This document appears to be the table of contents and preface for a book titled "The Future of Human Rights" by Upendra Baxi. The preface discusses rewriting histories of human rights and the relationship between statecraft and human rights. It notes that human rights concepts have multiple origins from people in struggle, and that both progressive and regressive Eurocentrism suppress alternate civilizational understandings of human rights. The preface also critiques viewing human rights solely through the lens of statecraft, arguing it fails to acknowledge traditions of resistance and the role of human rights activism in universalizing rights for all peoples.

1. ALTER NATIVE LAW FORUM
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The Future of Human Rights
Second Edition
UPENORA BAX]
OXFORD
UN IVSa.S ITY 1'1.855

2. Contents
Atkllowltdgt>mfflts
"
Prfjace nu
AbbrtvitJrions xxv
I. An Age of Human Rights?
2. Two Nodons of Human Rights:
'Modern' and 'Contemporary' 33
3. The Pnctices of 'Contemporary' Human Rights Activism 59
4. Too Many or Too Few Human Rights? %
5. Critiquing Rights: Politics of Identity and Dirre~nce 115
6. What is Living 2nd lXad in Relativism? 160
7. Human Rights Movements and Human RIghts Markets 200
8. The Emergence of:m Ahenute Paradigm of Hunun Rights 234
9. Market Fundamentalisms: Business Ethics at
the Altar of Human Rights 276
Bibliography 303
Author Index 330
Tllmlt I"do: 336

3. •
Acknowledgements
I dedicate this book to the lamented Neelan TIruchdvam, a friend fOf ~r
three decades. Ncelan-S2n (as I used to fondly c211 him) strove w preserve
a distinct and aUlhentic postcolonial, future for the rights of 'minorities,'
as a mode of entrenching a hutnatle future for human rights. He declined
the prerogatives of:l. safe globalizing expatriate life as a way of making the
futu~ of human rights mo~ secure; and he lived and died close to the
seem: ofcrime, as it were, :against human futurcs. This dedication speaks
to his living pmrnct amidst IlS, a luminous presence for the tasks of recon-
struction of alternative human rights futures.
This work owes a great deal to the stimularion offered by my students
at Sydney University Dep2rtmcnt ofJurisprudence and International Law,
Delhi University Law School, Ouke Law School, W2shington College of
Law, NYU Global Law Ptogr:lm. the Law in txvelopm~nt Prognm at th~
Warwick Law School, and the National Law Schools of India (NLSUl at
Bangalott, and th~ NALSAR at Hyd~f2bad.)
As a work in progress. various th~matlc! of this work ~tt presented
to seminars and colloquia: Th~ Indian Academy of Social Scien~, Pune
Congress; The Ausrralasian Law Teachers Gold~n Jubilee Symposium; the
University of La Trobc; th~ Universities of Copenhagen and Lund; Th~
~ntre ofEthnic Studies. Colombo; The ~ntre ofMiddle Eastern Stud-
ies at Princeton University; Th~ University of New York Law School
Faculty Workshop; The Harvard Human Rights Progrunme Roundt2bl~
on Human Rights and Univ~rsity Education; the University ofWarwick;
and the R~~arch School of th~ Australian National Uni~rsity, Canberra.
I must here especially m~ntion the sinb"lliar honour done to m~ by the
University ofEsscx Human Rights Centre day-long interdisciplinary dis-
cussion of the first edition of this work.
Many distinguished colleagues hav~ been generous with their com-
ments on the thematic of this work. Professor Satyaranjan Sathe (my
teacher at Bombay University) al~rted m~ to th~ perils ofinfdicitous styl~
ofwriting. Professor Lord Bhikhu Par~kh was warmly supportive all along.
Professor David Kennedy (Harvard Law School) in presenting an early

4. x Acknowledgements
paper on the thematic of this work at the NYU Faculty Workshop gt:ntly
reminded me of the heterodoxy of my footllote citations. queried the
viability of many binary distinctions' draw (especially in the ~nre of
'progress narratives') and raised the important issue of how far my work
may be said to belong to the conventional corpus of human rights schol-
arship. Professors Nonnan Dorsen and Ted Meren, at the same event,
wondered whether the appropriation ofhuman rights languages might not
be, after all, a 'good' omen for the future of human rights. Other distin-
guished participants at the faculty workshop (notably Professonl mnk
Upham, Christine Harrington, and Ruti Teitel), who, while agreeing
with my notion of trade-related, market-friendly human rights, interro-
gated the ternlS of description. So did Professors Nathan Glazer, Henry
Steiner, and Peter Rosenblum at the Harvard Human Rights Programme
p~ntation.
Professors Bums Weston and Stephen P. Marks raised Ill.my friendly
interrogations concerning my distinction between the 'modem' and 'con-
temporary' human rights paradigms. Bums remained agonized by my
distinctions between 'markets' and 'movements' for human rights and the
languages of commodification of human suffering. Steve insisted that'
name my 1999 contribution to their c~ited volume as ' the voices of
suffering.' Professors Talal Asad and V«na Das raised (at the Princeton
Seminar) questions concerning the adequacy of my understanding of
anthropological approaches to human rights. The lamented Professor
Dorothy Ne1kin (with whom I had the privilege of teaching Law and
Science seminar at New York University Law School Global Law Pro-
gram) offered detailed comments on an early draft of Chapter Eight.
Professor William Twining has graciously nudged me in the direction of
understanding the fonnative traditions ofanalytic and comparative juris-
prudence in its relation to contemporary globalization, a difficult task
which I may, I have realized, addressed morc fully. Professor jane Kelsey
(University of Aucldand) remained all along warmly supportive of this
difficult project.
Besides jane, among other activist friends with whom I have had the
privilege ofworking for decades are: Dr Clarence Diu (President, Inter-
national Centre for Law and Development, New York); Dr (Ms) Vasudha
Dhagamwar (Director, Multiple Action Research Group, New Delhi);
Ms Shulamith Koel1lg(Executive Director, The People's Decade for I-Iuman
Rights Education, New York); Smitu Kothari (Lolcayan, Delhi); Wud
Morehouse (Presidcnt,lntemational Council for Public Affairs, New Yew
York); Ms Rani jethmalani (a co-founder of WARLAW, Women's Leg:al
Action and Research); Flavia Agnes; Dr (Ms) G«ti Sen (who sought to
-
•
J
Acknowledgenlents xi
educate me concerning the ..esthetics ofhuman rights); and Vandam Shlva,
and Martin Khor, and all his colleagues at the Third World NetwOrk. who,
have (perhaps unbeknown to them) helped me to sustain many a pracace
of unsustainable thought.
The a:knowledgement ofactivist friends remains mcomplete WIthOut
the mention at least ofsome activistjudicial friends:justices VR. Knshna
Iyer, P.N. Bhagwati, DA Desai, 0. Chinnappa Reddy (India), Ismail
Mahomed (South Mrica), and Michael Kirby (Australia). Ismad embodied
v.ast j~ristic energies [hat resituated many unfOlding futures of human
nghts 111 a post-apartheid South Mrica., and beyond. Michael continues to
srmbolize the oases for hunun rights futures for the still despised sexuali-
tJes and for human rights of those affiicted by the AIDS pandemic. Till
t~ay, ~ remai~ moved byChinnappa's adoring reception ofmy first major
article The Little Done, The Vast Undone: Some Renections on Reading
Granville Iustin's tnl ltulian ConstilIItion: A COmtntOIU! of t"~ Nation'
published in late sixties in thejoumal oflh~ Indian Law IlwiW/~ and hi~
extraordinaryjurisprudential laboursfeats at the Supreme Cou'; of lndia
ha:e .in tum innuenced a ~at deal my approaches to human rights
thmking. Fr~m Praful Bhagw.m I learnt agood deal concerning the vinues
of the ~ractJces of human rights utilitarianism. Dhirubhai (D. A. Desai)
cxcmph~ed a p:ofile injudici~1 coura~ in his rohust pursuit ofthe rights
of the dlsorgamzcd and orgamzed labour in India. And to Krishna, above
all, I owe: eternal gratitude for his tempestuous summons to attend yet
further to the agendum ofthe 'little done, vast undone'.Irenuin fully aware
ofthe dangersofunder-acknowlcd~ment ofthis necessarily briefarchival.
. ~~ny activist friends at the Bar, fortunately too numerous to Illcmion
II1dlV1duall~, tuvc contribu~ed a great deal to my understandingofthe w:l.YS
of production of human nghdcsness in India.
To the Oxford University Press notably to [he Commissioning Editor
and r::' h~r colleagues Iowe: enonnous debts for copycditing and indulgent
publication schedule.
.While conventional protocols require acknowledgement ofmy author-
ship of this work, it remains a composite creation. The heavily silent
burdens .of the labour of this writing have been gnciously as ever borne
~ my ~fe Prcma. I owe some distinct debts: to Bhairav nuny thanks for
~IS culinary mischief; to Pratiksha for bringing more fully in view tile
Im~rtal1Ce ofthe distinctive practices ofactivist feminist ethnography of
Indian I~w; to Viplav for his constructive scepticism concerning my un-
ders~ndlllg of the .processes ofdigitalization; and to Shalini for her syrn-
ph~l1Ies. I have Simply no w:l.y of knowing how our granddaughter
P:.tnpooma (now abut five years) and her brother Sambhav (now 23 weeks

5. xii Adcnowlc:dgtments
young) will r~ad this work in th~ir early teens, hopefully at l~ast out of
curious affection for a vanished gnndparent!
Without diminishing in any way any ofthese individual and collective
debts, I need to say that the work in your hands owes, in ways beyond
mditional labours of authorial acknowledgcm~nt, to the mAl au/haN. If
th~r~ is anything cr~ative to this work, it owes to thr« d~cades old
association with social action struggk for th~ human rights ofsubordinated
peoples at divel'K siteS, within and outside India and in particular to the
heroic struggie of over 200,000 women, children and men afflicted by
47 tonnes of MIC, in the Union Carbide orchcsmted largest archetypal
peacetime industrial disaster. From them, and the geographies ofinjustice
constituted by th~ 'organized irresponsibility' and 'organized impunity' of
global corporations, I hav~ learnt more about human violation and suffer-
ing than the work in your hands can possibly ever convey. I accordingly
also dedicate this work to the $uffm'tlg ojtill: just, by no means an abstract
·category.'
Preface
The warnl reader response that necessitated as many as five reprints ofthe
fif'S[ edition ofthis book withill ayear and a halfofits publication was a.lso
accompanied by some distress signals conc~rning the terseness of prose.
This revised and enlarged ~dition substantially rewrites the earlier eight
chapters. Moreover, a new chapter has be~n included which addresses
the recently proposed United Nations nonns concerning human rights
responsibilities of multinational corporations and other business entities.
This, then, may be considered a new text.
I address, in tile main, the future of protean forms of social action
assembled, by convention, under a portal named 'human rights'. This
work problematizes th~ very notion of human rIghts', the standard nar-
ratives of their origins, the ensemble of ideologics :animating their modes
of production, and the wayward circumsunces of th~lr enunciation. It
revisits the contingent power ofthe human rights movement. True, many
a human rights wave llounders on the rocks ofsute sovc:reignty. Yet, these
very waves, at times, g:nher the strength ofa tidal wave that cmmbles th~
citadels of stale sovc:rdgnty as if tlley were sandcastles.
Rewriting Human Rights Pasts
No contemplation ofopen and diverse human rights futures may remain
innoccnt of their many histories. Pre-eminent among these remain the
myths oforigin that suggest that human rights traditions are 'gifu oJtht W6I'
It) tht mt'. The predatory hegemonies ofthe 'West' itselfcompose, recom-
pose, and even revoke, th~ 'gift', Ofcourse, neither the 'givers' ofthe 'gift'
nor its rec~ivers constitute any homogenous category; nor is th~ 'gift' a
singl~ or a singular tr:ansaction. The languages of 'gift' also invite the
attention to its other: the curse. ~rta;nly, the classical model of human
rights emerged as a curse for those viciously affected by colonialism :and
imperialism and this work offers many other instlllces. The patrimonial
narratives ofhuman rights origins also fctd the worst forms ofcannibalistic
power appetires in some non-Euro-American societies. Far too many

6. xiv Preface
South regimes even reject the underlying affirmation of the equal worth
of aU human beings, as if this were a 'unique' Euro-American heritage!
Authentic intercultunl, or even interfaith, dialogue remains a casualty of
warped approaches to histories of human rights ideas and practices.
If human rights conceptions are a 'Western' gin, those inclined to
presel"Ve this 'cultunl treasure' have much to le;rn't from 'Walter Benjamin's
poignant aniculation:
There is no document of human civilization which is not at the same time a
document of biJ.rbarism. And just as such a document is nO( frtt of biJ.rbarism,
barbarism al$O taints the manner in which it w.lS tr:msmitted from one owner to
another.!
An alternative: reading of histories, towards w hich this work hopt:s to
makc= a modest contribution, insists that the: originary authors of human
rights are people in struggle and communities of resistance. The plural-
intiOIl ofclaims to 'authorship' contests all human rights patrimonies, and
interrogates the distinction between the formsof'progressive:' and 'regres-
sive' Eurocentrism. Both forms lUask the: suppression ofalternate histories
of the non-European O ther, its distinct civilizational unde:rstandillgs of
human rights. Neither fully recognizes and respects the ways in w hich the:
peoples' strugglc=s have: innovated traditions and cultures ofhuman rights.
~ also, thus, discover the truth that III 1M tasks ofmJ/ization ofhurflQn rightJ
allJXOpfa, andaU Mtioru, am"" Q$ rqll4f Jlmngm:and that from the: standpoint
ofthe: rightless and suffe:ring peoples everywhere all.sociniD remain undu-
tkvstIcptd/tkvtWping.
Statecraft and the 'Traditions of the Oppressed'
The development of human rights remains ineluctably tethered to state-
cnft. Forms of power and domination provide: the chronicles of contin-
~ncies of the: politics of governmental and intergovernmental desires.
At the same moment, resistance and insurgencies also rc=constitute the
political, increasingly in terms of human rights-oriented ima~ries of
societal and global development. ls it then an egregious error to study
human rights as mere: aspects of statecraft that ahogc=ther fail to take
acCOllnt of the 'tnditions of the oppre:ssed'?
The politics ofhuman rights treats human rights languages and logics
as an en~mble of means for the: legitimation for governance and domi-
nation; it only universalizes the powers of the dominant in ways that
l Waltef Benjamm (1968) 256.
Preface xv
constantly elsewhere reproduce human rightlessness and suffering. Against
this disposition, stand arrayed, the practices of human rights activism, or
the polidcsfor human rights, enacting many a 'militan~ partlculaflsm' of
the local ag:Iinst the global.2
HOWl"Ver, even such prxuces remam effete
in the eye offuture history unless we-human rights and social movement
aClivists--e:llldidly acknowledge that:
The tndition of the oppTC55Cd lCKhes us mat the ·state ofemergency", in which
we live is not an exception but the rule. We must atuin to a conception ofhistory
that is in keeping with this insight. Then we shall durly rtallZC that It is our task
to bring about a real state ofemergency; and this Will imp~ our struggle against
Fascism. One reason why F:lSCism !u.s a chance is that, in the name of progress,
its opponents treat it as a historic norm. The current amazement that the thing:;
we are experiencing :
ue 'sriII' possible in the twenrieth century is not philosophicaL
The amazement is not the beginning of knowledge-unless it is the knowledge
that the view of history it gives rise to is untenable.)
Human Suffering and Human Rights
Rewriting the past ofhuman rights remains important for any e:nde:avour
at remote sensing their futures. Many a paradigm shift has occurred since
the enunciation ofthe U niversal Declaration of Hunun Rights (UDHR).
New criricallanguages such as the: feminist, ecological, critical race throrist
have vastly transfonned the: practices of knowledge and action for human
rights. At the same: time, the fonni!bble languages and the dialects of'nco-
libenlism' (more: accuratdy, the 'post-Fordist authoritarianism').~ which
now steadfastly foster the conversion of human rights movements into
human rights 'markets', inevitably commodify, in the process human!
social suffe:ring. I trace in this work, in particular, the paradigm shift from
~ Univcnal Declaration ofHuman Rights to that oftrade-related, nurket-
frie:ndly human rights, now further aggravated by the conCUrRnt forms
ofthe: WIlrof'tnTor and the: WIlron 'tnTor. Both these 'wars'blightthe futures
ofhuman rights in various ways and forms.s As ifall this was insufficient
2 I articulated Ihis distinction between the polirics ".!andfor human rights in my
activist moments ofwork in India in the foliOONing way (hopefully relevant 10 perfor-
mances of human rights education elsewhere): 'Mohandas Gandhi i,ll/mud India;
)awahatlal Nehru then distovmd India; their followus, in tum, proc:eeded 10 appro-
pnatc India thus invented and discovcred; the task now 15 to re-approprble India from
Its expropriaronl'.
3 Walter Benjamm (1968) 257.
4 George Steinmetz (2203) l23-45.
$ The posl-9!11 'wan' threaten with extmcbOn the hitheno accepted international
flw dISCOUrse distincbon bctwttn intemnional hUlMniwri4ln flw and intcrnarionaJ

7. XVI Prc:face
provocation to the dominant human rights discourse, I revisit tht: troubled
historits of relationship between human sujfmlfl and human righlJ.
Obligations to minimize human suffering emerge in contcrnponry
human rigl1ts discourse as slow 1110tion, rather than as Cast-forward. kind
ofsUte and public policy orientations. The generative gnmmars, as it were,
of human rights dissipate hwm.1I and social suffering, at times to a point
of social illegibility. The most stunning example stmds furnished by the
recent (23 $(:ptember 2(04) Independent Expens Report to the United
Nations Sccrctuy Genc=ral concerning the implementation ofthe Millennw
Goals. It. undcrsundably, sets the most meagrt' standards, slated for attain-
ment by 2015, for 2CCCSS to the basic minimum needs for the poorest of
the poor of the world. The wise women and men, acting as loco parmtfi
for the 'wretched of the earth', speak thus guardedly only to the distant
future for the here-and-nowrighllw peoples for whom international human
rights enunciations appear as a series of callous governance tricks and
subterfuges. Even amidst the 'war ou terror', against the nomadic multi-
tudes6 that now wa~ myriad 'wars ofterror', the portfolio ofthe 'progres-
si~ implementation' of the social and economic remains cruelly thc=
same as ever before. In thc= mc=antime, innumC=r.lble histories of human
suffc=ringcriss-cross and co-minglc= with the historicity ofthc= pre-9f11 and
the post-9f11 Grounds uro.
Thc= newly instituted political hc=nneneutic ofcollective human security
haunts any S('nsc that we may have, or develop, concerning the futurc=s of
human rights. It invitc=s. all over again, attention to the ways in which the
scattered global hegemonies of the eclectically fostered human rights
nomlS and standards retain an enormous potential capacity to reproduce
human/social suffering. Perhaps, the future of human rights depends on
how the 'reason' ofhuman rights may after all discredit the 'Ullftason' ofsute
hUINIf ~ts £rw. It diSturbs. and even destroyS, the ~ry foundatklns of mternational
comity. The ti~places of Ixxh the 'wal"l' render obsoIcu- the GrotLan doctrane of
ImIptJPnltPWL bdli, ""itich, in Its ongm and development. simpl); yet p<M"erfully; Insisted
that intenu.oonal law, and human nghts bw and jurisprudence:. stipullted an order
of nOli-negotiable obhgatlons 10 numntlze human suffering in WoIr, and war-lib:
Situations of uuled ronnlC1. More fundamentlLlly; CVl:n the IIInes of pc~e appear 10
the mmiOl1~ of rlghdess peoples of the world as little different from the limes of war.
III other wurds, l~nguagc5 ofsufferLng are not writ as large LIItimes of peace as they
art: In tulles ofw.u. The emcrging sundards of international crLlllullll.aw In war·hke
situations do not qUite extend to 5yt;temallC, sustained, Ind planned peae«m~ denials
ofthe nght 10 SltlShcoon oftmk hunun needs, such as food, clotIlLng, howlng, and
health.
6Th aLbpt the figure ofthought so COtl(;Cm:LI 10 Mw;:had Hardt and AnlOmo N~
(2002. 2004).
-
Preface lWIl
sovereignty and its variously installed predatory regimes of the dominant
'leg:alitlcs'. These constmtly re-enact what Jacques D<:mda, readlllg for
and with us Jean-Jacques Rousseau. speaks of:
The govemmeIH or oppression all make the same gesUlre: to break the pre'iCncc,
the ccrprcscnce of all citizellS, the unanimity of 'asscmbled peoples,' to create a
situalioll of di~pen;ion. holding subjttts so rar Ip2.rt as to Ix- mcapable of reelmg
themscl-w:s togt"ther III the ~pace of the one and !MOle speech, one and the s:tOle
. L '
persUaslVC exclI.'lIIge.
The task ofrdating human suffering and human rights renullls incred-
ibly complex, even without the health warning against the 'suffering-
mongcrs,.8 'Left legalists' now tell us that unless the politics for human
rights remains vigilantly self-reflexive, 'a politics org:lIlizcd around pub-
licizing pain constitutes a further degradation of subaltern selves into a
species of subcivilized nonagcncy'.? We now stand encouraged to ask:
'What if the relief of suffering is not the sole basis of worthy political
work?,lo This "141a1 if question is, ofcourse, ofparamoum importance in
'challenging regimes ofdomination in which palpable suffering is largely
imperceptible', especially for those that 'actually enJOY hfe under capital-
ism'. tl Politics/or human rights In its overwhellningconcern with human
suffering needs to coequally engage with the states ofsuffering and to the
sources of pleasure and joy 111 !tfe, and theory, after globalization.
I hope that 'left legalism' does flOt, after all, consign tins work to a mere
exercise in suffering-ll1on~ring! I do identify SOnte: orders of activist
pleasures in thc making ofcontemporary human rights, whether through
the moods of human rights romanticism, and evangelism, or via what I
name as the carnivalistic production of human rights. Not altogether
inconsequential remains the prose of international human rights that
speaks not just ofthe ewr~ but also of lJ~ rnjoymtnr of human rights by
all human beings everywhe~. There is no doubt a certain amount of
biophilic (life giving or life sustaining) energy at work in the recent anti-
globalization protests and anti-war protests. Contemporary practices of
human rights activism celebrate the joys of the politics of desire and not
only through their capacity to inflict various types ofsuffering and torment
on the CEOs of global power. The pleasures of otetivist production of
human rights diplomacy elaborately, and variously, celebrate on behalfof
7Jacques Dtmcb (1976) 137.
8 W<:ndy Brown :md J:U1ct I blley (2O(2) 22.
9 Lauren Ikrbm (2002) 127.
10 Wendy Brown and Janet 1!alley (2002) 22.
11 Wendy Brown and Jaoct lIalley (2002) 22.

8. I
I
lCVlll Preface
communities of hurt and harm, the imposition oCpain and suffering for
the violators of hUlllan rightS, momentarily perfor:ning the regimes of
impunity that alherwise structur.llly surround them.
Yet, at the same 1110l11el1l human rights .activist praxiS also weaves many
a compromistic textual, and par;a-textUal. human rights designs that further
ullcOlSliy negotiateJustification for the construction ofthe monl hienrchy
of human pain and social 5ufTcnng enacted by the vcry languages of
'progressive realization' ofsocial,economic, and cultural human rights. So
do the voguish grammars ofglobal governance that increasingly organize
and sustain markets for human rights which, in turn, lead to the
commodification of human suffering.
The Pertinence of Lawyer's Law of Human Rights
Juridical histories, or the labours ofproduction ofthc IOlvyt,'s IllW ofhuman
rights, remain vital to all future scenarios for the promotion and protection
of human rights. Doctrinal work testifies variously to the powcr of the
judge and the jurist (.2.S also thejuridic.2.lly mediated forms ofsoci.2.1action
and movement) in the making ofthe manydiver~ worlds ofhuman fights.
It also provides some powerful discursive means of understandmg the
nature, number, and negotiations concerning the scope of human fights
in conflict. 12 !-Iowever, important though the role of the /olvytn' 1m" is,
juridification of human rights scarcely exhausts sources of meaning and
movement manifest in the politicsfor human rightS.1l
State-bashmg libidif/lll drivt (there is no other w.IIy to describe the pas-
sional politicsfor human riglus)}im,ulles thewherewithal ofcontemporary
human rights activist impulse and praxes. But it also animates a
programschrift ofState refoml. The complex narrative, in tum, generates
12 By ·nature'. [ mcan here, pnmarily, distinctions madc between ·cnforccable' and
not directly 1ustlCllblc· rights. By 'number', I re(er to Ihc dlstmctlon be"tw('(Cn ·cnu-
mCl"lltcd' and ·uncnumcl"lItcd· nghl'i. the Inter ofte"n anlcuiatcd by prxticcs of)lKhcul
xtivtsm. Uy ·I"nns·. I mdlQte" herc the scope of ngllts thus cnshrmed. gIVen that no
consrituuonal gtUDnttt of human ngllts may confcr ·absolute"' protection. The 'ne-
gotiauon' process Ii mdccd complex: It refers 10 at leasl three diStinct, though rebtcd.
aspens: (I) JudiCially upheld defimtlOllS of ground5 ofreSlnalon or regulauon of thc
scope of tights; (2) Icgl5buvely and exccuuV'Cly unmolested JudLcil,J 1I1tcrprecltlon of
thc meamng, contcnt, lind scope ofnghts: and (3) thc W<1YS III which the defined hearcf"lJi
ofhuman ngills chose or chose not to t'Xt'rclS(' thclr nghu-tilis. I" tum, prcsupposmg
that they haV'C the mfomlauoo eonccnung the nghu they haV'C and the capabllny to
deploy them 111 VlILnoUS xu of hvmg.
Il This 1$ fully "lamfest III the Dther ~rlf1tcd r('$pon§c by Ernst-Ulrich Pc1enmann
(2002) to !'tuhp Alston's cntlquc (2002) o( the (omlcr'. mSIstence on 'mtcgr:mng'
human nghu to lIlte"mauonal tradc law and global OrgalllUIIOIU (2002).
Preface XIX
the discourscconccming failed stlltcs. or (to invoke Gay.ltri Spivak's troubled
notion) 'failed decoloni:ution', the grist to the mill of the: new global
hegemonies that now enact, as yet Ullsanctioned by international law, 'pre-
emptive' armed intervention and a trigger-happy regill1echangc.141t seems,
at the end of the day, that the residuary legatees of human nghts futu~
are human rights and sO(ul policy experts rather than the dla~poflc ngbtl~
p=oples. The dominant epistemiccomrnumues foster VISions ofaprogrmillt!
stllle, which, when not an oxymoron, gnaws at the heart of human rights.
Human rights movements entail both the 'progressive' empowerment
and discmpowcrment of the 'state' and, thus, remain necessarily deeply
dilemmaric.
The Perils of Prediction
Social prediction concerning the future ofhuman rights remains a hopeless
affair ifall that we have at hand is the abundance ofa CIrcuit ofex-change
offairy tales and horror stories, whether concerning the exclusively Euro-
American origins of human rightS or the postcolOnial vicissitudes ofhu-
man rigllts attainment. More is needed to redress the foundational lack of
thc lustori<>gr:lphy, and an adeqtl.2.te social theory, ofhurnan rights.
Further. we all know how some langu~s Wither and die and how new
languages take their place. The languages of 'honour' died With the birth
ofthe industrial civilization. The lanb'uab't!s ofliberal redistributive justice
have died many a death, particularly slllce the Gre:n October Revolution.
So ha!> perished, at the altar of Social Darwinism, many a language of
'progress'. The question then arises whether hurn.:l.11 rightS languages
will also wither aw.llyand what may take their place. Far from being unreal,
the question is already heavily posed to us by the movement of global
capitalism and technoscienrific modes ofproduction. The future ofhuman
rights talks remains haunted by an inadequate understandLllgofthe various
fateful impacts of meg;l-science and hi-tech that now constitutes the
materiality or the productive forces of contemporary globahz:ltion (the
new forces of production symbolized by digitalizations, biotechnologies,
and the emerging nanotechnology) and the attendant fonns of human
rightlessness. These redefine the bearers of'human' riglllS, or reconstitute.
yet all over again, the 'human'. IS
"EV('n to the poi11l nf ~t anolher nllyhem on the peoples of I bl!! III the very
yen of the eelebr.mon of the blCC:flIenary of Its mdependence! See. for a poigJIant
Ilarn.uvc, Peter I bllW<1rd (200-4).
"~-
, '10; asymmetncal lIlte"rmtlonal Nofth-50uth drvide m thc mode of human
nghl'i Jcnm.1edgc production furthcr aggrav.ues the SItWUOIl ~n when furnishing a
SUffiClCnt watr.lnt for roncem WIth the (uture of humall nghts.

9. xx Prr:f:lcc
Iluman rights languages. and dialcctS, whether in the genre ofla~~ges
for political organizations or sodal prOtest a~d movement, rel~1a1ll mfi-
nitely various as wetl as precariOUS. Some relauv~ly old hum:m ,
"ghts now
stand threatened with extinction, as anyone sttll worktng with human
rights of labour wdl knows. New human rig,hts language,s stand b!rthcd
in caesarian oper.nions that 'deliver' hum:Ul nghts ofspeCific constItuen-
cies (such as human rights ofwomcn, children, indigenous peoples. and
cultural 'minorities'), not to mention the profusion of thl:' 'sustainable
development' and human capabilities/flourishing talk. Some new l~n­
guages ofhuman rightS such as those thOit now flourish with ~n ontologlC~1
robustness of the maxim Women's Rights are Human Rights' remain
overcome with the problematic discursivity of 'gender mainstreaming'.
Some others (such as the human rights of 'despised sexualities', or of the
indigenous peoples, or people with disability) face unce.r~in flln.lre~ on ~he
variously framed and reconstructed axes ofthe 'recogllltlonlredlstnblltion
dilemma'. No 'real' hUlllan rights languages have yet fully emerb't:d for the
stateless peoples and peoples now caught in the vicious webs of the war
oJterrorand the war0" terror." It is uncle;tr how human rights move~ents
as soci;tl movements, whether 'old' or 'new', may arrest the denll~ of
human rights lan!.'1.lages.
Too Sool1, Too Late
Any endeavour at forecasting the future ofhuman rights osc~lIates o~ the
'too soon, tOO late' axis. On the olle hand, contemporary lIlternatlonal
human rights norms and standards constitute. in the eye of human h.istory,
a very rt(trlt moral h'lmnn itllltrliiotl btcau~ these present, at best, the Sites of
heavily conflicted state and social movement consensus and, therefore,
simply may not bear the weight of interlocution in terms of tile future.
16 It docs not matter much, fot the prnc:nt purposes, whether and how wt' nuy
here constrUCt SO~ importlnt distinctions bctwttn the: bnguagt'S and dulcet!> of
human nghu. I remam aware lhat the languago= of analYSIS of'human nghu markets'
I ofTer (in Chapter 7) cuneI Ihe pou:nllal of ahenating my fnends IT! human nghu
movemenu (ofwhich I conswer myselfan IIUlgmflGl.Ilt but ~lIll an Imegral pan). Theil
sense of 'hurt' may be somewhat redccmed, I hope, when they receIve, With some
warmth, my reflectiom nn the: paradigm shift from univel'Sll human rlghu to trade:-
related. nurkc:t-friendly hUl1lln nghlS (Chapters 8 and 9) and the C1111que of ~e:
emergence: of 'modem' hum:,ul rights pandlgnl (Chapter 2). The uncvcn rc«puOrt
that ' thus anllClp.lle SUStainS my belle:f that ~ (thOS(' of us who struggle for the
xhicvcmcm of hunun ngiltS and the amehonoon of human sufTcrmg Iwr ,rrd _,
on, as It were, ASAP basiS) need to be ref10avc about our own practKn fuluomng
the tasks of struggk and solxbnty.
-
AU there is to human rights theory and practice, some may say. IS Its
hiIforilal prtStnt. On the other hand, it may be said that the fmure is already
happening now In an era ofextraordmary global tr.lIlsfomuuon, which has
already devoured many a powerful vision and I.nguage of altematlvc
human futures, and fully confiscated the sight and sound ofailenullives to
global capitalism. The acceleration of historic time and space thus render
obsolete the fighting faiths ofthe yesteryears. On this regtster. the question
collcerning the future ofhuman rights stands alrc;tdy unhlsloncally posed,
because it is a moral langua~ (like those of 'social Justice'. 'equity', and
'redistribution') that is simply wwustd. It fails. outside ofa few contexts
(notably, ofregime-inspired or supported torture and terror), to resonate
with the globalizing middle classes around the world. Any work-like me
present one---on this SOrt ofview may then, at best, only address pas/filiI/res,
that is, the narratives ofthe unrealized, and even unattainable, potentially
of the languages of human rights.
The 'too soo,,' or 'too taft' stances raise further anxieties concerning the
future of human rights. The 'tOO soon' stance simply interrogates the
worth of any future of human rights talk. What matters, in this genre, is
the affinnation of the here·and-IlOW struggles. Futures ulk, on this reg-
ister, already marglllalius the histonc potential of current strUCtures of
hum.n rights engagement, in the main addressing the tasks ofcontinuing
norm-creatiOIl and implementation as an ~pect of human rlgllts respon-
sibIlities of the state Structures and conduct. On tillS Vlew, the tasks of
human rights consist in making the state ethical, governance JU
St, and
power accountable; these wk.~ will, and even ought to, continue to define,
and consume, the agendum of human rights. Any historically premature
COllcem with alternative futures ofhuman rights renl.1.ins then liable to the
indictlncnt of being a tragic moral mistake.
The 'too late' stance, in contrast, insists that the 'human rights' patty
is already Olltr and the sooner we get rid of the human nghts hangoVl:r
the better it will be for human futures. State structures COlIn, thus. only
deliVl:r the rhetoric hut not the reality (materiality) of satisfYing basic
human (material and non·material) needs. The world·hlstoric 'abell.l-
tions' of'wdfarism', and 'socialism' being said to be 'safely' ~r, the state
must reincarnate itselfas the night watchman (incidentally, I do not quite
know how to feminize this expression!) Increasingly, also, contemporary
economic globalization fosters the production ofbclicfthat the satisfaction
of human basic needs is best ;ichieved through aggressive protection of
the nghts of the multmational corporations and the policies of intcma.
tlonal financial institutions, regardless of the negative fallouts on the
human rights ofthe actually existing human beings. especially the world's

10. lOcii Preface
impovc:rished. From thiS viewpoint, morallangwgcs. especially those of
human rights, Ixcome counter-productive when they oppose: visions of
new 'progress' hcnldcd by technoscience powcr fonnations.
Forms of resist2l1ex to this kind of 'too late' stlnce invites (in the
Niettsch~11 ~nsc) the 'pessimism of the strong', a dctcnnination to live
within contradictions while somehowcombolting the devaluation ofvalues.
The difference between the two positions or responses is critical. In much
that gets said io this work, I takr seriously this form ofpessimism that still
imaginatively elevates the courage to resist the savagt' power of contem-
porary economic globalization.
The Problematic of Fiduciary/Suffering Thought
This dauntingly complex task further raises the intractable issues concern-
ing agmry (wllO raises these questions) and method (how these are posed).
The issue of agtlu:y is, indeed, crucial, entailing at least two related, but
distinct. questions: W1w Spt'tllt! tllfOlIgh lIS u4,m wt' speak aboul IWlllan rights.'
A"d 0" whose «half",ay u't spt'tlk?
Inescapably; those: who venture to raise questions concerning the fumTe
of human rights must confront their own historic subject-po~itions, and
be reOexive concerning the human rights choices they make. No matter
how Ouid and contingent these subject-positions. theories about human
rights do not quite maIUg'C to make audible that 'small voice of history'.
conveying 'the undertones of harassment and pain'l7 endured by the
rightless peoples somehow as their politically ordaincdfoll!. HQWS()C"VCr
problematic the category ofthe subaltml may be, or be made to appear by
postmodernistic analysis, stories emplotting the future of human rights
remain sensible for the violated only when human rights discourses convey
a smst: of Sl!fferillg. I endeavour, in this work. to articulate a distinctive
subaltern pcrspcctivt: on human rights futures.
But human righrs discourse gets even more complex with the question:
whose violation and suffering we highlight, and whose: we Wlore, in this
endless discursivity on human rightS? Since human, and human rights,
violation is egregious, t"Vt'1l lhe struggle to articulate the 'small voice of
history' of those: who suifcr-oftC'n beyond hope-putting hum:1.I1 rights
to work. entails the enactment of (what Vcena Das terms as) the 'moral
hierarchyofhuman suffering'. This work, alleast partiy, add~sscs the ways
in which the grammar and idiom ofcontemporary human rights languages
entaIl the 'sublimation' of human suffering.
17 RanaJit Guha (1996) I ~t 1~12.
-
Preface xXIIi
Of course, much depends on how the narrative voice is appropriated
to marshal the power to mact viSions of human futures. The powt:r It
marshals ~ollles a mat~rialfom' II,al matts tilt allfitipatttifowm. However,
both the tnumphal eras ofthe bourgeois human rights formations and of
the revolutionary socialism of Marxian imagination marshalled tillS nar.
ratlve hegemony for ~marbbly sustlined practices of the politics of
cruelty. The formcr enforced imagined futures on the rest of the world
(with itS noti~ns ~f the colle~ve human right of the sUpfflor raus to
subjugate the "iftnor ~nt:J), ~hlle the ~a.tter legitimized many agJllog. Al-
ternate ways of the 11.'1II1II!!t/lIOtl of tradition (as in the case of some states
da!ming .Iegitimacy frDIn .'~liticOlI' Islam, Juw.ism, Christiaillty, or Hin_
dUlsm~, like both the~ VISIOns, also, on available evidence, augment the
potential for the practices of the politics of fierce cruelty.18
What makes contemporary human rights movements pncwus is the fact
t~at they contest all ble.k and terrifying sway of these narrative hcgcmo-
Illes. TI
.ley deny. all .{osmo/ogiral, as well as ~rmlrial, juslifllaliol1! for the
lmpoSItlO~l of1I11Jt1stJ~ed human suffering. And they insist on a dialogical
construction o~ suffenn~ that may be considered 1ust'. In this, they also
contest. the:: nOtlO~' of politics asJa~; that is, the power oftheJt"w becoming
thedntlllyofnulhoTls ofhuman beings. Even this enterpnse, in turn. needs
to negotiate and legitimize the shiftillg '{'t"t SOmMat imvmjbk boundaries
between 'IIU6Sary' and 'SUrplllS' human suffering.
. The.power that tht:y thus contest is 'political' power, the power of
IdeolDglcaJ and TC'p~ive apparatuses of the state and of kindred globOlI
knowled~govemance fonll:uions. lncreasingly, however, digitaliz:l.tion
and blotedm~Jogies mark the emergence of l«hllOscil!nlifk formations of
power ~hat thnvc.on appropriation oflanguagcs and logiCS ofhuman rightS
for ca~ltal-mtcnslvc.oorpoT2tc-owned production ofscientific knowledge.
All thiSthen res~lrs III the emergence of(what I describe here as) [he Iradt:_
~ttd, marlut:frirndly human righrs paradigm, subverting the paradigm of
Ufllvcrsal human righrs ofall human beings. The subvt:rsion is profound.
allover again the notion ofbeing IIImum stands pcridated. The hllmall no~
stands represented, in an era ofdigital capitllism, as a cyborgsituued withm
networks ofinfomlation, whollycapable ofcorporate ownership whether
lit terms of electronic or genetic databases. The various huma,; genome
proJects, and the contemporaryj ustifications ofemergent technologies of
1- It d
mo oes l10t '11:;111er 100 ,",uh from the standpoint of rhe vlobrcd. whether cnor_
hUl::r~nl~leUOI1 ofhum:;l" suffenng as well as the dem:;ll ofrhe nght 10 be and 10 rem:;llll
or as beton, :;I11d COlltlllUes 10 beJU5uficd. III coslllo!ogieal or secul.u dlscurslvl'"
eourse the" f -r
/lnpos ' arr.mV(' str"lIItejpe5 0 rCS1~tance drfTtr matet1:;1lly WIth caeh roman of
lUon of sufTcnng and human 'Iiobtion_

11. XXIV Preface
human cloning as redemptive of human suffering, present a remarkable.
if not the ultimal( challenge to half a ccmury's attainment of an Ai,,'t= of
Human Rights.
TechnoscicllCc, as codification of new material practices of power. af-
fects the very II11.gin:ltlon ofhum:m rights pnxis, not the least beGlUSC the
bearer of human rights st:l.I1ds feast either as a cyborg or as an informa-
tional genetic storehouse. It is also:ll global social fact dut fonns ofhUlnan
rights c"tique stands necessarily simated within technolog;es that they
protest. Old notions ofwhat it means to be, and remain, 'human' have been
steadily, bUt spectacularly, rendered obsolete by tcchnoscic:nce. The notioll
ofhurn...n rights. still sensible: in relation to state violation, now becomes
inchoate with regimes of te<:hnosdentific power that sustain the New
World Order, Inc., or the diOllectic of 'arms' and 'c;&.!ih'.19 The task now is
not merely to Imdmumd these developments but to /raus/oml these in
directions more compOltible with competing notions of human rights
futures.
The book in your hands I'llises marc questions than its answers. Even
the questions it poses may further be refined in activist theory.20 You h:we
the choice to gIVe the kiss ofdeath to this speculative enterprise that I here
name as the future of human rights. Ifso inclined, may I at least remind
you of Rou~au who described rightless human beings as those 'whose
first gifts are fetters' and whose 'first trC2tment' is 'torture', yct whose
' ... "",jet alo"~ is/rrt ...'. Should we then, with Rousseau, ask the qucstion:
Why should they not I'llis<: it In compi2illt OInd, ifl may add, itISUmYtjon~1
How 'free' may this voice be? Do the languages ofcOlltempol'llry human
rights constitute what Lac2n, momentously, 2nd in 2 different context,
rwned as 'impTlsoncd me2mng5', from which 2fter 211 the human suffering
of the rightlcss peoples m2y still seek a righteous dcliver.mce?22
University of Warwick
November 2005
Upendra Baxi
1'1 Ikrrida (1976) 237.
Xl Some rl....lewen o(the til'lll edition, who somehow sul! believe Ihllt hutl~n rights
bngua~5 eon~l1tute the Iltmute panacea for ~f2te1i ofmlcal evil, have 1I11scomtrued
tius SCSlllre ofhurIIllny. 1beheve thiS llaITlltive mk well worth thc COM o( unch:tfltlblc
undcrstlndln~.
21 1 dCrl~ Ihl5 rcfcrclKc to Elflik from Dcmda (1976) 168.
22 AJ quoled by Malcolm Bowie (1991) 60.
-
APEC
ASEAN
CE
CEDAW
lMF
MAl
NAFTA
NGO
NGI
Nllru
OECD
TANS
TRIPS
UDHR
UNDP
UNICEF
WHO
wro
Abbreviations
Asi2 Pacific Economic Cooper.ttion
Associ2tion of Somh East Asi2n Nations
Christian Era
Convention on Elimination of Discrimin2tion
against Women
International Monetary Fund
Multil2teral Agreement on Investment
North American Free Trade: Org2ll1zation
Non-goveTllmcnul Organizauon
Non-~rnmentallndlviduals
N2tion2i Hum2n Rights Institutions
Orgamzation for Economic Coopel'lltlon 2nd
Development
Transnational Advocacy Networks
Trade-~l2ted Intdlectu21 Property RightS
Universal Declaration of Human Rights
United N2tions Development Prognmme
United Nations Childrens' Fund
World Health OrgaJ1lzation
World Trade Organization

12. •
1
An Age of Human Rights?
1. Towards 3; 'Common Language of Humanity?'
M ueh oCthe twenticth.century.of the Chnstlan Era (CE), ~pecially
its latter half, standsJustly haIled as the Age ofHuman Rights. No
preceding CCIllUry in humanl
history witnessed such a profusion of
human rights enunciations on a global scale. Never before have the lan-
guages ofhuman rights sought to supplant all other ethical 1anguages. No
previous century has witnessed the proliferation of endless normativity
ofhuman rights standards as acore aspect oCthe politicsoJimergowmmemal
dairt. Never before has this been a discourse so varied and diverse.:! The
then Secretary General of the United Nations was, perhaps, right to
observe (in his inaugural remarks at the 1993 Vienna Conference on
Human Rights) that hum:m rights constitute a 'common language of
humanity',3 Indeed, in some w.ays, human rights sociolect emerges, in this
era of the end of ideology, as the only um~rsal Ideology In the making.
enabling both the legitimation of power and the praxn of emancipatory
politics,"
I I use the term 'hulTllln' ~ an act of rommun)Q.UQn;a1 counesy, Human stmds
rTUt"Ud by the presence ofmm. and perxm by a '5OU', My preferred non-seXist version
is, theucfore. ;a comblTunon of the firsl letters of both WVfds: 'huper', I await the thy
when the word 'huper' will ucplac:e the word 'human',
2 Such 001 il becomes neces»ry to regularly pubhsh llnd upcb!!:, through the
unique discursive insrrumentlliity of the Ulliled Nations system. m ever-eXJU.ndmg
volume'! III fine: print, the: v;ari01.IS texu of human Tights mSlrume:nlS. Sec:. Umted
Nations (1997).
3 BoUtT05 BoutT05 Ghal! (1993).
4 For the: notion of ideology as a '<:1 of bngulIgcs c:lulXlemed by rd1c:xiv'ty-or
as 'sociolc:ct'-sec:, Alvin Gouldlle:r (1976); J8. Thompson (1984). A more recent
vamllt oftlus is the: use ofthe: phrase 'dlalecu ofhuman nghts': see Muy Anll Glendon
(1991). Sec lIlso Upcndra 8:u[I (1997). Sec, for a fuller ~rsion, http://u'l4'W.pdlrrt.otg.
lind DaVId Jacobson (1996). The stlte:, he tlghlly streuc., 5tl1rKh commuted less by
sovereign agency lind more by 'a larger mtemaUOlU1 lind eon)tituuonlll order Wsed
on human nghu'. Human nghu ptovtde a 'vehK"le: and objcc:t Oflhls revolUtion'.

