L’errant récuse l’édit universel, généralisant, qui résumait le monde en une évidence transparente, lui prétendant un sens et une finalité présupposés. Il plonge aux opacités de la part du monde à quoi il accède. La généralisation est totalitaire : elle élit du monde un pan d’idées ou de constats qu’elle excepte et qu’elle tâche d’imposer en faisant voyager des modèles. La pensée de l’errance conçoit la totalité, mais renonce volontiers à la prétention de la sommer ou de la posséder.
—Édouard Glissant, Poétique de la Relation
The field of Human Rights (HR) is rapidly changing. From trans-border and trans-regional migration crises in , the or , to the rise of and decentralized forms of or regionalized racial hatred, old problems evolve into new emergencies. Moreover, notwithstanding the prevalence of deep-rooted era-old international concerns, new complications affecting HR also arise from more recent global dynamics. Amongst those we can consider, for example, the of , the global and transboundary effects of on communities, the effects of globalized corporate power over previously unaffected rights such as that to , or the new consequences of on civil and political rights.
The understanding we have of those crises through the mainstream, centuries-old paradigm of the nation-state are at best fragmentary, and so are the solutions that are devised from that framework. Such crises certainly challenge the premise that HR can be fulfilled through the singular actions of states or by centralized state-based organizations born of post-WWII . The mainstream paradigm is also undermined by the fact that, in a number of situations, the state is the very perpetrator of violations. Moreover, questions of human dignity and the rights to which humanity is entitled now face problems that are on a global scale and transcend the potential active realm of the nation-state.
Ongoing developments in all parts of the world have left victims of HR violations disoriented, not knowing where to turn to claim their avowedly “universal” rights. In other words, victims of HR violations are left with a troubling sense that something is wrong within either the state or the system of HR itself. Not without reminding us of Nietzsche’s , frustrated victims are left with the inevitability of ethno-nationalism on one side, or faith in international laws and forums dissociated from their daily struggles, but meant to be the bulwark against aggressive populism on the other. It is as if our HR regime had reached a period of interregnum in which a new structure cannot yet be brought to the light (of the madman’s/victims lantern), while the old is plagued by symptoms of decay. Broad and sweeping universal claims and aggressive nationalism fight in the same arena, and unsettle the very foundations of the international system, and more specifically, the primacy of the rights of humankind.
How then are the international human rights regime and international law to recover from the phantasmagorias of populism, ethno-nationalism and sovereigntism, and tackle current HR crises? How do we ensure that the chimeras of globalization such as the migration crises or our incapacity to detail a strong climate action plan to safeguard the rights of all, are demystified and offered solutions beyond current failures? HR have been supplemented before to face a creeping reality especially in the developing world, none the less with the 1966 adoption of the International Covenants on Civil and Political and on Economic, Social and Cultural Rights. The question then is not to dispose of the existing HR system, but rather to renovate it to better suit our world’s current condition.
This piece, which will be published in two separate blog posts, will seek to highlight potential ways in which we can reframe our world-vision, and how we, as a global society, can cooperate to tackle the problems of globalized HR crises. First, I reflect on the vulnerability posed by our understanding of “universalism” in legal narratives such as the “Universal Declaration of Human Rights”. I will then discuss how globalization can help us enrich our conception of what is universal without necessarily getting of rid of the project itself and of our global connectivity. In that sense, I reject the rather easy anti-universal conclusions of second generation post-modernism and the moderate ethical relativism of contemporary liberalism. I will draw from the Latin American Decolonial school of thought, especially Mendieta’s dialogical cosmopolitanism, to further was I will call a pluriversal legal . This approach, I call Global Human Rights.
Universalism and coloniality
My first step will be to interrogate the notion of the “universal” that we speak about when we speak of universal Human Rights, for example, in the case of the corpus of rights included in the UDHR. Indeed, following heterodox perspectives in the humanities such as the voices from the Latin American school of Decolonial theory, we understand that there is not only a clear need to move away from the orthodoxies of Western modernity, but that this mainstream movement would also be antithetical to the idea of Human Rights. From that school of thought, the problem with universalism lies in what Castro-Gomez (2002, 2005) termed European modernity’s “hubris of the zero point”, its capacity to center its worldview as true, timeless and (performatively) universal, while depreciating that of the Other, non-European, non-modern.
