Reflections After a First Term Studying Human Rights
The term has come and gone, and I have now completed my first module as a Human Rights Masters students. Over the course of the 10 week scheme of learning, I have been immersed in the world of human rights, looking in particular at how rights are defined and implemented. In this article, I seek to synthesise my biggest learning points from the literature.
A citizen’s view on human rights
Prior to the course, my relationship to human rights stemmed from a position as a concerned citizen who kept his finger on the pulse of the worst violations of rights across the globe. A citizen who took for granted the narrative of human rights being a global project; a major achievement of the 20th century; and a movement that aims to follow a linear course in which, eventually, all countries will form part of the global human rights community. Effectively, a citizen who did know much about the theoretical underpinnings of the rights discourse, and most importantly, about the historical, and contemporary, discussions and antagonisms within the literature.
Human rights seemed to me as inalienable and as natural as democracy, and its legitimacy was carved out of its moral foundation. In fact, human rights was a moral endeavour whose only hinderance was of a political nature. In my mind, we had a supranational, human-centric, community — encompassed by the United Nations — who’s righteousness was corrupted by the whims of nations and the elites that lead these states.
As my finger on the pulse inevitably felt the growing contradictions and antagonisms of what I was seeing on the ground — particularly since the October 7 Hamas vs Israel conflict — I was keen to explore what was feeding the injustices that we were all witnessing. Why was the bridge from theory to praxis so fraught?
Human rights: a moral justification vs a political slogan
It is important to note that the focus of the course has been on the philosophical and structural framing of human rights. Moreover, the focus has been on the international application of rights, and thus, steers away from national or local applications of rights. The UK governments’ opposition to the European Court of Human Rights, and its intention to reshape national conventions on human rights are, unfortunately, outside the scope of this module. Therefore, what has been within the scope of the module?
A significant challenge to any pre-conceived notions of human rights has been on my belief (faith) that it is a moral project. The literature, most notably scholars from cultural relativist, feminist, and post-positivist schools , has focused its critique on the ‘moral’ and ‘universality’ of rights. Andrew Clapham (2007) has described human rights as being either: “a heartfelt, morally justified demand to rectify all sorts of injustice”, or, as “no more than a slogan to be treated with suspicion, or even hostility.” Is the truth somewhere between the two?
By breaking down Clapham’s quote, we can decipher two opposing views, which for many, is where the antagonism sits. On one hand, we have a discourse which promotes human rights as a framework that enables the retrospective justice for victims of crimes. After all, the Universal Declaration of Human Rights (UDHR) — the founding document of the modern human rights movement — was drafted and signed following the Second World War, as a response to the atrocities committed by the Nazis and Imperial Japan. On the other, human rights are seen by many as an instrument that seeks to maintain and promote the interests of hegemonic powers. Criticism centres on the Western and liberal nature of the discourse, one which overwhelmingly negates the view that community, or group needs, supersede those of the individual. The assertion of critics is also sustained by the historical, and contemporary, inconsistencies in the application of human rights, which often fall on a Western vs Global South divide.
Whilst it is true that the international community boasts important, and impactful, institutions whose mission is to hold countries accountable for human rights violations, the question of which rights the community focuses on receives too little attention. For example, did you know that as a result of a tense political divide between the United States of America and the Soviet Union, a convention on human rights had to be separated into two separate bills?
The UDHR was signed to represent a commitment by the international community to protect the individual from the raw power and threat of a state, which, as was evident during the World Wars, could be overtaken by party or individual with a zealous fervour for violence and power. Despite this, governments could not agree which rights deserved this protection. The right to life, liberty, freedom of movement and thought? That was a given. The right to education, food, housing, and healthcare? Less so. Therefore, in 1966 two separate conventions were adopted (coming into force only in 1976): the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).
Since then, the history of human rights has been divided by which rights are considered essential, with many Western, neoliberal countries — though increasingly becoming a global phenomena — arguing that rights covered by the ICESR are ‘non-justiciable’, or outside of the remits of the legal superstructure. Standing in opposition to this, and particularly following the fall of the Soviet Union, many developing countries advocated for the prioritisation of ‘material’ rights over individual liberties as to ensure a ‘sound’ development of their local economies. In advocating this stance, many of these countries argued that Western, or developed countries, had also prioritised economic development before shifting priorities to the rights of their citizens. A fair contestation.
Therefore, when one reads about human rights and takes notice of which rights receive the most focus, it will often fall on political, rather than moral, sentiment. Open up the Human Rights Watch website, or any report from the UN, and this will predominantly centre on a government’s failing to promote rights that we consider essential in a democracy, i.e., freedom of expression, thought, privacy, and the right to peaceful assembly. Notably, this would often highlight the violations of states hostile to Western hegemony, such as China or Russia, and often excluding the clear violations of the ICESR of friendly states including the United States of America and the United Kingdom. Are countries that charge its populace $30,000 to give birth less guilty of violating individuals’ rights?