13. 2 The Future of Iluman Rights
Whether or not a world bursting forth with IHnnan rights norms and
standards is a better world than one bereft ofhuman rights languages still
remains an open question.To be sure,a world rife with human rights curies
the greater potelltial ofnaming human violation which decent and reason-
able peoples ought not to tolerate or permit. Nor is there much.do~bt that
state, govcnunenul, and political choice and conduct do r~malll liable to
human rights indictment. Peoples' movements everywhere IIlterrogate me
practices of the politics of cruelty. That, to my mind, ~s an i~lestimable
pok'llial of human rights languages, unavailable to preVIous history.
That being fully said, we ought to note that not all fonns of human
violation stand addressed by the languages of human rights. Nor do all
violated people have equal access to the languages ofhuman rights; having
access to a growingly common human rights language is not the sal~le t~ing
as marshalling the sure power to name and redress human VIolation.
Impunity for human- and human rights-violation cocxi~ts with h ~llnan
rights implemenutlon and enforcement. Fu~hcr, centllnes~ld galllS of
human rights struggles (such as the human fights of the working classes)
stand erased by a single strokr of the glo~lizing legislative pen. I go no
further III illustrating the britueness, the fungibility, ofhurnan rights norms
and sundards. Human rights languages forever promise more than they
deliver in real hfe terms to the 'wretched of the earth'.
Any consideration of the future of human rights engages necessar.i1y
with the cxtf20rdinanlycomplexconstimtive notion ofpotentiality. or WlUI
'the problem of ute OQstence and autonomy ofpotenciaIity'.s In a '>Cose.
as Manm Heideggcr says: 'Higher than actuality stands poSJibility' and we
'C'1Il understand this phenomenology only by seizing upon it as a possi-
bility,.6 In mis sense, the future ofhuman rights may.well lie ~ot in meir
creation (the actualides of their making and unmaking-thelf firs~ c~e­
ation) but in their potemiality to 'decreate'/he many act~lI~ eXlsnng
worlds of human rights (the second creation). The actuallyextstlng world
of human rights has little or no space, for example, for the sutcless, the
refugtt, the massively impoverished human beings, the.indigcnou~ ~ples
of the world, and peoples livmg wim disabilities. It IS the po5slblhty of
decreating thiS world in the process of rccreatmg new worlds for.h~man
rights that gives human rights languab"l's 'the matter, the potentiality of
thought,.11 This potentiality, in the short run, merely pursues a kmd ofReal
5 GIOf§'O Agamben (1998) 44.
• Maron He~r (1962) 63.
7 I hen Invoke !lOme notions from G IMgw Agamben (2000) 270.
• Ibid. (2OOOb) 34.
An Age. of Human Rights? 3
Utopia that seeks the 'bettering of the bad'; in the long run, potentiality
Olav well unfold In cherished images ofa juSt and hunune futun" for all
human beings (as well as other $Cullem belllgs).
~ may well say of human rights (languages and materialities) what
Ag:unbcn (a!> far as Olle can grasp his variegated texts) says of potelluahty
in general: human rights also mark a possibility ofa revolutionary began-
nlng 'from which there springs not a new chronology but a 'alteration of
tune (a cairology)' with me 'wcightiest consequences', 'Immune to appro-
priation into the reflux of fCStOration'.9
O n this register, State sovereignty
may no longer articulate itself wholly outside the zones of human rights
to the point ofrestoration of legitimacy thatjustifies coloilial enslavemellt
ofpeoples, apartheid state formations, practices ofgenocidal politics, or the
reproduction ofrape culrurcs as so many modes of'legitimate' governance.
But ulis immunity from 'appropriation into the rcfluxof~toration', while
providing the foundation for contemporary grammarofhuman righ ts, still
leaves open the twO realms of possibility/potentiahty that Agamben sug-
gests via the distinction between polmtia attjllfJ and polmtia passiva.IO As
Agambcn provocatively reminds us, if potentiality precipitates somc
moments transition to actuality, it also betokens 'th~ pofnltiality"0'/0'.1 t Th~
polnlliality flol lo fulsomely characterizes me contemporary world ofhuman
rights enunciations. The practices ofHolocaustian politics ofcruelty con-
tinue to outweigh high-minded declarations 0 11 human rights; and state
systems continue to innovate forever their 'inability to function without
being tr:msformed into a lethal machine'. 12 Thepol~"'iality'10110 continually
informs the making of human rights since the Umversal Declaration of
Human Rights (UDIIR).
This poteuljality "01 10 haunts evcn the millennial dream of 'turning
swords into plougllshares'. But its narratives also extraordinarily demystify
the extraordinary histories of the centuries-long politicl terrorism in-
volved in the coloniza;tion of me non-European peoples. Politics oforga-
nized IIltolerance, genocide, and ethnic cleansing stand universalized in
the killing fields of postcolonial and post-socialist experience. The early,
middle, and late phases of the Cold War13 orchestrate pf(xhgaous human
,Ihld (2OOOb) at lOS.
10 Ibid. (1987).
"Ihld. (1989) 48 (emphasiSadded): (1998).
12 Ibid. (1998) 175_
Iln. ,
n=n()(h utton of eold war' IScruc:ul to any understandmg orhow the 11Itergov-
emll1tnul polma o r dCSII' PUrllues Its own dlstUleuve ltinenncs. Avalbblc htenturc
mdlOotCS at least five periods: 19045-7 (the period duncten~ed by the Yalta Confel'nce
~nd bcgm1l1l1g5 of nuclear anlls nee as well as of policlcs or oollummellt); 1950-68

14. 4 The Future of J lum:1II1 Rights
sufferlng'• as well as the exponential growth ofhuman rights enunci.uions.
In addition. the 'post-Cold War' pnctlces of 'ethnic wars',1S and now the
so-alled pre-empuvc: disarmament wars ominously birthed through the
Second GulfWar and the 'waf on terror' also, at one :md the S21mc time,
mark ways of reproduction of human rights as well as of imposition of
human nglltlessness. manifest through new orders of imposition of
social and human suffenng. In this context, understanding human rights
remains a complex and COntl7ldlctOry cxcrci~ in the unravelling of their
futures; in a sense, potentialities always mark the triumph of hope over
experience even when the Iangtl2gt's, logics. and par:aJogics ofhuman rights
also stand marshalled to :mthorize practices of mass cruelty on a global
sale, whether in bourgeois, socialist, 'post-Cold War' (post-liberal) and
postmodem forms.
Even so, human rights languages, howsoever effNc, remain perhaps 1111
I/WI U't' IIIlVl.' to interrogate the: barbarism of power. The: endowment of
human rights ctnerges not so much as aiming 'to redeem what vns' but
rather as speaking to a high purpose ;'0 SDvr whal was "ot,.'6 Pm wholly
another vny, usb of recreating and decreating human right!. remain
inseparable from those of rethinking 'radical evil'.17
II. The Open and Diverse Fumres
The critical relation between actuality and possibility thus remains central
to any preoccupation with thejill/Itt' ojhllman riglus. This funtre IS, as all
(Ihe en of correlon): 1968--80 (dm-me); 19H0--8 (~ncwcd urns nee), 1985-8 (the
pmod of Sohcbnty and Glasnost). This penodiution does nOl directly address Ihe
vanellcs ofhum~n- ~nd human nghts-violatlOns that ,he Cold War unle:lshed.liow·
ever. h15lOt1~n5 of hunun rtghlS, fonunaldy, have at-hand cbulnses of the Inlema-
1I0nai Hisrory proJCC1 oflhe W<lodrow WilMln Cenlrc, the: Open Sociel)' Arr;:hlVt'S al
Ihe Cemral EuropeJn Umversll)', and the Harvard Ptojea on Cold War SlUdles. I refer
III thIS work 10 a number of srudl~ of Ihe Cold War barbarism and genocKbI poIllKS
of IhlS era.
14 J.s. l1.unllllel (1997) provides the rnO$! ~)'Stenuric cxploralion of·governlll<:nt by
de~th' and dtmocidt. See also, R. Moovcdev (1972. 1977); Clive Polltmg (19911), Ene
IlobslxlwlII (1995);Jollathan Glover (2001); Ikechl MghroJI (2003): Samantha Power
(2002).
15 See, for an 1I118111ful ~n~IYSI$ of elhllic wars surrounding the former Soviet
Union, M. Kaunov (1995). The corpus of DOIuld IT
OrOWlI}; (19!I5, 20(1) n:lIlllns a
$:tfe Killde w grasp the forllls ofpohUCIUIIOIi ofethnlcll)'. See also. Amy ChUl (2003).
1i5" I here. VUI lhe luh(lted phrase. reiQClte Agambcn'l nOllon of a New MeSSiah.
arUIIIS OUI of hiS reJdms of MelVille's Stri_ &ut/my.
t7 See Ml.m Pu Lara (200 I).
•
An Af,e of Iluman Rights? 5
funlres are, open and diverse. However, not every hUlTlan 'achlcvement'
endures in timt' and space. Some become relics of a bygone ol1le---of
nHerest only to connoisseurs of human dIVersity. Some others fumi..h
residues, out ofwhich are f;;ashloned the future practices ofrem~l1t1on of
the past. or the politics of IIlvenuon ofnosulgla. Stili some others live on
as cult practices of a precocious minonty in a vastly transfomled world.
In the ryes ofthe future, th;;at which we now name as 'IHlInan rights', may
well live on in the 'rulllS of memory'.
The notion that 'human rights' may have such radICally contingent
futures may seem outrageous to many of us deeply committed to the
.alleviation of human miscry .and social suffering. Some of us who have
devoted our whole lives to the struggle for Implemenution of 'human
rights· may regard such an enquiry as morally offensive to the collective
histories ofembodied and lived hurts. But precisely for th.al very reason
it remains crucial for us to recall that 'contemporary' human rights theory
and practice (as I name it) i.. a very recent human invcntion, perhaps safely
dated as an archive ofem.ancipatory secular human praxis only a little over
half a century old. At the end of the Second Christl.an Millcnnium, the
remindcr of the contingency of humall right!. achievement is, I believe,
perhaps a richer resource for their futures than the fond illusion th,u
'human nghts' arc here to sUy, well-nigh irreversible. Saymg this does not
ellui! succumblllg to any 'future hype' concenung the 'cnd of human
nghts'; rather, it reminds us that the 'fulUre' of human rights sunds
lIupenlied by a whole voariety of developments III theory and practice.
These, III the mam, IIlvite anemion to the:
• ~afogitJ ojhllmQII righu, 'modem', and 'contemporary', their logics
ofexclusion and inclusion. and the construction ofid~ .about 'human';
• ReQlitj~ of overproduction of human ngllts nonns and sundards
creating governance as well as resist.ance overload that complicates
emergences of human rights futures:
• Ckvt-Iopmt'tll of posnnodemlst suspicion of the power to tell large
global Stories ('rileu-narratives') that convert human rights I:mgllages into
texts or tricks of governance or domination;
• E."U'I;gt'tlU of the politics of difference and identity, exposing both
ell1.anclpative .and repressive potential;
.• Rl.'SlIifa(ilt~ ofargument!. from ethical and cultural relativism interro-
gating the politics of universahty of human rights, in ways that make
POSSIble, in 'good' conscience. toleration of vast strctches of human and
SOcial suffering;
• COfll"trlion of human rights movements into hUIll.a1l rights markets;

15. 6 The Funlrc of Iluman Rights
• Tro/l.ifomullion ofthe paradigm ofthe Universal Declaration ofHlIInan
Rights into a trade-related, market-friendly paradigm of human rights
ushered III by 'globalization', ideologies of 'economic rationalism'. 'good
governance'. and 'structural adJustment'.
In addressing these taSks, I take it as axiomatic that the historic mission
of 'contemporary' human nghts is to give voice to hunun suffering, to
make it visible, and to ameliorate it. However, the articulation ofthe voices
ofsuffering always enuils acts ofrepresentation. The notion ofvoice, when
captUred by agencies of domilunt discourse,18 supplants the 'small vOIce
of history', conveying the urgency of everyday 'harassment and pain' in
lived subaltern experience.19 However, mtrt acts of state and social policy
often begin to administer silence to the voices of suffering. One way to
name the various struggles for human rights is to say that these represent
contestation over the power to ,umlt' tht lIOiu. Human rights discourse then
raises the problematic ofrtprestllfclIiotl ofhuman suffering, both as provid-
ingjustification ofpolitics of governance and of people's resistance that I
name 111 this work. severally, through the distinction between forms of
politics of. and pollticsJor, human rights.
The notion that human rights reghnes may, or ought to. contribute to
the 'pursuit ofilappiness' remains the privilege ofa minuscule ofhumanity.
For the hundreds ofmillions ofthe 'wretched ofthe earth'. human rights
enunciations matter, if at all. as and when they provide. even if conlln-
~Iltly. shields against torture and tyranny, deprivation and destitution.
pauperization and powerlessness, desexualization and degradation. De-
spite some astonishing hunun rights praxes, the delivery ofhuman rights
to the masses ofimpoverished peoples happens in homeopathic n"asures.
It is a notable. feature of this therapy that it reproduces the symptoms as
a way of advancing its 'cure'! From this perspective. the time of human
rights, far from being 'instant' time, remains always a 'glacial' time.
20
Ilowcver, not all voices of suffering necessarily speak to the world of
global human rights. They speak to us often in languages ofinjustice that
may not be expressed and measured merely in tenllS ofhuman rightlessness.
The languages of human rights become inchoate when confronted, for
eXllmplc, by the demands for global reparative justice directed to redress
18 What I have 11 rl1lud hen: is nOl me glohaJ 'voIce' Indu51ry eplwnmed by dte
'iJk.lrld Ibnk's ~i(t'J of'~ f-JOf' on lIS "',lcOOlle. Sec the c~usuc comment 011 Ihis by
Thomas W. l'oggc (20(H) 17. NolC 204.
1~ RanaJ" Guha (996) 10-12.
10 In tenns of the dlstlllcuon n:ccntly offered by Bo~vcnrul"'ll de Soll~ SantoS.
(1995.2001).
•
An ~ of Iluman Rights? 7
harm and hurt arising from past, centennial, and even Inul"~en I
. rth r r u-... tennla.
pracnces 0 t: po .tics 0 Cnlelty, such as chattel sla~ry, cololllunon, the
Cold ~r. and some recent post-conflict dcvasution sitWotions unleashed
by the multiple wars r(and wars OIl 'terror',21 Languages ofJusuce articulate
the imper.ltlvcS ofresponsibility for human and hun'.n ngh" I
, "", VlO 4Itlon
In the world of comcmpor.t.ry human riglns, however: no. ev h
violation. is necessari~ya '''",~n rights violation, given the'ow:rall ~~rn:,:v:
lmpovcnshmem of IIltcmationaJ and constitution.1 hum "gh
12 ' .m n ts sun-
dards. Throughout UlIS work, I accordingly d,ploy Holled-
'h d I . lip expres-
sion- urman,:m lUlIlau nghts. violation',
I.do nO[ pursue t,he task of actw.lly bringing voices ofsuffering to the
reahty of human ngilts. That is a subject for another kind of work.
How~ver, I try to do. the next best. I endeavour to relate the theory and
pracuce of human nghts to the endless variety or bl I
a ' 23 preventa e luman
suuenng. Recovery of the sense and e><pC,;,nce rh " I
-d tl 0 uman angllls 1 pro-
VI es Ie best hope ~here is for the future of human rights. This is a
complex. and contradl~tory proc.e~s, if only because the official prose of
hll~lal1 nghts neces.sanly normatlvlzes suffering. Iluman rights languages,
logiCS, and.paralogt~ accomplish the nanling of forms of u/lLonsliotlabl~
human/~al su~enng but only by work-a-day descriptions Ihat transform
the U"lO'/S(IOIUlbf~ 11110 ""/aI/ji,/ imnn.:iuon ofsuffen"g TI", "
. bl I ' f'"~- • se Olten remam
uhnconsclona y ong III ~oming. as those who work for the affirmation of
t e nghts of peoples WHh disabililies or of the indigenous population
among oiliers, know nther well. '
And even that transfonnation remains open to the """""ries of ·sod·
inrerpreution(vU d' . II _.~ epl IC
nfi ,para Igmanca y, the episodiCJudlcul IIlterpretation and
~ orceme~t and General Comments ofthe Umted Nations human rights
h~
e~ty ~Ies). The distinction between imposition of unconscionable
'0' an Via atlon and unlawful human rights violation nutters a O1'eat deal
H eXdmple even' h .gt" 0 " '
, III a uman n lts arena like the prevention oftorture.204
"
u ....-_
!fuB11y ~ttend IQ thIS dlstmction, and It'l m,lny ..........Iootin In my ""-, "
r-zitUr.t ;lX] (2005;a). ..-. f'" • ~•• ng In
ror oc;ll11ple it look n fh
to UIUlll~tclyensh;lIle' lany 1f~er.tnons 0 Ulilan ngllls and femullst thcoryeffon
any Other form npe. seXIU s, ~...cry. enforced prosucuuon, forced pn:gnanC)( ..and
.....ucrulles S of;:xu:1Violence In the definitions of crime ag;unst humanity and
Cn~IIla.1 CoU;;'sU~II~.es 7 (paragraph (2)(i) and Arude H(e) (vi), Imernalional
24 Adl Ophir (1990) 94-121.
the ~~O!~n?;;~ns a~ Cbuchne Haenm-Dale (2004) offer avaluable ~n~lysis of
Torture. t e Optlonal Protocol to Ihe Unlled Nations Convelltlon Against

16. 8 The Future of Iluman Rights
Further, as every studentofthe oudawry ofgenocide knows, the normative
categories constitute a part of the problem for consider.able stretches of
human suffering before these tend to become a part of the sohni~n.2S In
this ~ge remain ceded vast territories ofthe future of human fights to
<by-to-day politics. . .
The violated peoples know, in their lived and emboched experience, the
ways in which the reality oftheir suffering remains umwmttlblt. The limits
ofhuman rights languages (to adapt an observation ofLudwigWiugenstem)
also constitute the li1l1i~ of their world. They also know that even the
improbable feat oftranslating all humtln violations into hurtultl riglllS viola-
tions will not transport the uwltlmt'tlbk into the sphere of dIe Iltlmtd. The
extremely impoverished peoples of the world kno~ that dl~ many ways
in which the concreteness of their everyday suffering remains unrelated
to human rights textS. The best that human rights normativity can do is
to invent serial human rights fonnulations that somehow match each
human violation caused by impoverishment, disenfranchisement, and
unalloyed ·terror'. But this itself, this distance, even chasm, constitutes the
very grnmmar of the languages of human rights.
Further, in their ineffable failure to effectively enable :
lIIld empower
redress. human rights violations attain the SUtuS of institutionally Wllltri -
fUlblr factS. Indeed, all too often. the violated, or their next of lan, have no
human rights meanslOsuccessfully run the obstacle: r.ace~legantly ~al1led
as 'access to JUStlce:'. The organidexperi("ntial knowledge of pam and
suffe:ringofthe violated dlXs not always find articulation I~l erudue lalowl-
edge formauons concerning human rights law and Junsprudence. The
meta-languages of human rights thus remain p~blemauc on dIe plane of
repre5CmatJon and mediation of human sufTenng.
III. Clarity as a Form of Caring for Human Rights
Clarity of conviction and communication is a most crucial resou~ce. for
promotion and protection of human rights. The.stnlggl~ to altam It IS
by itself a human rights task. However, the usk IS ~auntlllg, wh~n one
shuns the self-proclaimed postmodcmist virtue WhiCh, ev~n at .1l~ ~st
moment cele.br.ates incomprehensibility as a unique form of1I1tel1lg1blllty.
Ethic~1 clarity concerning human rights is not always easy.to ach.ieve.
As dtis work progresses, we will begin to apprecia.tc that there.IS no Slllgie
or simple answer to the manifestly clear question: What fights ought
25 See, Satn~mha ~r (2002); Ene D. WeIU (2003).
•
An Age of Human RIghts? 9
human beings to have? The elldeavour atjustification ofhuman nghts has
understandably, though not always Justifiably, produced complex and
contradictory discourses. Even when we arrive at a land ofglobal consen-
sus 011 certain human rights values (such as equal dlgmty and respect for
all human beings, or dIe nght to life), these prOVide poor gtJIdes to
tnllslation in the official prose that enacts human rights norlllS and stan-
dards and their subsequent Interpretive IlIstQnes. Human nghts law and
Juri!tprudence have to produce definitions of prohibited and pennissiblc
conduct and here. often enough, sovereign power assumes the fonn of
pow(:r to legislate definitions. Undersundably, State and policy actors that
fin.aUy emerge widl international human rights treaties. dedaratioll5, and
resolutions engage in definitional trade-offs; thiS m(:ans funher that the
human rights norms and standards thus produced emerge in deeply ca-
veated languages. Even such prima facie consensual formulations remain
further exposed to reservations, statements of understanding, and like
devices that further complicate the search for the content and scope of
human rights. Massive. and unending, acgetic exertions remain indis-
pensable to the enterprise of knowing what hurnan rights people may
actUally have, even paving the way for the form of necessitous assenion
ofQ IlIImtlll n"gltt to IlImltlll rigllts ttI'l(tl/iell! These quick ob.'icrvations should
suffice: here to say that crises of legibility and IIltclligiblllty always stand
Installed at the very hean, as It were, of the multitudinous production of
contemporary human rights norms and ~tandards.26
Even .non-statecentric undersunding of sources of Justification for
human rights (to which, in the main, this work IS devoted) does not service
;lny pa...mount aim of clarity. The universes of re.sisUJ1ce to power and
dOmlnallOn are rife with crises, complexity, and contradiction. Even
as co~uniti~s in resistance and peoples in struggle enunciate new
human tights Ideals, they do not always agree, and, mdcro. differ greatly,
on the ,:-,"ys in which these may be translated into languages of
hUO!;&n rights norms and standards. They impregnate the production
~f human rights with rather notOriOUS constitutive ambiguities. One
asJust to read, on this COUIlt, the poesy and the prose ofthe Porto A1agre
:::: Mum~ai World Social Forum congregations declaring somehow
potential summated in the phrase: 'Other Worlds Are Possible'! All
~
.I. [II eOlltlbl, brut;ll dallty char,ICtenztt rcgllllCS of pohtlcal cruel". 11lere is no
Inu<:ternuna.-.. bel I '
COllt -, Ln, or a UI, tie perpelr:oIIor Jusufie~uon' for Ihe Hoioousl or the
N elllporary forms of ethme dcallSlng. The 'devout' NUl or eontempor~ry nco-
:101.1) arc rarely affected .• L.I r
Ilgl:UIo Inlell ' III ulClr DC l(' or pracllce, by amhlgtllty, whICh agonize human
Ibilln.' ~Iluts III each and every dlrecllon ofthe professed 'ulllvcrsahty', 'lIIchvu-
., ,and IIItcrdcpendcnce'.

17. 10 The Futur~ of Human Rights
this en20cts ways of reading th~ furore potentials/possibilities of human
rights.
O n older, even 2oncient, registers the ideal that proclaims the consent of
the governed as the hllnus test for the It:gitill12CY ofhun!an rights-orientcd
governance, d~ not. for e,ample, speak with an equal voice as to how
public officials may be elected, what fonns governance may assume (say.
in terms ofthe cabinet or presidential fonn), how we may prefer 'thin' or
'thick' conceptions ofthe Rule ofLaw, and how constitutions may providt:
for relatively autonomous judiciary, the specificity of human rights, and
limitations on their scopc.n Much the same may be said concerning the
insulbtion ofthe insurrectionary truths onanguagc:s ofself-dett:nnination.
or thediscourse concerning the human 'right to development', or 'women's
rights as human rights'.
The genre and corpus of human rights production thus, necessarily,
oscillatt: betwt:C:n the twO commandments: 'Thou shah be always clear' and
'Thou shah never ever believe that clarity is all'. The taSks of writing!
reading texts, contexts, and futures of human rights remain awesome
precisely because one ought to respect the over-determinatioll, the excess,
and the surfeit of meanings ~ntailed in statccentric 20nd peoplecentTic
multiple originatlng points of human rights. I remain aware that the
fiducUlry image of writing about human rights, 20 fonn where one takes
responsibility III acts ofwritingon behalfofhuman rightlcssness, suffering,
and injustlce, further aggravateS the achievement of a modicum of c1anty;
yet, this work is based on the belief th20t such writing remains coherently
possible.
IV The Haunting Ambiguities of Human Rights
The very tenn 'human rights' remains indeed problematic. In the rights-
talk, the expression often masks the attempts to reduce the plenitude of
its meanings to produce a false totality. One such endeavour locates the
unity ofall human rights to some designated totality of sentiment such as
human 'digntty', 'well-being', and 'flourishing'. Another mode invites us
to speak ofhUlmn rights as 'basic', suggesting that some others may be
negoti20ble, if not dispensable at least in th~ short run, experienced 20S a
horrendously long run by the violated humanity. The deprived, disadvan-
taged, and dispOSsessed may indeed find it hard to 20ccepl any justifications
for the vt:ry notion of human rights that may end up in their lifetime, and
even interboenerationally. as a denial of their right to be, and to remain,
17 I attend 10 thc:sc as~ III Chilpt:cf 5.
An Age of HullUJl Rights? II
human.Yet another mode of totalization nukes us Su<' b h
' II . um to an ant ro-
pomorphlc I uSlon that the range of hum:
m rigll~~ :~ I' ,-~ I
. . ' ...... II1Uu:u to lOman
bemgs; the new nghts to ~nVlrollment (or wlut IS som L_ -
I II II- .J , . ' ewl14t lIlapproprt-
ate y, even crue y, ca cu sus12mab1e development'') uke us far be nd
such a narrow notion. As descnpuve ventures such al" I yo
f
....h __.J , ...mpts at lOU lutlon
o human r1f:,"ts rcuuce to a 'coherent' category the forblddin I di
world of actually existing human rights. g y verse
As prescriptive vcnrnres, such modes simply privil_ ,.' <-~
I th h
.. -0- rum prer~rrcu
v:I ues over 0 efS, t us complicating, as well at ti d' , I '
h
....h . . mes InHIllSling future
uman ny'ts enunClallons. In both cases the no· '.
, ' I h . rmatlve complexity ,nd
~Xlstenlla ourreac of human rigllt5 norms d d ~- '
h
' '< I an stan ar= yield their
Istonc lutureS to tIe dem20nds of 20 uniform . Th'
L_ I . narrative. IS overall
o~ures t Ie contradictory nature ofthe develo m f'h ' , '
Ii I . P ent 0 timan rights'
or, t lere IS not ont world of human rights b t h ' ,-
Id 28 As Co u many sue confhctmg
wor s. ,aras ventures in totalization doseII 'd f '
( bo Id Ie oors 0 perception'
a~~d ~~~anl~ P~~se frol11.Ald~s Hllxley) oftheconflictt:d Ilormativity
. r:a Ity 0 HlllIan rights, one wonders whether the ressi
Itself, de~plte Its vast symbolic pott:ntial, may after all' .~ on
constructive demise. InVlle Its own
The practices of 'human rights' shelter incredibl d
polllia/~dl'~irt-~II-dom~"Q"uand poIi'''(J ofdt'sirt-i"-irfSIl~'i~:~~l~:~::
~~ :I';~:'~~;~':;;;:'I~>:O~:>::'~:~~~;:>:~>~:;',~,:S;,;~~:P;~~= ~~
mll1atlon an resistance aniculate themselves as se
~rs~ctives on the meaning of 'human rights' I d parate but equal
th~ <;ont~xts in.the rest of this work. . t:n t:avour to address
ghts, IIldudmg human rights emer"" in seve I d'« '
, 0- ra merent Images'
... rights as bounlb d · .
bck; rights as d20i:' :md as KeNS; nghts as markers of power, and as masking
as a defense againsl 'ian ~rot«t~n; TIghts as orgafllution of social space, ;and
as disciplinaty and ann"'durs~ol~; nghlS as art,cuiauon, and mystifICation: rights
red _ ' 'K iP 1fl20ry. nghts as mil kJ f . h '
uenon of one's humam . .gh . r 0 one s umilmty, and as
dtsire.29 ty, rl IS as expresSion of desire:, and as forec1osur~ of
•In the Veopk's Report of II n
liople'5 Dc,ade for Human Il,gh~m~n Iglns EdUCluo n, under the auspices of Ihe
I e:IiUfy at least Ihrc:c ld IIc:mon. New York. now under pubhntion I
~rodllCtion of humal~~~of humann:;gtus: thus the glomi world of II1tercullU~1
d ~tlonli auspKCS' the (nisi 110;1115 a SUII(brdS. prllK'pally wlthlll the: United
Uctlon ofllit:Cm~tlo I I~: tnnsg«:ss'oll world eonslltutc:d by naUonal T<'pro-
COUIlIOil wHh th_'
A
nil SUI ,-'_ ; and the actiV
ist world ofhUnlan nghu III I"V'TtTIlInent
Z9 We ........ (WO wor oa. r~
ndy Brown (1995) 96, fQO{not:c 2. S« also, Wendy Brown (2002) 420-34.

18. 12 The Future of Human Rights
Put another way, ' human rights' defy 'easy identification':
11m! nghts are sometimes mated:as concepts, as argumentalive trum~, as fxtol")
f ~uction as prccondnions ofbargainiug. as beuer-enabhng entitlements, as
o p . , " ' ckv1csJO
totems, :as sources of social sohdarlty, as egltmuuon c ,'"
Too many images crowd consciousness ofhu~~n rights, The ~referr,ed
, .......nival,l Inta.... is not just the act of pnVllegcd eplstemlc chOice
or persr---' e- , I' 'gI • )b ,
(arising from readmgofthe 'right' books or followmg t II: n ~t canon u
also a function of (what I-Ieidegger caned) one's tI'fOWfltlt5S III the ~rld,
At the same time, the different images ..bout rights suggcs,t heaVlIY,the
diai«li(ai character of'rights', From the one and the same s~bJect-posltlon,
human rights may be both 'cmancipatory' and 'repressive' ~arkers of
articulation of counter-power; they emerge as signa,tures o~ a tnumph~nt
'humanity' ofthe theoretical t:vcl)'one and as the regtste~ofhved,d~pl~t1ol1
of that 'humanity' and, further, as devices of mysti~catlO~ of dlsclphnal)'
and sovereign powerstructures, Human rights constitute dlffe;em constel-
lations of diverse subject-positions in, and through, a~nCY-II1-str~ct~~e,
There is no simple way of reading forms of plur:1thty a~d muluphclty
of the fecund expression 'hunun rights'. Because the notton means dif-
ferent things to different people, these meanings n~ to be con~gurcd II
pattcnlS that entail the least epistemic violence to the rtchness ofdlffer~nce,
a difficult task indeed, Further, at least in the present VIew, plurahty IS
worthy of celebration only if it enables sustenance of ~he netwOrks of
meamngs and logics of popular action which,protest agamsl all fortns of
human VIolation and production of human rtghtlessness, I essay general
understanding under the following distinct rubrics,
(aJ Hllman Rig/llS as Ethical Imperatives
Some speak of 'human rights' in terms of ethical values that ought to
inform collective and individual action. These values present a contested
terrain, Valut'S-talk stands here distinguished from itlltTtsts-talk. The.lattcr
insists that what we call 'values' are nothing more than fo~s ofrattonal-
izations of intercsts. The former distinguishes values. fr~~ II1terCSLS by a
definitional fiat: valucs arc what communitics and tndlvlduals ollght to
desire as distinct from what they may Q(wolly desire,l2 The sources oftllI~
'oughtllcss' val)' incredibly.
30 l"erT"t Schlag (1997) 1: footnote m~hcators Onlltted from the quOte "
)1 To mvoke ~re nther non_ngorously, the Nlcnschcan notlOTl of'pcnpcctlvum
as the very 'geognphy ofbt-mg': Sec, Jc:m Gramer (1985) 190.
Y Sec, fOl" an Illummatlng :analysts, JulIUS Smnc (1966) 546-56.
a
An Aae of Human Rights? 13
The great discourse on 'natural rights' arises thus both within the
traditions oftheistic and secular natural law thought, 'Theistic' narurallaw
traditions derive values from either the reason or the will of God. The
diffcrence is nnportant: where values and norOlS flow from, or stand
ascribed to the WIll of God, duties of obedience he beyond human Tea-
sorungand interpretation. Only when values flow from divllle re:lSOn may
human rC:lSOn mterpret their meaning and scope. Natural rights ~rc
procbimed by acts of pious reading of the scriptures. The hermeneutics
of religion thus provides the historic matrix for acts of reading human
rights as etllical imperatives. The right to equality ofall human beings is
grounded, after all, in that reading ofthe world's religious traditionswmch
say that God created humans in His likeness or image and, therefore all
are equal and all humans owe coequal obligations of respect and dignity
to each other.
Thus was the great Vitoria able, memorably, to raise the justification,
within the Catholic tradidon, for the protection ofthe natural rights ofthe
indigenous peoples ofthe New World. Thus, tOO, was Martin Luther ablc
to inaugurate a PrOleStallt tradition ofnuun.1rights that decemralizcd for
,111 believers the power of reading the word of God, uncluttered by hier-
archic monopolil.3tioll of hermeneutic powers in a few priestly hands.
Thus, further, was Gautanla Buddha able to found a whole new religion
based on non-violence (aMmJll). lloadlcal lslamic hermeneutics, during the
eighth and the tenth centuries CE, also empo~rcd intc'rpretatiol1 ofthe
verse on polygamy in the Iioly QUI7II1 dlat actually de-legitimized the
practICe ofpolygamy. Thus, too, was Mohandas Gandhi able to denounce
the practicc of untouchability as a perversion of llinduism and the early
forms ofapartheid in South Africa as un-Christian. Even as this book goes
to press, the Anglican community will decide whether allowing ordination
ofgay priests may be inconsistent with the pious reading ofthe scriptures
and Islamicjuristic communities will continue to debate the Shllri'a-bascd
Im~mli~sibi lity of the violent ~Iobalization ofJatwtlS proclaimed by
~ma bm Laden and his peers. 1 Progressivc/r:1tdical hermeneutics of
rellgton provides a rich resource for understanding the histories and the
fUture of human rights.
Secular natural law traditions present human rights as ethical impera~
Ilve.s in a vcl)' different mooe. These arise quite simply from a 1110raV
etiltcal aUdacity in which the figure of God is rendered conspicuously
a~nt. Value imperative for human conduct sund now to be derived from
~"'"
u .for ClCample, the IIltcl"CSt1ng analysis by C~rlcs Kortman (2003). See also,
JlCndr.tl Sax. (2005).

19. II
I
14 The future of Human Rights
the performances ofreadinghuman nature, no longer asacred text. Secular
Ilatllnl law thus derives ethical impentives from the givens of human
nature and condition. Thus, for example, H.LA I lart famously derived
his 'minimum natunllaw' nghts from certain Ilon-comingt:nt facts abom
being hUI112n: all human beings are equal because all are coequally morUiI
and vulnenble to palll, hurt, and physical hann, and because all of u:.
remain coequally deficient in our capacity to order social cooperation
according to the best dictates of human reason.J.4 Lon Fuller constructed
the logics and languages of human rights through contnsting, but still
coalescing, monlity of duty and aspiration.):' John Rawls derives human
rights as ethical imperatives, informing the basic structure ofa liberal well-
ordered society that respects fully both liberty and equality.36 Jurgen
Haberrnas derives the logics of human rights from discourse ethics.
J7
Man<ian and post-Marxian derive ethical imperatives of human rights
(rolll a critique oflhe bourgeois fonlls ofhurnan rights.
J8
Feminist theories
critique palriard12llineages ofhuman rights values, norms, and standards
guided by visions of post_patriarchal human society and civilizati.on.
39
Critical r2ce theory impugns racism in constructions of human rights.
Ecofeminism and deep ecology critique otTers ever-new bases for re-
conttptualizing hlllnall rights as ethical impentives. The move, 111 the
language's of Mantia Nussbaum and Amartya Sen, from hunan rights
languages into those of human apabilitieslflourishings offers further tm-
/,Qmusmttlf dt rkht1.
The ethic ofhuman rights insists. in the contempor2ry idiom ofreflex-
ivity, that bearers ofhuman rights critically evaluate their own interests by
recourse to an ensemble ofvalues. It emerges as a tradition ofcritklll morll/iry
).I H.LA Hart (1961).
)3 Lao Fuller (1999).
•
l6 j ohn lUwls (1971. 1999).
37 jurgen I Iabermas (1996).
J8 See, for a rw::m sUlcment, ~ndy Brown ~nd J:mel Halley (2002).
19 The htenwrc 15 vast. I refer here, iIIustntivdy. to the eorpus ofju(hth Butler.
Allison jaggc:r, Annene B~n:r, Nancy Fraser. Catherine MacKinnon, Manha MlIlIIQW,
Martha NUSSh<lUOI, Wendy Brown, Carol Gilligan, Claudia Card, Maryjo Frog, Susan
Moller Olon, Druciib Cornell, Gay:lIn Chaknvorty Spivak. DI~nne Ikll. Chanul
MoufTe, Ins M. Young, j .K. Gibsoll-Graham, Sylvia Iknhablb, IbJCSWlI,TI Sunder
lUJan, and S...,aa Susen in Chapters 5 and 6. However. IlIllISt draw altenuon to twO
rcluubble anthologies concerning. respectively, the domalt'ls of Justice and care
(Virgima Ilekl. 1995) and fenlllll5t ePlstelllOlogy (loUise. M. Antony and C harlotte
E. Witl. 20(2). Iltlary Charlcswonh, Anne Orford. Su~n M..ru, Ruth Buchanan,jane
~Isey, M..rle Dcmbouf. and Sundhya PlIhuJa pf'OV1de InSightful Cnttque~ ofpatnarch),
at work III the 'new' It'Item..tional bw and oontemponry human nghU:,
An Age of Human Rights? 15
by which the post'rjlJC momliry of practices and conduct of states, commu-
nities, and individuals (and, indeed, human rights and soc~1 movementS)
open themselves to a continual process of de-lre-lvaluation. The COft
ethical values (such as hunan dlgl11ty. IIItegnty and well-being) furmsh a
platfonn Crom which the dominant human rights ~radlg01S (knowledge;
po.....-cr fO~lati.ons) sa~d c~nsantly IIHerrogated, even though with pro-
found amblguuy and histOriC cross-purposes. The project ofhuman rights
remains, III lIS deepest sen~. heretical. possessed ofthe chanstrulric prow-
ess to interrogate all received social, historical. and polmcal truths. It
remains radical !tlthe sense ofbeing 'context-smaslung',40 in Its propensity
to cOll.5cirute forever new, and even unirnagmed prior, contexts.
At least one core value seems to command conscnsus. Respect toward
the ~th~r as c~qual hllm~n is the groundwork ofan ethic ofhuman rights,
furnlshmg universally valid norlnS for human conduct and the basic struc-
ture. of a j ust society. Th~t respect, as Emmanuel Levinas memorably
remll1dsu s, docs nOt conSist of the 'imperialism of the same,.·1 Rather, it
consists III the full recognition ofhuman rights as a 'sole source ofsolidarity
among strangers', conceding 'one another the right to remlljll strangers',·2
In. this perspecti~, 'h u~nan rights' emerge as an encyclopedia of mul-
titudmous monVethlcal diSCOUrses furnishing standards ofcritical moral-
Ity for t.he evaluation ofall existing sates ofgovernan~resistance affairs.
Inercaslllgl~, th~orizingjustice entails the addmsal ofissues ofrecognition
and rechstnbutl~n ~~d the basic structure of a gIVen .society to the
socle~ ofs,ta~s In hlstonally evolving circlIlUstancc$ ofgjobality.·3 'Hu-
man nghts dlSCOUfSCS forever arT)' the burden ofa transfonnative vision
of the wor!d, which demands dIal the state (and the community of state
and s~te-hke global institutions) incrementally )('come ethial, gover-
nanc~ Just, and power (in all its hidden habitats) accountable.
(b) Human Rig/ItS as Grllmrnar of Govmumct
Pnctices of governance ambivalendy sustam the network of meanings
~mcd 'human rights'. 'Governance', as we all know (from earl Schmitt
-~. ' , .
.nJamm, Michel Foucault, George Deleuze, Felix Guturi, Anto-
010 Nearl and f G"
, tr , • now, 0 course 1
0rg1O Agamben), is just one word but
COnStitutes ma r: r ' "
nya lorm 0 govenllnentahty and subjection GOvernance
emerges si I 1 ' '
mu talleoUS y as a complex site of human rights affirmative
..
41 ~obc"o M. UnS'r (1983).
4l Emmanuel Levm.as (1969) 87,
4) jurgc-n I bbcmJ.as (1966) 308.
john Rawls (1993) 41.

20. 16 The Future of Human Riglns
practices ofpolitics and as a reg;ster ofmaterial political l~bours thaI forever
produce fonns of human rightlcssness. The normative human TIghts
languages and logics offer conceptions of 'good' goveOlancc thou seek to
assure ~rall human rights integrity ofstatt: apparatuses and conduct: ;,at
a meta-level, these languages, and logics address the problem oflcgllunacy
ofthe ~r to rule. Co-natiollals :I.nd non-nationals thus rem:1.I1l entitled
[ 0 languages that enable exposure of iegitioution deficit and ~n gover-
nance illegitimacy as a whole. The tasks rem.ain infinitely comphcated by,
especially, the 'thin' and 'thick' constructions of human rigiu,s. .
'Thin' constructions accentuate human rights procedurnhsl notions.
These. once put in place, valorize human rights-~ponsive gover~ance
structures, such as periodic 'free "and fair' elections, forms ofseparatIon of
powers, autonomous judiciary, and legal professions. These forms do not
riskany specific content. 'Free and fair' elections do nO.t legislate any ethIcal
choice between the 'first past the poll' or proportIonal representation
constituting human rights-oriented govcrnance. The doct.rines of'sep~ra­
tion of powers' remain human rights-neutral conccmlng the chOIces
between constitutional monarchy and republican forms ofgovernance, or
the PresIdential versus Cabinet fonus. The structuration of autonomous
adjudication remains unguided by specific human rights considerations:
there IS, 011 'thin' conlXptlonS, no way of saying whether hfe tenures or
determmate superannuating terms for apex justices. or specific modes
of elevation ofcitizens into justices (through executive appointment.ju-
dlcia! commissions, or even Judicial election by public vote) rcmam the
more human rights-friendly. Nor do preferred conceptions ofjudicial due
process-based IIlvigilation ofpower guide us to any sure choice concerning
the legitimation and direction ofjudicial activism. The 'thin' conceptions
of,good govc.mance', in all these and related dimel15ions, at best, prOVIde
a description of necessary, but not sufficient, conditions of the rights
integrity structures of governance. .
In contrast, 'thick' conceptions prescribe a substantive measure offidel-
ity to internationally legislated human rights values, norms, and standards.
Ilowever, given the extraordinary proliferation of'hard' and 'soft' versions
of human rightS, even the 'thick' conceptions have to choose among
human rightS sundards and norms that all national and s~lpranat~onal
constitutionalism ought to incorporate in order to secure IIltcnlauonal
legitimacy.John Ihwls. Jurgcn Ilabermas, 80uaventura de Sousa Santos.
usa Shivjl, for example, provide different versions of minimal. human
nghts sundards that may impart govemance legitimation or defiCit, as the
case may be. TIlelr human rights mmima necessarily reconfi~:es .the
extant regimes ofmternational human rightS in different, and dIstinctive,
a
M Age of HurtWl RightS? 17
ways. They straddle rather uneasily the d«p divide between civil and
pOlitical human rightS and social, economiC, and cultural human nghts. I
revisit this theme briefly agalll in Chapter 5.
All said and done, however, theory and practice ofhuman nghts assume
that both the 'thin' and 'thIck' conceptions somdtoul prOVIde a corpus of
constraints on public declsion~making power and tht: lan~ of trans-
parency in public chOIce. No g!obal South readers of the present work
needs any reminder concerning the brittle and fungible nature of these
conceptions. They know full wdl the dire and brute face of power that
through the langua~ of'real' or 'fake' threats to public order and nationai
security, culminates in extraordinarysubversion ofhulllan nghts. They also
know well, and at great human and social COSt, the ways in which an
arrogant executive power seeks tojustify the suspension ofeven the 'thin'
conceptions ofhuman rights-oriented governance structures and pcoco
. sscs
m a libello~ rhetorical pursuit ofsocial and economic human rights. Even
as human nghts values, norms~ and sundards provide ObStacles to free play
of power, these, at the same tlllle, prOVide limitless opportunities for i[1
Eutrywl,m (in the global North as well as the global South), as we lea~l
/III 01-'0" again ~rom G~orgio Agarnben, the sovereign power constantly
ncgoll.
ates the nnperat~~ of the rule of law with thc reign of tcrror.~ at
Iea.M from the standpomt of th~ violated. Both the 'thin' and the 'thick'
conceptions ofhuman rights-orlentcd governance founder at the interscc_
non ofthe overall structuring oforganized political hfe and the everyday-
nnsofSUte condu~ There is 110 assurance that rig!Its-lntcgrity governance
structUT"CS, nomutlvcly blueprinted by the languages ofhuman rightS rna
~ywhere fully tra~late into prospects of lived huma.n rights fo~ ali.
OWcver, human nghts standa.rds and nonns continue amidst aU this to
provide be hm 1.5 by h- h fi "
be n~ 3r w IC onns ofbarbaric governance, at least, may
severely Judged. This is, I suggest, no small gain.
({) Hllman Righ15 /JS LAtlguages ofGlobal GOllmlatlct
Conceptiol15 of'~ , . 'fy
1._ 6""'"' governance SlgEli a conceptual minefield if only
uccause the 'top-do • d -
vary fj WI1 an grass roots notions ofits constitutive clements
lot p~ oundly. ~en authored by, and anchored in, the practices of
n
entatlonal and regIOnal financial institlltions the G8 and tI,·,-
·"so.,.d
onnaUve I' I ' • . ... '.... ' "
servt' tI ~ I~ academICcohorts, global 'good governance' increasingly
itna~ry,Ie Illlpcrat!ves of contemporary economic globalization. On this
,as we see III Chapter 8, human rights ofindividual human beings
~
tsS-94S«.' N1CQS Poubmul (1978): CIOrgJO Apmlx:n (1998); Upcndn R:oo (1993)

21. 18 The Furore of Human RIghts
s«m to be ~t served by according an overweening respect to the needs,
interests, and desires oftransnational corpor.uions and the 'communities'
ofdirect foreign investors. The grass roots conceptions ofgood governanCe
remain difficult to warner; yet it may confidentially be said that various
social movements and human rightscommullities pursue a 'thick' conCep-
tion of human rights and, indeed, go bc::yond the languages of human
rights. Increasingly, movements and communities subsume notions of
human rights under a wider rubric ofjustice. We partially explore thLS
theme later in this work.
Activists both cohabit and critique articulations of 'good governance'
offered by the internarional fin:.mcial institutions even in their midlife
crises, as also the mJatlt lmiblt such as the World Trade Organization
(WfO), the North American Free Trade Organization (NAFTA), Asia
Pacific Economic Cooperation (APEC), Association of South East
Asian Nations (ASEAN), and the nascent Free Trade Association for the
Americas. In addition, this critique also highlights the problem of'demo-
cratic deficit' within the paradigm of supranational governance furnished
by the European Union.-45
Juxtaposing the hegemonic con«ptions of'gocJd governance' with the
actiVist cntique IIlvites Marx-like labours of understanding, :md
demystificallon, of the complexity of global capitalism. I now raise ques-
tions (some ofwhich I attend to in this work) that n«d critical response.
First, how may wt: best narrate the stories concerning the originary/inall-
gural global good governance? Are instrumentalist accounts that accel.l1~­
ate a single-minded hegemonic narrative accurate? S~o/ld, are actiVist
community hernleneutics justified in reading/trading transformations in
language and rhetoric of glolnl 'good governance' in monotonic, rather
than pluralistic, modes? Third, how may wt: understand the seismic shifts
in languages ofglolnl good governance signified by large-scale narratives
of 'Vcstcrnization', 'modernization', 'dcvelopmem', and 'globalization',
variously embodied now, for example, in the rurgid prose of the Worl~
Bank, mar1cing the rhetorical passage from structural adjusunem condi-
tionalities to 'poverty reduction strategics'? Nimh, how do these literary
transformations actually address the formidable reproduction of human
righdessness? Pifill, put another way, what actual, real-life gains ari~ for
these peoples by the shifts in the languages of good governance-global,
supranational. regIOnal, as wt:1l as the locaVglocal? Six/II, arc we justified
in acts of reading that reduce human rights standards and norms wholly
45 See the IIlslghtful amlY'ls by Pt-tcr l.cuprccht (1998), Andrew Willwns (2004),
and the contnbuUOlU" In Philhp AlslOn (1999).
An Age of Human Rights? 19
as final products of the diverse orde~disorders of diplomatic and intcr-
ru-tional civil service desire within the evcr-exp.mding United Nations
system, in the service of a whole variety of foreign policy. and global
corporate uscs and abuses, under the cover of 'international' consensus?
Stvtfllh, and if so, how nlay we fully understand the amazing aspect ofthe
resilient autonomy of human riglm nonnativity that interrogates from
time to time such acts ofexpropriation of human rights in the pursuit of
severely self-regarding national or fCgional interests? Eigll/h. how may wt:
fully understand human rights in the formation of shared sovereignty?
Ninth, how far may one regard mutations in deployment ofhuman rights-
oriented languages ofgood governance to activist contributions? In other
words, how may we trace the itiner.tries ofpartnership between 'globalcivil
society>-46 and international agencies that reshape conceptions of 'good
governance'? Tmth, and related to the foregoing, what approaches to the
Othtr of Good Governance, namely Good Resistance, thus emergc?47
(d) Hllmall Rights as ittsllm'(tiollary Praxis
Through myriad struggles and movements throughout the world 'human
rights' has bc::come an afCna of transforrnative political pr.tctice that
dl$Orients, destabilizes, and. at times. even helps destroy deeply unjust
concentrations ofpolitical, social, economic. and technologtcal power. The
transfonnation from the 'modern' to the 'contemporary' human rights
paradigm (that I describe in Chapter 2) remains inconceivable Outside
movements for dccolonization and sdf-detcnnination. Likewise, the move-
ment of'contemporary' human rights must take account of the struggles
for the elimination of apartheid, and movements directed to realization of
'women's rights as human rights'. the hurrun right to difference (right to
sexuaJ orientation and conduct), and the integrity of environment.
: See U~ndr.l. &,g (1996b) for an am.Iysis of thiS dlscu~we enoty;
do Forcx;unple, the evtr-mcreasmgoompkx hnbgt$ ~tv."ten devdopment:lid and
nor country conditionalities pmem one site ofintcrsecnon between 'hu(ll;In nghts'
communities and me codes of globOIl governancc. Were the Northern donOR nO(
to m~lst on -nd I , I h
gil ..~ cr equa lIy, It IS e t. t cy would remam forever IIlnocem of human
~ t. asplr.l.nono:r achlcvcment. T"he $:Ime nuy be $:lId concerning 'democratic'
u,ttuQ""5
, internationally supervised, the groundwork (as it wcre) for political n:forma-
11l1 tleaided nat M S h c ~ d
",' I Ions. .lIly out -o;ose IIItcrnaUonaJ NGOs work ildrnirably, and
ces'y,topro.......~'h h ' d '" d
ckvt:1 '''''''- Uillilll rig t'l con mona mes 10 :U and lrade pohclCs of Ihe
de I.lped nations. In 5ttJung 10 COIUtr.1I1I the governance pnct)CeS of the recently
mued 'nation 'hcte fl
1"1 P r.ad -Mate, t oml;aUOl1S also remam open [Q SUb)CCt1Of1 10 the emerg_
........,
: Ii I~ of 'global governance'. no rmttC"r how bemgnly presented ~ human
" 6" • nC'Klly.

