Protecting Human Rights in the 21st Century

Aidan Hehir, Robert W. Murray

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315436678
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Organisations intergouvernementales

This book contributes to current debates on the protection of human rights in the 21st century.

With the global economic collapse, the rise of the BRICS, the post-intervention chaos in Libya, the migration crisis in Europe, and the regional conflagration sparked by the conflict in Syria, the need to protect human rights has arguably never been greater. In light of the precipitous decline in global respect for human rights and the eruption or escalation of intra-state crises across the world, this book asks 'what is the future of human rights protection?'. Seeking to avoid both denial and fatalism, this book thus aims to:

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• examine the principles at the very foundation of the debate on human rights;

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• diagnose the causes of the decline of liberal internationalism so as to offer guiding lessons for future initiatives;

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• identify those practices and developments that can, and should, be preserved in the new era;

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• question the parameters of the contemporary debate and advance perspectives that aim to identify the contours of future ideas and practices that may offer a way forward.

This book will be of much interest to students of humanitarian intervention, R2P, international organisations, human rights and security studies.

PART I

Rethinking fundamental principles

1

GLOBAL CONSTITUENT POWER

Protests and human rights¹

Anthony F. Lang, Jr.

Introduction

The enthusiasm for human rights that emerged in the post-Cold War era has been undermined by a resurgence of sovereigntist claims from Russia and China along with cultural resistance to the liberal ideal of the individual in the Middle East and elsewhere. Can human rights still be protected and promoted? This chapter defends human rights not from a liberal cosmopolitan position but from a global constitutional one. Though some work in global constitutionalism has made a defence of rights from a broadly cosmopolitan position (Kumm 2009), this chapter instead argues that a truly global constitutional order with rights at its heart requires a robust constituent power as the basis by which such rights can be defended. More specifically, this means that protest movements and global activism will promote and protect rights more effectively than efforts to perfect legal texts or rely on judicial bodies (both global and national) to defend them. Of course, legal texts and judicial activism are central to rights, but when they become ossified standards of certainty or promote idealized normative orders, rights will be undermined. Moreover, a legalist defence of rights can easily be hijacked by powerful agents, whereas the constitutional idea I defend here is less susceptible to such moves.

The chapter proposes a theory of global constituent power and how human rights play an important role in the co-constitution of the global constitutional order in which rights are central. The theoretical basis for my argument is drawn from James Wilson, an American founder who argued that a constitution must be representative in all its aspects, not simply in the legislature. Moreover, he argued against the enumeration of a bill of rights because he believed that the structure of a government would lead the people toward a continued engagement with and demand for their rights through properly designed institutional forms. For Wilson, rights were not set in stone as a singular universal ideal but were constantly up for negotiation by the people whose sovereignty constitutes the political order. To make concrete my argument, I look to the World Social Forum (WSF) and its efforts to create alternative global political spaces that rely on but also fundamentally challenge liberal ideas of human rights.

Global constitutionalism

A constitution is the set of principles and rules that govern a society. A constitutional political and legal order enables and constrains political decision making. Four principles make manifest these limiting and enabling functions: the rule of law, a balance/separation of powers, constituent power, and rights.

The rule of law is the idea that a political order should be organized so that decisions result from a rule based system that has emerged from a legislative process. The historical emergence of constitutionalism came in response to governance by individuals who cared little or nothing for consistency and fairness (Bingham 2011). The rule of law is not simply the existence of a legal code, however. Law must arise from a legislative process, one that reflects a diversity of interests and allows a community not simply to create law but to engage in the practice of politics in order to prevent the rule by law rather than of law (Ginsburg and Simpser 2014).

The separation of powers is the next crucial element of a constitutional system. As with the rule of law, the separation of powers is a device for ensuring that no one political actor has too much power or can direct the political system to his/her own purposes. In ancient and medieval contexts, the separation of powers arose from the need for different social classes to be represented in the political order. This separation evolved in the early modern period into a separation of functions rather than classes or forms, becoming the balance of power in a constitutional order, as the functions of the legislature, executive and judiciary came to serve different roles that ensured that no one agent (particularly the executive) could dominate the political system. Montesquieu (1748 [1989]) has become the most famous theorist in the history of political thought to develop this idea, though his version was based on a somewhat idealized picture of the British constitutional system. The separation of powers provides a means not only to limit power but also to enable power by channelling it into productive and useful ends.

