Copyright © Alison Brysk 2018
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First published in 2018 by Polity Press
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ISBN-13: 978-1-5095-2057-2
ISBN-13: 978-1-5095-2058-9 (pb)
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Library of Congress Cataloging-in-Publication Data
Names: Brysk, Alison, 1960- author.
Title: The future of human rights / Alison Brysk.
Description: Cambridge, UK ; Medford, MA, USA : Polity Press, [2018] | Includes bibliographical references and index.
Identifiers: LCCN 2017043970 (print) | LCCN 2017058092 (ebook) | ISBN 9781509520619 (Epub) | ISBN 9781509520572 | ISBN 9781509520589 (pb)
Subjects: LCSH: Human rights. | Human rights–International cooperation. | Human rights and globalization.
Classification: LCC JC571 (ebook) | LCC JC571 .B7558 2018 (print) | DDC 323–dc23
LC record available at https://lccn.loc.gov/2017043970
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I am grateful for the opportunity offered by this series and my Polity editor, Louise Knight. I deeply appreciate the financial support since 2010 of my research at the University of California, Santa Barbara, by the Duncan and Suzanne Mellichamp Chair in Global Governance. UCSB doctoral candidates Natasha Bennett and Yunuen Gomez Ocampo provided skillful and timely research assistance. The thinking reflected in this book was shaped by dialogue with colleagues in a series of conferences and workshops: the North American Consultation on the United Nations Human Rights Treaty Body System, Columbia University, June 1–2, 2017; “Global Rights and Democracy,” Liu Center, University of British Columbia, May 16, 2017; the 2017 Marsha Lilien Gladstein Visiting Professor of Human Rights, University of Connecticut, March 28, 2017; the University of Minnesota Law School – Human Rights Colloquium, March 3, 2017; the Roundtable on the Future of Human Rights, International Studies Association, Baltimore, February 22–4, 2017; the World Values Summit, Monterrey, Mexico, October 21, 2016; and the “Human Rights and State Sovereignty: Roundtable,” American Political Science Association, September 4, 2016. Many thanks to the sponsors, organizers, and all of the participants in these conversations, too numerous to name but greatly appreciated. My contribution here has been especially influenced by constructive exchanges with Ruben Dominguez and the Mexican human rights community in Monterrey; David Forsythe, Daniel Whelan, Leslie Vinjamuri, and Michael Goodhart at the APSA and ISA roundtables; Christopher Roberts, Stephen Meili, and the scholars at the University of Minnesota Law School; the University of Connecticut Dream Team – Shareen Hertel, Richard Wilson, Zehra Arat, Kathryn Libal, Samuel Martinez, and Glenn Mitoma; at the University of British Columbia, Lisa Sundstrom, the Russia Justice Initiative, and Stephen Hopgood; and, at the School of International Public Affairs at Columbia, papers and discussion with Jack Snyder, Tonya Putnam, Beth Simmons, Ruti Teitel, Stephen Ratner, Felice Gaer, Yasmin Ergas, Sonia Cardenas, Anne-Marie Clark, the Center for Reproductive Rights, and Human Rights in China. The section on refugees in chapter 2 was published in a previous form as “Contracting the Refugee Regime,” in Alison Brysk and Michael Stohl, eds., Contracting Human Rights (Edward Elgar, 2018).
I can trace three generations of human rights in my own family. I am the daughter and granddaughter of refugees. I would not have been born had my father not escaped persecution in war-torn France and settled in the US – and his father had not first fled Poland after being beaten and jailed for labor organizing. I came of age in America with the rights revolution. One of my first memories is attending a civil rights march with my mother; during my studies I volunteered in a Vietnamese refugee camp in Hong Kong; and my first job was working in a women's clinic where we wore buttons reading: “Health care is a right, not a privilege.” My formal study of human rights began with my PhD dissertation, when I traveled to Argentina to chart the fall of a dictatorship, the rise of transitional justice, and the emergence of a new kind of movement: Mothers of the Disappeared. After returning to the US as the Berlin Wall fell, I became a mother myself and began a quarter-century of human rights research that carried me from Quito to Delhi, from Johannesburg to The Hague. A generation later, my daughters have come of age riding the next wave of rights: one plots new paths for economic empowerment in Latin America, while her sister advocates for the LGBTQ community. What comes next? The fate of the next generation will depend on the future of all of the rights to protection, freedom, and dignity that have shaped my own life, and newer rights frameworks for my children and grandchildren – above all, environmental justice.