22. 20 The Future of Iluman Rights
Iluman rights as insurrectionary praxes provide diverse maps of the
Illegality of the dominant (to paraphra~ a term of Michel Foucault) and
also of the llIass Illegalities of the subaltern peoples. The violence of the
oppressro provides. as llIuch as the violence ofthe dommant. a matrix for
the emergence of human rights norms and sundards.
48
Even when the
labels 'opprcssed' and 'oppressors' remain problematic in erudite dl~·
course, and when one thinks ofviolence by the oppressed as human, and
human rights. Violative, the issue of the jurisgcner.uive
4
? potential of
violence directed to achieve better futures ofhuman rightS may be ignored
at eonsidenble peril.
Prescinding this, the perplexities here ~ in deciphering the upward
and downward linkages between mass movements for transfonnatiol1 and
their representation by an incredible variety of non·governmental organi.
zations (NGOs) in dose interaction with m.tional. regional, and interna-
tional power-fomlations. The NGOs, who so pre-eminentiy lead these
movements, vary in their levels of'massification'. This variation also marks
the richness or poverty, as the case may be, in terms of their potential to
articulate the vOices of the violated and authenticating tilelr visions of a
just world. As such, they do not yet. fortunately, exhaust the emancipatory
potential. At the same tillle, these movemcntS pluralize meanings of
human rights far beyond doctrinal disputations concerning 'relativism'
and 'ulllversaltty' that. at the end ofthe day, subscrvc:: the g1obal-lllterests.
in-the·malang.
(e) Human Rigllts as juritii(al ProduClioll
Not all, even the most prc-eminent international lawyers, carry In and
through their hfework this incredible range ofhuman rights meanings or
significatory practices. But those who devote their singular talents to
systematizing human rights law and practice or to sculpt alternate SlnlC·
tures (like the International Criminal Court) do create systems of mean·
ings for human rights, almost coequallyavailable for the ends ofgovernance
and insurrection.
The dogmatic tradition ofscholarly human rights discourse ispnlde7JIial
in the bcsl--even Thomist, as well as Dcwyanso-senses of the terlll,
stressing the evolutionary chanctcr in the emerging law of human righ~.
411 I h)ve ~Iopcd tlllS theme elsewhere: see Upendn. BlXI (1987).
49 I mvokr here Robe" Covt-r', (1987) disuOCllOll belW«n '.Ium.8Cller~lIve· and
JunspathlC' violence Sec abo Cluptcr 2.
50 See ll.K:hlrd Rony (1999) for pngmatK: notionsofprude-nee asdevdopcd byJohn
D<wy.
An Agt: of Human Rights? 21
that somehoW entails convergence of$Ute practice around specific norms
and sund:lTds. In contrast, the cnneal, even radical, scholarly human nghts
practices tend to view human rights emergences in terms of brew,
discontinUIties, and fissure~ in the canonical narratlvcsofstate sovereignty
and legltllnacy. They perceive International rel.ations and organiutions as
haVing a dialectical reJal10n betw~n ~r and resistance at the level of
~ncy and structure. Put another way. this scholarly genre focuses upon
the critical practices ofnon·'sovereign' but still self-detemlln.atlvc peoples
m the development ofimernatiorullaw, gene~lly, and IIltern.anonai human
rights law, in panicular.51
Both types oftheoretlcal practices have a bearing
on theorizing repression but critical practice takes this as an explicit ob·
Jectivc:. Howcver, theorizing repression requires, besides the authemic cry
ofdeep human anguish. some considerable labours ofertldite understand-
IIlg of w:lYS of power and governance, which remains the focus of the
dogmatic approach with all its 'technical' constructions ofimman rights.
To be sure, a state·scnsitivc: dogmatic approach remains liable to servicing
the ends ofpower and governance. But it also brings to view the patholo·
glcs ofrealpolitik in rich detail. This is useflll---even imporunt-becausc
the devil often lies in the detail!
fj) Hllmatl Rigllts as 'Cull/lre'
In '!'is discoll~, rivcn with contesution on 'ulllvc:rsahty' and 'particular-
15m, human n ghts are conceivro as culturalsystems. Every socieul culture
contams beliefs, sentiments, symbols that imp:ut sense to the notion of
brmg human. no matUr in how many different reg"lsters of inclusivity.
Every SOCietal culture, similarly, has traditions ofunderstanding concern.
Ing what nghts a human being ought to have. No culture, then, is devoid
of nottons about human rights, even when what constitutes these rights
nnes within the same culmTe in time and place and they vary across
coffip4rable cuinJre5. Within societal cultures, distinctive legal cultures give
nse to the p' Ct" f" I I h" "
d ' a ICC 0 ng lts. II t IS sense, perhaps, human TIghts may be
escn~! ;l5 'cultural software'. a 'set of mechanisms of hermeneutic
POwer' that mi." . I d " "
what . a~, III a constant y ynamlc way, new understandlllgs of
It means, and ought to mean, to be huma,..
"
52 Sec, Ihlaknshnan RaJagopal (2003).
t"Ultu~IM'ilalklO (1998) 273-85. &11011. ofcourse. dots nOt address human nghts as
the ~v.'C::' I~rc. It enilbks us not only to 'understand but m domg50 helps us prodw.:e
mcmbe ~at unckrstlnd' (p. 274). It 'prodw.:es the hemlC'neuuc power that billds
rs a CUlture tosetl1er' Illd nuke, 'cultural convt'nuons possibk' (p. 278).

23. 22 The Fumre of Ilulnan Rights
These rocicul human rights cultures relate to glolnl cultures ofhllman
rights. It is trivial to say that they arc shaped by the global cullu,res and
in turn shape them. The peninent question relates to the perceptIon and
the reality of tillS mutuality ofdetemlination. In an ~ra of ascendancy of
the global cultures ofhuman rights, socieul human nghts cuhures.an'cu~
late relations of both submission and struggle. But cven at ,tillS level
sensitivity to the tyTallny afme singular is entiai. Corrcsp<;>odmg to the
many socica.i human rights culturcs. ~iv~rsc global human rights cultures
are emerging. The reb.tions of submission and struggle at all levels arc
intensely complex.
The cultural software ofglobal human rights cultures is not, ofcourse,
exhausted, though typified, by enunciJ.tions of human rights norms and
standards. There is more to global human rights culture than ca~ be
exhausted by the often, indeed all too often, Iifo~ texts of !lUn:un ~gh.ts
instruments. The kiss of life is given by interactions of soh~anty W1~llIn
the emerghtg archipelagos ofhuman.rights activism i~t the Umted NauOI.ts
system even when increasingly domlllatcd by sovere~gn sotes and now, III
effect. privatized by meta-sovereign global ~orporatlons. -:he global cul-
tures of human rights remain ceaselessly dnven by the NI.etzschean Will
to Power ofmynad NCO initiatives. They also at the same ume arc ~ually
so driven in the 'post-Cold War' en by a solitary hegemon, fostenT~g Pax
Ameriana. The fallout of this synergy of counter-hegtmol1~cs IS the
constant rewriting of the societaVcultural software of human fights. On
this view, then, it would be odd to regard global human flgltts culture as
(to borrow an evoc:uive phrase from Sharon Tn.wtt~ m the context of
pn.cticcs oftechnosciellce) dIe 'culture ofno culture'. . or~ou~, those
who contest the ideal of the universality of human fights mdlct global
human rights culture precisely in these tenns. ~I available evidence,
however, points to the reality tlut the global hunun fights cuhure, far from
being a culture of no cultures, is a culrure of many cultures.
V. Discursivity
By 'discursivity', I refer to orders of both e~lldite. and lay. (everyday)
practices of the 'rights-talk'. Righ~-talk (or d.l~urslve practices) OCCllr'i
within traditions (discursive formatlon.)S04 Traditions, themselves codes for
5J Sharon Tnw«k (1988).
Sol For OQmple, nghu.talk (dlscurslvc practlcc) glVc me 10 dls~;nCt, tven If rdatcd.
n:gllntS (dISCUNIVC formations): the CIVIl and political nghu n:gllllc III IIIltrllauonal
law IsdlStlllct from the SOCial, cultural, and economIC nghts rc:gJllIC. The W3y5 III whICh
discursive: formatlOlU occur deltmllne whal shall count as a VIOlatlOl1 ofhulJUlI TIghts
-
An ~ or Human Rights? 23
power and hien.rchy, allocate compctences (who m.ay speak), construct
(orolS (how may one speak, what (OntU of discourse are proper), deter-
nlille boundaries (what m.ay not be named or conversed about), and
strUcture exclusion (denial of voice). What I call 'modern' human rights
offers powerful eX2mples of the power of the ngllts-talk tradition. In
COlltnst, whal I call 'coO[emporary' human rights discursiVlty iIIuslntes
(though nO[ always and everywhere) the power of the emergent,
countervailing subahern discoursc=. When thaI discourse acquires (in
moments of nrc solidarity) the intensity of a discursive insurrection, its
managcmeO[ becomes a prime task ofhuman rights diplomacy. Dominant
or hegemonic rights-talk seeks, but never fully achieves, the suppression
ofsubaltern rights-talk.
Human rights discursivity is marked by complexity and contn.diction
becwcen (to invoke a Filipino template) the statist discourse of dIe
educated (lIIustrado) and the subversive discourse of the indigenous
(I"dio).55 It is this vital distinction which we need to address in Jurgcn
Habcrmas' germinal endeavour to assign to the 'public sphere' the future
of human rights; that is, the belief in 'the procedunl core' ofdelibcntive
public politics.56 To put the point simply (but, hopefully. accurately) such
practices ofpolitics must entail equality ofdiscourse between the lIIustrada
and dIe I"dio. This, in mrn, presupposes that the dominant power-
structures arc a/rNdy constnllled (or that they could be so significantly
constnllled) to strive towards equal dignity in discourse between the
htcnte and the ilIitcnte. the haves and the have-nots, the tormelllors and
the tormented, those who suffer from the lack of the basic necessities of
life and those who suffer but only from the surfeit of pleasure.
Further, discourse theorists often maintain that discursive pnctice
COnstitutes social reality; there arc no violators, violated, and violations
outside discourse. But it ignores or obscures non- discursive or material
practlces ofpower and resistance. This talk diHmbodia human suffering w-
and-now, for future amdiorativolredemptive purposes, whose status (at
The pmhibulOlI , ' h d __
, . agamst romlre, crue, In uman, et>'....mg pumshment. or treatment
In the CIVIl and political nghu formation also prohibits nghts-talk.. which equales
~blY.lIIOII or domesllCViolence as avlolarion Ofhum;1n nghts. The latler arc: oonstICUlcd
;lJ ~IaIw)1I olily when dlKUl'SlVC boundanes are tl':ll1sgressed.
ArllhonY~lwiss (998) 104. I b1x:rmu' 'post.mebphV<lcal' diSCourse clhies
~t IliS veN bet ....... '0
..... ., t ilUUrcsses the future of human Tlghlll III terms of 'nn<t.industrlal
.........lelles' Th , " .--
rt'<I.l .' IS. Wile cruelal for Ihe future of hun1311 rightS III IIII1Jlrnd<! dlSCUrsiV1:
""illS.points to an equal, but nol separate. need for re.mtagmlllg the fUlure of human
~ for Ihe l"dill.
JUTgcn Ha1x:nnas (996) 304-8.

24. I
I II
24 The Future of Hmmm Rights
least from the sUlldpoint oflh~ that sufTer) is vrry oosmrt, j,ulmJ 10 apoilll
of(mdry ofIlftOry. The non-discursive order of reality. the materiahty of
human viobtion 15 just important, if not more so, from the sundpoint of
the viobtcd.S7
VI. Logics and Paralogics of Human Rights
By the use ofthe notion of 'pan.logics', I connate the notions oflDglc and
rhetoric. Pandigm.:l.tic logic follows the 'causal' chain of signification to a
'conclusion' directed by the major and the minor premise. Rhetorical logic
does not regard argument as 'links in the chain' but nther as legs to a
chair,58 Wh2t matters in rhetorical logic is the choice of topoi, littrary
conventions that define sites from which the processes of suasion bt"glll.
These arc rarely gove:rned by any pre~given ropoi but, rather, dwell in that
which OtIC ,hitlks Ollt oug/1i1O argllt about,S,) Hllman rights logic or paralogics
are all about how one may, or oug/II, to construct 'tedllliquts ofptrsucuioll [aJ]
a IIIt'i1llJ of(rttltflll tlWtlmlw.'60
!7 A polm cruelly csubhshed, for enmpk. by the 'prodUCtIVe' technologic, enulled
III nunufxture and dlslnhullon of Iandllllnc5 or weapons and mStruments of mus
destruction. 11 would be excessive 10 gy dl~t these arc commuted by dISCUNV~
prxucC$ aud do not ClOst outside of Ihcst' pracuct'S, The m:uenahty of non-<hscunloe
prxued. arenas, and fomlauol15 IS rdallvely amononlOW of dlscou~ throncs.
It IS another nutler that human nghts discurslvc pDCIICC'$ arc abk. al IInll:5. to
highlight v!Ctlmagt caused by deploymenl of thc:sc: lC(:hnologlc:s as hUlllan nbohts
Vlobllvt. In50far as It 1.5 possible for lhe WI '-"Otd to be u ld, I)~d Harvey has conic
d0$C51 to gymg II: 'DIscourse and language nuy be a ,ul locus ofsnugge. HUI they
arc not only or CVCII nc:cess:.anly lhc: most lmpoTtllm pbcn ofstruggle:'. llivid Ibrvcy
(1996) 113.
51 JulIUS Swot (1964) lV.
59 Exprcsstd bnl1untly by Umbc:no & 0 Ihus:
For cxample, I em argue as foUQW5: 'What others ~ havmg been Ukcll av,r~y
from me is nOl: their propeny: il15 wrong to take from othel'$ wru.115 thelt property:
but II IS not wrong 10 ~torc the onginal order of Propeny, puttlllg back InlO IllY
lunds whal was onglll:l11y in my hands'? 'But I C~n also argue: 'RIght:! of propertY
arc sancuoned by the xtual posllC!ililon of the thing: If 1 uke from someone wlu
t
IS actually In d1elt pos$C5sion, I comm" an an against rightS to property ~nd
therefor<: Ihefl.' Of course, a third argument is possible. namely: 'All property IS
per se theft: uk.mg propeny from propcrty-()wlleN means r<:slormg equlhbnU
ll1
violated by ongm~1 theft,and ther<:forc ulongfrom the propc:rutd thc fnnu ofthe"
theft I~ not JUst a right but a duty',
Umbc-no Eco (1995) 104 (emphasIS 2dded).
toO Umbc-no Eco (1995) 105. I bolTO"N Eco's phrase: explaining the u sk of thew"'
III gentnl.
An Age of Human Right:!? 25
The human .rights wt-IIW that enacts and enhances these techniques of
s~ion IS multlf,mous, contingent, and continually fragmcnted. That we-
",-JS i!> both an arufact of power as wel.1 as of resistlnce. Iluman rights
d,SCOllrst' relTl2nlS, In order to be such, rrtthOOy J'l2ffWII. It cannot exist or
endure outs~de .t~e ''''Cbs of Impassioned commitment and networks of
CI'tltiltlli"l soltdanllt1, whether 011 behalf, or at the behest. of dominant or
sutul~m ~Ia.s.scs. ao.'hclaim the ownership ofatrmuformotillf vision ofpo/itia,
cfQ/ltlflptltlOlI ofposslblt' hW1U1II jillllm. The hi.<aonc significan~ of 'human
rights' (no matter w~at we pc~onn with this potter's clay) lies 111 the denial
ofadminIStered regllnes ofdisarticulation even when thiS I
rfi . f ' amounts on y
to the pe oration 0 the escutcheon of dispersed sovereignly of state
powe'"
VII. Future(s) of Human Rights
A sense ofunease haunts my heavy invocation ofth, not" fie
f . Ion 0 t Ie IUture
o human nghts. In a sense, this future is already th, -'I ofh " h
. ' y_ uman ng ts
:r'manner, andc.lrculilstance. ln a sense, what may constitute the future
:::ry ofhuman nghts depends on how imaginatively one defines both
m co.ry and movement, the challenges posed by the processes ofgiobal-
I~on. athlrea~y we are urged to appreciue the 'need to relocate' human
n~"b III c current processes f I ," F
__, d d' 0 c lange. rom tins vll'U1tVint what
-.uS lIlan ate IS the verv od f " -"" r- ,
trjIeci Pr . "I. me a smull/rut adJlmmrnl of IIlImatl righls
n.therlll~~ak~:;:=ts ?f r~c~mg moral languages of human rights appear
not to th fi ur globahzmg' human condition m W2YS that these did
a Gandh~, orerunncrs and founders of human nghts: from a Grotius to
AeonU':isting visi '
rights futur"" on
I'stresses rooted Utopianism'. It construCts human
.... as ental Ing non-t h . f
totes Iftech . . « nocratlc W2YS 0 Imagmg human fu-
. nocrane Imamng toke r. d ' h "
forms md stru D' s or gra.nte t e persistence ofpolitical
non~teehnocra~~rcs, .at le~t short of collapse through catastrophe', the
citizen-n'"I~,. ,W2ys denve sustenance from the exemplarv lives of the
y D' illS at work ·d ' h "'
by either deli, al~u st us w 0 embody a refusal to be bound
. renee or aeqUlcscen . . ,
Joy in communi . . ce to stltlsm and 'relate fulfillment [0
10 ry, !lot matenalist acquisition'. 62
IS work straddle .
bt-tween the glob r ~ llllCCrt2l1lly the Illany worlds of human rights
the Vision of to a IUUon (doomsday) possibility of human future and
u plan transformation animated by the exempb.ry lives of
" UN Conllll
~ Richn 'SSlOn on Iluntan Righu (1997)
d Falk (1995) 101-3. .

25. I
26 The Future of Human Rights
countless ClUzcn_pilgrims.61 Yet. it su~sts that human rights, as Ian.
gua~s of power and of insurrection, have not onc but many futures.
Vl II. Suffering
Save when expc<hent, the statist human rights discourse in its enunciations
of human rights does not rdate to languagcos of human pain and social
suffering. In contraSt. peoples suuggles against regimes of politics of
cruelty stand roo«:d in the direct experience of.pain al~d suffering.
64
Even so, human rights languages problem2tlze notions of suffering.
Suffering is ubiquitous to the point ofbeing natural. Pain and suffC'rmg arC'
egregious; som~ forms of suffering a~~ cOllSid.ered 'n.ecessary'. and ~1llC'
'unn«C'ssary'. Different cultural tradmons weigh SOCIal suffermg as JUS·
tified' or 'unjustified', making the definition ofsuffering difficult. Indeed.
one way to measure the social effect of human rights.is to index th~ new
fon115 ofjustifiablC' suffering it invents. Gender equahty makes patriarchs
suffer everywhere. The overthrow of apartheid in the United ~tates has
made many 2 white supremacist suffer. Prison guards and officl2ls. suffer
when their custodial sovcreignty is assailed by prison reform favourmg the
rights ofthe inmates. People in high places suffer when movementS.against
corruption achieve a modicum of success 2nd we all get en1311 from
Chilean groups that urge us to think ofthe suffering im~sed on I)il~ochel
by the extradition proceedings. And, as we all know, ~Ih.tant practices of
thC' right to sdC-detennination by insurgent groups clamung autonomous
statehood and communitarian identity of~n enDil incredible hum2n and
social suffering. . .
Human suffering oriC'nted toWards, and caused by, human nghts !lnple·
menDtion is both creative and destructive of human potential. It IS
jurisgconerative in a constitutive sense
65
bC'in~ a for~ of impositi~n of
sttular social suffering. It is destructive ofsuffenng legltlmated by rehglOus
tr:aditions through a cosmology.66 In a sense, human rights discursivity
6J l>rofessor P.tlk mentIOns Mother TelT~ BLshop Desmond 11,1Iu. Paulo FreLre.
I..cch Woilesa Kim Dat Jung, and Pctnl Kcll) UUI alollgo;idc: these: charismalie figures
there are '(~untlcss other women and men O,'C will never k.now'. Ikhind every
legendary human TightS life lie the lives of hundreds of human beings. tiO less
exempbry. The a sk of IlLstOrtography of humall righlS IS to roll back the order.. or
atmonYTllLutton. Thts ask geu comphcated In some troubiesollle ways by many a
media.poroul UN-accrcdlled and sdf-cerufied NOOs who obscure from VLew the
unJu~ moral heroism embldu:d In ev.:ry<by exemplary lives.
64 See also the prefx:e 10 the first edlliOn VI-IX..
6$ Kohen Cover (1987).
66 See. for example. Thomas !.qUinn (1989).
An Age of Ilum.m Rights? 27
)egiomatcs only for:ms ,of impos,itiol.l ofsecubr suffering. Howevcr, even
this imponant distinction rcmams Inherently unsable bcOlUSC it sunds
nurkcd by m.any a boundary between necessary/unnecessary suffermg.67
not alW2YS fullysensitive to the problematic ofculturaVprofesslon..1appro-
priation of hum.an suffcnng.68
Crucial for prescnt pu~ is the f~t that ~ hUlmn nghts instru-
mcms. r~mcs, and dlscurslvity cnOlict distinctive hlCrarcille5 oflcgitimatcd
pain and suffering. Statist human nghts regul1cs scek to legitimate capital
punishment (despite the nomlativity ofprogressive elimirution); provide
for suspension of human rights in situations of 'emergency' (howsoever
nwnccd); promote obstinate division between the e::xercise of civil and
political rights on Ihe:: one hand, and that ofsocial, economic, and cultural
rights on the other. Similarly, some global human rights policing. via the
e'mergcnt ~t-Cold ~ar regimes of 'sanctions', and overt military inter-
wn~on causlllg maSSIVe, flagrant, and ongoing violations, is sought to be
Justlficd III the name of making human rights secure::. Even non-statist (and
alMt sight 'pr~essivc') human rights discursivityjustifies imposition of
hunun sufferlllg In the name ofself-dctennination, 'liberation', autonom)l
and Kle::nuty movements. Further, contemporary proces~ ofglobalilatio~
C'..act a new dramalUrgy ofjuSfifiabf~ human suffering III WoI)'S that re::nder
human rightS langua~s IrrelC'Vam 10 thC' emC'rgent new thC'Ologics offree
trade and mvcsmu~nt.69
llJC" visions of the future of human rightS depend on our po-er not
~ fUme a~ order of~I but in our ability to articulate a normative
0( b concC'mmg the ethIcal unjuSfyUlbliry ofecruin fonns and formations
umao suffcnng that the ~mc of evil incamates.
IX. An Age of Radical Evil as well as an
~~ ~ Age of Human Rights
rrom this Stand . .. .
Ag.:- of Hum p?lnt, I~ IS wurth TC'QUmg. over and over again, that the
This Ka . an ~ghts IS also, at the same time. the Agr of Radical Evil.
ntlan notion 1...- • . • I
~" ~ I ·1 uc;ars reIteration m I:mnah Arendt's C'nundation of
•...... CVI 3S a ·st II .
bunun be' ructura e ement III the realm ofhuman affairs' in which
10 Punish I~ a~ 'unable to forgive what theycannot punish and ... unable
at las turned OUl to be unforgivable'.7lI 'All we know' sh
'" . .
....
'" aUtlce Gbsman (1996).
~, for elQnlpl Ani .
__OJ 6 ~d 7. 1:, IUt KklOlIlal1, a/ld J~n Kkmnun (1997) 25. See also
111 S~hen Gill (2003
~ IlannahAtc ); Jane Kelsey (1999. 1995). See aho Chaplets 8 and 9.
ndl (1958) 24; Carlos Sanllago Nmo (1996);J~n Copjcc (1996).

26. 2tI The Futtlrt of Iluman Rights
maintains, 'is that we em neither punish nor forgive such offences and that
they, therefore, transcend the realm ofhuman affairs and the potcntlalllle~
of human power'? '
Arendt wrote in the aftermath ofthe Holocaust and the inconsistently
heroic moral ways onts rcdrcssal that led to the j,lJ./mtion ofthe Nuremberg
(and Tokyo) principles. These no doubt, paved the way for addressmg. III
some normative modes, the CQlll5trophic practices of politics-natiolul and
global since then. Since then, tOO, practices of radical evil have been UIH-
versalized, and stand innovated through many a gulag. The radical evil that
we may neither punish nor forgive has grown apace. But, curiously, (at
least, from a 1-iumean standpoint) the moral ought stands derived from an
illlumum is. Put another way. radical evil is the womb that nurtures the
embryo of the 'contemporary' human rights.
The notion of f3dical evil provides, at one and the same tillle. the
dynamism for the birth and growth of'contemporary' human rights as well
as intimations oftheir mortality. tn coping with violations that exceed the
possibility ofpunishment and forgiveness, situations of radical evil (as we
shall Stt shortly) also take us beyond the human rights nOnl1S and sun·
dards they help us establish. Even as sintations of radical evil accelerate
nOnllative consensus against such evil, acntal ways of handling the after-
math of t:ldical evil lead us to action that flouts, over and over agaUl, that
new-born human rights-orientated nOnllativity. On this tcmin, the 'IIIOIIU('
(in the sense of violent nonnlessness) of the perpetrator unites with the
aI/emit (in the sense of the powerlessness) of the viobtcd.72
lfwe were to duuk of radical evil in these terms, the future of human
rights must indeed, appear very bleak. Radical evil is imposition of suf·
fering beyond redress, remorse, rights, and even recall. Perhaps, dlis IS W~lY
it appears unwise to think about colonization (and its Siamese tWUl,
imperialism) as an order of radical evil in the same way that one dunks
of it in the contCXI of modem genocidal politics. And, perhaps, the sanl
e
pntdential mood chancterizes our unwillingness and inability to name the
Cold War as an order of radical evil. There has been no endeavour to
establish the pervasive Cold War violation of human rights as crll
llCS
against hl1lnanity, no acknowledgement ofresponsibility, no conversation
about fOnlls of reparation and restitution. This organized moral amnesIa
undermines the very foundations of contemporary human rightS;
human rights cultures may not be robust for the future when based 011
7L Ibid.
12 In order w grasp tins obsc':rv,ltion one Ius only w unbcanbly rcblc on~l( to
Ihe cnncal cvcnu of 9111 and the crud Mghamstan and Iraq arlCmlalhs.
An Af!j:. of Ilurnall Rights?~
/
,0 COf11pn=hensivcly org:mized politics ofoblivion of the horrend~
and recent human violatJon.
The very conceptualization of 'ndlcal evil' may lead us to dunk of its
Other b the rouune, everyday CV11 Wllh WhiCh, and somehow, hunun
nghts norms and sundards may wrestle more e£fecuvdy. There are nuny
reasons why wt" may not kave this Issue uncxanuned, at least from the
sWldpomt of the suffering of those violated.
The notion of radical evil addresses, at least m the context of the
emc:rgcntilltemariOlullaw, the problem of how 10 dC1lI retroactively with
massive VlO.I.a~OIlS ?fhuma.n righ~ ~ the exceptional state or regime. In
this sense, It Idenufies radical evil WIth genocidal practices of power. It
focuses juristic and popular energies on the problem then of how best to
temper justice with mercy. truth with reconciliation, the past with the
future. But radical evil also flourishes autonomouslyoutside the multiplex
~~es of~olonialism, imperialism, and the Cold War, though in some
Sltllauons sllll detennined by these. Necrophilic fonllSof power indwell
many a structural site, a fact mercifully (frolll the standpoint of the vio-
Iued) sol11e:vhatcognized in the contempot:lry international human rights
law md Jurisprudence thai address:
- CiVil socic:ty-sanctioned, culturally groundcd,lllnnan violations such
.. the oppresSion of womer)",
~Tbe dhanr~.u~ctioned ca5te sr.;tem, which sulljustifies in embodied
ng the Vloianons of those born into untouchability;
rm:..Th;ph~t ofthe forgotten peoples (indigenous communities under
mustt;; extinction, recalled only as sites of human genetic diversity that
rescued before they are extinct);
• Th rgh
IQuaI Ie pit of millions of women and g1r1-childrcn condemned to
s avery through forced trafficking in women'
• C . •
militia;onscnprion ofchildren and young persons into state or insurgent
- Pcopleslivingu d d" d
n ercon Itlonsan contexts ofmass impoverishment.
ihe danger of co '} h" ,
radical '} ' UNe, ,s t lat I 's kind of dlaspora of the notion of
eVJ conCiseat' .
notion is called Ii r . e~ ItS majesty al~d power. But that diaspora of the
from the" stand ~I III cont~l11porary human rights engagement, at least
riahts de..... d _~ 1t ofthe V
Iolated. The future of'colltempot:lry' human
...~11 s, Irom this stand . d I
Ubckn;~nding f ' . pamt, a great ea more on comprehensive
IIrophlc po]' . 0 t:ldlcal evIl, both as the practices of conccntt:ltcd cata-
Itlcs and as everyday structural violation.

27. 30 The Future: of I-Iuman RightS
In this sense, the quest for relating the future ofhuman rights to human
suffering remains fateful for the fumre of human rights; human rights
I:mguages, being products of intergovernmenul and. NGO politics of
desire of necessity problematize some forms of suffenng over other!>. 111
panicular, m01'21 negotiation of suffering sec~ to redress the 'pa~t' of
Olttl'2g':Ous human violation through constructions of a future liberated
from systemic propensity for such violation.
Such constructions entail contradictory happenings. If the vIolated
acquire nartati~ voice. the narrative: authority resides elsewhere. The
truths that emerge are not insurgent truths but truths that stand nation-
alized; the past is allowed to speak only to scrve the futll~e. And yet, the:re
is no assurance that that future will be rethercd to makmg human nghts
secure. Nor are the violated put in a position of any authority to sculpt
that fmure even as they yield to projects of national reconstruction of
their biographies and histories of pervasiv~ huma." suffering, which have:
irrevocably extinguished their life projects 111 the htany oftorture, tyranny,
and terror.
I refer here to the devices, barely a quarter-Celltllry old--of truth and
reconciliation conllnissions.13 These mark a moral, and human nghts,
movement forw.ard. No such devicesemergcd in the wake ofdecolomzauon.
lin this day, no imperiaVcolonial power has even thou~~ht it poss.,ble to
apologizt to the ex-colonial peoples! Nor are any reparations ~en Imtlglll-
ablt. VicwW from this perspective, the device-led by the nations of the
Third World-<locs mark :a noteworthy s-ingul:ar moral advance.
At the s:ame time, all this occurs within :a peculiar foml:ati~n of what
must be called the political «o,lom)' oj 'contt'mporary' humall nghlS: That
formation precludes any detcmlination of complicity and culpability ?f
hegemonic world powcrs that insull. arm, and promo~ (or.~thelW1sc aid
and abet) regimes, which thrive all along on austrOphlc poi1tlCS ofcruelty.
And even as truth commissions tend to become the order of the day, ~he
moral negotiation of suffering, thus entailed, remains deeply flawed, 111-
apable of :addressing the tjfi£itnl (austS oj lumlan violatioll.
The processes also remain deeply flawed frolll the perspectives of.the
violated. The violated p«>ples emer~ only as uaffalt'5before C01nprOnllS
tiC
structures ofaccountabiIity, in the shaping of which they are accorded no
primary voiu. Their testimony becomes the raw material for 'national rc~
construction'; their primary suffering and violation becomes 'nationalized
7) Sec Marc Oskl (1997): H arvard Human RIght! Prugnm (1997): pl"1~ilb
D. I.hyner (1997>: John Duggar<! (1999) V7: NellJ. Krm:(1995):JOOllh Shklar (I::::
earlO$ Sanuago Nmo (1996); Martha Mumaw (1998); GwITre:y Robertson (1
An Age of Iluman RightS? 31
aU ~r ~m .74 And without any assurance of:augmenution in the huma.Jl
righb sensitiVIty of apparatuses and agents of national and global gover-
nance, such mor:al negotiation ofsuffering thflves on the tthic c{th, vioI4ltd.
~ny a Buddhist pllliosophcr evoked the Buddhist doctnne of kanma
(comp4s.!.ion) for Pol Pot.~s
Contemporary human fights cultures hover between 'retribution' to the
..,;obtors :md the. displays .of.forgIveness of those violated, manifesting
somehow the e~h,eal supenoTlty ofthose irreversibly VIolated. Ptrh:aps, or
pcrh:apS not quite, the future ofhuman fights depends on how this monl
negotiation ofsuffering is, III the dcc:ades to come, made more inclusive,
participatory, and JUSt , from the sundpoint of those violated rather than
mal of the perpetrators.
In raising these anxious questions, I do not wish to belittle the small
and even si~ificant, steps. ~hlls far ukcn. The praxes of making cata~
strophIC practICes ofthe politics ofcruelty aCCOllnt:able arc akin to the work
of agt'S .th:at build the great formations of coral reefs. Yet, in the absence
ofangUished ne:-v forms of reflexive human solidarity,16 the current WOIl-
drr ofhuman nghts remains fragile.
,. 'Smee memory IS a "ery Imporul1l fxtor m struggle (really; 111 fxt. struggles
cIrwdop a kind of COllSClOUS IllOYIng forward of hIStory), If one controls peoples'
~ one: controls thclr d~IOIsm And olle also ....mro'· .,~., ._ .C
kn irdgc of I _ . ~V .. u ..., _ .•.~ne nee, u.elr
~::I I l(' prrvM>US stmgglc::s... : MlChc:l Fououh (1989) 89 at 92.
deari ~r admlluslrauo n of publIC Ill('mory and fornu of orgamzmg oblivion
~y :rrferred fornu of govc:mMlCe aud )"egJlll(' styles for marugmg pohricr.1
,f lit the VlObtcd hm: their 0W11 hutory. whICh should Kk~ly ma~ this
~ < pcJY.'Cr commgc-m upon moments ofcolhslOn bc:twcc::n thc 'rnr.rr.lti~ truths
pow.:-r ~rxI. lIlsurgem truth ofVlelllfiS', pumng to stress 'the power ofpowt: to
:"-:'; and tonne:nnng fomu ofsute power Itsc:lf, .....hen 'aJlXK)US about :hc:=
1.Ipawm~~. It ISIn the: agony ofpov.~r... .rut the POSSlblhty ofJUSUCC" In~IIs'.
(1994) 28 n 32: Rc:f1ectu)tIs on NamllUve Rights and VlCtmuge', 111 Upc:ndn Baxi
" .
Similarly In aski P:t h
Qlnd,lIon ' _ ng noc- e:1 to expre» pubhe relllon!! (just before the British
Ind Oorfj PTlXttdmg.'S bcg;m) al massIve and flagr:lIIt ~at1ons ofhunlan nghts ("Ycn
~ha:un Invoked Ihe higher ethic of the vml~ted. The South Afncan 1hJth and
1& Vee ~ consundy appc:alcd to Ihe e:duc of fOTglvencg.
• the h~: :..has shown du! the 'lnnct 'NOrld' of the Vlolatc:d 'too m.s history' thai
'RIu ty 1"eS1SUnec to eonfiscallon of lIIe:moty. She aslu:
t kind of hum I .._
~-'IU I an 50 1u,aT1ty can one cstabhsh Wldl people: III thc face of th,
...... on tlat the . I
COrnrne:ntl > I re IS an nnpu.'iC to tnnsform tillS ~ulTe:tlng into a monl
COIkctrvcIY~~n ~here a WAy III whICh OurkllCIIII', COntentIOn, thaI pain shared
1liiy be r.... trarufonned to bear WIllies.. to the monl hfe: of the comlllullirv
....UTtec!Cd> 10 m. f .,.
IIIDunon the . W t l)otlOI1S 0 creallOtl of monl coTIIlllunrty lrnIy we
State :mel SOCiety in the fx-e of such terror? Vttna Das (1995) 19()..1.

28. I ,
32 The Future of Human Rights
, I'd ' I trivcs rise both to the figuration ofthlt J1011'"
Pcrlll.ps thIS50 I 2ntya so 0" 'b I ' n
• I way 'phenomenon ofovertn una IZltlon .
O mptllS4lorand lh~~t 1:run~ f the day, 'the escajX into unindlcublhty''''
Both. in tunl, Slgtlh7' at f g1eob
cn
trvWf':T that cause egregious hUl1un, and
for the very sources 0 a 1"- " - ••
. violation. Unless these causative. even ongmary POII'f'rs oj
human nghts. d ' __~ by the power of human nghts to prevent
'tlditlJi tllil stan conlTOlllrU . d I b
' ' d 'b'I''Y' the ·ulOre of human rights must, rem:
un cep y 0 scure
'umn lCt2 I I , I'
as well as insecure:.
T7 Oclo MarqlUrd (1989) 22-37.
711 Ibid., al 49-57.
2
Two Notions of Human Rights
'Modern' and 'Contemporary'
I. Authorship and Ownership
T
he dominant discourse presents the very notion of human rights
as 'me gift of the West to the Rest', Not merely arc the terms used
here problematic. but equally SO is the posited relation among them which
is susgestive of a twofold capability/prowess in the 'West' ofindependent
oriamation and of graciolls generosity, I lowever, the meuphor of 'gift'
rcnwns radler esotenc when we recall its preconditions for generosity
include wholesale theft of nalions and enslavement of peoples in the
fouoding moments ofcolonialism1 and in some recent moments of nco-
coIonw ckvclopment, where the 'gift' emerges 111 terms of new forms of
wa.a1agc, lIlc1udmg the regimes of trade, aid, development, and human
ritrhts conditionality.
1bcnotion ofgiftasa unilater.1I action complicates tbe anthropologically
9aIidated nature ofgift as acts ofreciprocity among coequals. And I do not
nm begin addressing the question of distinguisiling lx:twttn 'gift' and
'CUJ"sc'; mo
l[ is, when the rt:trosp«tivdy constructed 'gift' of human rights
IIands accul3Cd by coloninrion in its myriad forms. Nor do I pursue here
-specific undersunding of the epistemic violence involved in lumping
totDether vast masses ofhumanity, cultures, and civilizations. going lx:yond
- bistoric time of the 'West' and somehow constituting the 'Rest' and,
analogoUSly, the undifferentiated ideolOGical reduction aflhe constitutive
~ns of the West,.21hcing these. and related aspects, remains the task
. a future work, but this chapter addresses, in bold outline. the inherent
Violence of the paradigm of the 'modern' human rights.
_
'"',;&ctkcsoftonquesl and eoloni7.atlon relilaln Inconeeivable of descriplion in any
2 allgll;tge.
be ~ofeso;or Istv;tn Pngany, Illy dl~hnguishcd colleague al Xr';lWICk. oflcn $3YS that
~ Euro..~ecogtl1tt an)'lhmg Ihat he knows of EUrop<' In my referena: to it, and
~. non formations! ThiS 1$ a precIOUS I'Cmlnder ofdlslmctlon bctwttn the
1
c!lmpen;t1and IUbJuptcd/sumltem rullO'1S and peoplC5 of Europe.

29. 34 The Futurt of HUlU:1Ifl Rights
It remains important to identify at the outset the strong and the weak
hegemonic claims in the stories ofthe origin ofhuman rights. The strong
claim (I name this as the 'impossibility thesis') insists that human rights
traditions 'could only have originated in the West'.' The weak claim com-
prises twO ideas: first. human rights traditions 'originated historically in the
West' (the historicclaim) and,second, human rights 'have been propagated
from the West' (the evangelical claim).· Put together, these three claims
inflect the dominant diSCOUrse concerning human rights both on the
platforms of governance and resistance.
(a) TIlt Eva'lgtiila/ Claim
The point concerning the evangelical claim is not its accuracy but rather
the nature ofpolitics it represents. Both human rights and religious evan-
gelism invite the distinction between 'the qualin- of the message' which
may be 'intrinsically sound' and the 'role of the messenger', who may be
'suspect or obnoxious'.s Most activist communities in the global Somh
regard the role of the human rights messenger (the state functionaries of
the capitalist societies of the western world, and development planners and
programmers including those of the World Bank and the International
Monetary Fund (IMF» as obnoxious. Inded. human rights activism
thrives on its power to demonize the messengers of human rightS. The
quality of the message also constitutes a problem for human rights evan-
gelism because human rights are propagated the most by those vc;.ry
predatory powers which respects them the least in their dealings with other
nations and ~ples. The predatory character ofthe message commences
its long career with the notion that subordinated/colonized peoples lack
qualities that make them recognizably human. The peculiar notion of the
White Man's Burden aimed at tr.msfonning 'savages' into recognizable
human beings who then may be considered eligible and wonhy recipients
for the 'gift' of human rights.
The White Man's Burden, or the 'civilizing', mission, conceals
from vic:w the 1ustifications' for imposition of extraordinary violence
sustained across generations. Immanuel Kam presented this notion with
considerable epistemic violence when he, in manifestly gentle teons.
described all this as a process in which certain 'guardians have SO kindly
assumed superintendence over 'so great a proportion ofmankind'.6 It was
} Joh3n G31tung (1994) 13 (emphasIs added).
• Ibid. (1994).
5 Fred Dallm3yr (2002) 173 (1998) 71-.3
(0 Imm~nud Kant (1784) 32-50.
- Two Notions of Human Rights 35
a kindness that also killed, This idea of t I I d "
I . , . u c: age ocs not dle Wlth
deeo alllzatlon;Itassumes other myriad and at tllnes e ll ' I Ii
even in a V3Stiy decolonizcd world. ' • qua yVio elll arms
I can note here only in passing that nOIJ"U" I " I
I h
.. st 1 Ie aplta ist 'Wild ~t'
bm a so t e socialist ~St' proselytized its v f _._
-
• __ ..I • erslOns 0 mouyng all hununs
mto emanopal4."'" hum:in bemgs. The capitalist 'Wild Wi '
r I . . t est constructed
Its evange lea miSSion as requiring violent reconstitul,on of I
E ro~ n a,h . 1.._ '"' tie nOIl-
U r--'" er, so u...t It may emerge as a worth .
. 'fi' Th" , . y rcclpu=ntofthe noble
gt t '. ~s reconsmuoon proceeds for vast stretches of time and s ace
nurkmg m~ugu....l mimetic riv.alry among the leading Emo .p
who conceive coloniution as ;II moral imrvor",-ve r h pean moons.;
111" . . . 8 r- lor uman progress
IS acquISitive mimesis' translates later into the Cold ttl.. ' h "f
'nO nc" ed w-..r sp eres 0
I uc e. m tum, succe ed by paradi h'fi f
" gI b I' gm S its 0 comemporary cco.
nOllilC 0 a Ization and, now the 'war on I ' H " -
_
gI h . . ' error . Istones of human
n Its t tiS remam msensible outside the glob I . . .
Empires, old and new. a narratlVes/lllstones of
~ocial ist human. righ~ 7vangelism conceived all hum.an bein ex-
~o::!~~;:~lrgeOIS ca.pullIllsm as. illsum~iently human, inviting P!Uits
I d h e rcvoluuoll~ry proJcct ofViolent overthrow ofglobal cap;-
ta Ism an t e transformation ofthe . m- bo -
gl
obal - I' . . msu IClent UrgcolS human illlo a
socia 1St comrade-<ltIzen Thi II ' I
discred' . h ' . scoequa YVIO em project in critically
Th mng t e nouon of'the White Man's Burden' also r«onstituted it
M.a:xp:;;~~ue:led m~s energy ag:unst colOnization llInd imperialism:
Panth
gt: s, Lemn and, later, Mao. replaced the Enligh
eon Proples d ' d-"d I tenment
h . an III IVI ua s became recognizable and sum ' I
unun only when empowered . I IClent y
nation at all levels and beca t~ Vllo ently critiqu~ the bourgeois domi-
imagination of human futu~~~rtICU ators. and earners, ofa post-capitalist
It remains importa h th
addressed h nt to ~o~e t at e socialist human rights evangelism
~ a~ owev~r, the ~Isslon of human rights to the 'West' itself Its
civil a~d d r~;IC~S assailed the capitalist 'West' that vigorously reduced
po mca nghts to the sacrosanctity of the rights to property
's",
• Robe" Young (2001)" flo
""", d ' • u~ventura de SoU$;! Santos (1995 20021" M h
8 an AllIomo Negri (2000). . , Ie x l
Rene Glrad (1978 1986) cd
IrIJme~is th~n mere Iml~tio I I ~K3leS liS collcemmg Ihe 1110T(' complex 1100ioli of
on Ihe Olle h~nd and viol r (Ie r:velops further Ihe rebllon~llIp. betwttn mimeSIS
AcqUI51U~ mirll~1.S m vol enee, VlCtlll1i!9=. and tnrth of the ~red. 011 the other)'
......~I from one 3nother al:~::~~f ifT~rrs where 'two mUllelie rivals attempl ~
~ sU/!&C:Sts dl" " ,~ use they desiglule It dcsrl"1lble 10 One ~llOthe,'
'CQn even SOCl3 t~ tmI be m·--~ by "
~n'. .-.... , y 3 "",n:u thephenomenonofl1umctic

30. 36 The Futurt of Human Rights
. . d raue rights of the people to
and contract; It proselytized collective e~;d cost of b'lliags. Of course,
be and to tc=main, human, ~n at the h . :ained s'"'tic-9 the
' . I th apiuliSt conttptton fern •
neuher the SOCia 1St nor e . d . ctices have varied
d f cvangehsm an Its pra
conditions an contexts 0 . . . ofstates and peoplcs within
enonl1ously 11 tenns ofcoercIVe l.naOl~U~atl~ng the various phases of the
the 'spheres of influence' consutute unn
Cold War. ~...I' histories SOlve to Sl.y that human
I d t ursuc herC' the o;traorumary d
o no p . . ' of future history--complex an
rights evangelism rC'mal~S-II~~~a:~ights millcnarianisms that signify
contradictory. The conflIcted. h d th- 'truly' human condition
h . n ofbemg uman an "-
and rcprese,lll t e notlo r while dialectically providing scope for
diminish.dlfference and ~Iura I~ If far too many violem sins against
insurrectionary human ~ghts ~ I· f I um.n rights both by the
I 1..- muted In tIe name 0 I ,
peoplc lave uo.;en com ....rv historv also records many
. d . "'"Ill powers contempo, .., I 'I
dommant an msur>:,- .' h I· n -specially through the
. f human rig ts evangc 15 1 , ....
a benign practice 0 I ·ghts NGO Human rigllts futures,
. . ' ofmany a Hunan n .
1l1lSSIOnary practices f h wo.d promoting a new global
II be nthepower o t es ,
~:~~r~~~~:~and~ccplcntintde ofthe ploughshare.tha~~~:W.replerushe~
the SOli in ~ys that may harvest future human ngil
(b) nit Hislon(al Claim
. . I " h er remains indetcrminate--even exposed
The 'hlstoncal c allll , OWCV , th. Western' societies and
d tratlon To say that e non-
to contrary emons ' . f h man rights is patently untrue;
I In dId not possess notions 0 u . I ood
cu tu . the idea of being human, and having ng Its, !it
they did. l-~~er, a s-the langua~s of theistic natural
expressed m different la~~ ~h man rights in the 'Western' tradition
law.10 A close I~k at t~e.;gt,n:f~u;anbeings were also similarly deri~ed.
alsoshovtSthat natu~a~ th:historic claim that human rights. tradition::.
One may t~en say . Ties mainly that a particular type
:;~~:;~d~~~~~;'::;i~t:7t~;:si,~~~~T.:i~n::~i~~i:~~:'r~~:~~~j~,~~~
human righu) ongmated t1~ere. . IS IS a . ts
worthy subject for future tllStonans of human ngh .
·hl. Ii I d 1 prophetic rewlIlgofeoovcr-
9 See: Guyla torsI (1979) fOT all 105'W,t u ,an d~Je. n Iloabt;",as (1996) for an
h o;ach~ to tlgl1ts: an urgt
gtllce hc:rwc:to t e: tOo'O appr , ed t 0, 'lQCphst' clemeots Wlth!!l the: bour-
unde:nl<lodlOg of the 'welfare: sate as 111 1
01 1
gtOIs Ideology and pncuce:. ( m). ArvlIld Shaml.ll (2003); t..c:roy S. RoullJcr
10 Sec. fOf elO.111plc:, Tu We:.mmg I .
(al.) (1m).
- Two Notions of Humm RIghts 37
(() 77,~ Impossibilil)l n~is
T he stronger claim sigtlified by the 'imposslbllity thesis' (hul1un rights
tr~dltlons r~l11ain irtlpcwibk of origin outside the West') links causally
the el11~rgcnce of human rights traditions With the rISe and growth of
capitalism. Such traditions, It is said, remam Impossible ofemergence III
the pre-capltalist soci.1fonn.tiOI1$ and socialist formations. The socialist
fonnatlons begin their itineraries by the revolutionary overthrow of the
sancmyofproperty rights as furnishing the quintessenc~ ofhuman rights.
The e;lrlicr social fomlation$ (or modes ofproduction) wert dominated by
conceptions ofhuman dutiesor responsibilities, not human rights. Further,
prt-<~pitalist fonnations lack not merely tr~ditions of human rights btu
even 'his[Qry,.11 From this perspective, certainly, the prt:-<apitalist forma-
tions remain genetically devoid of ide.s and ideals of human rights.
The impossibility thesis may be read on several registers. On a world-
historic plane, it makes a descriptive claim, which is self-validating. If
'hum.11 rights' signify a typically bourgeois and proprietary notiOIl ofthe
human, it necess.rily follows that they ~mer~ only in a capitalist social
fomlation. This leads at least to twO further Implications: neither pre-
capitalist nor socialist formations Illay, by defillitlon, be said to have any
tradition of human nghts and the really IIlteresung dimension then is
provided by the ways III which capitalist tra<iltiOIlSOfhulllan rights develop
over time. Put another way, both theory alld practice of human rights in
the capitalist mode of prOOuction develop III distinct historic modes that
provlde a variety ofjusriCicatory languages for human rights.12 The even-
tual glob31 diffusion of buman rights traditions III the late twentieth cen-
tury CE sits somewhat strangely with tillS Impossibility thesis simply
because human rights evangelism now assumes universality of human
rights, not tethered to any specific histonc mode of production.
On ;J diff
erent register, human rights traditions remalll based on a
ttrtain ontology; self-constitution of a human being. or being human,
becomes possible only with, and within, the idea ofan individual human
u a free and rational agent responsible for her/his choices and, over v.lSt
stretches ofhistoric time, capable ofparticipallon in the deliberative foml
of COmmon life, that is, politics.L
3 Notions of self evell within bourgeois
"
12 See:, for a wnhc-ring crlllque:: of tillS po5mon, IhnaJlt Guh~ (2002).
1 Alrc::.wy gc::oe:ratly nDled 111 Chapler I; sec: Oil$(), DaVid Ingram (2003).
buw
J
1
0 the:: Arislo!thOin sense:, Ihll c:once::lVt"s the: e:lUun as a bemg who mows both
to rule: and how to be ruled, Plulhp 1::1111 (2001: 104-24) dcvc::1op.s 010 lnsightful
lrWYSI$ offrcc:dom as 'fitoc:u for rc::$JlOltsll>lhty' wnhlll which 11 remainsjusllfiable: to
'Peak of collectivltlcs as 'pc:rwns' and 'sc:!v«'.

