Textbook - Chapter 32 & 33 Human Rights PDF

Summary

This chapter introduces the structure and politics of human rights in the 21st century, exploring their historical development and influence. It critically analyzes the core claims of human rights as emancipatory and progressive, examining their potential limitations and complexities.

Full Transcript

Chapter 32 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 32 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 asked to engage primarily in a critical analysis of each of these claims, and how human rights may not nec- This chapter on human rights introduces you to the essarily be a project that can be steered exclusively by structure as well as the politics of human rights in the good intentions. Postcolonialists and some feminists twenty-first century. It not only gives an introduc- have suggested that it can also have harmful effects. tion to the formal structure of human rights, but also Human rights advocates can also differ on the encourages you to think about how human rights have strategies to be adopted to address violations; these developed historically. In particular, we will examine can have material, normative, and structural conse- the influence of liberal internationalism on human quences that are not always empowering. These com- rights and how this is shaped by the legacies of coloni- peting positions will be illustrated through two case alism, slavery, apartheid, and engagements with sex- studies: one on the Islamic veil bans in Europe, and ual, religious, and racial differences—or what has been the second on LGBTQI human rights interventions. described as the ‘dark side’ of human rights. The chap- Thus, the chapter seeks to: ter encourages you to question whether rights are offer an overview of human rights; universal instruments of emancipation, or complex, contradictory, and contingent in their functioning. analyse the core claims of human rights as emanci- The chapter also sets out the dominant under- patory and progressive; standings of human rights as progressive, universal, show how human rights practices are complex and and based on a common human subject. You will be contradictory. 506 ratna kapur 32.1 Introduction An introduction to human rights is no easy task. There human rights have functioned in the history of world are many different starting points. The reason that 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. 7). 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 emerged in the post-Second World War era, after the on liberal individualism: that every individual is enti- devastation of Europe that resulted in the death of tled to the full and free exercise of human rights. And millions of gay people, Black people, Jews, and oth- the third is that human rights are progressive. They ers. At the same time, a similar devastation wrought move in a teleological direction, meaning that they are by the colonial encounter, or slavery—the very barba- defined in terms of their end purpose, and represent an rous acts that the Universal Declaration of Human important step forward in human progress and evolu- Rights (UDHR), which is the main declaration of tion. Thus, the accumulation of more human rights is human rights, claims to prevent or address—did not associated with more freedom and more equality. trigger a similar sense of responsibility or anguish. This introduction to human rights examines each of Why have some violent actions, harms, and injuries these three claims of liberal internationalism, setting drawn the attention of advocates of ‘human rights’ out a range of positions on human rights that reflect while others have not? Is this a political issue? A the many possibilities and what are regarded as its core policy failing? Or is it intrinsic to the ways in which features. 32.2 The global human rights structure The twentieth century witnessed an extraordinary initially to draft the Universal Declaration of Human explosion in human rights after the traumas of the Rights (UDHR), and to thereafter direct and manage Second World War (see Ch. 4). The Charter of the the accountability of state parties for human rights United Nations, adopted on 26 June 1945, identified violations. The Commission was subsequently replaced human rights as a key objective of the organization. by the Human Rights Council in 2006. The UDHR The Commission on Human Rights was established was adopted by the United Nations General Assembly at its third session on 10 December 1948, marking the culmination of conversations among member states to assert that human rights were integral to a free and democratic world order. The UDHR sets out the primary civil and political rights as well as economic, social, and cultural rights that constitute the anatomy of human rights in the modern era. These rights are considered as indivisible, interdependent, and universal, applying to individuals everywhere. While the UDHR sets out in a comprehen- sive and succinct manner a consensus of internationally recognized human rights, these are further elaborated in two key international covenants. The International Covenant on Civil and Political Rights (ICCPR) sets out the legal protections available against abuse by the Eleanor Roosevelt, chair of the UN Commission on state and seeks to ensure the political participation of Human Rights, at the UN all citizens. Some of the key rights available under the © World History Archive / Alamy Stock Photo ICCPR include the rights to equality before the law, Chapter 32 Human rights 507 protection against arbitrary arrest, and protection of Each of the treaties and covenants mentioned also has the rights to free speech, assembly, political partici- a reporting process, whereby state parties to the par- pation, and the right to life. The second covenant, the ticular document are obliged to submit periodic reports International Covenant on Economic, Social and to treaty bodies—bodies that consist of international Cultural Rights (ICESCR), guarantees individuals experts on the issue concerned—and their practices are access to essential goods and services, including educa- subject to review in public sessions, where state repre- tion, food, housing, and health care, and aims to ensure sentatives are present and subject to questioning by the the equal participation of all citizens in social and cul- relevant treaty body (see Box 32.3). A report is prepared tural life. Both covenants are also regarded as univer- by the treaty body and it is then for the state to comply sal, indivisible, and interdependent (see Box 32.1). with its recommendations. There are several treaties The ICCPR and the ICESCR both entered into that provide for an individual complaint mechanism, force in 1976. Thereafter, several binding international referred to as optional protocols. While few states have human rights treaties were adopted by state parties, signed up to these protocols, the mechanism affords including international treaties dealing with issues of individuals an opportunity to detail their grievances, racial discrimination, gender discrimination, torture, and the committee then submits its views to the state enforced disappearances, as well as the rights of chil- concerned. There is no further enforcement mecha- dren, people with disabilities, migrants, minorities, and nism, and it is for the state once again to comply as it indigenous peoples (see Box 32.2). At a formal level, sees fit. The Human Rights Council, which replaced the these declarations, treaties, and conventions constitute original Commission on Human Rights, also has a uni- the legal apparatus of international human rights. versal periodic review of states, in which states are the reviewers, not independent experts. A second, more country-specific and thematic 32.2.1 Accountability procedure is available under what are termed special There are several mechanisms in the formal human procedures. These consist of a retinue of experts, spe- rights apparatus that are designed to hold member states cial rapporteurs, and working groups that investigate accountable for human rights violations or derelictions. a broad array of issues. As of October 2021, there are Box 32.1 The indivisibility, interdependence, and universality of human rights Equality of rights without discrimination (D1, D2, E2, E3, Freedom of assembly and association (D20, C21, C22) C2, C3) Political participation (D21, C25) Life (D3, C6) Social security (D22, E9) Liberty and security of person (D3, C9) Work, under favourable conditions (D23, E6, E7) Protection against slavery (D4, C8) Rest and leisure (D24, E7) Protection against torture and cruel and inhuman punishment (D5, C7) Food, clothing, and housing (D25, E12) Recognition as a person before the law (D6, C16) Special protections for children (D25, E10, C24) Equal protection of the law (D7, C14, C26) Education (D26, E13, E14) Access to legal remedies for rights violations (D8, C2) Self-determination of peoples (E1, C1) Protection against arbitrary arrest or detention (D9, C9) Seeking asylum from persecution (D14) Hearing before an independent and impartial judiciary Nationality (D15) (D10, C14) Human treatment in detention (C10) Presumption of innocence (D11, C14) Protection against arbitrary expulsion of aliens (C13) Protection against ex post facto laws (D11, C15) Protection against advocacy of racial or religious 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 doc- ument and article number: D = Universal Declaration of Human Freedom of thought, conscience, and religion (D18, C18) Rights; C = International Covenant on Civil and Political Rights; E = Freedom of opinion, expression, and the press (C19, C19) International Covenant on Economic, Social and Cultural Rights.) 