Human Rights PDF

Chapter 31 Human rights r atna k apur Framing Questions Are human rights universal? Why is there a strong faith in the ability of human rights to repair the damage done and violence inflicted on individuals by states? What are the limitations of such a faith in human rights? Reader’s...

Chapter 31 Human rights r atna k apur Framing Questions Are human rights universal? Why is there a strong faith in the ability of human rights to repair the damage done and violence inflicted on individuals by states? What are the limitations of such a faith in human rights? Reader’s Guide be asked to engage primarily in a critical analysis of each of these claims, and how human rights may not This chapter on human rights introduces you to the necessarily be a project that can be steered exclu- structure as well as politics of human rights in the sively by good intentions. Postcolonialists and some twenty-first century. It not only gives an introduc- feminists have suggested that it can also have harm- tion to the formal structure of human rights, but also ful effects. encourages you to think about how human rights Human rights advocates can also differ on the have developed historically. In particular, we will strategies to be adopted to address violations; these examine the influence of liberal internationalism on can have material, normative, and structural conse- human rights and how this is shaped by the legacies quences that are not always empowering. These com- of colonialism, slavery, apartheid, and engagements peting positions will be illustrated through two case with sexual, religious, and racial differences—or what studies: one on the Islamic veil bans in Europe and the has been described as the ‘dark side’ of human rights. second on LGBT human rights interventions. The chapter encourages you to question whether Thus, the chapter seeks to: rights are universal instruments of emancipation, or complex, contradictory, and contingent in their offer an overview of human rights; functioning. analyse the core claims of human rights as emanci- patory and progressive; The chapter also sets out the dominant under- standings of human rights as progressive, universal, and based on a common human subject. You will show how human rights practices are complex and contradictory.  Chapter 31 Human rights 499 Introduction An introduction to human rights is no easy task. There to the ways in which human rights have functioned in are many different starting points. The reason that the history of world politics? introductions to human rights are so different stems The dominant story of human rights is embedded from who is relating the story—the victim, the state, the squarely within the liberal philosophical framework conqueror, the oppressed, the vanquished, the colonial (see Ch. 6). There are three central features to human power, or the nationalist. rights according to this story. The first is that human The dominant narrative about human rights rights are universal. The second is that they are based on emerged in the post-Second World War era, after the liberal individualism: that every individual is entitled devastation of Europe that resulted in the death of mil- to the full and free exercise of human rights. And the lions of gay people, blacks, Jews, and others. At the third is that human rights are progressive. They move same time, a similar devastation wrought by the colo- in a teleological direction, meaning something that is nial encounter or slavery—the very barbarous acts that defined in terms of its end purpose, and represent an the Universal Declaration of Human Rights (UDHR), important step forward in human progress and evolu- which is the main declaration of human rights, claims tion. Thus, the accumulation of more human rights is to prevent or address—did not trigger a similar sense associated with more freedom and more equality. of responsibility or anguish. Why have some violent This introduction to human rights examines each of actions, harms, and injuries drawn the attention of these three claims of liberal internationalism, setting out advocates of ‘human rights’ while others have not? Is a range of positions on human rights that reflect the many this a political issue? A policy failing? Or is it intrinsic possibilities and what are regarded as its core features. The global human rights structure The twentieth century witnessed an extraordinary explo- Civil and Political Rights (ICCPR) sets out the legal pro- sion in human rights after the traumas of the Second tections available against abuse by the state and seeks to World War (see Ch. 3). The Charter of the United Nations, ensure the political participation of all citizens. Some adopted on 26 June 1945, identified human rights as of the key rights available under the ICCPR include the a key objective of the organization. The Commission rights to equality before the law, protection against arbi- on Human Rights was established initially to draft the trary arrest, and protection of the rights to free speech, Universal Declaration of Human Rights (UDHR), and to assembly, political participation, and the right to life. The thereafter direct and manage the accountability of state- second covenant, the International Covenant on parties for human rights violations. The Commission Economic, Social and Cultural Rights (ICESCR) guar- was subsequently replaced by the Human Rights Council antees individuals access to essential goods and services, in 2006. The UDHR was adopted by the United Nations including education, food, housing, and health care, and General Assembly at its third session on 10 December aims to ensure the equal participation of all citizens in 1948, marking the culmination of conversations among social and cultural life. Both covenants are also regarded as member states to assert that human rights were integral universal, indivisible, and interdependent (see Box 31.1). to a free and democratic world order. The ICCPR and the ICESCR both entered into The UDHR sets out the primary civil and political force in 1976. Thereafter, several binding international rights as well as economic, social, and cultural rights that human rights treaties were adopted by state parties, constitute the anatomy of human rights in the modern including international treaties dealing with issues of era. These rights are considered as indivisible, interdepen- racial discrimination, gender discrimination, torture, dent, and universal, applying to individuals everywhere. enforced disappearances, as well as the rights of chil- While the UDHR sets out in a comprehensive and suc- dren, people with disabilities, migrants, minorities, and cinct manner a consensus of internationally recognized indigenous peoples (see Box 31.2). At a formal level, human rights, these are further elaborated in two key these declarations, treaties, and conventions constitute international covenants. The International Covenant on the legal apparatus of international human rights. 