31. 38 The Futu~ of Human Rights
tnditions of hum.an rights are scarcely exhausted by the imagery of the
individual, egoistic, ~n pannoid sclf;14 ver.;ions of the communi~rian
selfalso emerge (sex, in particular, ChapteT'S 5 and 6). nlese latter vt:T'SIOnS,
however, bear a consldenble similarity to many a pre-capiulist notion
concerning the self in society. and suggest that commUluties foster logics
and panlogics of human dutit$ that overall justify human rigllIS.
IS
The
impossibility thesis, 1suggest, is tOO closely tied ( 0 the dominant diSCOUTk
of the egoistic bourgeois self and begins to weaken when we take full
account of communitarian logics of identity and rights.
No matter how human rights traditions may be thus conceived-
historically or ontologically-the Clpitalist state-fonn emerges, in different
historic moments. as a contradictory site both of negotiation of connict
between different fractions of capital, on the Olle hand, and as the site of
'reconciliation' ofantagonism between labour and capital, 011 the other.16
Typically, the bearer ofrights, the subject oflaw, stands doubly constituted
as a self-detcnninative and as a 'subjected' subjectP Modern human
rights arise, as :l.lready noted, within secularizing State formative p~c~ices.
where the authority to rule forfeits claims to divine, or SCIl1I-dIVlllc
origin.The contest. often fierce, for secure political ~oyahy thriv~s?n rlris-
worldly practices ofpolitics. not otlltT-worldly ~once~tlons ofCOSI~ICJustice:
human rights I:l.nguagcs, logics, and paralDglcs, aflSC only Wlthlll :I. mlheu
where the legitimacy of goverlunce becomes possible within realms of
negotiation among fractions of capital, and labour. The el11ergen~c of
the 'Western' human rights traditions is understandable only wuhln
the dialectical role ofthe state constituted by the imperfecubility ofeither
a collective capitalist or labouring class, outside the ambivalent Clrcer of
state mediation.
II. Consequences
The 'weak' and the 'strong' claims, cumulatively, accomplish a result where
non-Western traditions are considered bereft of notions ofhuman rights.
Neither did they experience the rise of capitalism with which the origins
of,modern' human rights is inextricably interlinked; nor did they atOll1 the
'flourishing of theoretical knowledge [Stll>inur through which European
humanity passed' 011 the way tow:l.rds 'its modernity'.18 Such consciousness
14 Thl5 15 a typically H.ortl~n deScription; Sec, Rlcll1rd Rort)' (1999).
I ~ Sec, Alan GcWlrth (1996) 71- 165.
16 Sec, Uob Jes50P (1990): Nicos Poul~ntUtS (1978).
17 Peter fittpatnclt (1992, 20(1); CostaS Ooutmu (2002).
•1 Emnunud I..cv1nas (1987) 119.
>
Two Notions of Human Rights 39
ofhurnan rights that occurred in the non-WeStern societies is said to be
purelydue to the patterns ofImposition and diffUSion ofthe Enlightenment
)del!> among them. It was the mimetic adaptaoon of these Ideas that
enabled, ~cn empower~d, th~ ~lon-WtSt commumties ofknowledge and
pD"<ocr to IIlterrogate their traditions devoid ofnotions ofhuman rights and
to transfonn these. Even today the Third World of thought and action
contmues to be mimetic, picking up cogniuvt: bits and pieces from the
smorgasbord ~f the critique of Enlightenmcnt from Marx, Nietzsche,
Freud, and their u?canny successor.; such as Hdd~r, Habennas, Rawls,
Fouca~lt, or De.~da. Overall, human rights discursivity, according to the
narraovc of on.~ns, TCmains tethered to the patrimony of the West'
intellectual tradltlons.
The.strong claim furt~er assc.r:s that this ought to be the casc. It maps
the enmc human w~r1d III ambitious hegemonic spatia-temporal terms
that define a nonnative, and narrative, epicentre of human rights in the
'West' and a 'periphery' subject to a series of quakes and aftershocks of
human rights. The 'periphery' is either a supplicant or an outlaw. Eim
it is a 'periphery waiting to receive whatevt:r comes from the West' or~:
constltu~es :I. 'recalcitr.mt evil refusing to receive the word, and goods
and sclVlces that follow through an incorporation as a second class We t'
(for whom a 'harsher treatment may be in order',11I nle strong c1ai~
entads at least three: salient ideas:
•. .ant(;I/ism, with the West as the causal eenter of the world; ImilltfSQ/ism, with
dar kJea tlm ~h:lIt IS boood for the West IS good for the world; and a good/MJ
~m"" margmahzmg CVlI, trylllg to beat evil wuh cru~s or deter it with 110111
~"',
~ 'impossibility thesis' crystallizes the commonplaces ofEurocentric-
~kast, ~ree.cemuries o~d-thought that smacks ofovert epistemic l7Ic1sm.
thesiS disables any IIltercultural, multicivilizational discou~ on the
gmealogy of human rights. From :1.11 this, it is a but :I. short step for the
~~all ~est' to impart by:l. mixofpersuasivt: and coercive means to the
n.eSt tlemftofh ' h n"
SOc II "': uman rig ts. liS III turn also contributes to a reflexive
II
r.a earlllng loss on both sides: the givers and the receivers ofthe 'o1ft'
OWever bee 1/ ' I 0' ,
....... .' ause a t1atwns am ~ples COlli! tn/wlllot! riuhts as tqllal strOll"'"'
~......temlc h T . b · ;:. <S"~'
bon UlnJ Ity remams a aSlc postulate for intercultural communica-
~t the service of the future of human rights,
..
;aoJoh~n Galtung (1994) 13.
~~~~ Galtung (1994) 13. h 1
$ SPbm'''1 to frII/i.u that Ihe~ wotd!i were written
act'n.tmg Second Gulfw,u and the inaugun.1 '~l war "" terror'.

32. 40 The Futu~ of Human Rights
The~ originary meu-narntivc leads to a kind of genesis amnesia; the
'Enlightenment' epoch that gave birth to the hbenl 'modern' nOtiOns of
human rights (especially to human nghts to pro~ny, n1akms the VOWtr
ofa few the destiny ofhundreds ofmillions ofpd)ple). III effcct, g1ob;!hzed
extraordin;!rilycruel practicesofSocial Darwinism, Planned dc~trucllonof
'traditions',cultures,environments, and ptopks was everywhere considered
necessary and desirablc--6~cially during the longdark nlglll of coloniak
ism-in order for til(: ideas aud practices of bourgrois legaliry and rights
to flounsh worldwide. The projcct ofworld soci;!ism, thougl1 inspm~d by
very different visions and values, followed the same itinerary for the
construction of new human futures. So does the project ofcontemporary
economic globalization, where free trade and commerce (so free as to make
the State into a clonc ofglobal capital, manifest througl1 the transnational
corporate capital) arc presented, in the long run, as the harbingers for a
secure future for human rights. Communities in struggle, and people in
resistallce, have contested, oftcn at the price ofunspeakable human viola-
tion, these hegemonic versions of human futures and human righ~.
The future of human rights is serviced only when theory and practice
develops the narrative potential to pluralize the originary mcu-narraUvts
of the past ofhuman rights, beyond the timespace of the Euro~an llnap-
nation, even 11 its criucal postmodern incamations. This work outlincs the
beginnings of a mammoth usk. But it needs reiteration that such an
endeavour must rest on the premise thal a/l IUllionI come tU slra"gtts 10 W
wit ojprol«tion alld promo,",n oJ/wman rigillS. To say this is not to deny dut
the Euro-American discourse made a headstart. from the scvcntet:
nth
century onwards, III dabontingthe 'modem' conceptions ofhurnan rights.
But It does imply that these conceptions (as we see later) were 'tradition-
constituted' and 'tradition- constitutive,21 and wcre consistent With the
catastrophic practices of cruelry towards the non_Euro-American Other.
Since all concepts are history·aden, one also needs to make similar inqulr·
ies, requiring the invention of'non-Vkstern' traditions ofthought in ways
that anticipate and reinforce the contemporary human rights discursivil)'.
The progress ofinterlocution of'non-~tern' traditions lies, perhapS,l1l
the following series of questions:
• I low did the classical traditions of thought (African,n Buddhist,
Confucian, Hindu, Islamic, and indigenous civilizations) configure the
notion of what it meant to be IIIIIIUlII?
11 5«, for all elaboration of thiS inSightful dIstinction, Alasd~lr Macintyre (11}88l
1_11,326-&1.
zz See, John H.. Pittman (cd.) (1997).
Two Notions of Ilumm Rights 41
• In what ways do these traditions rdate human rights to Y.llues of
equality, dlgJ'lIty, and Justice III SOCial and political rdulOllsiD
• To thc exteut that these traditions had no Iingu""',
'od ' . or semIotic
_nvalcnts to the m ern notions ofrights. whatOlhn tro 'ed L_
...,._ _. ,l~ pes carrl tnO!:
bunkn.
• What approaches in these tndltions toward~ J""
be
- - govemanc~ or
educ of~"Cr may said to antiCipate non-Western line rh
......s. i25 ~o uman
, ....b.
• What intcrplayexists between the 'modcm ' and 'conte ' h
. I d - mporary uman
righb anguagcs an those to be discovered in the t d" I h
. , H be ra mona taught
pncuccs. ow st may we: trace complcocity and e _.J "
these? Ontl;wlctlon among
Aside from all this, it is indubitable that the~", d" .
'm I . I" ..... ra mons, 111 confran
caaonWi co Ollia 1
5m and nnpcrialism which ,I E I'g! -
_~'__"''' . ' , I e n I 1tenment though,
~~ lor so long, 1I11l0vated much of thc <YJ • I .
diIcursM TJ I western m man nghts
'IIIIk wb ry...._ Ie a.uer was brutally incoherent of an Indian Lokman
o .....red (Ill the first decades of the twcnti th ya
aaxiacl' the maxi 1 'S . ( If. e century CE) to
. . Uw- It' Th t't1
d.'~'flra} .se -determination) is my bIrthright and J
GIadbi who c":11 ra 1U01" Simply could not comprehend a Mohandas
engcd t 1e early but st'll ..
• Souch Africa Botl h ' I VICIOUS, lonllS of apartheid
diIiaas ofhum~n ri~~e~p~es de~traditiollaltzcd the Eurocentric tra-
a-t American slave F'ed . k' Do
,:n I e turn ~f the ninetccmh centurv a
- . . I ' r nc uglu Thel h . . I'
__ 10 a multicultural tnd . . r erolC resistance may be
"'lbthe...~, _ . Itlon of human rights that resulted d-d
•.... u t'atlonofruct r" ........ es
_ "_""'&" J- ~o IIltenunonallaw 26
whichdel " ed
....."6'.tenmem lega , e glUmat
-...ed forms of cy more powerfully than critical theorv and
contemporary postmod . '1
ernlsms may ever accomplish.
- . fi>r ex;,mpk rh
::"::.:"~-=',~~:::~: ~,:~~,~"~::'~~I:;;-:;:~'T.:~-:~~979J
..._ ulthc pnnclpk ofself-<k I a(' ICVed a splnlwl fOunwtlon for dJr~ pohocal
an a.'peel of$Itugg:e ICtmll13t1on. Fte«lom frOm Jap;ancsc rule for Ko
-i.~ by a ra(ilcaJ Tl'-m~I~:global/llIhtaTlSIII and IllIpenallsm. a struggle fu;
J Garfir ' Stanley T~ll1blah (l964t1on 0 th~ Duddl11st tndll1ol1.
For
Id (1998). ). I lt-nry 1{05eIllOI1l (1998). and gencrally also
...... ~n 1II~lghtful daborallon of II .
No.., 1I10llSof ra;dhnn/lil S ill! plradlgnullc nouons III the Buddhist and
j;~:~"~"~:""~;d:~,"::""~UNSC<' tall ey nlllbl~h (J964).
of III fon... f InStrulllcrus CI1Shrtllll1g Ihe tight 10 5elf-dc'~ .
'U 0 racial dl5(:llmlll _nllln~uon,
Practl ahon, lCCnophobl~, and llllOlcrancc and
Umkd Nauon~ CC$S, akan 10 slavery and forced l~bour, revisited by 'h,
mmu.

33. 42 The: Future: of Iluman Rights
When, If ~r, (given the present mode of production of knowledge
about human rights) the 'originary' historyofhuman rights is written from
non-Euro-enclosed perspectives, the future ofhuman rights will be mOT
e
secure than it is now.
HI. 'Modern' and 'Contemporary' Human Rights
The need for SOme periodiz,:uion ari~ in any approach to the study of
history, and social theory, of human rights. The ordering principles for
periodization are not readily at hand and any constnJcnon ofthese remains
liable to contention. Were one to 'date' (I evoke the multiple meanings of
that term here!) the birth ofhum.m rights with the American and French
Revolutions, one mayweil label the era thusbcginningasthe eraof'modetn'
human rights. The term 'modem' here marks the consolidation of a
Westphalian international law and order. It also signals a whole variety of
ideological ~ustifications' forcolonization and world domination. Further,
it also provides a register of major developmem in industrial capitalism.
In contrast, 'contemporary' human rights begin d1t~ir career with the
end ofthe Second World War, the birth ofdn: United Nations system and
the end ofthe Old Empire, and the rise ofworld historical alternatives to
global capitalism. It signifies the timespace of the beginnings of a POSt-
Westphali;,m political and legal order. This is also an era of the Cold War,
in all its brutal ph~, as well as ofthe momentous Universal Declaration
of Human Rights, :lIld its accumulating normative progt'ny.
Even when. in terms of conceptual and social histories of 'modernity.
the contrast I draw may,faute de mkux, misiead,27 I believe that it offers
a workable OlIpproach to the problem of periodization. The contrast be-
tween the 'modem' and 'contemporary' human rights paradigms that I
here propose emerges as follows. First, in the 'modem' paradigm ofrights
the logics of oxlusion are pre-eminent whereas in dle 'contemporary'
paradigm the logics of indusioll are paramount. Second, the relationship
between human rights languages and governance. conduct and practices
differ markedly in the two paradigms. Third,the 'modem' enunciation of
human rights was almost ascetic; in contrast, contemporary enunciations
present a carnival. Fourth, contemporary paradigm inverts the inherent
modernist relationship between Iwmall rigHIs and Huma" sltjJmllg.
My description ofthe paradigms is distinctly oriented to the EuropC'an
imagination abouthllman rights.An adequate historiogr.tphywill, ofcourse,
as indicated, locate the originatingIanguagcsoOlUmall rights far beyond the
77 At. k~SI In teons of COflcrplU~1 ~nd socl..1 hlslones, see Remh..rdt Kouclk<'k
(2002).
Two Notions of Iluman Rights 43
European spacetime. J focus on the 'modem' pred~1 L __
" bo I . Yuc:cause of Its
desuuctlve ImpaCt, t 1 111 terms ofsocial consciousness. d '
I h be
n orgam.zauon
on that w IIC may named, clumSily and with d....p h I '
, ..... uman VIO anon as
'ptt_' or 'non- modern. '
Countless vanations exist even within the Ell""'....... '
'Vr~ n spacetIme. Moder_
OIty w;I!o constructed there as oppositional to the)n ' , .
tradiUons ofHcllenic thougllt, as any rcaderofLeo S:;,en~ cons~fUlted by
'The Three Waves of Modemity,2tI surely kno"- Th"" ods
germma .essay,
....... e m em typically
nwks the advent ofsecularization ofstate fomlati·.... p ~ ha' , '
C . . ... ra......ccs t t steddlly
but su~ly trallSlonns the dISCOUrse on 'natural righ~' ' h
'h 'gh , . IIUO W at we now
~ as . uman ~ ts. DesPite rheological, iusrutturahst languages via
whICh dlls translation occurs the im.....ratives ofh 'gh'
nd fr d
·· ' r - ulllan rl ts shift their
grou om IVine reason and will to human reason and "':11 Th h
'1!KXk- ' I b I .... . Uste
m a so em races a lugo GrotiliS with his memorable e, h :
__ '-'I' (. . . . . np aslSon
_ •.,-._malfa oa I mSlstence on minimization of rr: . .
Francisc Vi " sUllerlllg III war) and a
o Ittona who valiantly proselytized, against the Church (to the
;no~~~~y~.and the Emperor (to the point of treason), the human
ts.o e I~ l(;enous peoples of the New World. Jerem Bentham's
IIOCOnous crltlques of natural rights and fUrl M _ .> .~
bourgeo h ' ' a'A 5 cnuque of the
Cimr til IS
E uman rights, tho.rOl~ghly secularize the diSCOUrse. At the same
Ibt • , e uropean moder~lty IIlvcnts the Idea of Pr~ under which
A1J
PO.~ICS ofcruelty entailed 111 colonialism stands ethicaHYJ'ustifi d
"liS ISwell known The " wh " ,
Imlpora ' h . . .qucstlon IS ether what I call the 'con-
IIImtofJ ' u: an ~Ights paradigm remains merely the dynamic unfold_
devdopm e m em. Put an~ther way, Standard rutrntives ofhul11an rights
'~ ent suggc=St, and remforce a continuity thesis wh,'ch" h
- ....lIlporary' h . h ' InSISts t at
IDthe tnts f' ~ma~ ng ts c~nstitute no more than aseries offootnotes
dar · ~ III em concepllons ofhuman rights. From this vi .
~~::::~~l a~~ar::I~~ of ~od~rui~ itself leads to stru;:~t;
PI'Ovickd th . etermmanon; If the Enlightenment tradition
c:nticaJ wh e lJ~petus for an Age of Empi~ it is also said to fUrnish the
ICCond ~r:::~al ~or nationalist freedom struggles beginning from the
Phctices ofpol' .Ie n~netcenth century CE. If it justified unconscionable
ForCVerydirne Itl~S 0 mass crucl~ i~ alsojustified insurrectionary pr:uris.
IOwards a new r;:g1lon °
l frh~darkslde 111 the Enlightenment lay the opening
' _ I It. n tillS deeply Clawed .
rnporary' h ' perspective, the emergence of
IleQllogiCS of thell;~an rl~1S merely ~arks the unfoldmellt ofthe imlna_
... OUthne of re lid· o;:tern hu~an.nghts. I provide later in this chapter
.. p lanOn of tillS mIndlessness of the cOlltinuity thesis.
ko Stn uss (1975).

34. 44 l1lt Future of Humm RighlS
IV. The Loglcs of Exclusion and inclusion
The notion of human nghts-histoncally the rights of rMII- lu!. ~
confronted With rHO pc'rpleXities. The first eoneenS the nature of lurman
fUture (the Is question). The s«ond concerns the qUC:;lI~n of who 15 to
be counted as 'human' or 'fully' hunUJ1 (the Ollgh, question). While tht
first continues to be debated both in theistic and secular tenns,?I the M'cond
question occupies the centre sta~ of the modem enunciation of hUlllan
rights. The critena of individuarionJO
in the Europc'a,~ libera.
1 tradlUon of
thought furnished some of the most powtrful cx.clus,onary ld~ IT1 COn·
structing a model of human rights. Only those bemgs were to be regarded
as 'human' who were possessed of the capacity for rt'a5011 and autonomous
moral lvill. What coullted as rt'asorl and I/!jJJ varied in the long devclopment
of European liberal traditiol15; however, the modern p;radi~11 ,of humal,1
rights, in its major phases of development, exclu~cd slaves, hea~hens.
'bart»rians', colonized peoples, indigenous populations, women. cluldren.
the impoverished, and the 'insane', at various times and in var.lous ways,
from those considered worthy of being hearers of human Tight!.. Tht
discursive devices of Enlightenment rationality constituted lht'gramnurs
ofviolent social exclusion. The 'Rights of Man' wt:re human TightS of.,,1
men capable of autonomous reason and will; and va.<;t numbers of human
beings were excluded by this peculiar ontological cOIStnlCuon,11aldlough
by no mealS dle excl~sive pre~tive of '~odernity·..ll . '
Exclusionary critena haV(' prOVldcd the signature UlIle of the modcm
conceptions of human rights. The foremost hiswrical role perfon
ned
by
these was to accomplish thejustificatio" cf,Iw UtYI4Sfifwbk: namely, colouUl/1SfII
2'i The theistic ~ I;fXe the origtns of human namre tn Ihe DWlflC Will; d.-
secular do 50 In oonnllgeocics of evolution of life 011 earth. The dlClS
tiC3PProXhtS.
evw when re<:ogl1lZmg the holiness of all ~anOil. IIUlst on Mln hemg created
~
God', mllgt and. therefore, apabk of perfcroon m ways no Other hemg III the '"
_ L L. · , _ •• ncv<'ho-solluttC ~
IS; secular/SCK'ntlflC appro;;r.cbcs VlCW ml1nall IX'mgs a.~ COInp"'" t'~/~ n pJ
tc:ms co-dClenmncd by hoth generic endowment and envrt)IITleTII and;;luI'
cxpcnment;tlJon. like all other objectS;n 'nature'.These dIfferences could be (~I fIOl"
been) dcscrihed III I1lO1'e iiOphlsricJ.lC:d ~nd wider ways. a t;t.k attempted by ""
lumatural,st dunu,,; 11«. for ClQ.l11pk, the ovel'Vlcw by Julms SlOne (1%5)d 1~
:l0 See l3Iukhu Parekh (191:18) 1-22: lbymoncl W;lhalll~ (1983) 161- 5. UiX" r;I
(2003). 62 n 7' p,tf1C1o'
)1 See I-tcr fltzp~trlck (1992) 92-1<15; Mahmood Mamdam (1996) " .
T11It! (2004). , liS..-ll"~
» lteh.0'1 tr.idmoil5 s.......uhted ."nd mil do. LI1 ontolOoglcal c"n~lTUctiO .....01
r-- , . I-......A >. I f dit' ....-
Cl«ludcd. for c:ompie, umouctublo, rendcnng them ""J"'~ ulC pa e 0
systc:ln: sec: Upendn Sui (1995).
Two Notions of Hunun Rights 45
.. """"",,,ISm That Justification was inherently racist: colonial powers
~ a coJlccllve human nght of 'supenor' ract's to dominate the
'inft'ric-
'r
' one!>. Contrary to the suncUrd descriptiOn ofhbcral rights pan.-
digrt1 that makes It a stranger to the conccpUOIl of collectlvc nghts, the
para,hWl~ of <modem' hUI1l~n Tights marks the bcgI~nin!:? of the recog-
onion ~ll tht' coliCCtlve nghtS of European nations to own other peoples,
~d' terTitoTies......ealth, and resources. The Other In nuny ClSes ceased
10 ('Xist before the 1I11periai law formations as the doctrine of 'ara rll/lfills,
(oUowulg Blackstone'S scandalous distinction between the inhabited and
uninfuhiled coionics.JJ Since the Other ofdle European imperialism was,
by dcfill1tion, not human or fully human, 'it' was not worthy of human
rights; at the very most, Chnstian compassion and charity may fa!;hion
IOIDC' Ikviccs of legal or jural paternalism. That Other. not being hmm.n
or fully human, was also liable to being merchandized in the slave market
or reduad 10 being labour-power commodity to be exported within and
ICtOIS the colonies. Not being entitled to a right to be and to remain a
human being, the O ther was .made a .stranger and an exile to the language
_logic of human Tights bemg fasluollcd, slowly but surely, in (and for)
.. ~t. The clasSical hberal theory and practice of human rights, ill its
~ er.a was, thus, IIlnoc~nt of the ullIV('rsality of rights, though no
IIIIIIFt 10 Its rhetorIC.
1'hto ~tul'1l_ collective human right of the 'superior' races to rule the
::::.: ones IS the only juristic justification, if any be possible, for colo-
... unpcn.ahsm (and ItS contemporary nco-unpenahst incarnations)
• ~ m many shapes and fonns. One has but to read the 'dassic'
0( John Locke. and even to solne extent of John Stuart Mill, to
%""~:~ range oftalents dL"Votcd to theJustification ofcolonialism.34
de: esc diSCOUrses WC'TC dle violent Joglcs of human ecology and
~ll[aJ. logICS that cOIStructed the collective human right of the
IIIo.n ~ SOCletles to gove.m die 'wild' and 'sa~' races. All the welJ-
JIk,ed. tit IC'S .of the .formatlVe" era of classical liberal thought were de-
IDd .....~I e.ogtcs o~ nghts to property :md progress; the state of nature
...., 'iOcICty· soc IDa ' -
lad the .' la rWlIusm combining the mfantalization of'races'
Iltatunty of the s f ' T .
lID CoIoni ' h I tages 0 CIV
I n:auon. The collective human right
fJIod' of~thcess weJl.ordered peoples and societies for the collective
..... 1'Iot I .t as well as of humankind was by definition, indefeasible as
CIrIIItrad.e:- so HI the least weakened in the CIITiOliS logical reasoning by the
lOllS of cvolvlllg liberalism.
~1992) 72-91; ~:c. also, Puncu 'IlIIt (2Q04).
kh (1997); Uday Mcht;t (199!!).

35. 46 The Futun: of Human Rights
V Human RightS Languages and Powers of Governance
T he langl~ges of human rights remain central to usks and prOlCtlC
cs of
govcrn~nce. as exemplified by the constiruti~ elements of the 'modern'
paradigm of human rights-namely, the collective human right of the
colonizersto subjugate 'inferior' peoples and theabsolutist right to property.
The mamfold, though complex, justifications offered for these 'human
rights' ensured thatthe 'modem' European nation-state: (inUlgillN(ommuni_
linon one registerand 007James Bond-typecommuni/iaonanotherregisler)
WlS able to marshal the right Ie property as a right [0 imperiuIII and dominium
The construction ofa collective human right to coloniaVimpcrial gov~
ernance is made sensible by the co-optation oflanguages of human rights
into those ofracist governance abrood and class and patriarchal dOlnmation
at home. The hegemonic function of rights languages, in the :.crvice of
gollfnrance, at home and abroad, consisted in making whole groups of
people socially and politically jllvisiblt. Their suffirhlg was denied any au-
thentic voice, since it was not constitutive of 1mman suffering. 'Modem'
human rights, in their originary narrative, entombed massc!> of human
bein~ ;n shrouds of necrophilic administration of regimes of Silence.
In contrast, the 'contemporary' human rights paradigm (as we shall set
shortly) is ~sed on the premise of radical sclf-detenmnation. It is, there-
fore. endlessly inclusive as far as norms and standards ofhuman nglns are
concerned. In this paradigm, governance may no longer be based on
conquest or confiscations of peoples. territories, and resources. Further,
every human being is now to be counted as human; forms ofgovemanc~
may no longer legitimize themsel~ by practices ofovertly institutional-
ized racism. Self-determination insists that governance be based on tht
recognition ofequal worth and concern for each and every human person-
Further, as the contemporary human rights theory and practice devc:lops
it interprets self-dcternlination by the recognition that each and every
human being ought to have a right to witt. the right to bear witneSS 10
violation, a right to immunity against disartitllUlfiotl by concentrations of
economic. social, and political formations. Rights langlages, no lon,ger ~
tXllllsillfly at the service of the ends of governance, thus open up Sites
resistance and struggle.
VI. Ascetic Versus Carnivalistic Rights Productioll
, ' .
The 'contemporary' production of human rights is eXliberant.J5 1"h1
5IS Ii
virtue compared with the lean and mean articulations of humall rights I
35 See for an mSlghtful (JV(:1'VIew; BUrl5 H. Weston (1997).
Two NOUOll5 of 1
·luman Rlglus 47
..L-~' penod.ln the: 'modem' era, the authorship ofh 'gh
_ nkl ' umann ts
_
conceived fra y III tcmlS that were both $lol«"U"':' dE '
tc ' .. an urocOltnc
• COIItrUl, the procesSt'S of lormulation ofcontempo~N h '
gJ I d
r . ' - I uman nghts
arcUlC"'asm Ylnc USlvean Olten f1luked by inten~ nego L_
f
. tlallon uctween
tbt practitioners 0 human TIghts activism and ofhum~n
f
. " repression. The
aucbonh1p 0 contemporary human nghts remams n,ulu, d'
. .L_ d I f ' u mous, even
widlln un;; ISClP mary power 0 human nghts enunciation exercISed . .
die Unlled Nations and regional networks As a I h ~thin
. Ltc • • resu t, urnan ngh"
eaunoatlons proUicrate, becommg as specific as the 1.- fr '
d
. ' networr..:'l om which
dIeT anse an , m rum, sustam. The 'modern' no"o f h '
,~ h d' I _l. 11 0 uman ngh"
___ sue lspersa ; Ule only major mOvement l.. .
_ _h.-.n f h 'gh f uclllg an mcremental
lIIPII ............ 0 ten ts 0 labour and Illinority rights TI ..
1iesDDWS~dd mhstalled in human rights enunciations is ""~i:~ry~~~ctJVl~
notJ11ef'e" 0 [ ey reach out to 'discrete' and 'insul',' . .. :rent.
_--.I I II I ' .. mmonues th""
QM;.lUtOWIO yncw, uthertounthougJl f ' . , - ,
t o ,Justice constituencies.37
VILJ-Juman Suffering and Human Rights
.... _the end of the twentieth cemu..... CE I k '
...... righ S h ., •we ac a SOCial thea bo
..... but~~rt~~p;e!~~~=_Crit.ically address a whole Zn~ ~~
-*"n.I. .f"~~S' It IS necessary only to highlight the
..... katonc phr:uc ron~ from the f~n Ii
c".J04 U.S. 152 n.4 (1938). lOW OQ(notc4mU"iItdSId/tSV.CaroltM
~ enunciaoons thus cmb
the nghts of me prl child m ~~ IncntlOn very different onkrs of
"'I:;'
ctbt emergmg hUlll.lln ngtn' to 1:;:1 .Uf, mdlgenous peopb, gays and
IQSOrutional rq;iJ1lt'$ refi onentauon), pnsoncrs ~nd mose in
IlIOCUImeoryofhum ' .ugees and asylum-:seckcrs, ~nd children
IiIiI.t: (I) genealogies of h ;m nghts, I ~'sh to deSlgJlate bodlCSof~ h' h
~ ngh d um..;,n nghts m pre-modem' 'lode ' W Ie
~o(bumants l5CUl"SIVC form~tlons; (b) comem • n m , and 'comempo-
tIrfIoraoon nghts; (c) tasks collfron porary doourwlt md subaltern
"'taefta:, of human nghu moven=~8 proJt~ ofengerw:icnng hlUl'Un rights;
tf..... :md hi-tech on lheo ts as socl~1 moveffiCnts; (e) Impxts of
.... IlbofJ of human righ;: and practlCC of human nghts; (f) the probkm..;,tic::
...... npt!. ' (g) the economICS and the pohtica'
_. ~_. . CCOIlOmyof
:~~.:-~-;"~ I,illusttiluve f bod
bee 0 les of refleXIVe kJlowled I
E onlinS I"crementally avaIlable but ges. n selecc areas, tht'SC
~~~!~:, ven as Ihe er"Ol of' nd II ' . remallllll se~rch ora new genre
:: to dl~ppea~ ~ n:mn';to leary .In the Imagin~tion ofsocl~1 thoughl
'
''''I,;'o'.h;;unlan 'rights thea If :nll Im,per.auvc 1fone IS 10 make 5Cnsible
I of human nghry a :r.actlce. Daunting difficulties entaIled
~t the endeavour IS :'::h"Y ~b~~y tins asp1ration. But I
n made by Rlch~rd Falk (1995).t;~ Sh .."(",
In
SS ~n !lOme of mese
, I'll 989), 8owlCmura de

36. 48 The Future of Jluman Rights
task ofestablishing linbges ~twcen human suffering and human rightS.
The modem human rights cultures tracing their pedigree to the Id~a of
Progress. Social Darwinism, racism. an.d patr~a~chy (central to the,Enhgllt,-
enment ideology) Justified a global Imposition of cruelty as natural ,
h
· I d ,· ,39
'et lea. an even Just .
TIle modem liberal ideology that gave birth to the very nouon ofhuman
rights, howsoever Euro-enclosed and no matler how ~iven wi.th cont~­
diction between liberalism and empire,40 regarded the Imprniltton of dire
and extravagant suffering upon individual human beings as wholl.yjusti-
fied. Practices ofpolitics, barbaric even by the standards oftheological a~ld
secular thought formations ofthe Enlightenment, were somehow COI~S,ld­
ercd overalljusufiable by State managers and ideologues, and the !",lltIcal
unconscious that they generated (despite, most notably, the divergent
struggles of the working classes).
Making human suffering invisible was the hallmark of'modern' human
rights formations. Suffering was made invisible because large masses of
colonized peoples were not regarded as sufficiently human or evel.l as
potentially human. The latter invited, whe~ necessary, total destruction;
the fonner, violent tutelage. Although sentient, objects of conquest and
subjects of European property rights regimes, the slave and the :olol1lal
subject were closer to the order of dungs or beasts, whose suffermg was
not Important enough to trump the ear«r of the Enlightenment proJ!:n.
As their lordships ofthe Privy Council succinctly, and WIth elegant cnlt:I~.
put It (in 1919), SOllle natives may be 'so low In the scale of ~Ial
organization' as to render it 'idle to impute to such ~ple a shadoll' ojn,~lrIJ
known /0 Ollr law':'1 Indeed, their suffering had no VOice, no language. and
knew no rights.
Sousa SantoS (1995. 20(2); Wendy Brown (1995); Roberto ManG'lbena Unger (1996);
Shadnck 1
1.0. GUllO (1993), and me prinCIpal arm:ub.lors of Ihe Third World and
International uw Movement (TWAlL) including Anthony Allgble, Balakmhnall
Rapgopal,James Thco Gam!!. Otnora O·Kufour. Uhupmder Ch1011ll. bub NeSSlah.
and Mukau Mutll.
19 ThiS 'Justlficaooll' boomcnngcd III the foml of politics of gl:nocldc III the Th1rd
Reich, often mulling 11 cruel comphcity by 'ordmary' citizens III Ihe worst foullcb-
t1on~1 IIlOnlent.~ of the prCJ;CnI-day forms of ethmc cleanslIlg. Is dIll stllndpol1l1 allY
more cOl1lestltble 111 thc vnite of the WrItings of Damel Jonah Goldhagcn (1996) alld
Richard Wlcsbe:rg (1992)?
«l Uday Mehta (1<mI).
~1 JII "" Sofithml WtodeJU! 19191 AC at 233-4 (emphJ.§ls added.) In contml, Ihe
Ul$IIffititudy IlImlllU wttC: capable ofsuffenng but llielr suffering vns 10 be: amello
nled
by an ~rulOn of me rtghts (as powers) of lhost who ~n: suffiCiently human (lhuS,
the p"lriI1e plInM ~t of Ihe husl».od or the father over women and children).
D
Two Nouons of Human Rights 49
In contJ'2St, the post-Holocaust and post-HiroshimalNag:wki angst
~sters a normative horror at human violauon. The 'contemporary'
human nghts discursivity is rooted in the illegiumacy ofall forms of the
politics of cruelty. No doubt, what counts as cruelty varies enormously
~n from one human rights context/instrument to another.42 Even so,
there are now in place finnjllS lognU norms ofInternational human rights
:and humanitarian law which dc-legitimate as well as forbid, barbaric
practices a.f power i~ s~te as well as in civil society. From the standpoint
of those Violated, thiS IS no small a g:Jiin; the community of perpetrators
rcmaim incrementally vulnerable to human rights cultures, howsoever
variably, and this matters enomlously for dIe violated. In a non-ideal world,
human rights discursivity seems to offer, ifnot an 'ideal', the 'second best'
option.
No matter how many contested fields may be provided by the rhetoric
of universality, indivisibility, interdependence, and inalienability ofhuman
nghts, contemporary human rights cultures have constructed new criteria
ofat least delegitimation ofpower. These increasingly discredit any attempt
10 base power and rule on the inherent violence institutionalized in im-
perialism, colonialism, racism. and patriarchy. 'Contemporary' human
ngh~ make possible, in most rcmarbblc ways, engaged as well as renexive
di"ourse concerning human suffering. No 10n~r may practices ofpower,
abetted by grand social thcory,justify beliefs that sustain willful inniction
oflurm and hun as an anribute ofsovereignty or ofa good society. Central
110 'contemporary' human rights discourse arc vision~ and ways of con-
1Cruct101l of an ethic of power which prevent the imposition of surplus
reprcs~lon ana human suffering beyond the needs ofregime-survival, no
matter ~ow ~vagandy determined. The illegitimacy of dll;' languages
of Imnu.s:c~t10? becomes the very grammar of international politics.
Thedlstmctlon between 'modern' aud 'contemporary' fomls ofhuman
rigflts IS focused in t4king sldfning miol/siy. In the 'modern' human rights
~Fo .
r example: 15 capital punishmenl 10 any fonn and with wh~tcvCTJusriflCltion
& Jlncncr of cruelry? Whrn docs dlscrumn~tlolI, whether based on .....nder class or
taR!:' a~UIl _L, f o· • .
,. Ie mr ann 0 lOTlure proscnbed by International hunun nghts sl~ ndaT(h
and nonns? When may fonns of scxual hara5smenl at (he workplace be de~ribcd as
an upcct of cruel, mhomane. and de~ding trI~~tmem. forbidden under (he currcnI
~mr of Inu.:rnauonal human right! standards and nomls? 1)0 IIOII-COnSCn5Ual sex
PflIctICes Wltiun nurriagc relatIonS/lips amount 10 rape? I)Q JII form~ of child labour
=nt10 cruel practice, on Ihc ground thaI the CQnfiscatlOn of childhood is an
~R'5S;Iblc human vlollilon? Are me~ Img:mon proJeCt! CtCallng eco-cx.les and
• runental dcstructiolv'degradallon ktSofdcvclopmcnul crurlry? Arc programmes
'I1.is
~UIl:S of structural adjusl1l1em all aspcci of the polmcs of Imposed suITering?
range of qucstioos is vast and, undoubtedly, more may be: added.

37. 50 The Futun:: of Hunun Rights
paradigm. it was thought possible to take human rights seriously WIthOUt
taking human suffering ~riously.H Outside the dOl11am of la~ of W1r
betwttn and among the 'civilized' nations, 'modem' human rights rt.
garded large-scale imposition ofhuman suffering ~sjwl and ri~1I11l pursU1l
ofa Eurocentric notion ofhuman 'progrm'. That diSCOUrse Silenced hUIlUn
suffering. In contraSt, 'contemporary' human rights paradigm is anuTUteU
by a pohtics of intemational desire to render problematic the very 'rOOon
ofthe poIitia ofcrudty.
VIIl. The Historic Processes of Reversal
The processes by which this reversal happens in the col1tem~rary era art
complex and contradictory and require recourse to human rights mod~
of reading til(: histories of the Cold War and, now, the new Cold War.
While no capsule narrative is ever reliable, I present here, in bare outline,
five ways that have shaped the thoory and practice of 'contemporary'
human rights,
(a) FragmmtM UuivtrSQlity of 'Collttmporary' I·/I/man RighlJ
It would not be too much to say that the defining feature of the 'contem-
porary' world has been the rise and faU of the principle of self-:4eternu-
nation. Beguming. in particular, its career with the historic assetUon ~fthe
right to sclf-:4etennination in India, the principle g10lnlizes Itself, In the
early phases of the Cold War, through a r:ldic~1 insistence on.tl.1C IlIegttl~
macy of colonialism, Although severely defiled to people hvmS. unde
acnullyexistingsocialism, the Soviet Union promoted sclf-:4etenmnatlOll
abro.ad, through the granunar of wars of national liberation, SocialISt
ideology powerfully discredited j ustifications for imperialism and c~OI1l:
zation, while manipulating a startling level of support among the neW,
'non-aligned' nations for brutal repression in l-Iungaryand Czechosl~
and beyond, . . ' cnC('
The division ofthe rest ofthe world mto twO giant sphercs ofInflu, )
(itselfa cuphemism sheltering unconscionable forms ofhulIlan llol~tgh
,on
had a profound impact on the fonnation of'contcmporary' human ~ I
";
Cd
. . be . ratcti In II
The practices of right to scI - eternunauon came mcaree
r ~ g' III lhe: fof"
4J ~ the I1lIe«'5l1ng analysis oon«tnlng 'mllllmlUtiOn ° luncrlll JrcId4'Jf
matlvc ""nod of'modem' human nghts in Charles 'nyor (1999) 124, 140-3, I IflIIC
...- , ' 'h ''''IlS 10 nilnl
Tayor'l obscrvauon thn In 'eontemporary Onll'5 W'I: ave new rca...... , perh'1-""
luffenng but W'C also Ixk a reason to overrKte the mini~ltil~gof$u[f~rlllg Ii. r I.
best understood in n::buon to the notion of rachc.al evil dl$Cusscd III Chaptc
Two Notions or Iluman Right'> 51
r hcgtmony and domination,'" The 'self' proclaimed to be
%detem1inauon' thus stoOd constituted by the play ofheg"monic
~ This necessarily imphed that d~e birth of the 'new' natlons was
~ also markd by the superpower lin position ofenomlOUS suffenng
~ crudl)', Justlfied by either the progress of world socialism or global
~ In this sense, nco-colonialism is born Just when the practices
of* right to self-:4etermination seem to succecd,4S
Neo-colonialism not merely shaped the context for the birth of the
..... SU~; it also worked itS way to,contain the newly-found sovereignty
oflbe Third World. T he need to mallltain 'spheres ofinfluence' provided
jaIIi6c:atiOnfor nunufacturing. InstalIing, and servicing regimes and cliques
of~ in the Third World that engaged over long stretches oftime, with
~ in all kinds ofgross, flagrant, massive, and ongoing human rights
- .
1be task of consolidation of the territorial boundaries of the former
-.mal sates J>OSC.d another limit situation for the universality ofthe right
. 1IIf'..detrmunatJon, The 'new' nations of Asia and Mriea somewhat
I'~Iy,insls~~ that t~lc.right to,self-detcrTllination extended only
..tiIaIIioru of c1~SSIC c~lomahsl~, avaIlable to their peoples only ona in
IiIIIIIIIIy: to detenmne their collective status as sovereign states within th
••• of ' II . e
II mtcrnauona aw, That fight, once exerd~, was extinguished
,. future times; .thiS pmumed that the 'Iogic' of colonialism which
... aU sorts of different peoples, cuhum, and territories vessels of
...... unity should continue in the post-colony. The postcolonial state
tomehow to erc-ate-()Ul of many natlon5-a single 'nation-statc,.46
,"': 'Monroe,Docmne' of tbe Umted SQles soon round It'> countcrpan in the
DoctrlDc , unredeemed by ,'" prmCiples of .L. "-__ .L _I, ". .L - ,. r
~ world, U"" ..............1
.. In UlC VJslon 0
~ and forces other than idcoq,'Yalso mflucnced the poliocs of5upe~r
~ss;,bc7fior mfluenct also rmrked the Impenal scramble rorworld resourca'
Uai.ed';:Sl uds, IlOQbly ods, mmenls, forest W'Calth, IIItc~tlo[,J1 WltefWlly.'l·
~ A~ns C}u,~r was, thus, obscenely mampulucd, for example in ~
.........._ ' , w-fla, Congo and t"'-. .. ~ • •
~_ 1m '.' ' ....5t ""Ian Ctlse5- rnana~mem' 111 superpower
_
pcn;Ulsnl HIQtmtro tsclr II h
of$Clf..d..: ' I a over ag,ull 111 t e pby or the theory and
lIcoIoruu
·tcmllnanon, The dccololllzmg world w.lS m thc process ""'" ~""'in
.......... tlQI1. Sec Adllile Mbc be ' ,.- -",.. ,
-~ of the 'sPCfi' fi m (2001) ror a VIVid analy.'ll~ III Ihe MriQn
N"..,,, I h
Cl IC orm or moblllu uon or space and «'SOUrce"
, t lin t e l<ic:ol<><neal ' r .
aid lito r -"" n::cQlI1posmon (I thc world, the inlu~uon, by Nehru
"--_ .° a non-ah'''led c . r .
--.:tnJlOt;ll ' I "" OmmUllity 0 Stltcs played ~ highly creationiSI role
tbc U:b'!~u~an rights. It dcployed the symbohc apll<ll of the voting
'':=:::;~ 5bnda:.:;ora Gctl[:nl Assembly to improVJsc nchly the creation or
, debT-. f~ or huoun nghl$. These envtSioned a JUSt international
so um1n nghl$ V!OI~dons. created by 5UPCrp<JWet rivalry. To