Liberalism as a political project
Beyond my ‘political awakening’, this course has dispersed my personal belief that my viewpoints were free of ideology. Similarly to a fish in the ocean, I couldn’t see the water surrounding me, and this body of water was filled with Liberal thought. So, what is liberalism? It’s official definition is: a political and moral philosophy based on the rights of the individual, liberty, consent of the governed, political equality, right to private property and equality before the law.
These are the rights covered by the ICCPR rather than any rights covered by the ICESR. Therefore, if rights covered by the mainstream also fall within the remits of the ICCPR, it is a fair assumption to say that the human rights discourse is dominated by a liberal train of thought. As a citizen of a Western country, from an inter-racial family and educated in an international school, I am deeply entrenched in liberal thought and practice. I form part of what author David Goodhart has described as ‘anywhere people’ — those whose ties and roots to a specific community are less pronounced, or non-existent, compared to others.
Accordingly, as I held onto a liberal train of thought, I was convinced that human rights and its global project was truly universal and apolitical in nature. However, as Tharoor’s (2000) said: “nothing can be universal; that all rights and values are defined and limited by cultural perceptions.” This, is another major learning point of my course: even our most cherished beliefs are contextual, seeped in a morality or parameters that emerge out of the context you are in. Moreover, promoting human rights as simply ‘universal’, promotes, as argued by Mutua (2008), the “abstraction and apoliticisation” of human rights which obscures “the political character of the norms it seeks to universalise.”
Human rights, and the associated supra national institutions are a political project promoting certain views, certain modes and norms of living that are undoubtedly liberal in nature. Others push the argument further and say that the enmeshed view of the ‘human’ in the rights discourse, is one of a citizen with private interests and with the right to property and self-actualisation that always supersede any greater need, whether that be social or ecological. This view is substantiated by scholars of Indigenous Rights who claim that the Universal Declaration of Human Rights excluded indigenous people from the legislature because they did not view nature as a canvas for private property and therefore were precluded from having rights.
Private property and the interests of the individual call for what are known as ’negative rights’, whereas the right to universal healthcare or free higher education are known as ‘positive rights’. What determines the negative/positive element of rights? The former rights are based on promoting an absent state that restrains from interference (allowing the free market to determine individual outcomes) and the latter are based on an intervening state, one whose policies directly contribute to these rights outcomes.
Once again, the fact that the rights most promoted by the mainstream refer to these negative rights, suggest that a model is being promoted in which governments should uphold the right to property and of the individual above anything else. This equates to a state which should not adopt nationalisation of national infrastructure (railroads, post-office, energy) because this would impede on the right of individual(s) to claim this infrastructure as private property, as regulated by the ‘miracle of free-market capitalism’.
Genocide is contextual
Finally, my understanding of human rights was most dramatically shifted by studying (at a very rudimental level) the legal framework surrounding genocide — and particularly what does and doesn’t constitute as genocide. Essentially, which mass killings deserve the attention and protection of the global international community. Of course, the gulf between theory and praxis is vast, too vast for any judicial system to ever get it right every time. For some, morality is subjective and retrospective justice is a hard framework to implement. At other times it has been easier; the very word ‘genocide’ came about as a result of the World War period, in which many crimes against whole populations were committed by sovereign states, e.g., Ottoman Empire vs Armenians, and of course, Nazi Germany vs Jewish populations.
In 1948, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide, generally known as the United Nations Genocide Convention. Genocide means: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; © Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. In this instance, the term ‘group’ Convention is limited to four groups: ‘national, ethnical, racial or religious.’
Within this definition two major, but not exclusive, parameters represent the antagonisms that often cause a huge differential between what is written on paper and what is achieved on the ground. These are the notions that an act of violence is only genocidal if its deliberate and against groups for reasons other than political. This of course leaves the door to two glaring loopholes: the accidental death of large groups of people, and that any death is linked to the political intent or motives of said group.
In practice, this means that the deaths of children and women, or of entire groups can be justified if the aggressors claims that its bombings accidentally hit civilians, or that these same individuals cannot be victims of genocide because they are members — either directly or indirectly — of a political group. On top of this, defence cases against genocide often revolve around the right for individual states to defend themselves when in war, and will invoke this right for protecting their actions.
In conclusion, human rights may be an achievement of the 20th century, but it is a fraught achievement and one whose values are commendable, but whose actions are limited by the political context within which they operate. We must not take rights for granted, nor take their definitions and articulations as reified entities incapable of being subject to change or re-invention.