Human rights have fallen on hard times – yet they are needed now more than ever. Despite historic advances in human rights law and mobilization, unprecedented numbers suffer war crimes, forced displacement, ethnic persecution, gender violence, and backlash against rights defenders. These hard times in practice are matched by harsh criticism in theory. Nationalists and realists claim human rights are too much, development critics and legal skeptics say human rights are not enough, while post-modern, post-colonial, and critical-school feminists argue that rights are the wrong kind of politics for liberation. Human rights are poised on the knife's edge between hope and despair, beloved and beleaguered, inspiring and ignored.
But far from the “end times” of human rights declaimed by some (Hopgood 2013), it is time for a reboot that closes historic gaps and confronts emerging challenges. After several generations of measured success and unexpected shortfalls, the future of human rights lies in fostering the dynamic strength of human rights as political practice. People all over the world – from Amazonian villages to Iranian prisons – use human rights to gain recognition, campaign for justice, and save lives. With all of its limitations, human rights have proved a sustainable basis for solidarity in the face of violence and oppression. In this book, I will argue that the future of human rights must expand this practice to meet persisting threats to human dignity and craft new ways to speak rights to power. But, first, let us begin by setting the stage and defining the debate.
What are rights? Human rights are a set of principles, values, and institutions seeking to assure the life, dignity, freedom, and equality of all people. Rights include both freedom from oppression and duties by authorities to provide and protect basic elements of survival, identity, and social life. They obligate governments but, when states cannot or will not protect their citizens, also other power-holders such as employers – and the international community at large.
These rights began as simple humanitarian perquisites often rooted in religious traditions, such as resistance to slavery, and developed further with the rise of citizenship and the ethos of the French Revolution as limitations on sovereign power: liberty, equality, and solidarity. Human rights gained additional scope and traction through Enlightenment-era social contract theorists of freedom and democracy, Marxian ideals of justice and solidarity, and Kantian notions of reciprocity and a cosmopolitan world order. The horrors of the twentieth century, peaking in the trauma of the European Holocaust, forged a new level of commitment to universalism and the “right to have rights” and generated the first intervention frame of genocide. While post-World War II decolonization and incorporation of the global South increased attention to the socioeconomic rights and self-determination principles planted in the Universal Declaration of Human Rights, they were then somewhat sidelined by Cold War US hegemony and political rights preoccupations. From that time on, successive waves of struggle against dictatorships, exclusions, and oppressions have produced a growing body of treaties and institutions to contest patterns of abuse – such as forced disappearance – and protect vulnerable populations such as indigenous peoples. By the 1990s, over two-thirds of the world's states affirmed at the Vienna Conference that, in principle, human rights are “universal, interdependent, and indivisible” (Lauren 2013; Jensen 2003; Iriye et al. 2012).
An international architecture for claiming rights developed in waves along with modern projects of global governance, from the Geneva Conventions to the international war crimes tribunals and associated International Criminal Court (ICC). The normative centerpiece of the Universal Declaration and the twin International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights are flanked by a post-war suite of phenomenon-based treaties, such as the Convention Against Torture, and population-protecting mechanisms, such as the Convention on the Elimination of All Forms of Discrimination Against Women. Parallel undertakings exist at the regional level, most strongly in Europe and the Americas. In some cases, regional norms exceed the global standard, notably in the inter-American treaties on gender violence, disability, and forced disappearance. An ensemble of United Nations monitoring mechanisms parallel the covenants in treaty committees – and UN processes go on to greater levels of reporting and potential responsibility via the Human Rights Council, the Universal Periodic Review, and Special Rapporteur visits. These standards gain traction through a combination of global legal institutions and jurisprudence, incorporation in national charters and legislation, diplomacy, sanctions, and aid policies. In tandem with these interstate channels, global civil society engages in standard-setting, advocacy, and sometimes implementation, especially for issues such as refugees.
