The Socio-Political Practice of Human Rights

Between the Universal and the Particular

Kiran Kaur Grewal

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317015185
• Edition: 1
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

This book examines discourses of rights and practices of resistance in post-conflict societies, exploring the interaction between the international human rights framework and different actors seeking political and social change. Presenting detailed new case studies from Sierra Leone, Sri Lanka and Kosovo, it reveals the necessity of social scientific interventions in the field of human rights. The author shows how a shift away from the realm of normative political or legal theory towards a more sociological analysis promises a better understanding of both the limits of current human rights approaches and possible sites of potential.

Considering the diverse ways in which human rights are enacted and mobilised, The Socio-Political Practice of Human Rights engages with major sites of tension and debate, examining the question of whether human rights are universal or culturally relative; their relationship to forms of economic and political domination; the role of law as a mechanism for social change and the ways in which the language of human rights facilitates or closes sites of radical resistance. By situating these debates in specific contexts, this book concludes by proposing new ways of theorizing human rights.

Empirically grounded and offering an alternate framework for understanding the fluid and ambiguous operation of power within the theory and practice of human rights, this volume will appeal to scholars of sociology, law and politics with interests in gender, resistance, international law, human rights and socio-legal discourse.

Part 1

The debates

1 The universalism/cultural relativism debate

Introduction

Why start this book with the old ‘universalism/cultural relativism’ debate? Isn’t this tired topic already thoroughly mooted and no longer worthy of another word being wasted on it? Certainly this debate and the various positions taken on it have been well rehearsed and seem exhausted. Yet it continues to haunt human rights practice and discourse and is arguably, ‘the most discussed issue in the theory of human rights’ (Donnelly, 2007, p.282). For this reason I will treat it as the first of the major theoretical debates with which Part 1 of this book engages.

The universalism versus cultural relativism debate reached its height in the 1990s. Since then it has undergone significant shifts. As anthropologists and sociologists have become more engaged in the field of human rights, there have been considerable efforts to move away from ‘archipelago’ views of culture (as static and discrete) towards greater focus on questions of power, agency, interconnectivity and flows (Wilson and Mitchell, 2003, p.9). However, these more ethnographic interventions have met with backlash from within the ‘mainstream’ of human rights for reasons I will elaborate upon shortly. Furthermore, the ‘cultural turn’ in global politics has meant that while some scholars have pushed for a shift in focus to questions of economic and social power, the invocation of ‘essential difference’ and Clash of Civilisations rhetoric continue to frame many debates about human rights around the world. This is fuelled not only by geopolitical realities and discourses (although this is a factor, as the Kosovo and Sri Lanka examples set out in Chapters 4 and 6 demonstrate). Critical scholars have also identified the constructed and partial nature of what constitutes ‘the human’. They have also pointed to the unresolved legacies of colonialism that continue to haunt human rights, making claims to an abstract universalism highly suspect.

In this chapter I will briefly track the development of the universalism versus cultural relativism debate. I will then explore how it manifests itself within current human rights scholarship and practice. Finally I will engage with the emergent critical scholarship that has sought to historically contextualise human rights within the postcolonial world.

The origins of the debate

Debates about the universal or culturally relative nature of human rights have been present since the earliest stages of their institutionalisation (Sharma, 2006). However, they reached epic proportions, fundamentally challenging the entire concept, in the early 1990s, when, following a meeting in the lead-up to the Vienna World Conference on Human Rights, a group of Asian nations produced the Bangkok Declaration. This Declaration, while ostensibly supporting the universality of human rights, placed great emphasis on the importance of self-determination, national sovereignty and economic development. The Declaration also contained a statement asserting that, ‘while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds’ (1993, para. 8). This largely captured the ‘Asian Values’ argument, which dominated international debates on human rights throughout the 1990s and also during the Vienna World Conference.

While explicitly rejected in Vienna,¹ the question of whether it was in fact possible to assert one universal set of rights triggered widespread discussion within both practitioner and academic spheres. It led to a flurry of responses. Some urged for greater attention to be paid to regional human rights instruments and mechanisms, such as the African Charter on Human and Peoples’ Rights (known as the ‘Banjul Charter’) (Mutua, 1995). Others critiqued the West’s focus on certain practices in the non-West that became classified as ‘human rights violations’ with insufficient understanding of the cultural and social context and significance of these practices.² Yet others asserted the culturally and religiously diverse philosophical bases of human rights and the importance of developing a more cross-cultural foundation for claims of universality (An-Na‘im and Deng, 1990; An-Na‘im, 1992). Finally, strong proponents of the importance of retaining the universalism of human rights set out to defend their position by asserting the shared experience of being human (Donnelly, 1984, 2007) and/or human suffering (Turner, 1993) as well as by highlighting the self-interested, essentialist and essentialising claims of certain non-Western elites in their assertion of fundamental cultural differences (Sen, 1997).