508 ratna kapur Box 32.2 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) monitors implementation of the International Covenant on Committee on the Rights of Persons with Disabilities (CRPD) monitors implementation of the International Convention on Economic, Social and Cultural Rights (1966); the Rights of Persons with Disabilities (2006); Committee on the Elimination of Racial Discrimination (CERD) monitors implementation of the International Convention on Committee on Enforced Disappearances (CED) monitors implementation of the International Convention for the the Elimination of All Forms of Racial Discrimination (1965); Protection of All Persons from Enforced Disappearance Committee on the Elimination of Discrimination against (2006); and Women (CEDAW) monitors implementation of the Convention on the Elimination of All Forms of Discrimination Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), against Women (1979) and its optional protocol (1999); established pursuant to the Optional Protocol to the Committee against Torture (CAT) monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Convention against Torture (OPCAT) (2002), visits places of detention in order to prevent torture and other cruel, Degrading Treatment (1984); inhuman, or degrading treatment or punishment. 45 thematic and 13 country mandates. Special proce- structure, especially at the Human Rights Council dures undertake country visits (that have most recently meetings, to grassroots-based or community-based included visits to Afghanistan, Kyrgyzstan, Malaysia, organizations that mobilize around rights claims at and the United States); act on individual cases and con- the local and regional levels. The international groups cerns; address issues of a broader structural nature, are largely dominated by Western-based players such such as systemic racism or economic injustice; conduct as Human Rights Watch, founded in 1978, with head- thematic studies and convene expert consultations; quarters in the Empire State Building in New York, and contribute to the development and visibility of the and Amnesty International, founded in 1961, with its human rights situation across the world. headquarters in London. While NGOs represent the A third important mechanism is the International voice of civil society, their advocacy and efforts at ren- Criminal Court (ICC), which is mandated to examine dering states accountable for human rights violations instances of genocide, war crimes, and crimes against are constrained at times by funding and donor-driven humanity. While the scope of the Court is narrow, it agendas, as well as by North/South and East/West has powers of judicial enforcement. divides that tend to obscure the role and the impor- Fourth, at the regional level there is a structure of tance of working with and centring community-based multilateral and regional mechanisms to monitor and regional-level players. human rights. These mechanisms include the European Court of Human Rights, the Inter-American Court 32.2.2 What are human rights? of Human Rights, established by the Organization of American States, and the African Commission on At first glance, human rights are things that everyone Human and Peoples’ Rights, established by the African agrees on—they are both obvious and universal. Most Union. mainstream textbooks on human rights have a familiar Finally, the role of non-governmental organi- format and approach. They generally adopt a formal, zations (NGOs) and individuals is an important doctrinal approach to the topic. Typically, such texts set component of human rights advocacy as well as out the formal structure of human rights in the United accountability. These organizations range from those Nations; offer a jurisprudential approach to human that play a central role in the formal human rights rights that focuses on international courts and expert Chapter 32 Human rights 509 Box 32.3 The core international human rights instruments and their monitoring bodies Adopted Monitoring body ICERD International Convention on the Elimination of All Forms of Racial 21 Dec 1965 CERD 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 against 18 Dec 1979 CEDAW Women CAT Convention against Torture and Other Cruel, Inhuman or Degrading 10 Dec 1984 CAT Treatment or Punishment CRC Convention on the Rights of the Child 20 Nov 1989 CRC ICMW International Convention on the Protection of the Rights of All 18 Dec 1990 CMW 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 and Cultural 10 Dec 2008 CESCR Rights ICCPR-OP1 Optional Protocol to the International Covenant on Civil and Political 16 Dec 1966 CCPR Rights ICCPR-OP2 Second Optional Protocol to the International Covenant on Civil and 15 Dec 1989 CCPR Political Rights, aiming at the abolition of the death penalty OP-CEDAW Optional Protocol to the Convention on the Elimination of 10 Dec 1999 CEDAW 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 a 14 Apr 2014 CRC communications procedure OP-CAT Optional Protocol to the Convention against Torture and Other Cruel, 18 Dec 2002 SPT Inhuman or Degrading Treatment or Punishment OP-CRPD Optional Protocol to the Convention on the Rights of Persons with 12 Dec 2006 CRPD Disabilities bodies; identify the various mechanisms for seeking These texts tend to present human rights in fairly clear, redress for the violation of human rights; and at times doctrinal, and unambiguous terms, as apolitical, having also include a focus on the role of non-governmental a common origin, whose meaning has become a part of organizations, in particular Western-based groups such common sense, and as something that marks a society as Human Rights Watch and Amnesty International, in as civilized, developed, and democratic (Henkin et al. promoting, protecting, and facilitating human rights. 2009; Schutter 2014; Tomuschat 2014). 510 ratna kapur However, despite these assumptions, human rights to express claims against injustice, but they can be, and actually mean different things to different people, they have been, used to advance other competing agendas, have political effects, and are more complex and, at such as imperial, civilizing agendas in the past and times, contradictory than these texts would suggest the goals of the neoliberal market in the present. This (Dembour 2010). For example, for natural law scholars position exposes the power relations that are obscured human rights are natural rights; human beings possess through the language of universality and claims that them simply by being human, and the rights exist inde- human rights are the best hope for freedom and eman- pendently of social recognition. They are negative obli- cipation. What is important to appreciate from this per- gations that impose a responsibility on states to refrain spective is that human rights are about more than law, from doing certain acts, such as torturing, which and that they are not necessarily progressive. is outlawed under the Convention Against Torture (CAT), or enacting racially discriminatory laws that are prohibited under the Convention on the Elimination Key Points of All Forms of Racial Discrimination (CERD), and they are absolute (Gewirth 1998; Donnelly 2002). For The UDHR, ICCPR, and ICESCR form the core of international human rights. They constitute the formal other scholars, human rights are political values that structure of the international human rights system and are a society chooses to adopt. This position seeks to make the backbone of the entire international human rights human rights universal, but does not assume their uni- apparatus. versality, as this requires everyone around the world to accept them as the best political and legal values InICESCR international human rights law, the UDHR, ICCPR, and are understood to be indivisible, interdependent, for running a society (Ignatieff 2001; Rajagopal 2003; and universal. That is, they do not function as silos, but as a T. Campbell 2006). At the same time, this position collective whole, and are integral in their functioning and application. continues to aspire for universal acceptance. Another position holds that human rights are primarily tools of The international human rights regime has an inbuilt accountability process designed to monitor and reprimand resistance or protest on the part of those who have been states that are found to have violated or failed to left behind or excluded, including the poor, the dis- comply with their obligations under international human advantaged, and the oppressed (Baxi 2007; Stammers rights law. 2009). Human rights are used to challenge the status quo and seek concrete social and political results. For NGOs are part of the accountability mechanism, but these groups can be constrained by funding, donor agendas, and these scholars, the