The premise of this book is that, like everything else in life and human experience since the beginning of time, evolution is the key for understanding how the world works. For me, as a Muslim, only God is the permanent reality, while everything else evolves with time and in response to changing circumstances. Since human rights are rendered in the service of human beings, they must evolve with the life experience of their subject, namely, human beings on the ground everywhere, for each person and community on their own terms. This is the true meaning of universal human rights which are worthy of global struggle for their realization and protection. By the principle of the concept itself, no other person, group, or entity can impose their view in defining, interpreting, or elaborating human rights norms and institutions for others. The way remains open for respectful debate, contestation, suggestions, and recommendations, but these should never violate the dignity and freedom of the human subject. This is what we all know as the Golden Rule, or the principle of reciprocity. If in doubt as to whether a debate or challenge is in violation of this fundamental principle, imagine the situation with you as the subject of violation of human dignity and freedom.Footnote 1
Any apparent compliance in the area of international human rights that is perceived as the result of economic or security pressure by other states in fact reflects neocolonial power relations. In the realities of what I call “human rights dependency,” the power of developed states to influence the human rights policies and legislation of developing states always flows from former colonial and richer countries of the Global NorthFootnote 2 against former colonies and poorer countries of the Global South, and never the other way round. This process is so tainted by the coercive geopolitical power of former colonial states – in violation of the underlying rationale of human dignity – that it is difficult to accept both the influence and its outcome as the result of friendly relations among “equal” members of the same human rights treaty. Since such influence is never coming from former colonized states toward former colonial states, the relationship should not be taken as being among peers sharing the same commitment to upholding human rights values and norms. Instead, we should see the coercive nature of influence from rich, powerful states toward poor, weak states, and how reliance on such power relations is also legitimizing other manifestations of unequal power relations. Such dependency is legitimized by affiliation to human rights, thereby hiding the underlying historical hegemony and exploitation.
Still, we need to understand how the protection of human rights still benefits from “state-centric enforcement” in reaffirming the founding people-centered doctrine of the Universal Declaration. To begin with, states had the power of creating and convening international organizations, such as the United Nations itself, that are presumably founded on the equal sovereignty of state members of those organizations, despite the realities of their inequality in power and wealth. Yet, those inequalities contributed to global geopolitical relations that facilitated the process of decolonization and promoted a dynamic process of self-determination in international relations. Another development in favor of the protection of human rights is the rise in the protection of constitutional rights in some countries. Although this was initially primarily of the rights of citizens, and the specification of these rights and remedy for their violation were at the discretion of the state, the expansion and entrenchment of the process encouraged people to organize to demand their entitlements beyond the discretion of the state. A third factor to be briefly noted here is that the idea of universal human rights was totally inconceivable under colonial and imperial rule, when the vast majority of human beings around the world had no possibility of having their rights respected even as citizens of their own countries. It was only after these colonized peoples achieved political independence that the potential possibility of universal human rights emerged during the second half of the twentieth century for the first time in human history.
In view of the nature and process of economic, political, and social/cultural change, tactical benefits for the protection of human rights can still be realized despite the lack of structural changes in the present state-centric regime. In other words, the limited concessions powerful states make for weaker states can be organized to achieve more relative equality in the relationship than what the powerful states originally intended to concede. The underlying inequality in power relations among states can be diminished in two ways.
First, by ensuring consistent practice of the rule of law in international relations, for instance, to diminish the false promise of so-called humanitarian intervention. The protection of human rights should build on transparent and accountable political and legal processes rather than the vague and manipulative promise of intervention which can never achieve its unrealistic promise, as I will explain in Chapter 3.
Second, by continuing to promote strategic and systemic reliance on cultural transformation and political mobilization, and seeking solidarity with sympathetic forces within developed states, instead of waiting for legal enforcement to achieve sustainable human rights outcomes on its own. I am referring here to the difficulty of appreciating the force and magnitude of change resulting from cultural transformation and political mobilization. Major revolutions are appreciated in retrospect, rather than while they are actually happening.
The crucial aspect of the dynamic of change is that there is now relative development of the effective agency of human subjects of human rights within and among postcolonial states to challenge and resist external imposition of human rights norms throughout the world. As often happened in transformative phases in human history, change is gradual and incremental, rather than immediate and total. The age of European colonialism is over and its attempt to survive through neocolonial strategies is also failing. Such positive changes are already in the process of happening, though they are taking the time they need to materialize. The cause and effect of these and related changes is the rise of total and systemic self-determination within and among societies.
Women and other disenfranchised and marginalized groups everywhere are realizing that they are entitled to equal human dignity and the right of self-determination, without waiting for these to be granted by the elites or traditional structures of powers at home or abroad. These and related geopolitical, cultural, and political transformations since the adoption of the UN Charter in 1945 are now irreversible and are bound to advance to their logical conclusions on their own terms, probably as customary international law if used in formal adjudication or arbitration.
Paradoxical Founding NarrativeSeveral factors contribute to and reinforce the paradox of limiting to the authority of the state both the capacity to violate and competence to protect the human rights of those subject to the state’s jurisdiction. Yet, the paradox of entrusting protection to the only possible legal suspect continues to frustrate the core values and purposes of the United Nations itself because the UN Charter (binding treaty for its member states) prohibits the use of force or intervention into the internal affairs of other states. Article 1 of the Charter affirms that maintaining international peace and security is the primary purpose of the United Nations, and requires all Members States of the UN:
to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.Footnote 3
It is therefore clear that the protection of human rights as such does not constitute an exception to the prohibition of the use of force against another state, even one that is suspected of massive and persistent violations of human rights. To emphasize that this prohibition applies to the UN itself, as well as its Member states, Article 2 (7) of the UN Charter provides: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
The exemption of enforcement measures under Chapter VII relate to the authority of the Security Council “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Chapter VII provides for the gradual acceleration of response by the Security Council up to taking action, including military force “as may be necessary to maintain or restore international peace and security….” Since the Security Council does have military forces of its own, it can only appeal to Member states of the UN to provide the forces and resources for enforcement measures. One of the rare examples of successful action by the Security Council on this authority by the Security Council was the international coalition military campaign to expel Iraq from Kuwait in 1991. The only two exceptions to this strict prohibition of the use of force/aggression in international relations are (1) when authorized by the UN Security Council under Chapter VII of the UN Charter or (2) when a state is acting in self-defense as authorized by Article 51 of the Charter.