In his seminal Colonialidad y Modernidad/Racionalidad, Peruvian philosopher Anibal Quijano offers a critique of modernity and its claim to universality from the perspective of the Global South and the experience of colonialism. On his account, universalism was not a pre-existing condition, whether it be that of Christianity, trade rights, or “reason”, but it rather was a core prescriptive trait of European modernity, a product of the meeting of the expansionist power of colonialism and capitalism. If we follow Quijano then, universalism is an expansive process of modernity, or rather, a discourse through which Western modernity seeks to become universal. As Walter Mignolo (2002, 2012) has forcefully repeated, there is always an imperialistic side-effect to the will to universalize, that is, the urge for one civilization to make its way of thinking and understanding the world become uni-versal (unus + versus; literally, to turn into one).
As the Third World Approaches to International Law movement has shown, international law and HR suffer from Eurocentrism (Gathii 1998, Mutua 2001, Anghie 2005). Indeed, the development of the discipline has been described as linear, following the territorial expansion of Europe in non-European lands, as a smooth march towards civilization and salvation, with sometimes the forced adoption of European legal systems by non-European peoples. The project of modernity has been to universalize European civilization by “civilizing” the world through its social structures and laws, however, Maldonado-Torres (2017) forcefully argued that there is a problem of “coloniality” with that process. This flaw has led that process to exclude the humanity of some beneficiaries of a “universal” HR along the lines of fracture drawn by colonialism and capitalism, and supported in doing so by early international law. This dynamic still affects HR to this day (Mutua 2001).
This logic of coloniality, the underside of the universalizing project of modernity, is the logic, culture and structure of the modern world-system. It is the logic of colonial domination that explains the roots of Western expansionism and hegemony during the last centuries, as a state-centric form of political governance, but also of sociality and of production of subjectivities and knowledges (Quijano 1992). It is very close to, although wider than, the “dynamic of difference” that Anghie (2005) found to be a central process of modern international law. Coloniality is thus a dynamic logic of empire that implicates direct colonialism, but also goes beyond it in eviscerating the culture, minds and very Being of the colonised, let alone their Human Rights. The logic of coloniality has the capacity to colonize the imagination, and at least in parts, the desires and dreams of the Other – including the range of rights that they claim for. The paradigm then limits the potential solutions to be found through the “universal” HR framework.
Performative universalism
As Eduardo Mendieta (2007) reminds us, the universalizing tasks that were performed by modernity have now been taken over by globalization. To paraphrase, globalization is more than regional and global trade integration, as it rather seeks to universalize a particular mode of life and all the modalities it requires; economic, legal and political systems, a bill or declaration of rights, etc (which includes the UDHR). In discussing Mendieta, Davis proposes a distressing definition of the project of globalization;
Ideological rather than neutral, a project rather than a process, globalization is the metastasis of a particular European modernity to the rest of the world, advanced predominantly at present by the U. S. This violent and uprooting project involves the always already weighted transfers, extractions, and “development” of capital, people, resources, and information across borders. (2018 at 11)
Indeed, although globalization appears to have rid itself of any pretence to universalistic claims, as was the case with modernity, Davis’ study of the phenomena shows how it is at its core performatively universalistic. Globalization performs the universal, it acts as if its parameters and modalities were already universal in a bid to actually make them so. It is a “self-perpetuating unfinished project”, in Mendieta’s terms, seeing the international, the world as “a mere tabula rasa for the actualization of one global design”, projecting itself into all corners (2007 at 91).
In that sense, what the language of “universal human rights” misses, or in fact what it covers, is its performativity, the fact it is not yet quite universal, and the contingency of felt violences that have accompanied its process of contemporary universalization through globalization. We see, for example, through today’s refugee crisis or humanitarianism not a bid for human dignity and HR, but rather “the means for exercising contemporary violence and for governing the displaced, the enemy and the unwanted” (Weizman 2011 at 4). So much for a universal… In fact, as the Decolonial school hints at, the “universal” project of modernity, now processed through a liberal variant of globalization, excludes others, the Other, the racialised, the “uncivilised”, the wretched of the earth, but also the economic migrant, the climatic refugee, the undocumented migrant worker, the irregular warrior, etc. It does so through its mechanisms of expansion derived from a rhetoric inflected by capitalism and colonialism; development modernization, humanitarian interventions and foreign direct investments.
