Contesting Human Rights: The Legal, The Political, and the Structural

by Ioana Cerasella Chis

The Effectiveness of Human Rights Norms in Changing State Behaviour

With the Universal Declaration of Human Rights in 1948, every person has, as stipulated in the document, a set of universal, inalienable rights. Since then, the human rights discourse (and, since 1994, ‘human security’), together with the concept of ‘democracy’ have been invoked much more widely by various actors, becoming what Laclau calls ‘empty signifiers’ (1995:43). For instance, the median use of the term ‘human rights’ by six of the world’s leading media outlets ‘rose 95% from 1986 to 2000’ (Hafner-Burton and Ron 2007:379). Does it mean that human rights have been increasingly respected, or on the contrary, violated more?

The central question is therefore whether human rights treaties can foster democratic reform ‘among the worst abusers’ (Hafner-Burton and Tsutsui 2007:408) and whether the international law is effective in ensuring that countries respect human rights. Even when human rights treaties are respected, their implementation occurs at a slow pace, for there is a tension between the ‘principle of universal human rights and that of state sovereignty’ (Lechte and Newman 2012:522). Moreover, treaties are sometimes used to take international pressure off the signing countries, without actually implementing the agreement (Hathaway 2002:1938). From this brief illustration of the use of human rights by states we can see that a variety of dimensions arise, related to universality, ethics, politics, autonomy, sovereignty, control, and so forth. These empirical findings allow us to reflect on the impact of human rights in practice and in diplomatic settings.

How Different Actors Use the Human Rights Discourse

The Secretary-General of the UN, Kofi Annan affirms that ‘we will not enjoy security without development, we will not enjoy development without security, and we will not enjoy either without respect for human rights’ (2011). The link between security and human rights clearly implies the UN’s move towards adopting ‘human security’ measures which run the risk of militarising geopolitical areas labelled as ‘insecure’; subsequently, democracy could be affected through the creation of fear and violence upon the people who (supposedly) need protection. At the state level, William Hague, the UK Foreign Secretary states that ‘the Universal Declaration […] proclaimed a simple, powerful ideal: that all human beings are born free and equal in dignity and rights’ (2013). Claiming that human rights are an ideal and not a reality shows that he does not believe in actual equality between all. Furthermore, it is often the case that in human rights debates, non-human beings are overlooked as a result of the still popular Cartesian dualism human/nature. Opposing this stance, Vandana Shiva, an environmental and human rights activist, argues for a more entropic approach to rights: ‘defending the rights of Mother Earth is therefore the most important human rights and social justice struggle. It is the broadest peace movement of our times’ (Shiva 2011).

The Middle Eastern asylum seekers whose right to asylum had been ignored by the UK raise crucial concerns: ‘it is just a drama that you have human rights, but there are no human rights, not in the UK’ (Detention Action 2013:3). On the other hand, Colonel Tim Collins, a British humanitarian soldier, would disagree with the aforementioned point as he argues that soldiers go to Iraq ‘to liberate and not to conquer’ (Collins, cited by Douzinas 2007:8), strongly suggesting that the UK is preoccupied with human rights. From a post-colonial perspective, Chidi Odinkalu writes that the portrayal of human rights as ‘“impartial”, “unbiased”, “neutral” and “non-political”’ (2000:3) takes away references to socio-historical struggles which had contributed to their proclamation. For this reason, according to him, more Africans reject the human rights project, as they see it becoming ‘increasingly a certificate of privilege’ given to organisations by Western funding actors (2000:3-4). After decolonisation, African countries still suffer from Western dominance, called by Gayatri Spivak neocolonialism, which can be defined as similar to ‘radiation – you feel it less like you don’t feel it – you feel like you’re independent’ (1991:221). A trace of the ‘efficient’ coexistence between neo-colonialism and neo-liberalism can be depicted in the adoption of human rights language and principles by global companies. Notably, G4S, the largest security firm in the world, claims to play a ‘lead role in the development of professional standards and human rights politics’ (G4S n.d.), having identified ‘the core human rights which are relevant in our line of business’ (G4S 2012). Yet, G4S have been accused by non-governmental organisations for actions which contravene the law, such as detaining and mistreating refugees worldwide (Malik 2013; Boycott Workfare 2013).