500 ratna kapur Box 31.1 The indivisibility, interdependence, and universality of human rights Equality of rights without discrimination (D1, D2, E2, E3, Political participation (D21, C25). C2, C3). Social security (D22, E9). Life (D3, C6). Work, under favourable conditions (D23, E6, E7). Liberty and security of person (D3, C9). Rest and leisure (D24, E7). Protection against slavery (D4, C8). Food, clothing, and housing (D25, E12). Protection against torture and cruel and inhuman punishment (D5, C7). Special protections for children (D25, E10, C24). Recognition as a person before the law (D6, C16). Education (D26, E13, E14). Equal protection of the law (D7, C14, C26). Self-determination of peoples (E1, C1). Access to legal remedies for rights violations (D8, C2). Seeking asylum from persecution (D14). Protection against arbitrary arrest or detention (D9, C9). Nationality (D15). Hearing before an independent and impartial judiciary Human treatment in detention (C10). (D10, C14). Protection against arbitrary expulsion of aliens (C13). Presumption of innocence (D11, C14). Protection against advocacy of racial or religious Protection against ex post facto laws (D11, C15). hatred (C20). Protection of privacy, family, and home (D12, C17). Protection of minority culture (C27). Freedom of movement and residence (D13, C12). (The source of each right is indicated in parentheses, by the Freedom (D18, C18). of thought, conscience, and religion ­document and article number: D = Universal Declaration of Human Rights; C = International Covenant on Civil and Political Freedom of opinion, expression, and the press (C19, C19). Rights; E = International Covenant on Economic, Social and Freedom of assembly and association (D20, C21, C22). Cultural Rights.) Box 31.2 The treaty bodies The treaty bodies meet in Geneva, Switzerland. All the treaty bodies receive support from the Human Rights Treaties Division Committee on the Rights of the Child (CRC) monitors implementation of the Convention on the Rights of the Child of the Office of the High Commissioner for Human Rights (1989) and its optional protocols (2000); (OHCHR) in Geneva. Committee on Migrant Workers (CMW) monitors Human Rights Committee (CCPR) monitors implementation of the International Covenant on Civil and Political Rights implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members (1966) and its optional protocols; of Their Families (1990); Committee on Economic, Social and Cultural Rights (CESCR) Committee on the Rights of Persons with Disabilities (CRPD) monitors implementation of the International Convention on monitors implementation of the International Covenant on Economic, Social and Cultural Rights (1966); the Rights of Persons with Disabilities (2006); Committee on the Elimination of Racial Discrimination (CERD) Committee on Enforced Disappearances (CED) monitors implementation of the International Convention for the monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination Protection of All Persons from Enforced Disappearance (1965); (2006); and Committee on the Elimination of Discrimination against Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), Women (CEDAW) monitors implementation of the Convention on the Elimination of All Forms of established pursuant to the Optional Protocol of the Discrimination against Women (1979) and its optional Convention against Torture (OPCAT) (2002), visits places of protocol (1999); detention in order to prevent torture and other cruel, inhuman, or degrading treatment or punishment. Committee against Torture (CAT) monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1984);  Chapter 31 Human rights 501 document are obliged to submit periodic reports to treaty Accountability bodies—bodies that consist of international experts on There are several mechanisms in the formal human the issue concerned—and their practices are subject to rights apparatus that are designed to hold member states review in public sessions, where state representatives are accountable for human rights violations or derelictions. present and subject to questioning by the relevant treaty Each of the treaties and covenants mentioned also have a body (see Box 31.3). A report is prepared by the treaty reporting process, whereby state parties to the particular body and thereafter it is for the state to comply with Box 31.3 The core international human rights instruments and their monitoring bodies Adopted Monitoring body ICERD International Convention on the Elimination of All Forms 21 Dec 1965 CERD of Racial Discrimination ICCPR International Covenant on Civil and Political Rights 16 Dec 1966 CCPR ICESCR International Covenant on Economic, Social and Cultural Rights 16 Dec 1966 CESCR CEDAW Convention on the Elimination of All Forms of Discrimination 18 Dec 1979 CEDAW against Women CAT Convention against Torture and Other Cruel, Inhuman 10 Dec 1984 CAT or Degrading Treatment or Punishment CRC Convention on the Rights of the Child 20 Nov 1989 CRC ICMW International Convention on the Protection of the Rights 18 Dec 1990 CMW of All Migrant Workers and Members of Their Families CPED International Convention for the Protection of All Persons from 20 Dec 2006 CED Enforced Disappearance CRPD Convention on the Rights of Persons with Disabilities 13 Dec 2006 CRPD ICESCR-OP Optional Protocol to the Covenant on Economic, Social 10 Dec 2008 CESCR and Cultural Rights ICCPR-OP1 Optional Protocol to the International Covenant on Civil 16 Dec 1966 CCPR and Political Rights ICCPR-OP2 Second Optional Protocol to the International Covenant on Civil 15 Dec 1989 CCPR and Political Rights, aiming at the abolition of the death penalty OP-CEDAW Optional Protocol to the Convention on the Elimination 10 Dec 1999 CEDAW of Discrimination against Women OP-CRC-AC Optional protocol to the Convention on the Rights of the Child on 25 May 2000 CRC the involvement of children in armed conflict OP-CRC-SC Optional protocol to the Convention on the Rights of the Child on 25 May 2000 CRC the sale of children, child prostitution, and child pornography OP-CRC-IC Optional Protocol to the Convention on the Rights of the Child on 14 Apr 2014 CRC a communications procedure OP-CAT Optional Protocol to the Convention against Torture and Other 18 Dec 2002 SPT Cruel, Inhuman or Degrading Treatment or Punishment OP-CRPD Optional Protocol to the Convention on the Rights of Persons with 12 Dec 2006 CRPD Disabilities 502 ratna kapur its recommendations. There are several treaties that pro- voice of civil society, their advocacy and efforts at render- vide for an individual complaint mechanism, referred to ing states accountable for human rights violations are con- as optional protocols. While few states have signed up to strained at times by funding and donor-driven agendas, as these protocols, the mechanism affords individuals an well as by North/South and East/West divides that tend to opportunity to detail their grievances, and the commit- obscure the role and the importance of working with and tee then submits its views to the state concerned. There is centring community-based and regional-level players. no further enforcement mechanism, and it is for the state once again to comply as it sees fit. The Human Rights What are human rights? Council, which replaced the original Commission on Human Rights, also has a universal periodic review of At first glance, human rights are things that everyone states, in which states are the reviewers, and not indepen- agrees on—they are both obvious and universal. Most dent experts. mainstream textbooks on human rights have a familiar A second, more country-specific and thematic pro- format and approach. They generally adopt a formal, cedure is available under what are termed special pro- doctrinal approach to the topic. Typically, such texts set cedures. These consist of a retinue of experts, special out the formal structure of human rights in the United rapporteurs, and working groups that investigate a broad Nations; offer a jurisprudential approach to human array of issues. As of August 2017, there are 44 thematic rights that focuses on international courts and expert and 12 country mandates. Special procedures undertake bodies; identify the various mechanisms for seeking country visits (that have most recently included