In addition to such textual confirmation of the categorical illegality of intervention by one or more states into the affairs or territory of another state, the realities of armed conflict on the ground, from Viet Nam to Afghanistan,Footnote 4 consistently confirm that it is practically impossible and politically untenable for any state or an international organization such as the UN to stay in the territory of another state long enough to be able to do what is necessary to protect human rights in that state. It is true that international relations continue to be dominated by powerful states who invade and exploit other states with impunity, despite the UN Charter’s categorical prohibition of the use of force in international relations. None of such unlawful or lawful actions by any state of whatever standing – superpower or not – can claim to have succeeded in protecting human rights in another country or their own. In other words, other states and the international community at large do not have the political legitimacy, material resources, cultural competence, language skills, etc., to be able do what it takes to protect human rights at home or abroad.
I agree with Antony Anghie that colonialism continues to thrive and dominate the development of international law. He shows how colonial relations have been reproduced even as they have been obscured by international law developments, from the sixteenth-century Spanish conquests of the Americas to the twenty-first-century War on Terror. I also agree with him on the enduring, evolving operation of the “civilizing mission” – the grand project that served to legitimize European colonialism and justified the measures colonial powers used to control and transform non-European societies. As he correctly argues, the civilizing mission played a powerful role in international law across time periods and across jurisprudential paradigms (natural law, positivism, pragmatism), all schools of thought which served to reproduce colonial inequalities.Footnote 5
Anghie examines the role of Francisco de Vitoria, the sixteenth-century Spanish author of De Indis Noviter Inventis, widely regarded as the first international law text from a European perspective.Footnote 6 Vitoria argued that the extension of the empire was not a just cause of war but he legitimized Spanish imperial rule by interpreting Spanish action in the Americas as self-defense! Vitoria asserted the existence of a system of norms that were inevitably violated by the Indians of the Americas. Vitoria affirmed a legal framework in which the right to “travel” and “sojourn” freely made it entirely legitimate for the Spanish to enter Indian territories.Footnote 7 When the Indians attacked the Spanish who entered their territory, this justified the Spanish in defending themselves, according to Vitoria. Since Indians were pagans, he reasoned, they could not be sovereign. Anghie moves on to the late nineteenth century, the peak of colonial expansion and the period when positivism replaced natural law as the principal theory of international law. Positivism focused on sovereignty as the foundation of law and on the primacy of the state actor. A central feature of positivism was the distinction it made between “civilized” and “uncivilized” states. By deeming the non-European world “uncivilized,” Europeans excluded the rest of humanity from the realms of sovereignty and international law,Footnote 8 thereby holding that there were virtually no legal restrictions on the actions of European states with respect to non-European societies.
The Berlin Conference of 1884–1885 highlights the interconnectedness of colonial expansion, trade, and the civilizing mission. One of the ways in which European leaders at the conference justified colonial expansion in Africa was by asserting that opening of the interior of the continent to commerce would allow for “the improvement of the conditions of their [‘the natives’] moral and material well-being” and help suppress the African slave trade.Footnote 9 The jurisprudence of the period between the First and Second World Wars involved the project of transforming colonial territories into sovereign states and was characterized by profound ambiguity in relation to the colonial past. For example, the Mandate System sought to eliminate native customs that were perceived by the colonial powers to be in conflict with humanitarian ideals and civilized society. Economics was viewed as a universal “scientific” discipline that transcended cultural particularities, and Anghie argues that the invocation of economics was a new justification and guise for colonial practices.Footnote 10
In Anghie’s view, the War on Terror is a new form of imperialism premised on the notion that “if rogue, ‘pre-modern states’ became ‘too dangerous for established states to tolerate’, it will become necessary to inaugurate a ‘defensive imperialism’.”Footnote 11 This is the twenty-first-century form of an old project: the control and salvation of backward peoples, with backwardness constructed as a threat to developed states as well as a pitiful condition in need of advancement. Anghie sees similarity between the doctrines of preemptive self-defense of President George W. Bush and Vitoria’s ideas about waging a “defensive” war on the Indians of the Americas. Anghie argues that international law continuously attempts to efface its complicity with colonialism, perpetuating its relationship to colonialism while striving to erase its connections with the inequalities and exploitation of the colonial encounter.
One of the themes of this book is to promote the legitimacy and efficacy of the true universality of human rights, and that can be achieved by simply minimizing reliance on international law. However, I would argue, the process of reforming traditional international law is already happening through the same strategies of cultural transformation and political mobilization I am proposing for universal human rights norms. From this perspective, I am in agreement with Balakrishnan Rajagopal. For instance, I support his critique of the idea that nationalism is the best way to counter colonialism and agree with his objection to the fact that international law remains bound to the will of states and institutions, rather than serving the masses of the Third World whose will is not best represented by their states. He also argues that international law must acknowledge the importance of development discourse and appreciate social movements as foundational to changing international law. As he put it, “Social movements seek to construct alternative visions of modernity and development that constitute valid Third World approaches to international law.”Footnote 12 In my analysis, indigenous social movements emerge out of and are sustained by cultural transformation and political mobilization. He argues that Third World states cannot guarantee “democratic aspirations of the masses in the Third World, as state sovereignty has been parceled out up (to international institutions such as the World Trade Organization) and down (to market actors and NGOs).”Footnote 13 I am also in agreement with his view that “A new Third World approach to international law will have to engage with social movements to transcend the impasse in which it finds itself,”Footnote 14 but in relation to human rights for me, and not “development” for Rajagopal.