Actors attach to human rights often antagonistic meanings, relating and subordinating rights to certain forms of sovereignty, in the name of which ‘one attacks another’ (Derrida 2005:76). Human rights are the symbol of both political dissent and state legitimacy. Their discourse, then, indicates an extension of (state) power (Simonsen 2013:2), but also of individual will (Douzinas 2000:11); some social movements have used human rights talk to ‘make power visible’ and challenge its unequal distribution (Stammers 1999:989).

The Philosophical Foundation of Human Rights from the Enlightenment to Present: Utilitarianism and Liberalism

The discourse of human rights has suffered changes throughout history, shaped by political upheavals for the aim of achieving equality. Natural law was first invoked in Antigone’s ‘unwritten laws’, and transformed into ‘natural rights’ in the seventeenth century, preceding positive law (Douzinas 2000:8-9). Natural rights placed man (as rational being) as their source – however, this meant that there was no structure or organisation in place to oversee their enforcement. This abstractedness and alleged subjectivity of natural rights (Escamilla 2008) made Jeremy Bentham question their validity, considering them no more than a ‘perversion of language’ and ‘rhetorical nonsense – nonsense upon stilts’ (Bentham 1843a). Bentham has a different vision for substantive rights, both in terms of practice and philosophy: he advocates for fundamental legal rights which follow the ethics of utilitarianism.

Utilitarianism is a nominalist moral philosophical doctrine formulated by Bentham, and developed further by John Stuart Mill. According to Bentham, individuals seek to achieve happiness by establishing a balance between pleasure and pain; a certain threshold of pain is acceptable, provided that it is useful for the pursuit of a higher level of happiness – what matters is the duration and intensity of pleasure, as an end (Crisp 1998:10-12). As for Bentham happiness is quantifiable, it follows that it can be measured within a community as the sum of every individual’s happiness. In contrast with Bentham, Mill argues for the hierarchisation of happiness, granting mental pleasures higher value than physical and material pleasures.

The Legalisation and Securitisation of Rights

With regards to the law, Bentham takes a positivistic stance, arguing that ‘rights are the fruits of the law, and of the law alone’ (Bentham 1843b). In other words, he focuses on the consequence of punishment and legal implementation in relation to the ‘greatest good for the greatest number’ (ibid.). In line with his motto ‘obey instantly; criticise ceaselessly’ (Warnock 2003:6-7), legal human rights ought to be based on a law which recognises duties as well as sanctions, to avoid their arbitrary use. However, he makes a distinction between ‘private’ ethics and law, the essence of ethics being utility (Bentham 1823:239) which precedes law enforcement. Following this logic, unlawful actions can be exempt from punishment, as punishment can only be enforced to counteract a ‘greater evil’; essentially, ‘all punishment is evil’ (Bentham 1823:1).

Mill believes that rights are claims made by their bearers through the law. This fundamental principle is underwritten by ‘general utility’ and security, because ‘security no human being can possibly do without’ (1998:98). The combination of liberty with security is desirable for protecting the interests of the solipsistic individual. In effect, Mill openly states that the freedom of speech and of act are to be granted only to ‘human beings in the maturity of their faculties’, as opposed to ‘those backward states of society in which the race itself may be considered as in its nonage’ (2003:95). He further explains that it is ultimately the community that has to accept one’s rights claim (1998:97), although this comes in contradiction with his criticism of the ‘tyranny of the majority’ (2003:90). This restrictive practice further ignores and silences the victim of human rights violation. Mill’s proposition seems to naturalise social, political, and economic inequality, leaving no space for contestation by the ‘barbarians’, as they do not have the same means to stage their equality. Furthermore, the link between rights and duties supported by Mill and Bentham form the metaphysical basis for the creation of institutions. Although theoretically the members of an institution can have additional rights recognised, legal change is difficult to implement due to the institutional concentration of power and sovereignty.

