The Future of Human Rights

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ALTER NATI VE LAW FORUM ... ., .. r. H Y

J22/4 , Jnfcanll)' Rvau. B'lon~.l ACC Nu ' --- ~_7

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The Future of Human Rights Second Edition

U PENORA BAX]

OXFORD UN IVSa.S ITY 1'1.855

Contents

Atkllowltdgt>mfflts

"

Prfjace

nu

AbbrtvitJrions

xxv

I.

An Age of Human Rights?

2.

Two Nodons of Human Rights: 'Modern' and 'Contemporary'

33

3.

The Pnctices of 'Contemporary' Human Rights Activism

59

4.

Too Many or Too Few Human Rights?

%

5.

Critiquing Rights: Politics of Identity and Dirre~nce

115

6.

What is Living 2nd lXad in Relativism?

160

7.

Human Rights Movements and Human RIghts Markets

200

8.

The Emergence of:m Ahenute Paradigm of Hunun Rights

234

9.

Market Fundamentalisms: Business Ethics at the Altar of Human Rights

276

Bibliography

303

Author Index

330

Tllmlt I"do:

336

Acknowledgements I dedicate this book to the lamented Neelan TIruchdvam, a friend fOf ~r three decades. Ncelan-S2n (as I used to fondly c211 him) strove w preserve a distinct and aUlhentic postcolonial, future for the rights of 'minorities,' as a mode of entrenching a hutnatle future for human rights. He declined the prerogatives of:l. safe globalizing expatriate life as a way of making the futu~ of human rights mo~ secure; and he lived and died close to the seem: of crime, as it were, :against human futurcs. This dedication speaks to his living pmrnct amidst IlS, a lumino us presence for the tasks of reconstruction of alternative human rights futures . This work owes a great d eal to the stimularion offered by my students at Sydney University Dep2rtmcnt ofJurisprudence and International Law, Delhi University Law School, Ouke Law School, W2shington College of Law, NYU Global Law Ptogr:lm. the Law in txvelopm~nt Prognm at th ~ Warwick Law School, and the National Law Schools of India (NLSUl at

•

Bangalott, and th~ NALSAR at Hyd~f2bad .) As a work in progress. various th~matlc! of this work ~tt presented to seminars and colloquia: Th~ Indian Academy of Social Scien~, Pune Congress; The Ausrralasian Law Teachers Gold~n Jubilee Symposium ; the University of La Trobc; th~ Universities of Copenhagen and Lund; Th~ ~ntre of Ethnic Studies. Colombo; The ~ntre of Middle Eastern Studies at Princeton University; Th~ University of New York Law School Faculty Workshop; The Harvard Human Rights Progrunme Roundt2bl~ on Human Rights and Univ~rsity Education; the University of Warwick; and the R~~arch School of th~ Australian National Uni~rsity, Canberra. I must here especially m ~ ntion the sinb"lliar honour done to m~ by the University ofEsscx Human Rights Centre day-long interdisciplinary discussion of the first edition of this work. Many distinguished colleagues hav~ been generous with their comments on the thematic of this work. Professor Satyaranjan Sathe (my teacher at Bombay University) al~rted m~ to th~ perils ofinfdicitous styl ~ of writing. Professor Lord Bhikhu Par~kh was warmly supportive all along. Professor David Kennedy (Harvard Law School) in presenting an early

x Acknowledgements

•

paper on the thematic of this work at the NYU Faculty Workshop gt:ntly reminded me of the heterodoxy of my footllote citations. queried the viability of many binary distinctions' draw (especially in the ~nre of 'progress narratives') and raised the important issue of how far my work may be said to belong to the conventional corpus of human rights scholarship. Professors Nonnan Dorsen and Ted Meren, at the same event, wondered whether the appropriation of human rights languages might not be, after all, a 'good' omen for the future of human rights. Other distinguished participants at the faculty workshop (notably Professonl mnk Upham, Christine Harrington, and Ruti Teitel), who, while agreeing with my notion of trade-related, market-friendly human rights, interrogated the ternlS of description. So did Professors Nathan Glazer, Henry Steiner, and Peter Rosenblum at the Harvard Human Rights Programme p~ntation.

Professors Bums Weston and Stephen P. Marks raised Ill.my friendly interrogations concerning my distinction between the 'modem' and 'contemporary' human rights paradigms. Bums remained agonized by my distinctions between 'markets' and 'movements' for human rights and the languages of commodification of human suffering. Steve insisted that' name my 1999 contribution to their c~ited volume as ' the voices of suffering.' Professors Talal Asad and V«na Das raised (at the Princeton Seminar) questions concerning the adequacy of my understanding of anthropological approaches to human rights. The lamented Professor Dorothy Ne1kin (with whom I had the privilege of teaching Law and Science seminar at New York University Law School Global Law Program) offered detailed comments on an early draft of Chapter Eight. Professor William Twining has graciously nudged me in the direction of understanding the fonnative traditions of analytic and comparative jurisprudence in its relation to contemporary globalization, a difficult task which I may, I have realized, addressed morc fully. Professor jane Kelsey (University of Aucldand) remained all along warmly supportive of this difficult project. Besides jane, among other activist friends with whom I have had the privilege of working for decades are: Dr Clarence Diu (President, International Centre for Law and Development, New York); Dr (Ms) Vasudha Dhagamwar (Director, Multiple Action Research Group, New Delhi); Ms Shulamith Koel1lg(Executive Director, The People's Decade for I-Iuman Rights Education, New York); Smitu Kothari (Lolcayan, Delhi) ; Wud Morehouse (Presidcnt,lntemational Council for Public Affairs, New Yew York); Ms Rani jethmalani (a co-founder of WAR LAW, Women's Leg:al Action and Research); Flavia Agnes; Dr (Ms) G«ti Sen (who sought to

J

Acknowledgenlents xi

educate me concerning the ..esthetics of human rights); and Vandam Shlva, and Martin Khor, and all his colleagues at the Third World NetwOrk. who, have (perhaps unbeknown to them) helped me to sustain many a pracace of unsustainable thought. The a:knowledgement of activist friends remains mcomplete WIthOut the mention at least of some activist judicial friends: justices VR. Knshna Iyer, P.N. Bhagwati, DA Desai, 0. Chinnappa Reddy (India), Ismail Mahomed (South Mrica), and Michael Kirby (Australia) . Ismad embodied v.as t j~ristic energies [hat resituated many unfOlding futures of human nghts 111 a post-apartheid South Mrica., and beyond. Michael continues to srmbolize the oases for hunun rights futures for the still despised sexualitJes and for human rights of those affiicted by the AIDS pandemic. Till t~ay, ~ remai~ moved byChinnappa's adoring reception of my first major article The Little Done, The Vast Undone: Some Renections on Reading Granville I\ustin's tnl ltulian ConstilIItion: A COmtntOIU! of t"~ Nation' published in late sixties in thejoumal oflh~ Indian Law IlwiW/~ and hi~ extraordinary jurisprudential labours\feats at the Supreme Cou'; of lndia ha:e .in tum innuenced a ~at deal my approaches to human rights thmking. Fr~m Praful Bhagw.m I learnt a good deal concerning the vinues of the ~ractJces of human rights utilitarianism. Dhirubhai (D. A. Desai) cxcmph~ed a p:ofile injudici~1 coura~ in his rohust pursuit of the rights of the dlsorgamzcd and orgamzed labour in India. And to Krishna, above all, I owe: eternal gratitude for his tempestuous summons to attend yet further to the agendum of the 'little done, vast undone'. I renuin fully aware of the dangers of under-acknowlcd~ment of this necessarily briefarchival. . ~~ny activist friends at the Bar, fortunately too numerous to Illcmion II1dlV1duall~, tuvc contribu~ed a great deal to my understanding of the w:l.YS of production of human nghdcsness in India. To the Oxford University Press notably to [he Commissioning Editor and r::' h~r colleagues I owe: enonnous debts for copycditing and indulgent publication schedule. .While conventional protocols require acknowledgement of my authorship of this work, it remains a composite creation. The heavily silent burdens .of the labour of this writing have been gnciously as ever borne ~ my ~fe Prcma. I owe some distinct debts: to Bhairav nuny thanks for ~IS culinary mischief; to Pratiksha for bringing more fully in view tile Im~rtal1Ce of the distinctive practices of activist feminist ethnography of Indian I~w; to Viplav for his constructive scepticism concerning my unders~ndlllg of the .processes of digitalization; and to Shalini for her syrnph~l1Ies. I have Simply no w:l.y of knowing how our granddaughter P:.tnpooma (now abut five years) and her brother Sambhav (now 23 weeks

xii

Adcnowlc:dgtments

young) will r~ad this work in th~ir early teens, hopefully at l~ast out of curious affection for a vanished gnndparent! Without diminishing in any way any of these individual and collective debts, I need to say that the work in your hands owes, in ways beyond mditional labours of authorial acknowledgcm~nt, to the mAl au/haN. If th~r~ is anything cr~ative to this work, it owes to thr« d~cades old association with social action struggk for th~ human rights ofsubordinated peoples at divel'K siteS, within and outside India and in particular to the heroic struggie of over 200,000 women, children and men afflicted by 47 tonnes of MIC, in the Union Carbide orchcsmted largest archetypal peacetime industrial disaster. From them, and the geographies of injustice constituted by th~ 'organized irresponsibility' and 'organized impunity' of global corporations, I hav~ learnt more about human violation and suffering than the work in your hands can possibly ever convey. I accordingly also dedicate this work to the $uffm'tlg oj till: just, by no means an abstract ·category.'

Preface

The warnl reader response that necessitated as many as five reprints of the fif'S[ edition of this book withill a year and a half of its publication was a.lso accompanied by some distress signals conc~rning the terseness of prose. This revised and enlarged ~dition substantially rewrites the earlier eight chapters. Moreover, a new chapter has be~n included which addresses the recently proposed United Nations nonns concerning human rights responsibilities of multinational corporations and other business entities. This, then, may be considered a new text. I address, in tile main, the future of protean forms of social action assembled, by convention, under a portal named 'human rights'. This work problematizes th~ very notion of human rIghts', the standard narratives of their origins, the ensemble of ideologics :animating their modes of production, and the wayward circumsunces of th~lr enunciation. It revisits the contingent power of the human rights movement. True, many a human rights wave llounders on the rocks of sute sovc:reignty. Yet, these very waves, at times, g:nher the strength of a tidal wave that cmmbles th~ citadels of stale sovc:rdgnty as if tlley were sandcastles.

Rewriting Human Rights Pasts No contemplation of open and diverse human rights futures may remain innoccnt of their many histories. Pre-eminent among these remain the myths oforigin that suggest that human rights traditions are 'gifu oJtht W6I' It) tht mt'. The predatory hegemonies of the 'West' itself compose, recompose, and even revoke, th~ 'gift', Of course, neither the 'givers' of the 'gift' nor its rec~ivers constitute any homogenous category; nor is th~ 'gift' a singl~ or a singular tr:ansaction. The languages of 'gift' also invite the attention to its other: the curse. ~rta;nly, the classical model of human rights emerged as a curse for those viciously affected by colonialism :and imperialism and this work offers many other instlllces. The patrimonial narratives of human rights origins also fctd the worst forms ofcannibalistic power appetires in some non-Euro-American societies. Far too many

xiv

Preface

Preface

South regimes even reject the u nderl ying affirmation of the equal worth of aU human beings, as if this were a 'unique' Euro-American heritage! Authentic inte rcultunl, or even interfaith, dialogue remains a casualty o f warped approaches to histories of human rights ideas and practices. If human rights conceptions are a 'Western' gin, those inclined to presel"Ve this 'cultunl treasure' have much to le;rn't from 'Walter Benjamin's poignant aniculation: There is no document of human civilization which is not at the same time a document of biJ.rbarism. And just as such a document is nO( frtt of biJ.rbarism, barbarism al$O taints the manner in which it w.lS tr:msmitted from one owner to another.!

An alternative: reading o f histories, towards w hich this work hopt:s to makc= a modest contribution, insists that the: originary authors of human rights are people in struggle and communities of resistance. The pluralintiOIl of claims to 'authorship' contests all human rights patrimo nies, and inte rrogates the distinction between the formsof'progressive:' and 'regressive' Eurocentrism. Both forms lUask the: suppression of alternate histories of the no n-European O ther, its distinct civilizational unde:rstandillgs of human rights. Nei ther fully recognizes and respects the ways in w hich the: peoples' strugglc=s have: innovated traditions and cultures of human rights. ~ also, thus, discover the truth that III 1M tasks ofmJ/ization ofhurflQn rightJ all JXOpfa, and aU M tioru, am"" Q$ rqll4f Jlmngm: and that from the: standpoint of the: rightless and suffe:ring peoples everywhere all.sociniD remain undu-

tkvstIcptd/tkvtWping.