Constituent power, the third principle, is defined as the idea that a constitutional order is one that rests upon the people. This idea is sometimes referred to in French as pouvoir constituant due to the heritage of the French Revolution and its theorist, Emmanuel Joseph Sieyès, better known as Abbe Sieyès. In his pamphlet, ‘What is the Third Estate’, Sieyès gave voice to the people and argued for their centrality in the creation of a constitutional system (Sieyès 1789 [1970]). The idea of constituent power is not the same as representation, but is the source of authority for a constitution, often made manifest in the convention that drafts the constitution itself. This power, however, should not be confined to any historical moment, but relies on a continued engagement of the people with their rulers and with the structure of the system.

The final principle that plays a part in constitutional theory that is often the most prominent in ‘popular’ conceptions of constitutionalism is that of rights. Rights, either in a domestic or global context, have increasingly become part of constitutional theory and practice. The classic legal definition of rights comes from Wesley Hohfeld, an American theorist of the early twentieth century: rights are justified demands we make on others (Hohfeld 1946 [1918]).² This definition is not the only or final one, of course, though it does lay out some important features of rights. Rights are not a form of charity, but are demands we can legitimately make. Further, rights arise in a communal context and so require some exchange among individuals. Rights are, in other words, at that intersection of politics and law where I have located constitutionalism more generally. Many assume that constitutional theory can be reduced to the protections that rights afford especially through the exercise of judicial review. Ronald Dworkin famously argued that rights are trumps in political life, a basis against which all other practices must be measured (Dworkin 1977). However, as will become clear in my discussion of Wilson that follows, if we reduce rights to the written constitutional text, we fail to appreciate how rights arise from and depend on political engagement across a range of different political spaces.

How do these principles relate to global constitutionalism? Some argue that for any global order to be constitutional, it must be tied to a specific constitutional text. Bardo Fassbender has been a leading proponent of the view that the global constitutional order is found in the UN Charter (Fassbender 2009). Certain strands in international legal theory also focus on the way in which judiciaries and legal texts define international law, which has been described as the ‘constitutionalization’ of international law (Klabbers et al. 2009). There has also emerged a literature on legal pluralism that relates to global constitutionalism, one that derives from efforts to negotiate the relationship between legal orders in European states and the European Union (Maduro 2009).

Political theorists have also contributed to this literature. Some of these works take a cosmopolitan approach, drawing on Immanuel Kant, particularly his political writings, and propose a move toward a global constitution. Jürgen Habermas has made this argument in the context of European Union politics, drawing on Kant’s Perpetual Peace essay to propose an evolution from state to state international law to cosmopolitan law (Habermas 2001, 2006). Garrett Wallace Brown draws on not only the Perpetual Peace essay but a wide range of Kant’s work on political philosophy and public law to explore the potential for a global constitutional order (Brown 2009, 2012). Jean Cohen has recently argued that the idea of federalism might be a better way to negotiate the space between individuals and institutions than the cosmopolitan or legal pluralist arguments noted above that results in what she calls ‘low intensity constitutionalization’ (Cohen 2012).³

International Relations theorists have also proposed constitutional interpretations of the global order. Liberal theorists, such as G. John Ikenberry suggest that the international order is becoming more constitutional as the rule of law and human rights become more prominent, an argument that assumes the triumph of American and British liberal ideas (Ikenberry 2006). A republican literature focuses on how balances and law promote and protect individual agents. These works draw on sources such as Aristotle and Vattel (Onuf 1998) and the American founders (Deudney 2007). Antje Wiener has drawn upon constructivist theories of international relations alongside of wide ranging interviews with European policy elites to propose the existence of an ‘invisible constitution’ in certain regional and international contexts (Wiener 2008).

As is evident from this brief review, there is a wide array of approaches to the study of global constitutionalism. Much of the work arising from moral and legal theory has focused on the rule of law. Those working within international relations theory and, to a lesser extent political theory, have been drawn to the separation of power. Constituent power, however, remains the least commonly addressed. This is perhaps because of its heritage as a theory of the nation state, i.e., as an effort to identify a particular ‘people’ that can come together and create a new political order. The difficulties of turning constituent power into constitutional form, particularly at the global level where so many competing agents and interests seem resistant to such a move, has also hindered efforts to find any evidence for constituent power at the global level (Loughlin and Walker 2007). The next section sets out a defence of global constituent power and links it to human rights at the global level.

Global constituent power and human rights

A constitutional order is one that rests upon the people. This constituent power differs from democracy which means the ongoing governance of a community by the people. The difference is perhaps best captured in seeing democracy as a form of government and constituent power as the basis for sovereignty, or the logic that underlies a political order. Martin Loughlin locates the idea in relation to the Enlightenment, seeing it as a rational foundation for rule that moved away from logics relying on divine rights or natural law. Instead:

The concept comes into its own only when the constitution is understood as a juridical instrument deriving its authority from a principle of self-determination: specifically, that the constitution is an expression of the constituent power of the people to make and remake the institutional arrangements through which they are governed.