visits to redress for the violation of human rights; and at times Tunisia, Kenya, Sri Lanka, and Argentina); act on indi- also include a focus on the role of non-governmental vidual cases and concerns; address issues of a broader organizations, in particular Western-based groups such structural nature, such as systemic racism or economic as Human Rights Watch and Amnesty International, in injustice; conduct thematic studies and convene expert promoting, protecting, and facilitating human rights. consultations; and contribute to the development and These texts tend to present human rights in fairly clear, visibility of the human rights situation across the world. doctrinal, and unambiguous terms, as apolitical, having A third important mechanism is the International a common origin, whose meaning has become a part of Criminal Court (ICC), which is mandated to examine common sense, and as something that marks a society instances of genocide, war crimes, and crimes against as civilized, developed, and democratic (Henkin et al. humanity. While the scope of the Court is narrow, it 2009; Tomuschat 2014; Schutter 2014). has powers of judicial enforcement. However, despite these assumptions, human rights Fourth, at the regional level there is a structure of mul- actually mean different things to different people, have tilateral and regional mechanisms that monitors human political effects, and are more complex and, at times, rights. These mechanisms include the European Court contradictory than these texts would suggest (Dembour of Human Rights, the Inter-American Court of Human 2010). For example, for natural law scholars human Rights, established by the Organization of American rights are natural rights; human beings possess them States, and the African Commission on Human and simply by being human, and the rights exist indepen- Peoples’ Rights, established by the African Union. dently of social recognition. They are negative obliga- Finally, the role of non-governmental organizations tions that impose a responsibility on states to refrain (NGOs) and individuals is an important component of from doing certain acts, such as torturing, which is out- human rights advocacy as well as accountability. These lawed under the Convention Against Torture (CAT), or organizations range from those that play a central role enacting racially discriminatory laws that are prohibited in the formal human rights structure, especially at the under the Convention on the Elimination of All Forms Human Rights Council meetings, to grassroots-based or of Racial Discrimination (CERD), and they are abso- community-based organizations that mobilize around lute (Gewirth 1998; Donnelly 2002). For other scholars, rights claims at the local and regional levels. The inter- human rights are political values that a society chooses national groups are largely dominated by Western-based to adopt. This position seeks to make human rights uni- players such as Human Rights Watch, founded in 1978, versal, but does not assume their universality, as this with headquarters in the Empire State Building in New requires everyone around the world to accept them as York, and Amnesty International, founded in 1961, with the best political and legal values for running a soci- its headquarters in London. While NGOs represent the ety (Ignatieff 2001; T. Campbell 2006; Rajagopal 2003).  Chapter 31 Human rights 503 At the same time, this position continues to aspire They are neither natural, nor are they the solution to for universal acceptance. Another position holds that the woes and injustices in this world. Human rights are human rights are primarily tools of resistance or pro- a powerful language through which to express claims test on the part of those who have been left behind or against injustice, but they can and have been used to excluded, including the poor, the disadvantaged, and advance other competing agendas, such as imperial, the oppressed (Stammers 2009; Baxi 2007). Human civilizing agendas in the past and the goals of the neo- rights are used to challenge the status quo and seek con- liberal market in the present. This position exposes the crete social and political results. For these scholars, the power relations that are obscured through the language struggle is a perpetual one as they do not see that there is of universality and claims that human rights are the best an end to injustice. At the same time, they remain suspi- hope for freedom and emancipation. What is impor- cious of human rights, given the tendency to favour elite tant to appreciate from this perspective is that human groups. For critical scholars, human rights exist because rights are about more than law, and that they are not people talk about them (W. Brown 2004; Mutua 2002). ­necessarily progressive. Key Points The UDHR, ICCPR, and ICESCR form the core of international human rights. They constitute the formal states that are found to have violated or failed to comply with their obligations under international human rights law. structure of the international human rights system and are the backbone of the entire international human rights NGOs are part of the accountability mechanism, but these groups can be constrained by funding, donor agendas, and apparatus. geographical location. InICESCR international human rights law, the UDHR, ICCPR, and are understood to be indivisible, interdependent, Various multilateral mechanisms facilitate the compliance of human rights law at a national level, through mobilizing and universal. That is, they do not function as silos, but as a public scrutiny as well as publishing violations to help make collective whole, and are integral in their functioning and states accountable. application. The international human rights regime has an inbuilt The global human rights regime is dependent on both the international structural process and regional process to accountability process designed to monitor and reprimand compel compliance. The core assumptions on which human rights are based Despite the variety of different perspectives on what a purpose and direction, coupled with the idea that the human rights are, there are three core assumptions world had emerged from a backward, more uncivilized associated with human rights in the dominant liberal era into a modern, civilized period (Douzinas 2000). internationalist perspective and also in international There is ample evidence from around the world that human rights law. First, they are transformative and human rights have proved to be a successful ­endeavour: progressive; second, they are universal; and third, there slavery has ended; women have more rights; children exists a universal, common subject on which human are better protected. While there still remains a good rights are conferred. deal to be achieved, human rights represent the anti- dote to the egregious wrongs and harms that have been inflicted on the human rights of persons from differ- Human rights and progress ent backgrounds and histories. These victories have The formal apparatuses of human rights in the twentieth strengthened the veneration of human rights ideals and century were adopted as part of the development of reinforced the profound faith in this justice-seeking international institutions in the post-Second World War project (Douzinas 2000; W. Brown 2004). period. This was a significant moment. States could no However, there are those who do not necessarily longer hide from wrongs committed against individu- regard human rights as a transformative and progres- als and groups behind the fig leaf of sovereignty. It was sive project. Part of the reason for this