Three generations past the birth of the international rights regime, freedom, equality, and aspirations for human dignity are vastly expanded yet deeply contested. Almost half of the world's countries are democracies, and up to two-thirds of the global population enjoys at least partial theoretical protection from arbitrary abuse of state power. The dismantling of legalized oppressions of colonialism, apartheid, caste, and gender inequity has liberated majorities on every continent. Intertwined with civic freedoms, recognition and respect for all forms of difference and dissidence – from sexual minorities to indigenous peoples – has greatly improved in many countries and is strongly supported by international norms and institutions. Global treaties, lawsuits, and campaigns on war crimes, contemporary slavery, health rights, and corporate responsibility have resulted in some consequential interventions – from limitations on land mines to access to essential medicines – that have saved or improved tens of millions of lives (Landman 2005). Moreover, despite cultural differences and political controversies, global public opinion is broadly supportive of the principles and proponents of human rights (Ron et al. 2015). Emerging research shows both that rights conditions are improving overall through cascades of rising standards and networked institutions and that some of the skepticism, ironically, results from rising expectations and improving measurement (Sikkink 2017).
And yet the glass is half empty. Sixty-five million people are forcibly displaced by civil wars and failing states – the highest level recorded in human history – and face a panoply of threats to survival, freedom, and physical integrity. Rising xenophobia has resulted in the illicit detention and deportation of migrants by democratic governments – and often hate crimes by their citizens – from Europe to Australia to America. War crimes in Syria have resulted in nearly half a million massacred, tens of thousands of political prisoners, cities of civilians systematically destroyed, genocidal attacks on minorities, and enslavement of women and girls – with no significant international response. One out of three women in the world has suffered gender-based violence, including femicide, battering, and sexual assault, at the hands of government agents such as police, criminals, along with private individuals such as traffickers – and, above all, their own families. Democracy has deteriorated significantly in many of the emerging Latin American, South Asian, and African nations where citizens had gained power from military or single-party rule in the past generation. Rising powers in Russia and China remain authoritarian, combining long-standing suppression of civil liberties with newer mechanisms of surveillance and repression that touch perhaps a quarter of the world's population – and even exporting these negative influences to trade partners and disputed zones. Developed liberal democracies that were rights promoters, however partial and inconsistent, have now abandoned all pretense of cosmopolitan concern – from Brexit to the populist nationalism of Donald Trump.
What are we to make of these contradictions? Are human rights exhausted – or resilient? Can better or different understandings of the rights regime point the way forward? And, most important, whether by rights or some other means, how can we – in the words of Martin Luther King Jr. – “bend the arc of history towards justice”?
Critics of the shortfalls in rights trace their basis to inherent limitations in Enlightenment liberalism, state-centric enforcement, disregard of economic structures, alleged Western bias, and democratic deficit in international law (Baxi 2002; Douzinas 2000; Posner 2014; Goodale 2009; Gearty 2016). Thus, feminist, critical, post-colonial, and realist analysts each in different ways challenge the historical exclusions of human rights, human rights dependence on international law, the troubled relationship between rights promotion and humanitarian intervention, inappropriate cultural constructions and projections of rights norms, the bureaucratic politics and hierarchical status of human rights organizations, appropriations of human rights discourse by neo-liberal and security states to subvert empowerment, distortions of transitional justice for conflict resolution, and hard-wired political barriers to implementation (Charlesworth 2002; Barnett 2011; Goodale 2009; Stern and Straus 2014; Hopgood 2013; Tate 2007; Postero 2007; Meister 2012; Ignatieff 2011; Hafner-Burton 2013). One of the most grounded critiques relocates the rise of rights to the last gasp of Cold War liberalism, as it clashes with the contradictions of capitalism and US dominance – and, accordingly, dismisses human rights as “the Last Utopia” of bourgeois legal evasion of social justice (Moyn 2010).