Statecraft and the 'Traditions of the Oppressed' The development of human rights remains ineluctably tethered to statecnft. Forms of power and domination provide: the chronicles of contin~ncies o f the: politics of governme ntal and intergovernmental desires. At the same moment, resistance and insurgencies also rc=constitute the political, increasingly in terms of human rights-oriented ima~ries of societal and global development. ls it then an egregious erro r to study human rights as mere: aspects of statecraft that ahogc=ther fail to take acCOllnt of the 'tnditions of the oppre:ssed'? The politics of human rights treats human rights languages and logics as an e n~mbl e o f means for the: legitimation for governance and domination ; it only universalizes the powers of the dominant in ways that l

Waltef Benjamm (1968) 256.

xv

constantly elsewhere reproduce human rightlessness and suffering. Against this disposition, stand arrayed, the practices of human rights activism, or the polidcsfor human rights, e nacting many a ' militan~ partlculaflsm' of the local ag:Iinst the global. 2 HOWl"Ver, even such prxuces remam effete in the eye offuture history unless we-human rights and social movement aClivists--e:llldidly acknowledge that: The tndition of the oppTC55Cd lCKhes us mat the ·state of emergency", in which we live is not an exception but the rule. We must atuin to a conception of history that is in keeping with this insight. Then we shall durly rtallZC that It is our task to bring about a real state of emergency; and this Will imp~ our struggle against Fascism. One reason why F:lSCism !u.s a chance is that, in the name of progress, its opponents treat it as a historic norm. The current amazement that the thing:; we are experiencing :u e 'sriII' possible in the twenrieth century is not philosophicaL The amazement is not the beginning of knowledge-unless it is the knowledge that the view of history it gives rise to is untenable.)

Human Suffering and Human Rights Rewriting the past of human rights remains important for any e:nde:avour at remote sensing their futures. Many a paradigm shift has occurred since the enunciation of the U niversal Declaration o f Hun un Rights (UDHR). New criricallanguages such as the: feminist, ecological, critical race throrist have vastly transfonned the: practices of knowledge and action for human rights. At the same: time, the fonni!bble languages and the dialects of'ncolibenlism' (more: accuratdy, the 'post-Fordist authoritarianism' ).~ which now steadfastly foster the conversion of human rights movements into human rights 'markets', inevitably commodify, in the process human! social suffe:ring. I trace in this work, in particular, the paradigm shift from ~ Univcnal Declaration ofHuman Rights to that oftrade-related, nurketfrie:ndly human rights, now further aggravated by the conCUrRnt forms of the: WIlrof'tnTor and the: WIlron 'tnTor. Both these 'wars'blightthe futures of human rights in vario us ways and forms.s As if all this was insufficient 2 I articulated Ihis distinction between the polirics ".!andfor human rights in my activist moments of work in India in the foliOONing way (hopefully relevant 10 performances of human rights education elsewhere): 'Mohandas Gandhi i,ll/mud India; )awahatlal Nehru then distovmd India; their followus, in tum, proc:eeded 10 appropnatc India th us invented and discovcred; the task now 15 to re-approprb le India from Its expropriaronl'. 3 Walter Benjamm ( 1968) 257. 4 George Steinmetz (2203) l23-45. $ The posl-9!11 'wan' threaten with extmcbOn the hitheno accepted international flw dISCOUrse distincbon bctwttn intemnional hUlMniwri4ln flw and intcrnarionaJ

XVI

Preface

Prc:face

provocation to the dominant human rights discourse, I revisit tht: troubled historits of relationship between human sujfmlfl and human righlJ. Obligations to minimize human suffering emerge in contcrnponry human rigl1ts discourse as slow 1110tion, rather than as Cast-forward. kind of sUte and public policy orientations. The generative gnmmars, as it were, of human rights dissipate hwm.1I and social suffering, at times to a point of social illegibility. The most stunning example stmds furnished by the recent (23 $(:ptember 2(04) Independent Expens Report to the United Nations Sccrctuy Genc=ral concerning the implementation of the Millennw Goals. It. undcrsundably, sets the most meagrt' standards, slated for attainment by 2015, for 2CCCSS to the basic minimum needs for the poorest of the poor of the world. The wise women and men, acting as loco parmtfi for the 'wretched of the earth', speak thus guardedly only to the distant future for the here-and-now righllw peoples for whom international human rights enunciations appear as a series of callous governance tricks and subterfuges. Even amidst the 'war ou terror', against the nomadic multitudes 6 that now wa~ myriad 'wars of terror', the portfolio of the 'progress i~ implementation' of the social and economic remains cruelly thc= same as ever before. In thc= mc=antime, innumC=r.lble histories of human suffc=ring criss-cross and co-minglc= with the historicity of thc= pre-9f11 and the post-9f11 Grounds Thc= newly instituted political hc=nneneutic ofcollective human security haunts any S('nsc that we may have, or develop, concerning the futurc=s of human rights. It invitc=s. all over again, attention to the ways in which the scattered global hegemonies of the eclectically fostered human rights nomlS and standards retain an enormous potential capacity to reproduce human/social suffering. Perhaps, the future of human rights depends on how the 'reason' of human rights may after all discredit the 'Ullftason' ofsute

uro.

~ts £rw. It diSturbs. and even destroyS, the ~ry foundatklns of mternational comity. The ti~places of Ixxh the 'wal"l' render obsoIcu- the GrotLan doctrane of ImIptJPnltPWL bdli, ""itich, in Its ongm and development. simpl); yet p perished, at the altar of Social Darwinism, many a language of 'progress'. The question then arises whether hurn.:l.11 rightS languages will also wither aw.llyand what may take their place. Far from being unreal, the question is already heavily posed to us by the movement of global capitalism and technoscie nrific modes of production. The future of human rights talks remains haunted by an inadequate understandLllgofthe various fateful impacts of meg;l-science and hi-tech that now constitutes the materiality or the productive forces of contemporary globahz:ltion (the new forces of production symbolized by digitalizations, biotechnologies, and the emerging nanotechnology) and the attendant fonns of human rightlessness. These redefine the bearers of'human' riglllS, or reconstitute. yet all over again, the 'human'. IS

12 By ·nature'. [ mcan here, pnmarily, distinctions madc between ·cnforccable' and not directly 1ustlCllblc· rights. By 'number', I re(er to Ihc dlstmctlon be"tw('(Cn ·cnumCl"lltcd' and ·uncnumcl"lItcd· nghl'i. the Inter ofte"n anlcuiatcd by prxticcs of)lKhcul xtivtsm. Uy ·I"nns·. I mdlQte" herc the scope of ngllts thus cnshrmed. gIVen that no consrituuonal gtUDnttt of human ngllts may confcr ·absolute"' protection. The 'negotiauon' process Ii mdccd complex: It refers 10 at leasl three diStinct, though rebtcd. aspens: (I) JudiCially upheld defimtlOllS of ground5 of reSlnalon or regulauon of thc scope of tights; (2) Icgl5buvely and exccuuV'Cly unmolested JudLcil,J 1I1tcrprecltlon of thc meamng, contcnt, lind scope of nghts: and (3) thc Wples emer~ only as uaffalt'5 before C01nprOnllS structures ofaccountabiIity, in the shaping of which they are accorded no primary voiu. Their testimony becomes the raw material for 'natio nal rc~ construction'; their primary suffering and violation becomes ' nationalized 7) Sec Marc Oskl ( 1997): H arvard H uman RIght! Prugnm (1997):

pl"1~ilb

D. I.h yner (1997>: John Duggar I re IS an nn pu.'iC to tnnsform tillS ~ ulTe:tlng into a monl COIkctrvcIY~~n ~here a WAy III whICh Ou rkllCIIII', COnten tIOn, thaI pain shared 1liiy be r.... trarufonned to bear WIllies.. to the monl hfe: of the comlll ullirv .,. IIIDunon ....theUTtec!Cd>. 10 Wm. t l)otlOI1S 0 f creallOtl of monl coTIIlllunrty lrnIy we State :mel SOCiety in the fx-e of such terror? Vttna Das (1995) 19()..1.

32 The Future of Human Rights

, I'd ' I trivcs rise both to the figuratio n of thlt J 1011'" Pcrlll.ps thIS 50 I 2ntya so 0" 'b I 'n • I way 'phenomenon ofovertn una IZltlon .

O mptllS4lorand lh~~t 1: run~ f the day, 'the escajX into unindlcublhty'''' cn Both. in tunl, Slgtlh 7' at f g1e ob rv\Wf':T that cause egregious hUl1un, and for the very sources 0 a 1" - " •• . violation. Unless these causative. even ongmary POII'f'rs oj human nghts. d ' __~ by the power of human nghts to prevent 'tlditlJi tllil stan conlTOlllrU . d I b the ·ulOre of human rights must, rem:u n cep y 0 scure ''umn ' d lCt2'b'I''Y' I I , I'

t

2 Two N otions of Human Rights 'Modern' and 'Contemporary'

as well as insecure:.

I. Authorship and Ownership he dominant discourse presents the very notion of human rights as 'me gift of the West to the Rest', Not merely arc the terms used here problematic. but equal ly SO is the posited relation among them which is susgestive of a twofold capability/ prowess in the 'West' of independent oriamation and of graciolls generosity, I lowever, the meuphor of 'gift' rcnwns radler esotenc w hen we recall its preconditio ns for generosity include wholesale theft of nalions and enslavement of peoples in the fouoding moments of colonialism 1 and in some recent mo ments of ncocoIonw ckvclopment, where the 'gift' emerges 111 terms of new form s of wa.a1agc, lIlc1udmg the regimes of trade, aid, development, and human ritrhts conditionality. 1bc notion ofgiftasa unilater.1I action complicates tbe anthropologically 9aIidated nature of gift as acts of reciprocity among coequals. And I do not nm begin add ressing the question of distinguisiling lx:twttn 'gift' and 'CUJ"sc'; mol[ is, when the rt:trosp«tivdy constructed 'gift' of human rights IIands accul3Cd by coloninrion in its myriad forms. Nor do I pursue here -specific undersunding of the epistemic violence involved in lumping totDether vast masses of humanity, cultures, and civilizations. going lx:yond - bistoric time of the 'West' and somehow constituting the 'Rest' and, analogoUSly, the undifferentiated ideolOGical reduction aflhe constitutive ~ns of the West,.21hcing these. and related aspects, remains the task . a future work, but this chapter addresses, in bold outline. the inherent Violence of the paradigm of the ' modern ' human rights.

T

I ,

_

' "',;&ctkcs of tonquesl and eoloni7.atlon relilaln Inconeeivable of descriplion in any

2 allgll;tge.

be ~ofeso;or Istv;tn

Pngany, Illy

dl~hnguishcd colleague al \Xr';\lWICk. oflcn $3YS that

~ Euro..~ecogtl1tt an)'lhmg Ihat he knows of EUropinur\ through which European humanity passed' 011 the way tow:l.rds 'its modernity' .18 Such consciousness 14 Thl5 15 a typically H.ortl~n deScription; Sec, Rlcll1rd I ~ Sec, Alan GcWlrth (1996) 71- 165.

Rort)' (1999).

Sec, Uob Jes50P (1990): Nicos Poul~ntUtS (1978). 17 Peter fittpatnclt (1992, 20(1); CostaS Ooutmu (2002).

16

•1 Emnunud I..cv1nas (1987) 119.

Human Rights 39

ofhurnan rights that occurred in the non-WeStern societies is said to be purely due to the patterns ofImposition and diffUSion of the Enlightenment )del!> among them. It was the mimetic adaptaoon of these Ideas that enabled, ~cn empower~d, th~ ~lon-WtSt commumties of knowledge and pD" countcrpan in the DoctrlDc , unredeemed by ,'" prmCiples of .L . "- __ .L _I, " . .L - ,. r world, U"" ..............1.. In UlC VJslon 0

~

~ and forces other than idcoq,'Yalso mflucnced the poliocs of 5upe~r

~ss;,bc7fior mfluenct also rmrked the Impenal scramble rorworld resourca'

Uai.ed';:Sl uds, IlOQbly ods, mmenls, forest W'Ca lth, IIItc~tlo[\,J1 WltefWlly.'l· ~ A~ns C}u,~r was, thus, obscenely mampulucd, for example in ~ .......... _ ' , w- fl a, Congo and t"'-. .. ~ • _~_ 1m '. ' ' ....5t ""Ian •Ctlse5- rnana~mem' 111 superpower pcn;Ulsnl HIQtmtro tsclr II h of $Clf..d..: ' I a over ag,ull 111 t e pby or the theory and

·tcmllnanon, The dccololllzmg world w.lS m thc process ""'" ~""'in lIcoIoruu tlQI1. Sec Adllile Mbc be ' ,.- -",.. , -~ of the 'sPCfi' fi m (2001) ror a VIVid ana ly.'ll~ III Ihe MriQn N" ..,,, I hCl IC orm or moblll u uon or space and «'SOUrce" , t lin t e ltanCC, Or. It may J,cqUire features of rcsistance wlthOlit coming ncar the richness of the notion of ~trugglc:,llI In a world of historic MarlClan/soclalist mo ment, the keyword was 'Strt1ggk', In the post-Marxian world, we trade in symbols so value-neutral a~ 'movcIllcnts,21 or Ideology-lInbued notlOI1S of'reslstance',22 My chOice of ~ temt 'activism' aim!> at eomblfllflg elements of 'struggle' and 'reslstancc III way:. that allow bC)lh 'obj ective' social theory-type descnpttoll as wdl llluts as deference to the subJcctlVines of peoples III struggle and commu ill resistance, In this I almost wholly follow Michel Foucault who ', I effects 0 tains thaI stmggles, properly so called, are 'an opposition to I Ie ts power linked with knowledge, competence, and qllaliflCatiOn-struggl agaUlst secrecy, deformation, and mystifying representatton IInposed on

"WO'r

,21

1 peope, ,'I'oriC Thefouffh, and related b ut dlstmct, question concem s the: SOClo- list origllls o f human rIghts actiVism, t Ihl'~ ISSues.

