Human Rights and Empire

The Political Philosophy of Cosmopolitanism

Costas Douzinas

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781134090051
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Erudite and timely, this book is a key contribution to the renewal of radical theory and politics. Addressing the paradox of a contemporary humanitarianism that has abandoned politics in favour of combating evil, Douzinas, a leading scholar and author in the field of human rights and legal theory, considers the most pressing international questions.

Asking whether there 'is an intrinsic relationship between human rights and the recent wars carried out in their name?' and whether 'human rights are a barrier against domination and oppression or the ideological gloss of an emerging empire?' this book examines a range of topics, including:

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• the normative characteristics, political philosophy and metaphysical foundations of our age
• the subjective and institutional aspects of human rights and their involvement in the creation of identity and definition of the meaning and powers of humanity
• the use of human rights as a justification for a new configuration of political, economic and military power.

Exploring the legacy and the contemporary role of human rights, this topical and incisive book is a must for all those interested in human rights law, jurisprudence and philosophy of law, political philosophy and political theory.

Part 1
The paradoxes of human rights

Chapter 1

The end of human rights?

In March 1991, President George H.W. Bush triumphantly announced that

a new world order is coming into view . . . in which the principles of justice and fair play will protect the weak against the strong [and] freedom and humanity will find a home among nations . . . Enduring peace must be our mission.¹

Eleven years later, President George W. Bush’s National Security Strategy, in a more subdued mood, brought the hope of enduring peace to an abrupt end:

New deadly challenges have emerged from rogue states and terrorists. The nature and motivations of these new adversaries . . . make today’s security environment more complex and dangerous [than during the cold war] . . . We will not hesitate to act alone, if necessary, to exercise our right of self-defence by acting preemptively.²

The war on terror, Bush Jr declared, was to be long; those ‘not with us are with the enemy’. This was fin de siècle stuff, depressingly doom-laden and exuberantly millenarian. Was the twenty-first century to repeat the infamies of the twentieth? Was the Finis Austriae to be followed by the Finis Americae? Between the promise of perpetual peace and the threat of endless war, a new world order has been taking shape, the normative boundaries of which this book traces. In-between those two statements, my End of Human Rights was published. Its last two sentences, written in the summer of 1999, were somewhat prophetic:

When the apologists of pragmatism pronounce the end of ideology, of history or utopia, they do not mark the triumph of human rights; on the contrary, they bring human rights to an end. The end of human rights comes when they lose their end.³

At a period when the post-cold war optimism was at its highest, this prediction appeared at best foolhardy. It certainly landed its author into a lot of controversy. Writing less than two years later, however, after the attacks on New York and Washington, Michael Ignatieff, the liberal ‘human rights warrior’,⁴ seemed to agree and wondered ‘Is the Human Rights Era Ending?’⁵ Ignatieff feared that in the wake of the terrorist attacks, security would become the prime concern of governments and the age of human rights and humanitarianism would draw to a close.

Ignatieff ’s worry is typical of a certain type of liberal. The lofty claims of the last decade of the twentieth century about the ‘end of history’ and the triumph of liberal capitalism have been replaced, since 2001, with angst-ridden debates about the ‘clash of civilisations’. The new jus cosmopoliticum, ushered in after the triumph of the West, is now challenged, we are told, by terrorists, religious fanatics, suicide bombers and Islamic militants. Western governments responded by introducing draconian anti-terrorist measures, restricting immigration further and expanding surveillance from target and suspect groups to an ever-increasing part of the population. State practices, which had been universally condemned and had almost disappeared in the West, have become popular again. Torture returned in Western camps and prisons, most famously in Guantánamo Bay and Abu Ghraib. But torture is also extensively outsourced. ‘Rendition’ flights take suspects to secret camps in countries where torture takes place without embarrassment or restraint. Confessions and evidence obtained through torture are then used against others in clear violation of the legal principle that information obtained through the use of violence has no probative value, is morally reprehensible and should be legally inadmissible.

The post-Second World War Western consensus was that there are certain acts – torture prime among them – that liberal-democratic societies do not tolerate and their governments cannot do. In the West, torture was declared unacceptable and was discussed as part of a barbaric and long gone history. Torture, we were told, takes place ‘elsewhere’ only, in exotic and evil places, in dictatorships and totalitarian regimes. But this consensus has now broken down. Torture has become a respectable topic for conferences on practical ethics and the ‘ticking bomb’ hypothetical offers entertainment at dinner parties. What is particularly disturbing is the way in which lawyers, such as Alan Dershowitz, and liberal commentators, including the human rights warrior Michael Ignatieff among many, are prepared to enter into debate about the morality and legitimacy of torture and to develop detailed plans about ways of legalising it through ‘torture warrants’, ‘sunset clauses’ and judicial supervisory regimes.⁶ Ignatieff is interested in the gradations of torture as part of the ‘lesser evils’ strategy: ‘permissible duress might include forms of sleep deprivation . . . together with disinformation and disorientation (like keeping prisoners in hoods) that would produce stress’.⁷ Bruce Ackerman has opposed torture but supports the use of preventive detention of suspects and the introduction of an ‘emergency constitution’ for limited periods.⁸ The history of civil liberties in Britain and Northern Ireland teaches that while governments have few qualms in using real or imaginary emergencies to assume wide powers, they are reluctant to abandon them once the perceived threat has passed. As Lord Hoffman put it in the case examining the legality of detention without trial of terror suspects, ‘the real threat to the life of the nation comes not from terrorism but from laws such as these’.⁹