38. 52 Th~ FUlurc of Human Rights
This enterprise proved hazardous in the extreme both for the new
national governance eliteS and for those who professed radical right to
self-detennmation that now perceived the claims of 'national unity' as a
species ofnco-colonialism. The Cold War provided both a creattve slinlll-
Ius and a bloody limit to this kind of assertion.
The creationist logic of the right to sclf-detennin:uion, however, gave
languabrt: to the aspiration to the politics of identity and difference withm
the 'new' nations. The processes by which the right to sclf-detenninallon
was eventua1ly dc_radicalized WC~ not only interpretive or semiotic per-
formances. They were also exercises in near-complete militarization ofthe
ways ofgovernance, as also ofresistance. The twO supe~rs, and their
satellites, be it recalled, conu-ibuted heavily to the militarization of the
Third World states in ways that instinttionalized the potential of horren-
dous violations of human rights being perfected in that great normative
workshop called the United Nations.
Far from being dead on arrival, the logics and paralogics ofthe human
right to self-determination brought to the contemporary worlds of power
new forms oflegitimation crises and democratic deficit. At the samc tillie,
from the standpoint of those denied sclf-deU!rn1ination, the postulate of
universality ofhuman rights emerged as a deeply fragmented notion. The
vaunted universality of the right to self-deU!nnination thus stands frag-
mented in the ~ry moment of its enunciation.
(b) Tht Cold J.%r NawraliZlJlion of H,mum Rights ViolafiotlS
T he politics ofhuman rights in the form:ative era ofthe Cold War invented
its own ways ofnaturalizing (or de-problematizing) human suffering. The
Cold War, consistent with the traditions of politiol cruelty in the Euro-
Atlantic stateS, restructured the modernistic criteria of exclusion. Those
suspected ofbcing 'communists' in the claimed spheres ofthe 'Frt:e World'
and 'bourgeois sympathizers' or 'capitalist roaders' in the claimed spheres
of the socialist world were subjected to permanent states of emergency:
the rt ign ofterror and genocidal practices ofpolitics. Enemies of'dem
oc-
racy' in one sphere or of 'socialism' in the other were txtludtd from the
be sure, the rcgllnes m the: Third World also, and at the: n me time, deplo~d ,he Cold
WAr Justlficauon~ for voiltion of hUlmn rights. In this period of the Cold WJr. we
sec the: e:me:~llCe ofcontndiction betwet.:n human nghts norm-c:rcauon at the: global
level (politlcsforhuman "ghu) With acla,m, In the name: of"~tlon-bulldlng'. 10 v,ob
te
thete: Wth Impunity at home (politics of human righu) . The unive:rsality of hu~
righu geu fractured all over ag:un along the :lXlS of nonn-c:rcatlon and e:vcry<UY
violation.
Two Notions of Human Rights 53
newly proclaimed human rights nonus and sta da ds k
continuiN wi hi' ad n r ,mar-
'I ~ t 1e m ern' in the emergent paradigm ofthe
"''''1'''''
,''1.' hU~1a1l rights. Human rights acquired a fragmented '
Wlthm thiS eme~llce. um-
'.N' ",,.."";0',"' pass. these word~ I~ the sense of lived histones of
the hberal as well as soclailst societies. These presented the
of the US McCarcl!yism as 'natural' in the ~)'Stematie nus-
ofthousands of communists' (in I ,d " .L
I onesla 10 u le 19605
one example) or reigns of terror in the Soviet Umon and
.......,sta'~. Ov~rall, new for~1S of governmentality by death and
IOIDOOO,POfol"'""c.
s h us emerged." The concentration camp emerges as
..... eM egemomc goverrunce, providing a 'lIybnd oflallJ (md
two Imru }wve b«Ol1lt indistinguishable,.48
....rp,is;,,~ly, herOIC indiVidual and mass resistance ensued d '
repres .' T1 ' ' espue
m SIOI1 . . Ie contemporary' human rights-in-the-
uch to the practices of resistance and martyrdo .
:~~:~;~7:i~~:'~:~;~'~:~~:i~:~ ' m, agalOst
the vOICes ofthe violated. The
. to emerge as a force questioning the might
. Not to understand the ways in which cllis
the very future ofhul11an rights. Those who would
,::~:-;~~~ontem~rary human rights only in terms ofimer-
iii do O-pohucs of desire, ignoring. thus, the human
a great disservice to the future of human rights.
(() Otulalvry ofRtJ(lsm
human normativity shows a ~markable, even
~~~~~~~~~~::~~:~'~~:';j of institutionalized state racism.
; ' . . . . Declaration on the Elimination
Con'- ' Dlsctlmmatlon. 1%3. and t nding with the Inter
.....ntton on the Sup , d ' .
1973 pression an PUllIshment of the Crime
rife ,:resentS a memorable human rightS convergence even
cam
WI:i
supe~er .rivalry and discord. The articulation of
.,......."p, gtlhagamst raCIsm, all forms of intolerance and xeno-
I" ,Urt er a whole vaTi tv f ' . '
standard I ' h Ii e'l 0 IIltcrnatlonal human rights
~;; lIC
o
0 t~n reflect (though, at times, also lead) the
CO self-d ~ pies III stntggle and communities in resistance
,.~teT~l1natlOn, thus. begins its IO
llg march towards th~
S_te lorms.

39. 54 The Fururt of H Ullun Rights
The recent United Nations Conference Ag3inst Racism (Durban,
20(2) suggests how intractabk the taSks of combating 'racism' after aU
~nulll. Its dclibcratiollsle..ding to the Declaration and Plan ofActIon wt"rc
polanzcd by activist and South govemmel11l.1critique-and c=vtn dcnun.
dation---of the Stlte of Israel for its conduct towards the PalCSllllLJIl
people'sJust aspirations and for the violation ofthcir hum:m nghts. Indeed,
the considerable evidence: of anti-Israel sensibility that has led an b radl
scholar-3Ctivlst to dub Durinn as 'the anti-racist' racist conferencc'.4'1
Unfortunately. as wdl dIe 'Islamophobia' in the: ~ of9!t t also enacted
at Durban some im~nnissible racist reconstruction of imageries. Further,
the claims for rcpantions for historic injustices (including slavery) raised
uncomfortable concerns for those who specialize in addressing the COil-
temporary forms of 'racism' rather dun their historic lineages.
T he critique and counter-critiqtlc, ofcourse, makes a serious contribu-
tion when it condemns all fonns of new global racism in emergence via
a series ofxenophobic and intolerant discursive feats on all sides. To review
the entire Durban proceeding is a taSk for another monogn.ph. True, a
social theory ofhuman rights devoid ofcridcal race theory ill-serves human
rights futures.SO ll~r, it also seems to lack dIe resources to fully address
critiques. and counter critiques. of both aggressive and cruelly Violent
forms of Zionism and the assertions of Palestinian sclf-detcnmnauoll,
these Vlolent spirals of r:lIcial hatred, xenophobia. and related forms of
intolerance. These remain scarcc::ly fully uldrcsscd, or redc<:mcd. III the
p~nt view, by passional engagements and enngcments, even when
inevitably enacting constantly bloodied and animated, intcnsely partisan.
understandings. The futures ofoutlawry ofracism, thus, offer an obsunatt
agendum for contemporary humall rigllts fonnations, shot throUgil with
violent constitutive ambiguities without any promise ofendings, rendered
the more intransigent by the violent racial stereotypes marking enactments
of dIe new 999 years-type leasc:!purchase of future histories of racism.
xenophobia, and lslamophobia throUgil the languages ofdIe 'wars "fterror'
and 'wars Otl terror'. Even as dIe nomutive movemcnt outlaws institution-
alized racism, including thc apartheid state fonnations, it also S(.'CIlIS to
relocate these on fCgisters of the ncw politics oj, and for, human nghts.
I low. amid....t aU this, maya ncw 'Reason' for human rights be fonll
ed
and enYJOlllbed widlin the 'Unreason' of globalization and its manifold
~ Sec, Anne lt1~f~ky (2002) 65-74, who wntet: 'Durb~n ga~ us aJ1u_Sel1l1U~T1
III the n':l.Ine orfi!.dltllll! rxi~rn. ExduslOII ~l1d lsoiatlOll of the Jewl~h $Ute III the t",lll(
or tTIultllnerah~m. Durban provides ~ pbtfonll of h~te and VKlk:lv;:e, wluch llIsht ttl
be de;lCtlvatcd down before It corrupts the: cnUK' agerl(b or the Unlled Nall
oui
.
50 See the analYSISin l'atnru TUitt (2004) 1- 20. 37- 55.
Two Notions of Human Rights 55
~ms' is indc<:d a question that may well defiue d f: d fi
the futures of human rigllts. ' e ace, or e raud,
(d) Tht Marxitm Critique
The Marnall critique of boUrgeoiS human righ~ fi .
I
P,. . onnatton also umvcr·
sahzes Itsc In exposmg many a genetic fault hne iu th bo .
.c_ li od I f h ' e urgcOIs,asalso
u,.; sOCIa st, m e s 0 uman nghts. In the c t f h .
. . on e)C( 0 rat er sparse diS-
cou~ concernmg M.ano.an contributions (at least in th Angl .
hoi Iy
~') th I e o-Amencan
sc 2f orults to e t leary and histo"" of the fi . f '
• h 'gh . , onnatlon 0 contem-
porary uman n ts, I may here randomly list the folio . f
1lIIpJICt. First, philosophic cottage industry of'left legal' 'd~ng types 0
us aU the virtues of dcmystifYing the Ian'" d "1
m
~oursc [each
...... 52 <' _. d ' . . o·lagcS an r letoncs of human
.....ts. 0.>«011 , post-SOCialist' as well as' st-liberal' . . . .
poK the distinct problematic of recognitioPO f ,fe~1Jmst crUlques
~ . n 0 women s ngllts as h
....~ now articulated in terms ofthe ',ee . . " . uman
(Cbaptrr 6) TI ' d M ' . . ognmolv'redlstnbutlon dilemma'
• 1If;, aooan critiques ofimperialism have nurtured
~'!:;:a~~:rec~td
h~t.has p~omot~d r:lIdical dccoloniution ofthe =r~~
, vane ltmeranes of Its de-socialism 53 Po rdt . .
... coombuted forms of no . . . . u, the cn tlque
nnatlve artlculalJon of I ' .
0Ia' natura! resources S4 Fijih . . . peap es sovereignty
.... Justice, within'w
h
::h'';Inst4l!ls crucial conceptions ofdistributivt"
...... MId standards may be: a ~~e colHcl~p?rary human rights values,
.... dws. powerfully raised thsalII ~o remain Just . The Marxian critique
oljlMia t{hunJlJtJ ri~1Is S' h e ~ -m~portant question, the very question
~ has (d . th'!XI, at east III terms ofnonnative discourse the
iaao.ation of:a~:~ e m.~y p,hasc:s of the Cold WAr) contributed ~ the
_Ittd promori .al constitutional conceptions ofhuman rights protec-
on,nunyaspect.Sofrvv;: 1 ' 1 . .
....... to the M . I ss r_ACO oma constnutlorulisms bear
anoan egacy.
"
!II: ~ Brown (1995, 2003)' Bob Fine (200
g , Brown and f lail (mz' I); Upcndra Bax! (1993).
See, especiall R cy ), Alison M. Jaggt:r (1983).
501 A ) oben Young (2001).
PI-...: ~re IlSung. wuhoul ade I h .
of dat PUI'Jl'Osc1 the rel('Vam ,;'II ate ISlOrlcal analysn, may mislead. But for the
bourgeoiS P . re c,:oces are: the conspiCUOUS a_ncc of rot«tion
_
~ UnIted Naropc
, rty fights III the' Imernatlonal !JIlt of Rlgl," .nd
Pc gh
and IOn5 DI..'Clar.1tJon 10 • • u,rQll
~ Wealth, Ihe Declu:'lIion ~on . rnu.Jlent Sovt-reiSlity over Natural Re-
t.Ie.. -:: the New Intcrnauo 1 Social Progress and Developmellt, the Dec-
Th idhlnfOOl1lt,on Orde~aal~~or~'C?rder. the (aborted) Declaration on the
~ IS appens vanously. j:." e antlon on the Right to DevelopmenL
~:Prtvatc property n~~~~~lCOlomal State form derog:.ucs from the
PUblic rC$OUfCes b ' the Stlte emerges nOl: JUSI as an alloarive
ut as a constltuuonally authoriud .......~ . ..
~~", .....mlf: agenl In Its

40. 56 The Future of Human Rights
Confrontc:d by its own nemesis, the ~stemlmodern tradition ofhum~n
rights has :It long last begun its new long journey ofcritical enga~menl
with its own reactionary human righ ts-violative potential. It has achieved
this partly by a.rrivlng through the long and tOrtUOliS process ofCOI1~truc·
tion of a. welfare.state paradigm WIthin the bourgeois formation in all 115
contradictions and complexity, a difficult history thatJurgcn i la~nnas h~
traced for us 10 his ~rminal 'WOrk.
56
(e) New Fomu of Global Solidanty
The brutal ideological competition for global supremacy created, dialec_
tically, the political space for solidarity on both sides for voices of civil
society to emerge in variegated pursuits of the politics/or human rights.
The histories of transnational solidarity generating new human rights
cultures, even in the most difficult milieux, remain preciolls for readings
of human rights futures. From the present standpoint, 'contcmpornry'
human rights come into existence with the movements for the abolit1On
ofchattel s;!.very, cross-national support for self-determination (at lea...t as
decolonu:ation), the outlawry ofwar as 'politics by other means', and the
expanding arcs ofsolidanty intemv;ning intemational working class, eco-
logical, and fenunist movements. The pattem of solidarity that emerges
is overlaid with ideological contradictIons, and not only through the I1ml-
tifarious contortions ofEuro-Marxism. It raises further difficult questions
concerning the ways of understanding the birth of a whole new form of
global thought and action in which concern with hum:m rights transcends
national boundaries and interlocution of political thought and theory :as
socially and ethically 'neutral' social practice.
S7
All this then awaIts the
discovery of a Foucaldian tpisfertl~ for human rights.
As offering interlocution or critique ofparadigms governance and stlte
power everywhere, human rights become floating signifiers, not embed·
ded in sovereign territoriality. The 'global institutionaliz.ation of human
own nght: It owns and manages national infnstfUCtUral Krviccs, rlluonahu·d enter-
prt~S, and SUIUtOry corponliollS, as well as govtnllllCnt COrnpill1les. Third, III o;omc
SIIUlUOIl~, postcolomal constitutionalism marks a slcady emergence of lhe SI.lIC In tIJ(
forml offinance upluhsm. Fourth, !llela-Ievel SUIC F1Vc-Yeilr Pb,1U bcrolll(: bolh tIJ(
vehicles of nallonal CC01I01ll1C governance as well as devIces servlCll1g humlrl r~
econ01m es. T hc IlistorlCS of pre-globahud South constllUlIOluh~rns n~'Cd rCITI '
from hll1mn tights perspect1V'CS, 111 thIS cpoch of nmp;Jnt globahutloll
56 Jurgen Ibbc::rmu (1996).
~7 1 tu,ve In I1lmd here Ihe: transition from the dictum orlkscartc$: '1flullk, thIft!It'
I .m', 10 the radIcal motto or A1bc::rt Camus: 'I rtbd, rMrrforr WI' arr.'
Two Notions of Human Rights 57
,SI! ' 'fi th -
rights' ,Slgnt les c mter·penetratton of dl(: worlds of the politics for
burna» nghts and the worlds ofpower. The violence ofthe Cold W: d
dle unfoldmg ncw~ld Wu, innovate the politiCS ofhuman fights ~~
I submIt, by the ongm~ and development ofthe Cold'" r b '
___~ _~ b war lonn;;!Uons ue
aboexc=uo;unQW ythe post-Cold War ortheNcwCold m R I I
I
, . ' war. fa po itik.
This capSu e narrative IS heaVIly sugg.:stive ofthe mam ( __'. 1 • .
_h • . h ' ceso VWlfflCtWlthm
whic contemporary uman nghts paradlgnl has emerged. It seems
always the case that thc ('mergent di.seourse on human rights is h '1
JW':I.'>IUC on hum;;!n suffering. C3Vl y
IX. The Emergence of the Politics 'of'
and 'for' Human Rights
lbis capsule narrative also, hopefullv renders I -bl - --
tba tit h' f ' I' egl e my .senpt that IIlSISts
t c. IstOryO .contemporary' human rights ;;!ctivism has its origins in
dat practices ofresIstance 10 the Cold War global fo . . (h - -
a(crud<y Gl b 1 . I rmatlon:;o t epolincs
. .0 a , reglona, nalional, and loe..l human rights str I d
~ments m the Cold Wa . , ugg es an
. . r era wttnessed !lew practices of the politics of
erudry toapOlllt that, at times, converted the whole we Id
'commulllues' of I WI r Into scattered
IIincd. . gu ags. . len reprcsslon was the most severe :md sus-
summonlllg terms Ilk 'liberation' 'democl':lrV' d 'h
ripus' convc'~ i d I ' '--, an even uman
. uhis ,...'" mages an t Ie reality ofaggressIve State·telTorism. It is
. mn!::onc ~mb that th e protc;;!n foctal life ofthepolituJ ojlli/ttUlII rights
1Iinbpan~_stmct1on to the poIitiaJorhuman ngll" ~gins Its almOSI cacsarea~
Pohticsojbuman righ d I th
riabb lOth cis IS cpoys esymbohcorcuhuralcapiulofhuman
P:JbaI gri~ :~d ofman,2gement ~fdlS~ibutlon ofpower, in national and
ntQ aggression a~~:;~buman fights beco,:"e the pursuit of politics-
~ . . y o.ther m('ans. Politics ojhuman rights at times
_ associated WIth terronst repression ofrealms fh
expression h d' be 0 uman autonomy
raImg idC':Q1 ,were lssent comes treason and !>)'Coph;;!ncy of the
~tiona~ assumes the comm~nding height of free expression. And
~ as plotn~cy de~t1y uses III this form ofpolitICS visions ofglobal
No h commandlllg heights for ideological compliance.59
~fol~ except tile mJOlmioll ill hlltllall £en.sibility-;;! rather romantic
,0 coursc-rnarks lhe passage from the politics «if!luman rights
: "'••Id Ilobcruon (1992) 133.
, to a POI~[ that even In tim JO-CIllcd rra ofhmnJn nghtS, fonncr officials
or ~ McCanh party VOICes full-thrmlcdlyseek 10 ~UStlfy' hoTTO
_ ..._ aspirations anJ :;gJIIlC and lhe, vanous lechmques of desublhu uon ~
gtmcs as po meally 'senSible' programmes!

41. 58 The Future: of Human Rights
to the politicsfor human rightS. This new form ofsen~ibility, arising fro",
th . n-· to the tortured and tormented voices of the: ViOla.....
e responSive ...... . ' "''',
speaks to us of an al'tmo~ politics s«king, against the heavy odds of tht
h· . f~, th,t order ofp...............<: which makes the st.lote InC~Illt'n
IStoneso "'_ .. _. '~--. •
tally more ethical, governance progressively ~ust, and power increasingly
hi The stru-..les which these VOICes name draw heaVIly on
aCCQunU e. ~ 'd d h
cultural and civilizational resources richer than those P~I e y the til'llt
and space ofthe Eur~ndosed imagirution of human fights. whIch they
also seek to inn()V;lte. .
The historic achievement of the 'contempo,racy' human ,fights ~lovt.
menu consists in positing peoples' polity against sute polity; or m ,t/l(
assertion and articulation ofvisions ofhurnan future. through the ~~t1~
ofthe politicsfor human rights, tha~ the shrivel.led soul.ofRealpol~tlk m~t
, . I AlII e "me time tillS stru~le ISoverlaId by the IlIStonclty
forever resls . I , t>&' . . .
f ' ' r.lclices of human rights activIsm. I turn In the next
o contemporary p . h ood I ad
chapter to the ways ofthis happening, which c~nstltute t e m ,. met I ,
and message of the 'contemporary' human rights movements, In dttply
heterogencous ways.
-
3
The Practices of 'Contemporary'
Human Rights Activism
I. Leading Questions
The practices of human rig/liS activism emerge differently in the
development of the 'modern' and 'contcmponry' human rights.
,... clcasity, diversity, and direction, and their histories have been a
of much lively discussion. The rich diversity of human rights
,,_wars,norms, and standards and unending flows of interpretation
ItiC"JlC' funher any presentation of the histories of human rights ac-
wbethcr 'modern' or 'contempor<lry'.
• remains Imporunt to understand human nghts activism as a set
'ftnm"'a, forms ofsocial actlon, that engage: the 'labour oftransfonna-
.... do, then the practices ofhurnan rights aCtivism work with and
a s F uY In the present oplllion, human ngh ts actiVism works with the
IW ofhum<ln suffcnng aosing from the demal ofdignity, equal
aDd conce-rn for all hurn,lIt beings. Its transfonnative pnctices
human rigbtlcssne-ss at myriad institutional sites and with divcr-
IWtoIogicai orientations. These rC'main directed to the nomutive
P'T r~ of human ngllts nonns and standards at alllevcls (local, re-
~DIbonaI, supranational, and transnationaVglobal) and further prx-
0I"....!preservatIon. protection, promotion, and renovation and repair
-"hanaan".ghLS nonns and practices. They produce both politics '!land
~ nghts; put differently, they reinforce, a5 well as reinvent, the
Ihia of the 'poilucs of production' and the 'production ofpolitics'.2
SOUnd too abstract for impatient readers. all I need to do is to refer
i;;~.:; (1969) 166. Althusscr offcn a nutcmlist theory ofpl1lCtlce, which
I of tr.ln.dimll~tlon of dctcnnm~te g:.~n TlIW Inaterbl 11110 a detcnni-
a(~fbf(lmutl()n effected by a dctennll1ate human labour using deter-
r rodUCtKIn)'
But~ (1985).

42. 60 The Future of H uman Rights
them to the re<:ent ex2mplcs ofthe Ogoni Bill oflughtS
3
and the Zap:..
Declaration of 1996,4 tllQ
I focus here mainly on a few characteristic features of PnoctlC
contemporary human nghts :activism without, hopefully, eSM:lltiaJIZI~ 01
. 'h 'gh " If ' h d go<
Flfst. bcc:ause uman n ts Itse IS suc a WI e-ranb'1ng tlouon
practices involve many distinct forms of tr.msfonnauve labour; hu~
rights praxes demonstr.l.te that (to borrow a phrase from LOlliS AlthUSsa-)
'all the levels of sodal existence arc the sites of practlces',s Second, wtu~
human rights practices are relatively autonomous they also remain sitUlt1I
within the structure of production,6 It is in this sense that I later (in
Chapters 7-9) variously approach the tendency of conversion of human
rights movements into hmn:m rights markets and the h~avily g1ol»Iiu-
tion-mediated forms of'trading away' human rights, Third, these practices
asSlimc different fornls: thus, one speaks ofdistinct sets or types of prac-
tices, such as political, ideological, technical, and sdentifldtheoretial
practices relating to human rights, Fourth, human rights activist prutictS
raise some profound issues concerning authorship and authority ofreflex-
ive human rights actors,
II. 'NGO-ization' of Iluman Rights ActiVIsm
Almost all contemporary human rights prxtices taU an associative fontL
that of non_governmental org.nizations, The impact ofthe NGOs on Ibr
nuking and working ofhuman rights is so considerable that contempoWf
human rights may ~main unintelligible outsid(' thelT netwOrked practl
CCt
The NGO-isation ofhuman rights is a pt:'rvasive ~ality. And yet the 't'(l
t('TIlI NGO mystifies in each of its three constitutive t('rlllS,
First. as any logical :analysis of the qualifier 'non' makes It imnltd~tth
obvious, it remains recklessly over_inclusive; the pr('fuc foregroU~
its nonsensical character; logically put, the prefIX 'non' would lId
l Ken Saro-WIWol (1992),
4 Manuel Castells (1996), . ' Ahh~
~ I adopt here some features of tr.lllsformatlVe prn:uce deSCribed by tJrPI '
6 An adequately materialist theory of human nghu acUl,~nl doc) ral~ .t>1rd'
queStions coneCnllTlg the 'detcrnllnanolllll the last lllsunce', I aVOId heredllSpli
rtpiJI
Hut I do agree w!th MIchael Burawoy (1985:9) that human rlglm pncu
c
", ",
, . ' d I 'rcbuo ..A
UleJCapahly located wnhlll mIcro-apparatuses ofdomUlanon an I Ie ~ thf1l"'"
latter 10 sute apparatuses' The qUCSti011 has been vaTiously approach k~
Mantian Critique, the bw and economIcs-type theorlzmg, the law Jnd d~aIP"
genre, and, recendy, III erloqucs of contemporary cconOftllC globahU
flOll
,
ovcrvteW, sec Upcndra Baxi (2003) 469-70,
The prxticcs of'Comemporary' Iluman Rig/us ActiVism 61
....1cb~ is not 'govcrnmental'-from squirrels to stars, cleplunts to
With this logicallr nO:lscnsical character, one m:ay want
. . . . rc:ach of the qualifier l1,on by ~y111g that It denot('s any thlllS
-.KESS which IS or o n be said to be: the Other of 'governm "
~" or 'gov('rnmentahty', Put another way, It signifies an~nn I
--.II twCf)'thing unrebted to, or III opposition wuh whatever..... g
_ , , .... may want
.,,)I.an by 'governmem , HOwt'Ver, It IS hard to Specify what stands th us
erleclrd
Much here depends on how we wish to understand th,·o ••
" .- mTee terms,
III _ fine place, governmem IS an Idea that we usually and broadl
...... Wlththestateas r~ferrmgtoarrangementsofpo I Y
d
7 wer over peop es
iCD..tcS.:an resources, The expression 'non-goverl1lnen'~I' .. '
..L __ ' th ' f h ... may Ulen
WiK U1 CIT practIces 0 uman rigllts activisn, NGO
~ f I s con test
UI exercise 0 Sl1C I power, Ilowever not all p . f h
N
~~ I ' ' ractlces 0 uman
U'..n :arc I IUS necessarily adversarial or "onc . I
h . , .. Irontauona ' 10
UJnamtanan and developmental NGO ' k '
I s see to produce
programme~ and policies in ways that contribute
, and even realization, of human righ ts, In this respect
remain co-governmental rather than pwtl-goveTllmental'
foster sustainable 'government' through ostensibl;
whole pr~ctlces by elected officials and state administra_
;
:::~":~lll!~
~I:~~
o~trallsgovcnun('ntal policy and political :actors
lilppcns, most NGOs work Wltiun the .
I ' {j . parameters
,too cw COntest the arbltJ'arllless ofthe notion
Ie. hum;an nghts fate or faith to the acddental ract f
•Iju"'~rntory controlled by a state, Even NGOs th 0
do not go SO f: at pursue tasks
, . ar as to assert With cosmopolitan theory that
so ;accentuated by '~te I be I
equivalent of a feucla " TIl t ra democT:lcies is
OQc's life chan ' H I pnvdegc-an inherited status that
"" .
Founu" (2000, 208-9)
.".,."
ran, In melr ,ntr~l ~1Iggt:Sf5 th~1 gove-mmellt rrm~ins concerned with
;:;:t~~"""'~~;.""';~~
S' SUbsIS::;S t:::',thrlr Imu, thhrlr Imbnc:atJon WIth thingli that
. ,ermory WIt ItS s......lfi I I
Q on', 'lIIen III rebuo r-- .IC qu~ ItIes, c llIl~le,
Ihll1ktnR~nd so on' a ' II ~o other dungs th~t are CUStoms, habIts
~'''',rn. ~lId nllsfununes' nd lIlen III relatloll to IhO$C sull other thillgs tha;
~II (1995) 331-49 S;I
;h as famllle, epldclIlICS. and ckuh and 50 on',
th~t '(Pvtll Ihe su ~2. l3ulldlllg upon tlU) lIlslght, Ch~rlcs Jones
l,'e: need to ask Ph arbltraflness ofone's anccslry; place ofbinh
hkthhtlOd th w y these chara.ctcnsucs 5hould "n 50 fa I _.• '
.k-. at 50IlIeQnc will h h ..... r owa".s
~...y n~ to h ~vc ell er more ......ealth than they can
vc a recQglll7.ably hUIIIJII CXlStence',

43. 62 The Futun' of i-Iuman Rights
The second notion-governancc--signifies 'modes of objectification
that transfonn human beings imo subjects', or the ways III which 'a human
hemg turns himself or herself imo a subject,.9 These modes and ways of
~r In stllte and SOCtcty constitute a subject that is .at oncc ~th 'free'
and 'detenninc:d'. 10 Progressive critiques of human nghts 1T12I1lUIIl that
the languages of modern hunun rights constitute: human rights s~bJt'(ts
as humans who are 'depolitidzro', 'egoistic' vectors of constnlctton of
'an illusory politics of equality, liberty and co~~munity in the d~m;lIn
of the stllte' in ways that nusk 'material condmons of unemancipated.
inegalitarian civil society,.11 Jf so, unrdlexi~ NGO p~~Ce5 of human
rights activism participate in the rc:produ:tlon of subJC'Ct1o,~. and, ,thus.
disrupt any 'pure' essence that may be said to llurk the being of non-
goven1llleutlil'. .
The phrase 'non-governmental' also obscures from VK'W the fact that
as 'organizations' NGOs themsel~ stand infected by governmental and
b'OVernance processes. Most NGOs arc birthed, o~nically o~ throU.~l
caesarian modes. within the specificity of legal auspIces; they enjoy I.cgttl-
mate existence only within the rib
"Ours of the state and law-~ncttoned
associatlonal forms. Even transn:lctional advocacy networks rem,un cxposed
to forms of mn!>governmental regulation, as, for example. acc.rcdltauon
within the United Natious system. Funher, all NGOs have their mtemal
code5 of governance; their internal 'constitutions' embody a diver'>C p~t­
terning of leadership, deciSion-making processes, hien.rdut:$ of power,
and arnnboements of accountability. lndcul, most NGOs themsdvt's face
dilemmas of legitimation not wholly dissimilar to tha.sc that coufroll~t the
very boovcmance structures which they often syste:mlcally oppose.
The appellation 'non.govcmmental' misleads because most NGO-
endeavours remain directed to either strUcmraVinstimtional state reform
or episodic amelioration of state policy and conduct. The qualifier 'n~
governmental' does not also enable us to neatly separate or dlstulgul5
fonus ofhuman rights activism associated with people's movements frotn
those sponsored by self-serving politi~1 regim~ an~ ~le~r~ l~f t~
business, and industry, which also amculate theIT dlstlllctlve ult(;rt'S
the prose of human right....
'J MIchel Foucault (2000) 32(j. . . 9921:
10 See. E.il P;t..~IUbll1s (1978): Wendy BrowII (1985): Pr:ter F.lzpmul;. (
CosQ~ l)oU:I;IIl.l.~ (2000: 183-28): P:ltricia Tuin (2004). rtf'!
II ~ndy UtO'Wf1 (1985) 114. They also onend a JUl"br cnuquc It> con.t"1I1PO
hUfl~n nghts fotm~lIon (as ....Ie nott in Ch~plCr 5), I III"
... . I h~r:tSsnlCnl ~
11 For UOimple Ihe eXJwlU.ng consc.ousness eonccmmg ~X1u !OfI
workpl~ Ius ~n to amlCt (~t leU! m tOOu) WOIYS of NGO Ultcmal adnlU"SI~I
The Practices of 'Comempol"llry' Human Rights Activism 6J
The third tenn--governmemality-invites attention to .. .
..The ensemble fonned by Ihe mSUlUlions. procedures. alla~s ~nd n'flccuons,
cbt calculatiOns ~nd taetlc.s. that allow Ihe exercise 0£lh15 vcryspecific though albeit
complex {onus of ~r, which has at Lts Q~I population, as Its pnnclp;t.l from
of knoWledge politic~1 economy, ~nd liS CSSC'nual lechlllcal mcallS appar.UUSH of
,ecurity...J
Human rights actrvism also crystallizes 'complex {ornts ofpowcr'. It
drvclops its own,often distinctive, {onns ofthis en.scmble. While one may
think that human rights activism s«ks to engraft a grammar ofconduct
by stipulating 'governmentality' standards that control 'conduct of con-
duct', it also, al the end ofthe day, remains enclosed within its fonns. For
example, when human rights action activates judicial review powers and
process it also reinforces 'specific though albeit complex forms of power'
aswell as the 'principal form ofknowledge economy'. That form involves,
ill the words of Claude Lefort, 'development of a body of law and caste
ofspcci.1lists' that sustain 'a concealment ofthe mechanisms indispensable
to dac effective exercise of rights by interested panics', even as they also
prunde 'the necessary support for an awareness of rights'.14 And human
riIfns actIvism stands often silenced by the 'technical me.ns' directed to
die preservation ofthe 'apparatuses ofsecurity' as we now learn yet once
apm m a post-9/I! world ordermgs, despite the recent American Supreme
Court's landmark ruling concernmg the residual due process rights ofthe
~wumo Say incarcerated.
~ te:nn 'organiZ1ltion' also misleads IIlsofar as It overlooks the poten-
..ofdlSOrgalllzcd or spontaneous soci.al action directed to the promotion
... ptotcction of human rights. It over-rationalizes the Idea of human
~
~vi~. The key feature of many a notable NGO (as we see in
~ 7) lies precisely in its amorphous character.
_ Away OUt ofall this perhaps lies in drom thatdcscribe NGOs in te:......r
.... . ·third ' . ''''-''
Clear! .sector , relatively autonomous from the sute: and the market.
~ thiS difference suggests, ill relation to markets. the pronounced
~c ofa profit motive. But (as we suggest III Chapter 7) the di5tinction
Illata n human rights movcments ~nd markets now stands increasingly
~d Funher, were we to develop a Bourdicu-typc notion ofsymbolic
L-... .' the cmphasis on lIon-profit-making characteristics becomes prob-
-aattc. Indeed NGO k " I " n
their , s see to maxll1l1Ze t lelr III ucnce and ~ugmcnt
POWcr-basc!>. The notion that human rights activism shuns power
ci;hel Fuuc~ult (997) 219-2(l.
Ide Lefort (1998) 260.

44. 64 The future of Hurn:,m Rights
and influence IS counter-intuitive as well as coumer-productive. Practices
of human righ ts necessarily aspire to attain counter-power or 110n-d0I11I_
nating political influence th.u we may want to name as a form ofahnlistlc
or fiduciary power, which p~nts ilSClfas being more Ilistorically apablc
to ukt human and social suffering seriously than fonns ofgovernment..,
power. Such self-Imagery enables human rights NGOs to sharply dlStlll_
guish themselves from business and industry cartels and. specifically, re-
ginu'-sponsored NGOs. I suggest later in this chapter tlut thiS, too,
remains heavily problematic. Overall, for the present, I maintain that we
do not have adequate ethnographies ofhuman rights activist practices that
would reinforce the notion of the 'third sector' beyond
its potential constitution by the altogether virtuous exclusion of profit
and power.
III. NGOs as Networks of Practices
Reading human rights practices through the 'NGO-ization' of the world
raises the second question: How may we distinguish human rights NGOs
from otllers? Is it an egregious error to narrow the domain ofhull1an fights
activism to specifically human rights NGOs? OfCOUTSe, tillS question is
entirely snperfidd for the vanishing breed o(readers o(Karl Marx's Kapual
(Volume O ne, C hapter Scvcn) tlut describes in great and grave detail how
partnenihip with progressiw:--or, at least, broadly human rights-inclined-
policy and political actors and the learned professions (including the theo-
logical) emerged to give birth to, and further progressively encode. the
Magna Carta ofworkers' rights through the regulation of hours ofwork.
as well as the progressive outlawry of carccral exploitation. Likewse,
contemporary human rights activist practices demonsmte their highest
accomplishments through creative penormances of partnership amongst
learned professions, mass media journalism, activist academics, the dis-
senting scientists and technocrats. It generates 'contests' ofprinciples and
actors as well as 'webs of influence'.15
On another register, the question o(reading still persists. How may we
ftad these patterns of working together? Do they tend, more often than
not, to legitimate :md reinforce credentials for domination or do they
sharpen prospects for authentically human rights-oriented performances
of power? Indeed, how far may the NGO human rights activism ic.elf
U John Hnlthw;lIIe alld Peter Drahos (2000) 475-301. O ne must also lIIelude
Within tinstile' tlOlmebetwec'1I nauonallTlStltuuons ofhuman nghts:see, SoIU~ orden»
(2004).
The Pnctices of 'Comemporary' Hunun Rights Acovism 65
begin the itineraries onts own ethical corrosion that variously appropriate
huntan sulTering as a spectacle, thus raising the spectre of complicity,
cooPtation, or even corruption o( human nghts activism? In what ways
does an exp:msive notion of human rights activism complicate tasks o(
roistancc and struggle? This chapter and. indeul, much o( thlS work
rc:OUIRS eng21ged with (what some leading literary theorists name as) the
'artXlcty o(judgement'.
More specifically put, how may one read/place, along the axis ofdomi-
ll2r:ion and resisunce, the manifold cross-professional practices ofhuman
rights activism? This question assumes importa.nce on many arenas and
siteS. Coopcr.l.tion as well as ambivalence marks relatiOnal pattems. First,
wbile activists have encouraged and welcomed the emergence of activist
Justices who have. across the North-South divide, made somc distinctive
contributions towards securing human rights within their jurisdictional
spheres, they also remain ambivalent concerning the rolc of adjudicatory
power [ 0 ameliorate thc reproduction o(the old and new forms ofhuman
rightlessness. Second, while transnational human righ ts advocacy net-
.orb ~k to foster collaboration with state and policy actors on a terrain
• diverse as 'ethical' or 'moral' foreign policy, 16 or fair trade and ethical
awnU11ent, or funhereven collaboration and cooperation by human rights
ICtIVllots with international Civil 5C:lV3nLS and natlonal bureaucrats,l7 inter-
national and regional financial institutions, and whole networks ofaid and
clrvelopment funding agencies and (oundatlons, they also remain reflexive,
even dlstmstful, ofsuch partnership among professions. Ukewise. third,
Innsnatlonal advocacy networks that increasingly accomplish human rights
Obtcomes across a vast range o(intergovernmental sitesIS remain agnostic
concerning the within-nation levels o( tr.mslation of the rather heroic
«lDsensual feats thus achieved. Fourth, as we see briefly later in this
chapter. practices ofhuman rights activism become enclosed in a creeping
ICIeIittsm of human rights. This occurs at last at two distinct levels.
~unun rights activism no longer has the choice to remain confined to
JUndlC:ll-political levels when it deals with arenas heavily overlaid by
" I
Ch
11 w::ays that now also ~ve5 w::ays of 'nllht:uy humamt.mamsm'. See. Invid
~~dler (2001).
I pursue sollle o(dlese linklges III thiSchapter and in Chapter 9. Bm 11 remains
IIoorth notmg that III lIl.lny a SoUlh society incumbent as well all rtctlred bureaucrats
~ III wonhwlule efforts at fostering hllllUll nghl~ culturc~.
SlJa.1~~Anuro Escobu (1995);John Bnlthw.ute and Peter Dnhos (2000); l.eslte
'" ( 5); Shlrln Roll (2002). SIgnS ofhopc IIlduck the rontemponry movement.
~nplc, agalll5t geneUC3l1y mllLlted (oods, paru.llly codified now by the Cartagena
cory Protocol.

45. 66 The Future of Hum~" nights
multinational corporate big science and high technology as the ve'Y'on.
sutuuve difficulties in frami ng human rights diSCOurse around biotcehllol~
ogy, digitalization. and uses of nuclear eLlerb'Y for peaceful ~nd war~hkt
pu~s so deeply rt.:veal (sec C hapter 8), Further, the v~'ry dl'i('ourse 0(
human nghts performance and achievements tends to expo~ new forms
of scienusm In the exponenually growing speciahst human rtghts tafIt
concermng tndicatorslbenchmark&lmeasurement. Both the~e ~re:nas con,
front human rightS activism with tasks ofengab'Cmt:m with 'technopolitics',
that is, creative forms of engagement that somehow construct and imt;U
conversation among communities of science/technology With those of
human rights,19
rv. Variety of Activisms
The tlrircl question complicates the ter rain by problcnutizing
conceptUalization of 'activism' itself! It abo straddles many Important
distinctions betweell 'movement', 'resistance', and 'struggle', ActIVism lTUy
be so episo{hc as not to acqUire a vis;age of a movement. It nuy parukt
features of a movement WIthout necessarily signifying even the rem()l:(
reSidues of relations of struggle or rCSI!>tanCC, Or. It may J,cqUire features
ofrcsistance wlthOlit coming ncar the richness ofthe notion of ~trugglc:,llI
In a world ofhistoric MarlClan/soclalist moment, the keyword was 'Strt1ggk',
In the post-Marxian world, we trade in symbols so value-neutral a~ 'movc-
Illcnts,21 or Ideology-lInbued notlOI1S of'reslstance',22 My chOice of ~
temt 'activism' aim!> at eomblfllflg elements of 'struggle' and 'reslstancc
III way:. that allow bC)lh 'objective' social theory-type descnpttoll as wdl
as deference to the subJcctlVines of peoples III struggle and commullluts
ill resistance, In this I almost wholly follow Michel Foucault who "WO'r
' , I effects 0
tains thaI stmggles, properly so called, are 'an opposition to I Ie
power linked with knowledge, competence, and qllaliflCatiOn-struggl
ts
agaUlst secrecy, deformation, and mystifying representatton IInposed on
1
,21
peope, , ' I ' o r i C
Thefouffh, and related but dlstmct, question concems the: SOClo- list
origllls of human rIghts actiVism,
d
t Ihl'~ ISSues.
19 Rlchnd Pierre Cbude (2002) provuk5 an cnS"smg I"cU5)IO!l" 1vill
h
"
u~111 ~lll' I-'
:10 The dlSlmCtlOn~ dr.Jwn here W1l1, [ hope, b«omc ck~r III t c 'u "lq
uffered In thiS chaptcr. UI'CuJp ~
21 !>tt, M;!.nuel Dstcl1, (1996), and for loOlllC nuJOl' dl....gr«Ill<.1U.
12(00).
:u See, U~I~kl15hn~n IhJ~~1 (2003),
n MIChel Fouc~ult (2000) 330,
The PractICCS of ·Contcmpon.ry' Hunun RIghts ActiVISm 67
rebtcdfifib question direc,ts,attentIon to some ~cxin~ I~~ues con-
~ fOrTl1sofhunlOl11 rights acuVls',ll, OftheSt', the dl!>unction belWtell
~ d tfu(wral forms ofhuman nghts activism remalllS ofpal'2l11oum
"...an S Episodi( human r~gh~ activism, that responds 10 here-and-now
~d human rights. Vlolatlon, crUCially dlfccted to dlll1l1l1sh lived!
::::;-tcdhuman suffcnng, mayor may not assume the Visage ofa human
m~ment, Nor may it address the structures of human/social
~,S/nIC/ljral human rights activism that :lSplfes to state and suprastatc
~ reform attends, in the main, to the causation (and, hopefully,
mtrasaJ) ofhuman righdessn('Ss; its intentiorulities and impacts remain
Ilwayl mdcterminate. It re,lrui~ open as,well to the approprianon--even
.-imi1ation-af human nghts msurrecuonary langu~ mto the heavy
.... ofgowlTWlce.
Ferbaps, this distlllction remains one ofdegree, rather than ofland, To
.. rather large examples, episodic activism combats practices of hostile
..... discrimin:Hion and violence and practices of torture 011 a day-to-
.,... in the expectation that incremental progression (now curiously
~. 'gender mainstreaming') in human rights culturc Illay thus be
.. cr.t.whereas structural activism blueprints deSigns ofsocial, cultural,
_potick:aJ revolution (macro-level transformations) that seek to dimi-
_propensities for human, and human rights, vloJatton, The asplTation
".programmeof action writ largt' 0 11 the Convention on Elimination
IIfDiIcrimirution Against Women (CEDAW) (the Women's Convention)
..... a most conspicuous result of structul'2l humnl rights activism,
n:Iwbuus (as Pierre &urdicu described modcs of ~uled disposi-
-).: or the matrlccs, of human nghts acuvism matters decisively for
.,~plation cona:mi,ng the future of human nghtS: thus, for ex-
-..e. b grc;!.t decolomzauon movementS-the harbingers of'contem-
~J' tunan rlghts-differ very greatly from some current movements
-l'CnWn h 'I
Plllir:itsand eavi y resourced by m:e~as aid, trade, and development
--1ICadi programmes and by multlllauonal corporate philanthropy that
-... nghly marks the transfonnatioll of human rights movements into
ts markets,
110e __, V. Questions Concerning O rigins and H istories
"'-- -:-" «I' <cd b d"
'-.unt on ' ut IstmCt, question concerns the complex socio-
...... oo:ns of human rights activism, I luman rights actiVIst praxt"s
CU!tutllly cmbedded and ;!.utonomous, These also remam

46. 68 The Future of Humm Rights
~ndosc:d within n:U1onal political histories, and processes, even when
empowt:red by netwOrks of tr.lIlsnatioll~1 human ngh~ advocacy and
action. Often enough universalistic assertions ofhum:m nghts norm~ :and
stand:ards launch culture wars in which the 'n:aoon:al' human rightS tndl_
nons confront styles ofth~ 'glob:al' imposition of human rightS. I explore
th~sc: :and related issues in Chapter 6. Equally important renulll~ the
qu~stion ofrelationship between th~ 'Old' and the 'new' social movements
and human nghts movementS: How may we navigate the Scylla ofreduc_
tion ofall social movem~ntS to human rightS movc:m~nts and the Charybdis
of reduction of all human rights movements to the merely juridical?
nle question concerning origin further directs attention to the realm
of territorialities. The swtlllh question is this: I low may we grasp theter-
ritories thc boundaries as well as the borders of human rights actIViS
t
formati'ons? How do the changing patterns ofdc-territorialization and rc-
territorialization of human rights activism occur, and with what historic
impact? By de-territorialization, I here signify transportation ofissuesand
arenas of great concern to human rights activists from intensel.y I~a! le~els
to Wlder transnational advocacy netwOrks; likewise, re-tctrltOtlahZ3Uon
SU@;brests dlelr rep;atriation to local settings. In yet an older ~~r~-Delcuze3n)
senS(: tcrritoriality 3150 refers to the struggle for t«ognmon and power
even 311long non-sovereign actors, including the NGOs. Their tmfwan
fonn a secret history of contemporary human rights actiVIsm. But any
hUlll3n rights person who has worked close to the gro.und knows how
S(:rious these can ~. Further, distinctIVe North-South dlfferenuals In the
pursuit ofthe realiZ2tion of 'contemporary' human rights produec oppo-
sition between the 'grass-rootS' and 'astrornrr varieties of human nghts
activisms. These present twO la~ domains of territoriality III terms of
geography of difference and those ~f n~nnative dive~ity. I.low llIay ~~
devclop en3bling n:l.rf2tivcs ofthe hlstoncs ofth~ rel2uonshLp ofcomp
mentary and conllict among th~ NGOs? And further: How rn3Y we tract
the distinction between movements and marketS, and the now stc:!.dr
. h . I rkets'
conversion of human rights movements mto lIllIall ng Its rna .
All this, especially the last question, illvites attention to the prior his·
tories of human rights activisl practic~s. By common convention, tlh'
. . d i d lleJas t1e
3ssembl3gts of the practices ofresistance 3n strugg c stan nal
'old' social movements-which did not have access to the contc1l1pOl"i~
. I d r I · c'"""ncc.
languages ofllllllun tights but, rat ler, pave ways lor t lelr elll ' 1;0- #
The 'old' SOCial movements mclude at le3st five specific forms: the I~OVC I
h r t rnauol'll
11I~1lt for dIe abolition of chattel slavery, 1 e movement lor Lil e
2S Up<"ndn Ibxi (2000) 1l--45 al 36-7, and the htenture therem Cllt"(!
The Practices of 'Contclllpor.lry' Hum3n Right'l Activism 69
bIJIIWIiurian law, the suffragist movement, decolonizatlon movements,
aDd the working class mov~l1lents.26 To name all th~se logether ISto invite
,arntion to their disparate origins. dcvclopment, and futures.
Even to outhn~ these in a Mr~ sketchmg reqUIres extraordmarycourage,
bordcnng on foolhardiness. But this is pr«isely the narrative fisk I
IIn~t e.xpose myself to in order to suggest tltdr rich dIVersIty in relation
10 some formative human rights histones. The first two movements were
tnSPircd by recourse to varying tnditions of natural righb emphasizing,
~a.I1, the right to«,and torrmaitl, hUlmn. The third Signifies stntggles
against gender-based exclusion from civic participation in politics, presag-
ing 2. wider movement for women's rights as human rights. The various
dKoIonization movements generate the principle of self-determination,
~timating the collective human right of the European peoples to an
emp~.
1ltc workmg class movements present the conflicted history of the right
oCassociation 3nd thussignify the proto-history ofall contemporary human
nptsmovements.The struggle for legitimacy and recognition that encode
tIiIIories of trade uniOIl lIlovements everywhere testify to the power of
tDCial movements to constnim and compel the state to acknowledge the
Iep:im;tcy and legality of cenain forms of associauonal activityP This
jIntic.aJiu tion constitutes 3n melucuble aspect of flourishing of almost
C'MI society associ3tions. The working class mo~ments produce new
e.IIen oflegality that recognize the human rights ofworkers: at th~ same
-, this production of politics (emancipation from nnmiscration) also
... to the politics of. production (new forms and opportunities for
tbnination and repression that justify limitations on th~ collective right
tJ«rikc. once upon a time furnishing adescription oftheir 5Cmi-SOIer~ign
~). The relationship be~en juridicahzation and movemt"nt remains
t.decd complex and contradictory; it opens up as many spaces for practices
af'hunun rights activism as it also further ttl{f~s. E~n when articulation
~
~I~ 110 longer politically correct to rIlenllon In tillS llstmg the Great October
~on and IU aftennath,. Bm a future hlstori31l ofhuman nghu may not be thus
~, lbed. She may al~ dlsaggrcglte the 'h~tmg' offered here, In temu ofdcgrees
"-t:aI or·pubhc' panlClpaUOI1, the wlfhm-5y:.tclIl and c)(tn-sy:.tCIIlIC challenges they
~Iy, and put together, pose to the emrenched models of bourge<Jtslpatriarchal
27 nghl$, and subscquclII world 11l~loric IIllp~U.
And cwn today. tlus 5tru~e oom inues III lI1any pms ofthe world. Sec, generally,
":'''."",'
.'"lver (2003) for an mSlghtful R:V1CW oflabour movelllcnu and 'gfol»liu_
11 1870s that traces workmg·.dass struggles III Iheidiomofrestsuntt r.lthcr
'kttrnagc, a '1U.rr.l.llvc of workmg-class fomlauon III wtnch events unfold III a
nrne_space, see, al~, MKhacl UUr.IWO)' (1985).

47. 70 The Future of Human Rights
of human rights movements into sanctioned juridici forms confers an
order of comparative social and political advantage, juridicalization of
movements (the modes ofsute recognition and the attendant pathways of
legal regulation) necessarilyatTects the powcroftheirvoice. Indeed, labour
law and jurisprudence begin to regulate and trim the strength of their
numbers and forms of pre-incorporated social powers of struggle. Even
so, the histories of working class struggles narrate the transfomlaUvc
labour of practices that, as it were, confront the minuscule with tht
prowess of the multitude. In contrast, much of current human tights
production remains the work of human rights elites and entrepreneurs.
Outside of the bloody and bruised history of trade union movements
for the title oflegitimacy and legality, and sitting in deep contradiction with
the pMadigm of 'modem' human rightS, lie the sites of 'anti-systemic'
movements 28 that in the main eng:a~ visions of large-scale social trans-
formation. Such movements profoundly interrogate global hegemony and
domination in all their habiuts and appeal to languages both of human
rights and glob.11
jusriee.29we, however, learn also to read their situatedness,
which de-radiclize somcwhat their space (autonomy and legitimation)
and ideological thrust. Struggles against decolonization, for c)Qmple, thus
tend to becOlm struggles for autonomy in postcolonial nation fOrlltalioos
that operate within the finn collective grids ofterritoriality, representation,
and repression. So do many a current struggles against globalization as
the discourse of the 'brld Social Forum at Porto Alagrc and Mum!»i
so richly demonstrate, Anti-systemic movemcnts become tr.mslated into
practices of resistance directed primarily to refornling the state and global
governance.
The early intimations ofthe anti-systemic movements mark the birthing
of contemporary NGOs.JO They were readily facilitated by the formative
traditions ofmodernity accompanying the advent ofEuro-American legal-
ity, which also provide registers ofcontradiction: for example, the reprcs·
sive denial of human rights movements in colonial possessions and thcir
:za See, for example, G'av;lnnl Arrighi (2000), Andre Con. (1982), Etienne Bali~
and Immanuel WallentCln (1991).
2'1 See, forClCllnpic:, NaomI KleIn (2000); Anonymous (2OO1);Jai Sen, AnIta !lund.
Arturo Escobar, Peter Woltc:tIllal (cd.) (2004); Jai Sen and Mad.huresh Kum:ar (2003)·
J() like lbe: Ptnnsylv'lIlu 50nety (or Promoting the AbohtlOn o(Sbvery In 71$.
the BmlSh and Forelgrt Aflu-Slavery SocIC'ty III 1839, the Ilenry Dunam (1116l) Gcnc:V'
rubllc WeI(are Soc,Cty (Ille pn'(unor of the Imemat/onal Red Cross) and Ihe: UIItf"
national consortium, mclusivc of the: Intemnional FcdeTlltion of Trade UnionS, dIal
kd to the: prototype: HIgh Comml5SlOUCf of Refugees in 1921. See, Karsten NoW""
(1996) 578 al 582-3.
The Practices of 'Contemporary' 1
-lunJan Rights Activism 71
joI1dlCal f1ouriS~ling in the metropolis. In a related, but diffcrent, mode it
~merges dUring the career of the Cold War constitutionalism.
Not all forms ofpractices ofhurn:l.n rights activism necessarily Signify
'anh_~tel1l1c' movcments.
31
Rather, they display a remarkable evolution-
ary profile :l.S, for example, the tripartite format ofconscnsual production
oftntcrnationallcgality via the Intcrnational Labour Organization32 or the
hunun nghtS production under the auspices of the United Nations
systelll. In a sense, thi!. process has resulted 111 the creation of a milieu
of participatOry culture of global governance, which then tends to
univc~lize itself as a virtue of all forms of political governance. If the
proct'5S has incrcm.entally a~gIllel1ted ~he legitimacy of the ever-growing
corpus of the UllIted Nations agencies and auspices, mcluding some
exposed to very severe legitimation deficit,)) it has also, no doubt, created
a puinc tr.msgoverrunental space for global initiative for justice and
...... ~
........
The history of the early precursors ofthe present day NGO connuu_
~ h:t.s yet to be written. But we know at least this much. Firsl, inter-
IIIOOIUI NGOs, III the .ea~ly part ofthe twentieth century CE, though few
m number, were vast III Impact, especially in thc sphere of creation of
IlllimUnonai humanitarian law.J5
Stco/ld, civil society org'lIllz.atiolls were,
• fact, mdlstlllgliishable from the great SOCial movements such as ami-
~ labour, and suffragist movemcnts. Third, clements ofmetropolitan
civil SOCiety, especially Church-based groups and movements, assumed
~er voluntary assoclanonal fom~s in colonial settmgs, in ways
~mforced, as well as reSisted, pr:w:uces of colonial powcr.J6 Amrtll,
~ See. ~perull): John Urall.hwaite and Peter DnhO$ (2OCWl),
11 Brlllhwane and Dnhos (2OCWl) 222-55.
IiOa ~tld I]lnl;: (1996). ThiS rcpon rebles to FY95 pr~s report on coopt'ra~
~ /llhe World Hank and the NGOs. The FY95 refers to Ihe fiK;lI yen an
~ ==:.:,ly41 pt'tCent oflhe Ibn!;: p~ conuancd proviSIOns ooncernmg
on~~I~Ple, hUTIIln righes NGOs have been SOIhent in anlculauon oflhe Idea
~ ~~ Crnnmal Court: sec Stt:vc ClumoVitz (1997) 183,266.1 mcnnon thiS
NGO PUrsuol ~" II1U1tr.1tcs more than ally <xhu thc hlStotiC lon~ty of p~
~ -"'kI tk. Ihe ;l(cOillph~hmem of a very dilTlCuh ~tructural tn.nsfomuuon III
15 A. tt I' See al~, generally, John Urallhwalle and Peter Dnhos (2000).
, Or txlll1pJe the r, "_
"
ClIIIIort.UllI ofN ' creahon 0 t Ie ''''' CI"OSlI and dr~ by an IIltenutlonal
-1921 ~ DOlCOs tlul led 10 lhe CTeaUQf1 ofthe Illgh ComnllS$lOner of Refugees
lIi 'n th ' . td B Forsyth (1996) 235: Steve CharnOVltx (1997) 183.
~mc~~r y 11lstorlCll of CQlonlali~m tlut emer&." as a (onll of mercamilist
~"'I alldehartered JOiI,. .nock companies, the rdationship among European
nu~totuncs Wtte deeply connlCtCd. Willi imposttlOn of dlt~1 rule

48. 72 The: Future of Human Rights
relativdy autonomous, pc'aceful as well as violent, movements fo
-- dd l -- h -bd" rklf.
dcternlmaUOIl an eco omutlon ave contrl ute lar more du.n is
rently understood or acknowledged. Fifth , and not [0 be: ovcrloo~
tends to be: tll(~ case in fragmentary accounts ofthe (:Vollmon of COnte
porary human rights-is tile importance and impOlict of 1I1ternOlitiollOlll fIl.
cialist OlInd communist movements. All this points toOl compc:lllIIg~7
a general history of humOlin rights movements OIlS sociOilI movements, a:
this has yet to fully emerge.
VI_Space.
These prefatory remarks do not fully address the tasks oftheory or hiStory
but merely foreground, and Tather eclectically, some concerns that accom.
pany an understanding ofthe staggering diversity and density of contem.
porary NGOs.l7 I pursue this understanding within widely divcrgent
histories of their formation and development, in three distinct but related
ways: in terms of naming and description; modes of organization and
connectivity; range of resourcing, agenda, auspices, and ideolosr·
This sp:ace has m:ade possible a wide variety of NCO practices. Thnt
practices may be briefly inventoried as follows:
• Fulllrt r"IItPlting: Contrasting with the rather cffete tcrm 'conscious-
ness raising', a whole variety of practices of hUIl1:a1l nghts actiVIsm co-
imagine alternate visions of human future, de-legitimating the relgntng
conceptions. The simple but powerful pnctices interrogaung rarom.
colonialism, violence, and discrimination against women, socialexdusKll'.
and environment;ll degradation, for CX2mple, create conceptions ofaliti'·
native just as well as (tAring human furnres. .
• AgtrUk-sttling: Many NGO practices seek to create an agendum 01
political :and social action :arising out of their conc~ptions ?f ah~":
human futures-the most conspicuous ex:amplcs hewg provided Y
environmenul and women's human rightS movements.
bl role 111 !erP
by the colofllzmg power. missionary actiVity pbyed a conslden e f odrt1 cJ
of spread of IIIe1'llC)' and education in the colonies and III Ihe creation (lb EJ!lrll"
Ihe colO
lllzed to spread Ihe new religion as .'ell as of loyal ~ubje,ts of I ',olurle"
These geocnl observ~uons herewill suffice, given the eJCtnordnlary IIlflCt) dUn"
ity; and contradictIOn III the rebtionshlp between the Church and Ihe suer
c:olollluuon. 05 (ZOOZI ".J
17 1kre I may only refer interested readen 10 the diSCOUrse: of Sail! W~tcS (2fIIln
to the mo re specifICally focused analysu of'petro-lIlOlence' by M,eh;w:lJ.
The: Practiccs of 'Contemporary' Human Right! Activism 73
w: NGOs arrive on the United Nations platforms (:and
~r as first draftspersons or co-authors of human rightS
:.,ooD<""cIEquaIlY
, theyc?mbat with great vi~ur developmentS that
....
. ... the fragile normaUVlty of human rightS.
• ~t.1(jllt: In the still dismal sit~tion of continuing direct.or
sponsoml violations of human rights, NGOs pc'rform a Wide
~ofwks or roles Icadmg to human "ghts Implementallon. These
wrictY .ombudspcrson,expost, investigative, lobbying, and 'ouse lawyer-
~~hC advocacy roles. These.tasks/roles entail dose colla~ration
:;. prinI and dectronic mass media and related learned profeSSions.
• SdidtuUY: NGO practices seek to sustain, even empower, national
"1ocaI--~1 rights activism against pnctices of the politics of cruelty.
JIDMIfuIgloNI condemnation against repression ofhmnan rights activists
" emhas created ~ global ~ulture ofempathy f~r those who struggle
...plerneru human rights agalllst all odds. Emergmg networks of soli-
~n and among NGOs endow them with a fiduciary power,
..unpossible the pursuit ofhuman rights-to deploy the sanitized
Nacioru prose-in 'difficult situations'.
." _ same time, it is abundantly clear that there is not Ot/( but
!III."f6olN(:;CI,_. Indeed, one might say, pc'rhaps with only a slight
there arc, at the end oftile second Christian millennium,
as there ~ human rights. One major issue for compara-
rights is to construct maps that chart the plural,
, territories ofpraxes ofNGOs.Sma these possess
pown-s of self-defimtion, .any endeavour to pattern the worlds
nuy Sttm foredoomed to failure. When ~ add to this the
ideologues, who work with or influence the NCOs, the task
~I the more formidable. And any mapping Will be fraught
probkm.atlc nux of descriptive and prescriptive elements. This
W IIIStmtly evident when one seeks agreement on conceptual cat-
IUCb as the following:
":"'~~It IS, the geography ofdifference (at the levels ofexistential
,~ _, regional, national, interregional, supranational, global);
.--r- In terms of fH' I - d - r -
o_lIea Ogtes, an narratives 0 persistence over
~I moblliutioll of mfornlc:d public oplllion againsl Ihe Mullilaleral
~..~~
"",~~
.m~'~":.,<~~!::~:~_:~~
_
I progresS1
01
1on behalf.ind at the behesl
I I, one 5Dikmg Otafnplc:. Sec Sol Piccouo and Ruth M3ynt'

49. 74 The Future of Human Hights
time;
• Agttlda: classification ofNGOs in temlSofthe specific configuntlons
of human rights they seek to promote and protect;
• Rllidily: marking capabilities for transformation of initially cspouS('d
agenda:
• Rtfltxivil)': providing a register for cumulating apericntlal lcanung_
enhancing sco~ for future transformative praxis;
• AUlOnDrtly: in relation to forces of OXlptation;
• ToI~rarjo": devclopmem ofunderstanding for divcrgence and plurality
within the inner dynamic ofday-to--day working and ofrespect for Sister
NGOs in the same or similar fields of action;
• Aaomr
tability: direcuy to those constituencies of violated peoples,
rather than indirect forms which relate to accountability to donors and
funders for human rights action;
• Exuflrlllt: reflexive monilOring of attainmcn~ven achievements;
• Solidarity: providing sco~ for human rights altnlism, not jrm 'nct-
working'.
In the real world, NGOsare consuntlyexposed to evaluation bydlversc
msrrumcntalitics:governments, the Uni~ Nations system, thc donoralld
funding agencies, human rights advocates, and, occasionally, by cOllsum-
ers/bcneficiaries ofactivism, and even the security forces. I descnbe SOUIt
of these ways III Chapter 7 by the metaphor of human rights 'markets'.
But there docs not exist, to the beSt of my knowledge, any full-fledged
normative approaches to the understanding of the diverse worlds of the
NGOs. This remains important, in the prcscnt view, because ofUIC rapid
emergence oftrade-relatcd mark£t-friendly NGOs who also seek to marshal
the languages and rhetoric of huma.n rights to their own distinct ends-
a.Il aspect that I briefly explore in Chapter 8.
Further. the distinctive patterns ofgovemmentality of NGOs, in turn,
collidc Wlth those oforganized political society (the state/law formations).
This happens primarily on the register oftheory and practice ofrepresen-
tation. Many human rights activist formations radically suggest that actS!
feats of political representation of peoples by the elected officiab do no
l
ex/uulS/ the idea of representation. In this, they diverSify the very idea of
political represclltation that contests forms ofclectorallegitl1nation. ThiS
extraordinanly complcx decollstrucrion coequally acquiesces and contestS
logics ofpower and domination. However, NGOs acceptjuridicalrzauon
of their very 'being', as it were, when they assume 'legitimatc' cxislenct'
The Pracric" of 'Contemporary' HUIlI;ln Rights Activism 75
within the boundarics of law and administntion through formative de-
yjtt5, such as a trade union. trust, charitable society, coopen.trve socicty.
or even a com~any. Thus .cons~ltuted and infected by stltC power that
subjects them III both d.lerr baSIC Structures and ongoing o~n.tions to
ove:n11 governance superrntendence and surveillance, they also contest. at
umes radically, Statc legitimatIon.
All this J~ads to very diverse .p~iccs of the politics of naming that
connmul shlf~. TIlUS, the constitution of self-identity of human rights
acuvist fonnat1ons undergoes a variety ofexigent naming. I r.mdomly list
some as follows:
• Civil Society Organizations (CSOS);
• International non-governmental organizations (INGOs);
• ISOS, a Francophile usage for the INGO;
• Non-governmental Development Organizations (NGDOs);
• Environmental NGOs (ENGOs);
• Indigenous Peoples' Human Rights NGOs (IPIIR.NCOs);
• Women's Rights as Human Rights NGOs (WIIR-NGOs);
• LnbigaytbiscxuaVtromsgender NCOs (LSBT-NGOs);
• Child R;ghts NGQ, (CR-NGo.).
"Ibisalready formidable listing, I have, in an earlier writing, proposed:
• Ptoples Organizations for lXmocratic Rights (POOR);
• Organizations of the Rural Impoverished (ORP);
: Participatory Organizations of the Rural Poors (PORPs);
Saeed Action Groups (SAGs);
• Anti. poo Pa ..
(Aoo..PQP- r, roelpatory Organization of the Rural Impoverished
RPS);
• Assoc· -
lations of the Urban Impoverished (ARP-NGOs)·
• GI ba '
• 0 I Commons NGOs (CC-NCOs).
8wtn this listing d xl .
... also oes not e laliSt the ulllverse. Thus. by way ofexample
WItness the proliferation of: '
• Busllles~ d .
• • 11 UStry-sponsored NGOs (BINGOs);
8uslOe~ d
n Ustry-sponsored Environmental NGOs (Bl£NGOs);

50. 76 The Fumre of Human Rights
• Rt:gime-sponsored NGOs (RS-NGOs);
• The Kofi Annan-led Global Compact NGOs (GC-NGOs):
• The lFI-sponsored!mediated NGOs (IFI-NGOs).
Thest: naming practices have histories of their own. All put together,
they variously !lurk ways of internal differentiation withi.n praxes of
human rights activism. Thcse also provide diverse ~ndersundll1gs ofSOcu.1
and historic melanges of contemporary human nghts values, standards,
and norms.
Attcmpts to resolve difficulties ofnaming practices may seek to ~isen.
gage market-permeated and state-sponsored NGOs fr~m the bcll1g.of
'purc' non-governmental organizations. How.m~y we dlscngage s~clfi.
cally market-sponsored associations-or aSSOCiations sponsored by II1ler-
national coalitionsoftrade and industry-the sUUlsofNGOs? The BNGOs
(business-sponsored non-govemmental organizations) claimed and won
the same statuS as ENGOs, and even outnumbered thesc, at the Kyoto
Conference on Climate Change.39 To take another ex:unple, 1 lud the
privilege ofchairing a massive and marathon meeting ofNGOs at the 1993
Vienna Conference on Hun12n Rights, where the regimc-sponsorcd NGOs
claimed equal time under fair rules of procedure for participation: had
they more substantially populated this Conference, its eventual outcome
would have bee:n wholly different! Regime-sponsored NGOs offer mort
eloquent justification for violations of human ~ights OIl illtern~t1onal fon
than .'lute officials, claiming equal represenutlonal power with people·
based NGOs.
The difficulty here posed is indeed serious: any denial of rcgi":,eI
industry-sponsored groups the starns of NGOs is, at the thre~hold, VIO-
lative of the human rights to freedom of spttch and expressIon and of
association. The reality is that they marshal resources outstripping ~host
available to people's NGOs, and command an asymmetriC21l--even mau'
thentic-voice, in regimes of human rights enunciation; however, the
logics and languages of human rights also at times act SO as to legltllllatt
their power and influence.
VII. 'Anti-Human Rights' NGOs
Precisely because: of this, i~ has bec~me dimc~h to d~,:, briglll :~~
between the pra- and the antI-human nghts practices ofaCtlVISIIl. The
'anti-human rights' is properly affuced to NGO movements that seck to
11Ic PDCtices of 'Comemporary' Human Rights Activism Tl
.-o.fv. for enmple. crimes against humani~ trafficking in human beings
-:;IsGve.labour-type practices, genocide and ethnic cleansing. apartheid,
s intolerance and xenophobia, :;r,nd Justify the worst forms of pa-
~
~I and child labour excessc:s.40 In the post-9!11 world, it also extends
a'ilJClf_Sryled 'terrorist' NGOs which now sprout websites deuihng lethal
::;:t5and cvcntual bloody executions of 'hos~'--:-feats of politics of
Ity that mime equally, but for dm reason not Justifiably, the 'war on
~'wastelan~s ofhuman rights at Guant.mamo Bay and its less arche-
typal reproducuons c1~ere.
Beyond this, however, the expression 'anti-hunun rights' posesa moment
o(danger. Human rights enuil res~~ for fundamenul freedOl.~ ofspeech
and expression. conscience and relIgiOn, assembly and asSOCiation, how-
J(IICftI"COnstricted and constructed in the everyday lifeofhuman rights Law,
policy, and administration. Abov~ all, und~rlying all huma~ rights .is. the
....." righl to interprtf allilumoll nghu. Practices of human rIgh ts aCDVlsm
..mse and enjoy this right in plenitude and justly so. At the same time,
ktioes not speakwith one voice concerning the meaning ofhUll1an rights,
ellen Ilferally; at suke. Thus, those who advocate abolition of capital
paaishment continue to disagree with pro-life communities that regard
..twwia and abortlon as violation ofthe human right to life:; hate speech
6idts free speech votaries; readings that celebrate human sexuality in
.,.. dut forbid same-sex marria~s or related forms of intimacy stand
~ contested. by the lesbigay/transgender activists; and the sphere of
_ buman nghts ofthe child enacts lIlany a combat betwttn pragmatists
.. fundamenulists (that is, those who would outlaw all fonns of child
...... and those who remain content widl its regulation).
The: tempution at name-calling should be: resisted; to nallle fonns of
IIatnan right advocacy as anti-human rights simply because they may
~ from our own preferred interpretive pursuits in itselfamounts to
.- violation ofthe basic human right to interpret human rights. All that
- may justifiably say is that one's proffered moral reading of human
ri&hts(generalizing for the present context the celebn.ted theses ofRonald
~n) possesses greater 'integrity' bec~use it seeks to make the best
PGIIible sense, or fit, with the ongoingdiscollrse.-41 The overall superiority
0( one's own preferred reading of IHnnan rights values, sundards, and
IIOrrns requires serious hen11eneutical as well as dialogical labours. Surely.
• •
~All theliC e'xpresslons now marslUiI a stttled r:1ln8C' or munmg both III pubhc
~nal bw and human ngh~ I"w and Jun5prodcnct. Indeed, lOme' have even
tit<: Stltus of bdngju.l fogt'lU, peremptory ulIf:rnauonal law nonns that no
..~,''''h,,, nuy viobte'.
UPCndr.a Ih:ta (2003) and the Dworlan 11Ie'r.lmre therdn clled.

51. 78 Thc Futurc of Human Rights
one may COLInt this as the coll5titutive. even if problematic, a~pell of
contemporary hunun rights activism.42
What nuy olle say about activist human rights fonnatlons that adopt
violent meallS to achieve their own preferred intcrprcutions of Inullan
rights? A careful response to this question will need to dr.aw SOllie finc
distinctions conceming 's;Ulctioned' and 'unsanctioned violencc',U It .....ould
seem that a 'reasonablc' degree of'symbolic violence' in public protc~~ In
favollr of human rights or by way of exposing violation is no 1
0118'=r
considered wholly illegitimate. By symbolic violence, onc refers to v.l.1l.
daliution, even destnlction ofpublic property (buildings, public transpon
vehicles, govenunent offices, including even police stations, even !lolate.
maintained agricultural nurseries for genetically mutated plants,+! for
example); the practice ofsuch violence may have an indirect impact on the
human rights of those affected; but is not considered a human righ ts but
a criminal law violation, Were a global lIldo;: of public toleration of sym·
bolic violence ever to be prepared, it would at least show that, as compared
to the North, such violence is routine in the Somh where effective cmninal
proseclltion is conspicuous by its absence. In contrast, violence directed
21 private property sa:ms less tolerated,
The borders and boundaries between symbolic violence that may ft-
malll somehow sanctioned and 'real' violence is brought home III !>evenl
modt.-S, These take several discrete and indeed discrqunt fonn...: froOl
anil1l;!ol rights actlVlsm to 'terronst' movements. The former practices
expand human rigillS activism by contcsting die amhropomorphic dIM·
2Cter of human rights; these engage in violent direct ;!oction, IIldudmg
intimidation ;!ond phYSical attacks on die cxpcrimeno.l sites and occa:.ionally
target the homes ofresearchers. According to one estimate: for dlt: United
States, 'more than 600 criminal acts in the United States slllce 1m
causing damagt=s in excess of $43 million doUars' have occurr('d.~s In
42 The same counscl c;rtCnds to minimalist rcadmgl> or bII5I11CS.~ and mdusuy"
sponsored 'humln rights· NGOs, whcther in the fidd ordevdopmcnt, envlronnlcnl,
or glob.ll rree tr.Kk. I explol"C thi5 In 3 different but related wmext III Ch;!pter 9
-0 See, Patncla 1l11"'~ IIIslghtful l lu lysis (2004) 91- 114.
+4 Vivid C
X
'IInplCl sund rumislj(:d by Ihe A/lpiko movemcnt III indl~ Ihal ul'roo{t(l
and deslroyed Eucalyptu.~ plants rrom SUIClIurseries and the rccem snml~r Gr'cllpc;ICC
VCIIIUI"C III the UllItcd Klnbodom in rebtion to gctlt'tlc~lIy mo(bfied rood rl,lIltS. ~
.~ Sec hltp:llU'ufW1,tlmpmgms.o'!l. Thc selic 1IlICstment 10 proll~'(:t II1du~lry..l!) (I
research ~Itct can also be qUltC subst:&nri~1; III J~nu~ry 2001, (pccui ~yl1lcnt o( h
11111lion w~s made by the Ilomc Office 111 thc Ulliled KIIlKdolll to ~5"51 ~;
Cambndgcslnl"C PolICe (or the dTcctive mamgcmcnt or protclilS ~t 1-luII11I1",..:k'11
ScIC
IKt'5, Ca..rnbndgr:-.
Thc Practiccs of 'Contemporary' Iluman Rights Activism 79
~ons ofviolent recourse animal rights protection (and not all animal
.;,)tts actiVIstStake recourse to violence) lhe human rights ofthe scientISts
QlrCher stand directly infringed and threatened, It remains doubtful III such
siO»POIiS w speak merely of symbolic violence.
Violence that assails, and huns or destroys, indiVIdual or group phYSical
aDd psychic integrity is considered as human rights Vlolation when under.
Dknt by state actors; the question now arises whether slllular violence by
pon_state actors may be described as criminal Violence rather than human
.....ts violation. The paradigmatic situation ofmiliuntlanned autonomy/
lC(:tSSionist movements has raised the issue concerning the applicability
olthc standards of international humanitarian law to insurgent groups, at
kasI those that have acquired 'characteristics ofa government'; at least olle
South activist author has now suggested that human rights NGOs may
nen be said to have a specific 'mandate' to remaill (without, of course,
lIIIioning acts of state terrorism against them) at ann's length from such
bmatiOIlS,-4(i Because ofthe fact that processes ofdecolonization and self-
dclnmination may never be said to be exhausted with the: fonnatiOIl of
arwpostcolonial (and now post-socialist) societies, it does not advance any
Ianan rights fUlU res (in lCfms ofthe tasks ofpolicy. dialogue, or solidarity)
IKODdtmn violent autonomy/secession movements as wholly 'anti-' human
...happenings. No doubt, the iSSue ofviolence and subjectivity is very
4I!IIPIex. mdeed.
9(11,and Its aftermath and aftershocks, further complicates this picture
• understandably feady, and heavy, but stili very diverse, recourse to
110..'1«' of'terrorism'. Pre-9/11 approaches to 'definitions' oftcrrorism
....m.ational law were tentative and mired in the semantics of 'terror'
1IIIus human (at least political) 'emancipation'. Post-9/1 t developments
' lI.erlt a rather flattening discourse in which each and every non-sute act/
fIIIhorship of masr/collective political violence, by definition, emcrges as
'-'orism' and, therefore, as massive, Oagn.nt, and ongoing violations of
....... nghts. It seems now intO/luivabl, that any autonomy/secessionist
~ rights-oriented movement may e~ape. the condemned auspices of
Al-Qacda. Indeed, the post-9ft I legislative enactments throughout
1Ducb of the world render even a single empathic act of reading such
~rnents an exercise of complicity with potential and actual 'mass
tliernatlonal terrorism'! Univefsallzation ofglobal political paranoia poses
::ave
a threat to the future ofhuman rights as threats enacted now, and
SUch recurrently haunting cruelty, since 9/11. A glo~l1y fostered
"s"• iU'IJ Nair (199I!) and thc dlJCOUTk or Amnesty Intcnuuorul that hc
*, III a different VCIn, lliVld Chandler (2001).

52. 80 The Future of IlullI;l1l Rights
paranoia thus rc~onstitutes Osama Bin Laden as the arch obituary Wrlter
for thc demise of human rights futures. However, questlomng massi~
violence directed to re-making the world 'safe' for human fights emaLls
no endorsement ofhuman, and human rights, violations by performanCes
ohnass international terTorism'.At stake, then, is the 'unreason' ofviolent
and impassioned commitment stl.nding in contraSt widl dlc 'reason' of
human rights.
Politics of human rights provides rcgimc-<xpedient and easy-mmdcd
realpolitik understanding ofcurrent and ongoing 'wars offerTor' and 'war
011 terTor'. Politics for human rights open up the scope for practices of
reading that respttt the living presence ofthe dead, ;howcver obscure', and
the human rights of the unborn future ~nerations, 'however remote'.47
In the contem porary post-9f1I moment of dread, I realize. that such
summons remain open to state-sponsored indictment of 'terrorism'. Any
serious pursuit of the politics for human rights entails acts of resi~tance
against such forms of imposed 'manyrdom'.
VHf. The Habitus of Activist Human Rights Formations
Politicsfor human rights t'C"news as well as exhausts human rights energics
and synergies. Some activist human rights formations complain ofrxluuu-
tioll (which I name as human rights wtaritU'M). Some suspect. gIVen the
history of the politics ofhum:m rights, sinis~r imperialistic manoeuvm
animatingeach and every hunuu rights enunciation (what I name as humall
rigllls WQrinw). Some activists celebrate virtues of dialogue among the
communitie!> ofperpetr.nors and those violated (what is named as hUllUn
rights diQ/ogism). Some celcbn.te human rights as a new globalfaitl, ora """
civic rdigion (what I name as human rights rvtmgdism). Those who pursue
the vocation ofhistoric redemption through UN-sponsored human rights
diplomacy (through the movin!¥removing of the langua~ in brackets III
UN 'summit' declarations, programmes ofaction) perfonn low intenSIty
evangelism. a feat that I describe as human rights romal1ticism. SOllie hUl11an
rights activists believe in 'aborting' as it were, global instruments favouring
the rights of the global capital opposed to the universal human rights of
human beings (what I name as the 'fret ,hoi,,' politicsfor human rights.)
Some activist NCOs believe that human rights lIornulliv;ty can be beSt
produced by manipulating the itineraries of global diplomatic. illlcrgov'
crnmcntal, regional, and national careers ofthose who earn a living througb
.7
,here p:.lraphme T.S. Eliot (1962) 44. Sec, for a further an~lys'$ ofdlC ",-art!
and em. t<"rror, Upendra 8:00 (2005).
The PDcticcs of 'Contempor.uy' Hum;ln Rights Activism 81
_ symbolic capital o~ h~rna? rights (this I IUme ~ burtQUlraNzQtj,on of
~ rights). Some mSlst (like me) that the real birthplaces or sites of
JIUnUIl nghts arc far removed from the ornate rooms of Internauonal
conferences-being located in the struggles in the farm and the factory, the
~ and the hearth (this I name as human rights rtalism).
1'besI= genres of'contempon.ry' human rights attitudes and approaches
any implications for the construction of tile future(s) ofhum:m·rights.
Jinclude in the narrative voices not just human rights NCOs but also
cbinkrrs oriemed to human rights that exercise a measure ofinfluence on
Ihc contemporary worlds of activism.
IX. Human Rights Weariness
Human rights ~an·tlt'.SS takes many forms. Nonnative weariness signifies
utatr of moral fatigue with hl1man rights languages and logics. Its dis-
dpIttd residual energies contest the very notion ofhl1man rights as a moral
IInpage and rhetOric in different strokes that hastily improvise variations
.. Bentham's robust attack describing natur.ill rightS as 'nonscnse on
..... The idea that the notion ofhUlnan rights is itselfincoherent leads
_the conclusion that there 'are no such rights and belief in them is one
.... belief in witches and unicorns'.49 In much the same vein, it is said
... becal1sc human rights mean different thinPfl to different people,50
.pam rights have no 'robust ontological identity' and rights-talk only
~ the problem.sl
The Sttond weariness fonnation, related to the first, signifies nostl.lgia
old OOIditioru for doing ethical and moral theory. The indictment here
dw the rights-ulk instead ofaddressing 'virtue' and 'goodness', 'duty'
IBII 'rcsponsibility', fosters conflicted and adversarial notions of social
DOPCr.iltion, displacing old notions about human perfectibility and
~unitari:1.Il hannony. To the extent that such displacement occurs, it
IIid, the gulfbetwecn the individual and community widens in WoIys that
)In:lcnOte and enhance 'atomism' over 'connectedness', 'abstraction' over
CIOfttextua.lity', rights over responsibility, 'independence' over 'rebtional'
•
.. See, for elClmpl('. tll(, acute mterrog;.uon by Mauric(' CranSlon (1983) 1-17.
... AlaS(bIT M:.Iclmyre (1981) 69.
- ''''gh
~ ts arc cast u subsuml1huC$, as rel:.ltlOns. ;;as (rames. Rights arc also Ca..I'l ;;as
"--..J...~fPOhtlc:.I1 redress or k~ KIIQn,:.IS the lll«h.lIllSmSthrough which conflicts
--..,.....'<1 or med1ated,:U Ihe: endpomts III polllial and legal struggles. They arc casl
SC<'nes., ;tg'ndcs, and purpose$. In limn, nghtll ("~n register on :all 50TU of
Sc ~ networks...' PleTT(' Schl;tg (1997) 263 at 264.
h~ (1997) at 265.

53. 82 The Future of Hum:m Rights
rationality that contradict feminist and comlllunitarian notions concernlllg
human rights.S2
This second type of rights weariness manifests moral aruaeties by tbe
power ofthe suggestion that the very idea ofhUlnan rights is a1II0ro/ nriS
fakt.
It is unnecessary, for my present purpose, to deal with this kind of C
On.
tention.Sl But it remains necessary to draw attention to this enormous
ethical enervation with the languages, logics, and paralogics of human
rights.
X Human Rights Wariness
(1) Types of Representational Powm
Rights U'OriIlW chancterizes the communities of perpetrators of human
rights violation as well as the communities ofthe violated, Oil whose behalf
(though not always at whose bt>hesl) human rights activist practices speak
to the world. Articulation of rights wariness involves the problematic of
"pftS('llIoliolJol polWr.
Given the logic ofsovereign represenution of'peoples' by 'states" and
ofstates In turn by political regimes .and cliques, it becomes often p!»slble
for the he.ads of states and governments (no matter how they reach the
pinn.acle ofpower) to claim pre·eminent representational power to speak
on ~h.alf of their peoples. And they .articulate typical forms of rights
W2rincss. One fonn of it provides the representarion of contcmpol'2ry
human rights t",dilion as a thre.at to civilizational and cultunl values, of
which ofcourse the leaders and the regimes claim to ~ exemplary guard·
ians and custodians. Another, and related, form consists in the represcn·
tation that condemns cOlltemponry human rights .as lx=ing itself a foml
ofadial evil, one that needs to lx= condemned in the name of God and
the Holy. Yet another foml of rights W2riness takes an equally strident
secular voice: COntemporary human rights, 'Western' in their origins, are
langwgcs of necrcolonization, concealing new designs of a progressive
Eurocentrism.S4
But this representational char.r.cter is ambiguous .and multiplex, affect·
IIlg the pnctices ofwhat I call the politics ojand politicsJor human rights.
Vigilant rights-wariness, as an attitude of confrontation with the polities
52 See. for an excellent anaJyslS, Su~nna Sherry (1986) 543 II 590.
1) H~r. the defence ofthe Idea ofhuman nghts and the wk ofdemonslI;1tLIIg
that nghts arc nOI anlnhell(al to lhe rommUllIty has been provided, gcnmnally, by the
life-work of Alan G~rth. See, especially, hiS re«m work (1996).
504 Cf SI;lvuJ td.ek (1999.)
•
The Prxtices of 'Contemporary' Human Rights ActiVIsm 83
fbU"un rights, often collapses when otherwise indefensible regimes stand
.upported agalllst the 'imperialism' of a solitary superpower. In these:
.aornents. a natlonalist defence ofstate sovereignty and sovereIgn equahty
olall states becomes curiously unproblematic even for the practitioners of
eM poiLticsfor human rights. Indeed. an all tOO trigger-happy global policy
of A&x /tmeri(atlo carries with it high costs of escalating human rights-
wariness in communities where emhusi.asm for the protection and pro-
monon of human rights has developed .as a resource, howsoever fngile,
for tDJ1Sformative practices ofpolitics. This surely bodes ill for the future
oChuman rights.
At other moments, when charactcristie<llly repressive and brutal politi·
cal ttgirncs and elites seek to monopolize the narrative voice in the idiom
... gntTImar of the ~ian', 'Islamic', 'Latin American', or W'ric.an' ap-
poaches to human rights, rights·W2riness remains the only response
tnilable for those engaged in the difficult practices of the politics Jor
human rights. T he invocation of rich and diverse civilizational traditions~
.". wicked or evil regimes or leaders .amounts to no more, from the
pcnpeaivc of the violated, than an endorsement of the power to create
_sustain their Own ~ner.r. of violent social exclusion, by proclaiming
....., or no, human rights for culturally constituted inferior or despised
pcoplts.
H~er. incre.asingly, human rights communities also seek to exercise
IIfIaenucional powcr 011 behalfof the violated, the very time and space
«what I c.all the politicsfor hum.an rights. Just as state managers often
~nce human rights univers.alism, so do some thoughtful and an·
lIMbed acrivists. Some activist thinkers insist that universal human rights
~ is after all a global agenda that threatens the 'pluriverse ofthought,
1CIiOa. and reflection.,55 They insist, .and often with good reason, on the
'*ed to break free from the oppressiveness of the Universal Declaration
tfHunun Rights'56 (and its progeny) and struggie to avoid locating inside
-.elfthe 're·colonizing', 'contemporary Trojan I lorse' called Universal
~ Rights.S7
This kind of manifesution of human rights W2riness
illdicates a concern for plurality and multiplicity ofactivist perception that
~.and ~llerv2tes at the s.ame time the future praxis ofhuman rights.
'""'P'Otallons III comparative SOCIal theory of human rigllts are urgently
:!u,,=d to ~sess the diverse potential, for the future ofhum:lII rights, of
·...·"·wariness.
56 GUuavo Estcva ;lnd Madhuti Sun Pr.tkash (1998) 25.
fhld.• 126.
ibid. 133-4.

54. 84 The: Future of Human Rights
(;;) C..i«<....
Th~re ar~ other, less dramatic, occasions when communIties of P<lwt
of social acuvists share a platform of rights w.lrincss. This happc' and
ideolog;cal practices that: ns III
• d~monstrate th~ dualism of standards in the ('ValuOluon of hu
rights performance;S8 ~
~ te.stify that the Noreh consi~tently refuses to ,assume humOln rights
obhg:Ulons to the South, whether 111 terms of"fHlra11OII.sofp;ast injUriesand
mayhems inflicted 011 the ex-colonial societies and indigenous peoples 0(
th~ world or in terms of dedication of even a meagre perccntage of its
resources to alleviate conditions ofextreme global impoverishmemoUSc'd
all too oftell by its own global economic domination;
• archive the betrayal, ('Ven burial, by the North of its human righb
cOlluniunems, especially through its promotion of regimes of indebttd.
ness and policies of 'structural adjuslment,;59
• critique, in the arena ofsU5binable development policies, the North',
failure to assum~ burdens commensurate with its sdf-aslollmed leOldcrs!up
role;60
• lament the human rights diplomacy of the North, comphcit oftht
worst violalion of human rights of the peoples of the South both In thr
Cold War and the now nascent post-Cold War era,61
The politics I?fhuman rights in the South, naturally, seeks to US( dus
commonality between itselfand its Other-the politicsJar human ngllB-
tOw.lrds its own ends. Rights wariness, in this context, has to combat. 011
the side of activist thought and praxis, the extraordinarily riglus-denyt"
political appropriation, by unscrupulous national regimes,oftheir cntl~
of global ·order'. The mode of negotiation of this constant and fe
appropriation has much to do with the future of human rigllts.
SII . . I rid $.I(e ((]I'
The Nonh IS un:lble. despnc Its proud boast 10 Ill:lkc til: WO I unJII'
democr.II:Y, 1$ unwilhng 10 create condirions withm Its own Jurlsdl.::tlOn 10 c I~IJI)III
. . d fb"""lll VI(
.::m:UIl15tl1nCCI and pD.::u.::es that en,::our:lgc masslV<:, ongomg. an ~.-
of hunun rights at homc.
S'J SU
s;ln George (994). nd fOOd
t.O Sec, gcnelOllly, the neport of the Imemauonal CommiSSIon on l'eac~~ India"
'
h 'ofu.c
(1994), .::h.urcd, not surprisl1Igly, by M.S. SwanlLn;uhan, the' at er
Green nevoluuon!
61 NO:lIll Chomsky (1994).
"!be pra.::rices of 'Contemporary' Human Rights Activism 85
(iii) ~ri"ess of rltt Vwlartd
W2rinCSS IS also IOcreasingly an attribut~ of the conscious-
that finds th.:1t the perpetrators ofthe gravest Violation
the ethic ofhuman rights to serve their own ends
. The 'origirury' habitats of Euro-American cultures provide
cl1a4 11ft· for the wotSt perpetratOrs of human rights Violation-from
_UveD ;;a Pinochct. They fed mystified by the see-saw ofjudici;al
j.5'*"'~~i:"~~.~ThCYweep one <by upon hearing that the Lord Chief
Kingdom, not merely quashes the arrest ofPinochet
dut a 'fonner sovereign' is entitled to human rights respect
at ~ ;;award of huge legal costs. They also weep, though with
Ii!'~'l<"Y: when a narrow majority of the House of Lords cilrefully
that decision. And the day after they weep at the nullification
of Lords of their own judgement on the ground that one
1Ir'a5 'biased'! And the day after they begin to celebrate small
that allows prosecution for 'alleged' acts of torture com-
the United Kingdom brought into legal being for itself ,Ill
convention prohibiting torture and cru~l, inhuman, and
traanent or punishment.
~:.~!=: and depressed moods they find It difficult to und~r­
" five decades after tile Nuremberg and Tokyo trials, the
should waver III locating in int~rllational law a rights-
~ing of sovereign Immunity (as that problematizes the
as the order of Illlpunity!). All this remforces their
an nghts-talk is Just the !lise ofgollmlQtUt. They know, at the
day. that what J>OY.·cr gives today as rights can be bken aWOly
. tomorrow. Their rejoicing is authentic when ajudicial
~:::?~,~,~ powerful hap~ns. But they also remain aw.lre that
PI . Judirul discourse, which preserves the autonomy and
of heads ofgovcrnments and states, in the title of sovereignty
~"''''''Y. may still preserve mtact structures of repression. The
protection of their human rights under the auspices of
cfhuman rights is a contingent feat; and they join, if at all,
Corand gra~e, cOludoll, the heralding of rare Judicial triumphs as
the polmalfor human rights,

55. 86 The Future of Humall Rights
XI. Dial"",
-"" 111
Incre~lTlgly. everyone IS asked to believe that the bc~1 way fo
dialogue between the communities of the violated and the ;;atd11 tbt
But the production o~ ~he best way forward dlfTcr~, dcpend~tr;fOr
loc;atlon wnhlll the polmcs of, as well asjor, hum;all rigl'b My d g on Ib
. . . IStlne·..._
also sunds severely tested on this terram. ....'1]
In the model of the politics ofhuman rights. 'truth eOllllllLSsio .
their poor cousins, called intcrIutional hC:l.rings,63 embody this tJ:nS
dtand
towards dial~sm. It will take this work far ;afield to explore, even~n ~
outhne. the history of recent truth commissions, their funcho
d ' . "el I h .. os, and
YSlunctions. ear y. trut commiSSions reCover narratives ofsuft
in seeking to impart the edge oOmman suffering to human righlSdiscu~nng
Because of their national, regional, or global auspices, truth COlllllliSS:
often marshal a range of authoritative data, often denkd to hUlllan rigbb
NCOs' fact-finding reportage activities. More importam, the former carry
some potential ofpolicy action that the latter, at best, unevenly colllnwxi.
NCO reportage m;ay primarily expose; it may influence but not dirccly
comptllS2tc victims, rehabilitate them, or exercise prerogatives ofpunish-
ment or pardon. These rem;ain the tasks ofsovereign SUIC power, ~
less of how one Imy prophecy the end of the nation-state.
All this is wdl known, as are the large questions th:lot surround dx
processes and outcomes of truth commissions. These reb.te co wap III
which such devices result in the promotion and protection of huflUll
rights. Clearly, when the outcomes signify outriglll grants ofamn~ty 10
dle most helllous violators of human rights, il stretches the iUliIgil11Uoo
to assert tlut internatlonal!r-binding human rights treaties and custOflUfY
law are protected thereby. It is at le~t ;arguable that regimes ofanl~
and confident future violations ofhum;an rights are positively correlated.
6J uu~hcd, mosdy by colKemcd NGOs. :oIt dIC Site of v;l,rIOU5 Unned NJIl<IDJ
5ummlts In recent YCHS.
6f See, ~~sclll~ B. Ilayner (l~ ~5;. UFli,tt/ Nario~1S Commis.<wu 011 HIIIII"II-::
Sub-C,,,,,,,uiJlon on Pm>r!IIIlHI rfDis.r",n,"4f10n (nlJ PfO{ffflOIl rfMmonll(l; SIUJy()rltt/ ,#III
,/It Righl'o Rnti'"rWn, ComptnS4liou alld RrhabililIJlionfOr vl(li'~ifGftISS Iljolallon~~.
R(fhts lind FUIIIJlltllfn'lI1 FrMIomJ UN Doc FJCN.4ISUH.2119'JfVIO.July 26. 1 •
vln Hoven. Spcci~l Rapporteur; and rebtcd materials Cited 1!l Ch~pter I (...
6S GcnCr.ll anmc~ty <as m llait!, El Salv;idor) or )(!lcetlVe prJetl(e~ ofartll~:I1""
probably, III the CiI5C ofSouth Nnea) carry a tendency to undf:rIluue the !'IcY> .nd
. d 111111101l,
rightsflU rogrns eml)()(h~od. for =mple, III the genOCide. IOrlurC, .scn
ll
anti-apartheid convelltlOlIJ. thr Co"'"
66 See. the Umted Natlolls CommiSSIOn 011 Hunull RISllls: Heport on
sequences of Impurity. UN Doc.FJCNA/I99CV13 (1990).
11te Practices of 'Contemporary' Human Rights A.c:tivism ff7
ioo......""~,,,d'""':III)'_O~~'~~~:"~'~::~~~" politics ofmemoryonly
cn1JanCe the pT:lctitts of the politics oforganited oblivion. at
~;:~~~~~~;:: ofpcrpetmors. It is unlikely in the extreme!lut
: feel redressed by high moral summons of fOrglveness and
be bygones. Those who have expenenced genocidal
'forgiven' by the community ofhuman rights policy
refuse to bc persuaded to take such counsel seriousty.
fonn ofdialogism occurs with the emphasis on the
.... DOl universality, but of plun'vmality-a diSCOUrse thaI takes
...,.... moderate perspectives on ~uman rights. The fonner ;anchors
. . . cruth of grass roots expenence and vision that enables us to
..............
~ in 1 um~rse. but ill a,pluriunivcrse; that the universality in the
by human nghts propag:.tol'S exists only in their mi-
'::~::IU~~:~~,:~~~::,j:, of'interculturalhospitality' based
~ a dialogue which chan~s its own
~:~~~;'m::od::erate' forms ofdi;alogism insist on thc construction
~ . . of'universal cultural lc:gitimacy' for the standards
lDk'nu~,onal human righ ts.Xl Put another way, dialogisrn
mutuality of hum:l.n nghts responsibilities through the re-
~uch tha.t no cultural or civllit;ational tradition be
:i1Sdevoid ofcrucial ideals ofhuman 'dignity'. 'integrity',
~lcc'm or self a.nd soci;al worth. Abdullahi An-Nairn's
iIfIlsIamk on what he calls 'constructive methodology' (for the
Law III WoIys tha~ makes it compatible with human rights
~~~~:;:~')n'~h~';'j!P~"
;~C:es ~n constant. and creative, interaction and
IDd th III the rullT2tIve paths of'tradition' 'rno-
hu~ommon future of;a constantly self-difTerentiating,
'~"'ogi.coI Ity, :"!tatcver be the fate of the implicit 'theory,' the
- _r."'ks
dllt Summons for critics and evangelists of human
" " Oun yimpo , I
!"'1Iic... f . rtall[ Irom t Ie standpoint ofthose violated
o POWer III civil society d ' .1 '
With all I " an state III ule circumstance
t lelr dlsagreemclllS, the r;adical 'grass rOOts
Snglm~yer (1992) tl2-169
::.-~, and Madhun Surl llrakuh (1998) at 125.
AIuncd An-Nairn (1992) 431.