19 Rlchnd Pierre Cbude (2002) provuk5 an cnS"smg d I"cU5) IO!l" 1vill u~111 ~lll' I-' :10 The dlSlmCtlOn~ dr.Jwn here W1l1, [ hope, b«omc ck~r III t h c 'u "lq " uffered In thiS chaptcr. UI'CuJp ~ 21 !>tt, M;!.nuel Dstcl1, ( 1996), and for loOlllC nuJOl' dl .... gr«Illunctio n belWtell

~ d tfu(w ral forms of human nghts activism remalllS of pal'2l11oum

S Episodi( h uman r~gh~ activism, that responds 10 here-and-now ~d human rights. Vlolatlon, crUCially dlfccted to dlll1l1l1sh lived!

"... an

::::;-tcd

human suffcnng, mayor may not assume the Visage of a human Nor may it address the structures of human/social ~,S/nIC/ljral human rights activism that :lSplfes to state and suprastatc ~ reform attends, in the mai n, to the causation (and, hopefully, mtrasaJ) of human righdessn('Ss; its intentiorulities and impacts remain Ilwayl mdcterminate. It re,lrui~ open as ,well to the approprianon--even .-imi1ation-af human n ghts msurrecuonary langu~ mto the heavy .... of gowlTWlce. Ferbaps, this distlllctio n remains one of degree, rather than ofland, To . . rather large examples, episodic activism combats practices of hostile ..... discrimin:Hion and violence and practices of torture 011 a day-to. , . . . in the expectation that incremental progression (now curiously ~. 'gender mainstreaming') in human rights culturc Illay thus be .. c r.t. whereas structural activism blueprints deSigns ofsocial , cu ltural, _potick:aJ revolution (macro-level transformations) that seek to dimi_propensities fo r human, and human rights, vloJatton, The asplTation ".programmeof actio n writ largt' 0 11 the Convention o n Elimination IIfDiIcrimirution Against Women (CEDAW) (the Women's Convention) . . . . . a most conspicuous res ult of structul'2l humnl rights activism, Iwbuus (as Pierre &urdicu described modcs of ~uled disposi-).: or the matrlccs, of human nghts acuvism matters decisively for . , ~plation cona:mi,n g the future of human nghtS: thus, for exb grc;!.t decolomzauon m ovementS-the harbingers of'contem ~J' tunan rlghts-differ very greatly from some current movements -l'CnWn heavi'Iy resourced by m:e~as aid, trade, and development Plllir:itsand --1ICadi programmes and by multlllauonal corporate philanthropy that -... nghly marks the transfonnatioll o f human rights movements into ts markets, m~m ent,

n:

-..e.

110e __,

V. Questions Concerning O rigi ns and H istories

"'--:-"on «I' '-.unt ' I llpon Ihe eapluhn belief thai prOlCenun I rul' For assurance the~ 15 for lhe amelioration of the hfe-lo red in a compar.ltive social thwry of hum a .~ 4 n n ty .ts. Micropolitlcs. occurring at vario us sites-sQme invisible even to a global pub lic view-offers a different perspective concerni ng the rel:.tlVe auto no my of h uman rights productio n. This is the shopfloor level, as it ~ re, no t who lly deternlined by macropolitics. Wlrlcing within I7Ither sever.e budgcu ry and mandate constraints. the Independent Expens, the Special Rapporteu rs, and the speci.alist consulunts within the Umted N atio ns system (howsoever thus named, designated, and elevated) need to negotiate furth er their own functional autonom y within the overall hicrarchy th rougl~ .which the ca~eer of huma~ rights enunciations may proceed . The poiLucs of produrnon ;at these: Sites refl ects the combined and uneven productio n o f expertise between the N orth and the South. T hus, major drafting responsibilities stand assigned to the N o rth expertise: which, in turn , has to accord some deference to their South colleagues who compensate their technical deficiency which their ideological selfpositioning. To avoid any possible m isunderstanding, I must here immed iately add that some South expertise, being the better info rmed about global prod uctio n of hu man rightlessness eq uals, and even surpasses, available forms of North expertise. But surely. this does not always duumish the cutting edge of the North expertise wh ich, mo re often than not, plays a dominati ng role 111 the writing of human rights texts and the construction of the models o f their 'responsible' imerp~ution. In allY event, m icropolitics o fh uman rights prod uction remams decisive in terms ofd istribution of voice, leadersh ip, and legitimacy. How far all this may serve networks of production that foster patron-diem relationship, and how far these: in novate authentic collabol7ltio n across the NorthlSouth knowledge/power d ivide arc issues that still await empirical exploration. Mo reover, macrQl'm eSQfm icro sites o f the production of human nghts euuUciations result in both produltion and ydu{fion (Jean Ba l1d ri llard~ draWS this d istinction in other con tcr.s). Whereas productio n makes the mvisible visib le, sed uctio n m akes the visible invisible. Anyone fa m iliar wnh the ways in wh ich the United Natio ns human rights d iscu rsivity IS produced needs no instructio n in understandin g how the final texts render invisible the o rigi nal, :lJld often lo fty, aspiration. There is also the d; mC!l~ioll

or

• All area In whkh JOmc slgl1lficant work 11\ polmcal scIence h;l.~ begun 10 tlUiIt' rS COlllrlbullOn III terms of dIfferential autonomy of policy ~nd 5UIC ;KW :

prollllSlIIg

~. EA Nordllll~r (1981). RobertO M. Un~r (1984), lhe methodological. msutuuonal. OCCUpatIOnal. and

, Jean

Ibudnlbrd ( 1975).

III

a dlffc rcm Vi:L11. Jdd~ autonomy I.fthc 1;1\\

'SUbsUIIIIVC'

~is m of the producers, be they the authors of internatiorul h uman

rilhu , the makers of modern cOllStitutio ns. o r the NGOs who smpe (or dUnk that they shape) many a new e nunciation. In a ~nse,

then, human

....us productio n o ften also enuils patterns of ~ ucti on. a loss of orders "rel1exivity of what is being produced at whose cost and for whosc= galli, ind«d to the point o f being afimakd prod uctio n. The 'overproduction' metaphor conceals from view the hu man righ ts authorship of the violated. Whe n production o f human nghts no rmativity is S«T1 primari ly, or even wholly, as an act of collective labour o f blearycyeddraftspcrsons and negotiators somehow hammenngout. in the u ncanny early mo rning moments, the last minute consensus on an accepuble phrase_regime, one is looking exclusively at the process of enunciation as III aspect o f heroic enterprise by imernation al career bureaucr.lts, diplo. . . and privileged pro fessional N GOs. The eosmopoli u n labour thus iaftsted makes possible human rights instrumen ts. A full h istory of the processes of governmental and activist diplomacy in the making o f contanporary human righ ts has yet to be written. Such narratives will, no 4oubt, testify to the considerable body of N CO achievement, both in -.ns of their accelerated learning curve in handling internatio nal negodMionsand their fl7lctured integrity in th e prod uctio n o f authen tic h uman liFts nonns and sundards. Because compromise is inevitable in the final Iacb rtl1~i n g d ivergent state and 2Ctlvist agenda and concerns, activist alms at the produo ion of 'overlapping consensus 06 that now so ill:n:dibly informs :acts o f global hunun rights d iplomacy.

...,cy

II. Suffering

1\c ~tives

of both the productio n of politics and the politics of tmduction, however. remain inadequate witho ut a gnsp of the h istorical ~Iivro expcri~nce. of. huma~ suffering caused by human violatio n, . ~ no t qUIte live III public memo ry. We need, 011 th is register. to :'-ingUish between the catastrophic impositio n of suffe ring and the ~yness' of hu man. and human righ ts, violatio n. Catastrophic via0( tad often paves the way fo r authentic consensus in naming the order 'IIIins leal evil (genocide, apartheid , torture, sexual explo itatio n crimes fDhib t humanity, fo r example) and fashions human rights lcc hno iogies to ~tt where possible and punish w here necessary such forms o f gross, ~ng, and fl agrant human vio latio n. Even fo r such situatio ns, as the story of Raphael Lcmkin (who invented the term genocide and

" Invoke here

UIIS

ferund

notlOIl

of Joon Rawls (1993a).

100

worked himself to dath in penury to persuade governments and Statts to outlaw it) mimmalist definitions of proscribed state and indlVidlQl conduct rule the roost? Between I-Io locaustian suffering and human rights enunciation fall the shadow of sovereignty; the translation from human/social sufTcnn; to an o rdering of human rights responsiveness and ruponsiblhty rC lTlai~ the slow but assiduous labour of production across ~neratlons as fUlly exemplified by at least a century-old exertions that now mature In t~ creation of an International Criminal Court, whose Statute provides an impressive array of potentiality to penalize catastrophic human violation. From the standpoint of women's rights as hum.an rightS, Article 7(2)(1) of the Statute remains a mOSt remarkable adv;lIlcc indeed. s Even so, 'crimes of aggression' specifically left undefined (and, therefore, unindlctable) will cntail decades ofdefinitional labour; further, the provision that lIlVCSts the Security Council to abate prosecutions for the crimes designated by the Statute may limit, overall , the real life operation of a fra b'lle conSensus now textualizcd. 9 Forever inadequate, sllch incremental accretion of human rights production remains the best bet, as it were. Even on a register of rebellion at horrendous human, and human rights, violation all we have is the scale of evolutionary historic world time. The problematic of/ram· llI/iot! of the atastrophic forms of suffcring into languages of hUlmn, and human rights. still haunts human rights futures now-in-the-malang. Recalcitrant fomls o f the eve.rydayness of human, and human rights, violation also pose the problematic of translation. Not as dramatic as the procluctio n of Holocaustian human/social suffering, everyday experience of suffering caused by starvation, malnutrition, hunger and related forms of mass impoverishment and daily disenfranchisement of dIsadvantaged persons and peoples invites only forms of slow motion human rights responsibility and responsiveness. One has, for ex::I.mple,just to read word byword the proceedings of the United Nations Rome Summitconceromg human right to food , and plus-five review and retrospection, to realize Its constitutive ambiguities, which mark and measure the distance be~ n norm enunciation and human suffering. I refrain fro m any aggtawung analysis here of the Millennial Declaration and the most recently rcleast'?

The Future of IIUnIan Right!>

Salllanth~ l'uwer (2002) pp. 15-60.

dus • It cnhauecs the range of CTLm('s against humamty by mclu d LIllo> WLt ILn L r ntt"gory: ·rape:. 5t":xu;I1 slavery. ('nforero pro:;tltution, f()l'"cfd pregnancy. enfurced stCLILUtlon. or any othc-r fonn of sexual violence of eompar.abk gravity' 9 &e. Knangsak KimehaL5arcc (2001) at 27-37, 206-55. 10 Sec. Umtt"d Nallons (23 $epte'mber 20(4).

101

The production ofhum:lIl rights nonnativity, oven.Il, suggests a difficult .elaponship to human suffering. The slow mo tio n tn.nslation is the first , . of difficulty; the second stands furnished by the forms of fractured ~nsuS. the necessarily compromistie formu lations that alone marshal iDttrstate consensus, the .anarchic state-party conduct encapsulated 10 the ~ to frame reservatlons/derogauons, even concernmg the principal ~ and .purposes of carefully.ne.gol1~tcd treat~~s: II The Site of Im~le.­ .-mtacion IS often marked by dlfferenllal capabIlities of State, and CIVIl ICJCic"rY. actors; delivering human rights to rightless peoples and persons is eft'II more difficult than accomplishing no rmative enunciation. 12 The iIurth site provides a register, which elides insurrection and repression. When suffering peoples take their human rights seriously enough to aebd. whether by everyday micro and at times larger patterns of macro (llisance, we witness some radical assertions ofh1l111an righL'i production . . implementation from below. As Michael Burawoy evocatively deICIibes this: politics docs nm hang from clouds; Lt nscs from the ground: and when the _'..... tremhles, so does it. In short, while produellon politics nuy nOI h~ve a effect on politics, itncvcrtheless 5("15 11111115 on and precipitates interventions _

lUte.1)

lD mponse, human rights, as languages o f govenlance, come instantly,

....I 100 often, into play. Subaltern militmt conduct and movement that ~ macropolitical redistributive shifts (such as food riots, occupation public premises by the homeless, violent uprooting of genetically • cd food products, civil disobedience directed against large irrigation ~ and mega- urbanization. and polity reconfiguring 'separatist', 'selftilttrmination', or secession) stands presented on thIS register as instantly rights' threatening. As languab~ o f governance, human rights ~s stand all too often deployed in the service o f production ofbelief ~s I~ 'l~w and order', public security, combating criminality and acts 'trrronsm . These forms of state resistance adversely affect the W2YS of