Oona Hathaway examines the core questions of the effect of human rights treaties on compliance by states party to such treaties: Do countries comply with or adhere to the requirements of the human rights treaties they have joined? Are countries more likely to comply with a treaty’s requirements if they have joined the treaty than would otherwise be expected? Drawing on a database encompassing the experiences of 166 countries over a nearly 40-year period on genocide, torture, fair and public trials, civil liberties, and political representation of women,Footnote 15 her findings support the conclusion that human rights treaties either have no statistically significant effect on the practice of countries or lead to poor human rights practices within the countries that ratify them. She does not find a single treaty “for which ratification seems to be reliably associated with better human rights practices and several for which it appears to be associated with worse practices.”Footnote 16 Hathaway concludes that the existing theories (normative, rationalist, institutionalist, and liberal) are insufficient for explaining her findings.Footnote 17
My reading of Hathaway’s long and complex study is that it strongly supports the conclusion that ratification of human rights treaties is not an effective means of ensuring that human rights are actually protected on the ground. Yet, instead of questioning the international law framework of the human rights regime, Hathaway observes that human rights treaties offer countries rewards for positions rather than outcomes.Footnote 18 This reminds me of how people failed to recognize that “the emperor has no clothes” for fear of the stigma of being thought stupid or uncivilized. For my part, I ask the question: why rely on a treaty-based regime for the protection of human rights if that regime does not have a real effect or outcome of protection?
Stephen Hopgood presents a persuasive critique of the idea of human rights as a product of nineteenth-century humanist norms and European secular religiosity. His thesis is that “We are living through the endtimes of the civilizing mission. The foundations of universal liberal norms and global governance are crumbling, creating a vacancy where sovereignty and religion now make dramatic inroads in the post–Cold War world.”Footnote 19 Hopgood develops the concept of the “secular sacred” to describe the nineteenth-century bourgeois European cult of sentiment, moral improvement, and innocent suffering. In the face of modernity, the “secular sacred” provided continuity between the Christian Church of the past and the secular future. An emphasis on human suffering, innocent victims, and other values of Christian civilization helped to channel formerly Christian work into secular human rights work. In a remarkably short period of time, human rights became “the lingua franca of international morality.”Footnote 20Hopgood critiques the role of Amnesty International and Human Rights Watch as self-appointed “gatekeepers” over what constitutes Human Rights at the global level. He supports this argument by pointing to these organizations’ opposition to forms of local justice in Uganda and Rwanda and their reluctance to embrace restorative justice. They want to trump existing forms of local authority in favor of universal norms. “Human Rights advocates want the final power to decide what are valid rules and therefore what are legitimate exceptions to those rules.”Footnote 21 He also reflects on the human rights crusade for the eradication of female genital mutilation:
The difficulty historically of eradicating the practice of female circumcision or female genital mutilation (FGM) is an object lesson to the hubristic. Nothing could seem on the surface more like a human rights abuse than FGM, but despite colonial and missionary activism and law, postcolonial condemnation, and several decades of INGO activism, it remains deeply entrenched and legitimate among millions of African women who see it … as an identity marker and a key requirement for marriage.Footnote 22
I agree with the general point Hopgood is making but would also want to make explicit what might be implicit in his cautious expression: “Nothing could seem on the surface more like a human rights abuse than FGM.”Footnote 23 As I see the point, FGM is simply not accepted as a human rights violation by those who practice it, e.g., East African mothers on their own daughters. As the facts on the grounds clearly confirm, it is futile to tell me that I am “blaming the victim” or to tell practitioners of FGM that they are subjects of “false consciousness.” Since it is both unacceptable and futile to attempt to coerce those who engage in this practice into abandoning it, the only effective and sustainable way to combat FGM is to persuade its practitioners that it is harmful and unnecessary. It may not even be wise to bring human rights into the conversation at that stage.
Hopgood’s view of an alternative to the global human rights regime is that because religious, nationalist, ethnic, and family structures are located much closer to people and integrated within their everyday needs and identities, such structures may be better able to create “sustainable reciprocity-based and socially reinforced norms that reduce suffering, even if they fail to deliver on the promise of global liberal norms.”Footnote 24 He advocates a “syncretic, political, ground-up process of mobilization.” He acknowledges that such a process may not prevent mass atrocities but points out that the global human rights paradigm has failed in that endeavor as well. I generally agree with Hopgood’s critique but will try to elaborate further on a proactive alternative approach of cultural transformation and political mobilization.Another feature of my analysis is what I call “human rights dependency,” which indicates how new states emerging out of European colonialism in Africa and Asia remain dependent on their former colonial powers. The relationship is not mutual because former colonizers can hide or cover their trade or other benefits they continue to draw from their former colonies. In the absence of other means of protecting human rights, the primary means of applying pressure on offending states is to publicize their abuses and failure to protect human rights, a process known as “naming and shaming.” The first step is to monitor, verify, and document states’ violations of their human rights obligations. The second step is to publicize violations widely and strongly by circulating reports documented by international human rights organizations like Amnesty International and Human Rights Watch. This is done by sending missions to “investigate” news of violations in the country in question, usually by taking information from local advocacy organizations and interviewing their staff or local political figures from the government accused of violations. Here is what is wrong with this process, as I personally experienced it working as Director of Africa Watch (the Africa Division of Human Rights Watch at the time) from July 1993 to April 1995:
(1) The selection of countries to be investigated and issues to be researched and documented is exclusively decided by international human rights organizations like Amnesty International and Human Rights Watch, which take such determinations as essential to their global mandate.