is that the idea a moment that ostensibly marked a movement forward that human rights mark the end to an ignorant past and in human progress, driven by a belief that history has enable the realization of freedom and equality is both 504 ratna kapur empirically and theoretically flawed. In purely factual and thus the TRC failed to link gross violations to the terms, more human rights violations were commit- implementation of apartheid. Some have argued that the ted in the twentieth century, which was ostensibly the narrow formalistic reading of human rights can produce most human rights-focused century, than at any other results that do not alleviate the harms inflicted by racist point in human history. But there is a deeper theoreti- structures, and thus bring little relief (Nesiah 2014). cal problem with the claim of progress exposed by post­ colonial, feminist, and critical theory scholars of human Universality rights. They have examined the costs of human rights interventions—what has been referred to as the ‘dark Human rights are based on the notion of universal- side’ of human rights (D. Kennedy 2004), and some of ity and the assumption that all humans are entitled the often unanticipated damage done. They have argued to enjoy human rights without regard to distinction. that human rights is a discourse permeated by imperial This claim regards human rights as based on notions of ambition, assertions about moral, racial, and civiliza- objectivity, neutrality, and inclusion. There seems little tional superiority, as well as religious evangelicalism doubt that human rights at a gut level and at the level (Mutua 2002; Douzinas 2007). For example, in the con- of politics appear to be universal. They are regarded as text of the Western military intervention and the bomb- a set of moral principles and norms that describe com- ing of Afghanistan in October 2001 (as a response to the mon standards that human beings ought to aspire to at 11 September 2001 attacks), there were claims by some the local and international levels. They are regarded as Western leaders that this intervention was a ‘crusade’ fixed, and the primary tools at the international level against the ‘evildoers’, part of the war on terror, and that through which justice claims are made by social move- ‘Western civilisation was superior to Islam’ (Ford 2001). ments as well as states. They are used both by those who The initial claims of justified self-defence mutated are violators of rights—that is states—as well as those into claims about human rights, where women’s who are trying to draw attention to these violations and rights became the central justification for the military contest the ways in which human rights are ignored, assaults, in particular saving or rescuing them from the used, or advocated (Donnelly 2002; Perry 1998). burqa and the barbarism of the Taliban in Afghanistan. However, some scholars have argued that it is Nearly two decades later, the countless loss of life, the important to understand the historical legacy of claims continued presence of the Taliban, and, for many, the to universality that expose their particularity, contin- fact that women continue to wear the burqa put into gency, and malleability (Bagchi and Das 2012; Barreto question just what was achieved in the name of human 2013; Fanon 1966; Slaughter 2018). For example, a closer rights (Kapur 2002b; Klaus and Kassel 2005). look at the assumptions of Western Enlightenment, the Others have been critical of the failure of human rights precursor to the human rights movement, suggests that to address the structural and material causes for human the claims of universality and inclusion have coexisted rights violations due to the focus on a narrow, formal- with exclusion and subordination. For example, when istic, and individual approach to rights. For example, Europe was in the midst of a struggle for liberty, equal- after the establishment of the Truth and Reconciliation ity, and freedom, Europe’s ‘Others’ continued to be Commission (TRC) in South Africa to deal with the subjugated under the weight of colonialism and slavery ‘gross violations of human rights’ that included the (L. Hunt 2007; Ibhawoh 2007). And even within Europe, ‘killing, abduction, torture or severe ill-treatment’ of gender and racial segregation established a hierarchy persons under apartheid, the Commission used very of who was the valid or legitimate subject of law and narrow definitions of the ‘victim’, ‘severe ill-treatment’, rights—white, Christian, propertied men. Thus, while and political motivations. The TRC did not address the there is an assumption that certain political values are effects of laws passed by the apartheid government, or indeed universal, such as liberty, equality, and freedom, the general policies adopted by the government, even if these ideals have historically faltered when they have they were morally reprehensible. Instead, it focused only come into contact with the unfamiliar or difference. on politically motivated violations of bodily integrity The values of liberty, equality, and freedom also meet rights (but not subsistence rights) of individuals (not with some of the same difficulties today. For example, groups). The very fact that the TRC excluded from its the desire in many liberal democratic countries to close remit the project of apartheid suggested that the proj- the door to, deport, or incarcerate refugees is a graphic ect did not fit within its narrow definition of ‘political’, example of their failure to live up to the human rights  Chapter 31 Human rights 505 promise of universality to which the signatories in the the human rights edifice is a dominant and assumed main human rights documents committed themselves. idea that is rarely questioned. Most people who are able In fact, such examples expose both the contingency of to successfully claim rights resemble this familiar sub- human rights claims to universality and their Euro- ject of human rights discourse. Atlantic understandings of who belongs and who does However, postcolonial and Third World scholars not, who is an eligible subject of rights and who is not. contend that the human subject at the heart of the Many postcolonial scholars have argued that human international human rights regime is unable to sur- rights are informed by the legacies of colonialism and vive without its counterpart, its ‘Other’ (Kapur 2002a; its responses to the ‘other’ or native subject. In particu- Fineman 2008; Bagchi and Das 2012; Barreto 2013; lar, they point to colonialism’s distinction between the Selmeczi 2015; Butterworth 2016). Today, a host of sub- civilized and the uncivilized, and the perception of the jects continue to be denied inclusion into the human outsider as a threat or danger to the existing political rights project, or their access to human rights is enabled order and imagined social cohesion of Western states only to the extent that they resemble the familiar sub- (Ibhawoh 2007; Chowdhry and Nair 2002). The search ject of human rights discourse. for a justification for the exclusion of non-European sub- There are at least three different ways in which the jects from the realm of legal rights is based on the pre- ‘Other’ has been addressed in relation to human rights. vailing and unquestioned view that European states are The first is through the assumption that the difference more civilized, racially superior, and law abiding. This can be erased and the ‘Other’ assimilated. The second logic is also an inheritance of former colonial countries, is to treat the difference as inevitable and natural. And where the practices and responses