'-nan

IlSee C. tupte'f 6. u most conspicuously viSible even In ~ mhol post-apartheid South African -co.., lion, which mxle enforceable &QClal and economIC nghu. The ConstilUtion~1 ~....,,"'," alremy begun th.c proceu of COllver~II.JIL of theiit' ellforce~ble rights into 't. of public pohcy, deferrmg to the 50verClgrl prcl"'OgoltLve of the C-XCQltivc. It fot elQnlple, held that Ihe right 10 hOU$1I18 15 only a nght to :llXe~s to an

ec...!ISIS

~~~~:~f::j~~'~::~; policy and process. St.~, for a mose recent statement.

Too Many or Too Few I luman Rights?

102 The Future of 1·luman Rights human rights production and implementation. The I~cs of colleCttVf; hunun security trump even minimal observllncc of basiC human rights in mally a situation. T hose subjected to everyday experiences of rightlC)sness and human viol.a.tioll stand subjected to a code of human rights re~POn_ sibllities; protest at their plight becomes legitimate only within the wider logics of 'collecuve' human security and development. At stake, clearly, here are issues wider dun the indictment of 'overproduction' may ever fu lly invoke. . ' However, the relationship between the expenence of suffenng and the impulse towards resistance, the labour of suffering, remains contingent at least in three ways. First, patterns of solidarity that guide common programmes of resistance vary according to the 'nature' and 'scale of thc production and distribution of human/social suffering. For ex:Imple, food riots do nOt always occur during famines l4 and occur even less, understandably enough, during the wars of starvation. IS S.econd, be.licf systems that constitute faith communities m inimize potential for resistance; human rights languages do not have the slighteSt ~r to overcome suffering which comes to human beings as God's gift or curse. Nor may, by the same token dissentient and heretical interpretive communities rcconstnlet 'tndition~' via any significant recourse to 'secular' human rights cnunciations. Equality before Allah may be radically construed to ensure equality before mcnl6 and, indeed. may enhance women's rights as human TIghts; at me same time, piety and fidelity to the word ofGod must remain thegnmdnonn, even for Is lamic women in resistance. TIlird, while the remarkable power, even prowess. ofsocial movemen~ old as wdl as the new, contribute to increasing legibility of human/social suffering (making suffering legible constitutes, as it were, the very soul of human rights and social activism), onc may note ruefully that such move.ments may problematizc human/social suffering only eclectically. eve~ If in the very best sense of the term. The languages, logics, and paT2logtcs of human rights do not coequally attend to all the estateS of hunUIl suffering. T hey prioritizc the relation between human suffering and h~­ nun rights differentially as their discursive work proceeds through C national, regiOlul, and global networks. Thus, for eXlllmple, basiC hU~ ri ...llts claims of people with disabilities have yet to find a force ~~ til' . . ' Furtllc' constructions Vl . Human Rights Essentialism 'Essentialism', or ways of thinking that explore commoll properties or 'universals' common to all phenomcna under i1lYcstig:uio n, has ~n shown to be important, perva..'.ive, and persistent, even when mistaken. In 'general and specific theories, and the conduct of re2soning',S'J and win ' not soon disappear' bcouse 'its causes are tOO varied'.oo It should not occasion surprise then if human rights discursivity stands marked by practices of csscntialist thought, especially concerning the identity of the bearers of human rights and of human rights responsibilities. We explore in the next section the difficulties that surround the naming of the essence that constitutes us all in terms of the common property or attribute of being human. We may, however, here quickly nOte that both in the modem and contemporary pandigm of human rights the identity o f the bearers of human rights responsibility also stand esscmializcd, in ways that designate the 'sUtc' as the p.2radigmatic subject of human rights responsibilities. No do ubt, some contemporary e nunciations of human rights nomlS and standards seck. to reach out to the 'non-sute' sites of human rights m;ponsibllity. However, so pervasive, persistent, and important are habits of essentialist human rights thought that it always entails Sisyphean labours to designate the school, the church, the family. and the rnarkc:t as coequal bearers of human rights responsibilities. Bearers of hUlIlan rights responsibilities stand overwhelmingly described in terms of sovereign mher than disciplinary power, to deploy the Foucaldian distinction. ~ notice some obstlcles to hum.:m rights that this tendency creates in Chapter 9.) A striking feature of human rights reflexivity is that it foregrounds dangers concerning the ways in which identities of the bearer of hum.l n rights sunds es.semializcd by deployment of overarching c2tegories th3t subsume or sublate difference. Indeed, some even speak of the imposili."r of human rights regardless of the diversities of loubjcct positions and acts ofchoice (agcncy).61 It is often maintained that the bearers of human rights, when conceived in terms of the essence that designates being human, end 59 Garth L Hallett ( 1991) 126. 60 Ibid., at 180, 61 See, for example. Heather Montgomery (2001) 94-6.

of CEDAW (the Women's Convention) human women tvtrywlrert. The Convention constitutes 'women' as :iii ofllla5sive generalized abstraction. Even when it differentiates some .,ccific collectivities (such as, the 'rural' women or women caught ill.the _ of sex trafficking, for cX3mple) it still deploys lumping, undiSCcrnmg. ~ries. The human right of womcn not to be subJcct to culm.ral enshrined in the Convention then emerges, Itsc.lfsuffused with It docs not quite get around the problem of conceiving of women beyond a 'wife', a 'whore', and a 'mother>62 or as monsters, and machincs'.M The Convention fails to ukr full of the diverse histories of subject positions of women; this inscn"'"y",cn';'I;"'''NOnt''~ of human rights and poses the limits thus enunciatcd .64 Indeed, some feminist thinkers mainuin that ~::~;~~ at defining 'women' or 'sisterhood across boundaries' figures 'Trojan Ilorse of western feminist ethno-centrism,.65 Similarly, by state and activists that pre-eminently focus on sexual abuse and "'ott,,>tm of children proscnbcd by Article 34, ignort' the diversity of subject posltions.66 Rencxive protesutlons agarnst essentialist thought, however, go the farthest in rdation to describing 'indigJ>(:oples' in the over half a century old quest for an authoritative of their basic human rights. Contemporary human rights regimes fail to articulate an authoritative chane r of human nO( of {II/tura/, but dvi/izatiollal. resisunee to essentialism. draft declantions concerning indigenous peoples, tnnslated into lldigenous populations, now begin to acknowledge that what constinltcs the ~ of'indigt:nous' (or the essence of indegenity) lics rn what they

'" lx"",,,

:

,un""

II Moiry Jo Frog (1995).

~, In a related context, Resl Br.MiK)rtl ( 1994) 75-94 "!itt, Elizabeth V. Spelman ( 1988); Judith Buder (1990): Anne Gnffiths (2001); (,)

~ Engle ~ry (200 1). Spclnun (1988) )C. lit. In many a Third World soc iety. the life cycle distll)ClIon betwt(;n a 'e hlld' and 'ldull' sdf 15 Cllt bru~Jl y shon. Montgomery (2001: 86-7) argues dut the 1Il~ l s tcn ce 0. ArtIcles 12. 13. 14) Ih~t chIldren and young persons trght to form and express their 1IIna 'YICWS' and Ihn these . hall he 'glYen due weIght' be uken scnously In Ihe .:",",,,,,,.",, of· '"" ~nlC'S obligatIon (under Aruclc 34) to prOtect the duld from 'all of scJCU.l1 cxplou:ltlon and 5CXU.lI abuse'. H«dmg eJu1dren', VOICes Juslifying 'll:lf-cxploiuoon grounded In theIr apperceived obhgauon to dl('Lr ~renlS .lnd II i5 argued. lex! to more nWLrKed hurmn nghu pohcy rnponslvcness.

CriuqulIlg Rights

136 The FUlure of Hum:m Rights themselves renexively ch:uacterize as such. Put more simply, prnl1aril only those peoples remain eligible as indigenous who create, by th Y' own cultural practices, the crireria of who should count as indlgt:nOUse!~ In COntrast, codification of international human rights COIlScn!)uS Stand more rapidly achieved in relation to women's rights as human fights S chi ld nghts. or . The anli-essemialist critique of the h~mon.ic production of the poli. lIcsif(and evenfor, some would say) £h.t maintains £hat human rights allow liule or no room fo r the play of radical plura.lity. Of course, tillS powerful criticism goes beyond the possibilities of alternate readings of this or t~t text of contemporary human rights enunciation. At stake here remain the formi"g practices of the concept of human rights as such-those t~1 dete rmine the mode of production of human rights subjects/objects, the nature of rights they may have, and o f the logic o f limits that may mOeet their human rights. All this leads to a more gener.dized issue. Were we to regard human rights as a 'phi losophic concept', it 'does not refer to the lived ... bm consists in setting up an event that surveys the whole of the lived and 11() less than every state of affairs. Every concept shapes and reshapes the event in its own way'.68 It raises the issues of the fonnallon of the '(ol/up/1Ul1 personae' in human rights discursivity.69 Their role is to 'show thought's territories, its absolute territorializations and reterritorializations', 7(l move· men ts of 'psycho-social types ... their ... relational attributes ... exislellual modes ... legal status .. .'.71 Because social 'fields are inextricable knots in w hich the dlr« movements' of territOrialization, delerritorialization, and fClerritoriaLization arc 'mixed up', in order to disentangle them we have 10 diagnose tNl typa or ptno,l«.n The movcment from £hese '1110Ugl!/-Ntt,U,73 67 Stephen Marquardt (1995): RUS3C"1 Barsh (1994): Ibchd Seider and J~ Witchdl (2001). 61 Gilles Deleule and Fehx GUlUri (199-4) 34 (emphasis in OI"Igmal deleted). 69 I here Invoke: me rICh analysis offered by Gilles Delcuze and Felix Gutun (1'»4. 61-84). They ~lX'ak of thiS entity as more than the ways m whIch 'olle concept presupposes Ihe other (for example, 'man· presupposes 'animal' and 'r.ll iOll~I ' [61], or 'psyi:hosocial rypcs' luch as 'the stranger, the exile, Ihe migrant, Ihe Inns,ell!. tht 'lallVe, the hV'1lecomet' but about Ihe ~nieular movements that affect the Socious':

67: emphasiS deleted). 70 Ocleuzc and GIIIUri (1994) 69. 7' Ibid., II 71. 72 ' In capluhsm cilplul or property IS delcrritori31itcd, tta!l(~ to be landed. and IS rctcmton,mzcd In the means ofproductlon, whereas labour becomes 'abstraCl' bbour, rctc:mtonahzcd m WlI8'l'I ••• ' Ibid.. at 68. 73

Ib,d., aim.

137

Ibt discovery of real personae is cmcial for human rights struggles bUt : . movement is, at the very same moment, inconceivable outsIde the (lDlJCt"Pttul figuration of 'human rights'. The talk about women's nghts being human nghtS, for ex:unplc, alreildy presupposes the conceptual person~ of human rights. What ~he movement s«ks to achIeve IS the eJ&Cnsion of £he concept by add mg further components, and many a ..,ment of its juridical retcrriwnalizauon, where the conceptual personae 'DO longer has to justify' herscl[14 Given this an.:alytic mode, the indictment of eS5entlahsm IS not particuIIdy helpful, outside what Gayatri C haknvorty Spivak names now as 'llnteWc essentialism'. Tn this image of thought, essentlahzmg 'women' is • form that serves useful historic functions 1Il the human right-ba!iCd ~ against universaVglo bal forms of patriarchy.

VI I. The 'Essence ' of that which Designates Human

'Ibis lSSue goes to the very heart, as it were, o f human righ tS in r.ising the

.-old and well·worn question of the constitutio n Ofbe111g ' human '.

If is any 'csscnce' to 'human', its discovery/invcntioJl is possible only ~ discursive practices that priVIlege certal11 dcfill1ng attributes or ~ttristics over others. A universal category called 'human' emerges aIiy m tcnns of (what Marx accurately described .:as) sptties-bting, which, • cum, enables us to mark OuI the ' human' from the 'lIon·humall ' and the ~n' from £he 'sub·lmman'. Nevertheless, the quahties o r auri butes III dus species-being stand van ously conceived, with fatefu l impacts. 1'bc conceptual pcrsoru tha t constitutes the human subject, and the subject .cbuman rights, constitutes a veritable minefield. Here a few quick, even CIInory, remarks sho uld suffice to illustrate the thematic complexity. G reat religious traditions, includ ing those of ancient indigenous civi~, as is well known, create myths of the origin of the human in a divine, cosmic mode elevating human .:and all sensie nt forms ofl ife to £he It:atus of the sacred. The constitutive traditions of modem and contemporary orders of scientific knowledges ill COntrast situate the o rigins of the human, and of species, as evolutio nary chance and necessity. Against the IIcrcd tclos of the di vine creation of lifc, the contemporary developments III hfe' sciences presclll the meaning o f 'human' in terms of the complexity of ~olllinuity and disconti nui ty in the evolution of all life forms. Whereas ~us .belief and ideology construCt conceptio ns of the sacredness of hfe, entitled to claims of deference by the sute and the law, ~