(2) The primary “constituencies” – and by this I mean the sources of funding for international human rights organizations (i.e., the donors to whom those organizations hold themselves accountable) – are based almost exclusively in Western Europe and North America. I say “hold themselves accountable” because there is no other mechanism or independent process by which international human rights organizations are held accountable.
(3) The primary purpose of investigations and publicity for reports is to influence so-called donor governments in Western Europe and North America to impose conditions or limitations on states receiving “development aid” or other economic, financial, or security (military) assistance from Western Europe and/or North America. International monitoring and civil society organizations tend to coordinate their activities to coincide with meetings and other gatherings of intergovernmental organizations or economic aid settings to provide maximum impact among donors targeting aid-recipient governments.
(4) The nature and mechanism of the entire process does not provide any accountability or possibility of influencing international human rights organizations regarding which suspected violations to be investigated or documented, what to do with the reports, or subsequent follow-up. Although organizations like Amnesty International and Human Rights Watch appear to be all-powerful or irresistible, they do not have any legal right or authority against any state.
The ultimate limitation of the role of international human rights organizations is the total lack of remedy or redress except against another state. Civil society and non-governmental organizations (NGO) have no standing, no competence to sue any state. In fact, there is no forum or tribunal before which such action against any state can be adjudicated or litigated. None of the international human rights treaties provides a forum for legal accountability of states for violation of their human rights obligations.
Expose the “Confidence Trick” of the Twentieth Century
By “the confidence trick of the twentieth century,” I mean the way in which former colonial powers renamed their own domestic civil rights “human rights” while limiting the application of those same civil rights to citizens and legal residents instead of extending entitlements to the rights to all human beings as human rights should be. In that way, the liberal colonial powers who controlled the formation of the human rights system at the end of the Second World War had their own civil rights approved as human rights through the relevant international process (the UN global system, and European, inter-American, and African regional systems). The emerging states of Africa and Asia were excluded from that formation process because they were not members of the international organizations due to their lack sovereignty under European colonialism. In fact, colonial rule deprived colonized societies the opportunity to practice their indigenous self-governance, thereby denying them the ability to counter the colonial claim of “rights” asserted by the colonial powers. The inevitable nature of colonial relations is that colonized societies lacked the opportunity to learn from their experiences under colonial rule, including the ability to practice their sovereignty in international relations.
The premise of the critique and transformation I am proposing is the now-plausible conviction in the reality of human evolution and development in social and political institutions. As human consciousness evolves, so does the ability of persons in their communities to transform their social and political institutions to advance their quest for individual freedom and social justice. Yet, such transformation should not be taken for granted or assumed to materialize in the same manner and degree in every human community. The manner and speed of change tends to depend on the ability of people to learn from their experiences, and to coordinate solidarity and alliances to advance shared interests and evade risks. The theme and framework here is for each community to work with its own “three Cs,” for each community to coordinate its Concept, Content, and Context. The concept of human rights for each community is to identify and affirm its own meaning of the inherent human dignity and protection of self-determination. The content is the substance of entitlements of human dignity through the exercise of self-determination; and the context is cultural and geopolitical location for the exercise of human rights as locally defined.
By “decolonizing” human rights I mean that the concept, norms, and institutions of the global human rights paradigm have been hijacked by the North Atlantic colonial powers, including Russia (the Soviet Union at the time) and the United States, to protect their strategic interests and enhance their geopolitical and economic hegemony. This neocolonial purpose and strategy are hidden in such liberal notions as individual justiciability of rights, which assumes the political will and human and material resources for the state to enforce legally-binding international law obligation by ratifying and incorporating human rights treaties in their national legal systems. Ironically, this notion of legally-binding individual rights in fact ensures lack of enforcement. Fortunately, on the other hand, this new cycle of colonialization is confronted and rejected this time through global solidarity among former colonized peoples. By the same token of human agency to promote social justice and secure individual and collective freedoms, the rest of humanity is even more able to challenge this neocolonial project and recover the initiative for a more sustainable, people-centric decolonizing process. The term “hijacked” is used to indicate the malicious nature of illegitimate seizure of the human rights paradigm by neocolonial powers. This serious abuse of international protection of human rights can be resisted effectively, but this requires political mobilization, which is the second arm of the proposed strategy that should be deployed by advocates of human rights.
Far from attempting to challenge or undermine the profound significance of human rights or contest their universality, this book seeks to contribute to achieving appropriate and sustainable protection of human rights on a truly global, universal scale. To this end, I begin by focusing on the double paradox at the foundations of the international human rights legal framework to expose the inherent contradiction of the entire structure of the system, as if it was designed to fail. By double paradox, I mean the claim of “universality” of human rights norms in the reality of fundamental cultural and contextual difference. The second paradox is the claim of self-regulation by the state. These contradictions can be mediated in practice, provided that notions of state sovereignty and exclusive territorial jurisdiction are accepted to work in negotiable terms. The key to the entire process of negotiating sovereignty and territorial jurisdiction is the realization that coercive enforcement of human rights norms is simply out of the question. Conformity and compliance with human rights norms must be with the agreement and cooperation of the relevant population. Coercive outcomes must be emphatically rejected as imperial imposition and replaced by cooperative compliance among the concerned population. The manner and scale of effective and legitimate protection of human rights must be consistent with the nature and rationale of the concept and content of the norms, and this cannot be achieved through pretensions of legal enforcement under international law.