of the former colo- finally, there is the response that justifies incarceration, nial power have been adopted to sustain old hierarchies internment, or even annihilation of the ‘Other’ because or to produce new ones. For example, the persecution of of the threat he or she poses. the Rohingyas in Myanmar, in what the United Nations has described as a genocide, is based precisely on the Assimilation logic that they are infiltrators, threats to the dominant Historically, the only way a subject of the colonies could ethnic order, and outsiders to the dominant ‘Burmese’ acquire rights was by being trained into civilizational ethos and culture, and therefore to be eliminated. maturity, otherwise he or she continued to be treated as Thus, critics have claimed that assertions about the an object in law. Such laws reflect a fear of the ‘Other’, universality of human rights obscure their contingency while also providing an opportunity to them both to be and historical particularity, and also deny the experiences part of the universal project of rights and to acquire legit- of those who have been at the receiving end of these claims imacy through the process of assimilation and transfor- to universality. From this perspective, it is important to mation into a subject that is familiar. For instance, the understand that the claims of freedom and equal worth are Islamic veil bans in a number of European countries are informed by arguments about civilization, cultural back- an example of the requirement to assimilate in order to wardness, and racial and religious superiority. The ‘dark have access to rights, including the rights to education side’ is integral to human rights and not just an irregular- and to wander freely in the public space. While those ity that can be repaired through greater inclusion. who wear the veil want both of these rights, the liberal democratic state compels them to choose between wear- ing the veil or enjoying their human rights (see Case The subject of human rights Study 31.1). In the contemporary period, this response As discussed in the previous section, a particular is incorporated into national laws in which new citizen- human subject rests at the heart of the international ship and nationality requirements are being enacted in human rights regime: that is, the sovereign, autono- Europe, South Asia, Australia, and elsewhere. mous subject. All human beings are regarded as being equally placed and entitled to human rights. The very Essentializing the difference language of some of the human rights documents, such Some subjects, including women, blacks, and gay peo- as the UDHR, as well as the two covenants, includes ple, were at different historical moments regarded as terms such as ‘all’, ‘everybody’, and ‘no one’. This idea of just different, incapable of changing. Their differences a common human subject, who is autonomous, existing were conceived of as biological or natural and used to prior to social relations, and ahistorical, at the heart of justify difference in treatment. As a result, they could 506 ratna kapur Case Study 31.1 The Islamic veil ban accepted that the burqa was a choice, avoiding the essentialism and paternalism of earlier cases. The Court also rejected the argument that the ban advanced human dignity, stating that there was no evidence that the women who wore the burqa were expressing a form of con- tempt towards others or seeking to offend the dignity of others. Similarly, the Court rejected the public safety argument, finding that it had not been established that the veil posed a general threat to public safety, and holding that the ban was therefore disproportionate. Instead, the Court’s decision relied on the government’s justifi- cation of ‘respect for the minimum set of values of an open and democratic society’ or ‘living together’ as a legitimate ground © LEON NEAL / AFP / Getty Images for restrictions on the right to manifest religion or belief under Article 9. As this ground is not explicitly articulated as such in the Convention, the Court interpreted it as falling within the broad In 2010, the French legislature banned the wearing of the burqa— ‘protection of the rights and freedoms of others’. Thus, even if the a traditional garment that veils both face and body—in public. claimant wore the veil freely, and as an exercise of her choice, the Lawmakers endorsed the position that France ‘cannot accept to ban would still be justified on the basis of the Court’s reasoning that have in our country women who are prisoners behind netting, it was incompatible with the democratic precept of ‘living together’. cut off from all social life, deprived of identity... That is not the In upholding this justification, the Court’s analysis focused on idea that the French republic has of women’s dignity... The burqa the ‘face’, stating that it played an important role in the civility is not a sign of religion, it is a sign of subservience... It will not be of social interactions and open interpersonal relationships. These welcome on the territory of the French republic’ (former French were important markers of the community life of a society, and president Nicolas Sarkozy, quoted in Naravane 2009). thus the wearing of the burqa in public was ‘incompatible, in The ‘burqa ban’ was challenged in S.A.S. v. France as a violation French society, with the ground rules of social communication of the claimants’ rights under various articles of the European and more broadly the requirements of “living together”’. Convention on Human Rights, although the Court focused on Articles 8, 9, and 14. The government’s argument was based on Question 1: The decision suggests that the universal right to gen- public safety concerns, as well as ‘respect for the minimum set der equality is subject only to compliance with a specific set of of values of an open and democratic society’, which includes conditions. Do you agree? gender equality, human dignity, and ‘respect for the minimum requirements of life in society’ or ‘living together’. Interestingly, Question 2: Does the ruling protect the rights of Muslim women? the Court rejected some of these arguments, which had been Is it enabling? Are they liberated or empowered by it? successful in earlier cases. It did not accept the argument that the ban advanced the legitimate aims of gender equality and human See a video of Professor Ratna Kapur discussing these dignity, partly for the reason that the practice itself was being questions www.oup.com/he/baylis8e defended by the woman wearing the burqa. The Court simply be denied rights to education, or work, or speech, or name of protecting women’s rights, these initiatives are political participation, simply because of this differ- invariably based on assumptions about women from ence. For example, in the context of slavery blacks the developing world as being more victimized and were denied their subjectivity based on an egregious subjected to ill-treatment by a primitive culture, than assumption that they lacked the capacity to think. They their First World counterparts. These assumptions in thus remained objects to be bought and sold. And while turn have invited highly protectionist legislation, such blacks, women, and gay people have secured human as in the arena of anti-sex trafficking, or justified pro- rights throughout the world, racial, gender, and sexual tective detention and intervention strategies that fur- stereotypes and essentialism continue to impede their ther reinforce gender, racial, and cultural stereotypes access to rights. These stereotypes are often displaced (Balgamwalla 2016; Bernstein 2010; L. Hunt 2007). onto a First World/Third World divide. The focus on carceral, law and order, and criminal For example, in campaigns to fight violence against justice approaches to human rights in the context of women, gender and racial stereotypes continue to anti-trafficking interventions are largely based on such pervade the interventions of women’s human rights stereotypes, which deny the ‘other’ woman her agency, groups and NGOs in the developing world. In the decision-making abilities, or subjectivity.  