" Ocleuze alld Gum'; (1994) al n.

138

The Futu~ of J hlO11n RIghts

evolutionary life sciences currently remind us that human beLllgs share 96 per cent of human genome with chimpanzees. All this sits oddly with theological narratives endowing the distinctively 'human' as a Uilique labour of creation by God(s), even if only for constituting the Great C ham of Bemg. This w.r.y of constitutin.-: sp«ies life as sacred (havlllg bce:n created by the Divine) beings has played an eminent role in some recent human rights controversies, for eX2mplc, those concerning capital pUnish. m ent, abortion, physically assisted suicide (euthanasia), reproductive tech_ n ologies, foetal tissue research, and the possibility of human clan mg. Secularized conceptions o f the species-being also furnish deeply COn_ tested sites. These remain open to some violent and aggressive Euro. centric constructions (as seen in some detail in Chapter 2) wherein singularization of the unique human faculty o f reason and will results in pncticcs of pesudospcciation, leading to the violent social excl usion as 'non-humans' (indigenous peoples) and 'sub-humans' (women, slaves, minors, the mentally ill). And in the preceding section, we noticed the ways in which even the inclusive contemporary human rightS paradigm similarly excludes 'refugees' and we will have to further acknowledge the convulsions induced by 9f11 and its aftemuth that conceptualize non-state terrorist actors and e ntire 'outlaw' peoples as less than 'human '. These latter remain somehow k.u t ligiblt humans, and bereft o f righ ts, bccau~ of their Incapacity to effectively present themselves as being either 'rallon:!.I' or 'reasonable'. They definitionally assume the St:l.tus of'life that docs not descrve to live' .75 Qnlhe other hand, this sits in contrast with the Wider secularized fornlS of contemporary human rights that Stress that all species-beings have equal worth and dignity JUSt because they are born hum.an . At the same time, the notion of spn:ia-lxitlg becomes increasingly cuturological. As species-beings, humans stand distinguished fro lll other sentient beings by thcirapacity for language. Through speech and writing. we become fully human;76 the Word becomes our World ; and (with Wittg(:IlSlein) 'the limits of my lan~ become the limits of m y world'. Hununseverywhere inherit language communities that nurk their ascripovt community belongings. Belonging to a community is alw.r.ys first and foremost belonging tO:l. language through wh ich alone all other form s of belongings, and longings, may be imagined and occur; the herein , the 75 Ag;Imben (1998) 136--43. 16 I do not here explore the relatIOn bet\littn sp«eh ~nd wntlng and v1(,knce

mamfest severally III the dISCOUrse ofJacques Derncb., Emmmud Levinas. and MartIn I kidcgger.

C ritiquing Rights

139

, ary locus, of all human rights paradigmatically represented in the of speech, expression, opinion, dissent, and conscience Yo'tll as of 'minority' rights. The species-being stands ,here culturally ~rsed, presenting b:l.ses si multaneously, even dialectically, for tndl~ and group Ide ntity rights. UurtUll righ ts languages, more than any o ther 'typlfymg Ianguages',n provide the found ations for the emergence of rdkxive individuality or, sunply, the human agency that opens the potential fo r choice and re¥isability.78 The mystifying role of ideologies dwells in the modes of ~tation of the historically specific stntegic interests of the dominant _ as the common interest of 'all the members of the soclety.in ~ note here briefly how contestation occurs at many levels: ideology, cakure, history, and movement.1Il These large spheres often intersect and coexist; nor are any uniury or generally agreed notions ofany of these four IeI'm!o possible. Even with this caveat, the indicunent ofessentialism emerges II'IOf't sharply when we regard these fOllr levels as distinct or discrete for -'Yrical purposes.

~tO freedom

( 1) Idrology TIlt fact that prevalent ideo logies playa large part in the construction of

Ihe essence of 'human ' is unsurprising. Ilowever, the ways in w hich IImrwl rights ideology production occurs remains importalH for any selIDOs understanding of 'contemporary' human rights. ThiS at least entails

lilt labour of 'production and distributio n' o f 'ideas of dominance' when ~ as

'the dominant m aterial rt:lations' making 'one class the ruling

CIDe'; III the fonnadon ofidcologies 'matter, m eaning. and social relations

do not Just interact but interpenetrate' .81 This production occurs within '. complex set of institutions ... practices, and agents', which Gramsci DIrDed as 'hegemonic apparatus' and Ahhusser was to call ideologiol and tepressive state apparatu~.112 The mystifying role of ideologies dwells in die articulation of the historially specific strategic interestS of Ihe domi_ I class as tile common interest of'all the members of the society', thus

"" See,

ror thiS llOtion, Mlkhall M. Ebkhu n (1981) 291. " Will JgJcal, and bIOlogical SC llse~_$O

Richard Rotty, of course, would disagree. This disagreement is wonh noting as exemplifyi ng the h:tzard of postmodem philosophical anthropology, He says:

Regardless of w hether this is 21 'f2lr cry',SI or 21 Subtle shift in the Associ". tion's positioll rel.uive to human rights, the fonn of antifound2lti onalisrn thus expressW remains precious for human rights fututes. I $;Iy IhlS for two reasons. First, this repudiates the globalintion ofhum2l1l righ ts, at 1C'2ISt w hen pervaded by the phenomenon of the politics C?fhuman rights marked by ethnOCentrism. This kind of ethnocentrism is best described as 'the point of view that one's own way oflife is to be preferred to 2111 others',52 w hich becomes particularly pernicious when it is 'ntio nalized and made the basis of programmes of action detrim ental to the well-being of other peoples ... ,.53 Second, it combats 'the o uonoded concept of culture deve!. oped by anthropologists early in [he twentieth century' which emphasized it as 'static :md inflexiblc' .S4 The Association's re-conceptualization of culture as 'capacity for culture 2Iccentuates a 1I0tion of culture as '3 process, developing and changing through actions and struggles over meallLllg',SS its 'inherently soci:al character and virtually infinite plasticity·56 rat her than a repertOire of fIXed and relatively immutable mits and attri butes. AntifOllndatlon:t1 cri tiques of human rights refer us to the 1ll()lllent of concrete unlversahty and ItS infinite openness to violent form s of pselldospeciation, ThiS is a valuable lesson, one that, unfo rtun:ttcly. ~ need to learn repeatedly. At the same time, not all amifoundano nal cri· tiques realize that the subaltern struggles remain inconceivable, o r :tt any rate unllltelligible. outside frameworks that invoke a universal concepnon :tbout the meaning of being 'hunun' . If foundational beliefs )ustify' practices of viOlent social exclusion , these also ground an ethic of mclusion. To uke a civilizational example, nther than a mcrely histo rical one, it becomes diffkult, if not impossible, for the Indian untouchables to claim dignity and rigllts against the dominant and viole nt structure of social exclusion justified, cosmologic:tlly by some varieties ofclassical Hinduisms, were their claims to be held vitiated as being 'found:ttional'.

Most peoplc:-cspecially people relatively untouched by the European Enhghten. menl-simply do nol think oftMnudvu,firn I3ttd fortm4St, lIS 13 humon &ting. Im/tiJd t"? 1ft lilt of thorud~ lIS bring good serf of humon btint-son defined by ClCphot ~itiOn to a particularly bad sort. II 15 crucial for thclr sense of who they ~ thl t they ~ not an inftdel, not l queer, not a woman, not an untouchable. Just IJ\SOfllas they are impoverished, lnd:ts their lives are perpetually at nsk. they have htdc else: than pride in bc-ing whlt they :t~ not to sust:lin melr self-respect. 57

Cited 111 Sally Mary Engle: (2001) 38-9. 51 Engle (2001) ~t 39.

°

T ills brief passage raises a w hole variety of questions. First, w h at docs it really mean to refer to people relatively 'un touched' by the Enlighten. men! when almost everyone in the Third World has been deeply affected by its'deep, dark. and violent side. whether thro ugh colonization, thc Cold W:tr or contemponry economic globalization? Second , is it a fact that there ex:is~ people actually and in re:tllife who vallie their ethical worth by .their notions of good and bad and do not consider themselves as human bemgs? Third, w hat about people who think :tnd act o therwise: for cJCImplc. those women and those untouchables who resiSt caste :tnd patriarchy and in the process still think of themselves as human beings? FoUM, do the im~­ enshed l:tel, ways of sustaining sdf.respect in forms othcr th:tn by taking 'pride' in social identities shaped by violent social exrlusion ? Fifth, how does o nc :tccount for change in beliefs :tnd practices of'most people' where they either change their notions of w hat makes the gcKXf sort of humans or alter their tolention of the bad ones? It is pointless to enlarge this catalogue of questions. H owever, it needs saying at least that if suc.h IIlterludes :tt philosophical anthropology are all we h:tve by way of annfound:ttionalism, the case for found:ttional theorizing sunds :tdequatcly reinforced! An essay extolling sentiment, rather th:tn reason, or changes III transfonn:ttion of sensibility to make room for pragmatic solid:trity. fails to persuade when it begins with such l:trgc·scale generalizations about the non-European Other, in seeking to displace simil:tr generalizations of m e normative ethical theory of hum:tn rights .

.'A)

MelVIlle J. Ilmkoviu (1955) Chapler 19. 1) Ilerskovlu (1955). I lc:nkoviu. here, spc:cifit'lilly refers to such ntiona\lnm'lliin 'Euro.Amer1t'l111 culture'. 504 Sally Merry Engle (2001) at 39. 52

M Engle: (2001). S6 Te~ncc Turner (1994) 406 at 420.

The ' Hiscories' of un iversality It is at thisjullcturc that one may raise the iSSue o f how o nc may narrate the histories of 'universality' o f human rights. My distinction bctwttn 'modem' and 'contemporary' hum:tn rights paradigms suggt=sts the ways S7 Rony (1993) 126 (3dded emphasiS In the first sentence).

WIUI is Living

180 The Future of HUmOln Rights

which the univerulity ~ . .notions get constructed in radically d h1ert:nt So ways. does the dlstlllctJon I d raw between politics oland/ complex and ever--changrng relationship. We have noted, repeatedly, how the histories of ullivcrs.alityof'modcm ' human rights contributed to enornlOUS human/social suffering dUring long periods of colonization and imperi:r.lism and also nised concerns regarding the production ofrightlessness and hum.an exclusion tlut even contemporary human rights languagts and logic harbour. We now pose the question: how may we understand and nuke legible: the scripts of suffering in the discourses concerning universalism/relativism of contemporary human rights? What is, perhaps, helpful in relativism discourse in relation to conte\ll~ porary human rights movement is the notion tiut human suffering is not wholly legible outside cultural scripts. Since suffering. whether defined as individual pain or as social suffering is egre:gious, different religions and cultural traditions enact divergent hierarchies of 'justification' of experi· ence and imposition of sufferi ng, providing at times and denying at others, I:mg\lagc to pain and suffering. The universality of human rights, it has been arb'l.lcd recently by Talal Asad, extrav:l>galllly forfeits cultural understanding of social ~t1fferin gl \o and alienates IHnnan rights discourse from the lived experience of cultur· ally/civili zationally constituted humanness. Asad highlights the fact that the Western colonial discourses 011 suffering valorized '(p)ain endured in 110 Tabl AsxI (1997) at 285.

Wlllt is Living and Dead in Relativism?

197

the movement of becoming ~fully human ... .. was seen as necessary be· cause social or moral reasons Justified why it must be suffered,. 111 He shows the ways by which the very idea ofcruelty and degradation becomes and remams 'unstable, mamly because the aspirations and practices to whICh it IS attOiched arc themselves contradictory, ambiguous, or clung. ing,.112 This instability, he argues, is scarcely remedied by either the 'attempt by the Euro-Americans to Impose their standards by force on others or the willing invocation of these standards by the weau:r peoples in the Third World' .113 He alerts us to the fact t1ut 'cmelty can be expe· rienccd and addressed ;rr waY$ OIlier IIIQII violalioll of right.r-for example, as a failure of specific virtues or as an expression of particular vices'.II.( This is a re:sponsible practice of cultural relativism, indeed, because while maintaining scepticism concerning the 'universalistic discourses' around the United Nations Convention Against Torture, Crud or De· grading Treatment and Punishment, it does not contest its ethical foulldations. Rather, it shows us how eth nographies of cruelty may assist progressive promotion and protection of human rights there ensh rined, in ways that respect discursive traditions other th:l>11 those of human rights. Similarly, ethnography ofsufft!ring summons us to focus on the difficult relationship between violence and rigiltS. The protection and promotion of rights has always entailed regrmcs of practices ofjfmijw or legitimate violence, although rights-talk habituates us to the Idea that Violence is the very antithesis of rights. Moreover, human rights discursiVity rardy concedes that violence of the oppressed can often be rights-generative. It can also be horrendously destructive. This destruction poses the problem of relationship bctwttn pain ;md suffering and languages of communicative action. Vttna Das (following the rather incommensurable discursivityofElaine Scarry as well as Ludwig Wittgt:nstcin) names some forms of suffering as simply ·unnamable'. The aftermath, however, and from the standpoint of those violated, remains both describable and nameable. Das names the constitutive aftcrnlath of the horror of the partttion of India inscribed on the bodics of women, as leading to the birth of citizen-monsters: 'if men emerged from colonial subjugation as autonomous citizt!lls ofan independent nation, they cl11ergc:d simultaneollsly as monsters'. I IS The so-cal led post-conflict situations elseWhere also remain marked by citizen-monster dialectic. 11\