Institutionalized coercive enforcement of human rights norms under international law is a contradiction in terms that is doomed to generate more violations than protection of some rights. To the extent that coercive enforcement of some human rights by the agency of the subject of those norms, like the prevention and punishment of genocide, may be appropriate in extreme emergencies. Relief for victims tends to be extremely fleeting and arbitrary. Such relief should be sought and reinforced because it may indeed mean the difference between life and death for a multitude of victims. Yet, coercive intervention cannot last long enough to establish relevant policies and institutions for their implementation. Intervention cannot be extended into a long-term solution for situations of armed conflict and genocide, because that negates self-determination for both local and external populations. Despite the moral contradiction of imposing solutions on people in the name of their self-determination, and the practical futility of so-called humanitarian intervention, this ploy of European imperialism is the pretext to rationalize new forms of neocolonialism. The selective deployment of massive suffering is invoked to rationalize military intervention to serve the imperial objectives of former colonial powers. Nothing is done to establish institutional collective action to stop and punish the crime of genocide, except in the highly selective use of force in the name of the so-called international community to stop and punish genocide when it threatens the foreign policy objectives of colonial powers.
My objective in this book is not simply to confirm the obvious futility of so-called enforcement of human rights, but to show the incoherence of the notion of international enforcement itself. The purpose I seek to advance is the implementation of human rights in the manner normally deployed by all human communities throughout the history, namely, promoting cultural legitimacy of alternative values and political mobilization for their implementation. This is the only way positive sustainable change can be achieved in any society anywhere. My purpose is therefore to promote consensus and compliance with evolving human rights norms as identified by local communities and internalized through socialization processes. I realize that this strategy seems to take too long, yet it is in fact the fastest and most productive approach to generating and reinforcing a human rights culture.
There are major legal and political impediments to judicial and administrative enforcement of human rights norms. In contrast, indigenous socialization strategies of what I call cultural transformation and political mobilization are more consistent with the human dignity of people and their communities. This procedural formula is of course part of normal socialization strategies that have emerged out of the many centuries of trial-and-error practice on various issues of social, ethical, and political mediation in all societies. In my view this is a case of contrasting the false pretensions of legal protection under developed European and North American legal systems versus honest acknowledgment of the need for promoting indigenous advocacy of human rights in order to support and promote the voluntary popular practice of rights in those communities.
It is essential to the dignity of every human being for every person to have the ability to strive to define or present her own conception of her human dignity in ways that render the rights “both the ends and means” of self-determined universality. In the same way that colonial tyranny and domination of the peoples of South America, Africa, and much of Asia were misrepresented and rationalized as necessary to achieve the civilizing mission of European colonialism, the discourse of protection of universal human rights is misrepresented and rationalized as necessary to fulfil the civilizing mission of the postcolonial hegemony and exploitation of former colonies to justify “imperial uniformity” as necessary for centralized production of human rights norms through international law principles and institutions. The historical reality, however, is that such formations merely assert self-proclaimed imperial uniformity as perceived by the imperialists’ self-evident universal principles, though such outcomes are necessarily relative to historical and geopolitical context. The production of universality of human rights under principles and institutions of international law is merely liberal relativism pretending to be global universalism. The pragmatic approach I am proposing is what I call incremental promotion of universal and sustainable protection among all human societies, each on its own terms, everywhere.
Human rights are the entitlement of every human being, while all other entitlements are either contractual, situational, or limited to members of one group or another. Regardless of the actual quality or level of provision or protection of human rights on a local, regional, or global scale, they must be accepted by all their subjects as the entitlement of all human beings everywhere, equally and without distinction. This quality of universal inclusivity is the distinguishing feature of human rights. Yet, it is probably impossible to verify that any specific human right is practiced universally on global terms. Paradoxically, the right to difference itself is a human right which is necessary for promoting consensus on human rights norms and their implementation. Navigating such subtleties requires advanced insight and goodwill, which are, by definition, lacking wherever human rights are in desperate need of protection. It is also the vulnerability of “victims” of human rights violations which facilitate their clearer view of the remedy they need, while it is the power of privilege which sustains the ulterior motives of self-appointed “intervener.”
Working with these and related factors and processes as elaborated in the course of this volume indicates a permanently tentative quality of the entire field of identifying and implementing rights, like trying to distinguish between competing claims of freedom of speech and its abuse. Such factors and processes emphasize the need for tentative discourse and mediation among competing claims. Yet, the history of the human rights movement since the 1940s seems to have been driven by a perceived need for categorical claims and absolute assertions about what the rights are and how they are to be implemented. Developed states and privileged constituencies within states and communities seek to impose their views on claims of rights and the consequences of those claims. Instead of mediating and moderating competing claims, the human rights paradigm itself has been appropriated to serve the geopolitical struggle of states over power and resources. Former colonial powers in particular are now resorting to the dated discourse of “civilizing mission” to justify neocolonial domination and exploitation of former colonies.
In this way, imperial projections of the normative authority of former colonial powers are now misrepresented as the only viable source of universality of human rights. This illusion has been reinforced by the global reach and transformative impact of European colonialism in the formation of the nation-state, global capitalism, and the development of international law.Footnote 25 Since liberal European powers have apparently successfully imposed their liberal values, social institutions, legal systems, and political practice throughout most of the world, it seemed to follow by the late 1940s and early 1950s that the “civilizing mission” of European colonialism authorized the imposition of the same liberal values and institutions of that colonial mandate. By requiring former colonies to follow the new human rights paradigm as defined and operationalized by European colonial powers, the civilizing mission continues without the destabilizing, security, and material costs of military conquest or occupation.