Through these engagements the terms of the debate have shifted, with both sides adopting more nuanced positions and with greater awareness of the possible dangers of co-option by self-interested elites on both sides. Yet, while the debate has somewhat waned it continues to influence both the theory and practice of human rights. I therefore provide a summary of the key claims made by both sides.

Reframing universalism: ‘relative universality’

A particularly prominent voice in the debate has been that of Jack Donnelly. A proponent of a universalist conception of human rights, Donnelly (1984, 2007) has nonetheless engaged with the cultural relativist position and as a result developed what he has called a concept of ‘relative universality’ over the last 30 years. His key arguments are as follows. First, there is a universal basis for human rights, which can be linked to the universal experience of being human. Added to this, the particular conditions of modernity – and the power of the state and the market – require a universal response that is not to be found in traditional cultures and societies. Thus, it is not so much the fact that human rights emerged in the West that is important but rather that they emerged in response to the experience of modernity. Finally, the need for some sort of universal set of fundamental rights has been recognised by nations across the world through their engagement with the UN system and their ratification of international human rights treaties and declarations. For Donnelly, the place for relativism is confined to the point of interpretation and application. He is therefore in favour of a narrow set of fundamental rights whose form if not content is largely indisputable (and indeed is not disputed in practice) by peoples across the world.

In many ways Donnelly presents a nuanced and powerful argument. Others have sought to complement his work by also identifying the shared experience of human suffering (Turner, 1993) as the universalising basis of human rights and by further elaborating on the scope within international law to balance a certain commitment to universalism with respect for diversity (Brems, 2001). I would also argue that this approach is the dominant one within the ‘mainstream’ human rights community (as my discussion in Chapter 4 of Amnesty International and Human Rights Watch reports will illustrate).

In response, critical scholars have also developed more nuanced arguments for why the assertion of ‘universal’ human rights remains a fraught endeavour. Faced with the argument that their questioning of the potentially oppressive nature of universalism provided support for authoritarian and violent non-Western elites (Sen, 1997; Afshari, 2012), there has been a shift in the ‘anti-universalist’ position towards focusing on three main critiques: first, the apparent universality of ‘being human’ and relatedly, the hierarchical foundation of the concept of ‘humanity’; second, the false universalism of Western liberal modernity; and third, the legacies of imperialism.

On being human

Some scholars have critiqued the apparently descriptive nature of human rights as simply the rights owing to all humans based on their ‘human-ness’. In her provocative series of essays entitled Are Women Human?, Catharine MacKinnon highlights the ongoing exclusions of women from the human rights framework, leading her to conclude, ‘in the perspective of human rights, what is done to women is either too specific to women to be seen as human or too generic to human beings to be seen as about women’ (2006, p.181). This is in spite of the sustained efforts of feminist and women’s movements to make the human rights framework more sensitive to gender and to recognise how the public/private divide that human rights has traditionally upheld has operated to exclude the experiences of women and the specific forms of violation they suffer (Bunch, 1990; Peters and Wolper, 1995).

Rather than this being a simple question of expanding the scope of human rights, certain scholars have argued that in fact rights produce and regulate the subjects to whom they are assigned (Brown, 2004, p.459). In the words of Talal Asad: ‘human rights are not simply found by the individual and invoked by her . . . they serve to define “the human”’ (2000, para. 51). While (as discussed above) Donnelly promotes human rights as the only effective response to the power of the state and the market, Wendy Brown sees them less as protecting against power but rather intricately implicated in the production of that power, a tool of governmentality, an argument to which I will return in Chapter 3.

Not only does this apply in the context of gender, it has also been asserted to link with the (re)production of hierarchies of civilisations and humanity. For example, for Talal Asad, human rights law is, ‘a mode of converting and regulating people, making them at once happier and more governable’, leading him to conclude: ‘As such we should not be surprised to find that human rights are used both as a justification for intervening against the perpetration of cruelty but also for justifying international action that is itself cruel even though it aims at a more peaceful, civilized, and empowered world’ (2000, para. 56). In making this argument Asad (1996) draws direct parallels between the language of ‘unnecessary suffering and cruelty’ invoked in contemporary debates about torture and war, and colonial debates about acceptable ‘civilising’ punishment of the colonial state versus ‘barbaric’ native practices of punishment.