56. 88 The Future of i-Iuman RightS
postmodemists' do not s«m to me to have much to offer by way ofPr':I.Xl1,
after the ghosts of 'universality' have been finally slain or pm to rest.
Other fomlS ofhuman rights dialogism practi~ the idea, for exanlple
that a handful of NGOs can dialogue with a handful ofCEOs of ll1ulti~
nationals to produce implemenution of human rights results. In a se:~
this remains simply Quixotic because the latter must inCV1ubly dcplo;
such dialogue as elaborate public relations/media invcsuncnt exerCise: .aitntd
at strengthening their business competitiveness. This may seem harsh to
those hum.an rights friends who devote their energies and ulents to pro-
ducing volunury codes ofconduct ;,md organize effective consumer ~is..
lance. I appl.aud these effortS with the c;aveat that such dialogism may not
always perform inter-gener.ltionally.enduring human rights accomplish_
ment, especially when ethical investment becomes, at the end of the day,
no more than a global market practice devoted to enhancing competitive
edge. I do not wish to seem to deny, stil1less to gainsay, episodic human
rights windfalls that matter a great deal to consumer-victims of unfair
trade/market pr2ctices.71
Nardo Iwish to underestimate the contnbutions
that Naderite and post-Naderite consumer movement cultures have made
to the growing corpus ofhuman rights-based pr2ctices of resi:.tance. These
have, undoubtedJy, opened the locked doors ofcorporate wrongdoing. and
at times in ways that 00 matter to here-and-now peoples. But tilLS havlllg
been acknowledged in all its fullness, it also needs to be noted that the
structures ofglobal capital remain hum.an rights-responsive only in terms
of marketlindustry competitive adv.an~.72
Tow.ards the end of the twentieth century CE world, profound human
rights violations a~ no longer the sole esUtc ofsovereign sutes or orders
of rebellion (so typical of 'civil' w.ar or strife). The nussive formations of
global c.apiulism-whether manifested by transnationaVmultlnational
corpor2tions or international financi.al institutions and their nomadvt
cohorts-have .also shown a remarkable resilience to legitimate grave and
continuing violations ofhuman rights.as people victims in Ogoniland and
Bhopal, among myri.ad others, know and tell us. No doubt, devices of
peoples' tribunals (such as the Pennanent Peoples' Tribunal, a successor
to the Bertrand Russell Stockholm Tribunal on War C rimes 111 Vietnam)
offer innovative ways of~. But these sc.arcely archive even a prctimi-
nary orienution to the articulation oftransition to a human right:. regime.
forms that may articulate 't/lr rigllllo bring I,ulon'fal capita/is'" 1
0 lrilll ill (/ lI'lJrld
71 Sec, for a VIVid accoUnt, Leshe Skbir (1995), and Ch.;,pccr 9.
7:1 Should you doubt thiS proposition, you only 11«<1 to IT<J(/, IM:r and (~r ~III.
the genre of literature exemplified by A Cil1il AtIioft.
The Practices of 'Contemporary' Hum:m RightS Activism 89
."...r1l For those victimized by the processes of globalization, nothing
mort insistent today th:1Il such a venture.
ICCftlSl)ialogIsm assumes proadur21 deliberative rationality, which accords
che dignity of due process to the most heinous perpetrators of human,
.... human nghts, violation and to those who accomplished wholesale
liqUiCboon ofthat very notion. But this runs a gr.lVe fISk ofdelegitimation
~t me violated of the very idea of human .nghts; they may
juIdY decry the speclacular reproduction of human nghts-oriented due
~ p.anoply of protecti~n to those who qui.te con~c:lously deployed
dItir gcllocid.al prowess agamst peoples strugghng agaUlst such power-
fOrmations?' The due process fetishism and the valourization of
'nell_handedness' (exemplified by the South Mric.an Tnnh and Recon-
dIiaQon Commission in a 'both-to-blame'-type moralism) does r2ise
.-.e issues concerning the mode of production of belief in the idea of
'human rights' among the growing communities of misfortune and
iI!fusticc.75 For the violated, sllch fonllS ofdialogism seem to serve more
•• shield, than as a sword against the perpetration of terror as a mode
fi.,..-emance.
XII. I-Iuman Rights Evangelism
• ~tgI':nce of human rights faith communuies is, as Iloted earlier,
DIXIble feature of the worldwide promotion and protection of hu-
_ nghts. The Illternation.al Bill of Human Rights is their sacred text;
~ rights education is their mission; and the peoples of the world
. . con~gation. The evangehstS believe in the power of the Intl/ltfQ of
iltlenability, indivisibility, lnt~rdependence. and universality. TIley aim at
al:iod of moral, even spiritual, regeneration through creation of human
....CUltures in which ~;J.ch and every human struggle will ~ converted
at human rights struggle. In their endeavour, sonle human rights NGOs
PI'Ictisc robust dialogism with the worlds of power and communities of
Pftpnrators; they believe that human rights .aspirations and values can ~
~
hilt Bow."entur.I de Sousa Santos (1995) 359-60. The (ur of'fe<Ulblliry' should not
......~Ut thiS Important progmmsthrijf, although S~ntOS' agendum needs particl~tive
-1:"'ment.
~E~n the internatiQnal Ccwtnant on C iV
il and fuhtiC;l1 ltights TerogrllUS the
~ of~UspcnSlon ofhuman rights III tlmeJ of emergcncy where the 'emergency'
'1 .tt-t Itself <U Justified regulle of eUl"t.1llment o( 'baSIC
' human ngllts.
.See the agonitmg Judgement by Justice blllal! M~homed m ....tw,tia,. 1>nJpIn'
v. Pmidnrf oj/lit &UfliAjrif" (1996) (4) SALR 671: and the critique,
1I1~mulol1ll.l bw perspective, by John Duggard (1999) 277-312.

