December 10, 2008 marked the 60th anniversary of the Universal Declaration of Human Rights. Since 1948 much has changed in the world: colonialism, by definition a systemic abuse of human rights, has largely been thrown into the dustbin of history although its grotesque legacies remain, while war, another unmitigated assault on human rights, and its aftermath continue to scar various parts of the world especially the African continent.
Today, more people enjoy more rights than ever before, but more people are also more aware of the limitations of their national and the global human rights regimes. Indeed, as the promoters of human rights have proliferated so have the perpetrators of abuses among state and civil society actors across the world. The state no longer has a monopoly on vice, if it ever did, no more than civil society has a monopoly on virtue in the protection of human rights; both are as likely to undermine human rights as to uphold them. Similarly, the domestic and international arenas are as much a source of inspiration and support as of much sorrow and grief.
Clearly, the contexts, challenges and prospects for human rights across the world have changed in some ways and remained the same in many others. Human rights discourses find favor in both political and popular circles, among the ideologues of the state and the interlocutors of civil society, a tribute to the enduring and unfulfilled yearnings for more humane societies. The contemporary world offers a complex tapestry of contrasts in which human rights, as rhetoric and reality, has never been more pronounced and yet remains precarious as claims for and contestations over these rights persist and take new forms.
The problematic nature of human rights is of course not confined to the practice of human rights, but is inherent in the very definition, the discourses of human rights. The tendency has been to divide human rights, to valorize some and dismiss others. I believe, quite strongly, that it is futile and unproductive to seal rights in strict confinements, to sequester them in dichotomies and polarities, for all forms of human rights are ultimately interrelated, interdependent, and indivisible.
Human rights discourses often suffer from four analytical traps. They tend to be idealistic, legalistic, dualistic, and ethnocentric; idealistic in that human rights are reduced to ideas abstracted from social history, so that they are seen as the outcome of concepts not conflicts, insights not instigations, philosophy not politics; legalistic in that their provenance is primarily located in the courts not culture, procedure not practice, rhetoric not reality, codes not contingency; dualistic in that they either polarize or prioritize civil and political rights against economic and social rights and vice-versa; and ethnocentric in that their source is usually located in the West by both the universalists and relativists.
The simple truth of the matter is that human rights have evolved out of concrete historical conditions and struggles, not simply textual or legal disputations, and they will continue to do so as human societies and needs change and new challenges and threats emerge, and there is no intrinsic reason that one set of rights-political and civil or economic and cultural rights-is inherently superior in promoting and protecting human dignity. Particularly unfruitful has been the debate between human rights universalism and relativism. The advocates and proponents of the two positions, whether framed in North-South oppositions or among radicals and conservatives within specific regions and countries, are essentially engaged in the production of ideological hegemony, each providing alibis for their respective governments and movements.
It is well to remember that during the Cold War relativist interpretations of human rights suited western interests in dealings with Third World dictatorships. It was only after the end of the Cold War that the global North became uncompromisingly universalist, now in pursuit of its neoliberal global capitalist agenda, which it was prepared to defend at the cost of violating the same freedoms and democracy it purported to advocate. In the meantime, leaders in the global South, boxed between western pressures and popular struggles for democratization and human rights reacted by espousing more and more relativist positions. Thus, different groups have supported the relativist and universalist perspectives at different times, rendering each one of them a potential tool of both oppression and liberation depending on the context.
Contestations of human rights are not new even within specific regions, including in the so-called western world where different ideological and political traditions and perspectives-religious vs. secular, liberal vs. Marxist, nationalist vs. internationalist, philosophical vs. pragmatic-have battled for supremacy for a long time. Indeed, it is ultimately counterproductive to turn the idea of human rights into ‘Western,’ ‘Asian,’ ‘African’ or ‘Islamic,’ for that turns the language of human rights into self-serving rhetorical or ideological contestations that have little bearing on historical realities and the challenges of constructing a global human rights culture.
Certainly human rights are not organic to or a natural result of a fictive western tradition going back to ancient Greece, a teleological narrative of retrospective appropriation that is fundamentally ahistorical and intellectually flawed. For EuroAmerica that has perpetrated some of the worst human rights abuses in modern times-from the barbarities of slavery, genocide, colonialism, the horrendous two world wars and numerous other wars-to claim human rights superiority is a travesty, a cruel joke. Nor can countries in the global South chafing under postcolonial dictatorships claim moral superiority either.