struggle is a perpetual one as they geographical location. do not see that there is an end to injustice. They remain Various multilateral mechanisms facilitate compliance with human rights law at a national level, through mobilizing suspicious of human rights, given the tendency to public scrutiny as well as publishing violations to help favour elite groups. For critical scholars, human rights make states accountable. exist because people talk about them (Mutua 2002; W. Brown 2004). They are neither natural, nor are they The global human rights regime is dependent on both the international structural process and regional process to the solution to the woes and injustices in this world. compel compliance. Human rights are a powerful language through which 32.3 The core assumptions on which human rights are based Despite the variety of different perspectives on what 32.3.1 Human rights and progress human rights are, there are three core assumptions The formal apparatuses of human rights in the twenti- associated with human rights in the dominant liberal eth century were adopted as part of the development of internationalist perspective and also in international international institutions in the post-Second World War human rights law. First, they are transformative and period. This was a significant moment. States could no progressive; second, they are universal; and third, there longer hide from wrongs committed against individu- exists a universal, common subject on which human als and groups behind the fig leaf of sovereignty. It was rights are conferred. Chapter 32 Human rights 511 a moment that ostensibly marked a movement forward the burqa have brought into question just what was in human progress, driven by a belief that history has achieved in the name of human rights (Kapur 2002b; a purpose and direction, coupled with the idea that the Klaus and Kassel 2005). world had emerged from a more backward, uncivilized Others have been critical of the failure of human era into a modern, civilized period (Douzinas 2000). rights to address the structural and material causes There is ample evidence from around the world that for human rights violations due to the focus on a nar- human rights have proved to be a successful endeav- row, formalistic, and individual approach to rights. our: slavery has ended; women have more rights; chil- For example, after the establishment of the Truth and dren are better protected. While there still remains a Reconciliation Commission (TRC) in South Africa good deal to be achieved, human rights represent the to deal with the ‘gross violations of human rights’ that antidote to the egregious wrongs and harms that have included the ‘killing, abduction, torture or severe ill- been inflicted on the human rights of persons from dif- treatment’ of persons under apartheid, the Commission ferent backgrounds and histories. These victories have used very narrow definitions of the ‘victim’, ‘severe ill- strengthened the veneration of human rights ideals and treatment’, and political motivations. The TRC did not reinforced the profound faith in this justice-seeking address the effects of laws passed by the apartheid gov- project (Douzinas 2000; W. Brown 2004). ernment, or the general policies adopted by the govern- However, there are those who do not necessarily ment, even if they were morally reprehensible. Instead, regard human rights as a transformative and progres- it focused only on politically motivated violations of sive project. Part of the reason for this is that the idea bodily integrity rights (but not subsistence rights) of that human rights mark the end to an ignorant past and individuals (not groups). The very fact that the TRC enable the realization of freedom and equality is both excluded from its remit the project of apartheid sug- empirically and theoretically flawed. In purely factual gested that the project did not fit within its narrow terms, more human rights violations were committed definition of ‘political’, and thus the TRC failed to link in the twentieth century, which was ostensibly the most gross violations to the implementation of apartheid. human rights-focused century, than at any other point Some have argued that this narrow formalistic reading in human history. But there is a deeper theoretical of human rights can produce results that do not alle- problem with the claim of progress, exposed by postco- viate the harms inflicted by racist structures, and thus lonial, feminist, and critical theory scholars of human bring little relief (Nesiah 2014). rights. They have examined the costs of human rights interventions—what has been referred to as the ‘dark 32.3.2 Universality side’ of human rights (D. Kennedy 2004), and some of the often unanticipated damage done as a result. They Human rights are based on the notion of universal- have argued that human rights is a discourse permeated ity and the assumption that all humans are entitled by imperial ambition, assertions about moral, racial, to enjoy human rights without regard to distinction. and civilizational superiority, as well as religious evan- This claim regards human rights as based on notions of gelicalism (Mutua 2002; Douzinas 2007). For example, objectivity, neutrality, and inclusion. There seems little in the context of the Western military intervention doubt that human rights, at a gut level and at the level and the bombing of Afghanistan in October 2001 (as a of politics, appear to be universal. They are regarded as response to the 11 September 2001 attacks), there were a set of moral principles and norms that describe com- claims by some Western leaders that this intervention mon standards that human beings ought to aspire to at was a ‘crusade’ against the ‘evildoers’, part of the war both local and international levels. They are regarded on terror, and that ‘Western civilisation was superior as fixed, and the primary tools at the international level to Islam’ (Ford 2001). The initial claims of justified self- through which justice claims are made by social move- defence mutated into claims about human rights, where ments as well as states. They are used both by those who women’s rights became the central justification for are violators of rights—that is states—as well as those the military assaults, in particular saving or rescuing who are trying to draw attention to these violations and them from the burqa and the barbarism of the Taliban contest the ways in which human rights are ignored, in Afghanistan. Nearly two decades later, the count- used, or advocated (Perry 1998; Donnelly 2002). less loss of life, the continued presence of the Taliban, However, some scholars have argued that it is and, for many, the fact that women continue to wear important to understand the historical legacy of 512 ratna kapur claims to universality that expose their particularity, to the dominant ethnic order, and outsiders to the contingency, and malleability (Fanon 1966; Bagchi dominant ‘Burmese’ ethos and culture—and therefore and Das 2012; Barreto 2013; Slaughter 2018). For to be eliminated. example, a closer look at the assumptions of Western Thus, critics have claimed that assertions about the Enlightenment, the precursor to the human rights universality of human rights obscure their contingency movement, suggests that the claims of universality and and historical particularity, and also deny the experi- inclusion have coexisted with exclusion and subordi- ences of those who have been at the receiving end of nation. For example, when Europe was in the midst of these claims to universality. From this perspective, it a struggle for liberty, equality, and freedom, Europe’s is important to understand that the claims of freedom ‘Others’ continued to be subjugated under the weight and equal worth are informed by arguments about of colonialism and slavery (L. Hunt 2007; Ibhawoh civilization, cultural backwardness, and racial and reli- 2007). And even within Europe, gender and racial seg- gious superiority. The ‘dark side’ is integral to human regation established a hierarchy of who was the valid or rights and not just an irregularity that can be repaired legitimate subject of law and rights—white, Christian, through greater inclusion. propertied men. Thus, while there is an assumption that certain political values are indeed universal—such 32.3.3 The subject of human rights as liberty, equality, and freedom—these ideals have historically faltered when they have come into contact As discussed in Section 32.3.2, a particular human with the unfamiliar or difference. subject rests at the heart of the international human The values of liberty, equality, and freedom also meet rights regime: that is, the sovereign, autonomous sub- with some of the same difficulties today. For example, ject. All human beings are regarded as being equally the desire in many liberal democratic countries to close placed and entitled to human rights. The very language the door to, deport, or incarcerate refugees is a graphic of some of the human rights documents, such as the example of their failure to live up to the human rights UDHR, as well as the two covenants, includes terms promise of universality to which the signatories in the such as ‘all’, ‘everybody’, and ‘no one’. This idea of