into Chinese,
Japanese, Arabic, Urdu, Hindi, Bengali, Gujerati, Hausa, Swahili, Yoruba, Zulu, and
Esperanto. Id. Wells also circulated his declaration among European and American
intellectuals. For the broad range of Well’s political concerns during this period, see
MICHAEL FOOT, THE HISTORY OF MR. WELLS 253–307 (1995).
27. The document commenly known as the Atlantic Charter was initially released as the
Declaration of Principles Issued by the President of the United States and the Prime
Minister of the United Kingdom on 14 August 1941.
28. See LAUREN, supra note 21, at 161–62.
29. See id. at 166. The four sponsoring powers were the United States, Great Britain, the
USSR, and China. These were the four states that met at Dumbarton Oaks, producing
the proposal for the United Nations, which was then discussed in San Francisco.
30. Id.
31. See id. at 148–49, 166–71; archival sources are referenced at 331–32.
32. See Farrokh Jhabvala, The Drafting of the Human Rights Provisions of the UN Charter,
64 NETH. INT’L L. REV. 1, 3 (1997).
Vol. 2352 HUMAN RIGHTS QUARTERLY
Welles. Hull regarded human rights chiefly as a useful wartime propaganda
tool, otherwise antithetical to the interests of a sovereign nation, and his
views prevailed.33 The Dumbarton Oaks proposals ultimately contained
only one small reference to human rights.34
As the curtain rises on our story, there was no reason at all to expect that
the nascent United Nations would focus rhetorical attention on human
rights. There was nothing inevitable about the Universal Declaration, much
less the human rights treaties that followed. Certainly, the Great Powers did
not advance the idea. Once it was loose, their concern was to manage the
process and ensure at least that the results did not run counter to their
interests. They quickly seized leadership roles in the crafting of the human
rights project, but the smaller powers also participated actively. In many
regards the story of the UDHR belongs to them. Some of the ideas advanced
by smaller powers were incorporated into the final product. Some were not.
Sometimes they supported the larger powers; sometimes they did not.
Sometimes they were divided among themselves. In several instances, their
concerted efforts prevented the larger powers from having their way.
From a review of relatively accessible documents and secondary texts,
four distinct roles played by small states can be identified. First, the smaller
powers were witnesses and accessories to the creation of the International
Bill of Rights. They were included in a process that extended over a period
of eighteen months. Second, these nations were active participants; third,
they provided leadership from their ranks. Fourth, Third World delegates
were also ardent advocates and partisans, advancing agendas of their own.
There is little doubt that without their efforts that the International Bill of
Rights would have looked rather different, if indeed it had finally been
agreed at all. Each of these four roles is elaborated and illustrated in turn.
A. The Small Powers as Witness
Contrary to what is often imagined, the negotiations over the UDHR were a
very public affair. There were no doubt important conversations that took
place off the record, but for a variety of reasons, the debates were protracted
and to a significant degree open to all. Official records were kept during the
debates of both the Commission and the Third Committee proceedings
(Phases II and III, Figure I). Whether or not they actively participated in the
debate, every delegate who attended the Third Committee debates of
autumn 1948 at minimum heard, and witnessed, discussion of the meaning
33. See LAUREN, supra note 21, at 165.
34. See Jhabvala, supra note 32.
2001 Universalizing Human Rights 53
of human rights. Sometimes that discussion strayed into the abstractly
philosophical. More often, comments were pedantic; the official record is
replete with suggestions for amending the text.35 As the following pages will
show, there is ample evidence, though, that delegates also wrestled in a
basic way with the substance of human rights problems. They understood
that their debate was helping to define rights as well as create standards.
Regular reference to poignant and concrete human rights problems of the
day kept the purpose of the debate in clear focus.
Not surprisingly, Nazi atrocities and fascist brutalities were frequently
evoked. Delegates referred to Nazi practices during the drafting and
discussion of more than half of the Declaration’s thirty articles. Sometimes
anecdotal references to Nazi practices were adduced to buoy political
arguments and sway opinions. In other places, profound reactions to Nazi
practices in the concentration camps appear to have shaped the very
essence of the moral code being drafted. Articles 3, 4, and 5 (establishing
the general right to life, liberty and security of person and prohibiting
practices of slavery and torture) in particular were deeply influenced by the
Holocaust experience, and not simply by Enlightenment thought enshrined
in many existing national constitutions.36
The Nazi holocaust was frequently evoked, but it was not by any means
the only point of reference for participants in the Third Committee debates.
During these debates, Soviet bloc delegates regularly pointed out the
human rights shortcomings of their Western counterparts. They noted the
Swiss denial of the political franchise to women,37 and the British Empire’s
denial of the franchise to the vast majority of its subjects worldwide.38 They
noted the US Congress’ ignominious failure to approve a proposed federal
law against lynching.39 Delegates were witness to many attacks on South
Africa, where the Afrikaner Nationalist Party had just come to power on a
platform of racist and segregationist promises they intended to keep.40
Some of the issues hit very close to home. An emergency report from
UN envoy Ralph Bunche on the crisis of Palestinian refugees was the only
issue allowed to interrupt the concentrated focus on the UDHR during the
two-month session of the Third Committee in 1948.41 Delegates from Egypt
35. See Third Committee Records, supra note 9, at 26–980.
36. See MORSINK, supra note 23, at 38–43.
37. Swiss women received the right to vote only in 1971. See Third Committee Records,
supra note 9, at 461.
38. See id.
39. See id. at 142.
40. See id. at 57, 92, & 131.
41. Bunche was replacing Count Folke Bernadotte of Sweden, who served in 1948 as the
Security Council’s mediator in Palestine. Count Bernadotte had been negotiating a
ceasefire between Arab and Jewish leaders in Palestine when he was assassinated by
Vol. 2354 HUMAN RIGHTS QUARTERLY
and Iraq seized the opportunity to point out that there was nothing abstract
about that particular human rights crisis. Less far-reaching, but with its own
measure of drama, the Chilean delegation brought its grievance about the
Soviet Union’s restrictions on emigration to the deliberating body.42 Just as
the Third Committee debates were opening in Paris in September 1948, the
USSR had denied an exit visa to a Soviet member of the Chilean ambas-
sador’s family. In the resulting imbroglio, Chile broke off diplomatic
relations with the USSR, and for several tense days each country held the
other’s ambassador in custody.43
The UDHR was constructed with great deliberation. At all stages of the
drafting, delegates understood what they were about, even if they could
only imagine the ultimate significance of their work. No participating
delegation could reasonably claim to have been unaware of its content, or
its relevance.
B. The Small Powers As Active Participants
Representatives of the small powers were not passive participants in any
stage of the international human rights project. From the moment that the
Dumbarton Oaks proposals were distributed, Latin American participants
began to discuss a common approach to the question of human rights.
Along with other small states in the West, they helped bring the Commission
into being. Once the Commission was appointed, the UDHR project moved
to the drafting phase, and some eighteen states were formally represented in
the drafting committee. Included in this number were Chile, Lebanon,
China, Egypt, India, Panama, Philippines, and Uruguay.44 Delegates from
several other small non-Western powers served in a second tier of drafters.
Representatives of the small powers actively contributed to discussions on
the full gamut of rights under consideration. They proposed additions and
changes to the initial draft prepared by the UN Secretariat; they queried and
challenged proposed changes suggested by others.45
Small states remained vocal during the proceedings of the General
Zionist extremists, less than two weeks before the Third Committee convened in Paris.
See RALPH HEWINS, COUNT FOLKE BERNADOTTE: HIS LIFE AND WORK (1950).
42. See Third Committee Records, supra note 9, at 316.
43. See Human Rights Questions at the Third Regular Session of the General Assembly: The
United States Position, in 1 FOREIGN RELATIONS OF THE UNITED STATES 1948, 289, 293–99
(1975) [hereinafter Human Rights Questions].
44. See MORSINK, supra note 23, at 28–33. Morsink identifies by name approximately forty
“second-tier” delegates who in his estimation made significant contributions during the
drafting phase. Id.
45. See Third Committee Records, supra note 9, Annexes, at 9–58.
2001 Universalizing Human Rights 55
Assembly’s Third Committee, convened in September 1948. Out of the 166
written proposals to amend the declaration as drafted by the Commission on
Human Rights, twenty-eight were forwarded by the Cuban delegation.46 The
Soviet Union, Panama, Lebanon, France, and Egypt each offered at least ten
written amendments.47
Whether or not they tried to shape or reshape the draft document
through written amendments, nearly every delegation participated in the
oral debate at some juncture. Whether the contributions represented a
formal government position or not depended largely on the delegation—
and on the matter at hand. US State Department records show that the US
delegation agreed to positions in advance, but, for example, so did
Pakistan.48 Then as now, many other delegates from a wide variety of
nations were allowed considerable latitude in shaping their interventions.
As a random example of the oral exchange, on the text that eventually
became Article 21, some twenty-eight voices joined the debate, including
delegates from Belgium, Uruguay, the United States, Greece, Brazil,
Venezuela, Iraq, China, Haiti, Cuba, Sweden, the former Soviet Union,
Lebanon, Philippines, and Saudi Arabia.49 In their interventions, small
powers engaged substantive issues, and they engaged each other. During
the debate on what would become Article 5 (prohibiting torture), for
example, the Philippine Republic objected to a proposal by Cuba to insert
provisions for cultural differences. The Philippine delegate argued that with
such a provision in place, Nazis might have claimed that their torture
chambers were customary and therefore legal in Nazi Germany.50 In the
debate on what would become Article 16, the Pakistan delegation resisted
efforts by Saudi Arabia to change the provisions for marriageable age from
“full age” to “legal marriageable age.” Mrs. Shaista Ikramullah argued that
the original draft language more clearly conveyed the intent to prevent child
marriages, and nonconsensual marriages.51 Emile Saint Lot of Haiti voiced
reservations about voting by secret ballot—where citizens were predomi-
nantly illiterate.52 The Mexican delegation paid homage to Thomas Jefferson
but went on to argue for inclusion of socioeconomic rights, compatible with
the ideals of the Mexican Revolution. And as Morsink has documented,
throughout the entire two-year process of constructing the Declaration, the
oft-repeated debate over natural rights was of great concern to delegates
46. See id. at app.
47. Id.
48. See SHAISTA IKRAMULLAH, FROM PURDAH TO PARLIAMENT 182–92, 202–08 (1998).
49. See Third Committee Records, supra note 9, at 448–73.
50. See id. at 214.
51. See id. at 374.
52. See id. at 466.
Vol. 2356 HUMAN RIGHTS QUARTERLY
from a wide range of countries, and not least of them Lebanon, Brazil,
Uruguay, Chile, Cuba, and China.53
Small states were active and engaged participants in the process that
produced the UDHR. Some Western powers, in fact, might have preferred
less participation on their part. Minutes from meetings of the US delegation
to the Third Committee indicate that the United States was committed to
moving the draft UDHR through the General Assembly as quickly as
possible, initially hoping that debates could be finished within a few days.54
They were soon brought to realize not only the futility, but the political
inadvisability, of attempting to limit debate. Charles Malik, who chaired the
Third Committee sessions, informed the US delegation that many states
were attached to the idea of examining the draft text in detail, and some of
the smaller US allies argued that states that had not participated in the
drafting phase should have opportunity to express their views on the draft
Declaration.55
The breadth of the eventual participation testifies to interest in the
document’s content, and the feeling of joint ownership. At the opening
session of the Third Committee hearings on 30 September 1948, Costa
Rica’s delegate had warned of the dangers that lurked when a state put its
own interests over those of individual citizens; the Lebanese delegate had
heralded lessons that could be learned from both the East and the West; the
Pakistani delegate had suggested the UDHR could mark a turning point in
human history.56 Some two months later, in the final plenary session
convened on 9 December 1948, Charles Malik noted that the UN Third
Committee had devoted eighty-five sessions to the discussion of the draft
Declaration; eighteen of the twenty-nine Articles in the draft text had been
adopted without opposition; and throughout the debates nearly 90 percent
of the votes had been in the affirmative.57 More than fifty states had taken
part in discussions on the Universal Declaration that had spanned more
than two years.58 Not until the establishment of the United Nations had
small states been afforded such opportunity to participate in the construc-
tion of international norms.
53. See Johannes Morsink, The Philosophy of the Universal Declaration, 6 HUM. RTS. Q.
309, 310–16 (1984).
54. See Human Rights Questions, supra note 43, at 289–91.
55. See id. at 290–91.
56. See Third Committee Records, supra note 9, at 37–51.
57. See U.N. GAOR, 3d Sess., Pt. 1, 180th plenary mtg., at 860 (1948) [hereinafter U.N.
GAOR, 180th plenary mtg.].
58. Forty-eight states voted for the UDHR in the General Assembly plenary convened on 10
December 1948; eight states abstained. A handful of those states did not participate in
the Third Committee debates. See id. at 934.
2001 Universalizing Human Rights 57
C. Small Power Leadership
Leadership is an elusive quality that comes in many forms. Several
individuals substantially contributed not only to the shape of the UDHR, but
to the process of seeing it through. Eleanor Roosevelt is often singled out as
the heroine of the UDHR, but her role is both overstated and under-
appreciated. Eleanor Roosevelt’s genius was a political one: during the
critical early phases of the UDHR project, she steered the debate and
moved it along. The modesty she projected was both charming and
disarming, and her seemingly effortless exercise of political savvy—hosting
quiet conversations, diplomatically limiting debate—provided necessary
lubrication for the wheels and cogs of a newly invented international
mechanism, the UN Commission on Human Rights. Without Eleanor
Roosevelt’s effort and attention, the UDHR project might not have come to
fruition, and the ovation she received from the UN General Assembly was
well-deserved. Eleanor Roosevelt, however, did not write any version of the
UDHR.
René Cassin is often credited with authoring the UDHR, but that
acclaim also appears to be misplaced. With the status of chief legal adviser
to Charles de Gaulle during the war and with experience drafting a
constitution for the Free French, Cassin was indeed an active, vital, and
respected participant in all stages of the discussion and debate.59 As to the
question of authorship, however, Morsink has established that Cassin “did
not really enter the room until the baby was born.”60 Cassin did edit an
initial draft of the UDHR which had been prepared by the UN Secretariat,
but careful comparison of the two documents shows that at least three-
quarters of Cassin’s text flowed directly from the UN draft.61 His most
brilliant contribution to the political project of international human rights
arguably came after 1948. According to Morsink, “[m]ore than any other
drafter Cassin spent the post-adoption years interpreting the Declaration to
the larger world.”62 Cassin developed and promoted an elaborate and
inspiring presentation of the architecture of the UDHR, a portico leading to
a world where human rights are respected.63
59. In retrospect, it is difficult to assess Cassin’s precise contribution to the process. He
clearly annoyed Humphrey, who claimed that few were persuaded by Cassin’s
arguments. See HUMPHREY, supra note 9, at 24. In her autobiography, Eleanor Roosevelt
does not mention Cassin’s contribution—though she mentions many others. See
ROOSEVELT, supra note 14, at 24.
60. MORSINK, supra note 23, at 29.
61. See id. at 8.
62. Id. at 29.
63. See Mary Ann Glendon, Knowing the Universal Declaration of Human Rights, 73 NOTRE
DAME L. REV. 1153, 1163 (1998), citing MARC AGI & RENE CASSIN, FANTASSIN DES DROITS DE
L’HOMME 317(1979).
Vol. 2358 HUMAN RIGHTS QUARTERLY
The task of assembling an initial draft declaration actually fell to the
United Nation’s first Human Rights Director, Canadian law professor and
committed socialist, John Humphrey. There appears to have been an intent,
in 1946, to have the appointed officers of the new Human Rights
Commission prepare some draft, but a first assay resulted only in a heated
philosophical argument between Vice Chair Peng Chen Chang and Rappor-
teur Charles Malik. Humphrey’s memoir relates in some detail his efforts to
assemble a draft out of numerous documents that had been submitted to the
UN office. His claim that he relied most heavily on a draft prepared by the
American Law Institute and heavily influenced by the respected Chilean
jurist Alvaro Alvarez—and presented by Panama at the 1945 conference
convening the United Nations—is substantiated by Morsink’s research,
which included a review of the Humphrey papers at McGill University.64
Early in Phase II, the draft provided by Humphrey was annotated by some
400 pages matching the articles in the draft Declaration to articles in
existing constitutions from around the world.65
History has been somewhat less kind to John Humphrey than to Eleanor
Roosevelt and René Cassin, but each of these three figures has received a
measure of recognition. The efforts of Soviet delegate Alexei Pavlov and the
leadership roles of Charles Malik (Lebanon), Hernan Santa Cruz (Chile) and
Peng Chen Chang (China) have been much less appreciated.
Charles Malik held two positions of substantial responsibility: he first
served as rapporteur of the Human Rights Commission and subsequently
was elected Chair of the 1948 United Nations General Assembly Third
Committee proceedings. As Rapporteur, Malik compiled the records that
permitted Commission members to discuss and debate substantive issues.
His records helped frame the issues. As chair of the Third Committee, he
was responsible for moving debate forward, much as Eleanor Roosevelt had
done in the Commission. Malik chaired every one of the Third Committee’s
daily sessions from late September to early December 1948. A stickler for
procedure, he recognized the importance of allowing all delegates to have
their say on the draft Declaration. Though many participants no doubt
regretted his decision to scrutinize the draft Declaration article by article, it
is largely due to his leadership that we have a record of debates that reflect
concerns raised by various countries in both the Commission and the Third
Committee.66
64. See HUMPHREY, supra note 9, at 32. See also comments by Charles Malik before the UN
General Assembly session on 9 December 1948 in Third Committee Records, supra
note 9 at 858. Morsink’s findings are reported in MORSINK, supra note 23, at 6. The
American Law Institute was composed of jurists from all over the Western hemisphere
and was heavily influenced by Latin American jurists. See LAUREN, supra note 21, at 158.
65. See Morsink, supra note 23, at 7.
66. See 1947–48 U.N.Y.B., at 1075.
2001 Universalizing Human Rights 59
Malik was forty years old when he took up work with the Human Rights
Commission. He was teaching philosophy in Beirut when he was asked to
join Lebanon’s delegation to the United Nations. Biographic sketches
emphasize his career as a diplomat, but he preferred to think of himself as
a philosopher and a scholar. Humphrey identified him, along with Chang,
as one of the two most gifted intellects on the Commission.67 Some
delegates—most notably the British Lord Dukeston—found his attachment
to Thomist legal doctrine68 too dogmatic, and on several occasions his
proposals were defeated. Malik was educated at the American University of
Beirut and at Harvard, but he was widely recognized and respected as a
product of his Mediterranean and Middle Eastern culture.
Peng Chen Chang served as Vice Chair of the Human Rights Commis-
sion. Chang received a doctorate from Columbia Teachers’ College69 and
was well-acquainted with Western philosophic traditions. He spoke
admiringly of Western philosophy from time to time, but he was also firmly
implanted in his own culture. The record reflects his deep concern that the
UDHR not be “too” Western. In an incident recounted by both Eleanor
Roosevelt and John Humphrey, Chang took early opportunity to establish
that the Universal Declaration could not be a simple reflection of Western
philosophy—and to that end, he advised UN staff to embark on a study of
Confucian thought.70 Chang was remembered and appreciated for two kinds
of contributions. On one hand, he regularly caught the attention of other
delegates by referring to Chinese practice or quoting a pertinent Chinese
proverb. Official records reflect some of these contributions, and in some
instances they appear to have had the effect of helping delegates appreciate
an alternative perspective and move beyond an impasse. Third Committee
records note his advice to sweep the snow in front on one’s own doors and
overlook the frost on others’ rooftiles.71
67. See HUMPHREY, supra note 9, at 23.
68. See id. at 23–25. Thomas Aquinas (1226–1274) posited and differentiated four kinds of
law, including natural law and positive law. Attachment to natural law, of which Malik
was a proponent, presumes that rational beings can recognize and will obey certain
principles “by nature.” Aquinas suggested that positive law could be derived from
natural law, and this argument led Malik into deep debate with his colleagues on the
Human Rights Commission. See id. at 23.
As an aside, it is perhaps interesting to note that Thomist doctrine provided a
Christian medieval synthesis of contending traditions then represented as Christian
(drawing on Augustine and Plato) and Muslim (Aristotle by way of Averroes). See
NORMAN F. CANTOR, WESTERN CIVILIZATION: ITS GENESIS AND DESTINY 351, 463 (1969).
69. Chang was born in Tientsin in 1892 and was educated at Nankai Middle School. After
earning a doctorate in education he returned to China and became dean of Tsing Hua
college. Chang was a member of the Peoples’ Political Council of China under Chiang
Kai-shek. He served as minister to Turkey and to Chile before becoming representative
to the United Nations General Assembly in 1946. See 1947–48 U.N.Y.B., at 1055.
70. See HUMPHREY, supra note 9, at 29; ROOSEVELT, supra note 14, at 316–17.
71. See Third Committee Records, supra note 9, at 177.
Vol. 2360 HUMAN RIGHTS QUARTERLY
Chang’s second contribution was at least as far-reaching, and may have
been an extension of culture as well as a gift of personal intellect. More than
any other delegate in the drafting or debate stages, Chang attended to the
logical structure of the Declaration. According to John Humphrey, it was
Chang who first envisaged three instruments: a declaration, a treaty, and
measures of implementation.72 He regularly offered diplomatic editorial
resolutions to problems in which the debates were mired. On numerous
occasions he suggested altering the order of articles, or reordering clauses
within articles.73 He appears to be the first to have appreciated the internal
logic of the Declaration, and Cassin may well have used Chang’s initial
analysis to elaborate his own colorful metaphor of the portico.74
Unlike Chang and Malik, Hernan Santa Cruz held no position of
responsibility within the Commission or the Third Committee, but his
political and substantive contributions were such that both Humphrey in his
memoir and Morsink through his review of documents single out the
important role he played.75 Before joining Chile’s UN delegation, Santa
Cruz served as a judge on Chile’s Superior Military Court. Prior to that, he
had taught criminal procedure and military procedure at various military
academies. Santa Cruz had supplied one of the initial drafts with which
Humphrey worked, and he was particularly attached to provisions about
socioeconomic rights. Particularly in the drafting stages, Santa Cruz was
vigilant in his defense of these rights and stepped in with persuasive
arguments when North Atlantic nations sought to trim them back. Morsink
credits Santa Cruz’ intellectual attachment to socioeconomic rights as one
of the important reasons why the 1948 Declaration ultimately transcended
eighteenth century Enlightenment philosophy.76
A note on Alexei P. Pavlov is in order, simply to complete the record of
exceptional individual contributions. Although his proposals were rarely
72. See HUMPHREY, supra note 9, at 40.
73. Not all of Chang’s suggestions have been applauded. Morsink holds Chang responsible
for “damage” to the UDHR that resulted when in the final days of the Commission’s
work, Chang successfully advocated moving the article on duties from its position as the
second article to the end of the Declaration. Morsink speculates as to whether this late
suggestion from Chang was colored by his preoccupation with events in China. On the
day the change was made, the New York Times carried two stories about China on its
front page—one concerning delays in a US-China aid bill and one about Mao’s drive to
Shanghai and Nanking. See MORSINK, supra note 23, at 246.
74. Chang’s speech is reported in Third Committee Records, supra note 9, at 154.
75. See HUMPHREY, supra note 9, at 30; MORSINK, supra note 23, at 30 n.72.
76. MORSINK, supra note 23, at 30. Santa Cruz would later lead the fight for a single human
rights covenant to enact the Declaration and in so doing would earn the label of
“mischief-maker” from Mrs. Lord, who replaced Eleanor Roosevelt as the US Represen-
tative on the Commission on Human Rights. See United States Policy Regarding the
Draft United Nations Covenants on Human Rights: The 1953 Change, in 3 FOREIGN
RELATIONS OF THE UNITED STATES, 1952–54, 1536, 1579 (1979).
2001 Universalizing Human Rights 61
accepted either in the Commission or by the Third Committee and though
he frequently irritated other delegates, Pavlov was tireless in his efforts to
promote certain causes. He did not often use diplomatic niceties to couch
his criticisms of Western powers, but because many of his comments were
meticulously researched,77 they found their targets. The Declaration’s final
clear statement on nondiscrimination is attributed to Pavlov’s persistence,
and advocates of non-sexist language and certain social and economic
rights found in him a steadfast ally.78 Like counterparts from other countries
and other traditions, Pavlov was deeply engaged in the process of construct-
ing the Universal Declaration.
The different styles and perspectives of this small group of leaders were
often a source of conflict in the drafting and debate stages of the UDHR. The
fact that several strong personalities were involved in the process, however,
increased the level of engagement and scrutiny of a wide range of
participants. No less than key delegates representing large states, leaders
from the small states insured that issues they viewed as important were
brought to the table and inserted into the record. Each in various ways
helped lend form and substance to the UDHR.
D. Advocates and Partisans
Small powers were not latecomers to the discussion of international human
rights. As early as 1933, American states had convened to discuss issues of
rights and duties of states. They met again in February 1945 at Chapultepec,
Mexico, to examine the Dumbarton Oaks proposals to create a global
organization, scrutinizing the proposals for ways to check big power
dominance of the new world organization.79 Many Latin American states
chafed under US domination, and within the region there was strong
interest in twin legal notions of rights and duties. No state was more
concerned about its own rights than was Panama, and perhaps this explains
how the Panamanian delegation came to arrive in San Francisco for the first
meeting of the forty-six United Nations with a human rights manifesto that
it hoped to see incorporated into the UN Charter.80
77. Eleanor Roosevelt recounts one speech by Pavlov that referred to a Mississippi statute
regarding the length of an ax handle that a man could use to beat his wife. She had an
advisor telephone Washington for advice and was chagrined to learn that, indeed, such
legislation remained on record. See ROOSEVELT, supra note 14, at 311–12.
78. See MORSINK, supra note 23, at 30–31.
79. See LAWRENCE O. EALY, THE REPUBLIC OF PANAMA IN WORLD AFFAIRS: 1903–1950, 125 (1951).
80. Less than two years later a Panama-United States dispute over the Panama Canal would
be referred to the UN Trusteeship Council. Along with Chilean jurist Alvaro Alvarez,
Panama’s Foreign Minister (and former President) Ricardo Alfaro had participated in the
Vol. 2362 HUMAN RIGHTS QUARTERLY
Several small states participating in the San Francisco conference hoped
that human rights would become a more central concern of the new United
Nations. Thanks to their efforts, seven references to human rights were
incorporated into the text of the UN Charter (Phase I). Some states—
including Cuba, New Zealand, and Norway—went on record with views
that any bill of rights should be made binding on all states.81 Four separate
proposals—from Uruguay, Panama, France, and jointly from Brazil, Do-
minican Republic and Mexico—would have given the new United Nations
the explicit purpose of ensuring respect for human rights.82 Three small
states—Cuba, India, and Panama—went on to propose a treaty against
genocide.83 Cuba defended (unsuccessfully) the right to resist tyranny and
oppression.84
It is neither surprising nor unnatural that historians and other analysts
should focus attention on the dominant events of an epoch, and so it has
been with the Cold War. Cold War tensions gave texture to the UDHR
discussions as soon as they opened, and the impact of those tensions on
both the UDHR itself and the subsequent development of the multilateral
human rights regime have been subject to many analyses.85 However, more
than one political agenda claimed global attention in 1948. The secondary
agendas have received far less attention from scholars, but remembering the
concerns they reflect helps explain the interest of many small states in the
UDHR project, and it reestablishes the record of their active engagement.
Often the interests of these states coincided with Soviet bloc positions, but
when small states offered passionate defense of an issue, it generally
emanated from their own direct experience. Several of their concerns
extended from the ignominies of colonial rule and racism prevalent in a
world dominated by Western powers.
elaboration of the American Law Institute’s draft bill of human rights, upon which
Humphrey based his own first draft. See id. at 154–57; HUMPHREY, supra note 9, at 32.
81. See LAUREN, supra note 21, at 188.
82. See Jhabvala, supra note 32, at 9.
83. In November 1946, Cuba, India, and Panama asked the UN Secretary General to
include this item in the UNGA agenda, but it was instead referred to the UNGA Sixth
Committee. See Matters Pertaining to the Development and Codification of Interna-
tional Law, in 2 FOREIGN RELATIONS OF THE UNITED STATES 1949, 375, 386 (1975).
84. Cuba presented this proposal at the end of the 1948 session of the Third Committee,
after that body had completed its debate on the Commission’s draft text and shortly
before the freshly debated draft UDHR was to be reported out to the plenary session of
the General Assembly. The debate is recorded in Third Committee Records, supra note
9, at 748–53, and is summarized by MORSINK, supra note 23, at 307–12.
85. See FORSYTHE, INTERNATIONALIZATION, supra note 5; EVANS, supra note 3; HUMPHREY, supra note
9; David P. Forsythe, Socioeconomic Human Rights: The United Nations, the United
States, and Beyond, 4 HUM. RTS. Q. 433 (1982); Tom J. Farer, The United Nations and
Human Rights: More than a Whimper, Less than a Roar, 9 HUM. RTS. Q. 550 (1987).
2001 Universalizing Human Rights 63
In the shadow of Cold War debates, various small states delegates—
singly or in formal representation of their delegations—advocated and
defended five particular issues. First, small states defended the place of
socioeconomic rights in the UDHR, and this is no doubt their most
significant contribution to the UDHR. Personally committed to the ideals of
socialism, Humphrey on his own had inserted ten separate articles elaborat-
ing such rights into his initial draft.86 Morsink has traced the origins of
Humphrey’s text back through several sources, including drafts presented to
the United Nations by Latin American states, the 1948 Bogota Declaration,
and some Latin American national constitutions.87 The Soviet bloc, natu-
rally, defended the “new rights,” but so did delegates from Latin America,
Asia, and the Middle East. Early in the work of the Commission (Phase II)
many of the provisions were collapsed or diluted, and it was only through
concerted efforts of nongovernmental organizations, small states, and the
Soviet bloc that most were restored. Extending provisions of several Latin
American constitutions that set out social and economic rights, Article 25 of
the UDHR establishes that a decent standard of living depends upon
adequate food, clothing, housing, and medical care. The inclusion of
clothing in that list is a direct result of comments, and arguments, by the
Philippine and Chinese participants in the Commission’s work (Phase II).88
In the Third Committee debates (Phase III), such voices were joined by the
Saudi delegate, who reminded other participants of the Muslim tenet of
zakat (regular almsgiving) and by the Syrian delegation, which argued—
unsuccessfully—for a broader language of “social justice.”89 Thanks to such
efforts, the UDHR establishes the right to food, clothing, shelter, and
medical care as well as social security, education, and decent working
conditions.
Small state delegates were also outspoken in defense of women’s rights.
Most prominent in this regard were Hansa Mehta (India, Phase II), Minerva
Bernardino (Dominican Republic, Phase III) Shaista Ikramullah (Pakistan,
Phase III), and Lakhsmi Menon (India, Phase III), along with Bodil Begtrup
from Denmark. Hansa Mehta appears to have irritated Humphrey, who
described her as a “determined woman.”90 In the Commission, she objected
to Humphrey’s initial, gendered phrase that “all men are created equal.”