Ibtd .•

3t

295.

112 Ib1d., at 304. IU IbId. 114 Ibtd. (c-mphasiJ added). lIS \kcna Ihs (1m) 139. Sec also Sanky Cavell (1997) at 93.

198 The Future of I-Iuman RightS Responsible relativism mvites us to consider wlut Walter Benpllun n:l.Illed as the jolmdaliolUlI violf"{f of tl'f /aw l16 almost always entailed, one may add, in historic practices of human right to sclf·dttcrmination and, now, acts of globalization. The challenge that this genre of writing, which exposes wrltmg as violence, poses for human rights logics and paralogicl> is simply enormous and directs attention [Q the central fact that human rights languages lie at the surface oflived, and embodied , human anguish, and suffering and fully questions auspices of production of suffering (whether as state-imposed and 'prople'fcivil society' inflicted, globally provided, or even sclf-choscn and imposed suffering). The practices of protection and promotion of universal human rights entail construction of moral or ethical hierarchies of suffering. lI7 Such construction takes place when certain rights (such as civil a.nd political rights) stand prioritized over other human rights (such as social, economiC, and cultural rights). It occurs when even the former set of rights stand subjected to the reason of the state (as when their suspension stands legitimated in 'time of public emergency the life of the nation' .118 It occurs when solemn treaties prohibiting genocide and torture, cruel and dcg:rad· ing treatment or punishment allow scope for reservations and derogations that eat out the very heart of remedies otherwise declared available for the violated. Not merely does the community of states construct such trans· actional hierarchies. Even human rights praxis does so.119 This make:s human rights prv::is, at best,global but not ullillf'nal, with deep implications for the fmure of human rights. Derncb (2002). 117 I \,. ,· . . h ' traSt the 15.1IrUculate: altogether new regimes of human ng ts: III con .j the course of the 'new' social movements tlmves all too heaVi y In

c....

.

~

o f hu man rights .already in place. All the same, in both fonns, pl~ of hu man rights movements rem ...ins somewhat insecure. 12 The histories of the 'old' soci...1movements present fully the dlfficuluo ofrt)dl11g the 'emancipatorych... ract.cr' of h uman rights movements. I low nuy human rights movement theory re.ad the now furiously proclaimed di"'lde bcr.veen the 'old' and 'new' social movements? Much here depends on what we may wish to regard :lS paradignutic of the 'old' soc]al movements. ~re we to regard the struggles of the working c~s .ag;;ainst the capitalist o na as such, the dominant trends in the Marxian discourse resist descnption of human rights movements as emancipatory movcments. The figure of human rights appears in this genre of movement theory only in lI!fTIlSofcritique of extant models of rights, state, and the Iaw, ...s any reader of On ml' Jnuish QlltStioll and Thl Critiql~ if Col/ao. Programme surely know:>. Although h uman rights emerge as the plentiful 'necessities ofclass lIJ"tI.88Ie,'\3 the very notion of h u man righ ts was regarded, in the fi nal asW)"Iis. as the m ... rker of a 'radiC.1l.lly deficient' social order. t~ In contrast, wttt one to locate as paradigmatic of the 'old' social movements the anticolomal struggles, we gr:lSp the revolutionary em... nclpatory potential of tile amque ethio l l1lvcntion of the right to sclf-detetlmn.1ltion . But cvtn here II the VlrtuoSQ exponen t of the rigllt to self-detetlnination Moh:mdas Gandhi demonstrated the emancipatory character of struggles for selfdttrrmin ... tion entailed transcendence from the received ethlc... llangl.lages ofhUJlUn rights; he believed in the vinue of not the vinue ofjusI freedom, .w:jUlitjrrtdom. ls In a fu rtller contrast, some different, and liberal discurIIV'rframes privilege the narratives of'old' soci... ] movements (such as antiabvery and slave abolitionist movements and the suffragette movements) _ .enuncipatory potential ofhurnan rights movements in temu of p... instWng gradual displacemellt ofstatus and hierarchy based amiD! regime that, III Ihe net result, expands the power of individual choice of life-projects IDd pro tects autonomous constructions of lifcworlds. But even these _

'"l'

= 12

Sc (,

'c. or an acCOUnt of thc OVC'nli dltrJC\JloC'S Ihus prt'5enled III J study of global tTlOv(:mcnts. Robm CohC'll and Shinn Ra. (cd.) (2000). Ilut I t t Mary Kaldol........ _) fOf a mol"(' susumcd analysIS ofdw: I"('btlOl1Shlp bC'tv.oC'en soaaI moYC"mCnlS and _l cIVJI~ 13.

--- ' ·'1'

14 ~ Upcndn 9 Foucauh (2000) at 86-7. See also Chapter 5. . , conccrning " Soch as cckbnted by K.1rl Mane 111 Chapler Ten. iGJplIII/ Wumt . I ~,tcty I· trugg\c that u u,, _ me InnlUuon of houN of ....,ork through a romp ex siXtY-year~lesomc confisa(lOT1 I .C_"," b - - - .J "-~uvcly a Ten Houn Uw pItted against the' uri

x ~ ,_ .. 993) 39-43 MI the' male"a ofworur's lifcllmt and hfeworld,. Scc:, Bax:a (I . .11 cited. 11 S«, for CXOImple, Peter W.ucnl1an (20(4).

U'"

205

\):lJO

(199&); IhxI (1999).

~ , ~,A llan \)uchan3n (1982). BUI as Uevcrley Sl l~r (20(3) pomu OUi olle may ~:.hl~totlC'S M workers resistance dlffel"('ntly a.~ dlvKicd 11110 rwo 5tntqpC'S: ~ . truggles (OVC'T thc pohtlcs of producuon and productton of polincs. 10 use ~ I fC'CUnd CJq)I"C'SSIOI1) and 'Pobn)'lan' stnJggks (nurklllg C'VC'f)'Cby SIIC'S of ~ ~IP,"SI thc collfisotton of Imc h~lihood nghu through Ihe play of sheer n

forces).

Sec, UP!:ndr~ Bui (1995) and the lttcncul"(' therein

("ltM.

HUlnll1 Rights M()\.'Cmc nts and

206 The Future of lI ulTllo n Rights

narntiV6 gnsp human rights movements not as ends but as a means an end, enunciated in different terminologies and dICtion of'dclllocracy~ 'rule of law', 'dcvdopment' or dle newly fangled public goods langu.s: In COntrast, and at first sight, many of the ' ncw' social movements appear as distinctly human rights-oriented. Movements confronting patn. archy, environmental degradation, racism in all its fomls. and the politiCS of imposed Identities, for ex2mple, everywhere entail recOllrse to contem· panry languages of human rights values. norms, and sundards. These movements are human rights reinforcing but also at rime innovate human rights and standards, and thus remain jurisgenerarive. In the pursuit of realization of existing human rights values, sundards. and norms, 'new' sociaimovemcnts also further produce new norms and sundards. In this, they partake the defining fea ture of the 'old' movements as well. Even so, social movement theory seems to have little use fo r human rights as providing a distinctive-even consti tutive-marker of the distinction 16 between the 'old' and 'new' social movements. 16 Sec, for e:a mple, Alex Tour.lIne (1981), Alberto Me lUCCI (1989), M~IIUel ('..astells

Ilunull Rights M2.rht"i

207

HI. Juridicalization COluentpor2ry movemcnt theory approaches to hunun rights movements neW to negan.ate the IIlclucuble features of'legahzation ' and )Urldlcaliul1OO'. These twO notions arc related but also distinct. Legalization yields to some easy description. It p.ri manly consists III the production of lawyer 's law concenllng human nghts as legislation, interpretation, Implementation, and enforcement. T he production of normative law itself b, however a complcx affair." T he complexities aggravate when we tum to the prod~c­ cion ofhulTW1 rights law, 18 celltral to which is the belief that as legal codes, human nghts norm~ and standards require constant engagement with re~liatlon ~f legality and legitimacy of state power. I....cgal and judicial actiVIsm entails the consequence that human rights movements by defininon pursue the tasks of refoml and renovation of the law. Reformation of state, parastatal, and global stnlCtures and practices constitutes a vital part of the very agendum of human rights movements. At stake in these movements remai n t~le im~ulse to make power Illcrcmcntally accountable, govenJancc progressIvely JUSt, and the state conduct increasingly ethical.

(1996). Ewn when new JOClal nlOVi:ments ~re eonsidered dlstlllCUve b«ausc lhey tr.lIIsce nd their f(IOtroneu In ebss.speclfic location s, mirror new Wily! 111 winch identltlcs sh.. pmg collecu ve behaVior are formed, and nurk the emcrgences for the ndlClllly plunhst polUiCS, Ihe spc"Clfieuy o f hunun rights n1(M!mem rt'lIIam hllk ;KKnowledgcd. M.try K2.ldor (2003) k that consolidates 'emnomie and SOC~:I relationships' as 'bei ng founded on law and ereattd by tht state', wherein all redemptive human aspirations sptak the languages ofeither to bourgeois o r socialist legality, or (to evoke Santos in a wholly different context) 'inter_ legality'. Thus, the social me.:mings of human rights norms and standards produced remain complex, and as has bten so far seen in this work, often contradictory.21 A statecentric understanding ofhum;;m rights law remains contested by the practices of contemporary humall rights activism and the 'new' social movem ents. In this perspective, the production of human rights norlllS and standards may not be undersrood as a spectacle of state sovereignty. Peoples in struggle and communities of resistance, as repeatedly stressed in this work. also emerge as the makers of human rights norms and standards. I low then may we describe dIe powtr of contemporary human rights activism, in conjunction with the ' new' social movements? Perhaps, one way to achievt lhis is to S21y that most human rights llttcr.mces belong to the genre of ptrjonllativt spccrh acts 'that create the very state of a/Tami they represent; and III each c~, the state ofaffairs is an instiu1t1onal fact'.22 The paradigmatic human rights declarations concerning equality and dignity of all human beings everywhere sign ify this perfonnarive power. When Lokmanya liIak inaugurated the Indian stm ggle for independence with the motto: 'Swam) is my birthright and I shall have it' and when Mohandas Gandhi tra nslated this into a collective feat of Indian IIldepcndenec, they were enga~ in a ~rics of perfonnativc act; so were the makers, and the successors, of the UDHR. In each case of human rights declaration/enunciation, 'the state of affairs represented by the preposLtional content of the speech act is brought into existence by the successful performance of that very spttch 3Ct'.23 This son of 'bootstr.lpping' is inherent to the invention, and reinvention, of human rights.