a main human rights documents committed themselves. common human subject—who is autonomous, existing In fact, such examples expose both the contingency of prior to social relations, and ahistorical—at the heart human rights claims to universality and their Euro- of the human rights edifice is a dominant and assumed Atlantic understandings of who belongs and who does idea that is rarely questioned. Most people who are able not, who is an eligible subject of rights and who is not. to successfully claim rights resemble this familiar sub- Many postcolonial scholars have argued that human ject of human rights discourse. rights are informed by the legacies of colonialism and However, postcolonial and Global South scholars its responses to the ‘Other’ or native subject. In particu- contend that the human subject at the heart of the lar, they point to colonialism’s distinction between the international human rights regime is unable to sur- civilized and the uncivilized, and the perception of the vive without its counterpart, its ‘Other’ (Kapur 2002a; outsider as a threat or danger to the existing political Fineman 2008; Bagchi and Das 2012; Barreto 2013; order and imagined social cohesion of Western states Selmeczi 2015; Butterworth 2016). Today, a host of sub- (Chowdhry and Nair 2002; Ibhawoh 2007). The search jects continue to be denied inclusion into the human for a justification for the exclusion of non-European rights project, or their access to human rights is enabled subjects from the realm of legal rights is based on the only to the extent that they resemble the familiar sub- prevailing and unquestioned view that European states ject of human rights discourse. are more civilized, racially superior, and more law abid- There are at least three different ways in which the ing. This logic is also an inheritance of former colonial ‘Other’ has been addressed in relation to human rights. countries, where the practices and responses of the for- The first is through the assumption that the difference mer colonial power have been adopted to sustain old can be erased and the ‘Other’ assimilated. The second hierarchies or to produce new ones. For example, the is to treat the difference as inevitable and natural. And persecution of the Rohingyas in Myanmar, in what the finally, there is the response that justifies incarceration, United Nations has described as a genocide, is based internment, or even annihilation of the ‘Other’ because precisely on the logic that they are infiltrators, threats of the threat they pose. Chapter 32 Human rights 513 32.3.3.1 Assimilation national laws in which new citizenship and nationality Historically, the only way a subject of the colonies requirements are being enacted in Europe, South Asia, could acquire rights was by being trained into civi- Australia, and elsewhere. lizational maturity, otherwise they continued to be treated as an object in law. Such laws reflect a fear of 32.3.3.2 Essentializing the difference the ‘Other’, while also providing them an opportunity Some subjects, including women, Black people, and both to be part of the universal project of rights and gay people, have been at different historical moments to acquire legitimacy through the process of assimi- regarded as just different, and incapable of changing. lation and transformation into a subject that is famil- Their differences were conceived of as biological or iar. For instance, the Islamic veil bans in a number of natural, and used to justify difference in treatment. European countries are an example of the requirement As a result, they could be denied rights to education, to assimilate in order to have access to rights, includ- or work, or speech, or political participation, simply ing the rights to education and to wander freely in the because of this difference. For example, in the context public space. While those who wear the veil want both of slavery Black people were denied their subjectivity of these rights, the liberal democratic state compels based on an egregious assumption that they lacked the them to choose between wearing the veil or enjoying capacity to think. They thus remained objects to be their human rights (see Case Study 32.1). In the con- bought and sold. And while Black people, women, and temporary period, this response is incorporated into queer people have secured human rights throughout Case Study 32.1 The Islamic headscarf ban In 1998, a university lecturer in Istanbul, Leyla Sahin, brought a the Constitution. The Court also stated that such interventions challenge under the European Convention on Human Rights were designed to protect the individual not only against arbi- (ECHR) regarding the validity of a circular issued by the Vice- trary interference by the state, but also from external pressure by Chancellor of Istanbul University. The circular directed that stu- extremist movements. dents with beards and students wearing the Islamic headscarf The Court accepted the government’s argument that the would be refused admission to lectures, courses, and tutorials. The restriction on wearing the headscarf was integral to gender applicant was refused access to sit an exam on one of the subjects equality and maintaining secularism. Given the Court’s finding that she was studying because she was wearing the Islamic head- that gender equality was ‘one of the key principles underlying the scarf. Subsequently, on the same grounds, the university authorities Convention’, and that the practice of wearing the headscarf vio- refused to enrol her on a course or admit her to various lectures lated this principle, there was almost no scope for Sahin to argue and exams. The faculty also issued her with a warning for contra- that the ban itself constituted sex discrimination. The Court did vening the university’s rules on dress, and then suspended her from not address the applicant’s argument that she chose to wear the the university for a semester, as she had taken part in an unauthor- headscarf and that her aim was not to pressure other women into ized assembly that had gathered to protest against the warning. The wearing the headscarf. However, in her dissent, Judge Françoise applicant claimed that the circular violated several of her rights, Tulkens pointed out both the paternalism, and the contradiction, including her right to freedom of religion under Article 9 of the in using the logic of sexual equality to prohibit a woman from ECHR, which encompasses the manifestation of religion or belief. wearing the veil when, in the absence of proof to the contrary, The Court upheld the ban on the wearing of headscarves at she has freely adopted it. Istanbul University on the grounds that the impugned circular Implicit in this position is a reinforcement of the widely held was consistent with the principles of secularism and equality in assumption that women are always coerced into wearing head- Turkey, in particular the right to gender equality. Specifically, the scarves, and that Muslim women lack agency, are invariably Court held that there had been no violation of Article 9 (‘freedom victims of their traditional culture, and are awaiting rescue from of thought, conscience and religion’, including the manifestation subservience through a liberal rights intervention. of ‘religion or belief ’); Article 8 (‘right to respect for... private and family life’); Article 10 (‘freedom of expression’); Article 14 Question 1: The decision suggests that all veiled Muslim women (‘prohibition of discrimination’); or Article 2 (‘right to education’) are oppressed by the practice and that it is an explicit obstacle of Protocol No. 1 to the ECHR. The circular was held to be con- to their realization of gender equality. Do you agree or disagree? sistent with the Turkish Constitutional Court’s ruling that author- izing students to ‘cover the neck and hair with a veil or headscarf Question 2: Is the decision enabling or liberating for Muslim for reasons of religious conviction’ in universities was contrary to women? 514 ratna kapur the world, racial, gender, and sexual stereotypes and being cast as a threat, contaminant, or evil. This includes essentialism continue to impede their access to rights. the response to young Muslim men (especially after These stereotypes are often displaced onto a Global 9/11), who are increasingly perceived as a threat to the North/Global South divide. liberal democratic order. This perceived threat then jus- For example, in campaigns to fight violence against tifies the adoption of exceptional measures that are not women, gender and racial stereotypes continue to per- compliant with human rights, such as the creation of vade the interventions of women’s human rights groups the category of ‘enemy combatant’, the indefinite deten- and NGOs in the Global South. In the name of protect- tion of suspected terrorists in internment facilities such ing women’s rights, these initiatives are invariably based as Guantanamo Bay, or taking recourse to rendition. on assumptions about women from the Global South as While these interventions may on one level be regarded being more victimized and subjected to ill-treatment as most probably violating liberal constitutional rights by a primitive culture, than their Global North coun- set by liberal states themselves, they are also at times terparts. These assumptions in turn have invited highly justified by liberal states and scholars as the best hope protectionist legislation, such as in the arena of anti-sex for democracy and stability in certain anarchic parts trafficking, or justified protective detention and inter- of the world (Ignatieff 2003). In other words, such vention strategies that further reinforce gender, racial, measures may be prescribed in order to save the lib- and cultural stereotypes (L. Hunt 2007; Bernstein 2010; eral democratic world and its global project of human Balgamwalla 2016). The focus on carceral, law and order, rights from the chaotic violence of feudal, illiberal soci- and criminal justice approaches to human rights in the eties that are assumed to exponentially breed evildoers, context of anti-trafficking interventions is largely based such as terrorists, who do not cherish or respect human on such stereotypes, which deny the ‘other’ woman her rights, and hence are not entitled to their protections agency, decision-making abilities, or subjectivity. (Ignatieff 2017). Such interventions are examples of the ‘dark side’ of human rights. 