Eleanor Roosevelt apparently found the wording unobjectionable,91 and the
Commission initially agreed that the term “men” was generic. Mehta and
86. See HUMPHREY, supra note 9, at 31–32.
87. See MORSINK, supra note 23, at 132.
88. See id. at 192–99.
89. See Third Committee Records, supra note 9, at 504, 515.
90. See HUMPHREY, supra note 9, at 24.
91. See GUREWITSCH, supra note 9, at 22.
Vol. 2364 HUMAN RIGHTS QUARTERLY
the UN Commission on the Status of Women continued to pursue the issue,
and the efforts to find a felicitous phrase continued. Ultimately, through
what appears to have been a clerical error, the text transmitted to the Third
Committee (Phase III) contained a phrase that had never formally been
voted by the Commission—but which was never subsequently disputed.92 In
some sense all the same, it is thanks to Mehta’s persistence that the text of
the UDHR reads: “All human beings are born free and equal.”93
Thirdly, many of the small states were very sensitive to discrimination of
any kind. Although the Soviet bloc used the question of discrimination to
badger the US delegation, the practice of discrimination was hardly limited
to the treatment of racial minorities in the United States. After all,
discriminatory legislation had laid a foundation for the Nazis’ genocidal
policy and practice. In addition, many different cultures chafed under racist
attitudes and policies of imperial powers in the first half of the twentieth
century. At the close of World War I, Japan had argued for the basic human
right of racial equality,94 and at the end of World War II, China took up the
refrain. China, in fact, proposed inserting reference to racial equality in the
Dumbarton Oaks documents.95 The South Asian delegates also expressed
deep concerns about discriminatory practices, particularly in South Africa.
They pursued their concerns with vigor over several years, at one point
provoking a rupture within the US delegation to the United Nations.96 As
92. See MORSINK, supra note 23, at 119–20.
93. UDHR, supra note 1, art. 1.
94. See LAUREN, supra note 21, at 91; HUMPHREY, supra note 9, at 32 (noting his regret that the
UNGA decided to remove reference to minorities from his earliest draft). On several
occasions, Eleanor Roosevelt reminded delegates that issues of discrimination would be
taken up with a separate protocol on minorities, no doubt a political concession in
which the United States and the United Kingdom had equal interest.
95. See LAUREN, supra note 21, at 169–70.
96. See The United Nations, V. The Question of the Treatment of the People of Indian
Origin in the Union of South Africa, in 2 FOREIGN RELATIONS OF THE UNITED STATES 1950, 559,
559–75 (1976) (document originally classified “secret”). In 1950, South Asian states
took the question of the treatment of Indians in South Africa to the General Assembly.
Over several months, the US delegation analyzed the situation as “a case of discord
among two non-Communist governments,” and in efforts to avoid exacerbating the
conflict and thereby provide opportunities for the Soviets to exploit, they discouraged
the initiative. Id at 561. The delegation was sent into a tailspin when Senator Henry
Cabot Lodge briefly joined the delegation and forcefully disagreed with the position. As
the delegate responsible for the item,
[h]e was surprised at the innocuous Indian resolution, and he thought the United States should
vote for it. . . . To him this item provided a great opportunity for the United States to build strength
to overcome some of the grave disadvantages under which our country labored because of the
civil rights question.
Id. at 565. Following extended discussion, Lodge did make a statement before the UN’s
Ad Hoc Political Committee, but the US position remained an equivocal one, ultimately
settled by Secretary of State Dean Acheson. See id. at 575.
2001 Universalizing Human Rights 65
communist ideology also eschewed racial discrimination, the Soviet bloc
countries persistently raised the issue. They usually found themselves in
large company.
Fourth, as a general point, many of the small states were committed to
carving out a role for themselves as full partners in the international system.
To this end, the Cuban delegation continuously argued in Third Committee
debates that articles of the draft UDHR should be recast to conform with the
American Declaration of the Rights and Duties of Man that had been
proclaimed in Bogota by the Organization of American States (OAS) just five
months before the UNGA committee began its formal consideration of the
draft UDHR.97 Their insistence on this careful consideration of the text no
doubt tried the patience of many delegates, but it also had the effect of
ensuring that every single article of the UDHR was scrutinized by the
UNGA Third Committee.
Last, but far from least, many small state delegations sought an end to
colonial rule. Just as the great powers deployed human rights as a rhetorical
weapon in the Cold War, many small states saw and seized opportunity to
use the human rights projects to advance the cause of independence and
self-determination. They argued pointedly that human rights should apply to
all people everywhere—irrespective of the political status of their country.
As with many other issues that rankled the colonial powers, this issue was
pursued most cleverly and most relentlessly by Soviet bloc delegates.98 The
charge was readily joined by states with clear and poignant memories of
colonial tutelage, including Syria, Haiti, and Pakistan. Omar Loufti of Egypt,
for example, supplied the phrase that eventually found its way into the
opening paragraph of the UDHR Preamble, mandating that rights were to be
upheld “‘both among the peoples of the Members States themselves and
among the peoples of territories under their jurisdiction.’”99
A number of parliamentary maneuvers within the Third Committee, a
drafting subcommittee, and again before the final UNGA Plenary (all within
Phase III) played themselves out before the UDHR text was finalized. Very
late in the debate, Yugoslavia—by that time diplomatically distanced from
the USSR—proposed a new and separate article making explicit the
universal applicability of the nearly completed UDHR. The colonial powers
resisted, masking their objections with lofty rhetoric extolling textual
integrity and sage cautions against unnecessary clauses. In the end, the
Yugoslav-led efforts to have a separate article failed.100 Nevertheless, even
97. See generally Third Committee Reports, supra note 9.
98. See id.
99. MORSINK, supra note 23, at 98 (emphasis added by author).
100. Third Committee Records, supra note 9, at 740–46, 853–63; U.N. GAOR, 180th
plenary mtg., supra note 57, at 932.
Vol. 2366 HUMAN RIGHTS QUARTERLY
without a separate article, the language now included in Article 2 reflects
the clearest statement of the principle of universality within the body of the
Declaration’s thirty articles:
Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth, or other
status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person
belongs, whether it be independent, trust, non-self-governing or under any
other limitation of sovereignty. [emphasis added].101
The debate on Article 2 also had the impact of advancing discussion on
the right to self-determination. In the heat of that debate, Pakistani delegate
Mr. Shari gave strong support to the universal applicability of the Declara-
tion. He argued “that the greatest deprivation a people could suffer was to
be denied its political independence” and asserted an “intellectual convic-
tion that freedom [is] indivisible.”102 Over the next several years, the notion
that fundamental freedoms must include the right to political independence
was cultured among the states of South Asia and the Middle East. In debates
over the Covenant on Civil and Political Rights (Phase IV), the twelve states
of Afghanistan, Burma, Egypt, India, Iran, Iraq, Lebanon, Pakistan, Philip-
pines, Saudi Arabia, Syria, and Lebanon proposed to include the right to
self-determination and to register the obligation of those responsible for
nonself-governing states.103 Their efforts were resisted at every turn by
colonial powers not yet persuaded that decolonization was an idea whose
time had arrived. For much of the 1949–1952 period, Western powers
fretted about how to counter the growing sympathy for what the US State
Department called “the Muslim resolution.”104 The twelve-country coalition
eventually won their fight for a legal right to self-determination, and when
the International Covenant on Civil and Political Rights (ICCPR) entered
force in 1976, that right became a provision of international law.
101. UDHR, supra note 1, art. 2.
102. Third Committee Records, supra note 9, at 745.
103. See The United Nations, II. Proposals for the Right of Peoples and Nations to Self-
Determination, in 2 FOREIGN RELATIONS OF THE UNITED STATES 1951, 775 (1976).
104. Declassified documents reveal a discourse that was largely disingenuous, turning on
procedural questions and oblique concerns. See id. At one point, an apparently
bemused Assistant Secretary of State with regional responsibilities queried how the
United States had come to a position of “opposition to a resolution relating to a
peculiarly American concept [self-determination].” Id. at 784.
Previous passages make clear that the underlying concern was how to avoid
alienating the French delegation, which was “very much worried about the inclusion of
any kind of article on self-determination, no matter how carefully drafted the language
might be.” Id. at 787.
2001 Universalizing Human Rights 67
IV. REFLECTIONS ON THE COMPLEX HISTORY
OF THE UNIVERSAL DECLARATION
In laying out the evidence of active participation by non-Western states in
the political construction of the UDHR, the author hopes to have presented
a persuasive rebuttal to claims that the international human rights project
was an extension of US and Western hegemony—or more precisely, a
rebuttal to claims that it was only designed and promoted to serve such
purpose. When a story is told from several perspectives, each retelling helps
the listener appreciate its inherent complexities. Each re-telling also serves
as an invitation to return, more critically, to initial versions. Alternative
accounts inevitably privilege different contributions, and different contribu-
tors. In regards to the story (or stories) of the UDHR, a number of obser-
vations can be made.
First, the UDHR never had a single author—at any stage. This
observation is most significant for those who, fifty years later, either claim or
question ownership of the document. Over the years numerous sources
have credited Cassin with authorship, but with benefit of archival materials
and close scrutiny of contemporaneous documents, it is now clear that
while this noted legal scholar participated actively in the debates, his main
contribution toward “authoring” the declaration was to copy it, by hand,
and make minor adjustments to the text.105 In a fundamental sense, the
UDHR is a composite and negotiated text.
Second, it is apparent that in privileging one set of actors, there is risk
that some important contributions will be overlooked or discounted. In an
otherwise important and insightful book highlighting the contributions of
nongovernmental organizations,William Korey unfortunately falls into this
trap, writing: “Far more consequential than the efforts of the tiny group of
small Latin American powers was the lobbying of important American
nongovernmental groups.”106 Likewise, in this article the author has been
aware that the highlighting of contributions of small states has given short
shrift to other actors who at various points were actively engaged in a
shared endeavor. If we are committed to acknowledging the validity of
different stories, there is no easy solution to this problem. At minimum, it is
important to acknowledge that there are multiple stories, and thus multiple
truths. It may be tempting to view the UDHR saga as an account of
hegemonic maneuvers pure and simple, but such a reductionist approach
involves risk for the analyst. Some ideas included in the UDHR—most
105. In a footnote, Morsink traces some of the events and publicity that led to a widespread
belief that Cassin provided the initial draft. See MORSINK, supra note 23, at 343 n.59.
106. KOREY, supra note 18, at 39 (emphasis added by author).
Vol. 2368 HUMAN RIGHTS QUARTERLY
notably the concern for socioeconomic rights, but equally as we have seen
the expression of gender equality—were actually opposed (or disregarded)
by the hegemon. Some of these ideas are reflected in the UDHR and other
human rights instruments because small states argued for them, and won.
Third, it is worth considering the extent to which hegemonic ap-
proaches in and of themselves contribute to the mystique of hegemonic
dominance. What is the effect of assuming that the United States, and its
allies, were the promoters of the UDHR? This article concludes that
hegemonic approaches to the analysis of the political project of human
rights have tended to exaggerate the US commitment to the human rights
project, even in the early stages. In the field of international relations,
hegemonic approaches come in two varieties. Realist approaches empha-
size the overt moral authority of a powerful state and frequently attribute all
positive outcomes to its efforts.107 Alternatively, Gramscian approaches
emphasize the subtle influence of social and political forces in producing
and reproducing structures that maintain dominance by those already in
power.108 In rather crude terms, both paths lead to the same conclusion,
namely that the interests of power are always served. With regard to human
rights, hegemonic approaches attribute the political project of international
human rights to the United States (or the West) and ascribe as its purpose the
service of hegemonic interests.
Hegemonic approaches offer important insights and their value should
not be disregarded.109 At the same time, it is important to understand and
appreciate the limitations of approaches that privilege the role of power. Just
107. Defending hegemonic stability theory, Robert Gilpin writes:
[A]n international system is established for the same reason that any social or political system is
created; actors enter social relations and create social structures in order to advance particular sets
of political, economic, or other types of interests. Because the interests of some of the actors may
conflict with those of other actors, the particular interests that are most favored by these social
arrangements tend to reflect the relative powers of the actors involved.
ROBERT GILPIN, WAR AND CHANGE IN WORLD POLITICS 9 (1981).
In a pertinent discussion of these matters as they pertain to human rights, several
years ago David Forsythe challenged Jack Donnelly’s assertion that dynamics within the
American regional human rights regime, centered around the Organization of American
States, could be attributed to the dominant power of the United States. While
acknowledging the importance of Donnelly’s contribution, Forsythe’s examination of
dynamics within the OAS regime suggests that US influence can be overestimated, and
that a number of regime developments came about despite US opposition or passivity.
See Jack Donnelly, International Human Rights: A Regime Analysis 40 INT’L ORG. 599,
625 (1986); FORSYTHE, INTERNATIONALIZATION, supra note 5, at 92–94.
108. See Robert W. Cox, Gramsci, Hegemony and International Relations: An Essay in
Method, 12 MILLENIUM 162–75 (1983); THE ANTONIO GRAMSCI READER: SELECTED WRITINGS,
1916–1935 (David Forgacs, ed., 2000).
109. Evans, for example, has used hegemonic analysis to explain how, without the support of
the United States, the multilateral human rights regime was weakened from the start.
EVANS, supra note 3.
2001 Universalizing Human Rights 69
as they tend to exaggerate the role and interests of the hegemon, hegemonic
approaches discount other confluent interests. In the case of the UDHR,
attention to Cold War dynamics has tended not simply to dominate the
literature, but to obfuscate understanding of the full range of relevant
political dynamics. Although it was sometimes difficult for the US delega-
tion to appreciate and accept,110 small non-European states tended to
identify and pursue human rights issues that were relevant to their own
global political concerns. In addition, Burgers has shown that in the
interwar period, many nongovernment organizations were pressing for
political action on human rights.111 The FIDH launched the first call for a
worldwide declaration of human rights in the late 1920’s. Latin Americans
were shocked by European and US impassiveness in the face of brutal
attacks on civilians during the Spanish Civil War; US Southerners organized
to stop lynchings in the US; and the plight of Jewish refugees won the
sympathy of political activists well before the worst atrocities were known.
Many felt Franklin Roosevelt was slow to act, and his 1941 Four Freedoms
speech, when it came, is better described as a catalytic agent that gathered
sentiments others had put in circulation, than as a seminal event that
inspired the entire project.
Even Gramscian approaches tend to exaggerate hegemonic powers.
Eleanor Roosevelt was popularly acclaimed as “First Lady of the World,” but
many fail to recognize that she was not at all popular in some influential
circles. Declassified State Department records reveal some important rifts
between her own views and those advanced by senior advisors within the
State Department.112 If put to popular referendum in the United States in
1948, it is doubtful that the UDHR would have been endorsed by the
electorate. Among the leading opponents of the international human rights
project was Frank Holman, President of the American Bar Association.
Along with other opponents of “treaty law” he launched a crusade against
the international bill of rights, shamelessly pandering to racists as he decried
110. An internal memorandum of the 1950 US Delegation to the General Assembly notes:
Many members of the Third Committee seemed to me to be motivated by deep emotional
convictions rather than by the political considerations which are in evidence elsewhere in the
assembly. They take very seriously the fact that the Third Committee deals with social, cultural,
and humanitarian problems, and they take pride in discussing these problems on their own merits
without regard to political considerations. . . . [I]n the Third Committee they take pleasure in
voicing their independence and in functioning almost as though the “cold war” did not exist.
The Question of the Treatment of the People of Indian Origin in the Union of South
Africa, supra note 96, at 578.
111. See Burgers, supra note 20, at 450–54.
112. See The United Nations, I. The Draft International Covenant on Human Rights, in 2
FOREIGN RELATIONS OF THE UNITED STATES 1951, 740–42 (1976) [hereinafter I. The Draft
International Covenant on Human Rights].
Vol. 2370 HUMAN RIGHTS QUARTERLY
any initiative that might limit states’ rights.113 By 1953, in fact, the United
States had abandoned the international human rights project it helped
inaugurate.114 It took nearly thirty years for the United States to ratify the
ICCPR, and in the interim, the United States was completely removed from
processes that institutionalized the work of the ICCPR’s Human Rights
Committee.115
As a final observation, in the area of human rights at least, there is
inherent risk in conflating ideas of US perspectives with those of the “West.”
(Likewise, there is risk inherent in stereotypic thinking about the Soviet bloc,
Third World or “small states,” but in this passage particular attention should
be called to divisions within what might appear a cohesive “western” bloc.)
While Franklin Roosevelt promoted the idea of human rights at Dumbarton
Oaks, Great Britain resisted the idea. France was one of the strongest initial
supporters of the international human rights project, but soon after the
Universal Declaration was finalized, its worries about the dismantling of its
empire—in North Africa and beyond—eclipsed its initial enthusiasm.
Throughout the entire process of negotiating components of what is now
known as the International Bill of Rights, US delegations were edgy about
the issue of racial discrimination, and perhaps more so about the elabora-
tion of socioeconomic rights. Australia, New Zealand, Netherlands, Swe-
den, and Norway frequently voted opposite their European and North
American colleagues.
The problems with counterfactual analysis are well recognized,116 but
by way of conclusion, it is useful to speculate about what might have been
the eventual form and content of the UDHR had small states not been
present and active in its construction. The UDHR might have been a shorter,
113. For additional information about Holman’s role in this era, see DAVIES, supra note 17, at
145–91.
114. As suggested in note 104, realist approaches do help explain the United States abrupt
(but little-remembered) change of heart about international human rights. Cold War
concerns abroad and the defense of states’ rights at home easily eclipsed the World War
II rhetoric of human rights and fundamental freedoms. Almost immediately following
Roosevelt’s death—and just two weeks before the opening of the meeting in San
Francisco that chartered the United Nations—the United States began to backpedal on
its commitment to human rights. Korey is correct to claim that nongovernmental
organizations played a heroic role at San Francisco. Their intensive lobbying of the US
delegation was instrumental in persuading the United States to maintain its initial
commitment. See KOREY, supra note 18, at 35; LAUREN, supra note 21, at 246–48. Eleanor
Roosevelt, once appointed to the Commission, did become an ardent and formidable
champion of human rights, but she had her own battles to fight with the US State
Department. See I. The Draft International Covenant on Human Rights, supra note 112.
115. See DOMINIC MCGOLDRICK, THE HUMAN RIGHTS COMMITTEE: ITS ROLE IN THE DEVELOPMENT OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 16–18 (1991).
116. See COUNTERFACTUAL THOUGHT EXPERIMENTS IN WORLD POLITICS: LOGICAL, METHODOLOGICAL, AND
PSYCHOLOGICAL PERSPECTIVES (Philip E. Tetlock & Aaron Belkin eds., 1996) (for an approach
to evaluating counterfactuals).
2001 Universalizing Human Rights 71
more inspirational document, as the United States wanted—though the
United Kingdom initially (in Phase II) pressed for a fully justiciable
declaration.117 Almost certainly, the content would have been more limited.
Without the arguments and votes of the small states, the UDHR would
probably not have included socioeconomic rights or consistent condemna-
tion of discrimination. The rights of women might also have been
downplayed. Without the insistence of small states on the applicability of
human rights even in the shadow of colonial tutelage, the Declaration might
not have included explicit provisions of universality and its name might in
fact have remained the International Declaration rather than the Universal
Declaration of Human Rights. The Soviet bloc, or even certain Western
delegations, would in any event have pressed some of these issues, but the
critical votes were delivered by small states subsequently recognized as the
Third World. Their contributions are among the features of the UDHR that
permit people from all sorts of backgrounds to embrace the Declaration out
of “their own ‘normative heartland.’”118
In the history of the modern state, the drafting and ratifying of treaties
has rarely been subject to public scrutiny, in any country. Approval
processes for the UDHR and human rights treaties over the second half of
the twentieth century have generally conformed to the historical practice. At
the end of the twentieth century, and into the twenty-first, new sensibilities
about democratic deficits are challenging that established practice, and it
may change someday.119 This essay is not intended to defend a reification of
the Declaration approved in 1948. Like most foundational texts of its kind,
the Universal Declaration is a living document, subject to interpretation and
elaboration. As new understandings of human rights problems and chal-
lenges develop, the need may arise to amend or supplement the document
that for several decades has benchmarked the practice of good governance.
It is right and good that discussions about the ownership of human
117. See MORSINK supra note 23, at 8; HUMPHREY, supra note 9, at 39.
118. See MORSINK, supra note 23, at 96.
119. That prospect, however, should give some pause to human rights activists, for it was
concern about just such a democratic deficit—expressed in the language of the day as
“states rights”—that fed the most serious domestic challenge to US participation in the
international human rights regime. The proliferation of foreign agreements during the
Roosevelt administrations inspired Senator John Bricker and his cohorts to propose a
constitutional amendment to prohibit a president from entering treaties and agreements
without express consent from the federated states. Bricker’s initiative failed by only one
vote in the US Senate. Conceding defeat after a decade of ardent campaigning,
American Bar Association President Frank Holman wrote to console Bricker, “[a]lthough
a constitutional amendment was not achieved the fight for it exposed and stopped the
attempt by Mrs. Roosevelt and her do-gooders to superimpose upon our own Bill of
Rights so called ‘human rights’ covenants, pacts, conventions, and treaties.” DAVIES,
supra note 17, at 191.
Vol. 2372 HUMAN RIGHTS QUARTERLY
rights and the international documents that undergird them take place.
Without such discussions, the document cannot find local anchor. As these
discussions progress, though, it is important that proponents of universality
develop a more robust appreciation of the document’s origin. Contrary to a
belief that, ironically, has served hegemonic interests, the UDHR was not
the brainchild of the great powers. At best, it was their stepchild. As Syrian
delegate Abdul Rahma Kayala put it during the UNGA plenary session that
approved the UDHR,
Civilization [has] progressed slowly through centuries of oppression and
tyranny, until finally the present declaration [has] been drawn up. It was not the
work of a few representatives in the Assembly or in the Economic and Social
Council; it was the achievement of generations of human beings who [have]
worked towards that end. Now at last the peoples of the world [will] hear it
proclaimed that their aim had been reached by the United Nations.120
The birth of the UDHR was nothing less than a political event, and its
legitimacy as a standard for good behavior by states derives not so much
from its intellectual lineage as from the political recognition of its birth. As
the more obscure parts of the UDHR history are reclaimed, perhaps disputes
over parentage can be set aside. Whatever the future holds for the
elaboration of human rights standards, the UDHR is a legacy that all of us
can rightfully claim.
120. U.N. GAOR, 180th plenary mtg., supra note 57, at 922.
The Making of Humans and Their Others in and through
Transnational Human Rights Advocacy: Exploring
the Cases of Mukhtar Mai and Malala Yousafzai
S
omeone recently asked me what I thought of the surge of sentiment
against global human rights icon Malala Yousafzai in Pakistan: “How
could anyone from Pakistan not be proud of her? Doesn’t her work
advance women’s rights in your country?” The questioner was genuinely
interested in knowing how I, a self-identified transnational feminist immi-
grant scholar from Pakistan, understood the visceral repulsion in response
to Malala within some quarters in Pakistan. “Why,” she asked, “would any
educated Pakistani be against Malala? After all, one could expect such atti-
tudes from the illiterate lot, but why the All Pakistan Private Schools Fed-
eration?” Implicit in this question are assumptions about women’s rights
and education as signs of modernity, enlightenment, and progress. Any cri-
tique of Malala, then, is read as regressive, backward, premodern, and against
the principles of human rights. Indeed, any critique of the discourse of hu-
man rights is made incomprehensible because the discourse articulates it-
self as universal and morally correct and, in recent times, has exhausted the
space for how we imagine emancipatory possibilities and projects (Yeğen-
oğlu 1998; Kapur 2013). Yet, as feminist and post/de/colonial scholars ar-
gue, the very constitution of “human” in human rights discourses is predi-
cated on assumptions about that which is not human (Brown 2004; Mignolo
2006; Fregoso 2014). The discourse thus has colonizing and orientalizing
functions for those who have been, and are, excluded from its imaginary
(Yeğenoğlu 1998). In this article, to examine this constitutive role of human
rights advocacy and the politics of knowledge-making practices, I explore the
making of humans and their others in and through the discursive construction
of two global icons of human rights advocacy—Mukhtar Mai and Malala
Yousafzai, both from Pakistan.
Specifically, I analyze Mukhtaran and Malala’s discursive articulation in
anglophone electronic media to illustrate the ways in which the notions of
vulnerability, suffering, and empowerment that cohere around them facil-
itate the marking of brown, Muslim, Pakistani bodies as threatening the ra-
cial, civilizational, and ultimately humanitarian integrity of the white, anglo-
phone, often Christian male subject. Like other feminist and postcolonial
[Signs: Journal of Women in Culture and Society 2017, vol. 42, no. 2]
© 2016 by The University of Chicago. All rights reserved. 0097-9740/2017/4202-0004$10.00
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scholars, I illustrate the ways in which the public discourse around Mukhtaran
and Malala reinscribes brown, Muslim, female bodies as perennially vulner-
able to brown, male violence (Spivak 1988; Mohanty 2002; Abu-Lughod
2013); articulates the violation of their corporeal bodies as a confirmation of
their communities and nations as belonging to the time-space of the past; and
views empowerment as individualized action against local cultures, families,
and communities. Such knowledge-making practices not only secure the con-
tinuum of man to beast (Agamben 1998) but also (re)entrench the teleo-
logical narrative of liberalism where acquisition of more rights by individ-
uals is assumed to be the only way to secure development and emancipation.
This, however, clearly has consequences for those who are excluded from, or
made nonexistent by, the liberal humanist project. There is, thus, a need for a
reevaluation of the very terms and idioms that inform human rights advocacy.
I take up this task of decolonizing and pluriversalizing human rights
(Mignolo and Tlostanova 2006) by pointing to alternative conceptions of
what it means to be human and to lead a meaningful life that already cir-
culate in the context of Pakistan. Drawing on my fieldwork with adolescent
girls in the villages of Khyber and Aliabad, I observe that the autonomous,
individual subject of the human rights discourse exists side by side with con-
ceptions of being human that traverse the delicate space between individu-
ality and belonging to collectivities, be they families, tribes, religious com-
munities, or clans. My findings show that the participants experienced their
humanity in relational terms; that they viewed themselves as embedded in
different systems of living, including nonhuman ones; and that they empha-
sized a heightened sense of complementarity and interdependency to achieve
individual as well as collective well-being. When living that is experienced in
such complex ways is reduced to a list of rights, or to legal and state-defined
definitions of what constitutes freedom, which close off other emancipatory
projects, it can be read as a form of violence (Kapur 2013; Fregoso 2014).
Thus, I call for reconstructing the human rights discourse such that it ac-
knowledges multiple and diverse conceptualizations of what it means to be
human and how one might live with dignity, giving up its claims to univer-
sality. This, however, is only one example of how the project of pluriversaliz-
ing human rights can be achieved; other scholars may take up other philoso-
phies and epistemologies of the global South to outline alternate conceptions
of what it means to be human and experience human empowerment.1
1 An increasing number of scholars are turning toward nonliberal epistemologies to ex-
cavate alternate conceptions of human dignity, freedom, and happiness. Amina Jamal (2015)
seeks to do so by drawing on the Sufi tradition, and Ratna Kapur (2013) draws on the phil-
osophical tradition of nondualism or Advaita to do the same.
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The proliferation of human rights and its critiques
In recent decades, the language of human rights has become the domi-
nant idiom in and through which injustices are articulated and redresses
sought (Benhabib 2007). In the context of Pakistan, too, the language of
rights is gradually attaining the status of common sense. Local and trans-
national organizations and activists deploy this language to advance the
welfare of Pakistani women and girls. Studies show that some activists find
that it helps them appeal to a supranational community and reprimand a pa-
triarchal state (Grewal 2005; Khoja-Moolji 2014). In other cases, activists
who are cautious of the Western lineage of the language of rights try to
figure out ways to lay claim to the same ideals of dignity and protection of
women by vernacularizing and Islamizing the rhetoric of rights.2 Yet oth-
ers, recognizing the hegemony of the discourse of human rights, are ex-
ploring ways to use it in counterhegemonic, strategic ways. In short, human
rights have become the dominant vocabulary of human dignity and empow-
erment (Santos 2013).
Transnational feminist and postcolonial scholars, however, are wary of
this celebratory uptake of human rights discourse. They direct attention to-
ward the kinds of subjects and objects that are produced in and through it,
as well as its function in naming and consolidating distinctions between the
human and the subhuman, the free and the oppressed, the secular and the
religious, the developed and the undeveloped.3 Lila Abu-Lughod (2013),
for instance, argues that efforts of Islamizing and vernacularizing human
rights retain a common referent—human rights laws and documents—and,
hence, do little to contest the assumptions of this discourse. Likewise, In-
derpal Grewal (2005) views human rights as a system of truth and an “ethical
regime that put(s) into play a whole range of instrumentalizations of gov-
ernance” (122). She elaborates that human rights discourses have enabled
the indexing of the welfare of populations and, hence, facilitate the con-
vergence of geo- and biopolitics. Similarly, my own work in Pakistan ex-
plores the disciplinary effects of UN-centric human rights discourses as they
delineate specific forms of belonging as worthy of citizenship (Khoja-Moolji
2014).
Undergirding these critiques is a recognition and contestation of the hu-
manist philosophies and Eurocentric assumptions that inform human rights
discourses (Merry 2006; Mignolo 2006; Benhabib 2007). Within the doc-
trine of humanism, only particular kinds of subjects are recognizable as hu-
man, and all else is constituted as the other or the repressed other through
2 See Abu-Lughod (2013) for a review of such organizations and activists.
3 See Wynter (2003), Grewal (2005), Hesford and Kozol (2005), and Esmeir (2011).
S I G N S Winter 2017 y 379
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practices of racialization, sexualization, and naturalization (Yeğenoğlu 1998;
Wynter 2003; Braidotti 2013). Therefore, to explore the politics of human
rights advocacy we have to examine the constitution of the (non)(sub)(in)
human and the process of dehumanization. Indeed, Wendy Brown (2004)
insists that we interrogate the self-articulation of human rights as an anti-
political project and ask questions not only about its political functioning but
also about the processes of politicization that it sets in motion. I therefore
set out to examine the archives of Mukhtaran and Malala, as case studies, to
argue that their production as particular kinds of vulnerable, suffering, and em-
powered subjects in and through the language of human rights has the ef-
fect of (re)installing the white anglophone male as representing full humanity.
Analyzing cultural productions
Electronic media today have become some of the most powerful ways to
shape public discourse and, hence, make for productive sites for analysis
(McDermott 1995). I examine Mukhtaran and Malala’s representations in
popular electronic media outlets primarily located in the global North to ex-
plore the dominant discursive tropes and formations in and through which
they are articulated. Focusing on media and public intellectuals from the
global North is a way to understand the constitutive force of those discursive
practices as they are put in play from positions of strength (including posi-
tions of wealth and relative power). Indeed, discursive representations orig-
inating from the global North have a “distributive currency” (Said 1978, 23)
that is often not available to their counterparts in the global South. Further-
more, their dominance is also a function of their recuperation and re-citation
of sedimented tropes, which awards them prominence (Stoler 1995). Ana-
lyzing elite media productions, then, is one way to unpack these dense as-
semblages. Indeed, transnational feminists have long argued for such analyses
in order to make visible the processes of abstraction and spectacularization
that cast particular individuals as either ideal-victim subjects or empowered/
rescued subjects (Hesford 2011; Abu-Lughod 2013).