Additionally, utilitarians’ dismissal of natural rights is as much unfounded as is the total dismissal of modern human rights by contemporary sceptics. Natural rights have an important legacy and history that need not be forgotten, but documented and remembered. As such, rights should be understood in terms of their historical context. For instance, in 1550, at the trial in Valladolid, Bartolomé de las Casas, a Spanish missionary, defended Indians’ right to be recognised as equal to their invaders. In his speech he appealed to natural law, from which the universal human rights derive. He said: ‘all people of the world are human and […] all the races of humankind are one’ (Brown 2013:107) – a radical statement in his time which places the indigenous on the same level with the Spanish ‘masters’. The main lesson to take from this historical episode is that had natural rights not been known, the development of human rights might have been different.

The Legacy of Utilitarianism on Liberalism

The contradictions within utilitarian philosophy are prevalent in neo-liberal institutions. There can be conflicts between the overall happiness of a population, and the respect for human rights (Gibbard 1994:93). Since the Declaration of the Rights of Man and Citizen in 1793, the state has been invoked in securing these rights on people’s behalf, as it ‘is instituted in order to guarantee man the enjoyment of his natural and imprescriptible rights’ (Declaration, in Anderson 1908:171). This is a communitarian perspective, which can lead to different forms of discrimination due to an unequal distribution of power. Furthermore, utilitarianism, combined with market logic and liberalism, leads to a dehumanising process, influencing organisations which represent human rights to define their rationality in terms of efficiency and instrumentality. Thus, they hold the power to make value-judgements as to what and who should be prioritised. We shall now explore the extent to which the United Nations satisfies the principles of utility and protection.

The UN as the Institutional Reification of the Link Between Human rights, Liberalism, and Security

The utilitarian focus on the happiness of all has been upheld in the twentieth century through the set-up of international bodies and nation-states. The legitimacy of human rights after 1948 has been based on the existence of these entities which have taken up the role of looking after the wellbeing and utility of the (inter)national community. As a result, optimists cherish cosmopolitanism and universality – they attribute the UN a radical potential as the enabler of globalisation and enactor of human rights. The Universal Declaration of Human Rights was adopted in 1948 by the United Nations (as a declaration), but the rights were adopted in 1966 and entered into force in 1976 with the legally binding International Bill of Human Rights (UN n.d.). The international ‘efforts’ have been put towards reaching ‘consensus’ within liberal organisations, and ‘universality’ of human rights. Fifty years later, in 1994, the notion of ‘human security’ entered the international politics discourse and policies, widening the power relations between refugees, citizens, and the state. Human security comes in contradiction with ‘human rights’ at times, as it places homogeneity and communitarianism at the heart of the Western political aim. Furthermore, by ignoring to address the limitations of utilitarianism, Western countries come to believe in the actuality of the positive alterations and political changes they have been making within the neo-liberal framework. Although the human rights project has the potential to take a further step towards equality, it encompasses serious limitations which stem from the merging of liberalism and utilitarianism as the dominant political rationales on the international arena. Additionally, the power of the state to grant rights risks withering away the history of the struggles which had contributed to the emergence of rights (Douzinas 2009). Human rights are then reduced to being mere solutions to problems of institutional design (Gibbard 1994:94), a clear example being the Syrian refugee crisis and the UN.

The Institutional Failure of the UN in Relation to the Syrian Refugee Crisis

Discussions about the inefficiency of the United Nations are not new (Gold 2005:6). An organisation which increases its responsibilities and departments in order to address complex international issues, the UN has often been accused of not having enough resources to implement human rights (IRIN News 2013), being bureaucratic, interventionist and ethnocentric, unaccountable and undemocratic (Weiss 2012:26-7;113;129). The UN has been criticised also from a utilitarian standpoint: Habibi accuses the UN for taking a stance and using a disproportionate amount of resources on the Israel-Palestine conflict, losing ‘sight of their own professed values’; he regards politicisation as a ‘moral failure’ (2007:3).