32.3.3.3 Incarcerating difference Another example is the continued opposition by Finally, there is the response of incarceration, intern- popular movements to the rights of gay or queer people, ment, or even elimination, where the ‘Other’ is cast as even in countries such as France, the United States, or completely outside of or undeserving of human rights. India, where same-sex relationships have been decrim- They are regarded as a threat, backward, uncivilized, inalized, as they are perceived as destroying civiliza- and dangerous. These subjects are denied human rights tion, family, or faith (see Case Study 32.2). Similarly, protections as they are seen as being in opposition to there is resistance to migrants, who are perceived as such values and protections. In the contemporary disrupting the social and cultural cohesion of distinc- period, there are a number of examples of difference tive states. Responses to this ‘Other’ can compromise Case Study 32.2 Same-sex or queer relationships, LGBTQ rights, and colonial laws 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 pro- tection, or that 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). On the global stage there has been a polarized response to LGBTQ human rights. At one end, there is an increased crimi- nalization of queer lives, where not just the act of sex, but the very identity of LGBTQ people is criminalized, such as in Nigeria, A pride flag Uganda, Kenya, Ethiopia, the Democratic Republic of Congo, and © Mircea Moira / Shutterstock Russia. Chapter 32 Human rights 515 At the opposite end of the spectrum, the struggle for rights same sex, several countries, including a number of African has challenged the pathologizing and criminalizing of same-sex countries, followed suit. or queer relationships, resulting in legal recognition in coun- Despite some countries in the Global South/non-West having tries such as Angola, Botswana, Gabon, Mozambique, Nepal, decriminalized queer relationships, there remains a persistent belief Cambodia, India, South Africa, several European countries, and that the ill-treatment of gay people is a feature of ‘less civilized’ the United States. and traditional cultures mainly in the non-West. Sexual minorities In Botswana, for example, a successful constitutional chal- have challenged this dichotomy by declaring that homophobia lenge was brought against several provisions under the Penal is a Western import, transmitted into the non-West by the West Code, a colonial-era law that characterized same-sex rela- through the colonial encounter. For example, the Sexual Minorities tionships as vices against nature. In 2017, a student at the of Uganda (SMUG) group argues that the civilizational argument University of Botswana, supported by a civil society organi- (the argument that divides the world into those who are civilized zation supporting LGBTQ rights, challenged the constitutional versus those who are considered backward and primitive) actually validity of the provision in the High Court. The applicant deflects attention from the way in which Christian evangelicals from asserted that the legal provisions discriminated against LGBTQ the United States have been implicated in partly producing the anti- individuals and violated his rights to liberty and privacy as well gay, homophobic agenda in these African nations and elsewhere. as to use his body as he saw fit. In 2019 the Court unanimously struck down the provision, holding that it violated the rights Question 1: Is homophobia a cultural problem? A straight prob- to liberty, privacy, dignity, and equality of sexual minorities. lem? A political problem? The decision discusses the colonial origins of these provisions, imported into the colonies by, amongst others, the British Question 2: What strategies can be developed by human rights Empire. At the same time, the Court states that after Britain advocates that can avoid reproducing the opposition between the successfully decriminalized sex with another person of the Global South/non-West and the Global North/West? human rights, whether in the form of the war on terror, Europe, from capsized boats. These responses also con- or incarceration without due process, or even refusal tinue to be evident in the context of sexual orientation to rescue migrants, who are attempting to cross into in some parts of the world. 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 or queer 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. 32.4 Doing human rights advocacy In light of the discussions in this chapter, the question considered by NGOs and human rights advocates as arises as to how to do human rights advocacy or give well as students of international law who are learning policy advice on human rights without in the process about human rights. doing more harm, either materially or by reproduc- A critical approach to human rights walks a fine line ing stereotypes and the historical legacies that have between the outright rejection of human rights (which produced the stereotypes. This question needs to be can play into the hands of populist movements as well 516 ratna kapur as culturally orthodox and nationalist groups) and the that such interventions deny women their subjectiv- need to avoid complete despair when human rights are ity, treat them as victims to be rescued and rehabili- unable to meet their promise of transformation and tated, do not endow them with the rights they need to complete emancipation. fight the abuses and harms they experience, and fail to Rights can be understood as radical tools for those reduce their vulnerability to and reliance on criminal who have never had them. Though a flawed ideal, rights networks. They further argue that not all sex workers are preferable to no rights at all. Human rights are an have been trafficked, and nor is all trafficking directed important and useful vocabulary. At the same time, the into sex work. Migrants have similarly argued that anti- discussion in this introduction to human rights also trafficking interventions have failed to understand the reminds us that any advocacy strategy needs to always causes of migration, including the unavailability of safe, take into account the ‘dark side’ of human rights. At legal routes for movement, that have rendered migrants times, human rights have been complicit in making dependent on clandestine migrant mobility regimes, the world less stable, less peaceful, more divisive, and which include a dependency on smugglers and traf- even at times more violent. Thus, the first question fickers. Thus, while anti-­trafficking interventions have to be asked when addressing the ‘dark side’ is: who is ostensibly been adopted in the name of human rights, accountable when human rights interventions actually they have at times resulted in human rights harms and harm more than they help? This is a challenging ques- injuries and increased the vulnerabilities of already tion that should form part of your vocabulary and that marginalized and disenfranchised groups. of advocates of human rights. In addition, there are sev- Some of the questions that students of International eral ways in which work with human rights can be both Relations who may be advising on human rights might creative and constructive. address include: have the minimum human rights cri- First, it is important to move beyond claims to the teria been met by the existing interventions? What are universality of human rights, while not getting bogged the broader structural and material causes that have down in historical particularity (see Section 32.3.2) produced trafficking? Are there better or more effec- (Alston and Steiner 2009). In other words, the response tive ways of enhancing the rights of vulnerable groups, to the critique of universality does not mean reverting to that would reduce their exposure to exploitation and the local. Instead, the starting point is to recognize that are empowering? It may be that a more human rights- human rights are a site of power and the vocabulary of friendly approach to irregular movement can be found human rights