Data sources for this article include images, writings, and speeches fea-
tured in magazines such as Time, the Economist, and Newsweek; newspa-
pers such as the New York Times and the Washington Post; and online news
sites such as CNN, the BBC, and the Huffington Post; as well as the public
discourse of journalists and figures such asNew York Times journalist Nich-
olas Kristof and the former prime minister of the United Kingdom and
current UN envoy for global education, Gordon Brown, both of whom have
been prominent in speaking about Mukhtaran and Malala, among others. I
also examine the webpages of Western organizations that have presented
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Mukhtaran and Malala with accolades in order to explore their narratives
around such formal recognitions. My intent in this article, however, is not to
provide a comprehensive analysis of the public archives around Mukhtaran
and Malala (much of that appears in Khoja-Moolji 2015) but to consider
some elements for illustrative purposes to explore the operation of human
rights advocacy.
Objects and subjects of human rights advocacy
In 2002, Mukhtar Mai was gang-raped in Meerwala, Pakistan. The rape
was intended to serve as retributive justice for alleged sexual advances made
by her twelve-year-old brother, Abdul Shaqoor, toward a woman, Naseem,
from the more powerful Mastoi clan. While a tribal council had earlier agreed
that Shaqoor would marry Naseem and Mukhtaran would marry Naseem’s
brother Abdul Khaliq, two arbiters from the Mastoi tribe—Ramzan Pachar
and Ghulam Farid Mahmood—rejected the proposal. They decided instead
that dishonoring someone related to Shaqoor would be the appropriate
way to resolve the issue.4 As a consequence, Mukhtaran was raped by Abdul
Khaliq, Allah Ditta, Muhammad Fiaz, and Ghulam Farid Mahmood.5 She
filed a case against them, which led to fourteen men being arrested, four of
whom had committed the rape while the others were part of the tribal council.
Of these, Abdul Khaliq, Allah Ditta, Muhammad Fiaz, Ghulam Farid Mah-
mood, Ramzan Pachar, and Faiza Muhammad were found guilty. The men
appealed the court’s decision, and in 2005, all but Abdul Khaliq were ordered
to be released upon payment of a bond. In 2011, the Supreme Court upheld
this verdict.6
Mukhtaran’s case received significant attention from human rights or-
ganizations and media outlets when the then-president of Pakistan, Pervez
Musharraf, disallowed her to travel to the United States to share her story.
It was believed that such a retelling would tarnish an already problematic
image of Pakistan in the United States. Musharraf’s decision was condemned
by the media, and Pakistan’s legal system was criticized. Since then, a broad
range of groups and individuals have rallied around Mukhtaran to amplify
her voice and story, and to seek justice for other women in Pakistan. For
instance, in 2005, Time magazine named Mukhtaran one of its 100 Most
Influential People, and Glamour magazine declared her its Woman of the
Year. In 2007, she was awarded the prestigious Council of Europe North-
4 See Supreme Court Pakistan, Criminal Appeal 163, http://www.pakistanlaw.net/wp
-content/uploads/2011/06/Mukhtar-Mai-case.pdf.
5 Ibid., 3.
6 Ibid., 5. For more information about Mukhtar Mai’s case, see Khoja-Moolji (2013).
S I G N S Winter 2017 y 381
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South Prize, which seeks to honor efforts made to advance human rights
and strengthen North-South relations. In receiving this award, Mukhtaran
joined the likes of the Aga Khan, Kofi Annan, Mikhail Gorbachev, and Queen
Rania of Jordan, among others. In 2013, she was invited to speak at the
Geneva Summit for Human Rights and Democracy. Mukhtaran has also es-
tablished a welfare organization in Pakistan with some of the funds that she
received from prize monies and from the government of Pakistan. Wikipedia
lists Mukhtaran’s occupation as “human rights activist,” which is one of the
clearest indications of how her activism in the aftermath of her personal trag-
edy is articulated.7
Similar to representations of Mukhtaran’s suffering and advocacy, the
international media coverage of Malala Yousafzai also situates her as both
an object and a subject of human rights advocacy. In 2012, Malala, then
fifteen years old, was shot in the head upon the exhortations of Mullah
Fazlullah (also known as “Radio Mullah”), an emerging leader of Tehrik-
e-Taliban Pakistan. The shooting was organized by a group of ten men led
by Zafar Iqbal. Malala had been writing against the atrocities of the Taliban
militants in her native valley of Swat, particularly on their call for school
closures. Her activism included appearing in two documentaries produced
by New York Times journalist Adam Ellick and writing a blog for BBC Urdu.
Her father had been vociferous on this issue as well, especially since he owned
and operated a school, which was his primary source of income. The shoot-
ing was aimed at halting their activist work. As with Mukhtaran’s case, this
event too attracted international attention, with people inside and outside of
Pakistan condemning the attackers. Pakistani state institutions immediately
provided medical assistance to Malala. She was taken to an army hospital
and later transferred to a hospital in the United Kingdom. Malala recovered
shortly thereafter and now resides in the United Kingdom.
Malala’s activism had already started gaining attention in Pakistan be-
fore the shooting. In 2011, for instance, she was nominated for the Inter-
national Children’s Peace Prize. However, after the shooting, attention to-
ward her increased manifold. Gordon Brown launched a petition called “I
am Malala” to put pressure on the Pakistani government to address girls’
rights to education. In 2013, Malala, like Mukhtaran, was named one of
the 100 Most Influential People by Time magazine and Woman of the Year
by Glamour magazine. Like Mukhtaran, Malala has also come to symbolize
human rights struggles in Pakistan—in 2012 she was awarded the Rome Prize
for Peace and Humanitarian Action, and in 2013 she received the Sakharov
Prize for Freedom of Thought from the European Parliament, the Human-
7 See https://en.wikipedia.org/wiki/Mukhtar_Mai.
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itarian of the Year award from Harvard University, the Ambassador of Con-
science award from Amnesty International, and the UN Human Rights Prize
from the Office of the High Commissioner for Human Rights. She was also
nominated for the Nobel Peace Prize in 2013, and again in 2014, when she
won, along with Kailash Satyarthi. That year she also received the Anne Frank
Award for Moral Courage.
The public discourse around both Mukhtaran and Malala is constituted
in and through the language of UN-centric human rights. This includes an
articulation of their suffering as a violation of human rights but also a reading
of their courage as an enactment of individual autonomy and a recognition
of rights, as demonstrated by the numerous awards they received. In addi-
tion, both take up the language of rights to explain the specifics of their
personal experiences and to frame their desires for girls and women in Paki-
stan. For instance, while acknowledging the advances made by state institu-
tions in Pakistan to improve the conditions for women, Mukhtaran writes that
the United Nations “can and must do so much more” (Mai 2013, para. 13)
and calls on the organization to help victims of violence in Pakistan: “The
UN can help rape victims like me, and other unempowered women in Paki-
stan, by calling on Pakistan to implement its international undertakings to
respect our universal right to human dignity and equality, and to truly guar-
antee access to education” (paras. 15 and 16; emphasis added). Malala, too,
has productively used the language of rights to draw attention to women’s
and girls’ issues. In a statement made after the announcement of her win-
ning the Nobel Peace Prize, she said, “a girl has the power to go forward in
her life . . . she should have an identity. She should be recognized, and she
has equal rights as a boy” (quoted in Kumar 2014; emphasis added). In her
acceptance speech for the same prize, Malala again articulated her activism
through the language of rights: “This award is not just for me . . . it is for
those voiceless children who want change. I am here to stand up for their
rights. . . . I am just a committed and even stubborn person who wants to see
every child getting quality education, who wants to see women having equal
rights and who wants peace in every corner of the world” (Yousafzai 2014;
emphasis added).
Hence, Mukhtaran and Malala can be read as both objects and subjects
of human rights advocacy. That is, observers draw on discourses of human
rights to make sense of their suffering and activism, and Mukhtaran and
Malala draw on the same idioms to constitute themselves and others as
rights-bearing subjects. Mukhtaran and Malala traverse what I am terming
the “chain of vulnerability-suffering-empowerment” established by and
within contemporary human rights regimes, which transforms them from
vulnerable and suffering to empowered women/girls. The metaphor of a
S I G N S Winter 2017 y 383
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chain is productive for me as it draws attention to the teleological and pro-
gressive linking of these subject positions in the dominant discourse of
human rights—that is, a brown woman inevitably has to travel through this
chain in order to achieve the kind of empowerment recognized by the lib-
eral humanist discourse of rights.8 Such forms of legibility, as feminist post-
colonial scholars have shown, are an effect of discourses about Islam and Mus-
lim men that displace brown, Muslim bodies from dominant performances
linked to being human.
“Monsters rule in Pakistan”
The production of the Muslim world/Orient as antagonistic to the rights of
women and embroiled in premodern sensibilities is made possible through
an invocation of the binary of vulnerable Muslim women and threatening
Muslim men.9 From the British colonizers and missionaries’ calls to save
“Moslem women” from the practices of purdah, polygamy, and child mar-
riageto thecontemporarycallsbyhuman rights advocatesto giveMuslimgirls
an education and rescue them from backward cultures, oppressive families, and
child marriage (note the sturdy trope), the construction of Muslim women
as silent andvulnerablehas a longdiscursivehistory.Inthe context ofcolonial
India, for instance, these tropes enabled Victorian social reformers to inau-
gurate their humanitarian-cum-regulatory projects of education—including
zenana visitations whereby female missionaries and teachers entered the
homosocial spaces of Muslim households to educate women—and sanc-
tioned rescue/emancipatory missions (Montgomery 1910; Burton 1994).
Echoes of such constructions can be heard in the more recent public dis-
course of human rights as it relates to Mukhtaran and Malala.
Writing for the Huffington Post, Thor Halvorssen, the president of the
New York–based nonprofit Human Rights Foundation, for instance, titles
his commentary about Mukhtaran’s rape “Monsters Rule in Pakistan;
Rape Is Public Policy” (Halvorssen and Pizano 2011). Here, Pakistan is dis-
cursively produced as a haven for rapists and Pakistani leaders—mostly Mus-
8 I am inspired by Nancy Lesko’s use of the term “chains of reasoning” (2001, 180) to
theorize the story lines of Mukhtaran and Malala as traversing chains of vulnerability-suffering-
empowerment. There are, however, moments when both Mukhtaran and Malala break this
chain—for instance, when Malala uses international attention to discuss issues related to Pal-
estinian children or drone strikes in Pakistan—yet the chain is operative when it assimilates
their activism back into its dominant codes. To argue against this chain is to argue for messy,
nonlinear ways of being, as I will discuss later in this article.
9 See Said (1978), Bhattacharyya (2008), Shehabuddin (2011), and Charania (2015).
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lim men—likened to monsters: “You see, rape is standard punishment in
Pakistan for women and girls who have brought dishonor to their fami-
lies or communities. . . . Violence of this sort is common practice in Pakistan,
considered part of an ancient ethical code, commonly referred to as ‘honor
revenge’ and ‘honor killings’” (2011, paras. 2 and 5).
Such discursive maneuvers produce Pakistan and Pakistanis as embroiled
in premodern sensibilities and as harboring ill will toward women and girls.
Instead of analyzing the complicated sequence of events that led to Mukh-
taran’s rape, including the nascent and still struggling system of law and
patriarchal attitudes, as well as the good will of the many people who stood
up for her, including her own parents and the mullah of the local mosque,
what we find is an image of Pakistanis as less-than-humans or as monsters.
Similarly, New York Times journalist Nicholas Kristof, who has written ex-
tensively about Mukhtaran, also constructs Pakistani citizens and cultures
as threats to Mukhtaran. In an article titled, “Sentenced to Be Raped,” Kristof
exclaims, “I did encounter a much more ubiquitous form of evil and terror:
a culture, stretching across about half the globe, that chews up women and spits
them out. We in the West could help chip away at that oppression, with health
and literacy programs and by simply speaking out against it” (2004; em-
phasis added). Elsewhere, in a video produced for the New York Times ti-
tled “The Courage of Mukhtar Mai,” Kristof (2006) notes, “When she is
being welcomed at the White House or receiving thunderous standing
ovations in New York, it is easy to imagine that she is safe. But when the
spotlights go down, she returns here to the village in Meerwala where many
people want to kill her for threatening the existing repressive order.”
These discursive practices produce the Western subject as free, empow-
ered, and humanitarian, and the people and culture of Meerwala and Pa-
kistan (Muslims in this case) as repressed and backward, harboring ill will
toward women. In order to present himself and others like him (“we in the
West”) as liberal and humanitarian, Kristof draws on the tired strategy of
blaming local cultures and traditions for bad behaviors, which feminists have
critiqued incessantly (Volpp 2000; Massad 2015). Similar invocations are
also made in cartoonist representations around Malala in elite newspapers,
featuring visual and textual rhetoric that portrays the undifferentiated mass
of bearded men, Islam, and the Taliban in stark contrast to Malala, books,
and education.10 Here, the latter stands in for the cherished ideals of civilized/
progressive people, and the former signals its lack.
10 The selection of images from elite newspapers such as the New York Times, the Washing-
ton Post, and Time magazine is one of the ways in which I attempt to delineate the loudest, most
dominant discourse about Muslim women and men.
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Consider the systematicity in visual representations of men in figures 1
and 2 with stereotypically ethnicized noses, excessive hair, deep frowns, and
screaming, wide-open mouths; in figure 2, in particular, the trope of the un-
educated Muslim, which has a long history in British writings about Mus-
lims in colonial India (Sarkar 2008; Batsha 2010), is reinvigorated.11 These
images evoke what Jasbir Puar (Puar and Rai 2002; Puar 2007) describes as
the terrorist-monster-fag assemblage, a necessary set of othered bodies—
often orientalized and racialized—that enable the constitution of the Amer-
ican (hetero)homonormative citizen. In this case, the discursive representa-
tions of Muslims and Pakistanis as monstrous help to define the key elements
of humanity, which is conflated with the West.
Affects play a critical role in rendering the Muslim male body as mon-
strous and in- or subhuman. Writing about the constitution of the Latina/o
citizen-subject, José Muñoz argues that Latina/o identity is not simply
a cultural marker but also an affective performance—a performance in re-
lation to an “‘official’ national affect” of whiteness (2000, 68). Since the
Latina/o citizen-subject is displaced and blocked from accessing majori-
tarian and official paradigms, it is impossible for her/him to perform official
citizenship and normativity (Muñoz 2000). While Muñoz focuses on iden-
tity constructions within the United States and, hence, links whiteness with
“national affect,” I extend this line of inquiry and draw on arguments about
the embeddedness of present ways of conceptualizing the human in
Eurocentric paradigms (Yeğenoğlu 1998; Braidotti 2013) to theorize white-
ness as the official human affect as well. Human affect, when linked with
whiteness, entails reason, control, and drabness. Within such a construction,
“excess” affect marks a displacement and, therefore, those displaying such
excesses are constituted as less than human. In the case of brown, Muslim
men, dominant cultural productions in the media mark them as figures of
excess, rage, and unpredictability, thereby constituting them as a displace-
ment from official human affects, which are linked with control, rationality,
and reason. In figures 1 and 2, for example, anger jumps off of the pages
and seeps into the viewer’s skin; the viewer affectively feels the threat of
brown men, and feelings of care and protection cohere around the innocent
girl. These affects rely on the re-citation of orientalizing tropes to maintain
their effect. Consider the images on the cover of magazines such as News-
week in September 2001 and September 2012 and the Economist in January
2008, as well as television shows, such asHomeland (see Shah 2014), where
11 Readers can also see images in the New York Times (particularly, http://www.nytimes
.com/2012/10/13/opinion/heng-cartoon-malala-yousafzai-shot-by-taliban.html); author
was unable to secure permission to reproduce the image.
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the trope of the angry, brown, Muslim man looms large. Without the re-
petitive use of these tropes in dominant media, or what we can describe as
processes of dehumanization, such representations would lose their histor-
ical connection to Muslim, brown bodies.
This trope, however, is repeated with difference (Deleuze [1968] 1995)
every time a new victim-subject emerges. That is, it adjusts itself with ev-
ery repetition, making way for anomalies and exceptions. For instance, in
Malala’s story, her father Ziauddin appears as supportive, visionary, and a
human rights activist. His dominant articulation, much like Malala’s, is that
of an exception against the background of the presumably known entity of
Pakistani Muslim men and a patriarchal society. Shiza Shahid, the CEO of
the Malala Fund, praises Ziauddin, writing: “He had no qualms about his
organization being run by a 24-year-old girl, an openness to gender and age
which is unheard of where he comes from” (Yousafzai and Shahid 2014; em-
phasis added). According to this rhetoric, Ziauddin’s desires and practices
of encouraging his daughter are not grounded in local environments but
against them.12 That is, particular kinds of attributes and activism—espe-
12 See Mohsin (2013) for an example of such writing.
Figure 1 “The Mortal Threat” by Nick Anderson, cartoonist for the Houston Chronicle
(October 18, 2012). © 2012 by Nick Anderson. Image courtesy of Nick Anderson, the Wash-
ington Post Writers Group, and the Cartoonist Group. A color version of this figure is available
online.
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cially those that are valorized in today’s neoliberal context—are assumed
to be properties that one acquires due to exposure to Western/Enlight-
enment/humanitarian ideas and education. Thus, what we have is a dis-
cursive and affective impossibility for Muslims and Pakistanis as a collec-
tivity to inhabit spaces that are constituted as human, with all of the liberal
humanist paraphernalia of freedom, democracy, and rationality.
The production of collectivities such as Muslims, Muslim men, and Pa-
kistanis as belonging to the time-space of the past—either as embroiled in
premodern sensibilities or as subhumans or monsters yet to develop into full
humans—has consequences for their treatment as a group (even as individ-
uals from such groups—such as Mukhtaran and Malala—may be spared that
treatment). When having a qualified life as a human is linked with whiteness,
a state of exception (Agamben 1998)—a time-space sanctioned by sover-
eign power where laws can be suspended—can be created around non-
whites.13 It is Pakistanis/Muslims/Muslim men’s already constituted status
Figure 2 “Malala Yousafzai Wins the Nobel Peace Prize; The Taliban’s Reaction” by Ann
Telnaes,Washington Post (October 10, 2014). © 2014 by Ann Telnaes. Image courtesy of Ann
Telnaes and the Cartoonist Group. All rights reserved. A color version of this figure is available
online.
13 A large number of Pakistanis in northern Waziristan have been displaced as a conse-
quence of the clashes between the Pakistani/American state and militants. Due to the con-
tinuing high rate of drone strikes, many are unwilling to return to their homes (Press TV
2014). The success of these strikes, according to a report by the United Kingdom–based Bu-
reau of Investigative Journalism, is around 12 percent; of the total 2,379 people killed, only
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of being less than human that allows for a devaluation of their political sub-
jectivity in relation to the American state. They can thus be subjected to state
violence without raising the same kinds of legal and humanitarian dilemmas
that might be operative in other contexts and in relation to those who are
deemed fully human/bios. This is illustrated by the overpolicing of brown
bodies in the streets of American cities, torture in the prisons of Abu Ghraib
and Guantanamo Bay, the invasion of sovereign states such as Iraq, the decla-
ration of a War on Terror against Pakistan, and drone strikes in Afghani-
stan and Pakistan. The certainty about the inhumanity of brown bodies
produces an ease with which their human rights are relinquished. Meyda
Yeğenoğlu (1998) reminds us that the West’s project of global domination
has entailed defining and imposing universally applicable norms of moder-
nity, development, and progress that deny freedom and autonomy to native
cultures. Likewise, in defining universal measures of humanity—through the
enumeration of rights, or by waging a war to protect human rights, for in-
stance—particular subjects are denied this very humanity. Here, politics, re-
ligion, and gender mesh in meaningful ways to show that not all political
lives are equal, and state violence draws on, and reproduces, cultural expres-
sions of some populations as bestial. In contrast, Mukhtaran and Malala’s
suffering occurs outside the domain of state-sanctioned violence, helping to
rearticulate the threat constituted by Muslim men, Islam, and local cultures.
These frames of recognition come together to make their suffering legible
within humanitarian regimes of care (Ticktin 2011). What is at stake here,
then, is that the horrendous crimes committed against particular victim-
subjects such as Mukhtaran and Malala by specific men are grafted onto an
entire set of people who are turned into bare bodies.
The particularized vulnerabilities and sufferings of Mukhtaran and Ma-
lala are also grafted onto the state of Pakistan, rendering it simultaneously a
vulnerable nation incapable of addressing the needs of its own population,
and hence requiring aid and assistance, and a threatening, suspect nation
with nuclear capabilities, and thus in need of regulation and, possibly, pun-
ishment. This paves the way not only for unsolicited military interventions
and sanctions but also for humanitarian projects. In Pakistan, humanitarian
projects have precipitated the privatization of public goods and services,
which does little to strengthen state institutions.14 Furthermore, foreign
aid to Pakistan has often been contingent on the state implementing struc-
tural adjustment programs, which include provisions for decreasing spend-
14 See Keating, Rasmussen, and Rishi (2010) for a critique.
295 can be identified as militants (Serle 2014). The probability of a civilian being killed, there-
fore, is fairly high, engendering vulnerability at a societal level.
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ing on social services. Hence, there is a circularity at work here—the vulner-
able state needs aid, which comes with contingencies that further weaken
state institutions, causing the state to require additional aid in the future.
The final link in the chain of vulnerability-suffering-empowerment ar-
ticulates a transformation of Muslim women and girls into empowered sub-
jects. However, a narrow conceptualization of empowerment is produced
here. Empowerment is constituted as an individualized act, where the sub-
ject makes her concerns audible by deploying the language of human rights
in opposition to local configurations of patriarchy, families, or communities.
This is apparent in the ways in which both Mukhtaran and Malala are pro-
duced as empowered. Malala, for instance, is valorized for standing up against
the collective of Taliban/Islam/terrorists. Popular American blogger Sam
Harris writes that “Malala is the best thing to come out of the Muslim
world in a thousand years. She is an extraordinarily brave and eloquent girl
who is doing what millions of Muslim men and women are too terrified to
do—stand up to the misogyny of traditional Islam” (2013, par. 17; empha-
sis added).
Likewise, Gordon Brown (2013) titled one of his articles for CNN “How
Malala Forced Terrorists onto Defensive.” And Malala herself titled her
coauthored autobiography I Am Malala: The Girl Who Stood Up for Educa-
tion and Was Shot by the Taliban (Yousafzai and Lamb 2013). In 2013,
Mukhtaran wrote an article for the National Post, a Canadian newspaper
in which she too emphasized Malala’s individualized performance of voice
and speaking up for rights: “Malala showed Pakistani women that they now
have a voice: a voice to demand their rights” (Mai 2013, para. 5). Similarly,
across public media archives, what seems to mark Mukhtaran as empowered
is her decision to pursue a legal case instead of committing suicide.15
These articulations collectively narrate empowerment as an individual-
ized action undertaken by women—standing up, speaking against, forcing,
demanding, fighting back—against the Pakistani legal system, its culture,
and its people. Empowerment in such discursive formations is theorized
as a delinking of girls and women from specific forms of attachments (to
their families, communities, and nation) and a developing of new kinds
of attachments (toward human rights laws, schools, and the labor market
[Dingo 2008]). Under this dominant logic of empowerment, women who
align with their husbands and families or who enact different versions of self
and communal care do not feature as empowered. This is clearly illustrated by
15 See Mukhtaran’s brief biography, under 2006, in the Council of Europe’s list of previ-
ous laureates for the North-South Prize (http://www.coe.int/t/dg4/nscentre/NSP/winners
_NSP_en.asp).
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how women who subvert imperialist ambitions in the context of Pakistan
or enact transgression in unfamiliar ways are often not invoked as work-
ing toward human rights.16 This includes women who engage in guerilla
warfare to resist American military establishments in Pakistan (and Afghan-
istan), those who protested Pakistan’s alliance with the United States against
the Taliban in 2007 as part of the siege of Lal Masjid, as well as the hundreds
of women who (as I write these words) have been participating in a sit-in
in Islamabad for the past hundred days to expose the alleged rigging in the
elections that brought Nawaz Sharif to power. These exercises of women’s
empowerment do not always employ the language of rights, are enacted
in concert with men, argue for a balance between collective and individu-
alized well-being, and often contest colonizing practices undertaken by West-
ern institutions as well as the elite within the country.Theyare,therefore,not
intelligible as enactments of empowerment within present discursive frames
of human rights.
In short, dominant public representations of victim-subjects such as
Mukhtaran and Malala in and through archetypal frames of vulnerable women,
threatening men, or a vulnerable/threatening state do little for the project
of extending our understanding about others. Instead, they reify the bina-
ries of human/monster and the contours of othered identities.17 What we
are left with, then, are reductive story lines that produce stable, knowable
third-world subjects. It should now come as no surprise that some people
have taken it upon themselves to observe “anti-Malala” days to contest their
own and their state’s marginalization that results from dominant discourses
about Malala. The specific slogan of the campaign launched by the All Pa-
kistan Private School Federation, “I am not Malala, I am Muslim, I am Pa-
kistani” (Express Tribune 2015; Ghani 2015), is a clear indication of the
group’s resistance to the ways in which Malala has been taken up to define
Pakistanis and Muslims, something that has real, material implications for
their everyday living. The paradox, however, is that any resistance to Malala
is often viewed as a sign of backward cultures and not as a serious critique of
imperial knowledge-making practices. Even in their political resistance, Pa-
kistanis and Muslims often are unable to disentangle themselves from
entrenched conceptions of who they are and what they represent. What,
then, might be viable alternatives to, or extensions of, the vocabulary of
human rights? How might we (re)think the human such that it creates space
16 See Mahmood (2005) and Jamal (2015) for alternative enactments of piety and/or
transgression.
17 See Nakamura (2006) and Queen (2008) on the consumption and commodification of
such identities.
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for those who have been historically dehumanized? What conceptualiza-
tions might Pakistanis themselves offer to reclaim their personhood and
collectivity?
Pluriversalizing human rights
As I note above, particular conceptions of what it means to be human un-
dergird human rights discourses, wherein assumptions about autonomy
and self-determination are sometimes valorized to the extent that individ-
uals appear to be delinked from their human and nonhuman environments.
Feminist scholars have traced the history of human rights to show the many
subjects who have been excluded from this discourse (Wynter 2003; Es-
meir 2011; Phillips 2015). One way to disrupt the dominant claim of hu-
man rights is to contest the very terms that inform it by pluriversalizing
it. Decolonial scholar Walter Mignolo (2013) uses the term “pluriversality”
to denote the existence of universalizing principles across all civilizations
rather than only the Western ones. That Western epistemology and herme-
neutics appear universalistic is then seen as part of the larger imperial project.
This does not mean that these universalisms exist in harmony—histories of
colonialisms clearly show the relations of power that structure epistemolo-
gies. To disrupt these hierarchies entails dwelling in the border spaces across
epistemologies and rewriting dominant discourses by introducing multi-
plicities. Said differently, it is critical to contest the hegemonic terms in and
through which societies make sense of their present, to recognize their Euro-
centric origins and, simultaneously, to attempt a retrieval of indigenous con-
cepts to pluralize knowledge fields (Mignolo and Tlostanova 2006; Santos
2012; Mignolo 2013). The remainder of this article is my attempt to explore
one such alternative way of being human in Pakistan.18
As an immigrant from Pakistan who teaches about gender and educa-
tion in the United States and returns to Pakistan every year or so to work
with Pakistanis, I inhabit what Mignolo (2013) might recognize as border
space or what Keita Takayama (2011) calls double knowing, which enables
me to do dialogical work across different epistemologies. Reconstructing
human rights from this space and from this knowing entails “shifting the
geography of reason to geo- and body-politics of knowledge” (Mignolo
18 It is important to remember that this project does not call for a denial of the (human)
subject; I align with postcolonial and women-of-color feminists who point to the embodied
dimensions of identities and violence. This project, instead, is about how our dominant
vocabularies of the human and human rights structure the kinds of emancipatory projects that
we imagine. Deepening our understanding of the multiple ways in which human dignity is
thought and felt can be fruitful in our quest for social justice.
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and Tlostanova 2006, 210) and “thinking from different imaginaries of the
human, humanity, and rights” (Fregoso 2014, 587). It entails an orienta-
tion toward human rights that simultaneously seeks to unsettle its colo-
niality, attend to its multiplicity, and maintain space for its strategic use. Be-
low, I draw on my experience of organizing a human rights education camp
for adolescent girls in Pakistan and then revisiting the community a few
years later, to illustrate the multiple ways in which individuals live out their
humanity. In doing so, I aim to restage conceptualizations of the body/self
that undergird human rights discourses. One reason to focus on the body
is that it is often viewed as the only site of humanity and, hence, used syn-
onymously with the human. The quest for commonality through assertions
of universalisms then gives way to an acknowledgment of diversity and a
conscious effort to work through them.
During the summer of 2011, I, along with a colleague, organized a se-
ries of human rights summer camps for adolescent girls in the province of
Sindh, Pakistan.19 At the camp in the village of Khyber, some students
contested the emphasis that human rights declarations (such as the Con-
vention on the Elimination of All Forms of Discrimination against Women,
the Universal Declaration of Human Rights, and the Convention on the
Rights of the Child) placed on the individual. Participants often saw them-
selves as linked with the welfare of their families and communities, with
each having a particular set of responsibilities to further the well-being of
the entire unit—whatever that unit might be. For instance, some proposed
that a gendered division of labor, with women undertaking reproductive
labor in the household, was a logical choice for them as opposed to entering
the labor market. While they wanted to complete twelve years of schooling,
they did not necessarily connect schooling with future income generation via
partaking in the formal workforce, a connection that we, the educators at the
camp, made as we rehearsed the normative link between calls for girls’ educa-
tion and skills development. Figure 3 is a pictorial representation by one of
the participants about what she calls “responsibilities of women in different
working fields.”
Here, the reproductive labor of cooking in the home and unpaid labor
in the agricultural fields are placed at the same level as the waged labor of
teaching at a school or participating in sports (I assume professionally).20
19 I later critiqued my own practices in Khoja-Moolji 2014.
20 It is interesting to note the reference to sports here, since professional sports for women
in Pakistan are still a rare occurrence. I conjecture that the student may have been inspired to
think about this given our discussion of the then-recent ban on the Iranian women’s football
team by the Fédération Internationale de Football Association due to their dress code, which
included a headscarf.
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My students’ contestations illustrated their conceptions of the body as re-
lational, linked with the welfare of others, and experienced within systems,
supportive as well as nonsupportive, human as well as nonhuman. Such a
conceptualization of the body poses a challenge to human rights discourses
that abstract the body in its experiences of vulnerability and empowerment.