HR, within this framework, presents a way to integrate into the project of globalization the populations, nations and cultures that modernity has excluded and cornered into misery since its very beginning. It limits, through avowedly universally recognizable rights, their capacity to think of a “good life”, even of a life at all, their capacity to dream and desire of a way of life, and limits this horizon to that enshrined in documents not decided by them, but by states, and state actors. HR thus becomes an important process in globalization as it is part of the performative universalization of the model of modernity. Although HR does for sure maintain a basic set of rights, some of the rights within it, especially the first generation UDHR rights participate in the expansion of a hegemonic worldview and mode of life constituted by Western modernity. (Maldonado-Torres 2017)
The excluded, those left without or with limited rights, those that have not been brought to bear on the rights given them, and who are left without solution to the violation of those same rights, migrants and workers, women and minority groups for example, constitute a ready reservoir of cornered, impoverished and disposable labour and lives. The plight of undocumented migrants in the United States, and all around Mediterranean Europe are telling examples. As Mendieta suggests, this is quite obvious in the “continuation of the [modern] civilizing project by the United States, under the flag of the war against all wars that is benignly called the crusade for human rights and its condition of possibility, globalization”. (2007 at 94) The revolutionary upheavals caused by the Zapatistas’ caracoles, their , and the struggles and mode of operation of La Via Campesina offer clear examples of people fighting back to dream again, and to live their own “good life”, with their own sets of “rights”.
To paraphrase Upendra Baxi in his magnum opus, the , we need to move towards a politics for Human Rights and not of Human Rights. This entails a legal (but also political) perspective that is responsive to the plight of those suffering from violation of their “universal” human rights, whether they be climate migrants, prisoners taken around the world through the United States’ black sites network, Bangladeshi textile workers or Ecuadorian migrants and undocumented workers all across Central and North America. This politics for Human Rights is versed in the experience of the “wretched of the earth”. For Baxi, and as I have sought to argue in this post, there is a disconnect between the contemporary need for Human Rights, and modern Human Rights, and this difference lies in our view of the “universal”. He tellingly claims that modern human rights perform the historical role of providing justification for the unjustifiable, namely colonialism and imperialism, the very processes that were at the center of the . A view of rights from the experience of the downtrodden, the wretched of the earth, grounds HR in both a deeper historical trajectory, but also a more radical underpinning, that of self-determination.
What I will propose in my next post then is a move from a globalized Human Rights regime, to global Human Rights. A Global Human Rights framework, as I will argue, rejects the erasure of differences and the diversity of human experiences in the name of a so-called universality. Broadly, I will present the concept as a negotiation, a dialogue of “specific universals” that transcends strict boundary formations defined “from above”; nation, gender, culture, race, etc. Human Rights are interested in human experiences, and in the ways in which rights can support this multitude of existences. It is central to this project to reclaim and reinvest in such existences and experiences to inform a re/in-surgent Global Human Rights.
Bibliography
- Anghie, Antony. Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University Press, 2005).
- Baxi, Upendra. The Future of Human Rights (New Delhi: Oxford University Press, 2008).
- Castro-Gómez, Santiago. La Hybris del Punto Cero: Ciencia, raza e ilustración en la Nueva Granada (1750-1816) (Pontificia Universidad Javeriana, 2005).
- Mendieta, Eduardo. Global fragments : Latinamericanisms, globalizations, and critical theory (Albany : State University of New York Press, 2007).
- Mignolo, Walter. The Darker Side of Western Modernity: Global Futures, Decolonial Options (Durham: Duke University Press, 2011).
- Weizman, Eyal. The Least of All Possible Evils : Humanitarian Violence from Arendt to Gaza (London: Verso, 2011).
- Castro-Gomez, Santiago & Desiree A Martin. “The Social Sciences, Epistemic Violence, and the Problem of the ‘Invention of the Other’” (2002) 3:2 Nepantla: Views from South 269.
- Davis, Benjamin P. “Globalization/Coloniality: A Decolonial Definition and Diagnosis” (2018) 8:4 Transmodernity: Journal of Peripheral Cultural Production of the Luso-Hispanic World, online: <.
- Gathii, James Thuo. “International Law and Eurocentricity” (1998) 9:1 Eur J Int Law 184.
- Maldonado-Torres, Nelson. “On the Coloniality of Human Rights” (2017-12-01) 114 rccs 117.
- Mutua, Makau Wa. “Savages, Victims, and Saviors: The Metaphor of Human Rights” (2001) 42:1 Harvard International Law Journal 201.
- Quijano, Anibal. “Colonialidad y modernidad/racionalidad” (1992) 13:29 Perú Indígena 11.
About the author
You can read the second part to his post in On Global Human Rights — Part Two.