Western liberal universalism

Asad is not the only commentator to point to the continuity between colonial discourses of civilisation and progress, and the contemporary language of ‘development’, ‘human rights’, ‘democracy’ and ‘rule of law’ (an issue to which I will return in the next chapter). The intricate and possibly inextricable relationship between contemporary articulations of human rights founded on a base of liberal political values, (Western) modernity and the project of European imperialism makes it extremely difficult for proponents of universal human rights to convincingly assert the benefits of such a concept without acknowledging the far from innocent and neutral context within which it has emerged.

If for Makau Mutua, ‘human rights and Western liberal democracy are virtually tautological’ (2002, p.39), Ratna Kapur adds: ‘the liberal tradition from which human rights have emerged not only incorporates arguments about freedom and equal worth but – and this is the core of my argument – it also incorporates arguments about civilisation, cultural backwardness, racial and religious superiority’ (2006, p.674). This historical baggage continues to haunt the concept of universal human rights, however much contemporary advocates attempt to avoid or counter it. Moreover it remains unresolved. Not only do critics point to the selective humanity that continues to be recognised within the human rights framework, there also continues to be an implicit understanding of who is the appropriate ‘agent’ and author of human rights and who is deemed the passive recipient (Spivak, 2004). This is facilitated by the way the story of human rights is generally told.

The ‘creation story’ of human rights

There are hundreds of anecdotal examples of universal rights being automatically associated with Western liberalism and constructed in opposition to the traditional cultures of the non-West. A recent book I reviewed charts the development of the international legal regime prohibiting sexual violence through European gender norms and Western feminist activism that is then characterised as ‘spreading’ to impact on the otherwise passive non-Western world (Inal, 2013; Grewal, 2013). Having conducted observations of numerous human rights trainings over the last few years, I am constantly amazed by the ways in which 10 minutes are uniformly dedicated to explaining how human rights are not a Western concept but found in principles in the other major religions. This is then followed by up to a couple of hours of history of human rights, which charts their foundation back to the Magna Carta and feudal England, the French and American revolutions, culminating in the UDHR.

This fairly standard narrative within human rights discourse does little to destabilise the idea of the West as the source of rights and the non-West as a site of tradition and culture, requiring intervention. As Balakrishnan Rajagopal notes, ‘[i]n the mainstream historiography of the human-rights discourse, the Third World’s “contribution” is seen as minimal’ (2003b, p.174). Even as the Third World is the primary site of deployment of human rights law, it is seen as playing virtually no role in the origin or evolution of human rights (2003b, p.172; see also Mutua, 2002, p.40).

An illustrative example can be found in a speech given by David Crane, former chief prosecutor of the Special Court for Sierra Leone (SCSL, the institution discussed further in Chapter 5). Describing the establishment of the SCSL, Crane presents the dilemma of an international prosecutor seeking to bring ‘justice’ to ‘the victims of a third world conflict’ (2006, p.1685) in a context where international justice, ‘runs smack into a brick wall when considering locally, culturally oriented justice vis-à-vis Africa’ (2006, p.1686). Crane reiterates the classic rejection of cultural relativism, stating: ‘African leaders can easily manipulate popular thinking by loudly declaring that the justice being imposed (and threatening the status quo or a leader’s power) is “white man’s justice”, playing upon the fears of colonialism as a way of excusing the rampant corruption and impunity that is Africa’ (2006, p.1686).

In response, he clarifies, ‘I am not here to say that we need to rethink our international standards to adjust them to meet cultural norms, far from it’ (2006, p.1686). He simply calls on the audience to give greater thought to how this barrier of ‘local attitudes’ may be overcome. For anyone who considers the ‘universalism/cultural relativism’ debate dead, Crane’s speech is evidence to the contrary. However, it is also informative to look at the ways in which he characterises the problem. First of all, he is very explicit in his assertion of ‘international standards’ both as universally applicable and clearly foreign to what he calls, ‘the third world’. Even when he is expressing compassion for those in whose name international justice is claimed to operate, he reinforces a divide between their ignorance and the superiority of international actors: ‘the tribunal is about the victims. They need to be listened to, informed, and involved. One of the essential implied mandates of the [international] tribunal must be to reach out, sensitize, teach, mentor, and to embrace the people, their culture, and their customs’ (2006, p.1684).

Not one of the interactions he calls for with ‘the people’ in whose name he claims to act involves a process of learning for him. They are all instructive in nature. Moreover his very use of the language of ‘white man’s justice’ (including in the title of his speech) invokes the colonial trope of the ‘white man’s burden’, used to charact...

Table of contents

• Cover Page
• The Socio-Political Practice of Human Rights
• Global Connections
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• PART 1 The Debates
• PART 2 The Case Studies
• PART 3 Retheorising Human Rights
• Conclusion: Reinvigorating the Radical Potential of Human Rights
• Bibliography
• Index