My students hinted at an ethics that deocolonial and posthumanist schol-
ars see as “an enlarged sense of inter-connection between self and others,
including the non-human or ‘earth’ others, by removing the obstacle of self-
centered individualism” (Braidotti 2013, 49–50). In such modes of living,
the human body is no longer the center but a component in a wider net-
work. This was visible in Khyber. Living in a largely agricultural community,
villagers emphasized a reciprocal relationship with the land such that hu-
man needs did not supersede those of the land. These ethics informed their
practices of reflective farming, which included dedicating time for the land
to recover so that it would bear fruit in the next season instead of ex-
hausting all of its potential. That which allowed for the sustenance of hu-
mans (the Urdu term rozi and the Sindhi term hayati were used) featured in
the villagers’ talk as part of the “family” that made claims on them for its
survival and well-being. Their talk of complementarity between the envi-
ronment and their bodies highlighted the significance of the sheer inter-
Figure 3 Shehneela Shaukat Ali’s artistic rendering for Women Leaders of Tomorrow sum-
mer camp in 2011. © 2011 by Shehneela Shaukat Ali. Reprinted with permission. A color ver-
sion of this figure is available online.
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dependence of humans and their environments. During these conversations,
I was reminded of Native American activist Katsi Cook’s struggles against
the environmentalcontamination causedby General Motors(LaDuke 1999).
Indeed, indigenous feminists have long emphasized their spiritual, cultural,
economic, and political relationship with the land, blurring the boundaries
between bodies and environments. Such relationships are not only ceremo-
nializedbut also appear in the ways in which native languages assign animate
status to that which in Western discourses may appear as inanimate (Nixon
2015).
I visited the community again in 2015 at a different site called Aliabad
and saw additional examples of alliances across bodies, as well as new pre-
carities. This time I was in the community to conduct focus group con-
versations with girls who had decided to drop out of school. One day, I saw
a man sitting, having lunch, near the area where I was conducting my con-
versations. During the entire time, there were several houseflies on his plate
of food, but he did not shoo them away. Intrigued by this, I inquired about
the reason and he said, “Beta, flies too are Allah’s creatures; they have to eat
as well. So I am sharing what Allah has given me.”21 My focus group partic-
ipants shared this sentiment and did not find anything unusual in this be-
havior. While this practice may be critiqued from a public health perspective,
what I am pointing to here is a radically different understanding of what it
means to inhabit (and then leave) this world. In this village, the demarcations
between self and other, animal and earth, were absent at some moments and
present at others, pointing to a delicate balance between individual iden-
tities and collective, cooperative living. There was a strong ethic of alliance
with, and interdependency across, all forms of living, even as villagers sought
to improve individual well-being. Hence, complex and relational subject-
subject, subject-object combinations replaced the unitary subject of human
rights or the delinked body that is alternately vulnerable, suffering, and em-
powered.
A final example from the same community points to the precarity of
bodies, resists assumptions about free/autonomous selves, and reveals the
potential of human rights advocacy to reinstate normative gender and sex-
ual orders. During the focus group conversations, I learned that many girls
dropped out of school after their fathers had fallen severely ill or passed
away. The high occurrence of this response compelled me to inquire fur-
ther into the causes of the illness, and I was told that over the past year the
pipeline that brought water to this community had been contaminated and
the open sewage canal (near the fields where mostly men worked) played a
21 Beta is an Urdu term for “child.”
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role in weakening men’s bodies. After the death or ill capacity of male mem-
bers of their households, many girls decided to stay back and help with re-
productive tasks as their mothers engaged in waged labor. In this context,
assertions of education as a right could not deter these girls from prioritiz-
ing household responsibilities over school. Their choices were an effect of a
whole range of other practices, which included corruption in state bureau-
cracies, lack of infrastructure in low-income areas, a hospital without a doc-
tor, and so on. Any advocacy around human rights that fails to recognize
these complex ways in which life unfolds inevitably remains incomplete. In
fact, an imposition of laws around compulsory education via human rights
advocacy, in this case, could have the effect of increasing the economic pre-
carity of these households as adult women would be required to return home
to accommodate girls’ attendance to school and, hence, lose their already
meager income. In such cases, human rights advocacy could actually have
disempowering effects for the most marginalized.
The examples above show the multiple axes along which humans expe-
rience their humanity. The sense of complementarity prevalent in Khyber
and Aliabad was quite different from the hierarchies (men over women,
public over private, humans over land, humans over animals) that domi-
nate Western humanist thought, including mainstream feminism.22 Indeed,
different idioms, histories, and languages inform the contemporary strug-
gles of people in the global South and, as decolonial scholar Boaventura
de Sousa Santos (2012) points out, their ontological conceptions of being
and living may be quite distinct from Western individualism. A strong sense
of community and family, as well as an acknowledgment of interdepen-
dences, circulated in Khyber and Aliabad, which was balanced with a sense
of individualism. However, within the human rights discourse, one exists
either as an individual or a state (Santos 2013). Thus, modes of living that
are collective are made nonexistent or absent. It is precisely this tension
between individual and collective rights that leads to the valorization of
Mukhtaran and Malala (as individuals) and the simultaneous disciplining
of Muslims and Pakistanis (as a collective category). Indeed, in relation to
Muslim women, there seems to be an inability to conceive of them as in-
dividuals and members of a collectivity (Jamal 2015). There is, hence, a
critical need to center conceptions of human living that reflect the com-
plex, relational, and deeply interdependent ways in which people live their
lives.
Applying these analytics to the case studies of Mukhtaran and Malala
would entail a careful look at the ways in which their lives are embedded
22 See Nixon (2015).
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in the histories of the many collectivities to which they belong and the
registers of support and human dignity other than human rights that they
draw upon. For instance, if we closely analyze Mukhtaran and Malala’s en-
actments of empowerment, we find that even as they both choose to deploy
the language of human rights, they also draw on the language of Islam and
work toward the well-being of collectivities. Malala, for instance, explicitly
places her advocacy within the Islamic tradition and sutures together phi-
losophies of nonviolence with human rights, thereby extending the nor-
mative human rights discourse (Hesford 2014). Elsewhere, I show that
reading Malala’s coauthored autobiography (Yousafzai and Lamb 2013)
against the grain reveals complex Pakistani political subjectivities and the
extensive local alliances that are needed for women to experience empow-
erment (Khoja-Moolji 2015). As an example, her autobiography details the
Pashtun ethics of care and support, which create an authorizing environ-
ment for women, including her. Likewise, Mukhtaran names the male mem-
bers of her local community—her relatives and the local imam—who came
to her support (Mai and Cuny 2006). In fact, she has established a school
for the people of the same city of Meerwala whom Kristof (2006) marks as
threatening her well-being.
Thus, Malala and Mukhtaran as well as my experiences with adolescent
girls in Pakistan reveal a multiplicity in how women and girls enact em-
powerment, casting doubt upon dominant constructions. They point to the
possibility of noneconomic forms of empowerment, demonstrate the avail-
ability of spaces of empowerment outside the context of schools and the labor
market, signal the necessity of alliances and the inevitability of interdepen-
dence, and portray ethical registers outside the language of rights. Any artic-
ulation of women’s complexly lived lives through teleological discursive
chains, as described above, serves to make nonexistent myriad ways of actu-
ally being and acting in this world.
One of the obstacles, however, that prevents us from recognizing alter-
native conceptions of human dignity and ways of living is the false assump-
tion that the discourse of human rights has won over all other conceptions,
that it is, in fact, a universal good, with ethical and moral superiority over all
other philosophies. Santos calls this the “illusion of triumphalism” (2013,
19), which hides the hegemony of Western modernity and the historical
relations of power, and delinks the present dominance of the discourse from
its powerful mechanisms of transmission—such as UN institutions, global
declarations, and more recently, corporate philanthropy. A robust critique
of this discourse’s situatedness, its partiality, and its uses is thus required.
The task, then, is to excavate conceptions of human dignity—which may
include turning toward nonliberal philosophies and epistemologies of the
S I G N S Winter 2017 y 397
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global South—that transform human rights from a call to commonality in
spite of differences to a call that acknowledges differences and seeks to
practice pluralism.
Program on Democracy, Citizenship, and Constitutionalism
and Department of Gender, Sexuality, and Women’s Studies
University of Pennsylvania
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Philosophers, Activists, and Radicals: A Story
of Human Rights and Other Scandals
Joseph Hoover & Marta Iñiguez De Heredia
Published online: 15 October 2010
# Springer Science+Business Media B.V. 2010
Abstract Paradoxically, the political success of human rights is often taken to be its
philosophical failing. From US interventions to International NGOs to indigenous
movements, human rights have found a place in diverse political spaces, while being
applied to disparate goals and expressed in a range of practices. This heteronomy is
vital to the global appeal of human rights, but for traditional moral and political
philosophy it is something of a scandal. This paper is an attempt to understand and
theorize human rights on the terrain of the social actors who put them to use,
particularly radical activists that have a more critical relationship to human rights.
Attempting to avoid the philosophical pathology of demanding that the world reflect
our conception of it, we base our reflection on the ambiguous, and potentially un-
patterned, texture of human rights practice—taking seriously the idea that human
rights express a relationship of power, importantly concerned with its legitimate
arrangement and limitation. In both the philosophical literature and human rights
activism, there seems to be a consensus on basic rights as undeniable moral
principles of political legitimacy. This use of human rights is contrasted with radical
social movements that reject this conception of rights as ideological and illegitimate,
making specific reference to the Zapatista movement (Chiapas, Mexico) and the
Landless Peasant Movement of Brazil (MST, from the Portuguese Movimento dos
trabalhadores rurais Sem Terra), which are critical of the human rights discourse, but
also make strategic use of the idea and offer alternative articulations of political
legitimacy.
Keywords Human rights . Agonism . Activism . EZLN . MST
Hum Rights Rev (2011) 12:191–220
DOI 10.1007/s12142-010-0172-9
J. Hoover (*) : M. Iñiguez De Heredia
London School of Economics, Houghton Street, London WC2A 2AE, UK
e-mail: [email protected]
M. Iñiguez De Heredia
e-mail: [email protected]
“Not to assert one’s right.—To exercise power costs effort and demands
courage. That is why so many fail to assert rights to which they are perfectly
entitled –because a right is a kind of power but they are too lazy or too
cowardly to exercise it. The virtues which cloak these faults are called patience
and forbearance.”
–Friedrich Nietzsche, Human, All Too Human
Introduction
Over a few weeks at the end of 2009, we witnessed the invocation of human rights
in the prosecution of Germain Katanga and Mathieu Ngudjolo Chu, in the
unabashedly militaristic Nobel Peace Prize acceptance speech of US President
Barack Obama, and, surreally, in a deodorant ad, which declared the fundamental
rights belonging to our underarm skin.1 These invocations, ranging from
encouraging to disappointing, and to ridiculous, not only reveal the ubiquitous use
of rights–talk, but also a troubling question about the practical politics that follows
from the international normative architecture that human rights support. Is the spread
of human rights a story of the progressive legalization of international politics,
powerfully demonstrated by the success of institutions like the International
Criminal Court, as Seyla Benhabib hopes (2006)? Is it a tale of liberal decline, in
which human rights provide the ideological bulwark for a liberal international order
under threat and in need of support? (Charvet and Kaczynska-Nay 2008) Or,
perhaps, human rights are simply a fiction (MacIntyre 2007, 63), meaningless at best
and pernicious at worst—providing moral pretense to a coercive international
politics, illustrated through the invasion of Iraq (justified at least in part as a defense
of human rights), the attempted legitimization of torture by the Bush administration,
and ongoing debate about the legitimacy of various forms of humanitarian
intervention (Douzinas 2006).
The international human rights regime permeates world politics. Human rights
remain an essential foreign policy tool, as Richard Falk (2000, Chapter 3) has noted,
while they also support a growing international legal regime that challenges the
primacy of the Westphalian state (Falk 2007). Furthermore, human rights have both
justified oppressive international practices and provided inspiration for various
resistance movements (Bhambra and Shilliam 2009, 4–7). Given this ambiguity, one
could be forgiven for thinking that something has gone badly wrong with the idea of
human rights, either in its formulation or the translation of theory into action.
1 In the same month that the International Criminal Court began its second prosecution, against Germain
Katanga and Mathieu Ngudjolo Chu for human rights abuses committed in the Democratic Republic of
Congo (24 November 2009), British television viewers were informed that their underarm skin had three
fundamental rights. The commercial in question was for Sanex deodorant, available here: http://www.
youtube.com/watch?v=gWw7VCXWHhE&feature=player_embedded. Also, in his Noble Peace Prize
acceptance speech President Obama (2009) restated the centrality of human rights in US foreign policy,
stating ‘Agreements among nations. Strong institutions. Support for human rights. Investments in
development. All these are vital ingredients in bringing about the evolution that President Kennedy spoke
about.’ Accessed on 24 January 2010 at http://www.whitehouse.gov/the-press-office/remarks-president-
acceptance-nobel-peace-prize.
192 J. Hoover, M. Iñiguez De Heredia
http://www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel-peace-prize
http://www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel-peace-prize
It is in terms of the relationship between theory and practical action, or between
morality and politics, that we want to analyze the dominant account of human rights.
This account, we contend, is premised upon an unsustainable division between
moral philosophy and political action, a division that has negative consequences for
how human rights are used in international politics. In both the philosophical
literature and much transnational human rights activism, there is a consensus on
human rights as undeniable moral principles that support a liberal account of
political legitimacy. We argue that human rights are inherently political and
contested, undermining the role that universal principles play in legitimating the
contemporary international order. Our alternative starts from an acknowledgement of
the politics of human rights, recognizing that political legitimacy and power are
contested when fundamental rights are claimed. This requires that we see morality
and politics as inseparable. Rights are reconstructed as a moralized politics (or
perhaps politicized morality) in which the meaning of political legitimacy and
human dignity are continuously renegotiated, rather than final expressions of the
moral law or the progressive unfolding of universal standards of legitimacy. This
account of human rights is supported and developed through an examination of
radical social movements that reject the dominant international human rights regime
as ideological and illegitimate, while making use of the language of human rights
and articulating alternative accounts of political legitimacy—we look specifically at
the Zapatista movement (Chiapas, Mexico) and the Landless Peasant Movement of
Brazil (MST, from the Portuguese Movimento dos trabalhadores rurais Sem Terra).
Human Rights: A Story of Many Scandals
The success of the international human rights regime reveals a paradox: human
rights bolster both the political ends of hegemonic global powers and radical social
movements. In addition, it seems that global diversity undermines the moral
consensus necessary to legitimate strong action to protect human rights even while
human rights seem ever more pervasive. Further, we have ‘all these human rights
standards but the bodies keep piling up’ (Dunne and Wheeler 1999, 2), raising the
question of why better human rights protection has not been achieved. All of these
ambiguities point to vigorous debates in the human rights literature, which we label
“scandals”, in order to highlight a fundamental problem with dominant under-
standings of human rights. Defenders of human rights, generally, respond to these
ambiguities as if they were “scandals” calling for more certain responses—certainty
of the legitimacy of the liberal international order, certainty of the benefit of a more
cosmopolitan legal order, and certainty of the power of universal moral principles to
improve world politics. The call for greater certainty in the face of the ambiguity of
human rights presumes a particular relationship between morality and politics, one
that we analyze and reject in what follows. We then attempt to think about human
rights without denying their ambiguity, drawing on both critical philosophers and
radical social movements.
In the next section we analyze the dominant response to the scandals that beset
human rights with reference to “philosophers” and “activists”—these terms are used
both as simplifying generalizations and rhetorical devices intended to provoke
Philosophers, Activists, and Radicals 193
critical reflection.2 We argue that the “philosopher” and the “activist” respond to
these scandals in distinct but related ways that reveal the limitations of the
relationship between morality and politics that informs dominant accounts of human
rights. Further, we argue that this understanding of human rights limits our analysis
and critique of world politics by privileging a liberal state-based international order.
Conor Gearty (2006) asks, can human rights survive? Central to his concern for
the future of human rights is a worry about their legitimacy, given the spread of
human rights through ‘international, regional and legal instruments that embed the
term in various codes of law’, which makes their misappropriation a very real danger
(Gearty 2006, 11–13). Gearty highlights the “philosophical scandal” of human
rights: their spread coincides with the failure to establish a rational consensus on
their meaning and justification. While Tony Evans (2005) suggests that the political
dominance of human rights discourse no longer needs rational foundations and that
the philosophy of human rights is now a desiccated simulacrum, looking at current
philosophical work on human rights reveals a state of very active distress. Many
contemporary philosophers are clearly concerned to ‘articulate standards by which
the practice of human rights can be judged, standards which will indicate what
human rights we have’ (Raz 2007, 2), a vital task entailed by a particular
understanding of the relationship between morality and politics.
Gearty (2005) summarizes the “philosopher’s” need for justification:
This is not ordinary politics, we say, this is morality, this is about right and
wrong—and we know, even if you mere mortals don’t, which is right and
which is wrong, not as a matter of policy but as statement of truth. This is not
how most of politics works.
With characteristic good humour, Gearty gets at the dominant understanding of
rights and the ends they are intended to serve: human rights are moral principles that
should direct the flow of politics, they are points of certainty that allow “us” to make
out the shape of legitimate authority and moral right at a universal level.3 This points
to the divide between “philosopher” and “activist”. This is not the result of
philosophical arrogance or the inability of activism to be reflective; rather it is a
consequence of the logic of a particular way of understanding human rights. When
James Griffin (2008, 4) says, ‘remedying the indeterminateness of sense, in the logic
of human rights, determining the content of human rights, especially in seeing how
2 We knowingly use these classifications as provocations and anticipate that many who self-identify as
philosophers or activists would reject the account of human rights assigned to them. The intention is to
spur critique of a dominant account of human rights that, we contend, continues to employ this divide
between theory and action, though often in mediated form. We appreciate that other critical perspectives,
particularly those inspired by feminist and Marxist thought, may take this as a starting point, but assume
that this sharp rhetorical distinction may still prompt important reflection, as it has done for us. See
Redhead and Turnbull (2011), in this forum, for a useful analysis that dispenses with the divide between
theory and activism, looking instead to the practice of both within the human rights field.
3 A recent trend towards ‘political’ conceptions of right proves rather than refutes Gearty’s point. Drawing
inspiration from Rawls’ turn to a political rather than metaphysical defense of liberalism, a number of
recent thinkers have defended human rights terms of second-order consensus on the principles that make
politics possible. While this changes the form of the argument it does little to alter the purpose of human
rights as moral principles defining and confining the limits of legitimate political authority. See for
example, Joshua Cohen (2004); Kenneth Baynes (2009); and John Rawls (2001).
194 J. Hoover, M. Iñiguez De Heredia
to resolve conflict between them, the bottom-up approach will have to rise
considerably in theoretical abstraction,’ he is giving voice to a conception of
morality as above politics and imbued with a vital measure of certainty. This
understanding of human rights reflects a well-established subordination of the
political to the moral in contemporary political theory, which is increasingly
contested in both domestic and international political theory (Williams 2005;
Connolly 1991, 2005; Honig 1993, 2008; Hutchings 1999). Another philosophical
understanding of human rights is possible, which questions the separation of politics
and morality, and places contestation and ambiguity at the center of human rights;
we explore this approach in “Radical Critique and Activism”.
In contrast, the “activist” is impatient with questions of how human rights
campaigning must take account of controversies over the moral ideal of human
rights. From this perspective, the “scandal” of human rights is that we know what is
right but fail to act effectively, or to act at all. The central concern is how to translate
the moral truth of human rights into effective action, asking:
Would it not be better to question less and act more, to avoid reflection on
abstract ideas like philosophical foundations and the like but to continue to use
the term ‘human rights’ to do good things in a world in which goodness is in
short supply—and where it is a waste of time and effort to spend time trying to
explain what goodness actually means? (Gearty 2006, 20)
Much transnational human rights activism does not oppose this understanding of
rights: human rights are powerful forces for political change precisely because of
their distance from the contingent world of politics, in which compromise, self-
interest and coercion are everyday threats to effective moral action (Hopgood 2006,
105–107, 2009; Kohen 2006). Both the “philosopher” and the “activist” guard their
distance from politics, as it is central to their identities and their often-
unacknowledged moral authority, which is preserved in the idea that theories of
human rights are removed from the conduct of politics as struggle, contest and
power, and that human rights activism is a moral practice, not mere political action.
The implication of these simplified identities is that “philosophers” and “activists”
have little to say to each other, and that for the “activist” the cause of human rights is
best served by working to ensure that rights are respected, without reflecting too
much on abstract problems that might impair one’s ability to act.
But this is, of course, a limited account of activism. In what follows we play on
contrasting meanings of activism, juxtaposing the activism of transnational human
rights NGOs (specifically Amnesty International and Oxfam) and the radical
activism of the Zapatista Liberation Army (Ejército Zapatista de Liberación
Nacional—EZLN) and the MST.4 The professionalized activism characteristic of
transnational human rights NGOs is dependent upon the assumed authority of
human rights, and critical reflection is often limited to determining what is possible
given the current framework of power relations, rather than the ways in which
4 The main rationale for focusing on these two groups is the authors’ own experience of being
involved in campaigns in support of both the Zapatistas and the MST in Spain, Australia and
Brazil.
Philosophers, Activists, and Radicals 195
international human rights might be part of the problem. For more radical forms of
activism human rights may not set certain limits to which campaigners have to mould
their banner logos, but they do set the limits of their political imagination. When the
activist in the deep jungles of the Lacandona Forest reflects on the meaning of human
rights, she is challenging the power relations that have made her life one of poverty and
subordination, and for which it might be necessary to give rights new meanings or
names. Another “scandal”, then, is how the discourse of human rights may provide
articulation for certain struggles and demands, while at the same time, limiting the range
of demands that groups and individuals are entitled to make.
While drawing on critics of the human rights regime to make our argument, we
also want to point to the way in which marginalized groups use human rights,
highlighting the danger that rights talk can become a weapon of the weak that limits
subjects of power to a particular moralized conception of the state and the
international order, but also finding more radical potential in the idea of human
rights. The final figure in this story, then, is the “radical”, referring to individuals and
groups that reconstruct both the practice and idea of human rights in light of their
own experience and pursue a surprising variety of ends. This understanding of
human rights emerges by connecting critiques of human rights with an emerging
literature on the practices of human rights, which documents the way rights are
translated, reinterpreted and claimed by persons all too often seen as the passive
recipients of human rights protection or the threatened victims of abuse. Paying
closer attention to the way human rights are used reconnects the idea of human rights
to actual political struggles and social movements in which rights are established,
defined and contested, making it difficult to narrate the story of human rights as one
of the progressive unfolding of universal rights and to frame the human rights
practice as non-political (Honig 2008). In the end, our goal is not to dictate reforms
that “philosophers” and “activists” must make. Instead, we seek to expose the
problematic consequences that this way of thinking and acting on human rights
generate. In light of this we suggest another way of thinking about human rights that,
on one hand, takes contestation, contingency and change more seriously when
theorizing, and that looks at social movements, political struggles and the systemic
exclusions generated by the political reality of human rights practices.
“Philosophers” and “Activists”
The philosophical understanding of human rights that we argue is both currently
dominant and conceptually problematic is concerned with establishing universal
moral standards that determine legitimate political authority. Moral certainty is the
end in view, establishing sufficient certainty to provide for a just political order. The
challenges to achieving this end are disagreement, conflict and diversity in moral
beliefs and political orders, and while few supporters of human rights speak in terms
of the exercise of power or enforcing discipline, the effect of a successful human
rights ideal is a limitation of moral and political life. For this reason, defenders of
this view of human rights attempt to establish and preserve the moral authority of
rights, as well as the moral authority of the guarantors of human rights, whether
agents of the state or the international community.
196 J. Hoover, M. Iñiguez De Heredia
Tony Evans argues (2005, 1053) that the conventional status of human rights
leads to a legalized discourse that marginalizes philosophical and political questions.
If the primary problem of human rights is one of ‘refining, polishing, and elaborating
accepted norms and standards, in attempt to make the regime more elegant,
sophisticated, imposing, and magisterial’, there is little place, or need, for sustained
philosophical inquiry (Evans 2005, 1048). Yet, such inquiry continues apace. Evans
is right to point out that much philosophical work on human rights is not concerned
with radical critique, but the point we want to draw out is that this is as much a result
of how human rights are understood as it is about their privileged status in world
politics. Philosophers still struggle to legitimate human rights because the truth of
rights remains uncertain, and to challenge the truth of universal rights–claims puts
the political order it sustains into question.
Moral rights are linked to certainty and legislation—these principles provide the
foundation for law, which in turn justly limits politics (Williams 2005, 12–17). If
political activity feeds into philosophical reflection on rights at all, it is largely
negative, raising questions of how to limit illegitimate rights proliferation (see
Griffin 2008, Chapter 11), or how to convince the skeptic that they must
acknowledge that universal rights are rationally justified (Raz 2007, 18–19). In
both cases the failure of moral principle to constrain political life becomes a problem
to be solved by offering truer accounts of rights.
Framing the question of universal human rights in this way leads to a seemingly
irresolvable argument about the truth of rights, leading philosophers to seek different
ways of proving or justifying rights as a proposition—as a truth claim. Modeling
moral principles upon propositional statements that must be either true or false tends
to lead to either un-provable appeals to universal human nature or apodictic
assertions of right or duty.5 What is lost is the contests and exercise of power that led
to the emergence of human rights, an emergence that was not necessary and does not
express a coherent progressive practice (Honig 2008, 95). The philosophical
understanding of human rights, as moral rights, draws on static principles separated
from political activity. Obscuring the reality that human rights are the result of social
struggles that challenge the structures of political power, and conventional morality.
The moral standards presented by the “philosopher” are part of historical
transformations in which social movements played a central role (Hunt 2007, 22–
34; Bhambra and Shilliam 2009, 6–7).6 Human rights cannot be seen only through
the prism of moral authority, but must also be seen as challenges to that authority.
This dynamic process is captured in the declarations and covenants of the human
rights movement, documents that reveal a history of social contestation that the
legislative model of human rights obscures.7
5 This mirrors the debate between interest and will theories of rights. See, Vittorio Bufacchi (2008).
6 Lynn Hunt (2007) documents the political and social changes that gave specificity and meaning to the
idea of self-evident rights in both the American Declaration of Independence and the French Declaration
of the Rights of Man and Citizen.
7 Paul Gilroy (1993) has argued that the concept of ‘human rights’ was first used as part of slaves’
struggles in North America advocating for the abolition of slavery. Furthermore, Magubane (2005, 101)
has shown that the Haitian revolution helped foster the French Revolution, in which the ‘Rights of Men’
so ingrained became in the history of rights.
Philosophers, Activists, and Radicals 197
We will illustrate these points by looking at two contemporary accounts of human
rights, those of James Griffin and Seyla Benhabib, which, for all their sophistication
and rigor, preserve the legislative relationship between morality and politics. This
relationship not only obscures the disciplinary and coercive aspects of human rights
as a form of moral authority, but also limits the possibility of reconstructing (rather
than merely reforming) human rights.
In his recent book on human rights James Griffin (2008) attempts to provide a
rationalist justification of rights based on a universal interest in rational agency, and
while his work has many virtues, we will use it here as an illustration of the limits of
the “philosopher’s” traditional approach to human rights (Raz 2007, 4–5). At the
center of Griffin’s inquiry is the need to resolve disagreement about human rights
and to provide a justification for them as vital protections of what is morally
significant about our shared human status (2008, 32–33). Griffin argues that what is
of primary importance is our agency, which he analyzes in terms of individual
autonomy and liberty, and that human rights should be limited to those rights
necessary to protect human agency (2008, 33–37). While granting the importance of
particular circumstances in determining the exact form of human rights, he defends
the central importance of agency in both justifying and defining human rights. He
suggests that seventeenth and eighteenth centuries account of rights remain for us the
last major development of the idea itself (Griffin 2008, 13)—while it might be
plausible that a particular tradition of philosophical reflection has not advanced
much in that time, it is an unconvincing claim regarding the theoretical and political
evolution of human rights.8
Griffin (2008, 191–209) criticizes the international human rights regime,
particularly the breadth of rights listed in the Universal Declaration of Human
Rights, and seeks to limit rights proliferation in order to maintain the importance of
“true” human rights. In reducing human rights to the protection of agency Griffin
seems to miss what is important about many well-established rights and to occlude
many other important values that could be seen to justify human rights (Tasioulas
2002; Raz 2007, 4–8). This critique of Griffin is limited as it only points to his
reductionism—making autonomy and liberty the central values that protect an
essentially Enlightenment-inspired account of human rights—rather than to his
appeal to a universal essence that defines our human status. While such essentialist
appeals can be objected to on purely practical ground, as finding agreement on
such universals is exceedingly difficult, a more principled criticism is that appeals
to an essential human nature cannot take account of the social construction, and
ongoing contestation, of human nature and ethical values. Griffin’s essentialism is
paradigmatic of the traditional understanding of human rights, which prioritizes
some value or feature of human individuality as having moral priority, missing the
political function of human rights as a distinctive form of moral right (Raz 2007,
7–9).
It is, therefore, not surprising that Griffin makes no connection between the
spread of market economies or powerful bureaucratic states and the construction of a
8 Recent historical work on human rights illustrates this ongoing evolution: Ishay (2004) and Lauren
(2003) both provide broad accounts, but even work with a more skeptical historiography illustrates the
continued development of human rights, for an excellent and thorough account see Afshari (2007).
198 J. Hoover, M. Iñiguez De Heredia
supposedly universal form of rational agency (Robinson 1998), as exposing the
contingent and political nature of the values of autonomy and liberty would
undermine the moral authority of human rights. Furthermore, his efforts to establish
rights as protections for an essential moral agency are defined by the desire to make
political structures conform to moral principle, which obscures not only the
contingency of human rights values but also denies the persistence of moral
contestation and that ‘the application of any such set of historical constructions also
does violence to those to whom it is applied’ (Connolly 1991, 12). We do not want
to suggest that Griffin is merely defending an ideological form of liberal agency, the
values he points to are real enough—being able to envision a life for oneself and
having the freedom to pursue that vision are real goods—but in pursuing a
legislative form of political moralism his account is not only reductive but
fundamentally disconnected from social and political practice.9
Griffin’s defense of human rights hardly exhausts the potential of this legislative
way of thinking about the relationship of morality and politics. Raz contrasts
Griffin’s traditional approach with what he terms the political approach, which he
himself defends (2007, 8–9). Kenneth Baynes reviews this emerging defense of
rights, which justifies human rights as special rights held based on particular forms
of association (2009, 374). A political justification can be more or less substantive.