is indeed very powerful. It is this power in by foregrounding the rights of migrants rather than the hands of those who use it that should be understood, focusing on anti-trafficking; lobbying for safer migra- rather than its ability or lack of ability to transform peo- tion routes; developing more advocacy around the UN ple’s lives, or its potential to bring about change. Because convention on migrant workers’ rights and urging states human rights are about power, then it matters who bran- to sign on; and by recognizing that the free flow of labour dishes these tools. Human rights advocates wield power in a global era requires less resort to the criminal law and once they participate in the terrain, and they need to more attention to addressing the causes of migration. exercise caution to avoid being implicated in perpetuat- A third consideration is to ensure that human rights ing the ‘dark side’ of human rights. materials, scholarship, and education include an aware- Second, students of human rights need to be ness of the colonial trappings and the Global North’s thoughtful in developing human rights interventions hegemonic underpinnings of the human rights project, and strategies. There are invariably several approaches and how the non-West has been frequently ignored or to the same problem, which may, as already discussed, excluded from the formulation and discussions on how be linked to broader competing ideological or political human rights should function. A postcolonial/Global agendas (see Opposing Opinions 32.1). For example, South viewpoint can enrich the perspective of how in the area of human trafficking, a number of states human rights have sustained and continue to sustain, have developed, in the name of human rights, legal and even justify at times, exclusion at the same time as responses that focus on sex trafficking and on rescu- they include (see Ch. 11). This understanding can assist ing women from the sex industry or even abolishing in revising the thinking and understanding of human sex work. The question is whether such interventions rights that have been dominated by Western states have been helpful, empowering, discriminatory, or or perspectives, or by powerful actors, which include possibly even harmful. Organized sex workers’ groups assumptions that human rights are needed only in in the Netherlands, Thailand, and India have argued the developing, ‘less civilized’ world. Drawing on the Chapter 32 Human rights 517 Opposing Opinions 32.1 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 citi- States have an obligation to uphold the right to freedom of zens’ needs. A state has every right to decide who it can let through mobility. In light of the increasing movement of people across its borders, given that its resources are limited. Sharing resources borders, as well as the emergence of a global order, states have an such as jobs, education, and health care with irregular migrants obligation to safeguard the right to mobility. Rich and privileged becomes an unfair burden and denies resources to citizens. states are morally obliged to uphold the right to mobility. Every state has the right to restrict the entry of people into Denial of safe legal routes for movement increases vulner- its own country. The criteria of citizenship rest within the discre- ability. Migrants who are compelled to move are increasingly tion of the nation-state. The decision as to who can become a vulnerable, given the fact that safe legal routes for mobility are citizen and who can be refused rests within the sovereign power shrinking. They are forced to take recourse to the help of smug- of the nation-state. glers and other clandestine networks in order to move. This kind of movement is full of risk, including death, due to the precarious A state has no obligation to receive migrants who pose a methods of transportation and conveyance. threat to the social cohesion of its own society. Social cohe- sion is essential to the maintenance of peace and public order Migrants are often forced to move because of conditions cre- in a nation. Those who pose a threat to social cohesion can be ated in their own homeland by outside states, including the rightfully denied entry. states where they seek refuge. Climate change, environmental degradation by global corporations, arms sales by a few rich nations Irregular migrants are more likely to rely on government to poor nations, and the amassing of wealth by the former colonial benefits than be productive workers. There is a likelihood that countries through the exploitation of the resources of former colo- irregular migrants will rely on government benefits rather than nies are amongst the factors that have aggravated the situation of seek out productive work. As a result, they will not generate tax degradation and vulnerability of persons in different parts of the revenue. They thus become an economic burden that the state world. These aspects produce the conditions for forced migration. has no obligation to take on at the cost of its own citizens. 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. Vulnerability is produced partly through discriminatory laws that keep out persons who are unfa- miliar. Race, religion, or cultural practices that appear to threaten the social cohesion of a receiving state, or xenophobic nationalism often form the basis or rationale for exclusion. These practices undermine the human rights commitments of the very states that prohibit entry. These practices increase their risk to exploitation and vulnerability. 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. Is ‘social cohesion’ a valid criterion for admitting migrants? Why? Why not? Visit the online resources to discover pointers to help you tackle these questions. experiences of the world’s ‘Others’, rather than seeking Fourth, a student of human rights needs to look at to rescue, patronize, or target them, requires under- how the story of human rights is told and who is telling standing and learning, for example from the postco- the story, as this can offer valuable insights into the way lonial, feminist, and racial critiques of rights (see Chs human rights have functioned. This requires, for example, 17 and 18). These critiques include understandings on not treating impoverished persons as the object of rights, how human rights have been shaped by the legacies of but as a constituency that may understand and be able the colonial encounter, slavery, apartheid, and gender to inform on how rights claims can have an ambivalent discrimination. relationship to suffering. This includes an understanding 518 ratna kapur of how human rights can sometimes work to create hier- of the human rights terrain, and illustrate why rights need archies of human suffering and can themselves become to be constantly monitored, revisited, and interrogated. equated with a market-friendly human rights paradigm that can exacerbate poverty and inequality. Key Points Human rights advocacy needs to carefully negotiate strategies and interventions that do not reproduce false Human rights are more than the formal structure and rights. They are political and can be used by different dichotomies, but that instead learn from the contexts that groups to advance competing political agendas. have addressed these tensions. For example, as is evident in Case Study 32.1, freedom of religion and gender equality do Human rights interventions do not always work in ways that are progressive or emancipatory. not have to be placed in opposition to one another, nor does the Islamic headscarf have to be regarded as incompatible Rights can be liberating as well as confining, and human rights advocates need to be aware of these multiple uses of rights. with commitments to secularism. In a number of countries, Rights need to be historicized and contextualized. most evidently in postcolonial and Global South countries, these values can coexist. For example, in India, women in Human rights advocacy needs to be careful, mindful, and thoughtful in formulating interventions to ensure that they religious minority communities are constantly renegotiat- do not reproduce some of the exclusionary aspects and ing the boundaries and contesting the meaning of equality, ‘dark side’ of human rights. understandings of secularism, and the right to freedom of Rights are complex, contradictory, and contingent. For this reason, rights are never firmly fixed or entrenched. There are religion, at the same time as they are challenging iniquitous no permanent victories. Consequently, human rights need to and discriminatory practices in their own communities. be constantly monitored, revisited, questioned, and defended. They are negotiating the complex and contradictory nature 32.5 Conclusion This chapter has introduced you to the formal structure By adopting a critical analysis, including to postco- and framework of human rights, including the treaties, lonial and Global South perspectives on human rights, conventions, committees, and reporting mechanisms of we hope to develop a more mindful, thoughtful, and the global human rights regime. It has also introduced reflective approach to human rights advocacy or policy the politics of human rights and how to think about formulation. Introducing the dominant understand- their historical development. In particular, the chapter ings of human rights as progressive, universal, and illustrates how human rights have been shaped by the based on a common subject and exposing you to a criti- legacies of the colonial encounter, slavery, and engage- cal analysis of each of these claims provides a deeper ments with sexual, religious, and racial differences. and more mindful engagement with the topic. It also You are not only encouraged to question the dominant raises awareness that human rights are not a project understandings of human rights as progressive, univer- that can be steered by good intentions, and that some- sal, and based on a common subject, but also how these times these intentions can lead to harmful effects. By claims can at times obscure the ways in which human learning about the ‘dark side’ of human rights, students rights are based on relations of power. In other words, can become more thoughtful and informed in develop- human rights can serve to advance competing agendas ing advocacy strategies and policy positions on human that are not always progressive or inclusive. 