In eontf;l.S t,joridicalization oflmman rights, as understood here, helps understand the 'd~p stm ctures' of which their legahzatlon IS merely outward manifestation. Thus understood, human n ghts remain (10 Searle's terms) both lallgua,tt dtp(rldt:1It and tllouglu dt:pt:rtdmt . Human rights ponns and standa rds remain concelV2ble only as SOCIal facts that come mto ~ang 'by human agreement' to use the symbolism oflanguagc: 111 a sh.ared manner.24 They arc tluwg#tl dt:pnult:llllll the sense that all mstitutlonal facts 'can exisl only ... if reprcscnted as existing. 2S Jundlc2.lizatlon ordains thai these facts 'can exiS[ only if people have certain sorts of belief.:md other menu l attirudcs,.26 Because they havc 'no existence outside representation. we need some way of representing' them through b.nguagc. Human rights noons and standards are 'social objects' in the sense that they arc constiblced by 'social actS' 2nd 'flit: ob)t:fI is the lominl/OIlS possibility of acfivity'.v The distinctions I make between the paradigms of 'modern' and 'COI1llemporary' languages of human rights (Chapter 2) fully demonstrate different histories ofjuridicaliz at ion of hum an rights. Thc contemporary Iangu;ages (whether through outlawry of slavery, genocide, apartheid, scxIIIDl. ethnic d iscrimination, for example) create sociaVinstitutional facts, bclirfs and attitudes alie n to the languages o f ",odml human rights. In both, iluwnrer, a certain tendency tow.trds sclf- referc11liality remains inevitable. '11tr concepts that name social facu', S21ys Searle, appear to have a peculiar lind of self-referentiality.28 The vcry concept of'human rights' e ntails this • exuberance. When we ask why human beings should have righu at all, Ibe MlSWer is bc:c;ause they are hUIl12.n; wt:re we to ask what constiultes 'human' the answc:r is the self (individual or collectlve) that is the be;arer ofhuman rights! To say that social facts are thus ~If-referentia l is Oot an evaluative buta descriptive comment. There is Simply no way ofdescribing IOCW. racts outSide this refercntiality. Put another way, 'tllere is no W to ~hevt that the cyberspace markets for human rights provide die on ly or bot creative SOCial spaeC$. In any case, once we recogn ize the danger of Wistorical cyberspace ronunticism. It remains a fact th:n cyberspace offers a w.cful nurkr:ting tci:hnique. A fourth technique consists m converting ~ reportage of violation in the idiom and grammar of judicial actlvism. An ~mplary arena stands provided by the invention of soci.al action bngarion, pursuant to which Indian appellate courts, including the Supreme Court of India, have been converted from the ideologic.al and repressive apparamses of the state and global capital intO.an institutionalized movement for the protection and promotion ofhurnan rights. 55 The resonance of this movement extends to many a Third World society. A fifth technique is to sustain the more conventional networks of IObdarity of which tile facilitation of IIlter-NCO dialogue is a pri ncipal .ptet. Usually accomplished through conferences, colloquia. seminars, ... facilitation ofi ndividual visitS by Victims or their ncxt of kin, in n:::ct'nt taDI:s, extended to the holdmgofheanngslll5tenings of vicum groups. This dcYitt seeks to bring 'un mediated' the voices and texts of suffering to .apathcuc observers .across the world. The various Ulllted Nations sum.... provided a specucular emergence of this techmque but tllere arc more IllMituttonalized ammgements as wt:1I. All these bring thl' raw materi.al of baman suffering for further processlIlg and packaging in the media and Idurd hum;m rights m.arkcts, .A sIXth technique is rather specialized, comprising various acts of lobbpiug ofthe treaty bodies of the United Nations. This fonn of m.arkcting bunwt nghts specializes in making legislative or policy mputs in the nonn creation process, with NGO entrepreneurs assuming the roles of quasi~Uonal civilserv.allts and quasi-diplom.ats for human rights although _IS the thinking and conduct of the dtjurr International dlplom.ats and civil servants that they seek to in£1uenee. By tillS specialized intervention, this ~I[y ~ns the risks of cooptation and alienation from the community i e Violated, especially when the NCO actiVity becomes the: mirror':::~ln~crg~Vem?lellt polity. This son ofimervclltion does offer, when burna .Wlth mtegTlty, substanual gains for the progressive creation of n nghts norms,

",." 5cue here, for reasons of space, some vast antino mies involved in this coupling of the :::?~; with [he 'state' form, questions concerning thcoxymoron 'nation-

.,

... Amattya Sen (1999).

Upendl'2 O;ua (2000). '2 ~ Andre Con ( 1982). I lis thesis IS far more comple,.; than tillS title sU8!;Csts. !-hs concerns arc 10 enhance autonomy, dJiciellCY, and crea tivity III complex kno wleOrne communities of h uman righ ts activism. But granting the IItlsfaCtlon of the yet unscripted . ye t b2Sic. hmmn right to laughter, my ~nt remallls: th e On.ft Declaration reflects many an element or configufation o f collective rights of the glob;!.l c2pitill curremly firmly in place. An

Tht' Emergence of an Alternate Pandlgnt of Ilunun RIghts

260 The Future of Human RIghts exhaustive demonstration furnishes scope for another work: here a few illustrations will suffice. I attend to (g) and (d) above in some detail in the ~ction lX below, The materiality of globalization'. The right enshrined ill (b) has a long history offructuation in ways that American global corporations, during the Cold War era, sought to depose duly electcd leaders (as, for example, in Chi le) and supported, and connived with human rights-violative authoritarian regimes in Latin America, Africa, the Middle EaSt, and Asia. The rights enshrined in (i) arc already at work in the CUrTent processes of the privatization of the United Nations 7s and me formulation of POwerful inu:rgovernme nul global and regional trade organizations. The rights enunciated in (() stand poignantly illustrated in the now well-established patterns of multinational-host state collaboration rd uhing in the Judicial murder ofKcn 5.a~WiWOl. Other cxamplesof repressive compliCity abound. 50 do industry-based NGOs that elCploit the freedom of association and expression, which usually stands denied to the oppressed and the repressed, or is attained after prolonged, and often bloody, struggles. The recent emergence of Strategic Law Suits ag:.inst Public Participation (SLAPPs) deserves a special emphasis in relation to the rightS enshrined in (h) above. No reader of the work of the Georb>C W. Pring and ~m:lopc: Canan, who first Invented this neologism.76 Will remain In a position to comest melr conclusion eimer about the 'chilling effects' of SLAPPs or the ideology and material interest forntanons that these represent. As they put the heart of darkness: By filing the SL\PI~ economic IIItercslS express their intolerance for alld seek.to stifle the expression and views o f other citizt'ns, c:ffcclivcly den)'lllg the equal 'lf of citizenship so fundamenul 10 infomled politial dccisioll~maJong. SUJ'P filers justify solving politlCll disputc5 no n.politiclily on the inslS of righteous ~onoml.c sclf.illtercst coupled WIth intolc:rance faT civic-mindt'd public J»"IClpatiOn. ~lIS is an ideologic argumc:nt for cconomtC intererol1S the superior VOice in detemun· IIlg public policy SLAPFs, a dominant modality of multinational endeavours for the cancellation of the rights offr~ spc:cch and expression of individual hu~n beings, arc also directly violative of me: values of public participation affirmed by the United Nations Declaration 0 11 the Right to DevelOPmem.n And it would be a mistake to conceive of SLAPPs as wholly 75 Tht'K is no other "'~y of ckscnbmg the: ~tatc: of some of Ihe current miliaUVd hUIlUII rights. 76 Entltkd SLiPPJ. CttlltW Sutdfor Sprftlng Out (1996) 221. n Upendra IbxJ ( 1998).

at 'mamsueammg'

261

cbs ncllve Amerian phenomena. Globalization of legal technique now

:nl:rc:sc:d

that South human rights activists stand equally, evt.n more, conby Its 'chilling' potential.

VIII. The Paradigms m Conflict '(be new paradigm may succeed only if it can render unproblematic the voitts of suffering. This occurs in many modes. One such IS rationality monn, through the production of epistemologies that nonnalize risk (dJtre is no escape: from risk), ideologize it (some grave risks arc justified ror the sake of 'progress', 'development', 'security'), problematize causaDOn (in WOIYS that the ca12strophic imp.acts may not ~ traced to activity rJi global corporations); raise questions, (so dear to law and economics specialists, conceming efficiency ofleg;!.1 regimes of liability) interrogate eftI1 a modicum amount of judicial activism (compensating rights'fiobtion and suffering, favouring-when risk management and damage oontainment strategies fail-unprineipled and arbitrary extra-J udicial settlemnu). It is not surprising that some of the most important questions in JIobahzation discourse relate to how we should conceptualize 'victim'; who nuyauthentically (on behalfand at the behest of) speak about victimage; - what, m d~, may be said to constitute 'suffering'. The new paradigm asks us to shed the fetishism of human rightS and ~ate that in the absence of economic dc:velopmelH human rights havc bo future at all. Some behavioural scientists urge liS to believe in a quanthativt- methodology that produces results, ttrtainly for them. demonstratinga positive co-relation between fore ign direct investment, multinational capital, and observance of human rights. 71I It is easier to combat dictatorial regimes that suspend human rights on the ground of priority of economic dtvt:lopmem than to contest the Gospel of Economic Rationalism, which .. mystified by new scholasticism content with the assertion, for example, that 'meso--dcvelopmcnt' is best promoted under conditions ofauthoritarIan 8OVem ance.79

Fautr dr minIX, human rights communities must now work within the

~s and

imperatives of economic rationalism ; they must not only toYtr the high ground of posunodern political theory but also the new ~tut'onal economics, maintaining, at the same time, constant convcrIItion with human suffering. .~

_ dus Ilh~m "

H. Meytr (1996) 368-97. Hut 5tt (or I~ mht'r IIIdncmlinatc findlllg kOk, Wesley T. Milner (2002) n.JJ7. ",,""Id Ibnkltiv (1994); see also Cathanne Caufdd ( 1996).

262 The Future of Human Rights

The paradigm of universal human rights progressively sought norma. tive conSC'nsus 011 the j,utgtlty of human rights, though expressed in differ. ent idioms. The diverse bodies of human rights found thclr hIghest summation With the Declaration on the Right to Development IIlSistlng that the indiVldual is a S/lb)ttt of d~pmtnt. Plot iu obpl. The etner~nt p;aradigm reverses this trend. It seeks to make notJust the human indiVidual but wlloI~ IlaliellS into the obpts ofdevelopment, as defined by global capital embodied in the 'economic rationalism' of the supr.Htatal networks liu the \VOrld Bank and the lMF, which are neither democratically composed, nor accountable to any constituency save that of the investors. Their prescriptions for re-{)rientating the economic structures and polices of the indebted and impoverished Third World societies, far from bcingdesigned to make the world ordercquitable, stand add ressed to serve the overall good of world hegemonic economies, in all their complexity and contradiction. Prescriptions of 'good governance' stand viciously, and nOt surprisingly, addressed only to states and communities outside the cort! Euro..Atlantic statt!S. Even so, in good governance stands articulated a set ofarrangements, including institutional renovation, which primarily privileges and disproportionately benefits the global producers and consumers. T he paradigm of universal human rightS enabled the emergt:nce of the United Nations system as acongreg;;ation offaith. Regarded as noomllll»' tent deity but only as a frail. crisis·ridden arena, it became the privllegW historic site for cooperative practices of reshaping the world through the idiom and grammar, as well as the vision, of human rights. The: votaric:s of et:onomic globalization who proselytize free markets that offer the: best hope for human redemption now capture this arena. But the residue of the past cultures of universal human rights remains, as has been recently manifested in a United Nations document that dares to speak aboutpnvrtsf forms ofglobalizatien: namely, those which abandon allY degree of respect for human rights standards and n onns. 80 A moment's rcllection on the wro agreementS and the proposed MAl should demonstrate the truth of this assertion. But, of course, at the end of the day, no United Nations fonnulation would go thus fa r, give:n itS own diplomacy on resourcing the system and the emerging global economic realities. The Vienna Conference on Human Righ ts Slimmed it all lip with itS poignant preamblilatory reference to 'the spirit of our age' and 'realities of our time,.81 The 'spirit' is hwnan rights vision; the 'realities' stand furnished by headlong and heedl~s~ processes of glObalization creating in their wake cruel IDglcs of soCIa exclusion and abiding communities of misfortune. 80 Sehould it be parsimo nio us, referri ng o nly to foundatlo na core, o r key texts developing the international standards, and norms 0

r

6 Juhm

·--'1010 fcOlIlScone (1964) descn bed thIS as the u1iem Item, In theJu(hcu-I rouo

mo n bw In terpreullo n.

~tional I ~w? I-Io.w is ~ is determination to be made? We may note

here dut. unltkt theIr natio nal counterparts, human fights legislauve ~ rson5

cnjoy even mo re contingent location, all too often task ..,ecilic, within the ever-expanding institutio nal nerwork of the UllIted NabOns systems. Independent experts, special rapporteurs, o r even expert g10UPS remalll guest artists within the system , working WIth sparse servicJDg sccreuriats-a usually compact and circumspect group ofofficials. The buman nghts d raftspersons, drawn from the worlds of acadelnta and now IQCw and hum:rn rights movem ents, stbbylSU, and the Congress becomes a arg:unmg Clam clll \lfitd ,., d ",\d' ( 1999 at 24 fn 19) Ways of rcwmg Rawls, superbly cx P 1;I(t be"wit all ' .' __.......l I Even 50 thc p by Thomas I-'oggc (2002) yield dlamc:tncally op"",",u COI~C US10IU. ' llld udl1,g of hUlll.~n nglltS responsibilities of big and small busmess emcrpnscS, tnnSnatlonals, rennms amblv:illent III tillS corpw.

299