In 2013, a new scandal erupted about the efficiency of the institution, as the Syrian refugee population rose to at least 6.5 million (Edwards 2013). The UN High Commissioner for Refugees on Syria admitted in September 2013 that Syria had become ‘the great tragedy of this century – a disgraceful humanitarian calamity with suffering and displacement unparalleled in recent history’ (Guterres, cited by Amnesty International 2013:1). However, his plea to the UN member states to donate money has not been met. States have failed to fulfil their pledges of sending financial aid to Syrian refugees, raising collectively only 40% of the sum estimated by the UN to be needed. Even more, the countries which supported military action in Syria have offered the least support to resettle refugees (Amnesty International 2013:2). Although neighbouring countries have generally accepted the entry of Syrian asylum seekers (ReliefWeb 2014), those who do not possess identification documents are not allowed to cross the border. Even the UN stopped the distribution of food vouchers in October 2013 to 30% of Syrian refugees in Lebanon with the justification that the Syrians in cause ‘are not dependent on the aid they receive’ (IRIN News 2013). It is not an exaggeration to state that the provision of rights is often reduced to a piece of paper.

In a capitalist-dominated world, states are deemed to act in utilitarian terms. Bureaucratic legal processes (e.g. giving aid to refugees on the basis of proof of identity) have not improved the situation. On the one hand, these documents amount to no value when the UN does not have enough resources; on the other hand, undocumented refugees are at risk of being dismissed as disingenuous for the mere fact that they do not possess these documents. Thus, in addition to the lack of aid resources, legal formalism ─that is, the legal positivist assumption that the law has an internal rational structure (Davies 1994:115)─  is another impediment to ensuring that refugees have access to human rights, and that the principle of hospitality is upheld. At the same time, it must be recognised that the law is the medium which also facilitates collaboration between states to support refugees.

A Critique of the Collapse of the Political into Law

From the brief analysis above, the plethora of dimensions of human rights emerges. The paradox is that although governments were the enemy against which human rights had been initially formulated, citizens rely on the state to recognise, protect, and enforce their rights. This means that the state can impose conditions upon the acceptance of asylum seekers, invoking ‘human security’ (the rebranding of ‘national security’) as more important than welcoming newcomers. This is at odds with the principle of human rights (Douzinas 2007:7), making citizens complicit with inhospitable asylum systems (Douzinas 2007:10). It also contravenes the Human Rights Declaration at the World Conference which claims that ‘it is the duty of states, regardless of their political, economic and cultural systems, to promote and protect all human rights’ (UNHCR 1993).

Rights, through the process of legislation and acceptance, become positivistic and historicist, placing the validity of a claim within an a priori judgement of what is just. This framing of temporality does not allow new views to be heard and additional rights recognised. They always-already lack the possibility to be altered by the inscription of new claims, new experiences and visibility; the refugee, it follows, always comes ‘too late’. In 2009, the UK Government adopted the Detained Non Suspensive Appeal (DNSA) which does not allow people to appeal (whilst in the UK) against the Home Office’s refusal to grant asylum (UKBA 2012). Often, accounts of rape made by asylum seekers are deemed unfounded, as they cannot be proven within the norms set by visual, scientific, or technological means, and within a certain time scale (Refugee Council UK 2012:5); torture survivors can be labelled as ‘illegal’, and subsequently detained (Travis 2012). Politics, it appears, has no place within the law.

Jean-Luc Nancy makes a distinction between politics and the political. The political is the space for contestation which preserves the possibility for dissent, organisation, and affirmation of power. Politics is an institutionalised power which does not allow subaltern voices to interrupt its workings. Therefore, politics is not political but apolitical, ‘against politics’. Subsequently, we can make a parallel between human rights as the symbol of the UN Declaration, and the human rights invoked by people, recognising the distinction between the structuralist and agential discourses. Here is where ‘the political question’ arises. In other words, the political is, as Nancy said, the ‘essence of politics’ (in the sense of an essence of openness); additionally, for Rancière, the essence of politics is the dissensus of the demos, as it maintains the possibility for the political. To come back to the link between law and politics, Hutchinson and Monahan rightly state that ‘law is simply politics dressed up in different garb’ (1984:206); accordingly, the law is the equivalent of Nancy’s ‘politics’ which orders and limits possibilities for dissent. Within such a context, the political collapses ─ it withdraws into law (Nancy 2000:47).