57. 90 The Future of Human Rights
rmdc to penneate structures ofstate and global corporate power. For the
mngeJists, human rights constitute a new civic religion. .
TIle communities ofreligion, notable precursors and compamons to the
5ttUlar missionaries of human rights, incorporate aspects of the human
~ts faith as all integral aspect of their beliefand practice. Most notable
has been the historic work of Church groups who have not merely rc·
VI'OI'ked their dogma (as in the case of liberation theology) but have been
xtuallyengagro in human rights struggles from apartheid ~uth Africa to
Us! Timor. The Church associations have also led, and at urnes funded,
the activities of human rights groups worldwide.
Together, the secular and religious evan.gelists pr~~ote a J'O":'er:ul
ItlOriI vision. The fact that it is highly susceptible to political appropriation
(aswas the case" during the Cold Wu and may even be said to some extent
10 Ix: aspect of post·Cold War politics) does not gainsay its authenticity.
~ history of human rights evangelism has yet to be written. But when
it is written, the role ofevangelists in shaping initiatives for human rights
tduc.ation. and even nonn<reation, will find a prominent place.
To be sure, the overall impact of the patterns of evangelism (wlllc~ is
001 one phenomenon but many) must remain debatable.Some may'1.ueso~
tilt very notion ofhuman rights as a civic religion. Others may subject ~llS
notion to the same withering criticism that Marx visited upon the notion
rireligion. although it is difficult to see human rights becomingthe 'opiatt:'
ofthe masses while still constituting the 'sigh of the oppressed'. It may
also be said ~ profane the very idea of the sacred to endow iconic s~tuS
towt are, after all, messy politiClI tnde-olTs and powcrCllculus entulw
in global diplomacy responsible for human rights uonn<reatlon..And
those who would elevate all discourses and struggles to the human nghts
IIIiIntra remain justly liable to the indictment of creating a mas~er ~e~­
discourse, betraying. in the pf'ClaSS, creativity, diversity, and sohdmty ill
human resisunce to violation.
XIII. Human Rights Romanticism
, . . , 'gl'" "" poP·'oU'
AslIlgular feature of contemporary lUman n Its les III d
presence ofNGOs at the site ofnorm--<:reat~on in global cOI1(ercuc:~~~.
summits from Rio to istanbul, and the ntcVluble: reviews styled as .ts
FM:!Plus-Ten' review confe~nces. The UN confe~nces and surnnl~
Iuvt provided an unparalleled opportunity for bringi:ng the blirgeo~1 as
growth of NCO communities around hydra-headed issues ~uc.gI ts
bodiversity, population planning. development, habitat, and women s n I
The Practices of 'Contcmporary' Human Rights Activism 91
human rights. Each ofthese events is marked by a series of 'prepcoms'
• r;ltory committee meetings), and followed by the 'plus-five'/plus-
~iew meetings, allowing for participatory stocktaking of the COIll-
anancnts made by the state parties or by the heads of governments.
AtcJ'tdited human rights groups enjoy observer SUIUS III the dIplomatiC
conferences, where they seek to lobby governments to incorporate what
they think [0 be more progressive texts or fornlUlations.
This summation docs not do justice to the rich diversity of the pro-
a:ss-a usk for another treatise. Anyone who has the pnvilege of partici.
pation Of has followed events closely knows about the great alli:mces,
coalitions, caucuses, friendships and enmities, and netwOrks ofpower and
iaBlKnce characterizing the enonnity of NCO interaction among them·
Jdvn and with their governmental Others. I look only at the aspc:ct of
t.uman rights romanticism that such processes generate.
By 'romanticism', I designate the processes of politics of hope and
plwill,abundantly present at these events, which gi:ve NCO participants
• ..:nse of achievement disproportionate to 'real' life accomplishment.
Coastructivism, however. teaches us all to take with caution the notion of
., 'rea!'; to be sure, many 'smnmit'-going NCQs feel truly empowered
the participation.At the same time, most actual ungible outcomes occur
DmSofcarefully circumspect texts ofdeclarations and programmes of
1CIion. These entail the famed battles over brackets. The drafting process
~ly enui ls a large numbc:rofparcnthetical fonnulations, from which
choice has to be made. The NCO participants seek to innuence,
!Jrotasonists or anugonists, theVolrious bracketed formulations. The best
..-1hebrightest NCOs dedicate singular energi~ to this task. Successful
lltib,ingouocomes are usually experienced or presented as historic achieve-
IIaIts of NCO communities.
Dtcentrahzation of international human rights nonn--creation is, of
"*nt, a creative innovation of the: last quarter-century of the Age of
Haman R.ights. But there are costs, too.76 And by 'costs' I do not draw
IItImtion to the astronomic investment of resources enuiled in these
ftitob. facilitating NCO-state interaction, though this, when put together,
...,. exceed several times the national budgets of many a less developed
~In d~hl1c:llmg th~ COStS, I rely on my dose omcl'Vl:f'.mvolv1:me:nt WIth !IOlIIe:
.... t"1CIP~nl$ m dlc Copcnhab-en Social Summit 011 IXwlopme:nt. the Beljmg
mfe:n:n.cc on Vobme:n. and the: Isunbul Summit on I bblUt, and my own
~~:: In the Vicnna World Confe:n:nce on Iluman Rights. I n:m:lln aware that
I! J offer remam 'pre-scientific' (bued :IS they are 011 personal clCJ>Cri~nce
0{ empirical analysi~) but It rcmalns unportam w open up to contcstltJOIl tht'
hunun nghts romanticism.

58. 92 The Future of i lurrun ltights
and devdopmg country, singly or in combination. I ~fer rather to the high
costs involved in the pursuit of the politics of ho~.
SUlllmarily p~sentcd. these costs include:
• Acrttping transformation of intensely involved NGOs in the mla~
of international civil servants;
• Displacement of the agenda of tquillJblt mJislribwiol1 toward!. tru:
agenda of global gollmumu;n
• Enfeeblement of the potential of fornlS of creative antagomsm into
harried postures of compromise and coo~ration;78
• Consauction offuture horiwllS for NGO acrivi~through programmes
of action which influence allocation of resources;
• Aconsiderable loss ofreflexivity among NGO communities concern·
ing these costs.
Romanticism at times ill·scrves the constituencies legitimatmg the
NGO communities.
XlV The Bureaucratization of Human Rights Activism
Bureaucr.nization of human rights occurs :It many sites of human fights
activism practiccslorganization~netwOrks. Not all NGOs may be described
in tenns of rule-bound, hierarchical. specifically accoulluble, profcs--
sionalized organizations, But. increasingly. NGOs--cspecially the larger
Olles (whether In terms of geographical spread, scope for human rights
action, resources. support base, or r.111gt: oflletwOrking}--do acqUIre some
traits distinctive to bureaucratic orp.nizatiolls.80
Social reproduction of
T1 Upendra Ihx!. (1996b) pp, 525-49.
78 Smcc tlme.cormnml5 for the pnxluction of ncgotmmg textS and firul decb·
noons and programmes press heavily; nc«SSiutmg the emcrgence of 5utemellts of
concerns which dlSSlp~te the urgency of ooncencd :action ali. for eX<lmple. With ";-
Food and Agnc:ultlln: Otpnrutloll (FAD) Righi to Food Dedaral10 n al1d Prognn1
ActIOn. TIle RlgllI to Food becomes the right tofood stl"llrll}'. the bller nOW HIsulh~
Ilsclfas a food security $)'1ftnI, in tum, generating hybrid fonllS of 5OCIal lCIIV1S!llI~
whICh aCnllll«!l llankcoukl even thmkofemeringintoan agrctment wnh ~ Mons;ln~f
79 TIle Projecl apphcaliorl5 for NGO funding have a bener pro~pl:ct ofsuecd'~
they elm relate these to some pal":llgnph III declarations and progr.ullIlleS of K UOfI
concerns dams, see Upcndr;r IbJd (2002). cvoI>'f
IOThis IS ulesapablc beausc NGOs, 111 order to funcuon df« uvd Y, !lced:
kS
Jrrd
pohc~ or awr~he5 concerning: rccrll1tmenl of pcnomld. allocauol1 of 1111['
n:sponslbllmcs. ovt'r;rll ooordrnal101l of:rctMID programmn. mechanismS of ilCCO
roJeI-
abllrty. loy.Ilty. and Cllllandcne, capxlty.btrildLIlg. and $usumablc le:rdcrslup
See. genmlly. A. Fowkr (1997).
The Pnctiees of 'Contemporary' Human Rights Activism 93
...,...10. further entails the passa~ from the ciurismaric to the more rou.
.....-- d h· 81 B .
tiDiJCd lea ers tp. ureaucrattc NGO cultures also devdop Wlth the
aced 10 raise rcsourc~s adCCl.uate to human rights prOJects; in the process,
itIJPW'.and human ~gllts, Vlolauon always beoomes proJectized,We noritt
..COfl1plt'XIty ofthts aspect ofbureaucr.atlution ofhuman rights tn some
deWl in Chapter 7.
foe the prestlll purpose, dIe development of the national human
,.15 inst~tut~Ons (NHRls) r~lllains adequate to tllustr.ue patterns of
~ucrauZ3Don o~ human nghts. These institutions typically include
ombudspcrsons. national human rights commissions, and other agencies
f.{fK c:x:ample, for th~ protection of human rights ofwomen. millennially
dcprMd peoples, d~sabled peoples. children. and disorg,mized!unorgJ._
ailed labour) established under the state auspices. A recent comparative
_ estimates the existence of about 300-500 NHlUs, 'of which, .. the
. . popula~ type". n~ional .human rights commission ... has at least
..-trupled s.lIl~e I ~. The Impact ofNI IRls, in general. and human
...... commlss~ons. I~ particular, is hard to assess. A comparative study
1If'~ Asia- Pacific ~e,gtOlI measured on Indicators of'agenda·seuing. n ile
-.on,acco~n~bl hty, and socialization' suggests indetenninate human
Wafla-cntunciIIg Impact, while demollstraung problems of'independence
tlillllparency, and relations with NGOs'.1O •
• story, then, is the same almost everywhere: more and more state
~ Me established :lndjustified as a creative stlte response to peoples'
~ for a futu~e making human rights secure. Large agencies with
_':'mdmg~n~ high governmental visibility nourish everywhere. Their
=ryfor sl~ficallt.action varies enornlously depending on specific
Eiuhm
"" mcJudmg thos< ["""ed by the ;n"",;ngly priv.t,;,ed
~zed nuss ~edla. ~bsent significant public participation in con.
esc .agen~les. their personnel are both regime-favoured and
~ ~ ~ IS thelT~rfonnance. The logics of 'Institutional trap' bc-
... asmglyand painfully obvious as their agenda grows and tasks
__
~el1.surate resources, multiply. Excepting when these agenci~
_h:uCttlve adj.ud~catory forms. they tend to become yet another
se for aspirations ofhuman rights attainment.S4 And even when
. Slumeem 5 dd (200
;
;:~=:~:;;, I Iqlll I) explores sollie IIltl"KUble problems of$uccession
of sccond-lmc Ie~derslup.
Cardelus (2004),
(2004) al 44.
e:'''",''''tt'"Ln
' ~) otTers a more quahfied and complex plC1lm:. Hut the obscrva.
PUt e",~ lex! rebtc' to the ambivalent r«epuon of NI IRls, Innill1~ for
USlasm nurks the ptOpo$ll for the esublisbmem ofconullinions

59. 94 Thc Futurc of Human Rights
they assumc an adjudicatory form, moments of anguish at their fe..ts
ovcrwhelm momcnts of celebration.
Prcscinding all this, it remains the case dtat such agcnpes burcaucnUlt
human rights and hunun sutTering. Sene/governance reform IS scucely
enhanced by human rights communities indwdling the habitus ofthe state
ideology and apparatuses. They ugularly confiscate people'sJural IIlnova.
tioll and inventiveness. T he future ofhuman rights, ifany, lics 1I111111tnling
fomu ofptlrtiriptllOry gownumu.
xv. Human Rights Realism
By 'realism', I wish to draw attention to a perspective that insists that
human rights values, standards, and norms are created by people's pT2XeS
of resistance and struggle. H um an rights activism merely provides an
aspect of these praxes. O n this perspective, the originary narratives that
trace the birth of human rights in dIe Declarations of the Rights ofMD/I
need re~lacement by a history of human struggles for human rightS
futures. l luman rights realism, in my sense of it, is the precursor of
'contemporary' human righ ts. To realize this, we need only to ask.: would
decoloniution ha~ become the international noml without peoples'
struggles associated with leaders such as Gandhi, Mandela, and others?
Would apartheid ha~ become a scandal but for Gandhi and Mandela and
his followcrs?Would the mottO, 'Women's Rights are Human Rights'. havt
been conceivable in the absence ofthe heroic suffragist and labour movc·
ments? Not merely this. The UDHR, the twO Covenants, all the conven-
tions on gender :lIld racial discrimination summate the triumph ofhullIan
My colleagues III Ihe Indian natiolUl "WOmen's It"KJV('nlt'nI elnlt'd me for a .... hlk fOr
opposlllg the land of IcgIsbuon that now estabhsht'$ me Women's ComllllSSlOO. So
did Illy human nghts fnends for myopposition 10 Ihe way III whl(h ttlt' Indian HlI.mn
Rights Cornnllsslon was structured. Myoppositlon was based on the premise Ihal!best
boches may cnd up posing yrt another hurdle for human nghts activism! Fortunl~ty;
thiS hu nQt been quite the QS( with the human rights ,01l1l11lSS10n InstallceS su~7
occur wherc the prcscll« of these agencies have been margmally useful !JUI, ~ cd
:KIIVI)I (On5('115115 SU~Sl tilal their eXisten(e and funclioI1IIIg h3VC ~ISI.) cOlllpha
l
nghlJ and people's movements. th
II! To reiterale after all, It was a nun ,ailed 111ak. who :tlthc birth ofIhe ty,."Cnt,l( n
century CI!, prodallnro that 'SlI'tlrlfj (decoloIllUotion!indepenclcnee) is my Imthrwh', '10>
h d b 111m"'''''
usemon that earnro hlll1 ~v.lgc solitary confincmem III srlllS In u III _..-d 1ilC:
nude It lIl(oherent. And It wu a man ailed Mohandu G:mdln who (01111"'''''- If"
tint essay of refusal of early forms of apartheid. Genentlons of legt"n~"ry WO::t4e
confronted Jntrun::hal pohlla III the We~t whkh found 'hbenl delnocn<:)' com~
With Ihc (lViI and pohttcal discnfnrn:hlSemcnt of women.
The Practices of 'Contcmporary' Iluman tights Activism 95
rilhcs movementS-movements that finally tramfonned 'modem' intO
'contemporary' human rights paradigm.
XVI. 'Freedom's Children' and 'Midnight'S Children'
The practices of contenlpor.uy human nghts, thus, remam enormously
varicd and connicted. Thesc practices embody diverse mtcrest and value-
onrntations, all under the banner of'human rights'. And these enable the
60urishing ofdifferent fonns ofpolitics ofandfor human rights, imparting
boIh a measure ofcogency and incoherence to the field of human rights
.3whole. This rich diversity may in itself constitute some sort ofhuman
rights accomplishment, insofar as the many ways ofrights-talk and related
fOrms of social action tend to create (to borrow the felicitous phrase of
Ulrich Beck) 'something like a to-cptralillf or allnsisfit i/idividllalisll1'.SIJ But
it another sense, the forms of human rights wari ness and weariness,
e.pecially of the violated, may pose substantial setbacks to future deveI-
qnrnts in the promotion and protection of human rights.
'M+rtthtd ofI/II!: tartll lIIIift', ~'I lIaw no/Mllg 10 lcut bill lilt chaills ofIIIlIflali
""«rivism' may well become the slogan oftomorrow. When the violated
W that like previous languages (of distributive justice, revolutionary
...rormation and the like) 'human rights' languages, too, fail to address
'lfabdeMness and violation, the future of human rights must 1>«ome
IIdica.IIy IIlSCCUTC. Ulrich 8e<k's type of communitarian individualism,
~r satisfying to 'FreWom's Children' (as he prefers to name the
IPftJjtc1 ofthe youth in Europe, the inheritors ofa 'second modernity') lUay
-....form the worldfor tllrll1. But it may still, and forever, perhaps, leave
- - wholly intact the structures ofglobal opp~ssion for (to generalize
.SIIman Rushdie metaphor) the 'Midnight's Children' everywhere in the
Foanh World. As and when future practices of human rights solidarity
tIaiId bridges of communicative hope between the twO, the future of
~ rights may well be born.
..Ulrich !hie (1998) 9.

60. 4
-------------------------------------
Too Many or Too Few
Human Rights?
I. Production of Politics and Politics of Production
I s it the casc th~t we IlOI.v~ too ~any human righ~ enunciations, sUcb
that may be said to entail a en sls of overproduction of human rigbl1
standards and norms? Does the endless proliferation of human rights
norms and sunducls {'uuil a policy and resource overload which no
government or regime. howsoever conscientlolls, can bear? Is 'O'o'Crpro-
duction' an aspttt ofglobal production ofbdtt::fthat each and every nup
human/social problem can be best defincd and solved by rccoul"S( to tbr
talismaniC human fights enunciations? Or IS It simply an aspcclofswtep:
interests purmed by States, transnational governmcllu! netwOrks, and
(:ntrcprcllt'urs ofhuman rights activism generally? Funher, what may W
say to the contemporary deployment by the muhifanous, CVclIllotOnom:
harvesting of these talism:mic properties?' What 'politics of producllon
and 'production ofpolitics'2 informs hum:m rights overproduction?,
The notion of'overproduction', ofcourse, rests on many assumpuO!U
concerning the arenas, silU, MIOrs, resourw, and rejlexivity. Armas ofproduc-
tion of human rights nonns and standards vary both spatially (mterna-
tional, supranational, regional, national, and local) and temporally!
. I dC""t"""T
terms of histones of cultures of huma.n rights and IIlsututiona
mem if only because different exigencies of power politics shape new
I May Ihe aggrc.-gal)()flS of Qpltal and teChnology be dlu bkd at.,.";!)'" from
~
. r gI I rightS!> I
llpon Ihe eapluhn belief thai prOlCenun 0 ItS n liS as lUtn~l1 I rul' For
assurance the~ 15 for lhe amelioration of the hfe-<ondillon of the pm eP t.......,1J
. I I I Is and lrart ""-
tx:Imple the as~rlcd mterest groups of mtemauon3 aIr mes. lote • d'--
' I I I ftourlsm an Ii'~':':
usiduowty lobby the UN to procl::um a UTIIVCts:l lunUIl ng II 0 onft Mill"
of preW.tot II1VCSlment 0tg;llllulions xtwlly succcroed In producll1gaadcath y{a~
lateral Agreement on Investment whICh. III a hreta] sense. cunsmutes
for human nghu as ~ know them. See. funher. C haplC:r5 8 and 9.
2 MIChael BuDWO)' (1985).
Too ~y or Too Few Human RightS? rn
'gins enunciation). It is not clear what arenas the
buma
n
n actually addresses. Sitn of human rtghts pro-
the arenas: sites for normative and institutional pro-
.,ary -centric' peoples' struggles and SOCial movements
fC11l311l state , . .. d I
. . for human rtghts enunC131101l an comp lance;
various netwOrks constituting intergovernmental and
conduct and operations constitute ncw sites for human
and achievement. ikU)rs designate a complex field, already
III the prevIous chapter.) Their deliberative labours of
concerning nonns and standards only offers a panial
and overproduction. The problem of resOflrces for
and standards presents a crucial dimen-
of'overproduction' rdates the costs of
with costs of implementation of human rights at all levels.
entails the labours of both critique and reconstruction and
h ...."'" on the ongoing production of human rights norms and
the politics of the production of human rights nomlS and
ranams encyclopedically constrained; these norms and stan-
~. like the Biblical camel, through the eyc= of the needle
~rlappllg, and conflicted state sovereignties. This is the
•• wby 111~1 human rIghts enunciauons at all levels (national,
regional, and international) are slow III emergence and
. HI.!.lorics and fomls ofthe politics ofproduction shape
I distinction between the ;hard' and 'soft' law;
the scope oftrafficking between these forms-owhich
laacr in tillS chapter. Further, the relation between macro,
~~:';: politics of production at various sites of human rights
~ remains extremely important.
sites ate populated by experts, by beings recognized by
:~~=::::~:;~::::~: networks, entrusted widl the task of for-
norms and standards. Expertise stands constituted
1;~!~~:~~~;:~,and messy dynamics of power and parronage.
~ IIlforming its constitution have varied. With the
ideological representation in the constitution ofthe
.:~~~Ui"l',hl,'"u
;.;
n~;",';d~l ;N~~';'i;~o~
n:,
s,;s:Y',;;'~;';m';,;n,;O"n~
lo:nger prev'llls. Consid-
I . happily gender parity
conStitution of hUl11an rights expertise within the United
Other govemmentaVintergovernmental siles. Overall,
I finely nuanced an~lysiJ. John lJDliliwalle and Peter Dr.ahos (2000).

61. 98 The Future of ' Tuman Rights
a mix of SlructuI7I1 constr.lints and functional autonomy char.lcterize such
eKp(:rtise. an a~a under(:XJ>lored in a compar.ltive social thwry ofhuma
.~ 4 n
n ty.ts.
Micropolitlcs. occurring at various sites-sQme invisible even to a glo-
bal public view-offers a different perspective concerning the rel:.tlVe
autonomy of human rights production. This is the shopfloor level, as it
~re, not wholly deternlined by macropolitics. Wlrlcing within I7Ither
sever.e budgcu ry and mandate constraints. the Independent Expens, the
Special Rapporteurs, and the speci.alist consulunts within the Umted
N ations system (howsoever thus named, designated, and elevated) need
to negotiate further their own functional autonomy within the overall
hicrarchy througl~ .which the ca~eer of huma~ rights enunciations may
proceed. The poiLucs of produrnon ;at these: Sites reflects the combined
and uneven production of expertise between the N orth and the South.
T hus, major drafting responsibilities stand assigned to the North expertise:
which, in turn, has to accord some deference to their South colleagues
who compensate their technical deficiency which their ideological self-
positioning. To avoid any possible misunderstanding, I must here imme-
diately add that some South expertise, being the better informed about
global production of human rightlessness equals, and even surpasses,
available forms ofNorth expertise. But surely. this does not always duum-
ish the cutting edge of the North expertise which, more often than not,
plays a dominating role 111 the writing of human rights texts and the
construction of the models of their 'responsible' imerp~ution.
In allYevent, micropolitics ofhuman rights production remams decisive
in terms ofdistribution ofvoice, leadership, and legitimacy. How far all this
may serve networks of production that foster patron-diem relationship,
and how far these: innovate authentic collabol7ltion across the NorthlSouth
knowledge/power divide arc issues that still await empirical exploration.
Moreover, macrQl'meSQfmicro sites of the production of human nghts
euuUciations result in both produltion and ydu{fion (Jean Bal1dri llard~ draWS
this distinction in other contcr.s). Whereas production makes the mvisible
visible, seduction makes the visible invisible. Anyone familiar wnh the
ways in which the United Nations human rights discursivity IS produced
needs no instruction in understanding how the final texts render invisible
the original, :lJld often lofty, aspiration. There is also the d;mC!l~ioll or
• All area In whkh JOmc slgl1lficant work 11 polmcal scIence h;l.~ begun 10 tlUiIt'
prollllSlIIg COlllrlbullOn III terms of dIfferential autonomy of policy ~nd 5UIC ;KW
rS
:
~. EA Nordllll~r (1981). RobertO M. Un~r (1984), III a dlffcrcm Vi:L11. Jdd~
lhe methodological. msutuuonal. OCCUpatIOnal. and 'SUbsUIIIIVC' autonomy I.fthc 1;1
, Jean Ibudnlbrd (1975).
Too Many or Too Few Human Rights? 99
~ism of the producers, be they the authors of internatiorul human
rilhu, the makers of modern cOllStitutions. or the NGOs who smpe (or
dUnk that they shape) many a new enunciation. In a ~nse, then, human
....usproduction often also enuils patterns of~uction. a loss oforders
"rel1exivity ofwhat is being produced at whose cost and for whosc= galli,
ind«d to the point of being afimakd production.
The 'overproduction' metaphor conceals from view the human rights
authorship ofthe violated. When production of human nghts normativity
is S«T1 primarily, or even wholly, as an act ofcollective labour of bleary-
cyeddraftspcrsons and negotiators somehow hammenngout. in the uncanny
early morning moments, the last minute consensus on an accepuble
phrase_regime, one is looking exclusively at the process ofenunciation as
III aspect of heroic enterprise by imernational career bureaucr.lts, diplo-
... and privileged professional N GOs. The eosmopoliu n labour thus
iaftsted makes possible human rights instruments. A full history of the
processes of governmental and activist diplomacy in the making of con-
tanporary human rights has yet to be written. Such narratives will, no
4oubt, testify to the considerable body of N CO achievement, both in
-.ns of their accelerated learning curve in handling international nego-
dMionsand their fl7lctured integrity in the production of authentic human
liFts nonns and sundards. Because compromise is inevitable in the final
Iacb rtl1~ing divergent state and 2Ctlvist agenda and concerns, activist
...,cyalms at the produo ion of 'overlapping consensus06 that now so
ill:n:dibly informs :acts of global hunun rights diplomacy.
II. Suffering
1c ~tives of both the production of politics and the politics of
tmduction, however. remain inadequate without a gnsp ofthe historical
~
Iivro expcri~nce. of. huma~ suffering caused by human violation,
. ~ not qUIte live III public memory. We need, 011 this register. to
:'-ingUish between the catastrophic imposition of suffering and the
~yness' of human. and human righ ts, violation. Catastrophic via-
0( tadoften paves the way for authentic consensus in naming the order
'IIIinsleal evil (genocide, apartheid, torture, sexual exploitation crimes
fDhib t humanity, for example) and fashions human rights lcchnoiogies to
~tt where possible and punish where necessary such forms of gross,
~ng, and flagrant human violation. Even for such situations, as the
story of Raphael Lcmkin (who invented the term genocide and
" Invoke here UIIS ferund notlOIl ofJoon Rawls (1993a).