voluntarism and e nforcement.52 Volunurism necessarily Sttks to minimize d1~ range of human rights rel>ponsibiittl(:s extC'ndable to trade and businc=ss. This 'mainstTeaming' of human rights further c=ntai l~ the problem of fTag1ncnution of the universality, illimiubility and indivisibility of human nghts.ln contrast. the Nonns suggest maximal enforcemc=nt of almost aU human rights. If voluntarism enQils a smorgasbord approach to human righ ts. in which corporate CEOs may choose to feast, enforcement is more like a prescribed Spartan diet. It entails imposition of external llOnn.tivity on the 'inner order of association' (to borrow the phrasc= from Eugene Ehrlich) of transnational governance and business conduct. H u man righl'i norms and standards may emerge, in this context, as 'hypem orms' that furnish a ' limited set o f universal principles that constrain the relativism of (business and industry) community moral free space,.53 The Integrated Social COntact Theory that Donald son and Dunfee propose, of coursc, assumes that 'that norm-governed group activity is a critical component of economic life.'SoI Hypernorms arc 'principles so fu ndamental to human existence that ... we would expect them 10 be reflected in a convergence o f religi ou~, philosophical, and cu lturnl beliefs'.55 Clearly, hypcmorms, in the discourse of busi ness ethiC5, do not extend to all human rights no rms and standards, applicable across tlll fon115 of corpornte governance and business conduct. The NornlS, and the Commentary, however, presum(: otherwi~! An Im portant reason for thi~ hiatus is furnished by the felt necessity in busint'S5 ethics discou~ to translate hypernorms further in the languages ofhypcrgoals.56 A closer analysis may wdl reveal the pote:nti.. 1 to bridge Ihis gap---a task I do not essay here for reasons of space as well as of competence. Yet, it is cic:lr that not tlll human rights responsibilities of Ctansn;,uional corporations and other business enterprises, as en visagro by Ibc Norms and the Commentary, render themselves open to a business nhic discou~ of hypcrgoals. I, incidenully, illustrate this in what now follow,;, ';l The former tefer.s to rebtivt' aUtonOmOlH self-rcgubuon uf tnlde and bmmf:5s Mille the bttcr signifies a reaJ hfe, and variegated. rcCOUI'SI: to a rather a p;lr.simonious -.cmblagc of lllOnVeducaJ gtudehna, the fCW( r the bellcr remams nomlaUve apPtoach IS guided perhaps by the difficult I k gehm Iheme of quality conve rting luclf ~~\t\1,l1\y mto qu~nu ty. !>4 Tho lllas W. Dunfee (\999) 129 ~ t 146. ~\ IbId .. 145. St Ibid., 146. S« Thomas W Dunf~ and TImothy L Fon (2003).

Marut Fundamenulisms 301

300 The Future of Human Rights

(C) 'Orle Size Fits All Non1lativity' This question, at the end of the day, stands posed both ideologically and empirically. Ideologically, the histories o f global capitalism and human rights suggest that hopes for human rights ac hieve m~n t may md«d be overstated .57 Put more manageably, in the present context, the question is: How far may the notion of business ethics orient itself to human nglus? Can it, consistent with its originary t:r.ldirioos of discourse. go as far as the Norms suggest? Is there a core aspect of doing business that necessarily enuils 'trading away' human rights? How may human rights implemcn. tation approaches, unlike voluntarist ones, necessarily inhibit the gigantic, werewolf, appetite for profits and more profits at the cost of people's rights? The broad empirical questioll is: Whaifwhich 'human rights' may applyl extend to multinational corporations and other, related , business organi· Z2tiolls? I o nly address the latter question here (again for reasons of space) . Fif'Sf, given the diversity of economic enterprises as well as of internatio nalmode of production o f human rights, raises the question whether hurnan rigllts fundam entalist approaches adequately address and exhaust e mpirical and normative conceptions concerning 'social respollsibll1ty' of trade and busllles5 formations and practices. Put more manaboeably the questio n is: Which are the right language and rheto ric-those furni shed by the gnmn1ar of human riglltS or the wider languages of'social responsIbIlity'? Do human rights langu~s and logics adequately recast 'social respon· sibility' ofnlUitinationaVtnosnational enterprises, no nutter in how complex and contradictory ways? How may we, funher, locate authorship of social responsibility in the normative evolution, as well regression, of fonns of interstate consensus and conduct, fully exposed toview in the inten111nable wrangle concerning the fonru o f ' hard' and 'soft' intentational12w? What warrant o n human futuresjustify the adequate dialectical descrip tion o f not o nly the Stories we may choosc= to teil about how 'soft' law becomes 'hard, law bm also narrati~s concerning the softening of the 'hard' law? How may we further understand also the narratives concerning the softening of the 'hard' human rights law. conspicuously manifest in the Kofi Annan-led United Nations Global Compact? It ,clearly, now empowers multinational corporations to pick and choose among human rights norms and standards that may bind them. with the mOSt feeble accoumabiHty obligatio ns. Suorld , the re eme rges the co nflict between vo luntari sm and maximaliution; that is. between corporate self-selection ofappl icabIlity of human rigllts norms and standards versus hum2n rights maxlmalizatlo ll • 57 C hlpttl'S 2 and 8 explore some aspects of tillS relation.

now abundantly exemplified

by the Norms. A.l1 this raises the issues of business ethics in evolution; advocacy of maximal incorporation ofhunun rights norms and standards is more likely tostymie their nonnative: binhmg. On the other hand, trade and business nonnarive shopp11lg hsts may legatimize 'free choice' (in the fullest sense of the tenn) that may result 111 abortion. even amniocentesis. of progressive human rights futures. TIlird, impltnltnf4tion issues, thereby, also become ISSUes of diverse fight. irlgjaiths. On the one hand, the proponentsoffree market fundamentalisms may demonstrate polemically the perils of strict, comprehensive, and iI1sunt implemenulion to the very agendum, and tasks, of the human right to development; o n the o ther hand, the advocacy of fullest advertence to contemporary hunun rights may nornlatively suggest the lack of any half· way house amidst the clash o f market and human rights fundamentalisms, often fierce, no matter how dispersed o n di verse sites. Fourth, even as we may closely attend to the complexity and contradiction in human rights discursivity, the no n·discursive clements do indeed nutter. I recourse here, in a sho nhand language, to the issue of impact of current. cruel, and endless 'War 011 Terro r ' and ''War !?fTerror' both on the CSR and human rigllts languages of corporate and business responsibilities. The New Imernational Miliury O rder, decislvdyemergellt in a post9/11 world ordering, marks an extl"2Ordinary revival of defence and global annaments 'miliury-ind ustrial complex' (to invoke a yesteryear, anachronistic, phl"2SC). All this raises extraordinary questions for the hUlllan rights. Iypc business and industry human rigllts rcsponbl itUe5 proposed already by the Nanns. If this prescriptive nonnativity forbids, as a matter of an ~rarching principle, that trade, business, and industry may not profit &om human, and human rights abuses. where indero may one locate the 'ethics' of scramble for contracts in the current 'postconflict' Iraq mi lieu? Does In anyway the now privileged Status of the Iraq war coalition favored allocation of commercial contracts for the 're·building' of Iraq violate the Norms on the one hand and the cvcr proliferating business ethic literature concerning hypernorms and hypergoals o n the other? How may we relate «PCcially in the latter context, the basic principle that no one may thus profit from such abuses? The Norms and the Conunenury ambivalently repudiate the rather gruelling choice expressed poignantly ill the lIlvcim 'half a loaf is better than nOlle'. The q uestion, put in the metaphor of the Genetically modified (GM) food discourse. directs attention to the necessity of choice betwccn the human rights 'organic' and the human rights 'mutated' versions of responsibility regimes of transnatio nal corporatio ns and o ther business enterprises!

302

The FUlure of J-Ium:m Rights

To conclud~, I su ~ t a full ran~ of 'precautionary principle' (so recently adumbrated III th~ discourse o f the Cartagena Biosafety Protocol) to funhcr exercises alO1w at tile develo pment of the Nonns. The endeav. o ur al wholesal~ medl;J;tion of free nur~t fundamentalism via coequal human rights fundamenDlist languages and logics ofcontemporary human rights values, standards, and nonns raises impond c l7lbl~ issues 111011 now invite even funh~r heroic f~ats than those now r~adily;J;va l lablC' III the prose of the Nonns and the Commentary.58 51 Reference here is nude to a rc:cc m cOTltribUlion of pol1l1cal pluJosopber Ins Moms Young (2004), where she. In the m.;Un;and in the COntexts ofJusufll::ltlon for ann-sweats hop :lCI1V1SI human rights movements, rightly advocates movement from Ihc liabdlty-bued 'blame model of responsi bility' to a 'shared pohuol responslhillty model', in which the followmg man.! p~s remain pre-cminenl. fi rst, mlhlS model of pollnol re'ponslblllty (u distinguished from the convennonal c1YiVcnminal legal lwnllty reglllles) we accep t 'a responsibility for what we have not done' Simply hcC:l.u:;e many 'ases of hums, wrongs or injustice havc no isobble pcrpelntor, but rather result from the part1clp~tioll of mllhons of people in institutions and pr;lclices thllt n'~ult In hamu' (at 377). Second. Ihe conceprion of pohrial responsibility is one 111 willch 'fi ndmg that 50me people bear responsibility for inju$uce does not neccssanly absolve othen' (at 3n). Third, such a conception renders problemauc, III waY' that the: lel;3l lubillty appn»c:h m.. y not. somc: of'the normal and accepted b.ckground condmolU of acuon' (at 378). Founh, the ellu re pomt of the shared polmol responsibility model 1$ ·to bnng about results' n the:r !han to apporuon blame: and sh .. mrcss). Bamford, James (2004), A Prrti"Xt for u,'&r: 9/11, IfIUI, a,uI tlU! AI)ljJ(' of Amm'co's I tltdli$"l(( A~ (New York: Doubleday). IlJrsh, Russel (1994), ' Indigenous Proplcs in 19905: From ObJCCt to Subject of International Law', Ilamml NU/Mll Rights journal, 7: 33. BmioUlll, M. Chenf (1994). 'Enforcing I-Iuman Rights Through Imenutional Criminal Law and Through Intemaoonal Cnmllul COllrt'. In '- '-lenlun and '- Hardgrave (cds). 1111""'11 RI,~lts: All ~jw IN Next Gmt"!)' (Washington DC: American Society of IlIknuUolul Yw). U~ udrilbrd. Jean Franc;OIS (1975), 1M Mmw!?! Prudlllfiofl , Mark Poster, trans. (St Louis: MO. Telos). Haullun, Zygmunt (1998), Globolimtiotr: 11w Hllmatl CctlJafllnlC"tJ (Cambridge: Polity Press). Baxt. Upcndn ( 1982), TIlt Crisis ~ Indion Ltxa/ Sysfml (New Ddlu: Vibs). - - - (1987), 'From Hunun Rights to me Right to Hemg Human', in Upcndn Haxi, GeeD Sen. and Jeanectc Fernandes (ed.). 11w Righi 10 ~ Hur""n 27590 (New Dtlhi: India Internaoonal Centre). - - - (1989), 'Taking Suffenng Seriously: Social Action Litigation lkfor-c the: Supreme Coun of India', 111 Upcndra lbxi (ed.), lAw and ~: CtWal Essays. 387-415 (80mlny: N.M. Trij»thi). - - - (1990), Libmy and C«ruptiort: TIlt AntI/lay Gut and IkyotuI (Lucknow: .Eastern Book Co.). - - - (1993), Marx, lAw ",111 justia (l30mlny: N .M . Trlpadli). - - - ( 1 994~), Inlllunan Wrott~ aud Humall Rights: U,rtotfllnlliofllll £SSlI"!" (New Delhi: Har Anand) . - - - (1994b), Malllbrino's IIdmtfJ: HII"",1l Rightsp a ~Itfill,~ lVarnl (New Delhi: Har Atund). - - - (1995), 'Justice :1..\ Emanclj»tlOII: The: Lcg;acy of Ib.lmaheb Atnbcdlcar', In Upcndn. B:oo ~nd Bhlkllu Parekh (cds), Crisis aNi Clwngr In Cctll~mporory India. 122-49 (New Deihl: Sage).

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Author 1ndeJr 331

Author Index

Abu-Lughod,J .236 Adorno, T. 223 Agamben, G. 2, 3, 4, 13, 53, 132, 138, 228, 229 Agnes, F. ISO Albrow, M. 235, 246 A1exandrowicz, C. 120 Ali, Shaheen Sardar 102 Alkire, S. 202 Alston, I~ xviii, 18, 107, 114 A]thus~r, L 59, 60 Amencan Anthropological Association, In Amena.n Auocuuon for World Health, 157 Anand, A. 70 Andrewll. L. B. 279, 271 Anghie, A. 120 An-NOlim, A. fIl Anonymous. 70 An-Pyong. Jlk 41 AntOny. L. M . 14 AppOldurai, A. 241, 246 AquinOlS, St Thomas 26 Arendt, H. 27, 130, 131, 133, 143, 147 Arrighi, G. 70, 237 Asad, T.196, 197 Atali, J. 239 BOldiou, A 193 Bagguley, p. 115. 120 BOlter, K. 195 SOlkhtin, M. M. 139

&lbus I. 122 &libu, E. 70 Ihlkin, J. M. 21 B:.unford, J. 171 Ihrsh, R. 136 Ihssiouni, M. Cherif 1 I lhudriJlud, J . F. 98 »OlumOln, Z. 156 Ihyefsky, A. 54 Beck, U . 95, 116, 118, 264 1kcker, G. 220 Beia, C. 286 Bamford, R. 201 BenjOlmin, W. xiII, XII Benthall, J. 223 Berbm, L. xvii Bernstein, J. M. 121 Boc:ur, Ihrlw. A. 270 Bonunn-l.01rsen L. 296 Boothe. W. C. 149 Bourdieu, P. 67, 219, 289 ~n, T. 86 Bowie, M . xxiII Boyer, R 242 Boyle, K. 163

BrOldiotti, R. 135 BnithWOlitc.J. 64, 65, 71, 97. 237,239 Brenner, R. 235 Brighouse, II. III British Medin] Assoc;~tioll 265 Brown, W. 48. 55, ISO, 154, 158, 162

Bruno, K. 249

,

BuchOlnOln, A. 188 Bunwoy, M. 60, fIJ, 101. 242 Burk, D. L 270 Burley. J. 270 Butler, J. 135. 160, 161. 167, 1f1J, 175 Buttel, F. H. 202. 211 Callero, P. L 16, 119 Camus, A. 56 Unan, P. 260 Drdenas, S. 64, 93 Cudens. J. H. 61 Castells, M. 60. 66, 206. 212-13, 220, 225, 243 Caufeld, C. 261 COlveJl, S. 197 ChOl.l1dler. D. 65.79 ChOlndoke. N. 206 ChOlnock, M. 148 Ch...,lt'S'NOrth. H. 265. 266 Cmmov;a, S. 71 Chasblon, A. 101 Clutteljee, R. 264 Chell. J. 236 Chin, G. 214 Chomsky, N. 157 Chua, A.. 245 Cixous, H. 149 CiOlphml A. 286 Cbude, R. P. 265 Cohen, Robin 201, 21 I Cohen, S. 222-3 Cole, P. 190 Coombe, R. 241, 253 Copjc