One of the primary purposes of this book is to present and elaborate a radical critique of the colonial model of international human rights law and present an alternative approach that is more consistent with human dignity as the rationale. According to the process-oriented approach I am advocating, the universality and practice of human rights are the integral and legitimate outcome of a truly inclusive and pragmatic process of cultural transformation and political mobilization. This approach also includes a fundamental critique of the colonial appropriation of the theory and practice of the human rights paradigm. The only way to claim allegiance to human rights and commitment to their implementation must be through the free choice and dignity of the human subjects of these rights. Yet, the postcolonial hegemony of former colonial powers continues to misrepresent the ethos of human rights in exclusively liberal terms, while condemning the theory and practice of the rest of humanity as primitive cultural relativism.
The most significant fallacy of the seven decades since the adoption of the Universal Declaration of Human Rights, which was used to justify colonial domination as well as postcolonial hegemony, has been the misrepresentation of the civil rights of citizens and lawful residents as universal human rights. In this way, former colonial powers claim conformity with universal human rights norms by following their own domestic standards and avoiding responsibility for violating broader or more affirmative human rights norms. For instance, western liberal states relegated economic, social, and cultural rights to the bottom of the normative hierarchy of human rights because they assume such claims to be nonjusticiable, without explaining why judicial enforcement should be a criterion of human rights in the first place. This same liberal bias for judicial enforcement has been used to reject a range of collective and intergenerational entitlements like rights to social and economic development and protection of the environment. Despite the vulnerability of the elderly, the judicial enforcement of the individual and collective rights of this group are rejected by the current human rights discourse because the judicial protection of this group is incomprehensible to the liberal mind.
The “confidence trick” of misrepresenting civil rights as human rights has been reinforced by presenting an apparent continuity of claims of the “civilizing mission” that were used earlier by the same European powers to justify their colonial expansion. Another factor in this process is that the same former colonial powers have established themselves as “gate-keepers” of the so-called international community by controlling membership and operations and functioning of the UN.Footnote 26 Membership and operation of international financial institutions such as the World Bank and the International Monetary Fund (IMF) are governed by the constituent documents of the organization. The IMF is governed by charter of the organization, while voting power in such agencies is proportionate to each state’s contribution to the agency’s total budget; since the richest members of those agencies are nearly always former colonial states, this enables them to wield disproportionate power and influence in matters of international finance. Another factor enabling former colonial states to exercise disproportionate power and influence in international relations in general is that they have the most experience in the workings of international organizations, from the League of Nations to the World Trade Organization. Because of this, their national experts tend to dominate when it comes to negotiations and arbitration of disputes. Former colonies, however, have little choice when engaging lawyers and business experts than to turn to the nationals of former colonial powers. Even the national languages of colonial states contribute to limiting the choice of new states when they seek legal advice or representation in their disputes with other states.
One result of this is that any outcomes or settlements achieved by international arbitration and negotiations between developing countries and international organizations have already been anticipated and shaped by the legal and administrative systems of former colonial powers. Similarly, the ability of former colonial states to perform “gatekeeping functions” demonstrates their ability to exercise what is called “the power of the initiative,” which refers to their ability to mobilize their resources, in the form of their media and civil society organizations, and to combine their foreign policy objectives with their role as gatekeepers of the current legal framework of international relations. In this way, European powers have in recent history been able to control membership in the club of “civilized nations,” which Article 38 (c) of the Statute of the International Court of Justice (ICJ) officially recognizes as one of the sources of international law to be applied by the ICJ. Other factors shaping the disproportionate influence of former colonial states include, for instance, the legal and technical power of the ICJ, although the decisions ofthe Court are supposed to apply only to the parties to each case decided by the Court.
In this book I seek to affirm the true universality of human rights, in ways that enhance the practical and sustainable protection of these rights through a variety of strategies beyond piecemeal, reactive, and expensive judicial enforcement. The universality of the concept itself means that human rights are the entitlement of all human beings by virtue of their humanity. This quality of globally inclusive scope of the rights of every human being, equally and without any distinction, can be used to enhance the “value added” of human rights regardless of judicial enforcement of human rights norms as such. The belief that these rights should override any rights asserted by virtue of membership in a group (e.g., citizens of a state, or members of an ethnic or religious group) is prerequisite for the validity of the concept and the possibility of practically applying the specific rights claimed under this framework. Since neither the human rights paradigm nor the universality of these rights as prerequisite for their global validity is an end unto itself, the pursuit of the practical viability and normative universality of these rights must also be “good means to the end,” the end being one of sustainable protection for the human rights of every human being, anywhere in the world.
The validity of any human right cannot be confirmed at the expense of other rights, and human rights cannot be simply what the state wishes to grant its citizens and other persons or groups subject to the state’s jurisdiction. Yet, no authoritative institution or process exists by which competing claims of rights can be arbitrated or adjudicated. The apparent consensus around the impetus for the protection of human rights by the end of the Second World War has been the failure of the state to protect its own citizens against itself and other authorities, which is the basic rationale for the pursuit of universal rights. It is from this perspective that I am presenting this strong critique of the present human rights system and proposing an alternative, in tribute to the concept, its potential content, and the prospects of implementation of human rights.
The premise of this critique of the present international human rights regime is twofold: First, the regime’s ineffectiveness in achieving any of its purported benefits indicates deliberate purpose and inherent institutional quality. Second, the weakness and ambiguity of the present human rights regime, which expects states to hold themselves accountable to humanity at large, is also counterproductive because it entrenches profound hypocrisy and perpetuates complacency. This book is an urgent plea to take the protection of human rights seriously enough to either earnestly strive for their practical and sustainable realization or stop the cynical pretense of adherence to this humane principle.