Law is the reification of justice into practices which become materialized through institutions. Claims to its neutrality and its separation from morality (the tension between jurisdiction and jurisprudence (McVeigh 2007:ix)) coincide with its depoliticisation. Against liberal legalism, Critical Legal Studies scholars want to ‘demystify’ it (Davies 1994:143) and denounce the highly interpretable, subjective, and ideological nature of liberal jurisprudence, as judges can ‘make’ the law (McCormick 1999:414; Leung 2012:92). Law is then a technology of power which can be used to subjectify and partition identities, to create metaphysical ‘order’, but it can never become total. Indeed, rights are still widely understood as institutional rights, based on the inalienability of the law, being arguably the realised myth of postmodern society (Douzinas 2000:8). Yet, I contend that neither the power to make legal decisions (jurisdiction), nor its philosophical underpinnings (jurisprudence) should be perceived through deterministic lenses.

Nancy talks about the juridicalisation of philosophy in the form of jurisdiction: ‘the fact of saying right’ (2003:154). Indeed, juris-diction is comprised of two terms which justify each other: jus (right) takes place at the same time with dicere (to show) (Nancy 2003:154). This rights talk is established through a signature which, according to Derrida, ‘invents the signer’, producing a situation of ‘hypocrisy, of undecidability, or of fiction’ (Derrida, cited by Leung 2012:92). The signers (or the ‘juridical persons’) contribute to the creation of fictitious ‘others’, and distribute identities as legal names, being able to say, from within a site of privilege that ‘I have the right to sign, in truth I will already have had it since I was able to give it to myself’ (Derrida 1986:10). In effect, when the refugee arrives at the borders of a foreign country, for their case to be ‘struck by the seal of the law’ (Nancy 2003:156) and considered for legal proceedings, they need to assume a fictitious identity, which is in fact a judgement of the person as a subject of the law (159). So, the rights claimed by the refugee imply all the contingencies derived from an asylum system based on a law which does not take into consideration the causality of new cases (167), but makes decisions before newcomers’ arrival. An illustrative example of this situation is the guidance and rewarding for the UK Border Agency staff to fail 70% of asylum seekers’ appeals against the agency’s refusal of granting them asylum (Taylor 2014). Nancy suggests that a solution to counteract the internal rationality of the law can be found through critique, which would come to ‘occupy the place of the foundation of right’ (2003:167).

In this paper we have seen that human rights are more than mere fictions materialised solely through the law. Indeed, they have a real impact on people’s lives (albeit in different ways), and many social struggles are undertaken outside the law, in the name of human rights. To neglect this reality would mean to forget the importance brought to human rights discourse and practice by dissensus. Therefore, we need to reconsider how the law can be used in a way that does not rest on dominance, whilst keeping in mind the fictionality of the law and its subjects.

The ethical concern presented here arises from the risk posed by popular acceptance of the legitimacy of state sovereignty above individual rights of recognition, self-expression, and inclusion. The source of human rights cannot be located within a presumed essence of an entity, nor can it be attached to certain legal identities. Indeed, human rights violation does not take away asylum seekers’ humanity, nor can legal reforms alone solve the violence which arises from unequal relations of power. Substantial acts of resistance are necessary to oppose the rhetoric which portrays the state as having the duty to impose measures (e.g. surveillance) onto populations, which leads to a division between the ‘regular citizen’, the ‘genuine’ asylum seeker, and the ‘bogus’ asylum seeker. The belief in the so-called ‘unity of the nation’ based on the idea of consensus and ‘national harmony’ constructs foreign populations as threatening, and allows the Home Office to further their intrusive and violent policies which risk to encourage an attitude of scepticism within the British population. It is no coincidence that the EDL can claim to be a ‘human rights organisation’, when the human rights discourse has become trivialised and used for different ends by numerous groups. In response to this, a radical gesture is needed to inscribe the political on the current systems of democracy by exposing the exclusionary practices of sovereign bodies.

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