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 recipients of those rights? In what ways? Chapter 32 Human rights 519 3. Has the world become a better place with the establishment of human rights and the international human rights structure? 4. Can you think of situations in your own context or work in which human rights have been part of the problem in terms of either inflicting or aggravating pain and suffering or reinforcing or advancing colonial, racial agendas that are themselves extremely troubling? 5. Are human rights opposed to culture or are human rights themselves cultural? What are the implications of either position for interventions by civil society, as well as for international human rights mechanisms? 6. Are human rights about power? Discourse? Civilizational development? A form of resistance to state power? 7. How have different constituencies, including neo-colonial as well as orthodox/conservative forces, advanced their agendas in and through the discourse of human rights? 8. Are human rights on life support or do they still embody the potential to transform the world and individual lives for the better? Can you think of examples that illustrate this potential? 9. If human rights did not exist in the world, would anyone notice? Are we better off with human rights or without them—how and why? 10. Think about cases or issues in your own contexts or with which you are familiar, and identify how human rights have been used to advance the rights of marginalized or disadvantaged groups and how they have been used to undermine the rights of ‘Others’. Visit the online resources to test your understanding by trying the self-test questions. Further Reading Barreto, J. M. (2013), Human Rights from a Third World Perspective: Critique, History and International Law (Newcastle upon Tyne: Cambridge Scholars Publishing). Focuses on the experience of the colonized to develop a critique of human rights. Brown, W. (2002), ‘Suffering the Paradoxes of Rights’, in W. Brown and J. Halley (eds), Left Legalism/Left Critique (Durham, NC: Duke University). Demonstrates that human rights are not a force for good per se, and can have contradictory outcomes. Chandler, D. (ed.) (2002), Rethinking Human Rights: Critical Approaches to International Politics (Houndmills, Basingstoke: Palgrave Macmillan). Analyses the role of human rights in international politics and how they can be used by different players to advance competing agendas. Chowdhry, G., and Nair, S. (eds) (2002), Power, Postcolonialism and International Relations: Reading Race, Gender, and Class (New York: Routledge). Uses postcolonial theory to discuss how race, gender, and class have been central to shaping global politics. Douzinas, C. (2000), The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford: Hart Publishing). Addresses the crisis of human rights in the contemporary period and the need to recapture the radical essence of human rights as a transformative endeavour. Kapur, R. (2018), Gender, Alterity, and Human Rights: Freedom in a Fishbowl (London: Edward Elgar). Analyses how human rights have been unable to realize the promise of freedom for gender, sexual, and religious minorities, and argues in favour of the need to turn to non-liberal alternatives of freedom and address the future of human rights within these alternatives. Kennedy, D. (2004), The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton, NJ: Princeton University Press). Examines how human rights, among other 520 ratna kapur humanitarian efforts, have gone awry and at times become part of the problem, and looks at what can be done to respond to this dilemma. Madhok, S. (2021), Vernacular Rights Cultures: The Politics of Origins, Human Rights and Gendered Struggles for Justice (Cambridge: Cambridge University Press). Challenges dominant epistemologies and practices of human rights through a decolonial lens of analysis. Razack, S. H. (2022), Nothing Has to Make Sense: Upholding White Supremacy through Anti-Muslim Racism (Minneapolis: Minnesota University Press). Addresses the centrality of the figure of the Muslim to understanding the divide between deserving lives and disposable lives, and how anti-Muslim racism exposes the ways in which white supremacy is a global phenomenon. Santos, B. de Sousa (2015), If God were a Human Rights Activist (Stanford, CA: Stanford University Press). Focuses on how to address the limits of human rights and some of their exclusionary effects by understanding and working with the progressive elements of different religious traditions. Slaughter, J. (2018), ‘Hijacking Human Rights: Neoliberalism, the New Historiography, and the End of the Third World’, Human Rights Quarterly, 40(4): 735–75. Examines how the story of human rights is invariably told from an Americo-Eurocentric perspective that disregards people and events in the rest of the world as makers of human rights histories. Visit the online resources to access the latest updates in the field of International Relations. Chapter 33 Humanitarian intervention in world politics alex j. bell amy · nichol as j. wheeler Framing Questions How should we resolve tensions when valued principles such as order, sovereignty, and self-determination come into conflict with human rights? Is humanitarian intervention ever justified? If so, in what circumstances? How have international thought and practice evolved with respect to humanitarian intervention? Reader’s Guide addressed in this chapter. The challenges posed by humanitarian intervention are whether it should be Non-intervention is commonly understood as a exempted from the general ban on the use of force bedrock norm in international society, and interna- and whether it is an effective way of responding to the tional law prohibits the use of force except for pur- most serious of abuses. This chapter examines argu- poses of self-defence and collective enforcement ments for and against forcible humanitarian interven- action authorized by the UN Security Council. But tion. It considers humanitarian intervention in the how should international society respond when gov- 1990s, examines the ‘responsibility to protect’, and ernments commit genocide or other mass atrocities concludes with an analysis of the arguments for and against their own populations, or if they are unable to against forcible humanitarian intervention to protect prevent such violations, or if states have collapsed into Syrians from the so-called Islamic State and the Assad civil war and disorder? This is the guiding question government. 522 alex j. bellamy · nicholas j. wheeler 33.1 Introduction Humanitarian intervention poses a hard test for an the enforcement of human rights. But attitudes shifted international society built on principles of sover- significantly among some states during the 1990s. eignty, non-intervention, and the non-use of force. However, the new norm was a weak one. Not until the Immediately after the Holocaust , the society of states UN Security Council (UNSC) adopted Resolution 1973 established laws prohibiting genocide, forbidding the in 2011, in relation to the humanitarian crisis in Libya, mistreatment of civilians, and recognizing basic human did it authorize forcible intervention against a fully rights. But these humanitarian principles often conflict functioning sovereign state, and intervention without with principles of sovereignty and non-­intervention. UNSC authorization remained deeply controversial. Sovereign states are expected to act as guardians of However, some states, especially in the Global South, their citizens’ security, but what happens if states have continued to worry that humanitarian interven- behave as criminals towards their own people, treat- tion is a rhetorical device to justify the forcible interfer- ing sovereignty as a licence to kill? Should tyrannical ence of the strong in the affairs of the weak. At the same states (S. Hoffmann 1995–6: 31) be recognized as legit- time, a group of states, from both the Global North imate members of international society and accorded and Global South, and non-governmental organi- the protection afforded by the non-­intervention prin- zations (NGOs) have attempted to build a consensus ciple? Or should states forfeit their sovereign rights and around the principle of the responsibility to protect. be exposed to legitimate intervention if they actively The responsibility to protect insists that states have pri- abuse or fail to protect their citizens? Related to this, mary responsibility for protecting their own popula- what responsibilities do other states or institutions tions from genocide, war crimes, ethnic cleansing, and have to enforce human rights norms against govern- crimes against humanity. The UN Security Council ments that massively violate them? has now used the responsibility to protect in relation Armed humanitarian intervention was not a legiti- to a dozen crises, including those in Libya, Syria, the mate practice during the cold war because states Democratic Republic of Congo, Mali, South Sudan, placed more value on sovereignty and order than on Yemen, and Darfur. 