Chapter 31 Human rights 507 Incarcerating difference for democracy and stability in certain anarchic parts Finally, there is the response of incarceration, intern- of the world (Ignatieff 2003). In other words, such ment, or even elimination, where the ‘Other’ is cast as measures may be prescribed in order to save the lib- completely outside of or undeserving of human rights. eral democratic world and its global project of human They are regarded as a threat, backward, uncivilized, rights from the chaotic violence of feudal, illiberal soci- and dangerous. These subjects are denied human rights eties that are assumed to exponentially breed evildoers, protections as they are seen as being in opposition to such as terrorists, who do not cherish or respect human such values and protections. In the contemporary rights, and hence are not entitled to their protections period, there are a number of examples of differ- (Ignatieff 2017). Such interventions are examples of the ence being cast as a threat, contaminant, or evil. This ‘dark side’ of human rights. includes the response to young Muslim men (especially Another example is the continued opposition by after 9/11), who are increasingly perceived as a threat to popular movements to the rights of gay people, even in the liberal democratic order. This perceived threat then countries such as France, the United States, or India, justifies the adoption of exceptional measures that are where same-sex relationships have been decriminalized, non-human rights compliant, such as the creation of as they are perceived as destroying civilization, family, or the category of ‘enemy combatant’, the indefinite deten- faith (see Case Study 31.2). Similarly, there is resistance tion of suspected terrorists in internment facilities such to migrants, who are perceived as disrupting the social as Guantanamo Bay, or taking recourse to rendition. and cultural cohesion of distinctive states. Responses to While these interventions may on one level be regarded this ‘Other’ can compromise human rights, whether in as most probably violating liberal constitutional rights the form of the war on terror, or incarceration without set by liberal states themselves, they are also at times due process, or even refusal to rescue migrants from justified by liberal states and scholars as the best hope capsized boats who are attempting to cross into Europe. Case Study 31.2 Same-sex relationships and LGBTQ rights in Uganda It is a harsh reality that in many countries around the world les- bian, gay, bisexual, and trans people, and others of queer and diverse sexual orientation, gender identity, and expression are not able to look to human rights institutions for support and protection, or those institutions find themselves constrained and unable to offer such support and protection openly, or at all. On 30 June 2016, after extensive debate, in which much opposition was expressed, the Human Rights Council voted in favour of a UN Special Procedure establishing the office of the Independent Expert on Sexual Orientation and Gender Identity (SOGI). Today on the global stage we are witnessing a polarized response to LGBT human rights. At one end, there is an increased criminali- zation of queer lives, where not just the sex act, but the very iden- tity of LGBTQ people is criminalized, such as in Nigeria, Uganda, Kenya, Ethiopia, the Democratic Republic of Congo, and Russia. At the opposite end of the spectrum, the struggle for rights claims has challenged the pathologizing and criminalizing of same-sex relationships, resulting in legal recognition in countries such as Nepal, Cambodia, India, South Africa, several European countries, and the United States. But despite some countries in the Global South/non-West having decriminalized same-sex relationships, there remains a persistent belief that the ill-treatment of gay people is a feature of ‘less civilized’ and traditional cultures mainly in the non-West. However, in Uganda, where gay people have been persecuted and continue to face extreme violence and discrimination, Frank Mugisha, Executive Director, Sexual Minorities of Uganda sexual minorities have challenged this dichotomy by declaring (SMUG) that homophobia is a Western import, transmitted into the non- © MANDEL NGAN / AFP / Getty Images West by the West through the colonial encounter. The Sexual 508 ratna kapur Minorities of Uganda (SMUG) group argues that the civilizational and was struck down on the basis of a parliamentary formality argument actually deflects attention from the way in which (that is, lack of quorum). Christian evangelicals from the US have been implicated in partly The Constitutional Court victory was also parlayed with a case producing the anti-gay, homophobic agenda in these African filed by SMUG in a US court under the provision of the Alien Tort nations and elsewhere. Claims Act. SMUG brought a lawsuit against Scott Lively personally The influence of conservative US evangelicals on the debate as well as in his capacity as the president of his church, the Abiding about sexual orientation and gender identity (SOGI) in Africa Truth Ministries, for activities in Uganda that SMUG claimed con- has been significant. Pastor Scott Lively, a US-based Christian travened fundamental human rights of the SOGI community in evangelical, has relentlessly pursued an agenda against granting Uganda and led to increased persecution of gay people. rights to LGBT and intersex groups in Uganda, and supported The case was ultimately dismissed and not allowed to go forward. harsher laws against gay people. One of these laws was the Anti-Homosexual Bill of 2009 that made it illegal to have inter- Question 1: Is homophobia a cultural problem? A heterosexual course with an HIV-positive person (as of 2016, about 1.5 million problem? A political problem? Ugandans lived with HIV), and also provided for the cancellation of an organization’s registration if they were found to be promot- Question 2: This case illustrates how a marginalized group of ing same-sex relationships, while their directors faced impris- activists can take on a disruptive and well-funded force in order onment. The act was subsequently challenged in the Ugandan to ultimately address the risk to SOGI people living in Uganda. Do Constitutional Court by Ugandan SOGI community members you consider this strategy effective? Key Points Human rights mean different things to different people. They can be seen as tools of liberation as well as tools by which to as well as gay people, sexual, and religious minorities in the present. prevent threats to liberal democratic values. Human rights can be understood as either natural rights, political values to Techniques that determine whether subjects will be included or excluded from the project of human rights include be acquired, tools of protest, or as discourse. assimilation, essentializing the difference or treating the Human rights are based on three general assumptions—that they are universal, progressive, and based on a common, difference as natural, and treating the difference as a threat to the very idea of human rights and hence