Some have argued for a minimal set of human rights as protections necessary for any
political society (Ignatieff 2003; Rawls 2001, 78–81). While other argue that human
rights are not just the minimal requirements for legitimate political authority, but
provide a more substantive account of the good of membership in political society,
which may not reflect an achieved consensus but gives reasonable grounds for
further debate and eventual convergence (Cohen 2008; Beitz 2003). This move
avoids the essentialism that undermines Griffin’s argument and rightly places human
rights in a distinctly international context by conceiving of human rights as
limitations on state sovereignty. Yet, it still conceives of the function of rights in a
distinctly apolitical way: either suggesting that except for the commission of certain
grievous wrongs, the actions of the nation-state, and the state-system, should be
accepted as legitimate, in the case of minimal accounts; or that a distinctly liberal
(whether nationalist or cosmopolitan) order provides the moral standard for state
legitimacy, in the more substantive accounts. Or as Benhabib asks, ‘Are we caught
between the Scylla of moral imperialism and the Charybdis of moral indifference?’
(2008, 98). This political account reveals the tension between tolerating political
diversity and the justification of universal norms, a tension that these accounts
attempt to mediate with appeals to “public reason”, arguing that certain norms
rationally follow from the shared nature of political morality. Before articulating our
alternative understanding of rights we do want to consider Benhabib’s defense of
human rights, as it both takes political critiques of human rights more seriously and
is more self-conscious of the danger that deploying rational moral principles may
limit diversity in unacceptable ways.10
9 We take the phrase ‘political moralism’ from Williams (2005, 1–17), who uses it to identify views that
make the moral prior to the political.
10 Benhabib’s appeal to communicative reason is distinct from, and we think more challenging than, the
Rawlsian inspired account of public reason. For this reason we forgo a direct engagement with the
Rawlsian approach here.
Philosophers, Activists, and Radicals 199
Benhabib’s defense of human rights is based upon the relationship between
universal rights and democratic sovereignty, a relationship that may seem
antagonistic, but which she suggests is complementary. Following Jürgen Habermas,
she defends human rights as universal moral norms that express the necessary
conditions of seeking moral consensus (Habermas 1992, 1998; Benhabib 2008,
102). The legal expression of these norms is found in the defining traditions of
liberalism and republicanism, such that rights both protect individuals and empower
them as members of a political society—ensuring both individual liberty and
collective self-determination—as matters of moral principle (Habermas 1994, 1998).
The apparent contradiction, then, is that the universal political norms expressed
through human rights actually undermine democratic sovereignty.
For both thinkers the spread of human rights norms requires the expansion of
democracy beyond the nation-state. Benhabib does this by looking to the way in
which international human rights norms are actually worked out through democratic
iterations in which human rights are made ‘elements in the public culture of
democratic people through their own process of interpretation articulation, and
iteration.’ (2009, 696) This implies that human rights, as universal moral principles,
entail general protections for individuals and rights to democratic participation, but
that the exact form that these principles will take depends upon the particular
situation in which they are worked out. This has drastic implications for international
order, such that a cosmopolitan order should replace the state-centric one, as it is not
enough to protect the individual liberties of all individuals, which could possibly be
done in a such a system, because individual also have a right to self-determination
that requires the expansion of democratic participation.
Her account highlights the necessity of democratic sovereignty beyond the nation-
state in calls for a global constitutionalism, insists upon the protection of social and
economic rights that counter the power of global capitalism and cautions against the
idea of a right to intervention (2009, 692–695). Although this allows for some
contestation, the degree of contestation and difference is constrained, as it is only
when moral principles are upheld that it can be said that there ‘is legitimate “unity
and diversity” in human rights among well-ordered polities.’ (Benhabib 2008, 100)
So, even as democratic iterations lead to diversity, they also lead to convergence,
because the moral principles that provide the foundation of rights cannot be
contradictory or ambiguous. As Honig suggests, the ‘assumption in Habermas and
Benhabib of linear time secures what I call a chronologic in relation to which they
assess new rights: new rights–claims are judged in terms of the rights’ amenability to
being subsumed under existing constitutional or universal categories (2008, 90).
Despite the attempt to mediate the legislative relationship between morality and
politics, Benhabib’s defense of human rights cannot ‘see how new rights–claims do
not necessarily demand mere inclusion in a previously stabilized order. They may.
But they may also demand a new world. They may unsettle previously existing
categories of right.’ (Honig 2008, 90) This is a result of the role that moral
principles, derived from Habermas’ account of communicative reason, play in
limiting contestation and imposing order upon ethical and political life. Kimberly
Hutchings clearly articulates the limitations of this approach: if ‘one accepts this,
then clearly one has again returned to a version of liberal universalism which always
already knows its moral superiority’ (Hutchings 2005, 162).
200 J. Hoover, M. Iñiguez De Heredia
Acknowledging the politics of human rights as moral principles, however, is
paradoxical—once we deny privilege to any moral perspective, insisting that
contestation, exclusion and power be exposed, the logic of the legislative account of
rights becomes untenable. While we defend an alternative understanding of human
rights below—one defined by an affirmation of ‘the reality of perpetual contest, even
within an ordered setting, and (a commitment) to identify the dimensions of
contestation’ (Honig 1993, 15)—for the moment we turn to the figure of the
“activist” and the way in which practices of transnational human rights activists
depend upon the separation of moral principle and political action.
The second figure that plays an opposing though related role in the conception of
human rights we have been criticizing is the “activist”—in particular the transnational
human rights activist. Our focus will not be the function of NGOs in the human rights
regime, but instead the way that NGO “activists” conceptualize human rights. In
looking at the figures of the “philosopher” and the “activist” we are ignoring
international lawyers and human rights workers within national governments and
international organizations, this is done not because these figures are unimportant. In
focusing on transnational activists and NGOs, we are looking to those engaged in the
politics of human rights while deploying the moral authority of human rights. The
lawyer and bureaucrat are less dependent upon this moral authority.11
Stephen Hopgood’s (2009, 231–233) work is among the first to examine the way
that human rights NGOs use and understand the moral principles that are central to
their work. What is most surprising is the quasi-religious role that human rights play,
both in terms of individual commitment and in sociological terms.12 Hopgood
suggests that human rights—his research specifically looks at Amnesty International
(AI)—act as a transcendent form of moral authority that is otherwise impossible in a
contemporary international context in which religious belief is marginalized. For all
the power of constructivist work on human rights, NGOs and transnational advocacy
networks, what is not examined is how activists understand human rights or how
ideas about those rights evolve through practical political activity. Thomas Risse and
Stephen Ropp (1999, 234–235) suggest that ‘it is one thing to argue that there is a
global human rights polity composed of international regimes, organizations, and
supportive advocacy coalitions. It is quite another to claim that these global norms
made a real difference in the daily practices of national governments toward their
citizens’ (emphasis added). Yet the goal of determining the effectiveness of human
rights norms begs the question of what these global norms actually are. As Hopgood
(2009, 230) points out, in the absence ‘of a shared identity of lifeworld, the
background conditions for the claim “good people do X” do not exist.’ This leads
him to document the importance of the sacred to human rights advocacy. His work
on AI demonstrates the way in which the moral authority deployed by the
organization is maintained though its separation from the “political” as a sphere of
contest, interest and power. The “activist” working selflessly and in the name of
11 Readhead and Turnbull (2010), in this special issue, offer an analysis of human rights practice that
points out the distinctive moral and rhetorical aspects, which are not directly connected to specialized
discourses or formal institutions.
12 This point is well made by Jenna Reinbold (2011) in this special issue.
Philosophers, Activists, and Radicals 201
morality for the realization of human rights has no need for a critical praxis, as the
moral law, in the form of human rights, is there to be carried out.
We argue that the assumption that there are stable and easily knowable global
norms depends upon the legislative conception of human rights critiqued above. In
much of the work on transnational human rights networks, the content of liberal
human rights norms is assumed, and the effect of moral norms mobilized by
transnational actors on state-centric political structures is documented without
analyzing what is actually said and who speaks (Robinson 2003). It is this closure of
the reflective process, the lack of praxis, which we find problematic. It is not that
reflection is not happening in tandem with political action—in fact below we draw
on a number of scholars that analyze this process—what we are suggesting is that
the dominant understanding of human rights, as philosophy and political action,
continues to ignore this rich world of praxis.
For the “activist” the central question is how to ensure that human rights are
enforced. There is a sense of impatience with philosophical reflection when people
are suffering human rights abuses—there are too many people being killed, tortured,
starved, imprisoned and abused to devote our energies to the endless pondering of
the meaning of human rights. This is not to suggest that this ideal figure is fanatical,
but rather inclined towards action and skeptical of a concern for philosophical debate
in a world with so many problems. Hopgood (2006, 7) points to the relative
anonymity of John Rawls within AI, suggesting that ‘we might ask what all those
students of political philosophy are doing if their work has no impact on the world?
They certainly are not providing a ground for human rights activists.’ The
understanding of human rights for the “activist” is determinate, and while sharing
the “philosopher’s” understanding of the relation between morality and politics, it
expresses greater confidence in an achieved consensus on human rights, and the
power of legalization and institutionalization to take that work forward. The
“activist’s” reflection is constrained by the framing of morality and politics written
into the universal human rights norms she embraces—the “activist’s” practice, but
not her moral principles, are open for reflection.
In drawing the “activist” perspective we are primarily concerned with distinctively
international NGOs, those that are self-consciously cosmopolitan and see the defense
of human rights as a global project. This is not a restatement of the global/local divide
but it does point to the difference between groups working in localized polities while
taking part in a global discourse and those engaged in a global politics with localized
campaigns. If we take the activism of big human rights NGOs, in particular AI and
Oxfam, we see the both repeated evocations of the moral authority of human rights
and a practical approach to furthering the human rights regime.
AI (2010a), for instance, advocates ‘for internationally recognized human rights
for all’, declaring that their members are ‘outraged by human rights abuses but
inspired by hope for a better world’ and that they ‘work to improve human rights
through campaigning and international solidarity.’ The human rights expressed in
international human rights documents provide the means for AI to meet its moral
aspirations. In achieving these rights they see the best hope for the betterment of
people around the world, and so of the world as a whole. Having traditionally
focused on civil and political rights, in 2001 AI (2010b) incorporated economic,
cultural and social rights into its mandate, affirming a comprehensive and
202 J. Hoover, M. Iñiguez De Heredia
increasingly mainstream account of international human rights. The key strategies of
AI are petitioning governments to respect rights, mobilizing public opinion and
building international solidarity around human rights. These activities not only
depend upon a depoliticized moral authority, but they also depoliticize those directly
affected by human rights abuses. This means that human rights discourse structures
particular abuses as human rights abuses, but particular abuses do not in turn inform
human rights standards (Jackson 2007). ‘Victims must, therefore, be vulnerable and
suffering bodies rather than political persons’ (Merry 2007, 198). This is also seen in
mainstream human rights NGOs’ unwillingness to challenge the dominance of the
nation-state or the hegemony of neo-liberalism—it becomes an article of faith that
human rights can be protected if the state system and the market work properly13
because the conventional rights holder is a particular type of citizen and property
owner (Leve 2007, 98–99). What escapes notice are the ways in which certain
groups are excluded and the kind of political claims that go unacknowledged despite
the use of human rights as an idea and discourse in these movements, which we
illustrate below by looking at the Zapatistas and MST.
Unlike AI, Oxfam’s campaigning is more focused on economic rights, even as
they recognize and support both first and second-generation human rights. There are
two possible and indeed simultaneous readings of their position. On the one hand
they affirm that ‘respect for human rights will help lift people out of poverty and
injustice, allow them to assert their dignity and guarantee sustainable development’
(Oxfam 2010). In this statement there seems to be a higher end: the end of poverty,
powerlessness and inequality so that people can have control over their lives and live
sustainably and free from want. In this way human rights are seen as instruments
towards a higher moral aim. On the other hand, Oxfam (1996) claims that they are
demanding basic human rights, based on essential needs that must be met. In this
way, human rights themselves are an important aspiration even as they are part of a
broader vision of global justice.
Their commitment to human rights as a campaigning framework has provided
Oxfam with a mainstream appeal and a nominally impartial agenda. Even when they
claim that there are structural problems that cause poverty, they do not offer a
critique of capitalism, or the international power structure. In a statement for the G-
20 meeting in London 2009, Oxfam (2008, para.2) claimed:
Aid is urgently needed to address the immediate threat to poor people posed by
higher food prices but money is not enough. World leaders must take this
opportunity to address structural problems such as under-investment in
agriculture and unfair trade rules, which are exacerbating the problem.
The demands placed on world leaders gives us a few hints of what it means to
campaign for human rights. Firstly, there is an acknowledgement that human rights
are granted by governments and therefore they are responsible for protecting and
providing them. Secondly, Oxfam maintains an un-threatening impartial position in
13 The key fault line of debate here is whether the current international political and economic order is part
of a progressive liberal process of modernization or if human rights amount to little more than an ideology
for contemporary constellations of social power. This debate can be traced in the exchange between Paul
O’Connoll and Rhoda E. Howard-Hassmann. See, Howard-Hassmann (2005), O’Connell (2007); and their
exchange in Howard-Hassmann (2009) and O’Connell (2009).
Philosophers, Activists, and Radicals 203
the eyes of powerful ‘world leaders’ by acknowledging their power and capacity to
realize these rights. There is no questioning, as we see from the more radical groups
discussed below, of the willingness of governments to grant rights, of the limitations
of those very rights, or the implications of demanding certain rights and not others.
The image of human rights organizations as impartial and apolitical against the
image of other groups as agenda-driven and ideological is a key feature of human
rights NGOs and transnational activists.
Two important features of the “activist” perspective are, first, the move from
humanitarian to human rights oriented international NGOs, and, second, a trend of
transnational activists working with governments. The political constraints of the
Cold War effectively stifled human rights as an international political project and the
work of many NGOs was framed in limited humanitarian terms. It was the sudden
end of the ideological and military contest between the superpowers that not only
increased the space for human rights groups but also facilitated collaboration
between powerful states and NGOs (Chandler 2001). As US hegemony was
increasingly justified, in part, through human rights discourse the moral power
drawn upon by human rights activists became inseparable, and in many cases
subservient, to dominant political forces. It is this marriage of human rights morality
and liberal hegemony that critics of human rights accuse of being both unreflective
and coercive, but it also enables the moralism of both the “philosopher” defending
rational agency and the “activist” seeking to institutionalize liberal rights at the
international level.
The development of human rights as ideology is furthered by human rights
activism that reinforces the power of the state. Keck and Sikkink, for instance, while
challenging the realist idea that states are the only actors in international relations
that matter, actually remain committed to the state. They explain that when the
channels of negotiation between domestic groups and the government are blocked,
these groups, especially NGOs, search for support from other states and international
organizations that then apply pressure on the offending state (Keck and Sikkink
1998). Transnational networks challenge the authority of particular states, mobilizing
transnational NGOs, international organizations and interested states, but in the
process redeem the state (in general) as the appropriate and necessary defender of
human rights (Risse et al. 1999). Human rights standards reinforce “good” states by
disciplining “bad” ones. Furthermore, the success of transnational human rights
advocacy is assessed on its ability to reform states, a standard that precludes many
types of advocacy—such as in the examples below, where groups affirm violent
resistance to the state and challenge the legitimacy of legal property ownership. By
staying within the dominant framework of human rights, we are not able to
understand important aspects of human rights practice. Not only can they be used to
justify the liberal international order, but they also support relationships of power
(particularly between state and subject, and global economy and producer/consumer)
that, for many, are the cause of human rights abuses. To see beyond this
conceptualization of human rights and to challenge the politics it reinforces, we
need to engage with radical critics and activists in their rejection of hegemonic
accounts of human rights and their articulation of different notions of political
legitimacy and order.
204 J. Hoover, M. Iñiguez De Heredia
Radical Critique and Activism
Thus far, we have argued that the way human rights are understood keeps moral
reflection and political action separate. Furthermore, we suggest that this separation
results from a problematic understanding of the relationship between politics and
morality, and legitimates a coercive international order. We share these criticisms
with many others, but we seek to move beyond critique and try to see the work of
human rights differently, arguing that a focus on the activities of translation and
reconstruction of human rights as they are put to use in diverse ways can transform
the always present ‘danger’ of human rights escaping the control of powerful actors
and ‘working in a genuinely emancipatory way’ (Merry 2006a, b, 231) into an
alternative understanding of human rights.
Critics of human rights have identified the divide between morality and
politics as a key point of contention. For Evans (1998, 2005, 17) the imposition
of an essentially liberal universalism not only excludes moral principle from
serious contestation but also makes morality a technical legal problem. In a similar
vein, Costas Douzinas (2006) points to the way human rights, as the moral
principle underlying the liberal international order, obscures the sovereign power
that makes this possible. This results not only in imposition of a particular vision
of morality and humanity as a cosmopolitan universal, but also justifies policies
that knowingly lead to economic deprivation and inequality and various forms of
legalized violence, such as bombing campaigns, humanitarian wars and economic
sanctions. Human rights are criticized for perpetuating an image of the civilized
West that must educate the savage colonial “other”—not only does this feed on
lingering racism but it points to the imposition of cosmopolitan ideals of
secularism, individuality, and universalism (Mutua 2002; Rana 2007). Yet, critique
often ends with unanswered calls for a global ethic that allows for greater diversity,
whether this comes about by way of revising the human rights regime or turning to
some alternative ethics.
We argue that looking to the reality of social struggles, especially those not
sanctioned by mainstream human rights bodies, provides important insight for
reconstructing rights. This praxis becomes possible when we abandon the
understanding of rights as a moral law that legislates universally—whether in the
form of the “good state” or some universal sovereign (Pagden 2003). This move is
made possible by reconnecting the moral and the political, which allows us to
acknowledge that declaring moral values is an expression of power, but not one that
can only result in an authoritarian politics. Understanding human rights in this way
requires us to embrace the agonism at the heart of moral and political life—the
contestation of values is ongoing and the central question is how do we make
contestation bearable and productive. Connolly (2005, 122), provides an initial
formulation claiming that the
virtues commended (agonistic respect and critical responsiveness) here do not
take politics out of ethics, nor do they rise above politics…They speak to a
world in which people draw upon different final sources of ethical sustenance
and bring those sources with them into politics.
Philosophers, Activists, and Radicals 205
Acknowledging the persistence, and even productivity, of moral contestation does
not make a distinction between good and bad politics impossible, but it does
undermine the moral authority of final rational principles and the forms of political
order they support.
Beginning with this revised understanding of moral authority, acknowledging it as an
expression of power and affirming its contestability, reframes the story we tell about
human rights. Firstly, this reframing unearths the politics of human rights, which are
defined by a certain type of moral demand upon social and political structures. The
American and French revolutions are usually cast as important moments in the evolution
of human rights, but what we want to emphasize is the connection between these
supposedly self-evident rights and political movements to achieve them. Secondly, to
claim rights are possessed because one is “human” is a challenge to the existing order, as
the referent category is ambiguous and open to contestation by anyone, even those not
recognized in the social order. This is evident in the way in which oppressed groups in
America and France picked up the rhetoric of rights immediately; women, Jews, and
slaves recognized their own humanity, even if their oppressors did not, and made their
own claims to be recognized as human, claims not only for inclusion but claims that
contested the meaning of “human,” or more accurately: man (Hunt 2007, 146–175;
Grovogui 2009). We can continue to tell this history as the tragedy of universal values
unable to overcome social oppression, but we feel it is far more productive, especially
in our current age of human rights dominance, to look to the contests that are always
present when the ambiguous human category is invoked.
Neil Stammers (1999, 2009) has developed this idea of human rights, in which
the claim to social power is made through the ambiguous category of “humanity,”
and both recasts the international human rights movement and reveals potentials for
opposition and counter-hegemonic ideas. This account is based on an understanding
of rights as moral claims that define the legitimacy of an existing political order, and
human rights become, potentially, the most radical and coercive type of rights–
claims. The category of humanity is ambiguous because it can be taken up by
anyone. The logic of human rights empower everyone to challenge any existing
constellation of power, but they likewise enable the imposition of a new or expanded
power over everyone (Van Den Hemel 2008).
Human rights are contingent expressions and products of the social struggles in
which they arose, leaving many issues unaddressed. For example, Article 4 of the
Universal Declaration of Human Rights (UDHR), prohibiting slavery, is not the product
of the enlightened reason of the delegates in 1948, but principally, the result of slaves’
resistance and anti-slavery campaigners fighting to destroy the moral legitimacy of a
shameful trade. Still, for the Sub-Saharan Africans currently growing tropical fruits in
the hot houses in Southern Spain, slavery has not finished and it is only part of market
illogic. By connecting human rights to social movements and seeing the claim of these
rights as an effort to disrupt the social order, the central figure becomes the “radical”.
This final figure is defined both by an embrace of praxis and an activism explicitly
aimed at challenging and changing the established political order.14
14 Feminist work on human rights, as both practice and ethics, has been at the forefront of efforts to
connect human right theory to activism. This rich contribution is not directly drawn on here for practical
reasons of space and focus. See Ackerly (2008), Reilly (2007), and Merry (2006b).
206 J. Hoover, M. Iñiguez De Heredia
Increasingly, scholars have turned to the practices of human rights.15 The
implication of this work is that human rights are not static claims; even in the
legalized form of international law documents, human rights undergo ‘vernaculari-
zation’ as they are put to use (Merry 2006a, b). In this process, institutions and
interpretations of human rights are developed within a context of existing meanings,
practices and political struggles. This perspective also recasts the transnational
hierarchy that gives rise to analyses of the diffusion of norms from the global to the
local (Goodale 2007, 10–23). Not only are human rights put to use in a diversity of
ways, but practices and meanings transfer among groups horizontally and at times
from local to the global. Explicitly connecting this understanding of human rights
practice to an agonistic ethic of human rights provides new opportunities for
analyzing the ways that human rights practices enable and constrain individuals and
groups to effect their social and political environment, and promotes an ethic that is
critically responsive16 to those actors resisting and contesting hegemonic structures
and identities (Connolly 2005, 126)—such as the neo-liberal state, as we will
examine in the case of the Zapatistas, or the possessive individual, in the case of
MST.
One of the main differences between the “activist” understanding of human right
(so to speak) and the understanding of the “radical” is the difference between what
Richard Day (2005) calls the ‘politics of demand’ against the ‘politics of the act’. If
the big NGOs have been professionalized in order to create an extensive
infrastructure that has the capacity to demand and negotiate with governments for
the realization of rights as they have been granted and are expressed in different
covenants; radical movements emphasize their capacity to empower themselves, to
create their own rights, to reinvent power relations and take what they think belongs
rightfully to them. This is illustrated, with different levels of intensity, by examining
two Latin American movements: the Zapatistas and the MST. We will first consider
them separately, to see where they are coming from and to more clearly analyze their
similarities and differences.
The ‘Zapatistas’, as identification, is an inexact term. It refers to a large
movement that now includes not only the original group that in 1994 took up arms
against the Mexican government, the EZLN, but also a extensive world-wide
network of solidarity under the rubric of ‘La Zezta’.17 Since the uprising of 1994,
which lasted barely 12 days, the Zapatistas have been working towards the self-
management of their communities and creating new forms of political community.
As Subcomandante Marcos stated,
15 Very significantly and close to the kind of claims we are making in this article is the work from critical
anthropology on the translation of human rights from one cultural context to another (Eg. Goodale 2006;
Graeber 2009)
16 Connolly defines critical responsiveness as ‘the form of careful listening and presumptive generosity to
constituencies struggling to move from an obscure or degraded subsistence below the field of recognitions,
justice, obligation, rights, or legitimacy to a place on one or more of those registers. When a place is
created new terms of contrast and similarity become available and the entire register is altered to some
degree’ (2005, 126).
17 La Zezta conflates the Sixth Declaration (shorten to ‘la sexta’ in Spanish) and the ‘Z’ of Zapatista. This
declaration put conditions to those supporting the Zapatistas, declaring that they did not want the support,
in fact, they were opposed, to political parties, reformist unions and all those organizations that did not
truly work toward changing the world and for the end of neo-liberalism.
Philosophers, Activists, and Radicals 207
Zapatismo is not an ideology…it is…an intuition…Zapatismo poses the
question: “What is it that has excluded me?” “What is it that has isolated
me?”…In each place the response is different. Zapatismo simply states the
question and stipulates that the response is plural, that the response is
inclusive…(Subcomandante Marcos cited in Carrigan 2001, 440)
Graffiti in San Cristobal de las Casas put it succinctly: ‘We Are Not Guerrillas.
We are Revolutionaries’ (Carrigan 2001, 440). This also means that the Zapatistas
are not an armed group attempting to take control of the government or separatists
with the intention of controlling a part of the country. In fact, since those few days in
1994, the EZLN has only used arms to protect their communities against the army
and paramilitary groups. A communiqué drafted in response to a statement from
armed Spanish separatist group Euskadi Ta Askatasuna (ETA), that dismissed the
EZLN as not revolutionary, made clear many of their political positions and
especially their approach to armed struggle:
Our struggle has an honor code, inherited from our warrior ancestors and that
entails, amongst other things, the respect for the life of civilians… not to resort
to crime to attain our aims… and not to respond with fire to words… Our
enemies (who are many and not in Mexico alone) wish that we resorted to
those aims. Nothing would be better for them than that the EZLN turned into
an indigenous Mexican version of ETA. Unfortunately for them, it is not like
that, and it will not be… Maybe it is already obvious, but I should emphasize: I
shit on all revolutionary vanguards of this planet. (EZLN—Subcomandante
Marcos 2003)18
Their identity is explicitly tied to the history of Mexico and its indigenous heritage.
However, it also has other more recent political connections.
The name, Zapatistas, comes from collectivist anarchist Emiliano Zapata, who led
an indigenous-peasant revolution together with Pancho-Villa against the dictator
Porfirio Díaz under a common cry of ‘land and freedom’. The Zapatistas’ immediate
background is the 1950s, when indigenous people and peasants attempted to
organize community structures of self-government in the rural areas of East Chiapas
(Stahler-Sholk 2005, 35). This created a conflict, sometimes violent, between the
peasant-indigenous movement and landowners, which the government was not
resolving (Wickham-Crowley 1987, 481). Later in the 1970s, this incipient
movement developed into a small guerrilla movement, attempting to provide
protection for peasants and indigenous communities from the landowners. It was not,
however, until the 1990s when the groups, emerging from these series of processes,
took the name of Zapatistas or EZLN, simultaneously expanding their activities to
include the fostering of community-controlled services, such as vaccination
campaigns and rural schools (Carrigan 2001, 426).
Another landmark in the history of the Zapatistas was the transformation of the
ideological basis of the Mexican state in the 1970s, when Mexico’s Revolutionary
Institutional Party (PRI), after more than 7 decades in power as a populist party
18 All Spanish language citations have been translated by the authors.
208 J. Hoover, M. Iñiguez De Heredia
turned into a neo-liberal one (Partido Revolucionario Institucional (PRI) 2005;
Costilla et al. 2000). However, it was the 1982 debt crisis, when the International
Monetary Fund, the World Bank, the US Treasury and the new Mexican president
Miguel de la Madrid joined forces to introduce emergency economic reforms to get
Mexico out of the crisis that precipitated the full turn to neo-liberalism. These
measures included broad privatizations, ‘opening internal markets to foreign capital,
lower tariffs and a more flexible labour market.’ (Harvey 2005a, 99–100) Mexico
then joined GATT, reorganized its economy around foreign business interests and
introduced laws to foster land privatization, all of which clashed with the claims of
indigenous peoples who wanted more autonomy and self-government of their
communal lands and resources.
On the 1st January 1994 the EZLN broke into seven cities in Chiapas at the same
time, declaring war against the Mexican government. This brief war caught the
world’s attention and pushed the human rights of indigenous communities into the
spotlight. In their first Declarations of Motivations and Principles the EZLN declared
that they did not aim to take power, but to draw attention to the need to review the
political system in Mexico and to the situation of poverty, marginalization and abuse
of human rights experienced by thousands of indigenous people (EZLN 1993,
1994a, b). They demanded a democratic regime for Mexico, the recognition of all
indigenous peoples of Mexico and the participation of all people in ruling the
country.
In this First declaration they did not demand human rights. Instead, they appealed
to the Mexican constitution, declared that as belligerent combatants the laws of the
Geneva Conventions and international humanitarian law bound them and stated their
adherence to constitutional rights and universal principles of justice and equality
(EZLN 1993, para.8). They specified their demands by calling for the cessation of
the ‘genocidal war’ against indigenous peoples in Mexico, as well as for ‘jobs, land,
housing, food, health, education, independence, freedom, democracy, justice and
peace’ (Ibid, para.16). Finally, they declared that they would not stop fighting until
those basic demands were fulfilled ‘by forming a free and democratic government’
(Ibid). This is similar to the set of rights established in the UDHR, but it is at the
same time a radical take on these ideas. Here the important thing to note is that while
the Zapatistas might actually appeal to sovereign bodies, or recognise and abide by
international law and even ‘universal’ principles of justice, they act upon their own
understanding of their rights and responsibilities.
The Zapatistas use the notion of rights in a way that challenges many of the
assumptions infused in the International Bill of rights. In 1994, justifying and
clarifying the EZLN uprising they stated,
Our path of fire sprang out of the impossibility of struggling peacefully for our
elemental rights as human beings. The most valuable of these rights is the right
to decide, freely and democratically, what form the government will take
(EZLN 1994a, para.26).
At least three crucial concepts come out of this statement. Firstly, the emphasis on
their humanity, secondly the emphasis is not on the realization of rights granted by
the state, but rather on the collective control over political life in which rights can be
Philosophers, Activists, and Radicals 209
achieved, and finally, the idea of challenging the meanings of democracy, justice and
freedom as both a way of reinterpreting them and as a confrontation of the injustices
they suffer. Let us examine these more closely.
Their emphasis on humanity is a way of critiquing neo-liberalism and capitalism
as dehumanizing forces. Speaking of Chiapas, they regretted that ‘everyday… they
take away the petroleum and gas and, in exchange, leave behind the mark of
capitalism: ecological destruction, agricultural plunder, hyperinflation, alcoholism,
prostitution, and poverty’ (EZLN cited in Ponce de León 1994b, 124). The
Zapatistas declare their opposition to neo-liberalism because it symbolizes death,
wars, weapons, dictatorships, repression, poverty, corruption, patriarchy, racism,
crime, environmental destruction, ignorance, manipulation and injustice (cited in
Ponce de León 1994b, 124).19 On the contrary, they affirm an ‘international order of
hope, new politics, democracy, dignified work, full rights for women, respect for
elders, defense and protection of the environment, intelligence, culture, education,
truth, freedom…for remembrance, and concluded: for humanity’ (Ibid). That is, the
appeal to humanity is not a way of essentializing the human being across the world,
but to defend humanity, in its full diversity, with its potential for creativity, its
connection to the environment and its social, political and rational needs as a
different set of values from that of the universalized capitalist logic of competitive-
ness, consumerism and accumulation.