The end of last century was accompanied by excited discussions about globalisation, the subjection of the state to strict legal and moral rules on the way to its withering away and replacement by international institutions and cosmopolitan laws. Recently, however, the state has enjoyed a remarkable comeback. Salus populi, the paramount duty of the government, which had been forgotten in the wake of economic globalisation and the trumpeted pacification of the world, has re-entered the political lexicon. Suddenly our civilisation and way of life is in mortal danger. Extreme threats require extreme measures, something Western legal culture understood since Rome. The law and its principles must be suspended in order to be protected from lethal threats. Liberal politicians and commentators admit, a little embarrassedly, that security trumps human rights. Academics returned to the dark ruminations of Carl Schmitt and Giorgio Agamben, his contemporary disciple. The optimistic age of globalised hope has turned into the dark era of fear.¹⁰ The state of exception, the suspension of human rights principles, even the scrapping of the whole British human rights legal arsenal through the repeal of the Human Rights Act are on the agenda. As always civil liberties are the first victim of governmental fears and public anxiety.

Our predictions about the end of human rights seem to be coming true. This is a time for good people to defend rights against attacks by fearful and fearexploiting governments, indeed to defend them against liberals, such as Ignatieff, who have been seduced by the inducements of power and are prepared to jettison the cardinal principle of liberalism. But is the recent suspension of some civil liberties a radical departure from the legal and political order under construction after 1989? Was 9/11 a watershed in the creation of the new world order? Is Bush fils such a radical break from Bush père? It is arguable that important policies, strategies and plans introduced before the 2001 attacks have continued and intensified after the attacks. Afghanistan and Iraq were attacked partly in pursuit of the pre-emptive defence policy. But they were justified also as instances of regime change, ‘just wars’ to liberate Afghanis and Iraqis from warlords and dictators. They are a darker continuation of the ‘Kosovo spirit’ in which the West displayed a new willingness to spread human rights, freedom and democracy around the world. The failure and human misery brought about by these wars and occupations are well-documented. The End of Human Rights had predicted that the extravagant boasts about the dawn of a new humanitarian age would be accompanied by untold suffering.¹¹ The ‘victories for freedom and democracy’ in Afghanistan and Iraq have confirmed it. These victories have been drowned in a human rights disaster for the local people.

It is therefore important to continue the effort of the earlier book in the new climate, if indeed there is much ‘new’ around. Is there an internal relationship between the discourse and practice of human rights and our recent disastrous wars carried out partly in their name? Are human rights an effective defensive tool against domination and oppression or are they the ideological gloss of an emerging empire? To begin to answer these questions, we have to return to the tradition of human rights as developed and practised in the West over the last three centuries. Human rights have both institutional and subjective aspects. As institutional entities, they belong to constitutions, laws, court judgments, international organisations, treaties and conventions. But the prime function of rights is to construct the individual person as a subject (of law). Rights are tools and strategies for defining the meaning and powers of humanity. The human and its derivatives, humanism and humanitarianism, are all intimately linked with the work of rights. We acquire our identity in an endless struggle for recognition, in which rights are bargaining chips in our desire of others. The law and rights make a central contribution to the project of becoming subject through the reciprocal acknowledgement of self and the (mis)recognition of others.

The first part of the book links the subjective and institutional parts of human rights. The greatest achievement of rights is ontological: rights contribute to the creation of human identity. This function precedes and determines their protective role against public (and later private) power; it accompanies and colours every change in their form, content or scope. Rights have acquired ideological and legal pre-eminence precisely because they are so central in bestowing subjectivity and identity. This role has become dominant in Western postmodern societies, where human rights have become formal expressions of an insatiable and boundless desire (Chapter 2). Humanitarianism, the contemporary version of humanism, gives public expression to this role. For legal humanism, humanity has a rigid and static essence. Military humanism aims to spread it around the world. Humanitarian campaigns in the West, on the other hand, place the Westerner in the role of a saviour who rescues Third World victims from their evil compatriots (Chapter 3). The institutional importance and the accompanying problems of human rights stem from this role. When human rights become its means and object, politics is moralised, its ability to mediate conflict eroded. Post-political Western societies have abandoned – but not pacified – antagonism in favour of combating evil. People are divided into rulers, ruled and excluded. Human rights both record and uphold this hierarchy (Chapter 4). Rights offer defences against power. But they also increasingly target life and regulate parts of the body becoming major tools for the biopolitical operation of power (Chapter 5). The central concern of the first part of the book is to explore the paradoxical ways in which the ideal, transcendent position of natural law, natural and human rights has been reversed turning them into tools of public power and individual desire.