The division and hierarchy of rights emerged out of international ideological struggles after the end of the Second World War, many of them played out in the confines of the United Nations (UN). In the early years of the UN, the United States and its allies were dominant and they succeeded in splitting the proposed human rights covenant into two, one for civil and political rights (CPR), which they championed, and the other for economic social and cultural rights (ESCR), which found loud support in the former Soviet Union and among its allies and the emerging Third World, despite a resolution by the UN General Assembly that the two groups of rights were “interconnected and interdependent.”
In the 1960s many of the organs of the UN, including those involved in the institutionalization of human rights norms such as the UN Commission for Human Rights (UNCHR) were increasingly dominated by Third World countries organized around the Non-Aligned Movement. The early 1970s were the heydays of Third World militancy and demands were made for the restructuring of the international system. It was in this context that in 1972 a Senegalese jurist, Kéba Mbaye, proclaimed the right to development (RTD), which was adopted seven years later by the UNCHR. Soon other rights, for example to peace and a protected environment were added to the repertoire of what came to be known as solidarity rights (SR).
This gave rise to the notion that there were three generations of rights, a loose analytical construction proposed by scholars that soon acquired a rigid ideological life of its own that has been unproductive for human rights discourse. According to this schema, CPR are first generation rights apparently rooted in eighteenth century bourgeois revolutions in France and the United States (never mind that in the U.S. many CPR rights like the right to vote only came in 1920 for white women and in 1965 for racial minorities); ESCR then constitute second generation rights and their paternity was awarded to the socialist revolutions of the early twentieth century (forget the strong commitment to these rights by the Roosevelts that was overtaken by anti-communist paranoia in the U.S. in the 1950s); and development rights are supposedly part of third generation solidarity rights that emerged from anticolonial revolutions after the Second World War (how about earlier nationalist struggles in nineteenth century Latin America and elsewhere also motivated by the desire for national independence and development?).
It is often said the first generation rights are negative rights (requiring states to protect individual autonomy and freedom), while the second and third are positive rights (requiring states to promote collective well-being). These distinctions are not entirely false. Certainly western countries have been the chief proselytizers of CPR, while ESCR found particular favor among socialist countries, and RTD is deeply cherished by many in the global South including Africa. Their implementation also entails different things, in the case of CPR limiting state intrusions while in the case of ESCR and RTD expanding state interventions. Broadly stated the former are freedom claims the latter resource claims. But there is really no Chinese wall that separates these claims in terms of their spatial provenance, let alone in their import for human dignity and security.
The search for hierarchy among rights is not only driven by ideological contestations, but also by the fact that the hierarchization of norms is common in national legal systems. It is extremely difficult to create widely accepted criteria or standards to choose between what some see as fundamental human rights and other rights and select the fundamental human rights. More often than not, the characterizations of fundamental rights pander to subjective preferences based on national traditions and aspirations. This is one more reason for jettisoning regional ethnocentricities and developing bases and processes of norm setting that involve as much of the international community as possible.
This is what is sometimes called an interpretive approach that valorizes cross-cultural dialogue as the most viable means of constructing an international human rights regime. Some believe that the proliferation of human rights instruments makes it necessary to establish a list of nonderogable rights and ranking such rights ahead of derogable rights. Others argue that it is critical to abandon any classification of human rights, and approach the implementation of each specific right on its own terms, instead of limiting it to what is deemed appropriate for one purported class of rights or another.
There can be little doubt that at the moment no country enjoys human rights in their entirety, that the development of human rights cultures and practices is still a work in progress across the world. The internationalization and universalization of human rights is an ongoing process to which all world regions and cultures will continue to make contributions. Surely, internationalization must imply transnational engagements and intercultural discourses on human rights, while universalization should entail acceptance, in principle and rhetoric, of human rights norms in all their diversity and interconnectedness, and their inclusion and implementation in national legal systems and political cultures and international relations. In other words, it is not enough to uphold certain human rights at home and abuse many others abroad as countries in the global North including the United States notoriously tend to.
Ultimately, human rights must be based on the idea of ‘human dignity,’ which is ridiculed by some as characteristic of societies that have yet to develop a concept of ‘human rights,’ for this is the only thread that connects the world’s different religious, philosophical, and cultural traditions. And human dignity for the human person with his/her multiple dimensions must surely encompass multiple rights, which in current discourse must include civil, political, social, economic, cultural, development, and solidarity rights.
Barbara Crossette has an interesting commentary which expounds on the continuing ideological struggles over human rights between and within the global North and the global South.
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