(Loughlin 2014, p. 219)

This formulation relies on a reality for the ‘people’ who can engage in some form of self-determination. This is, of course, a major obstacle for any kind of global constituent power; that is, there does not exist a unified people at the global level who can construct a community. If this is the case, then there seems to be no grounds for advocating any kind of a global constituent power. Yet, one might argue that there is no ‘people’ at the national level either. That is, while we assume constituent power exists in an empirical people, we should perhaps look for the ways in which a constitution and a people are co-constituted.⁴ Therefore, to identify constituent power, we need to identify the constitutional order that constructs the people. In what follows, I turn to the existing institutional structure of human rights as the ‘constitution’ with which and, at times, against which a global constituent power comes into existence. That is, my argument in what follows is that global constituent power exists in practices undertaken by people in moments of protest and activism, but their ability to undertake those practices results from and relies upon an existing structure of human rights ideas and institutions.

A few versions of global constituent power have been proposed (Negri 2009; Niesen 2014; Oklopcic 2014; Nootens 2015). One that parallels the argument in this chapter comes from Chris Thornhill, who argues that if we envision constituent power not as an effort to find a singular people but as a sociological ordering device, it can be found at the global level (Thornhill 2012). Thornhill looks to the origins of constituent power in the American and French Revolutions not as moments when these communities ‘discovered’ the people they represent but as devices employed by founders and activists to structure their political orders. More specifically, and related to the concerns of this chapter, those efforts were located in relation to rights. The order that constituent power created was designed to distinguish the people from an external normative will, whether that be an external political power (as the British were for the Americans) or an external normative force (as institutions such as the nobility and church were for the French). Hence, the purpose of constituent power in these revolutions was not ‘to bind the political system to an external normative will, but to increase the inner consistency of the political system and to reduce its reliance on external actors’ (Thornhill 2012, p. 384). Based on his reading of these key Enlightenment revolutionary moments, Thornhill suggests that current efforts to advance human rights can be seen as a similarly orienting device at the global level; that is, judicial orders that draw on human rights are institutions that can ‘internalize constituent power as a projective aspect of the political system’ (Thornhill 2012, p. 394).

Thornhill’s argument suggests that regional and global judicial institutions provide the location for a constituent power that can advance human rights. Other accounts of constituent power eschew human rights as their foundation, looking instead to Marxist and critical theory resources to defend socio-economic equality as the basis for a just world order. One prominent example can be found in the work of Michael Hardt and Antonio Negri, whose collaborative works have articulated a space for a global constituent power in response to global economic injustice. In Commonwealth (2009) they advance this argument through a creative effort to find a global commons created by financial and trade structures but that can be refashioned to redistribute wealth. Their argument, however, does not find in rights a useful foundation for this redistributive effort, seeing the current human rights regime as dependent on liberal capitalism. Their alternative largely ignores existing human rights documents and institutions and instead seeks to develop a radical alternative.

While human rights may have links to liberal capitalism at their point of origin, this does not mean that they need to be ignored or dismissed in responding to global injustice. In fact, constituent power claims might be best understood as being co-constitutive with existing institutional structures of human rights. That is, without the UN system and its surrounding judicial and legal institutions, efforts to advance global justice and freedom would flounder. Some of the literature on human rights points to how this co-constitutive move is possible.⁵ Andrew Vincent focuses on activism and citizenship as the place where rights can best be found (Vincent 2010). Vincent critically assesses the idea of the state, arguing that it remains indebted to a nineteenth century Hegelianism that reified a kind of quasi-natural community. This idealization of the state resulted in extreme attempts to clean and purify the state, culminating in abuses of individual rights and even genocide. Opposed to this, Vincent argues that the idea of a vigorous state based citizenship needs to be recovered, one that will best protect the rights of individuals both within it and globally. Similarly, Mervyn Frost has argued that if states developed in such a way as to perfect their practices, they can be the foundations for a world in which human rights can be protected. Frost proposes how states play a role in ‘constituting human rights’ by constituting the state as an entity that can protect them, a democratic state (Frost 2002).

Charles Beitz also argues for a political conception of rights, but one that is grounded in the international order as opposed to the state (Beitz 2009). Beitz argues that human rights can only really be understood globally or internationally, as a set of practices that resulted from events in the twentieth century and the responses to those events undertaken by state le...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Contributors
• Acknowledgements
• Introduction: denial, fatalism and the protection of human rights
• PART I Rethinking fundamental principles
• PART II ‘Protection’ and peacekeeping
• PART III The responsibility to protect and beyond
• Index