What are human rights?

In an article published in 2003, John Morss accused this author’s arguments of being ‘repugnant for a democratic and justice-based orientation to human rights’ and sought to ‘save human rights from its friends’.¹² Unlike Jürgen Habermas, whom Morss preferred, I was not particularly reverential and upbeat towards rights. At the other end, Stewart Motha and Thanos Zartaloudis concluded a careful reading of the End with precisely the opposite criticism. The book was too positive towards rights. Future radical politics would go ‘beyond human rights’ because their language distorts both difference and otherness and cannot lead to emancipation.¹³ A standard rhetorical trope in situations like this is for the criticised to claim that as he is attacked both from the right and the left, he must have struck the right balance. I cannot use such a defence. First, because I do not feel comfortable in the middle of the road, the place where people get run over. But more importantly, I cannot claim to be the prudent middleman, mediator or synthesiser because both criticisms are partly correct. The apologists expect from human rights much more than is realistic and neglect their side-effects. But it is not possible to ‘get rid’ of rights as friendly critics have insisted. To quote a key statement from the End, ‘human rights have only paradoxes to offer’. The paradoxical, the aporetic, the contradictory are not peripheral distractions awaiting to be ironed out by the theorist. Paradox is the organising principle of human rights for a number of reasons.

The many confusions of human rights theory stem from the semiotic and semantic openness of the term. The ‘human’ in rights is a ‘floating signifier’, ‘human rights’ is a thin, underdetermined concept (Chapter 2). The term has wide scope and reach, its semantic value and field of reference encompasses multiple, diverse and even conflicting practices and discourses. In terms of reach, ‘human rights’ denote, among others, a diverse group of constitutional, legal, judicial, academic and popular texts and commentaries; legal, political and cultural institutions and practices at domestic, regional and international level using human rights as their organising principle; governmental and nongovernmental agencies working around human rights; the personnel working these institutions; diverse campaigns, groups and organisations at various levels; the people involved in them; multiple situations, events and people who use the term in order to describe or evaluate these situations. While the use of the term in all these texts and contexts is not inaccurate, there is no theory, doctrine or empirical description that could encompass all these and give an accurate presentation of the field. In short, there is no single field of activity called ‘human rights’ nor can there be a single theory describing it.

The conceptual and semantic import of the term is equally broad. Let me enumerate some of its common and often contradictory usages:

1. ‘Human rights’ is a combined term. As rights, human rights are a legal category. Rights were the creation of early modern legal systems and constitute the basic building block of Western law. Broadly speaking, legal rights are relational. They involve an individual entitlement, for example, a property right, which (a) can be realised by the right-holder through the respective action of one or many duty-bearers who must act or refrain from acting in certain ways specified in the right (a property right creates a near universal duty in people not to interfere with others’ property) and (b) is legally enforced against duty-bearers if they do not perform their obligations. Human rights as legal institutions involve the diverse practices, languages, institutions, remedies and personnel of the law. Initially, their sources were found in state constitutions, legislation and jurisprudence. After 1945, these sources are increasingly located in international and regional conventions, treaties and case-law. The human of human rights, on the other hand, refers to a more or less concrete sense of morality, which accompanies the institution of legal rights. Formally speaking, human rights are a subcategory of legal rights given special status and protection because of the importance of the goods or actions they protect and promote, typically described as dignity, freedom and equality. Their study as legal rights belongs to the doctrinal and institutional discipline of law.
2. Human rights are moral rights or claims by individuals, which may or may not have been recognised by a particular legal system. They introduce certain minimum standards of treatment to which people are entitled and create a moral framework within which state policy, administration and the law should operate. The institution of human rights therefore combines law and morality, description and prescription. This often leads to confusion and rhetorical exaggeration. A South African during the apartheid regime or a political dissident in China today could correctly claim that they have ‘the right not to be discriminated against’. No such positive, legally enforceable right exists however. ‘Right’ in these statements does not refer to an existing legal entitlement but to a claim about what morality (or ideology, or international law or some other higher source) demands. It is the statement of aspiration against the current state of law or a call to arms for the reform of the political and legal system. In this usage, the moral element of human rights comes into conflict with their putative legal status. This confounding of t...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Prologue
• Part 1 The paradoxes of human rights
• Part 2 The normative sources of the new world order
• Bibliography