Their radical emphasis on self-determination is not a way of seceding from the
state, but a conviction that they need to be in control of their own affairs, because
they have a fundamental right to decide their own form of government. Ever since
the 1994 uprising, the Zapatistas have been focused on self-managing their
communities and after 16 years they are implanted in over 40 municipalities, which
they administer following their own political principles.20 For them, a good
government is one that ‘commands obeying’, a sort of Aristotelian concept of
ruling and being ruled; decisions are taken collectively in directly democratic
assemblies; and the economy is driven by a collective desire to live with dignity and
sustainably.21 They emphasize their capacity to rule over their own affairs, which is
in itself how they see the realization of justice and the only framework for their
rights—this should be distinguished from other movements for indigenous political
autonomy based on multicultural grounds and inclusion in a distinctive culture
identity.
A quick example of a recent event can exemplify this more clearly. On November
25, 2009, the newspaper La Jornada published an article detailing how the Chiapas
Congress had agreed to discuss in parliament a claim placed by the Zapatistas to be
recognized by the government. Throughout the following day all five Zapatistas
19 For the full elaboration of these categories see Ponce de León (1994, 124).
20 This does not mean a full administration or a complete implantation but sometimes a presence and a
juxtaposition of difference authorities together with government representatives. The Zapatista
municipalities are federated into five Assemblies of Good Government (Juntas de Buen Gobierno).
21 Dignity for the Zapatistas seems to be a sense of satisfaction, pride in being rebellious and control of
one’s own life in community with those around you. This is an important principle in the Zapatista
communities, which are organized around the principle of participation and collective horizontal decision-
making processes. Their economic organization follows ideas of sustainability, satisfying the needs of the
community in a way that is environmentally sustainable. This has been sometimes called ‘social ecology’,
see Toledo 1999 and Harvey 2005b.
210 J. Hoover, M. Iñiguez De Heredia
Assemblies of Good Government (Oventik, La Garrucha, Morelia, La Realidad y
Roberto Barrios) responded that this was absolutely false, that they are recognized
by the people that support them and that they will never ask to be recognized by ‘bad
governments’. They argued that they would never authorize the ‘bad government of
Mexico to make/impose laws over our rights and indigenous culture’ (Junta de Buen
Gobierno 2009). They see their rights and culture as deeper political and ethical
commitments and not as granted by a particular contingent government. Therefore, it
is a way of saying that they do not believe that the government is the one granting
them rights nor that they have to wait for the government to recognize their rights,
they create them.
This refusal to seek state recognition is something that separates the Zapatistas
from many other radical social movements. For instance, the MST follows a tactic of
direct action in regards to their land claims, but they still seek recognition from the
government to secure a legal and final acquisition of land. They assert their right to
land based on their socially productive use of it rather than on private ownership.
They occupy the land and then demand the government provide a legal entitlement
that legalizes ownership of the land for the working families. Still, the contestability
of rights is present as the MST uses the language of human rights to make demands
of the government, to denounce the activities of big agro-corporations and other
actors they campaign against.
The MST was established in 1984 out of the struggles of rural workers in the
1970s, an opening of Brazil’s economy in the aftermath of the military dictatorship,
and the germination of Liberation Theology (Gutiérrez 1974).22 Its origins and
present activities are based on the struggle for meaningful agrarian reform, which
seeks to distribute land amongst landless rural workers. The MST claims to have
grown to be ‘the largest social movement in Latin America with an estimated 1.5
million landless members organized in 23 of 27 states’ (MST 2010a, para.1).23
According to Wolford and Wright, the MST is a story of ‘more than a million people
(who) by organizing peaceful protests have forced the Brazilian government to
redistribute 20 million acres of agricultural land to 350.000 families and to assist
them further in creating new livelihoods’ (2003, xiii). For the MST, the access to
land is the realization of justice in that it has the capacity to improve levels of wealth
distribution, reduce poverty and empower working families.
Brazil is a country of immense resource wealth but also dramatic inequalities.
This is why land, as the primary resource for agriculture, is the target. In Brazil, not
only does ‘one per cent of the population have 13% of the total household income’,
but also regarding land distribution, ‘the percentage of the total area occupied’ by the
top deciles of properties ‘is approximately 78%’ (Beghin 2008, 1). Furthermore, the
redistribution of land clashes with the biggest industries in Brazil: agriculture, cattle,
bio-fuels, paper and pharmaceuticals. All of these industries are based on mono-
crops, land clearing and they carry out their business on big land extensions,
concentrating wealth in the hands of a few property owners. Monsanto, one of the
22 Liberation Theology is based on the premise that poverty is a sin and that Christians must work towards
a society of justice and solidarity
23 All Portuguese language citations have been translated by the authors.
Philosophers, Activists, and Radicals 211
biggest multinational companies24 in Brazil, is, for the MST, a symbol of what they
are against: big land owners, concentration of land in a few hands, and foreign agro-
business imposing on farmers the purchase of Monsanto seeds that produce crops
without seeds. Not surprisingly, MST members on more than a few occasions have
targeted Monsanto (BBC 2003).
In opposition to this vivid example, the MST communities grow organic crops
and distribute the harvest equally amongst members of the communities.25 They
attempt to apply, in the settlements, the ideals of empowering all members of the
settlement, putting emphasis on equal participation, gender equality and raising
political consciousness, as well as providing education for everyone (not just basic
education but also political education). However, the practice of land occupation and
land collectivization entails dramatic risks, including repression, prison and even
murder. This is why the MST recently created a human rights commission that is part
of every federated division within the organization (MST 2009a, 2010b). The MST
human rights commission attempts to carry out not just campaigning but actually
take abuses of human rights to court. The occupying workers receive constant death
threats from different fronts, including corporations, landowners and government
security forces (MST 2001). For example, the commission heard about a recent
threat to the workers occupying land in Alagoas, part of the municipal locality of
Belo Monte, in which a number of men with guns, supposedly linked to the owner
of the land, threatened to kill the workers and force them off of the property (2009b).
The report about it on the MST website was under the title ‘Disrespect for human
rights in Alagoas.’
So although the MST sees their human rights as being served better by pushing
the boundaries of legality, they do not completely reject the state framework of
human rights, but rather make a strategic use of it to demand accountability from the
government, demanding both security and redistribution, while occupying land
“illegally” and demanding radical changes to the economic order. Additionally, it is
through language such as ‘disrespect for human rights in Alagoas’ that they have a
more international appeal, using a common international discourse. The MST might
not be, as David Graebber observes, entirely ‘rejecting a politics which appeals to
governments to modify their behavior’ but they are still ‘in favor of physical
intervention against state power in a form that itself prefigures an alternative’ (cited
in Day 2005, 19).
The relationship between the big NGOs and radical groups deserves some
mention, as it clarifies the different approaches to human rights. AI is very careful
not to show direct support or sympathy for the Zapatista struggle. The way that AI
(2000) reports on this is to focus on the victims as a ‘third party’, describing
villagers or indigenous communities that innocently find themselves in between the
EZLN and the paramilitary or government forces. Yet, while they would never
support the EZLN’s right to forcefully defend their rights, they are happy to call on
the government (usually a human rights violator in the region) to protect these
24 Monsanto (2009, 4) declared reported profit sales for a value of $6.762 million in 2009.
25 For a more detailed and deeper background see for example Dias Martins 2006.
212 J. Hoover, M. Iñiguez De Heredia
communities. The case scenario in Brazil is different and AI (1999, 2009) has
produced communiqués demanding protection for MST members—whereas the case
of the Zapatistas is not mentioned in the latest AI (2007, 2008, 2009) reports.
However, the human rights violations reported focused on threats to the security and
life of the peasants but nothing was said in support of their claims to land. Oxfam
has been working in Chiapas for a while, and continues to do so by supporting local
organizations and projects that work in the area, specifically with economic
programs broadly related to development and gender issues. Although they have
written extensively on the negative impact of the NAFTA on peoples of Chiapas,
they also emphasize that they help ‘communities’ in Chiapas, whether Zapatistas or
not (Oxfam 2006). The point here is not to assert which party is right; it is just to say
that upholding the human rights flag is not a neutral or non-political act.
How does looking at the Zapatistas and MST challenge the understanding of
human rights that we have been developing here? There are at least two sets of
challenges in answering this question. One relates to the relationship between the
theorist and the activist; the other one pertains to the idea and practice of human
rights. Regarding the first challenge, as Adam David Morton suggests, analyzing
radical social movements needs to lead us to the questioning of the figure of the
intellectual and the limits of intellectual activity (2002, 30). Following Nugent,
Morton highlights that ‘our intellectual activity function[s] as a critical instrument, as
a challenge to ruling ideologies, maybe as a guide to political action’ (cited in
Morton 2002, 30). Thus, although it might be clear for the philosopher what the
benefits of entering a conversation with radicals are, it is less clear the other way
around, unless, as Morton suggests, theory enters the political process in solidarity
(2002, 30). For the second challenge, that links directly to the notion of human
rights, both the MST and the Zapatistas illustrate that any attempts to expand the
meaning of rights or to construct different relationships on which those rights can
have further meaning meets with resistance from established power. What these
movements also show is that human rights depend upon a relationship with power in
which, at times, government and the state apparatus are simultaneously protectors
and transgressors. In the case of the Chiapas or Brazil, for example, the government
allows the use of the environment and resources for the benefit of a foreign
multinational corporation, meaning that the best the international human rights
regime can offer is a low-paid job and consumer opportunities. In this situation one
could still demand alternative ideas of human rights, but this challenge will
antagonize the government, and this antagonism meets with repression and
marginalization. Human rights, as they have been legislated, establish that there
must be a legitimate authority that protects those rights, but nothing is said about
what to do when these rights are not met, much less when those rights are
inadequate, other than to appeal to further state-centric international institutions. Far
from human rights acknowledging the asymmetrical hierarchical relationships
between actors, they attempt to set a standard of justice that can be embraced by
those left disempowered. Anthony Anghie (2005, 133) argues that the human rights
architecture recreated the idea of god and the sovereign king as the guarantor and
source of justice in the modern state. This relationship of king–subject, whether that
has been transformed into one of government–citizen or not, is the one that radical
groups question.
Philosophers, Activists, and Radicals 213
This setting of the standards of morality and justice is what is fundamentally
challenged when rather than demanding, we act (Day 2005).26 The contemporary
human rights regime allows individuals to organize opposition parties, to march in
protest, and choose someone else for the job of governing. What the conventional
understandings of human rights makes it difficult to do is alter the basic structures of
sovereignty, representative government, and economic decision making in ways that
challenge a narrow liberal and state-centric ideal. Because this ideal eschews deeper
critiques of political and social power relations (including those that make the ideal
possible), human rights do not make space to imagine and create more participatory
forms of politics, where we can contest, and possibly upset, established social
structures, and participate more fully in decision making and political action.27 The
problem is not just having the protector and primary violator of human rights in the
same institution; it is also that there is not space to contest the ideal of human rights,
both of in terms of the individual and political community entailed.
Our understanding of rights needs to be open to the process of social contestation and
alive to the dangers of political moralism. The consecration of power via the protection
of human rights runs counter to the spirit of the social movements that lead to, and
perpetuate, the rights discourse—including democratic revolutions, slave rebellions,
workers’ and women’s movements and decolonization—and, we conclude, should be
challenged. The practice of human rights is recast by radical groups in terms of changing
the social world, in terms of what Connolly (2005, 121–122) terms the ‘politics of
becoming.’ The contextualizing of rights or of rights abuses then is not about this or
that government, but about how power relations are constructed. For Holloway, this
has been the fundamental challenge posed by the Zapatistas: ‘The Zapatistas have said
that they want to make the world anew, to create a world of dignity, a world of
humanity, but without taking power’ (Holloway 2005, 21). This leads to a theory and
practice of rights that seeks to reconstruct social and political community on site
through the practices of the everyday, without seeking to authoritatively control the
instruments of government for others—one that is ‘not understood in the first instance
to be derived from apodictic recognition of its law like form but rather taken to be
inspired in the first instance by a love of the world or attachment to the complexity of
being that infuses it’ (Connolly 2005, 116). What this rather obscure language points
to is that ‘Connolly urges us to assess emergent claims as democratic theorists and
activists should: by imagining and assessing a world, the world that might be open by
this new right…Here, rights and goods meet.’ (Honig 2008, 105)
In many ways, the Zapatistas go a step further than the MST, for the MST does
not have a critique of the state as such. For instance, they saw in president Lula a
way towards their desired agrarian reform. For the Zapatistas, the diffusion of power
in autonomous communities and a vision of rights emanating from, and protected
through, the everyday interactions of their immediate community is a substantive
26 Note that behind Day’s idea of the ‘politics of the act’ is Lacan’s ‘passage à l’act’ (take action upon a
sense of anxiety and simply ‘exit’ the kind of power network that generated that anxiety. See Lacan
(1998)) as well as that of direct action (Rocker 1938).
27 This is not to suggest that the ideal described here simply needs to replace the conventional account of
human rights, but to emphasize that the consolidation of any human rights ideal closes off others and
creates exclusions and silences that are rendered natural or reasonable by the disciplining of political life
by moral principle.
214 J. Hoover, M. Iñiguez De Heredia
improvement over giving away their rights to a powerful, historically oppressive
state structure that is beyond their control. Yet, these two groups have similar ways
of acting upon rights—they create them and they act on them—but two different
understandings of the implications of their actions and two different frameworks of
action. This relates back to the contours of their own political imagination. Radical
groups push the boundaries of what documented human rights allow and take what
they need, what they consider to be fair and just. In the case of both the Zapatistas
and MST, they do this collectively, contextualizing the notions of justice and re-
negotiating the limits in the name of a clearly defined political community. It is also
in this sense that for them it is more powerful to claim rights as indigenous people,
as Mexicans or as Brazilian peasants than only as members of humanity. It is not that
they do not want those rights for everyone or do not refer to their humanity as
justification, it is that they do not conceive of a specific list of rights that are claimed
by all humans—the rights they claim are born of the conditions of their lives and the
ways they have been victimized in a specific context.
The more extreme case is seen in the Zapatistas’ rejection of the Mexican
government as it is structured and conceived within a global neo-liberal context.
They see governments as corrupt and democracy as having lost its real sense.
However, as Richard Day (2005) observes, we would be misled if we read this as
counter hegemony. Radicals are not attempting to construct themselves as the new
power, the new government, the new representation of the state, ‘instead, they are
driven by an orientation to meeting individual/group/community needs by direct
action’ (Day 2005, 45). This orientation informs an alternative conception of human
rights, one that recognizes that claiming rights is also a claim to remake social
structures and redistribute political power—not only do radical movements show the
limits of the established human rights regime, they suggest one way it is possible to
think of human rights through a prism of plurality and ongoing contestation.
Conclusions
Human rights should be seen, we have argued, as the result of a temporary settlement of
social contestation in which both moral principle and social conditions have been
challenged. Disconnecting human rights, and moral authority generally, from their
history, in which political boundaries have been challenged and altered, leads to two
problematic assumptions. Firstly, that there is a human essence to which rights can be
ascribed. Secondly, that the enjoyment of such rights entails being permanently subject
to an authority with the capacity to protect them. The risk of asserting human rights this
way and detaching them from historical conditions is to reify human rights, as we know
them now, into something truthful, eternal, and good beyond dispute.
As a result, looking at the social struggles of radical movements, at how they push
the boundaries of the rights discourse puts human rights in a relative but also
agonistic light. These radical movements expose the limitations of demanding only
what is written, of demanding only those human rights that emerged from pervious
struggles but which have been consolidated into new forms of political power – if
human rights are to be more than a language of the weak for supplicating to the
strong, if their enjoyment is to open up new and plural possibilities of emancipation,
Philosophers, Activists, and Radicals 215
then we must set our political imagination beyond the given. They do not just protest
that their governments are not complying with their obligations; they are stating that
the nature of the political and economic structure is not conducive to the enjoyment
of such rights and that established rights are inadequate.
We can extract two important conclusions regarding the theory and practice of
human rights. On the one hand, that the ‘politics of demand’ are limited and the
articulation of more critical claims requires a ‘passage à l’act’, the reconstruction and
creation of rights, the pushing of political boundaries, the denunciation of the
weaknesses and injustices in the framework in which human rights are embedded.
On the other hand, that one of the most fundamental flaws of this theory and practice
of human rights is the division of politics from morality. Identifying an alternative
social logic to human rights, one based in an ethic of agonism rather than a morality
of legislation, carries its own commitments. Importantly, it takes uncertainty and
ambiguity as potentially productive conditions for ethics, while privileging certain
values—two of which are of particular importance. Firstly, human rights should
protect those marginalized and disempowered by existing politics. Furthermore,
human rights should be linked to a democratic ethos that does not demand uniform
processes of state building, but instead supports efforts to establish more
participatory and plural forms of democratic government in order to combat the
tendency of universal claims to become coercive and exclusionary.
These commitments are intended to preserve the agonistic element of human rights
and to resist the temptations of imposition or antagonism. But, importantly, these values
reflect a politics of their own, but one we think potentially enabled by human rights
discourse. In addition, these commitments have real political consequences—human
rights, we argue, are tools put to work to achieve particular social ends, and while they
also help to generate a human politics that is increasingly important in an interconnected
world, human rights should be allowed greater plurality both in meaning and institution.
The connection between theory and practice is of great importance here; if human rights
can serve the goal of inclusion and make our human politics more democratic, the
“radical” combining political action and philosophical reflection is a key figure. Finally,
in linking human rights to social movements and calling for greater plurality we open the
door to alternative political and economic orders that will challenge current powers. Not
only should the state and free-market be open to challenge, but also the way in which
social conflicts play out may not always be peaceful. Those willing to consider
humanitarian war to protect human rights should not be too quick to oppose the use of
violence by other social movements in extreme circumstances.
Acknowledgement The authors would like to thank the anonymous reviewers for their constructive
comments. We would also like to extend a special thanks to Dr. Kirsten Ainley for insightful comments at
multiple stages of the writing process. Our argument has benefited from this critical engagement, though
all the failings remain our own. Finally, we would like to thank Gary Herbet, editor of Human Rights
Review, for making the special issue possible.
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7
T R A N S N A T I O N A L L E G A L C O N F L I C T
B E T W E E N P E A S A N T S A N D C O R P O R A T I O N S
I N B U R M A : H U M A N R I G H T S A N D D I S C U R S I V E
A M B I V A L E N C E U N D E R T H E U S A L I E N T O R T
C L A I M S A C T
John G. Dale*
I N T R O D U C T I O N
In the 1990s, Unocal Oil Corporation made a deal with the author-
itarian government of Myanmar (Burma)1 to build the Yadana Project,
* This chapter is based in part on field research that I conducted in Burma and Thailand in 1997 and
1998. But I am deeply indebted to many people who volunteered their time and effort, shared their
food and homes, and in some cases risked their lives, to assist me in collecting data for this project.
To many I have promised confidentiality. To the other generous and courageous individuals and
organizations I offer my kadawt – especially Zaw Min (All Burma Students’ Democratic Front); Ko
Kyaw Kyaw (and other members of the National League for Democracy); Teddy Buri and Aung
Myo Min (National Coalition Government of the Union of Burma); Ah Moe Zoe, Zaw Zaw Htun,
and Min Min Oo (Democratic Party for a New Society); U Ba Kyi; Bo Thakhin Sa; Lu Maw; Saw
Cit Oo; Dr Guy Morineau (Medecins du Monde); John C. Bradshaw (US Embassy in Myanmar);
Max Ediger and Chris Kennel (Burma Issues); Faith Doherty (Southeast Asian Information
Network); Debbie Stothard (Alternative ASEAN Network on Burma); Lyndal Barry, Sitthipong
Kalayanee, and Htet Khai (Images Asia); Jackie Pollock (Empower and the Migration Assistance
Program); Veronika Martin (Women’s Education for Advancement and Empowerment); Peter
Halford, Pippa, and James (Burmese Relief Centre); Justin Sherman (International Rescue
Committee); Sally Thompson (Burmese Border Consortium); Kevin Heppner (Karen Human
Rights Group); Annette Kunigagon; and many brave friends in Hsipaw, Shan State. Outside of
Burma and Thailand, more individuals and organizations than I have space to list also provided me
with critical assistance. However, I must thank Burma Centre Nederlands for allowing me liberal
access to their archives in Amsterdam, the Netherlands. In the United States, I am grateful to
Simon Billenness and Robert Benson for providing me with substantial insight into their work on
transnational legal campaigns that have contributed to the Free Burma Movement. I also wish to
thank Fred Block, Jack Goldstone, and Michael Peter Smith for their insightful comments on earlier
versions of this work, and their intellectual support throughout the progress of this research. For
their additional comments, I would also like to extend thanks to Andy Nathan and my other
co-participants in the Seminar on Human Rights in an Age of Globalization, supported by the
National Endowment for the Humanities, and hosted by Columbia University during the Summer
of 2005.
1
In 1988, under Ne Win’s dictatorship, the military reconsolidated power when it violently
repressed a domestic pro-democracy movement that was deploying ‘‘people power’’ tactics in an
effort to end the military’s rule. In the wake of international condemnation for its action, the
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a natural gas pipeline. As part of that deal, the military junta that runs
Myanmar forced local villagers to work for Unocal under some of the
most deplorable conditions imaginable. The junta forced the peasants
from their homes and made them work literally at gunpoint. Soldiers
from Myanmar’s army raped, tortured and, in some cases, murdered the
forced laborers. Doe v. Unocal Corp., 963 F Supp 880 (C.D. Cal. 1997).
They also used the workers as human shields and munitions porters
against other peasants, often from their own villages, who the govern-
ment had branded as rebels. The peasants working for Unocal on the
Yadana Project were slaves – joining the ranks of the 27 million other
people held as slaves in the world today (Bales 1999: 8–9).
Peasants such as those forced to work on the Yadana Project have
little power within Burma. In 1988, they participated in a statewide
pro-democracy movement that the military junta brutally crushed.
The crackdown in Burma was bloodier than the one the following
year in Tiananmen Square in Beijing, China. However, it recei-
ved little international attention because it was not televised. Best
estimates suggest that the death toll ranged from 3,000 to 5,000
citizens.
Burma’s pro-democracy movement emerged initially within a
national scope of action. The movement’s participants targeted the
practices of the Myanmar military which, under an isolationist eco-
nomic policy called the ‘‘Burmese way to Socialism,’’ had come to
increasingly dominate the state and economic activity within its terri-
tory since General Ne Win’s coup d’état in 1962.
2 However, statewide
protest by hundreds of thousands of citizens, living in both urban
centers and rural villages, did not secure a democratic future for
Burma. The Myanmar military not only violently and indiscriminately
repressed public protest, but also heavily restricted non-military access
to communications and transportation infrastructure, and vigilantly
censored all civilian information flows (Lintner 1990; Mya Maung
1992; Schock 1999; Martin Smith 1991).
Burmese military’s ruling party, the State Law and Order Restoration Council (S L O R C ),
initiated a series of measures intended to sublimate any collective memory of the illegitimate
means by which it had secured its political domination over the state. One of the first measures
that S L O R C took was to rename the country that it ruled – from Burma to ‘‘Myanmar.’’ I will
use Myanmar to refer to the post-1990 military government; yet, to resist playing too easily into
the questionable intentions of this regime’s project of collective forgetting, I retain the name
‘‘Burma’’ to refer to the country, and ‘‘Burmese’’ to refer to the state’s citizens.
2
Forty years later, in December 2002, and well into his nineties, Ne Win died of natural causes.
After formally relinquishing his political office in 1988, he became progressively reclusive and
devoted to Buddhist meditation. He continued to reside in Burma until his death.
C O N F L I C T B E T W E E N P E A S A N T S A N D C O R P O R A T I O N S I N B U R M A
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Popular democratic aspirations were temporarily revived in 1990,
when the military agreed to hold ‘‘free and fair’’ elections. The main
opposition party, the National League for Democracy (NLD), won over
60 percent of the popular vote and 82 percent of the parliamentary seats
under the leadership of Aung San Suu Kyi, daughter of the country’s
first post-colonial national hero General Aung San, who was assassi-
nated by his domestic political rivals in 1948. But once again, demo-
cratic reform was forestalled as the military refused to honor the
election results and tightened its authoritarian grip. It outlawed oppo-
sition parties and systematically imprisoned or ‘‘disappeared’’
3 members
of the NLD (Fink 2001: chs. 3, 4 and 8). This time, however, injustice
found no expression in mass protest. Instead, the movement slipped
temporarily into abeyance (V. Taylor 1989; Meyer 1999). The students
and Buddhist monks, who had primarily led the movement, subse-
quently joined with peasants in ethnic minority villages in rural areas
near the Thai-Burma border.
What makes this case so sociologically interesting is that some vic-
tims of Myanmar’s violent policies then did something non-traditional.
The slaves forced to work on the Yadana Project, with the help of
activist lawyers in the United States, and working within a more
comprehensive transnational ‘‘Free Burma’’ movement, created a trans-
national legal space within which to address their grievances. It is on the
construction of this transnational legal space, and its implications for
the practice of human rights, that I focus in this chapter.
3 The term ‘‘disappeared,’’ refers to the human rights violation and crime of enforced or involun-
tary disappearance, and is widely interpreted by civilians in Burma to be a euphemism used by
the military to suggest that the arrested person has been executed by the military. Use of the
term, however, allows the military to simultaneously signal a threat to any civilians who may
clandestinely participate in or affiliate with oppositional political parties, and avoid accepting
legal responsibility or providing official justifications for executing civilians challenging the
military’s rule (Human Rights Documentation Unit 1996: 91–125; Amnesty International
2004, 2006). According to Laifungbam Debabrata Roy (2002): ‘‘Modern history has credited
Adolf Hitler for [the] invention [of the practice] in his Nacht und Nebel Erlass (Night and Fog
Decree) of December 7, 1941. The purpose of this decree was to seize persons in occupied
territories suspected of ‘endangering German security’ who were not immediately executed, to
transport them secretly to Germany, where they disappeared without trace. In order to achieve
the desired intimidating effect, it was prohibited to provide any information as to their where-
abouts or fate. The phenomenon reappeared as a systematic policy of state repression in the late
1960s and early 1970s in Latin America, starting first in Guatemala and Brazil. The term
‘enforced disappearance’ was first used by Latin American NGOs and is a translation of the
Spanish expression ‘desaparición forzada.’ The UN Commission was the first international
human rights body to respond both in general terms and also in specific cases which had
occurred in Chile since the military coup d’état on September 11, 1973.’’
I N T R O D U C T I O N
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I examine how movement activists have used this space to shape an
important legal mechanism, the Alien Tort Claims Act, for reigning in
the power of transnational corporations that violate human rights. I
also examine how this space has generated discursive ambivalence
among a wide range of social actors, particularly corporate and state
agents, who have voiced support for human rights within this space. I
argue that the discursive ambivalence of corporate and state agents
results from their combining human rights discourse with other dis-
courses that are meant both to protect corporations from being held
accountable for their abusive human rights practices, as well as to
minimize the state’s vulnerability to international legal standards.
To better understand the complex discursive practice of human
rights that I discuss below, it is helpful to distinguish between two
broad discourses that anthropologists often conflate: the globalization
discourse and the transnationalist discourse. The globalization dis-
course, writes Michael Peter Smith, ‘‘. . . draws attention to social
processes that are largely de-centered from specific national territo-
ries . . . and often explicitly assumes the growing insignificance of
national borders, boundaries, and identities’’ (2001: 3). Smith points
out that this discourse is grounded in the assumption that globalization
and the nation-state are ‘‘mutually exclusive and antagonistically
related conceptual categories’’ (2001: 3).
In contrast to the globalization discourse, Smith distinguishes
the ‘‘transnationalist discourse.’’ The transnationalist discourse, he
explains, not only challenges the binary distinction between global-
ization and the nation-state but, furthermore, ‘‘insists on the continu-
ing significance of borders, state policies, and national identities even
as these are often transgressed by transnational communication circuits
and social practices’’ (2001: 3). According to Smith’s distinction, the
transnationalist discourse emphasizes transnational practices rather
than global processes. Moreover, this discourse does not treat the
nation-state and transnational practices as mutually exclusive social
phenomena nor even as binary conceptual categories. Instead, the
transnationalist discourse depicts nation-states and transnational prac-
tices as contributing to the constitution of each other. It sees nation-
states as not only being transformed by transnational practices, but as
often participating in and even promoting these very practices that are
transforming nation-states.
State actors, as well as their targets and challengers, may deploy both
kinds of discourse, even combining aspects of each, when representing
C O N F L I C T B E T W E E N P E A S A N T S A N D C O R P O R A T I O N S I N B U R M A
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their own power and choices to act in various contexts. It matters how
actors (including collective actors, both state and non-state) represent
their power, choices, and even interests, because, as Alison Brysk
writes, they are ‘‘increasingly constituted from the meanings assigned
to them by interacting subjects’’ (2000: 43). Furthermore, the new
social subjectivities that are produced through practices connect-
ing social networks in more than one national territory are not neces-
sarily transgressive agents of change. As Smith asserts, ‘‘[T]ransnational
political, economic, and sociocultural practices are embodied in histori-
cally specific, culturally constituted, social relations, i.e., they are net-
works of meaning, established between particular spatially and
temporally situated social actors’’ (2001: 167). Attention to the mean-
ings and intentions of transnational practices (including discursive
practices) helps us to usefully distinguish between different types
of transnational networks, some of which have allied with Burma’s
military state, and others which have challenged those alliances.
Cumulatively, these transnationalist discursive challenges have trans-
formed the context of the pro-democracy movement’s struggle in a way
that has created new opportunities for meaningful collective action
both within and beyond Burma’s territorial boundaries.
F R O M N A T I O N – C E N T E R E D T O T R A N S N A T I O N A L
M O V E M E N T
In order to appreciate how this transnational legal space was created,
we must begin by understanding how this court case was embedded
within a broader transnational movement. After 1990, the activists
came to understand that their ‘‘people power’’ movement tactics had
failed. More and more pro-democracy activists were forced into exile.
Signs of organized, large-scale, non-violent, public protest reappeared
briefly in the 1996 student demonstrations, and the 1998 tenth-year
anniversary of the ‘‘8-8-88’’ uprising,
4 and again in the symbolic ‘‘9-9-
99’’ demonstration in 1999 (Dale 2003: ch. 3).5 Yet, the military quickly
4 Burmese activists commonly refer to the commencement of the statewide general strike that
launched the pro-democracy movement as Shitlay Loan A-Yay A-Hkin, or the ‘‘Four Eights
Affair (8-8-88)’’ because it began at precisely 8:08 a.m. on August 8, 1988.
5
Although Burma’s dictator General Ne Win was over ninety years old in 1999, the wealthiest
person in Burma, and rarely appeared in public anymore, many believed that he was still the
most powerful person in the country, and still influenced the military’s top cadre of generals and
state officials. Ne Win was said to be obsessed with astrology and numerology to the extent that
F R O M N A T I O N – C E N T E R E D T O T R A N S N A T I O N A L M O V E M E N T
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and easily repressed all of this collective action without significant
casualties. Although the claim to legitimate state representation in
Burma remains contested (Yawnghwe 1995; R. H. Taylor 1998), the
military has remained in power to this day.