incarcerating, universal subject—that need to be critically interrogated. containing, or even annihilating it. The idea of universal human rights has been challenged by those who have interrogated how human rights have also The ‘dark side’ of human rights may not be an aberration, but rather may be constitutive of human rights. been used to exclude different groups historically, thereby exposing their contingency. These excluded groups include Human rights are not fixed tools that include everyone, but rather are tools whose meanings and understandings vary former colonial subjects or the subjects of slavery in the past, and shift in relation to their encounters with difference. Doing human rights advocacy In light of the discussions in this chapter, the question as culturally orthodox and nationalist groups) and the arises as to how to do human rights advocacy or give need to avoid complete despair when human rights are policy advice on human rights without in the process unable to meet their promise of transformation and doing more harm, either materially or by reproducing complete emancipation. stereotypes and the historical legacies that have pro- Rights can be understood as radical tools for those duced the stereotypes. This question needs to be con- who have never had them. Though a flawed ideal, rights sidered by NGOs and human rights advocates as well are preferable to no rights at all. Human rights are an as students of international law who are learning about important and useful vocabulary. At the same time, the human rights. discussion in this introduction to human rights also A critical approach to human rights walks a fine line reminds us that any advocacy strategy needs to always between the outright rejection of human rights (which take into account the ‘dark side’ of human rights. At can play into the hands of populist movements as well times, human rights have been complicit in making  Chapter 31 Human rights 509 the world less stable, less peaceful, more divisive, and legal routes for movement, that have rendered migrants even at times more violent. Thus, the first question to dependent on clandestine migrant mobility regimes, be asked when addressing the ‘dark side’ is: Who is which include a dependency on smugglers and traf- accountable when human rights interventions actually fickers. Thus, while anti-trafficking interventions have harm more than they help? This is a challenging ques- ostensibly been adopted in the name of human rights, tion that should form part of your vocabulary and that they have at times resulted in human rights harms and of advocates of human rights. In addition, there are sev- injuries and increased the vulnerabilities of already eral ways in which work with human rights can be both marginalized and disenfranchised groups. creative and constructive. Some of the questions that students of International First, it is important to move beyond claims to the Relations who may be advising on human rights might universality of human rights, while not getting bogged address include: Have the minimum human rights cri- down in historical particularity (see ‘Universality’) teria been met by the existing interventions? What are (Alston and Steiner 2009). In other words, the response the broader structural and material causes that have to the critique of universality does not mean reverting produced trafficking? Are there better or more effec- to the local. Instead, the starting point is to recognize tive ways of enhancing the rights of vulnerable groups, that human rights are a site of power and the vocabu- that would reduce their exposure to exploitation and lary of human rights is indeed very powerful. It is this are empowering? It may be that a more human rights- power in the hands of those who use it that should be friendly approach to irregular movement can be found understood, rather than its ability or lack of ability to by foregrounding the rights of migrants rather than transform people’s lives, or its potential to bring about focusing on anti-trafficking; lobbying for safer migra- change. Because human rights are about power, then tion routes; developing more advocacy around the UN it matters who brandishes these tools. Human rights convention on migrant workers’ rights and urging states advocates wield power once they participate in the to sign on; and by recognizing that the free flow of labour terrain, and they need to exercise caution in pursuing in a global era requires less resort to the criminal law and their tasks to avoid being implicated in perpetuating more attention to addressing the causes of migration. the ‘dark side’ of human rights. A third consideration is to ensure that human rights Second, students of human rights need to be materials, scholarship, and education include an aware- thoughtful in developing human rights interventions ness of the colonial trappings and the ‘First World’s’ and strategies. There are invariably several approaches hegemonic underpinnings of the human rights project, to the same problem, which may, as already discussed, and how the non-West has been frequently ignored or be linked to broader competing ideological or political excluded from the formulation and discussions on how agendas (see Opposing Opinions 31.1). For example, human rights should function. A postcolonial/Third in the area of human trafficking, a number of states World viewpoint can enrich the perspective of how have developed, in the name of human rights, legal human rights have sustained and continue to sustain, responses that focus on sex trafficking and on rescu- and even justify at times, exclusion at the same time as ing women from the sex industry or even abolishing they include (see Ch. 10). This understanding can assist sex work. The question is whether such interventions in revising the thinking and understanding of human have been helpful, empowering, discriminatory, or pos- rights that have been dominated by Western states sibly even harmful. Organized sex workers’ groups in or perspectives or by powerful actors, which include the Netherlands, Thailand, and India have argued that assumptions that human rights are needed only in the such interventions deny women their subjectivity, treat developing, ‘less civilized’ world. Drawing on the expe- them as victims to be rescued and rehabilitated, do riences of the world’s ‘Others’, rather than seeking to res- not endow them with the rights they need to fight the cue, patronize, or target them, requires understanding abuses and harms they experience, and fail to reduce and learning, for example from the postcolonial, femi- their vulnerability to and reliance on criminal net- nist, and racial critiques of rights (see Chs 17 and 18). works. They further argue that not all sex workers have These critiques include understandings on how human been trafficked, and nor is all trafficking directed into rights have been shaped by the legacies of the colonial sex work. Migrants have similarly argued that anti- encounter, slavery, apartheid, and gender discrimination. trafficking interventions have failed to understand the Fourth, a student of human rights needs to look at causes of migration, including the unavailability of safe, how the story of human rights is told and who is telling 510 ratna kapur Opposing Opinions 31.1 States should be free to choose whether or not to let in irregular migrants For Against Every state has an obligation to give priority to its own States have an obligation to uphold the right to freedom of citizens’ needs. Given that a state’s resources are limited, pri- mobility. There are over 260 million people who live outside