33.2 The case for humanitarian intervention 33.2.1 Human security The value of this Westphalian system of security rests on the assumption that sovereign states are the best For both realists and liberals alike, security has tra- guardians of human security. That is, states are morally ditionally been understood as the purview of states. valuable because they protect their citizens from vio- Security studies focuses primarily, therefore, on the lence. In practice, however, states are often themselves security of states. According to this perspective, secu- a source of profound insecurity. According to one rity is best achieved by establishing a basic degree of study, in the twentieth century alone some 262 mil- international order based on each state’s recognition lion people were killed by their own government. This of every other state’s right to rule a particular territory figure is six times greater than the number of people and engage in external relations. Two of the main guar- killed in battles during all the international wars over antors of state security are the principles of sovereignty the same period. Emerging in the 1990s, the human and non-interference. These were the foundations of security approach called for the reconceptualization of the so-called ‘rules-based’ or ‘liberal’ order established security to focus not on the security of states, but rather at the end of the Second World War. This way of think- on the security of individuals and communities. Doing ing about security is often labelled ‘Westphalian sover- so had two profound effects on the way we understand eignty’, referring to the 1648 Peace of Westphalia which security. The first was to significantly broaden the is commonly reckoned to have instituted a world order range of things that constituted a security threat. From based on the right of sovereigns to govern their own the perspective of the lived experience of humans, pov- people in whatever way they saw fit. erty, human rights abuses, gender violence, civil war, Chapter 33 Humanitarian intervention in world politics 523 and climate change were much more significant threats that the customary right to humanitarian interven- than inter-state war. Second, the state came to be seen tion preceded the UN Charter, evidenced by the legal as not only a source of security, but also as one of the arguments offered to justify the British, French, and main sources of threat, since states were among the Russian intervention in Greece (1827) and US inter- primary perpetrators of genocide and mass atrocities. vention in Cuba (1898). They also point to British and This raised important moral, legal, and practical ques- French references to customary international law to tions about whether states should lose their sovereign justify the creation of safe havens in Iraq (1991), Kofi rights when they systematically abuse their popula- Annan’s insistence that even unilateral intervention tions (see Ch. 15). to halt the 1994 genocide in Rwanda would have been legitimate, and the UK’s claim of a customary right to humanitarian intervention in the case of Syria 33.2.2 The legal argument in 2013. The ‘counter-restrictionist ’ case for a legal right of Critics say that these arguments exaggerate the individual and collective humanitarian intervention extent of consensus about the rules governing the use rests on two claims: first, the UN Charter (1945) com- of force, and that their reading of the UN Charter’s tex- mits states to protecting fundamental human rights; tual provisions runs contrary to both majority interna- and second, there is a right of humanitarian inter- tional legal opinion (Brownlie 1974; Chesterman 2001) vention in customary international law. Counter- and the opinions expressed by the Charter’s architects restrictionists argue that human rights are just as at the end of the Second World War. important as peace and security in the UN Charter. The Charter’s preamble and Articles 1(3), 55, and 56 33.2.3 The moral case all highlight the importance of human rights. Indeed, Article 1(3) identifies the protection of human rights Many writers argue that, irrespective of what the law as one of the principal purposes of the UN system. says, there is a moral duty to intervene to protect civil- This has led counter-restrictionists to read a humani- ians from genocide and mass killing. They argue that tarian exception to the ban on the use of force in the sovereignty derives from a state’s responsibility to UN Charter. Michael W. Reisman (1985: 279–85) protect its citizens; therefore, when a state fails in this argued that, given the human rights principles in the duty, it should lose its sovereign rights (Tesón 2003: Charter, the UNSC should have taken armed action 93). Some point to the idea of common humanity to during the cold war against states that committed argue that all individuals have basic human rights and genocide and mass murder. The ongoing failure of duties to uphold the rights of others (Caney 1997: 34). the UNSC to fulfil this legal responsibility led him Others argue that today’s globalized world is so inte- to assert that a legal exception to the ban on the use grated that massive human rights violations in one of force in Article 2(4) of the Charter should be cre- part of the world affect every other part, creating moral ated that would permit individual states to use force obligations (Blair 1999b). Some advocates of just war on humanitarian grounds. Likewise, some interna- theory argue that the duty to offer charity to those in tional lawyers (Damrosch 1991: 219) have argued that need is universal (Ramsey 2002: 35–6). Others insist humanitarian intervention does not breach Article that moral agreement exists among the world’s major 2(4) because the article prohibits the use of force only religions and ethical systems about a duty to halt mass against the ‘political independence’ and ‘territorial killing (Lepard 2002). integrity’ of states, and humanitarian intervention However, granting states a moral permit to inter- does neither of these things. vene opens the door to potential abuse: the use of Other counter-restrictionists admit that there is no humanitarian arguments to justify wars that are legal basis in the UN Charter for unilateral humani- anything but humanitarian. Those who advance tarian intervention, but argue that it is permitted moral justifications for intervention also run up by customary international law. For a rule to count against the problem of how bad a humanitarian cri- as customary international law, states must claim sis has to be before force can be used. And there is that the practice has the status of law and actually the thorny issue of whether force should be used to engage in the activity. International lawyers describe prevent a humanitarian emergency from developing this as opinio juris. Counter-restrictionists contend in the first place. 524 alex j. bellamy · nicholas j. wheeler Key Points Counter-restrictionists argue in favour of a legal right of humanitarian intervention based on interpretations of the The claims for a moral duty of humanitarian intervention stem from the basic proposition that all individuals are UN Charter and customary international law. entitled to a minimum level of protection from harm by Many lawyers contend that the counter-restrictionist virtue of their common humanity. position rests on flawed and overly liberal interpretations of the Charter and customary law. Debate exists about which human rights are ‘fundamental’ and who may decide when their violation is sufficient to justify armed intervention. 33.3 The case against humanitarian intervention Seven key objections to humanitarian intervention does not serve the national interest. For other critics, have been advanced at various times by scholars, inter- it suggests that the powerful intervene only when it national lawyers, and policy-makers. These objections suits them to do so, and that strategies of intervention are not mutually exclusive and can be found in the are more likely to be guided by calculations of national writings of realists, liberals, feminists, postcolonial interest than by what is best for the victims in whose theorists, and others, although these different theories

Use Quizgecko on...
Browser
Browser