However, from 1990 through 1994, several factors combined to alter
the conditions challenging the pro-democracy movement: (1) the
Myanmar state’s refusal to acknowledge the victory of the country’s
powerful opposition party in the 1990 elections; (2) the state’s sudden
adoption of an economic liberalization policy; (3) the rapid consolida-
tion of neo-liberal ‘‘free trade’’ as a hegemonic discourse on global-
ization as the Cold War was ending; and (4) a massive influx of foreign
investment by transnational corporations seeking to build a natural gas
pipeline through Burma. During this period, the pro-democracy move-
ment’s leaders came to realize that the Myanmar state was not the
only obstacle to domestic political change. The investments of trans-
national corporations and foreign states in Burma also buttressed the
Myanmar state’s power to repress the movement. In response, the pro-
democracy movement began to organize transnational campaigns with
other movements. Those movements were less centered on the
Myanmar state, and instead centered on foreign democratic states
and transnational corporations chartered within them that sought to
profit from Burma’s opening market.
many major tactical decisions at the national level are based on consultations with horoscopes
and obscure number charts. It was popularly understood that Ne Win revered the number ‘‘9’’ as
the most auspicious of all numerals. ‘‘Ko nawin kane,’’ a phrase which means ‘‘the astrological
calculation of the number ‘9’,’’ is invoked playfully in teashop conversation as a pun [nawin/Ne
Win], playing on Ne Win’s name. For example, when the military retook control of the state on
September 18, 1988, it is widely believed that the date was deliberately chosen on the basis of ko
nawin kane. September is the ninth month of the year. The number 18 is divisible by 9 and,
moreover, the first digit (1) and the second digit (8), when added together, equal 9.
Underground pro-democracy activists in Burma creatively manipulated the Burmese com-
moner’s attentiveness to Ne Win’s obsession with numerology, particularly the number 9, in
its deployment of symbolic politics to mobilize the ‘‘9-9-99 uprising,’’ which it launched on
September 9, 1999. In contrast to the mass direct action of the Four Eights Affair eleven years
prior, the activists deployed new forms of collective action, including ‘‘cat and mouse’’ guerilla
tactics, symbolic protests, and dozens of transnationally coordinated demonstrations with
activists in countries around the world, that were designed to get the Myanmar state to ‘‘jump
at shadows’’ and demonstrate to an international audience the military’s willingness to use
repressive measures that could be easily exploited by activists in transnational media campaigns.
The intention was not to mobilize citizens to take to the streets. Rather, it was to create the
impression in the minds of state authorities that such a conventional uprising might take place.
The state predictably responded by ordering soldiers to occupy the streets to intimidate citizens
into remaining in their homes, and by indiscriminately arresting hundreds of citizens who were
not even engaged in protest. The timing of the protest coincided with Myanmar’s recent
induction to the Association of Southeast Nations (ASEAN), whose member states justified
Myanmar’s inclusion based on the argument that they could constructively engage and steer the
junta toward more democratic rule.
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Foreign states have been reticent to publicly ally themselves closely
with the Myanmar state since 1988. Nevertheless, many of them, includ-
ing the United States, have helped to sustain it. The Myanmar military’s
response to the revolutionary crisis that it faced in 1988 quickly became
the target of two different globalization discourses deployed by foreign
actors. One of these globalization discourses promoted ‘‘free trade,’’ and
the other proclaimed support for ‘‘human rights.’’ The resulting dis-
cursive contention yielded two polarized international foreign policy
positions: (1) ‘‘constructive engagement,’’ which prescribes international
economic trade and development as the surest route to political stability
and democratization; and (2) multilateral ‘‘economic sanctions’’ imple-
mented through the coordinated action of individual nation-states
against rogue-state challengers to the international community’s new
global order.
The transnational networks of actors supporting each of these for-
eign policies all proclaimed their support for human rights, while
simultaneously jockeying for favorable economic partnerships and
trade relations with the Myanmar military ruling the state. Moreover,
these foreign policy discourses were mediated by a cultural structure of
neo-liberalism that channeled state power toward positions of discur-
sive stalemate, and toward practices that sustained the structures of
military repression in Burma. That is, although these two foreign
policies have become polarized as competing discourses at the interna-
tional level, taken together they effectively channel discursive con-
tention within a framework of conceptual distinctions that re-inscribes
the hegemonic power of the globalization discourse. In practice, how-
ever, neither of these international foreign policies curbed, nor were
they intended to curb, transnational oil and gas corporations from
seeking highly profitable new investment and development opportu-
nities in Burma. For these corporations, Burma represented a crucial
link to future natural gas markets in Southeast Asia and, most impor-
tantly, China (Dale 2003: chs. 4 and 6).
Although the Burmese pro-democracy movement has not mounted a
significant internal challenge to the Myanmar state since 1988, a good
deal of pro-democracy movement activity has been taking place outside
of Burma. By 1994, the Burmese pro-democracy activists-in-exile had
forged alternative transnational networks that strategically chose to
target the new transnational trade relations being forged by the military
state. Instead of focusing their protest efforts on the military state of
Burma, they expanded the scope of their collective action to target the
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foreign states, transnational corporations, and international trade
organizations that were conducting business (and, in some cases, alleg-
edly colluding in abusive human rights practices) with the Myanmar
state. In my broader study of the Free Burma Movement (Dale 2003), I
identify several transnationalist ‘‘Free Burma’’ discourses generated by
these alternative transnational networks that have intentionally chal-
lenged both the neo-liberal dimensions of the discourse on constructive
engagement and the nationalist dimensions of US federal discourse on
economic sanctions that had become institutionalized in foreign policy
toward Burma.
Under the banner of the ‘‘Free Burma’’ movement, and linking
grassroots movements in both the East and West, the Burmese pro-
democracy activists-in-exile have helped organize transnational legal
campaigns waged in alliance with local state and municipal govern-
ments in the United States and Australia, as well as non-state actors,
including regional governing bodies like the European Union, non-
governmental organizations (NGOs) throughout East and Southeast
Asia, international nongovernmental organizations (INGOs), and vol-
untary associations on every continent and in over twenty-six countries
(Dale 2003: 5). The movement has also attracted pre-existing trans-
national advocacy networks that defend issues like human rights,
women’s rights, the degradation of the natural environment, labor
rights, indigenous people’s rights, and socially responsible corporate
investment, and has even created new principled-issue networks, like
those now forming around the international ‘‘right to know’’ (about the
labor conditions and environmental impact of proposed development
projects that are financed through transnational corporations in partner-
ship with the state) (Dale 2003: 113).
It is also at this time that the Free Burma movement began to
develop and voice a transnationalist discourse on human rights and
their protection against the abusive practices of corporations partner-
ing with the Myanmar state. It is a discourse reflecting several trans-
national strategies deployed by the Free Burma movement that move
beyond holding accountable the Myanmar state for its human rights
abuses, economic mismanagement, and political illegitimacy.
6 It arti-
culates an alternative understanding of the relationship between
6
Dale (2003) describes several of the transnational legal campaigns that the Free Burma move-
ment activists organized, including a selective purchasing campaign comprised of over thirty
cities in the United States and the State of Massachusetts, all of which adopted ‘‘Free Burma
laws that forced corporations to choose between doing business with the Myanmar junta or with
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political processes in Burma and global market dynamics, and depicts a
variety of ways in which actors outside of Burma have helped to sustain
the Myanmar state’s repression of democratic change.
C R E A T I N G A T R A N S N A T I O N A L L E G A L S P A C E
In 1996, a dozen ethnic-minority peasants from Burma sued the Unocal
Corporation in a US court in a case titled Doe v. Unocal. Doe v. Unocal
Corp., 963 F Supp 880 (C.D. Cal. 1997); 27 F Supp 2d 1174 (C.D. Cal.
1998); 67 F Supp 2d 1140 (C.D. 1999); 110 F Supp 2d 1294 (C.D. Cal.
2000); and 403 F 3d 708 (9th Cir. 2002). They alleged that Unocal had
been complicit in human rights abuses against them and demanded
that Unocal stop the human rights abuses and pay money damages. For
eight years, this case wound its way through the courts. Then, suddenly,
in December 2004, Unocal announced that it had reached a settlement
with the plaintiffs (Lifsher 2005; EarthRights International 2005a).
This was clearly a victory for the peasants.
What makes this transnational legal action significant is that, had
the court been left to decide the case, and had it ruled in favor of the
peasants (an outcome that Unocal clearly thought likely), it would
have been the first time that foreigners had won a case against a
transnational corporation in a US court for an injury that took place
in another country. The peasants filed the suit under the United States
Alien Tort Claims Act, 28 USC x1350. Since Doe v. Unocal, over a
dozen similar suits have been filed against other corporations on the
model of the transnational legal strategy used in the Unocal case.
The judicial struggle of the Doe v. Unocal case, in itself, represents
a stunning achievement for the Free Burma Movement. This long shot
of a transnational legal strategy soon became a landmark suit. The pub-
licity from the suit brought stories of Burma’s struggle for democracy
into living rooms across the United States. But the negative publicity
that this case generated is not ultimately what threatens Unocal’s
corporate conduct. Rather, this case threatens Unocal’s ‘‘bottom line’’
of profitability by forcing it to build into its calculus the costs of
litigation and liability for violating the human rights of foreign nation-
als in foreign countries in which it does business. It also sends a clear
message to other corporations: if the activists win, corporations must
these US municipal and regional-state governments. The National Foreign Trade Council
ultimately sued the State of Massachusetts in a case that went to the US Supreme Court,
which forced Massachusetts to later rescind this legislation.
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consider these costs in deciding whether to partner with rogue states.
This could provide an important tool for weakening the authoritarian
grip of Burma’s ruling junta and others like it which depend upon
foreign corporate investment. Most importantly, this campaign created
what I call a ‘‘transnational legal space.’’
What I mean by transnational legal space are the discourses con-
structed at the interstices of existing state legal systems that identify
institutional arrangements or legal mechanisms that present opportu-
nities for making crimes or torts committed in one state actionable in the
legal system of another state. Transnational legal space therefore also
provides an opportunity for mediating how the emerging rules of global
markets are politically, legally, and morally constructed. While this
space may include international fora, (i.e., contexts that represent
states and their agents interacting among themselves), it is especially
meant to include transnational interactions, (i.e., contexts that repre-
sent interactions including at least one non-state actor). For example,
by bringing a lawsuit against Unocal Corporation, otherwise powerless
Burmese peasants were able to create a transnational legal space in
which they could argue for the institutionalization of democratic mar-
ket practices such as those that ban slavery.
What is important to grasp here is that the notion of ‘‘transnational
legal space’’ represents a contested terrain of legal discourse. As Mark
Goodale argues in the Introduction to this volume, ‘‘discursive appro-
aches to human rights assume that social practice is, in part, constitutive
of the idea of human rights itself, rather than simply the testing ground
on which the idea of universal human encounters actual ethical or legal
systems’’ (pp. 8–9 above). Transnational legal space is a discursive field.
A discursive field is in part bounded by norms. But, the symbolic
dimension of any given norm is never completely fixed. We can speak
of norms that have varying degrees of durability or stability, but there is
no reason to assume that this underlying symbolic dimension of a norm
is fixed once and for all. As soon as we begin to question why a norm
exists, or why it should be enforced to address a given social condition,
we are entering the world of discourse.
Discourse structures the symbols that give meaning to norms. Sym-
bols have no inherent meaning. They are polysemous. It is only when
a symbol is brought into relation with another symbol that mean-
ing emerges. That is, meaning derives from how we give structure
to symbols. Discursive action provides such a structure. Discourse has
the potential to transform the meaning of a given norm by bringing
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together polysemous symbols in new combinations – in new relation-
ships to each other – and altering the original meaning of these symbols.
Thus, discursive action can provide new ways of understanding norms,
and serve as a vehicle for bringing new interpretive claims regarding
norms into the mix.
Also, Goodale reminds us of a key fact about human rights discourse:
‘‘the sites where human rights unfold in practice do matter, and these
sites are not simply nodes in a virtual network, but actual places in social
space, places which can become law-like and coercive’’ (p. 13 above). If
we think of ‘‘place’’ as spaces that have become embedded with mean-
ing, and understand that meaning is produced, reproduced, and trans-
formed within social relations and through social practices, then we can
begin to understand the importance of transnational legal space and
transnationalist discursive practices for the construction and progres-
sive development of human rights norms.
Transnational legal space suggests a site for examining proce-
sses through which economic globalization becomes institutionally
embedded in legal, moral, and political relations that are discursively
constituted through conflicting and contradictory legislative, judi-
cial, and administrative struggles. The focus here is on the discur-
sive struggles of a not-yet-institutionalized space of globalization in
which any existing transnational norms, like the prohibition against
the use of slave labor, are culturally refracted through competing
interests and experiences. The judicial, administrative, and legislative
dimensions of discursive struggle among state and non-state actors
shape the institutional boundaries of the emerging transnational
legal terrain.
This very premise is an interrogation of the globalization discourse:
first, because it assumes that states are still critical actors in the con-
struction of a regulatory infrastructure for globalization; and, second,
it assumes that markets, especially global markets, are always embed-
ded to a greater or lesser extent in social relations of governance. The
neo-liberal idea that markets could be ‘‘free’’ of (or completely dis-
embedded from) such relations is a utopian impossibility (see Block
1990, 2001). In this case, it is the transnational legal action (inclu-
ding discursive action) of the Free Burma movement’s participants
and allies who initiate and sustain these struggles through conflict
with their targets and challengers, whose norms of neoliberal eco-
nomic ‘‘free trade’’ and ‘‘constructive engagement’’ (among others)
they contest.
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U S I N G T H E A L I E N T O R T C L A I M S A C T T O S U E
C O R P O R A T I O N S
The Doe v. Unocal suit, filed under the Alien Tort Claims Act
(ATCA), deploys a transnational strategy through which the Free
Burma movement attempts to use the statute for the first time to hold
liable in a US court transnational corporations, not just state actors or
private individuals, for their complicity in human rights abuses com-
mitted outside the United States in furthering their transnational joint
ventures with states like Burma. The original legislators of this statute
had never, nor could have, imagined using it for this purpose. Yet,
movement activists, deploying a transnationalist discourse, creatively
appropriated this statute to address relations among states, citizens,
corporations, and human rights that had significantly changed over
the two centuries since ATCA’s adoption. This suit illustrates how
movement activists created a transnational legal space to shape the
meaning and application of the ATCA for reigning in the power of
transnational corporations that violate human rights.
An appreciation for how the Doe v. Unocal suit brought under the
ATCA provides an example of a transnational legal space begins with
understanding the historical development of the Act itself, and how
the peasants and their lawyers reappropriated it in a new way. In 1789,
the First Congress of the United States adopted the ATCA. It
remained largely unused for the next two centuries. The text of the
Act is short. It reads simply, ‘‘The district courts shall have original
jurisdiction of any civil action by an alien [non-United States citizen]
for a tort only, committed in violation of the law of nations or a treaty of
the United States.’’ 28 USC x1350. The ATCA is not a human rights
law per se, but it allows for civil suits for violations of the law of nations.
The ‘‘law of nations’’ is the law of international relations, embracing
not only nations but also individuals, such as those who invoke their
human rights or commit war crimes.
7
The members of the United States’ First Congress were obviously
cognizant of the ‘‘law of nations’’ as they crafted their nascent nation’s
Constitution. Yet, they could not have anticipated, in 1789, the extent
to which the law of nations would develop over the course of the
following two centuries. Nor, for that matter, could they have imagined
7 This is the definition of the law of nations that the Ninth Circuit Court of Appeals used in
Doe v. Unocal Corp., 395 F 3d 932, 944 n. 12 (9th Cir. 2002).
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the radical development of two other legal concepts that have signifi-
cantly transformed the context within which contemporary actors have
begun to interpret the ATCA: ‘‘human rights’’ and ‘‘the corporate rights
of personhood.’’
The Law of Nations
Although litigation under the ATCA remained dormant for two cen-
turies following its passage, lawyers in the United States appropriated
it during the past two decades to challenge the abuses of foreign state-
agents, and even non-state actors, that were committed in foreign
states between non-US citizens. While some have cheered these
ATCA cases as a progressive step forward in the development of inter-
national norms, others have decried the very same cases as a creep-
ing American imperialism which threatens to export the legal
standards of the United States to other nations, raising the question
of whether these ATCA cases represent an erosion of state sover-
eignty in sheep’s clothing.
In 1980, lawyers at the Center for Constitutional Rights rediscov-
ered ATCA and put it to modern use in the landmark case of Filartiga
v. Pena-Irala, 630 F 2d 876 (2d Cir. 1980).
8 The decision in that case
interpreted the ATCA to provide jurisdiction for US courts in cases
where the perpetrator (even though not a US citizen) is properly served
within the United States’ borders, but it left open whether the ATCA
applies only to state actors or also to non-state actors. In addition, this
decision drew attention, amidst increasing international concern with
human rights issues, to a new legal tool that human rights advocates
might find workable in a variety of related cases. As Andrew Ridenour
explains: ‘‘The resulting body of jurisprudence has slowly expanded
over the past twenty years to deal with an otherwise open area of law:
civil remedies for certain violations of international law’’ (2001: 584).
Subsequent courts in the United States have generally followed the
interpretation set out in Filartiga, holding that the ATCA not only
provides jurisdiction, but also authorizes plaintiffs to base their sub-
stantive claims on international law norms. In re Estate of Ferdinand
E. Marcos Human Rights Litig., 25 F 3rd 1467, 1475 (9th Cir. 1994),
cert. denied, 513 US 1126 (1995). Courts also have relied on this
8
As Ridenour (2001) explains, although plaintiffs had invoked the alien tort statute in numerous
suits prior to 1980, only two suits had been successful under the statute (see Abdul-Rahman Omar
Adra v. Clift 1961; Bolchos v. Darrel 1795).
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interpretation to suggest that plaintiffs do not have to base their causes
of action on the municipal law of the forum or of the site of the tort.
Xuncax v. Gramajo, 886 F Supp 162, 181–183 (D. Mass. 1995).
However, courts have debated whether the statute provides a cause
of action against a party that has violated international law. One of the
most difficult issues facing the courts has been that of determining what
constitutes a violation of the law of nations. In Tel-Oren v. Libyan Arab
Republic, the District Court for the District of Columbia reasoned that:
The law of nations never has been perceived to create or define the civil
actions to be made available by each member of the community of
nations; by consensus, the states leave that determination to their
respective municipal laws . . . In consequence, to require international
accord on a right to sue, when in fact the law of nations relegates
decisions on such questions to the states themselves, would be to
effectively nullify the ‘law of nations’ portion of [ATCA].
(Tel Oren v. Libyan Arab Republic, 726 F 2d at 778 [D.C. Cir. 1984])
That is, the law of nations itself does not provide rights of action, thus
Congress must have intended for ATCA to grant a cause of action to a
foreign national to remedy a violation of the law of nations by another
party. Yet, as the district court pointed out, this raises a further issue:
how are the courts to derive from an amorphous entity (i.e., the ‘‘law of
nations’’) standards of liability that are applicable in concrete situa-
tions? The Tel-Oren court proposed an alternative approach to that of
the Filartiga court. While ATCA can provide federal court jurisdiction
to aliens alleging torts framed as a violation of the law of nations, the
substantive right on which this action is based must be found in the
domestic tort law of the United States.
In 1991, the US Congress passed the Torture Victim Protection Act
(TVPA) with the intention of augmenting the Filartiga approach and
extending it to citizens of the United States.9 The TVPA states that:
An individual who, under actual or apparent authority, or color of law,
of any foreign nation, subjects an individual to torture shall, in a civil
9
The House of Representatives stated: ‘‘The TVPA would establish an unambiguous and modern
basis for a cause of action that has been successfully maintained under an existing law, section
1350 of the Judiciary Act of 1789 [the Alien Tort Claims Act], which permits Federal district
courts to hear claims by aliens for torts committed ‘in violation of the law of nations’ . . . Judge
Bork questioned the existence of a private right of action under the Alien Tort Claims Act,
reasoning that separation of powers principles required an explicit – and preferably contempo-
rary – grant by Congress of a private right of action before U.S. courts could consider cases likely
to impact on U.S. foreign relations . . . The TVPA would provide such a grant . . .’’ (US House
Judiciary, Committee 1991: 3–4.)
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action, be liable for damages to that individual; or subjects an individual
to extra judicial killing shall, in a civil action, be liable for damages to
the individual’s legal representative, or to any person who may be a
claimant in an action for wrongful death.
(Torture Victim Protection Act of 1991, 28 USC x 1350 et seq.,
affirmed by 470 US 1003 (1985))
Since Congress passed this statute, courts have held, that regardless of
the original intent that Congress may have had in adopting ATCA, the
TVPA demonstrates a contemporary legislative intent that ATCA
does create a private cause of action for violations of international
law. See, e.g., Xuncax v. Gramajo, 886 F Supp 162, 179 (D. Mass. 1995).
In other words, the TVPA gave new meaning to the law of nations,
permitting non-state actors to be sued under ATCA for violations of
international law, provided that the tort represents the violation of a
norm that is universal, specific, and obligatory.
In 1995, the Court of Appeals for the Second Circuit Court drew
upon Congress’ explicit intention in passing the TVPA to hold that
certain forms of conduct violate the law of nations whether undertaken
by those acting under the auspices of a state or only as private indi-
viduals. Kadic v. Karadzic, 70 F 3d 232, 241 (2d Cir. 1995). This in
turn opened ATCA to being used to sue private individuals – not just
states and their agents – who violate the law of nations. Even ‘‘private’’
individuals, that is, individuals who are not acting as agents of the state
per se, but those who are found to be acting in cooperation with
government officials or significant government aid when they allegedly
committed a violation of the law of nations, were also within US court
jurisdiction under the ATCA (Walker 1997).
10
Thus, it is the intersection of ATCA, which is almost as old as the
Republic, with recent developments in the domestic appropriation of
international law that created the legal opportunity, or critical
10 In this case filed against Radnovan Karadzic following civil war in former Yugoslavia, the court
provided a reasoned analysis of the scope of the private individual’s liability for violations of
international law. The Second Circuit court disagreed with the proposition ‘‘that the law of
nations, as understood in the modern era, confines its reach to state action. Instead, [the court
held] that certain forms of conduct violate the law of nations whether undertaken by those
acting under the auspices of a state or only as private individuals.’’ Kadic v. Karadzic, 70 F 3d at
239 (1995). While international law proscribes crimes such as torture and summary execution
only when committed by state officials or under their legal authority, the law of nations has
historically been applied to private actors for the crimes of piracy and slavery, and for certain
war crimes. Kadic v. Karadzic, 70 F 3d at 243 n. 4 (1995). Thus, individual liability may apply
when torture or summary execution are perpetrated as a war crime. Kadic v. Karadzic, 70 F 3d at
239 (1995).
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discursive space, for suing the Unocal Corporation. The activist attor-
neys representing the Doe plaintiffs pushed the argument further. As
individual private actors, corporations too, they asserted, are capable of
violating and being held liable for a new class of international norms
which had emerged officially in only the past two decades: jus cogens
norms.
The human rights regime and corporate personhood
An important factor that has influenced the changing relationship
between state sovereignty and the law of nations is the development
of the international human rights regime. As Sarah Cleveland has
cogently argued, this regime has been
enunciated through a loose network of general treaties promulgated by
the United Nations; rights-specific regimes which are promoted by
intergovernmental entities and international organizations [e.g., the
International Labor Organization]; regional regimes of conventions
and oversight; and universal customary prohibitions that have evolved
through treaties, the practices of states, and the efforts of nongovern-
mental and private actors.
(Cleveland 2001: 20)
Emerging from these efforts has been an unevenly developed global
system of normative rules relating to human rights. Not all human
rights are equal before the law. Comprising this global system of rules
are two tiers of human rights: (1) jus cogens norms and (2) treaty rights
and customary obligations erga omnes (Cleveland 2001). This has
implications for those filing suits under the ATCA.
Treaty rights, of course, are detailed in the formal instrument of the
human rights regime. These international treaty obligations cover a
wide range of protections for human rights by creating binding obliga-
tions between party states. A state which accedes to these conventions
becomes obligated to every other state to uphold the promises of the
treaty and ‘‘submit[s] its performance to scrutiny and to appropriate,
peaceful action by other parties . . .’’ (Henkin 1981: 1, 15). It should be
noted that Myanmar is a member of both the United Nations and the
International Labor Organization (ILO).
11
11
The ILO, which is the international body responsible for defining and implementing interna-
tional labor norms, has played a significant role in helping certain labor rights, including the
prohibition against slavery and forced labor, to attain broad recognition among states as
fundamental human rights. Its eight conventions explicitly setting forth ‘‘fundamental
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Beyond those human rights formally expressed in these treaties, the
law of nations recognizes certain rights to be universally accepted and
binding on all sovereign states as either jus cogens or erga omnes prin-
ciples of customary international law. Jus cogens norms (literally mean-
ing ‘‘the highest law’’) hold the highest hierarchical position among all
other norms and principles (Bassiouni 1996: 67). In 1969, the Vienna
Convention on the Law of Treaties first defined jus cogens norms as
principles ‘‘accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international
law having the same character’’ (Vienna Convention of the Law on
Treaties, 1155 UNTS 331, 344, Art. 53). They represent the higher of
the two tiers of human rights to which I alluded above. As a conse-
quence of this standing within the law of nations, nearly all courts around
the world (including US courts) deem jus cogens norms to be ‘‘peremp-
tory’’ and ‘‘non-derogable.’’ In other words, jus cogens norms are norms of
international law that are binding on nations even if they do not agree
with them. Any international agreement that would violate them would
be void (Vienna Convention of the Law on Treaties, 1155 UNTS 331,
347, Art. 64). Any jus cogens violation, therefore, is also, by definition, a
violation of the law of nations. The legal literature discloses that the
following are broadly recognized rights that no state officially claims the
right to violate and may be considered jus cogens principles of the human
rights system: aggression, genocide, crimes against humanity, war crimes,
torture, piracy, and slavery and slavery-related practices.
12
Human rights obligations that enjoy the status of erga omnes norms
share with jus cogens norms their universal character and are binding on
all states. However, unlike jus cogens norms, erga omnes norms are not
peremptory norms which prevail over all other rules of customary law.
human rights’’ have been almost universally embraced, with the notable exception of the
United States. The United States has, however, ratified the ILO’s Convention No. 105
regarding the abolition of forced labor. In 1998, the ILO made further progress toward
universalizing these norms by adopting its Declaration on Fundamental Principles and Rights
at Work, which binds all ILO members to the core labor principles, regardless of whether the
member has ratified the relevant conventions. Commitment to these core ILO principles is a
condition of ILO membership. Moreover, the basic, non-specific, labor rights have been
incorporated into foundational international human rights instruments, all of which have
received nearly universal acceptance.
12 Although identifying the international human rights principles that constitute jus cogens can
be controversial, the Restatement (Third) of the Foreign Relations Law of the United States x
702 (1987) recognizes the following jus cogens norms: genocide; slavery or slave trade; summary
execution or causing the disappearance of individuals; torture or other cruel, inhuman, or
degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimi-
nation; and a consistent pattern or gross violations of internationally recognized human rights.
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Thus, we can think of treaty rights and erga omnes norms together as
comprising the lower of the two tiers of human rights.
In the summer of 2004, the US Supreme Court held in the case of
Sosa v. Alvarez-Machain that only a human rights violation of the high-
est and most agreed upon magnitude qualifies for consideration under
ATCA. In other words, only ATCA claims based on violations of jus
cogens norms qualify (Sosa v. Alvarez-Machain, 542 US 692 (2004)).
This institutionalization of jus cogens presupposes that some laws are
inherent and inalienable, reflecting the notion that there are ultima-
tely fundamental moral choices, and thus that there are non-economic
boundaries which market participants should not be permitted to trans-
gress; for example, that slavery is immoral. This case illustrates how
transnational legal space mediates the process through which global
markets become embedded in morality. This case also highlights dis-
cursive contention around a statute that confers jurisdiction in a US
federal court, but which does not create a substantive right. Yet, the
ambiguity of this statute is powerful when combined with jus cogens.
The US Supreme Court ruled that ATCA can be used for jus cogens
violations. But the question raised in Doe v. Unocal was whether a party
could sue a corporation for these jus cogens violations. Over the course
of the nineteenth and twentieth centuries, US courts have increasingly
granted corporations the rights of personhood, allowing them to be
treated legally as private individual persons, separately from the indi-
viduals who own or operate them, and providing them with the same
rights to due process under the law enjoyed by human persons (Benson
1999; Lamoreaux 2000). The plaintiffs in Doe v. Unocal essentially
argued that with the rights of personhood also come responsibilities.
Thus, they argued, corporate violations should be held liable under the
ATCA for jus cogens violations in the same way that individuals are.
The district court ruled that the plaintiffs in Doe v. Unocal have a
legitimate cause of action, and agreed to hear the case. However, what
remained at issue was whether Unocal should be held liable for the jus
cogens violations suffered by the peasants. But Unocal settled the suit
before this question was ever decided by the courts, and it remains to
this day a central question for ATCA claims against corporations.
D I S C U R S I V E A M B I V A L E N C E
This transnational legal space has been significantly shaped by a trans-
nationalist discourse on human rights. But the struggle to give this
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space meaning has also generated discursive ambivalence among some
of the very actors who have voiced support for human rights within this
space. In particular, corporations and states have diluted human rights
discourse by combining it with others meant to protect corpora-
tions from being held accountable for their abusive human rights prac-
tices, and to minimize the state’s vulnerability to international legal
standards.
The discursive ambivalence created by corporations
Corporations have deliberately created discursive ambivalence on two
fronts: first, by resisting attempts to subject corporations in general to
an enforceable legal framework; and second, by actively consolidating a
self-regulatory regime of ‘‘corporate social responsibility’’ that is based
on a host of voluntary and non-enforceable instruments.
For example, in its effort to have Doe v. Unocal dismissed, Unocal
deployed two main discourses, one relating to corporations’ liability for
human rights abuses, and the other relating to the United States’
present foreign policy toward Burma. Unocal consistently proclaimed
its support for human rights. At issue, they argued, was whether they
should be held liable for the abusive human rights practices of the
Myanmar junta. First, Unocal argued that it had a civil right to freely
contract,
13 and that holding it ‘‘vicariously liable’’ for the actions of its
state partners would interfere with that right. Unocal fought for the use
of a weaker domestic standard of liability (based on direct and active
participation), rather than the more stringent standard (based on aid-
ing and abetting abusive human rights practices) that is used in inter-
national law.
Second, Unocal asserted that it could both profit from doing busi-
ness with a repressive regime, and promote human rights. Moreover,
Unocal has maintained that only continued trade and investment in
Burma will restore democracy. However, this case presents a diffi-
cult challenge to the general proposition asserted by ‘‘free trade’’
13
The District Court stated that the ‘‘plaintiffs’ allegations of Unocal’s complicity in forced labor
do not meet the standard of liability used in U.S. civil proceedings.’’ That is, the plaintiffs could
not show that Unocal ‘‘actively participated’’ in the forced labor. In effect, the District Court
ruled that, because Unocal did not ‘‘actively and directly participate’’ in the alleged torts, they
could not be held liable for those torts under the ATCA. Unocal subsequently asserted on its
website that this ruling confirmed that they were not ‘‘vicariously liable’’ for the military’s torts.