ority should be given to the citizens of a given state. Sharing their country of origin. Many of these people have migrated resources such as jobs, education, and health care with irregu- under compulsion, due to war, ethnic conflict, persecution based lar migrants becomes an unfair burden and denies resources on gender, religious, racial, or sexual difference, poverty, climate to citizens. change, environmental or natural disasters, or lack of a home- land, among other reasons. Rich and privileged states are morally Every state has the right to restrict the entry of people into obliged to uphold the right to mobility. its own country. States have a right to choose who can enter and who can become a citizen. States have not surrendered their Denial of safe legal routes for movement increases vulner- sovereignty and have a right to refuse entry to people who have ability. Migrants who are compelled to move are increasingly not adhered to their stated criteria. vulnerable, given the fact that safe legal routes for mobility are shrinking. They are forced to take recourse to the help of smug- A state has no obligation to receive migrants who pose a glers and other clandestine networks in order to move. This kind threat to the social cohesion of its own society. A state has of movement is full of risk, including death, due to the precarious a right and obligation to maintain the social cohesiveness of methods of transportation and conveyance. its own society and ensure that those who refuse to, or appear ­unable to, conform or assimilate be denied entry. Migrants are often forced to move because of conditions created in their own homeland by outside states, including the states where they seek refuge. The situations of war and conflict as well as poverty are often produced by outside states. Global economic powers are responsible for producing or aggra- vating conflict, as in the Middle East or Afghanistan, as well as facilitating a global economic market that benefits the few. These aspects produce the conditions for forced migration. Migration is a global human rights problem, not a law and order problem. The lack of commitment to the human rights of migrants is justified by casting migrants as a threat to the social, cultural, and economic order of the recipient state, as potential terrorists, or simply as a burden. Migrants are made vulnerable. The denial of rights renders migrants vulnerable to discrimination, appalling living and work- ing conditions, and increased exploitation. As they may fre- quently end up working in the shadow economy, they are subject to a range of economic, physical, and emotional abuse, with little recourse to assistance. 1. Is the right to mobility an important human right? 2. Do states owe any obligation to humans beyond their own borders? Why? Why not? 3. Should assimilation be a criterion for admitting migrants? Why? Why not? For advice on how to answer these questions, see the pointers www.oup.com/he/baylis8e the story, as this can offer valuable insights into the way of how human rights can sometimes work to create hier- human rights have functioned. This requires, for example, archies of human suffering, and can themselves become not treating impoverished persons as the object of rights, equated with a market-friendly human rights paradigm but as a constituency that may understand and be able that can exacerbate poverty and inequality. to inform on how rights claims can have an ambivalent Human rights advocacy needs to carefully negotiate relationship to suffering. This includes an understanding strategies and interventions that do not reproduce false  Chapter 31 Human rights 511 dichotomies, but that instead learn from the contexts communities are constantly renegotiating the boundar- that have addressed these tensions. For example, as is ies and contesting the meaning of equality, understand- evident in Case Study 31.1, freedom of religion and ings of secularism, and the right to freedom of religion, gender equality do not have to be placed in opposition at the same time as they are challenging iniquitous and to one another, nor does the veil have to be regarded discriminatory practices in their own communities. as incompatible with commitments to secularism. In They are negotiating the complex and contradictory a number of countries, most evidently in postcolonial nature of the human rights terrain, and illustrate why and Third World countries, these values can coexist. rights need to be constantly monitored, revisited, and For example, in India, women in religious minority interrogated. Key Points Human rights are more than the formal structure and rights. They are political and can be used by different groups to Human rights advocacy needs to be careful, mindful, and thoughtful in formulating interventions to ensure that they advance competing political agendas. do not reproduce some of the exclusionary aspects and ‘dark Human rights interventions do not always work in ways that side’ of human rights. are progressive or emancipatory. Rights are complex, contradictory, and contingent. For this advocates need to be aware of these multiple uses of rights. Rights can be liberating as well as confining, and human rights reason, rights are never firmly fixed or entrenched. There are no permanent victories. Consequently, human rights need to be constantly monitored, revisited, questioned, and defended. Rights need to be historicized and contextualized. Conclusion This chapter has introduced you to the formal structure By adopting a critical analysis, including to post­ and framework of human rights, including the treaties, colonial and Third World perspectives on human conventions, committees, and reporting mechanisms of rights, we hope to develop a more mindful, thoughtful, the global human rights regime. It has also introduced and reflective approach to human rights advocacy or the politics of human rights and how to think about the policy formulation. Introducing the dominant under- historical development of human rights. In particular, standings of human rights as progressive, universal, the chapter illustrates how human rights have been and based on a common subject and exposing you to shaped by the legacies of the colonial encounter, slavery, a critical analysis of each of these claims provides a and engagements with sexual, religious, and racial dif- deeper and more mindful engagement with the topic. ferences. You are not only encouraged to question the It also raises awareness that human rights are not a dominant understandings of human rights as progres- project that can be steered by good intentions, and that sive, universal, and based on a common subject, but also sometimes these intentions can lead to harmful effects. how these claims can at times obscure the ways in which By learning about the ‘dark side’ of human rights, stu- human rights are based on relations of power. In other dents can become more thoughtful and informed in words, human rights can serve to advance competing developing advocacy strategies and policy positions on agendas that are not always progressive or inclusive. human rights in the area of international relations. Questions 1. In the international human rights structure and apparatus, what is the most effective model for alleviating extreme forms of cruelty and suffering inflicted by states? 2. Can you think of examples in which the conferment of human rights has manifestly transformed the lives of the individual recipient of those rights? In what ways? 3. Has the world become a better place with the establishment of human rights and the international human rights structure?