The basic credibility challenge for the claim that universal human rights are the equal rights of all human beings by virtue of their humanity is to transcend the inherent neocolonial nature of the project as founded on the present system of international law. By asserting their own values and social relations as the global model of universal human rights, former colonial powers have identified themselves as the embodiment of human rights and doomed the rest of the world to struggling to “catch up.” Submission to the legal obligation of the western model of human rights has become the essential requirement for acceptance of statehood by other states, and admission to the membership of the United Nations. Once a country’s statehood has been accepted by other states it cannot be legally lost because of the failure of the state to protect human rights – neither the normative criteria nor any institutional mechanism exists by which recognition of statehood can be withdrawn by other states. Yet, the western requirement of justiciable enforcement of human rights is difficult for emerging postcolonial states and developing countries that were not colonized to achieve due to the lack of judicial resources and administrative competence for protecting human rights on the ground.
It is clear to me that the inevitable consequence of the neocolonial fallacy that liberal relativism has exclusive claim to being the universal norm is the practical failure of the liberal model of juridical protection of human rights by the state. This combination of conceptual fallacy and practical inadequacy of the foundational myth of the universality of human rights seems to hint at ideological and cultural relativity in European conceptions of human rights, though bridging the gap remains possible in practice.
Universality or Uniformity
Why must the apparent dichotomy of universality versus uniformity be a choice of one or the other? And how can the two be reconciled so that universality becomes the global ideal within which local uniformity is asserted against coercive dichotomy? For example, gender equality is the universal ideal, while uniform practice of the norm is not violated by granting working mothers “maternity leave.” Accepting such differentiations within broader universality can sustain pragmatic practice so that, for instance, maternity leave for mothers does not immediately require “paternity leave” for fathers, unless justified by other factors.
To speak of human rights as a preordained uniform set of presumably universal rights for all human beings by virtue of their humanity requires the capacity to imagine humanity in different socioeconomic and cultural contexts. To promote and defend human rights requires the ability to empathize and identify with all varieties of people, their needs, and their expectations, especially when they are unable to articulate these for themselves. Such requirements are what the capacity to imagine, empathize, and identify would facilitate and support. For instance, the neocolonial premise and presumed outcome of the current human rights discourse are too flawed to qualify as protection of human rights at all.
The democratic principle of self-governance is premised on the sovereignty of the human person as the subject of human rights in defining and implementing those rights, through the radical democratization of the entire system. Granted, the state has an indispensable role in the protection of human rights through intergovernmental relations and regulating access for international agencies (such as the World Health Organization and the International Labor Organization) to provide their services to local populations. Yet it is the role of civil society and the democratic process which ensures the proper working of these agencies and organizations. Every aspect of self-governance and international cooperation presupposes the active and well-informed role of the public at large without demands or supervision by local civil society organizations. Every aspect of the protection of human rights starts and ends with the role of the human subject of those rights.
By decolonizing human rights, I mean an ongoing dynamic process of reversing the colonial domination of the norms, institutions, and processes for protecting human rights, in order to bring all aspects of the system into conformity with the rationale of equality of all human beings in dignity and rights. The present international human rights system is inherently neocolonial because it is premised on the uniformity of a set of norms and institutions proclaimed by a self-select group of colonial powers that presume to speak for humanity on a global scale. As to be expected, it is that self-select group of former colonial powers (including Russia/the Soviet Union and the United States) which prescribe their own values and institutions as the exclusive and uniform universal model of human rights to be imposed on former colonies as their “passport” to political independence and membership of the so-called international community.
To speak of reconciling in this context is to indicate the pragmatic, incremental, and progressive nature of the process, and should not be perceived as implying submissive compromise on the goals of upholding the universality of human rights. Emphasizing the tentative and contingent nature of social change is to indicate the role of the sovereignty of the human subject, which includes choice or preference of sequence of outcomes. In other words, we should not attempt to override the priorities or choices people wish to make in the name of protecting their human dignity and self-determination.
The protection of human rights is a means to the end of ensuring respect for the dignity of each and every human being, everywhere in the world, by virtue of her humanity, without any requirement or qualification other than being human. The premise of universality of human rights affirms the global inclusion of every human being according to his or her own understanding of the meaning and implications of human dignity. On its own terms, the universality of human rights means that each person has the right to define and protect her own human rights. Conversely, any claim to protect human rights through imposition by the state or in the name of the so-called international community is a neocolonial assertion of “the civilizing mission” of European colonialism, and as such is inherently incompatible with the core premise of universality. Such imperial projects rely on an expectation of uniformity of universal human rights norms, which presume to authorize imposition of a predetermined set of rights by a centralized hierarchy of power through international institutions like the United Nations. Some form or degree of normative uniformity may emerge over time out of an overlapping consensus among different communities around the world, but never through imposition by imperial powers in the name of the so-called international community.
This book seeks to clarify and facilitate the possibility of protection of universal human rights because the present state-centric system is incapable of protecting these rights on their own terms. The suggested shift from the current illusion of legal protection of human rights by the state to cultural legitimacy and political mobilization as the necessary basis for any protection of these rights is not an “alternative” of the present state-centric system. The state is incapable of protecting the rights of human beings as such. The premise of the nation-state’s territorial sovereignty necessarily means the limitation of what it can do within its own jurisdiction and constitutional/legal competence and cannot and should not extent to humanity at large. The claim of any state to protect rights beyond its own domestic jurisdiction is an imperial projection of its power and violates the sovereignty of other states.Footnote 27 The claim of any state to protect human rights is a contradiction in terms because whatever the state does about rights is by definition in the realm of the civil rights of those who are subject to the state’s lawful jurisdiction and never the rights of all human beings.