On appeal, the attorneys and amici curiae for the Doe plaintiffs successfully argued that the lower
court had failed to properly use the international standard of ‘‘aiding and abetting’’ the alleged
tort in testing Unocal’s liability. Doe v. Unocal Corp., 395 F 3d 932 (9th Cir. 2002).
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economists – that is, the proposition that trade liberalization policies
promote economic growth and are therefore beneficial to countries
that embrace them. Unocal argued that their presence in Burma and
partnership with the Myanmar state was ultimately a positive force,
because it was providing greater wealth for the country and jobs for
Burmese citizens. They also argued that such economic growth would
ultimately contribute to the democratization of Burma and empower
its citizens to demand from its political institutions greater adherence
to human rights norms.
However, this discursive ambivalence reveals a kind of disingenuous
support for human rights in Burma. As Aung San Suu Kyi pointed out
repeatedly, the vast percentage of wealth generated by foreign invest-
ment is not used to improve the economic conditions of Burma’s
citizens, but only to strengthen the military whose primary enemies
are the economic minorities and pro-democracy activists within their
country. It is also unclear how Unocal’s use of slave labor in the
construction of its $1.5 billion dollar gas pipeline project is providing
‘‘jobs’’ for Burma’s citizenry in any meaningful sense. Nor is it clear how
such corporate practices – despite the economic ‘‘growth’’ that they
might create – would ultimately contribute to Burma’s democratiza-
tion, much less promote human rights.
Indeed, the National Foreign Trade Council (NFTC), an associa-
tion of over 680 transnational corporations (chartered in the United
States), intervened in the lawsuit, arguing that the federal court should
not hold Unocal liable because it could deter companies from eco-
nomic engagement with the oppressive regime (Dale 2003: 279–285,
and ch. 4). Although Unocal has repeatedly claimed to support human
rights, they have continued to aid and abet the Myanmar state’s use of
coerced labor, and have intentionally exploited the situation for profit.
Unocal argued before the District Court of California that granting
jurisdiction over the Doe v. Unocal suit would interfere with the United
States’ present policy on Burma, which Unocal stated was to refrain
‘‘from taking precipitous steps, such as prohibiting all American invest-
ment that might serve only to isolate the [Myanmar state] and actually
hinder efforts toward reform’’ (Doe v. Unocal Corp., 963 F Supp 880, 894
FN 17 (C.D. CA 1997)). In short, Unocal claimed that any court
decision that might threaten the existence of such a previously estab-
lished partnership (like that established between Unocal and the
Myanmar Government) is an inappropriate intrusion by the court
into United States’ foreign policy.
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The discursive ambivalence created by states
The state too has shown discursive ambivalence with respect to human
rights. The federal court refused all requests to dismiss the Doe
v. Unocal case. Indeed, in response to Unocal’s claim that is has a
civil right to freely contract, the Ninth Circuit Court pointed out that
it is has a civil obligation to uphold the Thirteenth Amendment as
well, which includes ‘‘forced labor’’ in its prohibition against slavery.
‘‘The fact that the Thirteenth Amendment reaches private action,’’
explained the court in its written decision, ‘‘in turn supports the
view that forced labor by private actors gives rise to liability under
[the] ATCA’’ (Doe v. Unocal Corp., 395 F 3d 932, 946 n. 18 [9th
Cir. 2002]).
The federal court also explained that because forced labor is a jus
cogens violation, not only can a private party be held liable, but they
should be subject to the stronger international, not the weaker domes-
tic, civil standard of liability, namely, ‘‘aiding and abetting’’ rather than
‘‘direct and active participation.’’
14 Under the international standard of
aiding and abetting a jus cogens violation, the test for whether Unocal is
liable is based not on their exercise of ‘‘control’’ over the Myanmar
military’s actions, but rather on whether Unocal could, or should, have
been able to foresee a reasonable likelihood of the Myanmar military’s
using the material support and information that Unocal provided them
to commit a jus cogens violation.
15
As evidence of Unocal’s ‘‘aiding and abetting’’ the Myanmar mili-
tary’s policy of forced labor in connection with the pipeline, it poin-
ted to the testimony from numerous witnesses, including several of
14
The District Court incorrectly borrowed the ‘‘active participation’’ standard for liability from
war crimes before Nuremberg Military Tribunals involving the role of German Industrialists in
the Nazi forced labor program during World War II. The Military Tribunals applied the ‘‘active
participation’’ standard in these cases only to overcome the defendants’ ‘‘necessity defense.’’ In
the present case, Unocal did not invoke – and could not have invoked – the necessity defense.
The court notes that the tribunal had defined the necessity defense as follows: ‘‘Necessity is a
defense when it shown that the act charged was done to avoid an evil both serious and
irreparable; that there was no other adequate means to escape; and that the remedy was not
disproportionate to the evil.’’ Doe v. Unocal Corp., 395 F 3d 932, 948 n. 21 (9th Cir. 2002).
15
‘‘We require ‘control’ to establish proximate causation by private third parties only in cases . . .
where we otherwise require state action. In other cases – including cases such as this one –
where state action is not otherwise required, we require no more than ‘foreseeability’ to
establish proximate causation. This requirement is easily met in the present case, where
Unocal Vice President Lipman testified that even before Unocal invested in the Project,
Unocal was aware that the ‘option of having the [Myanmar] [M]ilitary provide protection for
the pipeline construction . . . would [entail] that they might proceed in the manner that would
be out of our control and not be in a manner that we would like to see them proceed,’ i.e., ‘going
to excess.’ ’’ Doe v. Unocal Corp., 395 F 3d 932, 954 n. 32 (9th Cir. 2002).
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the plaintiffs themselves, that they were forced to clear the right of
way for the pipeline and to build helipads for the project before
construction of the pipeline began, which were then used by Unocal
to visit the pipeline during the planning stages, as well as to ferry their
executives and materials to the construction site. In terms of Unocal’s
practical assistance, Unocal hired the Myanmar military to provide
security and build infrastructure along the pipeline route in exchange
for money and food. Unocal also provided the Myanmar military with
photos, maps, and surveys in daily meetings to show them where to
provide the security and build the infrastructure which Unocal had
hired them to do (Doe v. Unocal Corp., 395 F 3d 932, 952–953 [9th
Cir. 2002]).
The court further pointed to admissions made by Unocal repre-
sentatives in two separate contexts that support the conclusion that
Unocal’s assistance had a ‘‘substantial effect on the perpetration of
forced labor, which most probably would not have occurred in the
same way without someone hiring the Myanmar military to provide
security, and without someone showing them where to do it.’’ The first
admission was that of Unocal Representative Robinson to the US
Embassy in Rangoon (in the once-classified ‘‘Robinson cable’’ that
was forwarded to the US State Department), which read: ‘‘Our asser-
tion that [the Myanmar military] has not expanded and amplified
its usual methods around the pipeline on our behalf may not with-
stand much scrutiny’’ (Doe v. Unocal Corp., 395 F 3d 932, 953 [9th
Cir. 2002]).
The second admission was that of Unocal President Imle who, when
confronted by Free Burma and human rights activists in January 1995
at Unocal’s headquarters in Los Angeles, acknowledged to them that
the Myanmar military might be using forced labor in connection with
the project by saying that ‘‘[p]eople are threatening physical damage
to the pipeline,’’ that ‘‘if you threaten the pipeline there’s gonna be
more military,’’ and that ‘‘[i]f forced labor goes hand and glove with the
military yes there will be more forced labor’’ (Doe v. Unocal Corp., 395 F
3d 932, 941 and 953 [9th Cir. 2002]). Notably, the court observed that
on the basis of the same evidence, Unocal could even be shown to
have met the standard of ‘‘active participation’’ erroneously applied by
the District Court (Doe v. Unocal Corp., 395 F 3d 932, 948 n. 22 [9th
Cir. 2002]).
Responding to Unocal’s claim that this ATCA suit represents an
unconstitutional intrusion by the judiciary into the United States’
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foreign policy toward Burma, the District Court disagreed with
Unocal’s argument. First of all, instead of interpreting the State
Department’s foreign policy intentions for itself, the court asked the
State Department directly to clarify its foreign policy position regarding
Burma. In the ‘‘Statement of Interest of the United States,’’ the State
Department wrote that ‘‘at this time the adjudication of claims based on
allegations of torture and slavery would not prejudice or impede the
conduct of U.S. foreign relations with the current government of
Burma.’’16
Second, the court reasoned that, even if Unocal is correct in drawing
upon the Congressional debates over whether or not to impose sanc-
tions on Burma as a valid indicator of the Congressional and Executive
foreign policy position, that debate revolved around how to improve
conditions in Burma by asserting positive pressure on the SLORC
through investment in Burma.17 Yet, this lawsuit does not question
this foreign policy. Instead, the court explained:
The [Doe] Plaintiffs essentially contend that Unocal, rather than
encouraging reform through investment, is knowingly taking advantage
of and profiting from [the] SLORC’s practice of using forced labor and
forced relocation, in concert with other human rights violations, includ-
ing rape and other torture, to further the interests of the Yadana gas
pipeline project. Whatever the Court’s final decision in this action may
be, it will not reflect on, undermine or limit the policy determinations
made by the coordinate branches with respect to human rights viola-
tions in Burma.
Doe v. Unocal Corp., 963 F Supp 880, 895 (C.D. Cal. 1997).
In other words, the District Court asserted that the foreign policy of
the United States, regardless of its position on the influence of corpo-
rate investment in Burma, does not intend to protect corporate activity
that violates human rights violations. The District Court rejected
16
National Coalition Government of the Union of Burma v. Unocal, Inc., 176 FRD 329, 362 (C.D.
Cal. 1997). Judge Paez initially authored the orders granting in part and denying in part
Defendants’ Motions to Dismiss. See Doe v. Unocal Corp., 963 F Supp 880 (C.D. Cal. 1997).
Judge Lew later authored the order granting Defendants’ consolidated Motions for Summary
Judgment. See Doe v. Unocal Corp., 110 F Supp 2d 1294 (C.D. Cal. 2000).
17 Statement of Sen. John McCain, 142 Cong. Rec. x 8755 (daily ed. July 25, 1996), quoted in Doe
v. Unocal Corp., 963 F Supp 880, 894 n. 17 (C.D. Cal. 1997). As Paez stated in his published
court opinion, ‘‘Even accepting the Congressional and Executive decisions as Unocal frames
them, the coordinate branches of government have simply indicated an intention to encourage
reform by allowing companies from the United States to assert positive pressure on S L O R C
through their investments in Burma.’’
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Unocal’s argument to have the suit dismissed on the grounds that it
represented an impediment to the federal government’s foreign policy
(National Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 FRD
329, 354 n. 29 [C.D. Cal. 1997]).18
However, we have also seen how the US Supreme Court has sought
in Sosa v. Alvarez-Machain to contain the extent to which interna-
tional human rights law might become enunciated within the United
States’ federal court system. Furthermore, the executive and legis-
lative branches of the Federal Government have been exercising
additional power to delimit ATCA. For example, bowing to the poli-
tical pressure of corporations, Congress could easily create limitations
on the use of ATCA. In October 2005, California Senator Dianne
Feinstein, who serves on the Senate Energy and Natural Resource
Committee, introduced S. 1874, a bill to reform the ATCA. Human
rights groups like EarthRights International (ERI) were quick to
denounce the bill as the ‘‘Torturer’s Protection Act’’ (EarthRights Inter-
national 2000b).
The bill prohibits any suit where a foreign government is responsible
for the abuse within its own territory. ERI points out that this alone
would eliminate most ATCA cases. The bill excludes from lawsuits war
crimes, crimes against humanity, forced labor, terrorism, and cruel,
inhuman and degrading treatment. It also requires that the defendant
be a ‘‘direct participant’’ in the abuse. In essence, it argues that courts
should use civil rather than international standards (of ‘‘aiding and
abetting’’ the abuse) in assessing liability. Also, as ERI correctly warns,
‘‘Feinstein’s bill gives the [Bush] Administration a blank check to inter-
fere [in court cases] and have any case it chooses dismissed’’ (EarthRights
International 2000b). Among the corporate beneficiaries would be
Chevron, who has donated $30,800 to Feinstein’s senatorial campaigns
since 1989, according to the Center for Responsive Politics (Baker
2005). Also noteworthy is that Unocal maintained its headquarters in
California since 1890, until it merged with Chevron Texaco (now
Chevron) on August 10, 2005. Unocal is now a wholly-owned subsi-
diary of Chevron Corporation.
18
The Ninth Circuit Court stated: ‘‘We agree with the District Court’s evaluation that ‘[g]iven
the circumstances of the instant case, and particularly the Statement of Interest of the United
States, it is hard to imagine how judicial consideration of the matter will so substantially
exacerbate relations with [the Myanmar Military] as to cause hostile confrontations.’’ Doe
v. Unocal Corp., 395 F 3d 932, 959 (9th Cir. 2002).
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This is not to suggest that the bill’s passage is a foregone conclusion.
Only one week after introducing S. 1874, Feinstein submitted a formal
letter to Chairman of the Senate Committee on the Judiciary Arlen
Specter requesting that he not proceed with the legislation at this time.
Feinstein’s letter explains:
The legislation in question is designed to address concerns about the
clarity of the existing Alien Tort Claim statute in light of the recent
Supreme Court decision Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
However, I believe that the legislation in its present form calls for
refinement in light of concerns raised by human rights advocates, and
thus a hearing or other action by the Committee on this bill would be
premature.
Although several California corporations would benefit from S. 1874,
it is not yet clear that these corporations will ultimately wield more
influence over Senator Feinstein than human rights advocates.
There are, however, also pressures from the executive branch bear-
ing on the future application of ATCA. The federal court’s decision to
hear Doe v. Unocal prompted other transnational activist networks to
help file more such ATCA suits against corporations – particularly,
though not exclusively, oil corporations.
19 Chevron is a defendant in
one ATCA lawsuit relating to its complicity in the killing of peaceful
protestors by the Nigerian military20 (Bowoto v. Chevron Texaco Corp.,
312 F Supp 2d 1229 [N.D. Cal. 2004]). An ATCA suit was also filed in
New York by the family of late Ogoni activist playwright Ken Saro-
Wiwa against Royal Dutch [Shell] Petroleum alleging that the corpo-
ration had conspired with the military tribunal in Nigeria which hanged
Wiwa, along with eight other activists who were organizing opposition
to Royal Dutch Shell operations in their native Ogoniland on the delta
19 There have been other ATCA cases against corporations outside the oil industry. Coca-Cola,
for example, have been sued under ATCA for their complicity in the murder and intimidation
of union members from their Columbian factory. And, although the courts rejected their first
ATCA claim in 1989, the new flurry of ATCA cases against corporations has encouraged a
renewed effort by citizens in Bhopal, India, to hold Union Carbide liable for the 1989 gas-leak
disaster that caused thousands of deaths and permanent health problems.
20 The suit, which the plaintiffs originally filed against a pre-merger Chevron, seeks to hold the
company responsible for both the deaths of protesters who occupied a Nigerian oil drilling
platform in 1998, and the attacks on residents of two Nigerian villages in 1999. The protesters
were shot and killed by Nigerian security forces who were flown to the site in helicopters that
were used by the joint venture that ran the platform. Both cases involve projects of companies
that were Chevron Texaco’s subsidiaries, rather than the parent company itself. Attorneys and
activists have asserted, however, that liability for these wrongdoings should rest with the parent
corporation and be pursued in the country where that parent corporation is chartered.
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of the Niger River (Wiwa v. Royal Dutch Petroleum Co., 226 F 3d 88
[2d Cir. 2000]).21 Also, in 2001, eleven plaintiffs from the Aceh pro-
vince of Indonesia’s Sumatra Island, with the help of the International
Labor Rights Fund, filed a suit using the ATCA against the Exxon
Mobil Corporation in a suit titled Doe v. Exxon Mobil (Doe v. Exxon
Mobil Corp., 393 F Supp 2d 20 [D.D.C. 2005]).22
Yet, it is not clear whether these cases strengthened ATCA as a tool
for addressing human rights abuses against corporations, or simply
provided legal fodder that enabled the Supreme Court to justify nar-
rowing the spectrum of human rights abuses committed by corporations
for which the federal district courts may serve as a venue in ATCA
suits. As the ATCA case against Unocal lumbered through the appeals
court, the swifter decisions in these other ATCA cases provided useful
discursive resources for Unocal’s struggle to influence the courts to
decide these legal conflicts in its favor. This became a significant factor
after the new US administration (with its strong ties to the oil industry
under George W. Bush, Dick Cheney, and Condoleezza Rice) began to
discursively redefine its foreign policy around ‘‘counter-terrorism.’’
In early August 2002, the State Department warned the District
Court of the District of Columbia that the Doe v. Exxon Mobil case
‘‘would hinder the war on terrorism and jeopardize U.S. foreign invest-
ment in a key ally [Indonesia]’’ (Alden 2002). The Financial Times
reported that ‘‘a former State Department official,’’ had stated that
the Department’s legal affairs office ‘‘saw an irresistible opportunity to
strike a blow against the Alien Tort Claims Act’’ (Alden 2002). Yet,
the official also reported that the State Department’s letter came ‘‘after
a heated debate inside the agency, with its human rights bureau arguing
that U.S. intervention in the case would mar U.S. credibility on issues
of corporate social responsibility,’’ while other officials were ‘‘worried
21 The case is still working its way through the Federal District Court after the US Supreme Court
refused to hear arguments for the dismissal of the suit in March 2001, effectively granting the
New York court jurisdiction.
22
Exxon and Mobil merged in 1999. The International Labor Rights Fund is an advocacy
organization dedicated to achieving just and humane treatment for workers worldwide, and
the same organization who helped the National Coalition Government of Burma file their case
against Unocal. The suit alleges that Exxon Mobil had been complicit in human rights
violations committed by Indonesian military units who were hired to provide security for
their natural gas field located in the Aceh province. Since 1975, the Indonesian military has
had a history of violence and repression toward the Aceh ethnic minority and their Islamic
separatist movement. While under contract with Exxon Mobil, allege the Doe plaintiffs, these
military units committed widespread abuses, including murder, torture, rape, and kidnapping of
the Aceh local population.
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that the spate of court cases is angering US allies and interfering with
the government’s foreign policy authority’’ (Alden 2002). Publicly,
however, the government issued a statement that claimed that ‘‘letting
the case go to trial would harm the national interest, including the war
on terrorism, and efforts to improve the Indonesian military’s record of
human rights abuses’’ (Efron 2002). During the same week, Unocal
lawyers asked California State Superior Court Judge Chaney, who is
presiding over a California ‘‘Unfair Business Practices’’ claims in a case
based on the same facts as Doe v. Unocal, to seek a similar government
opinion, asserting that many of the arguments in the Doe v. Exxon
Mobil case were ‘‘equally applicable’’ to the Doe v. Unocal case.
These examples also highlight how economic globalization, and the
transnational legal space for regulating it, are always subject to politics.
This law, interpreted by a court and subject to amendment by a federal
congress, reminds us of the vital role that states play in the process of
globalization. All of these dimensions of state action (legislative, admin-
istrative, and judicial) remain crucial to the unfolding struggle over the
rules and institutional arrangements of economic globalization.
Because human rights discourse is so often invoked as a political,
legal, and moral resource for addressing (and diffusing contentious
challenges to) the dehumanizing consequences of economic global-
ization, it is important to focus on its many forms of practice – including
the discursively ambivalent practices of corporate and state agents that
combine human rights discourse with others that are meant to protect
corporations from being held accountable for their abusive human
rights practices, as well as those that are meant to minimize the state’s
vulnerability to international legal standards. Transcending the parti-
cularities of any specific lawsuit under the ATCA, we may there-
fore speak of a strategy that employs powerful discursive, ideological,
and practical devices designed to stabilize this transnational legal
space around voluntary and legally non-binding practices of social
responsibility.
C O N C L U S I O N
This case study has implications for existing theory on transnational
movements and their relationship to human rights. Keck and Sikkink’s
Activists Beyond Borders (1998a) has arguably influenced the theoretical
discussion of transnational movements more than any book published
in the past five years. This influence is all the more impressive since the
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focus of their research is not on transnational movements per se, but
rather on what they call ‘‘transnational advocacy networks’’ – that is,
transnational networks of activists, distinguishable from other trans-
national networks largely by the centrality of principled ideas or values
in motivating their formation (Keck and Sikkink 1998a: 1; Keck and
Sikkink: 1998b: 217). Despite their efforts to distinguish such trans-
national social formations from transnational movements (see, e.g.,
1998b: 236), their metaphor of the ‘‘boomerang pattern’’ to des-
cribe the influence characteristic of transnational advocacy networks –
particularly under conditions in which channels between the state and
its domestic actors are blocked – has itself channeled the interpretations
of many observers of transnational social movements.
When channels between the state and its domestic actors are
blocked, the boomerang pattern of influence characteristic of transna-
tional networks may occur: domestic NGOs bypass their state and
directly search out international allies to try to bring pressure on their
states from outside. This, claim Keck and Sikkink, is most obviously the
case in human rights campaigns (1998a: 12). Their model actually
illustrates an additional step in this process whereby the domestic
NGOs that have been blocked by their state activate the network
whose members pressure their own states and (if relevant) a third-party
organization, which in turn pressure the blocking, i.e., target, state.
This model focuses almost exclusively on interactions between
states and civil society. They provide no conceptual space for examin-
ing interactions between markets and society. Corporations and market
relations do not appear in Keck and Sikkink’s conceptual model of how
transnational social movements or transnational advocacy networks
exert pressure for changing the human rights conditions that motivated
their action. Yet, as we have seen in the case of the Free Burma move-
ment, the trade relations between states and transnational corporations
may constitute a very different kind of target and may require a differ-
ent kind of pressure for affecting social change than that presumed by
Keck and Sikkink’s model.
Keck and Sikkink correctly emphasize the continuing significance of
states, their reasons for doing so betrays, in light of the empirical
evidence presented in this chapter, a questionable assumption regarding
human rights practices and their implications for transnational move-
ments. They claim that governments are the primary violators of rights
(1998a: 12). Based upon this assumption, they build the conceptual
logic of their boomerang pattern: ‘‘When a government violates or
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refuses to recognize rights, individuals and domestic groups often have
no recourse within domestic political or judicial arenas. They may seek
international connections finally to express their concerns and even to
protect their lives’’ (1998a: 12).
One of the lessons that we should take from the transnational
campaigns of the Free Burma movement is that transnational corpo-
rations, as much as governments, may also be significant violators of
human rights. In some cases, transnational corporations may even work
together with states in violating them. Moreover, the Doe v. Unocal,
and other cases filed against both corporate- and state-violators
of human rights under the ATCA reflect a transnational legal space
where individuals and groups outside the United States may well
find recourse within the judicial arenas of the US federal courts. That
is, the domestic state in which human rights victims hold their citizen-
ship does not necessarily have a monopoly on their access to a judicial
arena. Each of these points taken on their own may seem like trivial
tinkering with Keck and Sikkink’s model. Taken together however,
they begin to suggest an alternative pattern of transnational pressure
that is distinctly different from the ‘‘international pressure’’ depicted in
their model.
Keck and Sikkink’s treatment of ‘‘international pressure’’ seems to
suggest practices whereby foreign states are persuaded – via combina-
tions of various types of politics (information, symbolic, leverage, and
accountability) – to intervene in the affairs of the target state either
directly or else through a mediating intergovernmental organization.
However, the case study that I present in this chapter suggests a differ-
ent pattern of pressure whereby foreign states neither intervene directly
in the affairs of the target state, nor through a mediating intergovern-
mental organization. The various types of politics identified by Keck
and Sikkink are still important to this alternative pattern of pressure,
but they are deployed within a transnational legal space over legisla-
tive, administrative, and judicial maters of US law that mediate how
global markets (in this case linking corporations chartered in the
United States with the Myanmar state) become embedded in politics,
law, and morality. It is through these legislative, administrative, and
judicial dimensions of state action, and at multiple spatial levels of state
action (municipal, regional, and federal) that the United States exer-
cises pressure – transnational, as opposed to international, pressure –
on the transnational corporations that buttress the power of the
Myanmar state. That is, Keck and Sikkink focus on international
C O N C L U S I O N
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pressure that states exert on other states (sometimes mediated through
intergovernmental organizations), but they provide no conceptual
space for considering the transnational pressure that states exert on
transnational corporations. Such pressure may well contribute to social
change within the blocking state that has forged business relations with
the targeted transnational corporations. Only with substantial concep-
tual stretching might one suggest that this pattern of pressure represents
a state exerting pressure on another state.
The case of the Free Burma movement illustrates how transnational
movements that focus on influencing domestic policies in democratic
states are not necessarily less effective in enhancing representation of
groups suffering under authoritarian rule. Although a transnational
movement campaign’s focus on jus cogens violations may seem overly
narrow or obscure, it may have a very significant impact on global
governance. The transnationalist discourse deployed by the Free Burma
activists has effectively problematized the discursive fusion of ‘‘free
trade’’ and ‘‘human rights’’ asserted by the discourse on ‘‘constructive
engagement’’ in the context of addressing the abusive practices of the
Myanmar state. This case also illustrates how groups suffering under
authoritarian rule may be repressed by not only the domestic policies of
authoritarian states, but also by the domestic policies of democratic
states that facilitate the undemocratic practices of the transnational
corporations that collaborate with authoritarian states in repressing
groups that live there. When we pay closer attention to these trans-
national connections between democratic and authoritarian states,
their domestic policies, and their citizens, as well as to the transnational
corporate practices and partnerships that span the boundaries of demo-
cratic and authoritarian states, it blurs the binary conceptual distinc-
tion through which we differentiate states as either ‘‘democratic’’ or
‘‘authoritarian.’’ This provides the first analytical step toward creating
new possibilities for imagining transnational legal action that effec-
tively challenges the dominant relations and discourses sustaining
such a reified conceptual distinction between democratic and authori-
tarian states.
ATCA is a potentially useful tool for furthering human rights. But it
is also one that, when combined with other countervailing discourses,
may become so diluted or de-clawed that it fails to retain the power or
scope to reach some of the most egregious violators and violations of
human rights. The struggle over ATCA illustrates the ambivalence
and discursive dilemmas of foreign policy conservatives who have
C O N F L I C T B E T W E E N P E A S A N T S A N D C O R P O R A T I O N S I N B U R M A
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appropriated the language of international human rights for their own
purposes. The consequence is that they are in an awkward position in
trying to draw a line that immunizes US firms from complicity in such
abuses. Yet, I have argued, even in the current political environment
there are reasons to believe that this transnational legal strategy, using
ATCA to hold liable corporations that aid and abet human rights
violations, has legs.
This legal strategy represents one of the most significant efforts of the
past century to reign in the power of transnational corporations. The
case of Doe v. Unocal dramatically demonstrates the potential for using
transnational legal action to challenge neo-liberal understandings of
globalization. Rather than allowing the proponents of neo-liberal glob-
alization to dismiss human rights concerns as ‘‘artificial obstacles to free
trade,’’ the federal courts have been providing a venue for discussing
corporations’ responsibilities and liabilities with regard to human
rights. By shaping the moral boundaries within which corporations
compete for profits, these venues have provided an important institu-
tional mechanism and discursive resource for further discussion of how
and why global markets are not self-regulating, but rather are (and must
always be) institutionally constructed through and embedded in poli-
tics, law, and morality.
Despite the ambivalent discursive practices of both corporate and
state actors who have donned the mantle of human rights, we should
resist insisting that human rights discourse itself is necessarily hegem-
onic. Doing so serves ultimately to further empower those who seek to
instrumentally subordinate human rights norms to the control of mar-
kets and particular nation-states. Rather we must focus on the ways that
competing social actors – including corporations and states – draw
upon human rights discourse and combine it with diverse configura-
tions of multiple discourses to insert their own networks’ social arrange-
ment of power, practice, and meaning. Human rights discourse is not
oppressive; but how we institutionalize the legal arrangement of human
rights in practice can be.
This case, therefore, speaks not only to the discursive ambivalence of
human rights practice, but also to what Goodale refers to as the
‘‘betweenness’’ of human rights discourse:
the ways in which human rights discourse unfolds ambiguously, without
a clear spatial referent, in part through transnational networks, but also,
equally important, through the projection of the moral and legal
C O N C L U S I O N
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imagination by social actors whose precise locations – pace Keck and
Sikkink – within these networks are (for them) practically irrelevant.
(Goodale, Introduction, p. 22 above.)
An approach highlighting transnational legal discourse is important
precisely because the state’s legal discourse and norms are so often
hegemonic. Appreciation for the success of these transnational legal
campaigns begins not with an accounting of victory or defeat in the
court, or on the floor of the legislature, nor merely with an assessment
of their direct role in transforming existing international law or global
norms, but rather with the capacity of their participants to create an
alternative discursive space in the legal records of the transnational
struggles that take place in these institutions of the state.
These records, combined with the experiences of allied movement
participants supporting the campaigns from outside the legal institu-
tional arena, provide critical resources for sustaining the kind of public
collective memory that future transnational campaigns and movements
will have to draw upon in the inevitably incremental struggle for
democratic global change. Transnational discursive strategies help us
to re-conceptualize the relations within which we institutionalize eco-
nomic globalization, as well as the way that we imagine the possibilities
of participating in its institutionalization.
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Achieving
Human Rights
Richard Falk
I� ��o�!!!n���up
NEW YORK AND LONDON
First published 2009
by Routledge
270 Madison Ave, New York, NY 10016
Simultaneously published in the UK
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX 14 4RN
Routledge is an imprint of the Taylor & Francis Urou(‘, an informa husiness
© 2009 Taylor & Francis
Typeset in Goudy by
Swales & Willis Ltd, Exeter, Devon
Printed and bound in the United States of America on acid-free paper by
Sheridan Books, Inc
All rights reserved. No part of this hook may he reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and
recording, or in any infonnation storage or retrieval system, without
permission in writing from the publishers.
Trademark Notice: Product or corporate names may he trademarks or
registered trademarks, and are used only for identification and
explanation without intent to infringe.
Library of Congress Cataloging in Publication Data
Falk, Richard
Achieving human rights/Richard Falk.
p. cm.
Includes bibliographical references and index.
I. Human rights. I. Title.
JC585.F34 2008
323-dc22 2008018558
ISBN!O: 0-415-99015-7 (hhk)
ISBN!O: 0-415-99016-5 (phk)
ISBNIO: 0-203-88910-X (ehk)
ISBN! 3: 978-0-415-99015-8 (hhk)
ISBNl3: 978-0-415-99016-5 (phk)
ISBNU: 978-0-203-88910-7 (ehk)
Contents
Preface
Introduction
PART I
Overview
1 Toward a Necessary Utopianism: Democratic Global
Governance
2 The Power of Rights and the Rights of Power:
What Future for Human Rights?
3 Orientalism and International Law
PART II
Nurturing Global Democracy
4 Toward Global Democracy
5 Citizenship and Globalization
PART lil
International Criminal Law
6 The Holocaust an
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