One of the most senior scholars of human rights and world politics reviews and responds to this wave of critique with an affirmation of the progressive potential of rights despite limits. David Forsythe acknowledges the structural constraints of sovereignty, nationalism, social inequality, and double standards noted by Hopgood, Moyn, Posner, and Hafner-Burton but knowledgeably counters their distorted accounts of the history and politics of key human rights institutions – and their exclusion of transformative trends in the global South and grassroots campaigns. He concludes:
the future of human rights is not assured but rather depends on human endeavor – agency as compared to structural determinism. … There will always be political figures more interested in personal and national power than in the welfare of the many. There will always be powerful persons driven by the quest for great wealth and the status and luxury it brings. None of that is new. The basic question is whether the slow and complex building of countervailing ideas and institutions can restrain those perennial impulses. … Those liberal ideas and institutions, which can operate to constrain the will-to-power of those who would repress, are not pre-ordained to succeed but must be reaffirmed and reinforced in each generation. (Forsythe 2017)
Moving beyond the crisis of post-war liberal institutions, this pragmatist response is grounded in a notion of rights as an evolving political construction – a contested basis for mobilization and empowerment with the capacity for counter-hegemony in a liberal world order (Beitz 2009; Hiskes 2015). In this progressive view, the legacy of human rights is to plant dynamic institutions and practices at the heart of global governance. The pragmatist Richard Rorty (1989) adopts a view of rights as a practice of “contingent solidarity.” De Sousa Santos (2002) shows the value of human rights as a dialectic lingua franca across communities of values and identity that can come to play a transcendental role of an ecumenical global ethos. Goodhart (2009, 2016), in parallel with Zivi (2011), proposes rights as a toolbox of emancipatory claims and practices. Hoover (2016) grounds instrumental justifications of rights practice in a broader understanding of rights as a tool for the construction of legitimate authority and democratic political space.
In all of these ways, rights are an ongoing assertion of self-determination and solidarity in response to the requisites of power inherent in social organization, from the state to the family (Arendt 1958; Nussbaum 2000). This approach sees rights as sound in theory but skewed in practice and focuses on restructuring incentives and institutions to close the compliance gap and extend the reach of rights to the full range of violators (Risse et al. 2013). Scholars from this perspective recognize the changes and challenges for the historic rights regime in a multipolar world moving beyond legal strategies and grappling with new issues such as environmental change and information technology (Boyle 2012). Pushing past academic deconstructions of rights, they note that “human rights practitioners cannot afford to simply celebrate criticism and rejoice in uncertainty.” Instead, constructive reformers advocate diversification of the rights repertoire towards a “human rights ecosystem” (Rodríguez-Garavito 2014). Summarizing a set of critiques that question the future of a liberal human rights project rooted in the middle class, a recent collection leaves room for hope when it suggests that, alongside the stark alternatives of business as usual and irrelevance (in their terms, “Staying the Course” or “Sideshow”), human rights may grow by embracing wider constituencies (“Pragmatic Partnership”) and social justice claims (“Global Welfarism”) (Hopgood et al. 2017).
A pragmatist, constructivist view of human rights as political process means that rights are not the answer – but human rights are the right question. Rights are the claim that we must ask of any social process or power relationship: Who counts as human? What is right? And who is responsible? (Brysk 2005). Rights are constructed through communicative action that includes treaties, laws, diplomacy, government programs, protest, information campaigns, representation and discourse – and the material resources they mobilize. Through persuasive pathways of empathy, reciprocity, and socialization, the practice of rights builds our identification across boundaries, our benefits and investment in cooperation, and our principles and expectations of justice and moral worth (Brysk 2013b).
“Universal, interdependent, and indivisible” rights are built through appeals to hearts and minds, roles and rules. Exclusions and dehumanization must be met with symbolic projection of voice and counter-cultures of solidarity (Brysk 2013b). Interdependence of rights and regimes must be rationalized and built, “making rights make sense” through rewarding roles in a liberal world order and linkages between democratic and global citizenship (Brysk 2009). The globalization of law, people, and information reveals and produces the connections between rights and builds an “indivisible” global community (Brysk 2001, 2013a).