In this light, the categorical principle to emphasize here is that self-determined universality is the only possible basis for the protection of human rights in any community. This principle does not mean that all established norms and institutions necessarily conform to a unanimous view of self-determined universality in the community. What this principle means is that advocates of change or adjustment in established norms and institutions should engage in an internal discourse to transform attitudes and mobilize political support in favor of what they believe to be the self-determined human rights norms within their community. To recall a point already made in the preceding paragraph, this is not an alternative to the current state-centric legal enforcement model because enforcement cannot work except through cultural transformation and political mobilization. Any view of an alleged human right that is stipulated by international treaties without the endorsement of self-determined universality is an untenable imperial projection of foreign power, an external imposition on the community in question that is incompatible with the essential rationale of human rights. Issues and themes suggested by the preceding framework include: What is universal about locally defined human rights, i.e., does universality require uniformity? What is the role of normative universality in the human history of the world?
Following up on the same theme of liberal relativism of the current human rights paradigm, I argue that Western former colonial states adopted their own liberal values as the universal norm for human rights and are pushing the rest of the world into the defensive position of being cultural relativists for seeking to do the same. For example, the states of western Europe did not prohibit the death penalty – a human rights norm – in their regional human rights treaty, namely, the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. As social and cultural attitudes on the issue in the region shifted during the second half of the twentieth century, the European states adopted Protocol 13 of the European Convention on Human Rights and Fundamental Freedom to prohibit the death penalty.Footnote 28 In contrast, the death penalty remains permitted in the United States.
This example shows the two sides of the coin of liberal relativism: prohibition of the death penalty was not a human right when Europeans did not accept that and became a human right when they did. The democratic nature of the human rights rationale for prohibiting the death penalty confirms choice by citizens rather than a normative mandate. Given their own experience with the death penalty, how can Europeans seek to impose their choice on the democratic process for other peoples of the world?
To conclude this introductory chapter with some personal reflections, my initial view of human rights as a law student in Sudan in the 1960s reflected conflict and tension between elements of my identity as a Muslim, on the one hand, and my commitment to the advocacy of human rights as a universal ideal. I did not want to give up on either of those two sets of commitments, but also did not know how to reconcile or adjudicate their competing claims. At the time, my understanding of Islam was Sharia as established since the tenth century and my view of human rights was established by the Universal Declaration and the two Covenants. Neither side of my dilemma was open to reconsideration or compromise. Over time, however, I was fortunate enough to find and accept a methodology for the contextual reinterpretation of Sharia, and an ideology for cross-cultural dialogue for a dynamic consensus-based view of human rights.Footnote 29 I continued until the mid-1990s to write and speak in terms of how to reconcile Sharia with human rights, but up to that point I had taken human rights for granted. By the late 1990s, however, I had begun to question the Western liberal conception of human rights and the state-centric manner of their alleged protection. As a Muslim, I remain convinced of the need for the reinterpretation of Sharia, and as an advocate of human rights I have come to be convinced of the inevitable multiplicity of perspectives and interpretations of human rights. Far from being a fatal fault in the human rights paradigm, the inherent diversity of perspectives and experiences of the concept, content, and context of the practice of human rights are in fact the key to the dynamic mediation of competing demands for social justice and individual freedom. The analysis and application of these theories have evolved in my own mind over time, and will continue to evolve, I hope, but I have not found reason to revise the basic premise and implications of the process of mediation itself.
As I see them now, all aspects of the theory and practice of human rights must remain open to contestation and challenge by all human beings everywhere as a necessary consequence of the nature of the universality of human rights. For me as a Muslim, neither Sharia nor the view of the UDHR about the universality of human rights can be taken for granted or assumed to be definitive. Regardless of such appropriations of the outcomes of dialogue, the reality is that the vision of the universality of human rights is fundamentally challenging to all societies and to all human beings. Every person in every community is challenged by the real magnitude and true nature of the claim of the universality of human rights. The quality of universality is the conceptual means by which each human subject is entitled to formulate her or his conception of each right and free contribution of contextual strategies of implementation. In practice, such diverse expressions and visions will tend to converge into evolving consensus on the meaning of each right and convergence of strategies of implementation. Such is the historical nature of human experience. Yet, for every conception of rights to remain relevant to the experience of their human subject, all aspects of the process should reflect the voluntary agency of every human subject.
In conclusion of this chapter, I recall three original ideas I highlighted to clarify and elaborate at different stages of the following analysis which are not commonly known in the field. The first is the distinction between civil rights and human rights, as the subject of my main charge that there is no protection anywhere of human rights as the rights of every person by virtue of his or her humanity. When liberal societies present civil rights of citizens and lawful residents as universal human rights, this negates the core rationale of the very idea of universal human rights. If civil rights and human rights are the same, what is the point of raising the possibility of universal human rights to which every person is entitled without any distinction whatsoever? Many human societies have achieved a degree of protection of a range of civil and political rights, but no human society anywhere or at any time has practiced protection of the rights of all human beings by virtue of their humanity. This charge is fundamental to my entire approach in this book, because we must expose the fallacy of the claim before we can begin to correct it.
The second idea, which is also distinctive to my approach, is the useful triangle of concept, content, and context. The point here is that all three are inherent to the idea of human rights and must work together to clarify and confirm the doctrine. The concept of human rights is the idea of universality which, although relatively easy to accept in theory as the entitlement of every human being, is extremely difficult to apply in practice, and is nowhere to be found in any society today. The content is the claim to specific meaning of a set of values or norms that are universally accepted and applied everywhere. This claim has never been raised anywhere in the world yet, let alone being able to deliver identical entitlements to every human being without distinctions of race, gender, religion, social origin, etc.
The third idea is the contextual framework of the practice of human rights. This is another paradox, namely one of how rights are to be practiced equally and without distinction despite their distinctive context. As I see it, this request is a variation on the proverb “eat your cake and have it, too.” An analysis by contextual framework is a request for distinctiveness, in this instance of rights, whether qualified as human rights or not.