62. 100 The Future of IIUnIan Right!>
worked himself to dath in penury to persuade governments and Statts
to outlaw it) mimmalist definitions of proscribed state and indlVidlQl
conduct rule the roost?
Between I-Iolocaustian suffering and human rights enunciation fall
the shadow of sovereignty; the translation from human/social sufTcnn;
to an ordering ofhuman rights responsiveness and ruponsiblhty rClTlai~
the slow but assiduous labour of production across ~neratlons as fUlly
exemplified by at least a century-old exertions that now mature In t~
creation of an International Criminal Court, whose Statute provides an
impressive array of potentiality to penalize catastrophic human violation.
From the standpoint ofwomen's rights as hum.an rightS, Article 7(2)(1) of
the Statute remains a mOSt remarkable adv;lIlcc indeed.s Even so, 'crimes
of aggression' specifically left undefined (and, therefore, unindlctable)
will cntail decades ofdefinitional labour; further, the provision that lIlVCSts
the Security Council to abate prosecutions for the crimes designated by
the Statute may limit, overall, the real life operation ofa frab'lle conSensus
now textualizcd.9
Forever inadequate, sllch incremental accretion of
human rights production remains the best bet, as it were. Even on a register
ofrebellion at horrendous human, and human rights, violation all we have
is the scale ofevolutionary historic world time. The problematic of/ram·
llI/iot! ofthe atastrophic forms ofsuffcring into languages of hUlmn, and
human rights. still haunts human rights futures now-in-the-malang.
Recalcitrant fomls of the eve.rydayness of human, and human rights,
violation also pose the problematic of translation. Not as dramatic as the
procluction of Holocaustian human/social suffering, everyday experience
ofsuffering caused by starvation, malnutrition, hunger and related forms
of mass impoverishment and daily disenfranchisement of dIsadvantaged
persons and peoples invites only forms of slow motion human rights
responsibility and responsiveness. One has, for ex::I.mple,just to read word
byword the proceedings ofthe United Nations Rome Summitconceromg
human right to food, and plus-five review and retrospection, to realize Its
constitutive ambiguities, which mark and measure the distance be~n
norm enunciation and human suffering. I refrain from any aggtawung
analysis here ofthe Millennial Declaration and the most recently rcleast'<l
Draft Report of the United Nations Millennial Projcct.lO
7 Salllanth~ l'uwer (2002) pp. 15-60.
• d ILn dus
It cnhauecs the range of CTLm('s against humamty by mclu LIllo> WLt L
ntt"gory: ·rape:. 5t":xu;I1 slavery. ('nforero pro:;tltution, f()l'"cfd pregnancy. enfurced stC
r
-
LILUtlon. or any othc-r fonn of sexual violence ofeompar.abk gravity'
9 &e. Knangsak KimehaL5arcc (2001) at 27-37, 206-55.
10 Sec. Umtt"d Nallons (23 $epte'mber 20(4).
Too Many or Too Few Iluman Right!>? 101
The production ofhum:lIl rights nonnativity, oven.Il, suggests a difficult
.elaponship to human suffering. The slow motion tn.nslation is the first
,. of difficulty; the second stands furnished by the forms of fractured
~nsuS. the necessarily compromistie formulations that alone marshal
iDttrstate consensus, the.anarchic state-party conduct encapsulated 10 the
~ to frame reservatlons/derogauons, even concernmg the principal
~ and.purposes ofcarefully.ne.gol1~tcd treat~~s:II The Site of Im~le.­
.-mtacion IS often marked by dlfferenllal capabIlities of State, and CIVIl
ICJCic"rY. actors; delivering human rights to rightless peoples and persons is
eft'II more difficult than accomplishing normative enunciation. 12 The
iIurth site provides a register, which elides insurrection and repression.
When suffering peoples take their human rights seriously enough to
aebd. whether by everyday micro and at times larger patterns of macro
(llisance, we witness some radical assertions ofh1l111an righL'i production
. . implementation from below. As Michael Burawoy evocatively de-
ICIibes this:
politics docs nm hang from clouds; Lt nscs from the ground: and when the
_'..... tremhles, so does it. In short, while produellon politics nuy nOI h~ve a
effect on politics, itncvcrtheless 5("15 11111115 on and precipitates interventions
_ lUte.1)
lD mponse, human rights, as languages of govenlance, come instantly,
....I100 often, into play. Subaltern militmt conduct and movement that
~ macropolitical redistributive shifts (such as food riots, occupation
public premises by the homeless, violent uprooting of genetically
• cd food products, civil disobedience directed against large irrigation
~and mega-urbanization. and polity reconfiguring 'separatist', 'self-
tilttrmination', or secession) stands presented on thIS register as instantly
'-nan rights' threatening. As languab~ of governance, human rights
~sstand all too often deployed in the service of production ofbelief
~s I~ 'l~w and order', public security, combating criminality and acts
'trrronsm . These forms ofstate resistance adversely affect the W2YS of
IlSee C
u .tupte'f 6.
ec...!IS
ISmost conspicuously viSible even In ~ mhol post-apartheid South African
-co.., lion,which mxle enforceable &QClal and economIC nghu. The ConstilUtion~1
~....,,"'," alremy begun th.c proceu of COllver~II.JIL of theiit' ellforce~ble rights into
't. of public pohcy, deferrmg to the 50verC
lgrl prcl"'OgoltLve of the C-XCQltivc. It
fot elQnlple, held that Ihe right 1
0 hO
U
$1I18 1
5 only a nght to :llXe~s to an
~~~~:~f::j~~'~::~; policy and process. St.~, for a mose recent statement.

63. 102 The Future of 1·luman Rights
human rights production and implementation. The I~cs of colleCttVf;
hunun security trump even minimal observllncc of basiC human rights
in mallyasituation.Those subjected to everyday experiences ofrightlC)sness
and human viol.a.tioll stand subjected to a code of human rights re~POn_
sibllities; protest at their plight becomes legitimate only within the wider
logics of 'collecuve' human security and development. At stake, clearly,
here are issues wider dun the indictment of 'overproduction' may ever
fully invoke. . '
However, the relationship between the expenence ofsuffenng and the
impulse towards resistance, the labour ofsuffering, remains contingent at
least in three ways. First, patterns of solidarity that guide common
programmes of resistance vary according to the 'nature' and 'scale of thc
production and distribution ofhuman/social suffering. For ex:Imple, food
riots do nOt always occur during faminesl4
and occur even less, under-
standably enough, during the wars ofstarvation.IS S.econd, be.licfsystems
that constitute faith communities minimize potential for resistance; hu-
man rights languages do not have the slighteSt ~r to overcome suffering
which comes to human beings as God's gift or curse. Nor may, by the same
token dissentient and heretical interpretive communities rcconstnlet 'tn-
dition~' via any significant recourse to 'secular' human rights cnunciations.
Equality before Allah may be radically construed to ensure equality before
mcnl6 and, indeed. may enhance women's rights as human TIghts; at me
same time, piety and fidelity to the word ofGod must remain thegnmdnonn,
even for Islamic women in resistance.
TIlird, while the remarkable power, even prowess. ofsocial movemen~
old as wdl as the new, contribute to increasing legibility of human/social
suffering (making suffering legible constitutes, as it were, the very soul of
human rights and social activism), onc may note ruefully that such move.-
ments may problematizc human/social suffering only eclectically. eve~ If
in the very best sense of the term. The languages, logics, and paT2logtcs
of human rights do not coequally attend to all the estateS of hunUIl
suffering. They prioritizc the relation between human suffering and h~­
nun rights differentially as their discursive work proceeds through C
national, regiOlul, and global networks. Thus, for eXlllmple, basiC hU~
ri...llts claims of people with disabilities have yet to find a force ~~
til' . . ' Furtll<.r.
movement that transforms them into afull nonnative enunclatton. f
the 'jurisdiction' (reach) of rnovcmments d~ not match thc praxes 0
14 Ammya Sen (1981): M,ke Dn,s (2001).
IJ Sec. JOilllna Macrae and AlllhQny Zw. (1994).
16 Shaheen Sardar Ah (2002).
Too Many or Too Few Iluman Rights? 103
~ of popular sovereignty, in the deepest sense ofcounterin[¢marshal-
Iiogfunposlllg an overweening allegiance of state and society. Fonns of
pcoric and programmatic aspiT2lion and achievcment lead neces~rily to
spcciJlization in responding to hllnunlsocial suffering. Tosay thiS IS to pose
_ contndlction betWttn the concrete labour ofhuman suffenng and the
abstract labour of the production of univcrsal human rights lal1gtlab~s.
In ally evclll, thc labours ofsuffcring (that is, acts, practices, formations
~ ~isQIlCC' that question the legitimacy of sources of suffering) rurnish
cht ., history of authorship of human rights and their futures. Any
6acu~ writing of the history of the formation of 'overlapping consensus'
III intentational human rights production presents a contested terrain.
How may we relate thus the lived labours of suffering with the human
riFts diplomacy, necessarily overwhelmed by usks of negotiation that
IOIIIdK>w render amendable, often heavily 'bradcr:ted', texts ripe for lin-
.-acresolution by the community ofthe heroic rights-producers? How
.., wt distinguish the difference of degree, even of kind, between the
~ but vital sectors ofinternational human rights production and the
;..J sectors of dIe norm-creative political economy of human Tights?
... bbours of the social reproduction of the labours ofsuffering sund
.... transacted? How do patterns of activist human rights diplomacy
wpoduce, even replace, this vast informal sector? Unlond, and mil7lcu-
t..Iy ,urvivlllg, 'post-Marxian' folks may even say that continual illIlD-
:...aoo III forlll) of human and social suffering signifies performances in
....wcltlon; that is, the more the production ofhuman rights norms and
~, the less visible become the material sources of their violation
..the differcnt modes ofproduction merely tIS(: the specucle ofhulluni
..aaJ suffering as raw materials for the strategic production or Overpro-
iIIaionserving the manifold strategic ends ofgovernance and domin:nion.
Ill. Production and Markets
!:anotion of 'production' is usually associated with markets. Human
~rkcts (brieOyexplored in Chapter 7) include both marketsfor. and
~ n ngllts. In the imagery of market, human rights enunciations
-.;, ,of Course, as symbolic public goods and services that seck to
'caItun certain modcs ofthc production ofbelief.17 The production ofthe
~I sortw.lre' of contempor.ary human rights IS a complex and con-
"!'.....,'1<v· ;and a multi-layered, process, an understanding of which is
. for the notion of 'overproduction' to be at all sensible.
- . gt'ncl7olly. [n~ Kaul. tI 1M. (2003).

64. 104 The FulUre of Human Rights
In the absence, or more favourably put, the nascence ofa comparati~
social theory of human rights, I address here only the i~sue ~f overpro-
ductiOIl1S a contlictcd site. Overproduction implies a relatively (111)cfficient
business practice,one capable of redemption by planned dUl1lp~ng polic1Cs,
for eJQ.mple, manifest in (cruelly for captive markets) nghts-on ented good
go~mance policies of the World Bank. 'Overproduction' came~ with it
the management overload typically associated with the management of
excess. Ideally, production of goods and services should be marked by
efficiency, constructed as production not just in terms of the .quQmif}' but
also theqIUl/iry. In global markets. at rimes,costs of0vc:rprod~cnon of~
and services are passed on to captive consumer constltUenCiCS ofthe Thlr(1
World. Shockingly enough, this may also hold true even for [he production
ofcontemporary human rights norms and stmdards. For exa~ple, notjust
the White House and Capitol Hill, but distinguished Ammcan scholars
are often heard to say that the disinclination ohhe United States to ratity
international human rights instruments is understandable, even jl1stifieti,
by the existcnce of a nourishing tndnion of constitutional nghts and
judicial review.18 In comple~ ~Iain wo~ds, this means ~12l overp~oductJon
of human rights is an altru1Stlc exerc1
se for the bemghted Tlmd World
societies in their historic trySt with democr.atic self-governance, The 'logiC',
to.put the matter rather strongly, 1
5similar to that dcployed by the capums
ofshoddy pharmaceutical products in justifying expon ofhaz.ardous drugs
prohibited at homel . ' .
At the site of production, namely the Umted Nations system, effiCiency
in the production of contempon.ry intcmation~l human r.igh: St;ln~rd5
r.aises new and difficult issues19 as does the notion ofquality. EffiC1ency
18 The doyen of American human rights romlllunit)< Professor Loms l lenkm, for
c:x:..mple hlIs maintained this VleW consis~lldy. AI a rr:a:nt Harv..rd II1Iman Rights
Progran:me meeting edebr.lIUng the fift~nth year ofthe prognmmc (16-17 ~
ba 1999) he reiterated his VIew dUllllternatlonal human Tights nomls and sun ,_I
, U . -" s i r blCClllcnnw
may not be neeesury, or even deslnhle, or Ihe nll~'U utes, gIVen Ie
strong trachnon ofJlldieia review. . Ie vICi
19 Judgements about efficKncy of human nghts produetlon ",l1"'I<Iln comp "l)C11t
oonteiled as is frequently symbohzed by Jibes about fiBt and busmCSS cb~s frtq or
, """erN 111~Ianon
flyers deb3ting III five-sur hotel rom om SlnteSles concemlng ,._.. " fh T1~
nght to food. The question of unproductive elq)Clld,run: III the productlOIl (I foUr lilt
rights rebln to ways III whkh re$Ol.lrees could be channelled 10 PTOb'TllllUlleS 0
promOtion and procccuon of hunun nghts.
:lI The probkm of quality SlIgg6ts the followmg areas:
f d fl dClClIlll(n!).
(1) EffiCIency oflh( deliberauve process ludmg to production 0 n on ~1)Ii
c_ by " _ r b1 "pre~el1l;&U
effiCiency being measured "cn: conslu<:ratlOns 0 eqUlt'" C
panICipatlOn as .......:11 ;as levels of cxpcrMt or mSIght;
T oo Many or Too Few I luman Rights? 105
.-; <;und for cost-effective production of hUlllan rigllts standards and
gOI'fIls. This is a matter, but only in part, of available budgetary outlays
widun the United Nations system and additional costs lOtemahzed by the
,.mber stateS, relative to other priorities in the tield of promotion and
procrction ofhuman rights-o~entcd devclopl~c:nt polioes and progr:unmes.
Ifthe overall cost of production of human rights norms and standards is
IOsubsuntialthat mectingother rights-related priorities becomes difficult,
Iben one may adjudge the enunciative process as inefficient, provided that
one found a safe basis for assuming that such processes, 10 the tirst place,
aun af attainment of human rights.
The notions ofefficiency are further complicated by the insistence on
... uruver.wlity, interdependence, indiviSibility, and inalicmbility of hu-
__ nghts. Eminently desirable: according to the: prevailing models of
ICIi9ist human rights hegemonies, these four malltrtu introduce impon-
~ in the markets for the manufaclUrc/production of symbolic/de-
tiper public goods named as human rights. Judgements concerning the
e8icicncy and quality of the enunciation of human rights standards and
aonns arc indttd very difficult and, at times even impossible, even amidst
...snvours to achieve this.
Thil> becomes clear especially in the: struggles that seek to redefine the
aapc: of human rights by acts of tn.nslation of materUl and non-material
... IntO human rigllts languagt"s. The constant endeavour to convert
"'intO rights, howsoever problematic, is the hallmark ofcomcmporary
........ rights, However, such human rights ventures make difficult any
..... Judgement conceming efficiency and quality. To take a large ex-
1IIpIe: w~n Certain sets ofrights entail duties ofherc and now enforce-
_(as with the Covenant on C ivil and fblitieal Rights) and certain others
- IUbjttt only to the regime of 'progressive' realization (as with the
~ Clanty and eommll1l1cablhty (or tra~sbu.blhty) of negou~ted tamal outrolllC!i:
MInk
Lewl$ of conscllsus n:xhcd (on mdlVidual formulaUOIlS and the tCXt as a
~mensus bels bemg measured, Plnly, by the c:xtcllt of rcscrvanons.
~ , dedaratlons, and Statemellts of undcmandmg when the Tlghl enun·
whm Iakc$ the form of an ITlternanonal treaty and by patterns of voting power
ddin.II aSSUllieS forms ofdecbraoons or Il:solutlo!l5; sp«1ficlly or dlffusc:ness of
Gems of VIOlative behaVIOUrs and levels of xcounubllity mQllIIoring or
It for the promotion and protection, mdudmg stratepes
;:n ngtlll education:
cduru for collecuve reVlCW ~nd reformulation that go beyond those
I III ~nns ofpius-SOl'" plus-IO Umtcd Nauoru revkwconferences
IntemaUonal human nghtol declarations.

65. 106 The Future of Human Rights
Covenant on Social. Economic and Cultunl Rights) how does
the four ma"'ms in the evaluation of the effectiveness of rights:nc: a~
11le constant endeavour to convert needs into rights results C{;Tllc:5)
ofrights enunciations: at times described as 'generations' of rights~n w~
declared by a colour scheme of 'blue', 'red', and 'green' humall,attl~
Those visually di~bled (political correcmess forbids the usc ofth nghll.'
sian 'colour-blind') folks ouy not quite know which colour; CXpres.
signify the emerging recognition of the collective rights of thei ~
investor, global corpontions, and intemational financial Cl.Plta1_inO:~1gn
of global capitalism. BUI this much is compellingly clear: the erne on,
collective human rights ofglobal capital present a fonnidable chal1cll~t
the pandigm inaug~m,ted by the .Universal Declantion ofHumallli~=
I have explored In the prece:d1l1g chapter the wa~ ill which the aston-
ishing quamiry of human rights production generates varieties of experi-
ences of skepticism and faith, These experiences form ways of reading
human rights, p:micularly in tenns of their ove:r- or under- productlOD.
I highlight here four principal ways of reading.
rv. Q uality Control in International
Human Rights Production
The question of how the production of human nghts iUay be best orp-
nized within the United Nations system has been with us ~mC(' the
Universal Dcdantion of Human Rights. The middle phase of the CoW
W2r witnessed severe: conteStation by the First World states ofthe unpr«-
edented nonmtive leadership of the Second and the Third bod Untced
Nations member-states. Their effortS included, for example, the <lSwn.
ing nonnative: fnmeworks like the Declarations of the New brld Infor-
mation and New International Economic Order. This contestation. (roI1l
time to time, raised the issue oflcgitimacy and quality contrOl of ~
creation. When First World states failed to abort or amend these Ie
diplomatic moves, they ambiguously abstained or voted ag2inst thest OIl
the floor of the General Assembly of the United Nations, for
Ail this led to some unusual doctrinal disputations ;md enlergen
CCS
, ~
I
. I •. bly reso1ul1'
examp e, some espoused the notion that the Genera rusetll ht-
and declarations concerning human rights produce 'soft' law (aI 'I"~
. , ' I h . I l actualU
mlsm lor saymg t 12t t esc were devOId of any po LIIca or. . ~htf1
rights praxis/effect). Some others maintained that th,is ',
soft 13"bcclIII"
freque:ntly reiterated in subsequent textual practice, dId, Indeed,
11 See, Johan Galrung (1994) 151--6.
Too Many or Too Few I-Iu!nan Rights? 107
is. II acqUired some sort ofCllstom2ry obligatory status,22 The
(mJuel1t textual rtitention of th2t which was originally not
........ :acts of Telter.ation IIlto 'law' (a code of bmdmg norms for
;".'0<")has furnished an IInpomm resource for dIe development
iI*f1l<I0olul law of human rights. The narr.Ulves of origtns and
l
::~~~n:o~.u
~-,on remaIn an Important aspect ofany compantive social
a task I do not pursue here.
:
2:~~:~~~;::::.~!~th~e organiz:at1on21 efficiency of the production of
Within the United Nations system haunts the
fJI contemPOrary human rights. It understandably nises questions
.II..&'DC bicn.rchic control over rights production-questions that re-
relevant in the post-Cold War tirnespace, Increasing au-
agencies Within the system is seen as hazard that ought to be
as Illustrated by the debate over the Right to Deveiopment.2J
. manner in which the U nited Nations Treaty Bodies through
of Ceneral Comments precipitate somewhat unan-
obligation:; upon state parties now begins to emerge as a
For example, the Convention on Elimination of Discrimi-
:
::'~""7,omen (CEDAW), in its textual formulation. barring the
ofArticle: 6 rc:latlllg to the: outlawry ofsex-trafficking-
In lIS orlgma! IIltcnuon, WIth dis<rimiMtiOtl, not vioitrlCe,
. Even when the CEDAWArticles 14 and 16seek to obligate
to ehmlllatc, or 2t least to combat, g.:nder discriminatory
-f,..
Wn""dy relations and arnngements, they do not address these
, , ,"Ilmare, andsustairlLd violaru", oj.a,.d violma agoitut, IWI/In! .
ckvice of the Genenl Conunellt, the: CEDAW Committee:
SO~t to ~dress tius lack by ensing the distinction between
::::~nJct: The reports, v.:hich the state parties are required
obhga. ' mrnlttec: (under Article 28), now e:ntail further infor-
(JOIlS on I measures on both counts. While this is
c _ tnnsformation of treaty-obligations thus
, ont1l1ue to contested
UDII~d Nations s St f S . . I
m dh' y em 0 pecla Rapporteurs (beings who are
~~l~
ffi
~ fields or have expertise thrust upon them) also
C IClellCY discou . tl hi' I
Qu I rse troug t Ie Ie t emergent need of
a lty Management. ~ h ier~rchical management science
I Wish to mdlClilt Illl! dcliber:lIle aluence of eltallons! The
which mil fill several floors of
nlode f readers to follow th'$ dlKOUrsc on dlClr own, unltd
l oa fOOtnote CHatlon, whl(:h would he so:ver:d ~ long!
(1985): PhlhpAlston (1991); bUi $«, Upendra 8axJ (199&),

66. 108 The Future of H uman Rights
notion that. one hopes. will tIt'lltr inflict the discourse on the multIfarious
and anarchic human rights creation!). However, the Issues that ariSe do
need a brief mention. First, aside from the issues of cybcrnc=tic COntrol
wtthm the UN hierarchy on the production ofhuman rights norms, thc~
is the question of matulgt'mtlll ofprolifaatioll, viul to the credibilIty of the
enterprise ofrights-creation entrepreneurship, especially III the conversion
ofhuman needs into human rights. May we tJtCroDrily translate all human
needs into human rights languages? To quote Milan Kundera:
The world has become nun's right wd everything has to become ~ righl. the deSIre
for 1~ the right to I~; the desire for ITSI the right to reSI; the de~ire for
friendship the right to friendship; the desire to exceed the speed Inuit the right
to exc«d the spttd limit; the desire for happiness the right to h~ppllless; the deSIre
to publish a book a right to publish a book; the desire to shout III the strCCt In
the middle of night a right to shout in the middle of the lIighl.24
While Kundera perhaps ignores the nerd to tr.lIlslate certain human needs
into hllm:m rights,25 he docs bring home the mindlessness ofthe enterprise
ofCOilversion ofeach and every humall desire, need, or wane into a regime
ofhuman rights governed by the fout man/rlU! This indicUllcnt of mind-
lessness, I believe, assumes importance under the pandigJnatic transition
from the UDHH. to the market-friendly, trade-related mode of human
rights production (I elaborate this in Chapter 8). Global capital also launches
enterprises that seek to conven its needs into a human rights pan.digm.
Is this per st less eligible,lwonhy?
Second, the consunt conversion of needs into rights assumes that the
rights-regime is the principal mechanism for arranging human well-being.
Nonnative renderings ofhunun needs into human rights, it is true, create
a space empowering people's movements to expose comradictions be-
tween political thetoric and structures ofincquity. Occasionally. theactivist
adjudicatory powet and process may also. besides sharpening the contra-
diction, deliver some:: rral results, as the experience:: of the Indian social
action litigation suggcsts.26 But more often than not the rights languages
seem to cnhance:: the power of the state. For example, the right to health
must, in some measure, empower state:: action on medical education and
profeSSIon; the right to housing must empower the state to regulate markets
24 Milan Kundcn. (1991). Even Kunden did not, unforlunately, allllclp~le Ihe lopes)
o rGuamallllllO ll~y and Abu Ghnib: see. the poignant analYSIS10 Mark Danner (~
and the Lawyer', eoUl/muee ror Ilurnan Rights (2003).
25 See,JOh:.ul Glltung (1994), who addresses the lacunae III conu~lIlponry hUIlWl
nghtS sund~rds III non-recognition or the ngllt to sleep or dcJ~ltc whIch m~ru:r III
circumstances of ~prnsl~ tonu~.
416 Sec. Satyaranp.n P. Sathe (2002) and materials cited Iherc.
Too Many or Too Few I lumall Rights? 109
III ~I propeny and at times even empower 11 to confiscate large urban
etD'Cs in ways dee~ly violative of the human right to properTy; the nght
education and literacy must empower the state to regulate the free
~t in the provision ofeducational services. In the process, the bureau-
c:ratiution/mechanization ofhllm.an rights occurs In ways that are inimIcal
110 nghts.attalllment. This bureaucratization of human nghts, in rum,
augments among the ostensible benefiCIaries the culture of despair con-
ceming human rights.
V. The COSts of Human Rights Inflation
Some readings question the value and the utility of innation of human
rights. The question of 'costs' ofoverproduction raises several consider-
ations. First, there is the issue of resources allocated, within the U nited
Nacions system. to the production, promotion, and protection ofhuman
Jisbts. On an expansive view of these phrases, almost all the resources
would in onc way Ot the other seem to be dedicated to these goals, while
my agency-specific count the human rights allocation would appear
-.m.ndy in need ofaugmelltalion. Additional protocols to human rights
1IaOes (as is the case with the recent welcome Protocol for CEDAW) entail
lillmrdiate here and now budgetary allocation. Pleas for increased alloca-
for human tights promotion activity have been intensified with, and
~. the Vienn.a Conference on Human Rights. Whatever be the dd hoc
flllDlutiOIl of the matter. the larger issue ofcosts rdali~ to benefits from
htmcnt on human rights will always cecite contention among the
'iilnnber States, agencies, and accredited NGO communities.
Second, the issuc ofsocialization ofcosts for human rights activities of
t.r UnIted Nations system has led to a critical exchange between the
NGos and the system. The United Nations Development Programme
~P) ways of mainstreaming ofhu111an rights justified the raising of
ces from global corporations (inclusive of the worst violators of
~ rig?ts) evoked contesution as symptomatic of the coming crises
*tai
l'C$Qurcll1g the human rights agenda.v The socialization of costs of
~tunlllg human rights agenda now renders 'legitimate' partnership
GIoba7tne offending mul~illatiollals~ especially via Kofi Annan-ill~pired
Compact (as we bneny note 10 C haptcr 9). Equal partnershIp is a
n
A
G
: up or NGOs recently queried the UNDP'. mltlative al esublishmg $2
~l SusQIrI~ble Development FOICiilty, WIth I11lI1al 5CCd money endowments
corporanolU WIth the mO$I t'gfegtOUs hlllmn righu viol~tion record. For lhe
or correspondence, and nlmules of the NGO mectlllg WIth the UNDP.
""""'.COrpu'o:"rh.O!J. '

67. 110 Th~ Furur~ of 1·lurnan Rights
nice sounding. even stunning. phrase; it, nevenheless, carries the potential
symbolic, and indeed 'real', COSts for legitimation ofhmnan rights CUltures.
There are some real lessons to be learnt here from comparable cOntrover~
sics on 'foreign' funding of South NGOs and governmental agenciC'S.
Docs this endless normativity ~rform any uscful function in the 'real'
world? Is there an effective communication (to invoke Galtung's tri-
chotomy) among the norm-senders (the UN system), norm-receivers
(sovereign states), :md norm-objccts (those for whose benefit the rights
enunciations are said to have been nude)?2lI
Who stands to benefit the mOSt
by fonnslforums ofthe overproduction ofhuman rights norms and Stan_
dards? Or is it merely a symplOm ofgrowing democratic deficit, directed
to redrfiS legitimation traffic between nonn-senders (the UN system) and
nonn-rtteivers (the member-states)?
Vl. Over-politicization?
A third reading. from the standpoint ofhigil moral theory, warns us against
the danger of the assumption that the languages of hum:1.I1 rights arc mc
only, or the very best. morallanguagt's we have. lluman rlghe. languages
are hybrid ethicallangua~s affirmingcontradictory values: soven:ignty and
self-determination, property and redistribution, autonomy and solidanty,
equality and hierarchy in international orderings (as with the Security
Council and With nuclear prowess), globalization ofconditions ofextreme
impoverishment and human 'dignity'.
Were we [0 conceive human rights as markers ofcontestation ofclaims
that necessarily enbil mediation through authoritative state illstrumen~i­
ties, including contingent feats of adjudicatory activism. overprodUcDon
thesis locates social movements on the grid of power. Being ul[imately
state-bound, even the best of all rights-pcrfonnances (as has been o~ten
noted in progressive critique of human rights) typically professionahzc,
atomize and de-(:ollectivize energies for social resistance, and do no[always
re-cne~ze social policy, state responsiveness, civic empathy; and political
mobilization. Not alt~ther denying the creativity of rights 1a11~
this reading minimizes its role, stressing instead the historic potentla.l 0
lived relations ofsOicrifice, support, and solidarity in the midst ofsuffcnng.
VI I. Participation as a Value
A fourth reading vieW5 production of human rigllts as, perhaps, the ~t
hope there is for a participative making. and rc-nukmg, ofhumOin fuw .
lfI See, Joh:rn Galtung (199-4) 56-70.
Too Many or Too Few Iluman Rights? III
• _un1CS a world historic moment in which neither the IIlstitutions of
OInee nor the processes of mOirket, singly or in combination, are
::=;t equipped to fashionjusl JW/PItJtljuluftj, It thrives on the potentlal
ol"."nt5' pclililJ (not as a sySltm but as chaos), which mOly only emer~ by
III ensemble ofsingular energies ofdedic:uion by NGOs (local, national,
regional, supranational, and global.) No other undersbnding ofwomen's
movements celebrating the motto 'Women's Rights are Iluman Rights' is,
pcnmplc. possible exc~pt tlte one which regards as lustorically necessary
tad feasible the overthrow, by global praxis, of univcrsal patriarchy in all
lID vnted :md invested sites. This reading Sttks to combat patriarchy
pcmstent even i~ t~e making of ~uman rights and ~ ~xplor~ ways of
OfCfComing the hmlts of human nghts languages, which constitute very
a6en the limits of human rights action.
All the same, 'participation' represents a complex, and contested, ter-
... We, at le:lSt, need to distinguish several realms: participation as
l:Iegroundingstniggles to formulate 'concrete' rather than 'abstract' human
tft'Its nomIS OInd sbndards; participation for implementation amidst the
IIrady atuined norms and stmdards somehow formulated throllgll ilU-
~ rights diplomacy; and participation :lS fOrlllS of coequal, power/
'lllliamce movement for the ren0V2tion of extant norms and standards.
three distinct. but related. 'moments', Impertinently speak to the
~ of human rights 111 different accenWinOections. There is further
~ the issues of 'costs' and 'gains' of participOition. best featured in
-.:king statement concerning workers' participation, equally applicable
human rights production: 'YOII participate, II-'t' participat~, but ',emakes
the profit'! Deciphering the constitutive ambiguities of 'participation'
tllraains an important task for those who pursue human rights futures.
'IIIeed. these haullt the very notion of 'participation,.29
VIII. Interrogating the Overproduction Thesis
Afifth reading questions the ~ry notion ofowrproductiotl ofhuman rights
~ and standards. Not merely does the global enunciation of rights
~ong, often elephantine, gcsbtion pcriods30 but also much normative
.... .produces, more often, only 'soft' human rights law (exhortati~
btJOIlS, declarations, codes ofconduct, etc.), which do 110t reach, or
Sec. for a rcfined diSCOUrse. Ibrry Rnghousc (1996) pp. 187-208.
I~ the ease wilh Ihe Dccl;lt1luon of the RII~hts of Indlgt"MUJ Peoples which
~ a Iasl fronuct of comenlporary human ngJlIs d~"dopmem_ M. Chcnf
(1994) ofT~ra a u$(:ful approach 10 lhe normatlVC sugn, willch he ebssiflCS
,decbt1lllVe, prncnptlVC, enforc~mcm, and cTlmmahution sugcs.

68. 112 The Furore of Human Rights
even at times aspire. to the status ofoperative nonns ofconduct. The 'hard'
law enunciauons of human rights, which become enforceable norms. It
may be argued, are very few and low in intensity ofapplicallon. ContCIl.
pon.ry human rights production remams both sub--optimal (wh~tever may
be said in comparison with the 'modem' period) and inadequate. Tht' task
is. on this View, to achieve an optimal produCtion of internationally en.
force:llble human rights.
IX. Too Many Rights, or Too Few?
These ways ofreading GlIT)' within them all kinds ofimpacts on the nature
:lind future of human rights. A fuller understanding of these impacts is an
important :IIspcctofsocial theory ofhuman rights. Clearly, those inclined to
believe the overproduction thesis would marshal abundant support for the
vit:w that we have too many rights enunciations. With equal cogency, those:
inclined to 'put human rights to work' may maintain that 'real'human rights
are tOO few. T hose who feci excluded from the contemporary human rights
regime (in parucu!:1lr, the prou.gonists ofhuman right to sexual onenution
or. more gencrally, to a non-homophobic dominantculture ofgovern:mce)
may, with conSiderablejustification, maintain that the tasbofhuman rights
enunciation havcJust barely begun. And. in a curious supplemclltaTlty. the
:llgents and managers ofglobaliz.:lltion ioslst that there il> greater t>eopc and
nero to protect the human riglns of global capital III ItS great march to
progress through digitalization and biotechnology.31 Equally. those con·
ccmcd widl the rights of'naturc' and sentient beings (other than human
beings) lament the p.tucity ofrelev:mt human rigllts standards and norms.
This not ofperceptions conceming over-lunder-production ofbunun
rights nonnativity .trises due to the titanic clash oftwO cultures ofhuman
rights: the culture of the politics of human rights and.dlat of the .po~u~
for human rights. The latter combats as overproduction dIe re81m
protection of the rights of global Glpital, while celebrating the n~oI
h Co
1._ · . oductlon
emergent rights ofp«)ples. T c onner sec~ parsllllony III pr I
new human rights standards and nonns that serve the values ofUIll.vc,;
Declaration ofl luman R1g1lts, while being hospitable to the caplI.al-fnenl ~
human rights enunciations (witness the prolifer~tion ofthe WTO lega In
" I M 1"1 I A.....c e IllC[lt 0
and the n:cently demised draft proposa s on uti atera ''I;'
Investment (MAl)). IghtS
No reasoned Judgement on the mode of productio~ of hum~~1 ~t Will
is thus possible. One would go so far as to say that none IS dt'slr~b .
kcl-fr.c:pd.ty
11 Sec, Chapters 8 and 9, for a full ebbonuon o( tnde_rdated. nur
para(hgln. now emergelll. of the human nghts of the global c.1Ip".1l1
Too Many or Too Few Human Rights? 113
my view, a sad moment in the fUnlre history ofhuman rights when
:';octucuon ofbcliefin the overproduction of human TIghts becomes
~I. despite the heavy questions thus far raised in this analysu.
X An Excursus in Human Rights Measurement
I did not attend, in the first edition of this book, to the complex, even
iJrbiddmg, writing on human rights measurement via 'mdlcators' and
"be8CfmWks' produced both within and outside the Umted Nation sys-
J because I then thought that this discourse belongro more to the
pare of accessing hu~an rights achicv.ement rather th:lln human rights
,...tuction. I now reahze that I was mistaken because fonns of human
~ measurement talk cannot be quite sep.trated from human rights
llelfuc:tion talk, and that the measurement talk thus far raises some ad-
IdcmaI issues for understanding human rights production/reproduction.
. . . DOW rather summarily follows offers, J hope, an evell more complex
8lerstandingof'contemporary' human rights production/reproduction.
~;=~:~~.~ measured when we ItIfd$ljrt hum:llll rigllts?This somewhat
~ question concerns the ways in which measuremcnt talk pro-
the very threshold to identify some core lisung of human rights.
iooIlif;"'l!tf" 'core' renders m:llny human rights enullci:1ltions peripheral.
'core' listing stands V21riously identified.lJ Ineluctable. thus, re-
me obstinate difficulties posed by hUlIlan nghts production; that,
is co be measured, escapes mcasuring. even lacks a measure!
of this talk, riglHly, relates to the 'progressl~ realization' ofthe
1Io~ ,,,1,,,,.1
, and economic human rigllts. What do we measure even
...II? Do we measure nonnative entitlements or codes of state
=~: thus arising? Or, do we measure states of fulfilmentlrealiza-
kinds of measures remain apt for the 'core' civil and political
the one hand, :lind the social, cultural, and economiC rights, on
I importance ofmeasurement literature both as a moment
oCIpponunity and of danger. The moment of opportunity needs to
",,,,,""",,, Gr~n (2001) now provtdes a recent, handy, and COIllp<'fCllt 5urwy ofthis
,~~,C:~:~""" (2001:1069) refers toJohll Gih.wn'. Dith"o"aryofllum~m Righu Law
that 'Identifies sixty.four human Tighu derIVed from mtCTll.lt!onal legal
fOUr hUIn~n rights derIved (rOlll the UN Dcdu'auon'. Unsatisfied by tillS,
(at IOn-6) $c:venl (unher notlOIl$ conecrmng the 'core COnlcnt' of

69. 114 The Future of Hum:ron Rights
~ taun seriously because it overflows the boundaries of the ~chnG­
narcIssistic human rights measurement pleasures. Vanous conStruC
tlonso(
measures described radler felicitously as 'indicators' and '~nchmarks' do
help a work~a-day measurement of huma~l rights perfornunces hut they
also ~ar theIr many statlstlcaVmeduxiol<>g1cal, as wdl as Idcological, huth.
marks. Measurement relates in a profound way to dIe patterns of the
politics of production, and indeed '~rproduction' of the poitucs oj, and
for, human rights. Philip Alston, with characteristic insight, identifies the
tasks thus involved in tcmts of ;promoting the usc ofappropnate lenni.
nology' and 'establishing social accounubility,.l5 On a wider level, mea.
surement talk thus seeks [Q facilitate disengagement of development
indicators from human rights.specific oncs. Put another way, the former
makr: human rights negotiable in the pur5Uit ofwider developmental policy
projects, whereas the latter posit non-negotiability ofcertain 11tIman rights
productions (human rights as trumps) in any form of planned pursuit of
development. Clearly, some development indic:nors also serve a<; the tasks
of human rights measurcment.36
But not all necessarily do this.37
The momcm of danger, on the other hand, stands constlluted by a
growangSlit1ltLs," oOmman rights talk/discourse. Autononllzatlon ofhuman
rights measures, whethcr through the languages of 'indicators', or me
qualitative langu.ges of '~l1chmarks', at the end of the day, furnLshes an
abund.nt shOWIng ofthe inexo",ble nexus between d}(: 'technic.tl' and tM
'ideological' in the very constitution of me human rights talk. Thr unlit}'.
and even value. ofthis talk lies in straddhng this disLlIlction ron ways tlul
furnish standards for here-and-now accountabiliry. Grass-roots human
rightsactivism maywdl find in this ramcrtechnized discourse some furthn
arsenal of the 'weapons ofthe weak'. At the same time, the measurements
talk needs translation into thevernacularand popular human righlSdlalectS.
Even so, I remain agnostic: I simply do not know how all human rights
sdentism may, after :l.1l, facilitate new human righlS fumrcs. [ say thiS
becauSt: scientism in other spheres (as we note in Chapter 8) now promotes
some orders of invidious distinctions between 'true' science and ~unk'
science. I do not quite know whether the growing scientism of the mea-
surement talk will same day create a disposition that regards the popular,
and activist. ways of mC:l.suring the fail ures and shortcomings of human
rights production as 'junk' science.
35 Philip Alston (1998). tiJI.
)6 For ex:llllplc, infant morulity. nutcmal health, htcncy and d elllenuryC"dI!CJ1
and absolute IlIlpovt:rlshment mdlcalOn. uctI"I1¥
37 For u.ample:. nauonal mcome. uvmgs, mduslnaland agrICultural prod
mdlcators.
-
5
Critiquing Rights
Politics of Identity and Difference
L Some Necessary NOtes on Reflexivity
oth in individual and associational :l.cts of life we are apt to reflect
the choices and decisions that we nuke, or may have made, and
l
t~~;:':~~in~~the context ofcircumstances we face, opportunities we have,
we may develop. Here 'reOection' suggeSts a kind ofwise
and acapacity for evaluation ofour conduct and revising our
Reflection also guides liS in rcl:l.ting or assessing our present
...,on '0< engagement with the world. ofwhich we arc a necessary part
stnse: at least ofbeing placed within it, and III ~lIlg in a 'reflexive
1I......."'·on widl the situation' at hand.I I-low we renect all our circum-
capabilitics, and choices and where we go in real life with our
to reflect, and indeed how far we may W;lIlt to develop these
~main vast and open questions.2 Nor is it clear that our powers
~:;::~;.~ for reflection necessarily lead us to 1110",1 action or ethical
1 Rational reflection often remains instrumenul in temIS of rela·
of means [Q ends that we chooSt: to pursue; and it is not always the
that rarioru.1choice and action neccssarily serve altruistic interests or
~:: In this ~nsc, perhaps, one may view reflection in terms of
k thinking 'as opposed to 'meditative thinking.'l
Ik.a..
'rbr ~pacity for reflection itself now stands variously problematized in
..... SOcial theory as 'reflexivity'. This is a notion with many historics.~
~ DJ. 5<ho" (1983) 242.
~....
""
.."e:Qmple, we as humans, surrender at umes our mdlvldual and coil"l,:tlvt'
fo to reflect to SOllie: wider force or e:nmy oUls,de: God, or some supreme
otee, an 1.'oscmbl.tgC of ,han~ll1auc figur.lUon or persolUge, UlsutU(10ns such
I ~"",,,.;,proccsSC:$ of production, exch:ange, and cOllsumpdoll typified by lIIarkel,
• produced by culture:, dOnuu(1on, and IIIStory.
th~1 Martm Ilc,de&>er (1996) gcrmmally otTers.
fotan llIteI"CSungOVCIVl(:W, MlU"tlil O'Bncn. Sue Penna, and Colm Hay (cds)

70. 116 The- FuturC' of Ifuman Rights
In one: se:nse:, rdlexivity implie-s and entails the: practice:s of radical d
and insecurity conce:ming the sources ofour capacity to know and un~u~
stand the: world and our powers to act within it. We: explorC' tillS. In ~.
follOW'S (as also in the: e:nsuing chapter), in the contextS of the: nuraW t
f" 1'" I . • d' . , d · I' , by«
o . ~mve~h Ity, re atlVlsm
d
.' 'In antHoun atlona Ism . These reflt'xivt
critiques t row open to ra 1
01 unceruinty the fonm ofconfidence: th
which some of us may articulately assert hunun rights ide;!.I.!>, va~
languages, standards, and even norms that address their 'unlvt'rsality~'
In anothC'rsense:, discourse concerning reflexivity now stands pr~n 'ed
in languages of'reflexive modernization', referring to large·scale proces'
of global historical transformation.s Reflexivity involves two fdal:
but distinct notions concerning construction of self in society and th
production ofIht' social. 'Structural'finstitutional' reflexivity rt'fers to th:
use ofinformation about the conditions of;l(tivity as a means ofordering
and redcfining what that activity is,.6 Put another way, It 'consists in
the fact that social practices arc constantly examined and rt'formed in the-
light of incoming information about these very practices. Ihm altering
their character'.7
In this se:nse, production and consumption or the activity ofmaking and
exercising human rights art' dearly social practices. The myriad social
practices of the: making of human rights-both tvtryday and tXlraoroirUJry
production' of human rights nornlS, sundards, and values-at all levcl~
(international, supranational, regional, national) remain indubit2bly a rC'.
flCXl,(, process. Institutional rel1exivity,:IS concerns the making of human
rights, occurs at many a site, the United Nations system and pcople/s
movements providing astoundingly dive~ registers.
Sdf-refle:xivity involves understanding 'the self as reflexively unckr·
stood by the person in tenns of his or her biography'.? This design.tto
a 'uniqudy hunun capacity to become a subject of oneself. to be both
a subject and an object,.10 In this double constitution, often noted JO
philosophical rel1ections on human rights ;;tond most notably in recent times
by Michel FouC;;t,ult, the subject of human rigllt is both se:lf..determming
5 S«. for a:llIlple. UITI(:h Beck, Anthony Giddens, and Scon ~h (1m).
Ii Anthony GIddens (1994) 86.
7 AmhollY Giddens (1990) 38.
• Tins workmg dIstinction rcfe-rs 10 forms of ralher roullne, as cOJT1~rcd Wlr~
exce-puon~l human nghts production. We m~y differ concernmg Ju,UfiOIIO
IlS r.
assigmng the production 10 one or the other cale8OI')' iiowcver, lIIost WIll ~gJC'C' ~
eltllllple. th~t Ihe Unl'e1'S)1 Declaralion of H uman Rights belongs to Ihe exu~ordu~cs.
~n«= com~rro wnh lIIuch of Its p~ny. I do not here develop further ex;unp
') Anthony Giddens (1991) 53.
10 Peter <AUero (2003).
Cmiquing Rights 117
...,delC'nnined.1I If the.stlb~e<:t is constituted (as Individ~1 persons or
,.riJIAcollectiVIty) by IUlVwg rigltu that se:rve: as caches of the basiC nutenal
well ~ non-material human needs satisfaction, this posse:ssiou of nghts
;'~t5, capacities, entitlementS) also make:s it into an object ofhunun
PfI.ttsW1thm given politicO-Juridical structures ofgovern.1IIlce. Put another
... the bearer of ~uman rights. a.t .[~le S-ame time IS also constmued as
IIcIfff of human nghts responslbllmes as defined by a gIVen Juridico-.
poIiIial ordering. Reflexive pracfices of resistance to domlllation also
~lI1g1y remain human rightS oriented. This then suggests the 'sources
aflClf' become increasingly human rights imbued. Increasingly, too, all
~ selves tend to be regarded preemint'ntly as human rights selves.
The fonnation of'selr as human rights selfenuils celebration ofhuman
....langu.tges logics and paralogics in prefert'nce to the ethicallanguagcs
"4utiesor of care; this invites JUSt Illt'asure of anxicty.12 Yet. few of us
...... ethically question the category of crimes against humanity, which
~ the human rights ofothers to be human and have basic human
Likrwise, contemporary IHlTnan rights movemellts restS se(:ure on
belief or assumption that ne:itht'r individuals nor groups may
renounce human rights; constitutive se:lf-determination notions
ntelld so far as authorizing se:lling onese:lf 11110 chattel or sexual
or slave·hke situ2tion.
self-refleXIvity complicates constructions of Idenmy because: it
well tlmltslS fonus and langua~ ofcontcmporary human rights
standards, and values. The choice ofbelongmg to a faith commu·
.....,10 a whole series of identitylidentification practices, which also
on appeals 10 human rightS and fundamental fr~onlS of the
and enjoyment of human right to freedom of conscience and
Yet, at the same time these communities re:strict the r.mgc ofrights
communities mayexercise.lndct'd, men and women
even contest other people: h2ving accc:ss to rights to freedom,
. in the discourse: concerningthe reproductive rightS ofwomen.
_ traditi~ns thu~ '~f1exiveIy' cOlllbinC' to.'frccze' the domi-
..... notions of IIltl1nate human aSSOCiation through varie-
. . ......
and
. , dense: scriptural exegesis of holy/sacred texts.
emergences of both individual and collective human rights self-
happen when sdf-reflexivity practices of the rightle:ss peoples
a certa~1l associational fOflll and historic dynamic. Such practices
senal human-and human rights-violation into collectively
. s« ,and inwhal order ofprlonty Ihese nt<ly bot hSlcd. rC'llllni dlffieull
. U . for ~ recent anal)'lilS. Ml.nhl NWisbaum (2000).
pcndn &xt (2003) ~nd the 1t1Cr:IlUrC' therenl CIted.

71. 118 The Future of Human Rights
shared and experienced histories of human violation, hurt. and h
These histories. as the working class movements suggest, protest bo~rlll.
structural and contingent articulations ofviolation ofhl1lnan-and I the
rights-violation, dlough this distinction is fr:llught Wlth mdeten~Uf11an
The individual rightless self of a worker becomes thus a mark I~f
• 1 • . f ' r 0 :It
Ul1Jvcrsa mlnllSCr:lltlon 0 the proletanat 'sclf' which thcn " '",
. . . .' mons
histone struggles for tr.msfonnallon arnculatmg assemblages of n,,1
h
. . Uall!
U~laIl rights rdlCXlve p~s. In a seemingly sharp COntrast, the State
pohey assembled C
ommUllItles ofmisfor1l,tIt' emerge from bemg situated '
what Ulrich lk<:k names as 'a global risk society'. However, the vieth'::;
of Bhop:ltl, Chemobyl, :ltnd Ogoniland experience their pligln as m1us,·
' r ~ a
not miSfOrtune. FornlS ofhuman rights reflexivity seriously contest mod
of drawing bright lines between, and amidst, misfortulle and illjllsliu. ts
Foun/" likewise at certain historical moments individu:ltl and collccti~
self-reflexivity pr:llctices begin to interrog:uc, and eveuto overthrow modes
of coloni:ltl and racist domination of the Ilon-Europe:ltn Other. These
pr:llcticc:s, in various Wllys, eventually install a people's right to self-detcr_
mi~lation a~d of~mlal~ent ~ereigntyovcr natUr:lIl resources, or the right
to Immulllty ag:l.IllSt Illstonc forms of colonization and the fight to be:
regarded as fully human regardless of one's place of national origins,
etimicity. sex, religious affiliation.
r1ji/t, not all rtjkxiw practices orientated to human righ ts signity the
resistance/emancipation dialectic. Put another WllY; nOt all reflexive prn-
[ices problematizc forms ofdominant power; only some do. All tOO often,
we may say. in a moment of Foucaldian lucidity, these Pr:llCtlces amount
merely to misla'llt' that change [he players but not the rules of the gallle;
in contnst. only pn.etices ofstrugyles adopt as their 'main objective' att2Cks
upon 'not so much such-or-sllch institution of power, or group, or elite
but, rather, a technique, a fonn of power'.1l
Overall, then, we need to trace histories as well as fUlures of human
rights at various intersections of institutionaVstructural self-reflexivity, 3
formidable task that I perforce address here in some perfunctory modes.
Both the 'modern' and 'contemporary' human rights paradignls, as de-
scribed 111 C hapter 2, stand characterized by feats of reflexivity. However.
the making of'modern' human rights, in the main, provided graTllmars of
political experience for the domination oftile non-European peoples and
the nnhless unmakingoftheir lifeworlds. Institutional reflt'xivity produced
practlCCS directed tow2fds the constitution of the human righ ts imbued
liberal self in the metropolis and human rightlessncss in the colonies.
u Fouc:Iult (2000) 331.
Critiqmng Rlghu 119
1D (OllU2St. reflexivity accompanying contemporary hununnghts pro-
. provides a complet~ly new spectr~m ofsocial (and hulIWI n ghts-
~) learning COllcernmg power. resIStanC
e, and nruggle It, overall,
~ some hopeful limit-situations for the ways of doing placs; hope-
tD;.~USt' one l11laginc:s that the practices and negotiation ofcbmnatlon
~n necessarily imbricated by some recourse to languages !rid logics
ofbunun rights, whether or not fully captured by dlstincu,* between
iJItf'DI-Jxmd and vaflle-basni politics and compliatingdlscoursemnceming
~
~~natiOn/imagerystands chastened/disciplined by au wareness
ofat &east twO brute facts concerning the forms of contempoory human
rilbts-Oriented production ofpolitics. First, while the processoofhuman
IfIfItsenunciations generate languages of human rights and fmdamental
6eedoms, they also provide 'reflexive' opportunities for righls-denying
pacckes of governance. Political forces and tendencies at onambscribe
ID mclusivt human rights as well as increasingly provide the lI1l'ailS and
JDOPt for the subversion of human rights by recourse to )mnfications'
lilted on the selfsame languages.I. Indeed, the invocation ofblguages of
IIaaan rights and fundamental freedoms in the doing of tht politics of
~ rights often boome.rangs as the recent~, even as lwrite, by
6e United States Senate Committee: and the British Lord Bader Com-
..utt reports so fully :ltnd powerfully suggest.IS
Second, everyday designingofcomplex and contr2dictory IJIIitiiayered
teauaJ enunciation of human rights norms and standards prondes plat-
lOmasforcontinual redefinition concemingconfronution overJRIIitutional
lad self-reflexivity. Self-reflexivity in an Age of Human Rightsmvolves a
...way praxes in which the selfemerges both as 'a bounded,ltructured,
aI;tct-Mcad's "we'" and as 'a fluid, agentic, and cre.ative ttSponse-
Mead's -1"",.16 The 'I-ness' and 'we-ness' thus produced by hlllLln rights
DOrms, standards, and values, remain shot through with indctenninate
bms of reflexive pnctices, to a point that confuses.
14 Thus, for eltOlmple. extensive SUSpc'nsi-on of C
IVil and polItical righlll ~ustified'
• krvicmg the pursUit of econonnc and SOCial rights. StiteS of en~rpcy justify
lilllptnslon of human rights by cOIISlder.lUOIISof collective secunty. In adltlOll, the
l"el:t'nt pandlomlc of human rights vl0lallon encoded by the ongC
l1ng It.. on terror'
Cfto~~ SOme new and '.rredumable forms of hUl1lan righdes~neSli.
Both, though III dlfTerent ways, suggeSt that no spc'clfic mdlVldwl IIInne-based
:--Iluybe held a(:countlbk conccming jusllflC:ttory falsehoods aboutek exiSt(:nce
Wt:ipons of mass destruction, whICh provlded the otJy )ustlficatlOn·...e was, or
CIb1~ l1lstllkd, for the l1lvaslon of 1""1 by the coaimon of willtng 5UIS.
Peter u.Ucro (2003).
1

72. .1
120 The Future of Iluman Itlghts
Not;lll p;utcrns ofevt'ryday production ofhum.an rights values, nonns
and sundards remain aniculately rdlexive. Wert it othervlI5e, hurna'
rights productlon-or the production of politics-will remain V
iSib;'
even spectacularly, crisis-ridden. Indeed, It requi res a considerable aCllvis;
ingenuity to expose die reflexivity ofdomination entailed. for example, In
the negotiation of the bilateral and multilateral treaties. in particular, bi-
lateral and multilateral LOvestment treaties that outsundingly 'trade away'
human rights (see Chapters 8 :md 9). InSlitudonal reflexivity produces, aU
too often, 'rdlcXlVlty from above', which then dialectically rumes historic
wks that confront 'reflexivity from bclow'.17The Janer foml often cvo~
public deliberation and protest facilit:uing the overthrow ofsome eminent
power-wielders who multifariously reproduce the structures of hUJn;l.n
righllessness. The question. however. ;j,S noted, is whether hUnldll rights
reflexivity from below tr.lIlsforms just the pln}'fr'S in the ga.me or the very
niles that constitute the gnmmdrs ofthe game dnd the notions of'playing'
and the 'game'. [n sum, neither notion is entirely freestanding. Put another
way. resisunt sdf-rellcxivity may as often serve the ends of dominance
(politics4hmm.n rights) as it may (via politicsJor human rights) serve the
ends of tr.l.Ilsformatlon of ' a technique, a form of power'.
Further, reflexivity slgmfies practices of human-rights pohtlC~ of pro-
ductiollthat dichotonuu the nonll and the fact. Not all values ofhunun
rightS constructed by everyday human fights production necessarily and
immediately result into operative norms and standards; neither do the
latter in fullness always serve the values already insulled. These IIlvolvt,
moreover, the routine ofeverydayness ofcitizen interpretation, and adju-
dicadve interpretation-forms that everywhere assume a life oftheir own.
No maner howsoever carefully crafted, the operative meanings ofhuman
rightS nomu and sundards, as well as the scope of obligations owed,
remain exposed to almost ceaseless contention within and across interpre-
tive communities. These communities are not always the communities of
power; indeed, a remarkable global social fact concerning human rightS
development is that the relatively disempowered communities ofsuffering
suke a claim towards the lirst historic act ofauthorship of human rights.
II. Contests Over Forms
In any event, the formations of the addressees, contents, and scope of
human rights and oblig:nions remain contested terr2ins, Oil willch Ihe
17 uurence Cox (1999). Sec, also, P.iul Basguky (1999) 65--82 rod Ibl;l.kTlshnan
..,...,.., (2003).
Cnnqumg Rtghrs 121
ofpoliticsfor huma~ ri~ltS ":,,,rily, and wearily, unfolds. ~Polmcsfor
~ righ ts is extr20rdllla~1~y diverse (~ partly $ttn III Chapler 3)
~IY when the COl11mUlllues of the dlscmpowered Sttk to :assume
~ artnership with liUte actors in the production of human rights
tqualtand standards and their futures. This provides Olle central thrust
~n5C' and sellsibili~.to my dislin~ion between forms ofpolitics of..and
/It humall rightS. Polmcsfor humall rigllu offers many a divergent cntlque
ofpolitics ofhuman ri&.hts.on va~iolls plan~. Fint,.some contest the ~ry
""" ofhumao rightS, ~I~ Its attrlbl1t~ oflIntv~rsahty. Stcolld,contestation
rife concerning theJltltlCt 4hurrulM ngllu. Thml, one may not fully grasp
~forms ofhuman rights enuil their otb~r--:-hu~an ~ightlessl~~: Fourth,
GIbeS contest classification, and underlytngJustlficauon for diVISion and
JlicrarChy, among human rights. Fifth, some practices ofpoliticsJor human
JiIbG combat varieties of human rights essentialisms. insisting in the
poccss that the ve~ !lot.ion 'human' 1
.S in t~le pr~ess ofc~nti nual redefi-
.-.on; this then g-vcs rlSC to thematic of Identity and difference. Some
~ of politics for human nghts remain identity affirming and others
pr;ri1ege the human.right to be and to remain dl~erent. Sixth,.postmodern
fllicicsfor human rights summons the destruction of narratiVe monopo-
... npct:ially the power to IIlsull progress narratives. This chapter en-
ws brIefly some aspeCtS of tillS contestation.
While the universahty of human rightS is a deeply contested thesis (a
IIIcmr thai we also visit in some deuil in the next chapter), contemporary
IIIIiques remam insufficiently inadvertent to tile very idea ofJorm, and the
-.odes ofits production. Pragmadc concerns direct attemion always to the
JIIOpoSitional COli/em, not theJonn of human rights. I lowever, the content
taaains intelligible only within somc general, specific, and historical labours
rltransfomlativeJormnti~ practices.18
These forming practices invite transfonnative labour in which 'a mul-
tipticiryofd cments is synthesized intoa unity' and through which 'fomled
QJbtntts ... sund in detenninatc relation to each other... '.19 Fonning
Phcti<cs thus provide access to fonned content, indeed to a point that
GXttrnts assume meaning only within the form. Central thus to tile notion
oiform is a kind ofovercoming ofthe 'isolated separateness ofIts parts'.20
Each form 'constitutes a different way of looking at contents; and each
t-.tl Thc M uon ofronn IS CClllnllo Marx', corpus: sec Georg Loeb! (1'T11): fTcdrn::
-.on (l9!Jl): j.M. ikrnSlem (1984), Bob Fine (2002). I Invoke here the more
~IC anal)'5ts m Geros Simme! (1959), C$p«I;l.l1y the esgy by lUI. Wemgartner
l9s9).
"
» Weingartner (1959) 33 ~t 40, 50.
Weingartner (1959) <41.

73. 122 The Future of Human Rights
'makes use of a difT~r~nt kind of organizing principl~'.21 Ilowever
Marx showro, th~ ~Iation between form and content is quite vexed ~~
complex; all too often it remains crisis-ridd~n;22 moreover, SOme form
may be illusory and all forms remain, on the other, 'irr~ducibly hcter~
b"encous,.23
Even this cursory summation should enable us to perceive that the very
notion ofhuman rights ~ntails a vast range offorming/reflexive practices.
Some formingl~£1exive practices produce law that binds (the so-call«l,
customary or m-aty-based 'hard Law' of human rights); others Produce
apsirational norms (the so-called 'soft Law' in the form of human rights
declarations and charters).Similarly, distinctions between civil and political
rights, on th~ one hand, and economic, social, and cultural rights, on the
other, arise out ofrecourse to 'a different kind oforganizing principle'. So
does the conv~ntional practice that describes th~ first, s«ond, and third
generations of human rights. At play, and often at war, also remain whole
varieties of forms of human rights, both general and abstract as well ;u
historiC2l1y specific.
What Kanti:.ms (and neo-Kantians) know and name as 'regulatlvt' idel'
ofhuman dignity provides the most general and abstract foml ofUnlvt'rsa1
human rights that unites the infinite diversity ofways ofbemg hUI1l:m WIth
th~ overall notion that enjoins equal respect and concern for the dignity
and worth of aU human beings. At this level, it makes complete sense to
say that human rights are indivisible, interdependent, and illimitable as
well as universal. This axiom synthesi~s multiple elements in some son
of unity from the moment of the adoption of the Universa.l Declaration
of Human Rights to all its astonishing multifarious progeny. Here, as
Simmc1 would say, the foml provides th~ ~ry 'grammar ofexperience',2~
even when some critiques ofcontemporary human rights, as we see later
in this chapter, contest this form as illusory.
Much the same may be said concerning human-specific fornu for
human rights which, and by common consent, we readily name and
recognize as civil and as social, economic, and cultural rights. Here, to
reiterate, the tableau of contents ~mains graspable only by reference to
21 Wcmgmner (1959) 78, and 41_3, Je'>pcrovcJy.
n!u ISthe cast, for ex:unpJe, with the foml of frc:c: bbour thlt has :l.~ Ib (Outenl
a whole 'ladery of unfreedolUS. Set, also, IsaOlC Balbu5 (19n) 71-&1.
23 '...111 S
trugS":$ W1mm the illite, the' 5truggk bclWttn democraqt anslocracy, and
momr(hy, Ihe Struggle: for fnnehis.c, nc., are mc.rely the Illusory forms III whl(h tbe
rcal srruggks ofd)!: dIfferent (bUtl arc fought out among exh Other.' K:arl Mane and
Frcdn(h Engels (1970) Pa" 1,53.
24 Sc:c:, Weinp~r (1969) 41.
Critlqumg RIghts 123
(icity ofthe forming practices. Both sets ofhuman rights provide
.,speothat enacts th~ regulati~ id~a of equal concern and respect for
• '::nan beings to which they ought to remain ~ntitled by VlrtU~ of
• designation 'human'. However, these fonning practices now enull
-.:a:rcnt hl'lId of organizing principle that divides human rights III
,~I~ ..
that render their contents incommensurable jllltt'st. The organu:mg
~ Iple informing spc:cific~l1y a~stract forms of ciVil and political
::ssceks to go~ern rclauonsh.l~s betwee~ citizens (and persons
'tIiChin statejurisdicuon) and the polltlC2Uy orgamRd governance commu-
IIiQes and netwOrks (indusi~ ofstate, suprastat::d and extrutatal form~).
1bcoptrarive organizing principl~ of this form is the nonon ofImpermls-
Iibk ~Iio", accompanied by duties of here-and-now im~lel1lentatio.n/
.-tressal. In contraSt, the specifia.lly abstract fonns of SOCial, economIC,
... cultural rights stand addressed to these conununities and networks
GIlly in ICnns of 'progressive implementation' of these rights, ev~n when
.-c in tenUS of obligations of recognition, respect, promotion, and
~n. . . 1 f·c d· ·
Put another way, the orgamzmg prtnClp e 0 u.esc twO para Igmatlc
farms of human rights elaborately constructs the dlcr~~lltlals between
dmution ofsome basic (material as well as non-material) needs as here-
-.nowhuman rights Imperauves and other SimIlarly baSIC needs entitled
tockference in an uncertlm collective human future. Dcprtvatioll of basic
-.an dignity (equal concern and respect) through practices of torture
., state officials emerges in the form of civil and political rights as an
atantly impc=nnisslble human-and human rights-violation. In con-
IIDt, deprivation ofthe right to food, clothing, and shelter emerges in the
IKOnd form. not in the idiom of torture, but in tenns of failures at
~ssivt' realization. Contemporary critiques chafe wuh righteous and
.... lndigrution at this differential construction of human rights and
-.ead insist on the profound interconnectedness ofboth forms ofhuman
riptl (in th~ rhetoric ofindivisibility. inaliclubihty, and universality) that
rtnders starvation, desexualization, degradation, and destitution an affair
of'rather leisurely human rights concern. I-Iuman rights dISCOUrse at onc
tbd of the spectrum thus provides an ontologically robust formation;
~er, at the oth~r end, it remains ;irrcducibly heterogeneous' and
UIlstable.
It remains impomnt to acknowledge that all these enunciatory classi-
&c.ations of contemporary human rights (as 'civil and political' or 'social,
economic, and cultural' and the so-called three generations of human
~ts. and related forms and formats) owe much to the actual Mstond of
Ibtttforming practices as to combin.atory practices ofidtology. At the level

74. 124 The Future of H uman Rights
of human rights constitUled, but still reflexive, political subjeCtivity, th
task ofcriticism is to analyse the complex historical articulations ofthes:
structures which produce the varieg:.tcd texts of human fights.!:' At th
level ofidoology, the contest shifts to the ways in which diffcn:nt kimJs o~
organizing principles generateJomu ofhuman rights.26 At st.lkc, in all this
are some basic questions concerning the constitution of the SUbject of
human rights, inviting anxiety about the constitution of self. Identity, and
difference. At a reflextve level, all this raises issues cOllcerningjuslicr of
rights, to which we first bric.lly turn.
III. JusticeZJustness of Human Rights
By this somewhat provocative, novel and arguable expression, I wish to
signifY reflexive practices that produce conversation concerning thejuS/ict
qllalitin orjust,.wofthe already installed human rights norms and standards,
in ways that contest their underlying valucs. Not everyone regards all
human rights nonnsand standards, even values, or theirdOllllllant interpre_
tations, asjutt. Conflicting conceptions ofjusticc, I suggeSt, play an impor-
tant pan ill theemergt:mxand ~lopment ofspecifiallyreflexive hlstoriCli
foml ofhuman rights. These may relate co the substance of rightS.!7 or to
theJu~Ulessofprocedures adopted forarticulation ofhuman nghtsvalues,a
l5 Terry Eagkton (1976) 44-5 ofTen an analy.!Is of LMI' (Inerary mode- of prodtIC-
non) withIn lhe GM!' (gener.ll mode ofprodurnon) whIch rem~ms cruclalJyapphable
10 Ihe politics of rewmg hum~n nghts.
26 Such 3S bourgeois hlxruri;m notions opposed 10 (ommUlllurian ones and both
these: opposed to the 5Ute-<:ommullIurnn forms 111 mOSt erstwhIle and some snit
actually existing soci~lisl SOCK:tiC$ and th~ undergoing JIOSI-sociahst tr.Insirion.
7:1 Sc:c:, fOT ;1lI acute ~n~lysis, Aim Norrie (2000). Iv. a more mundane 1M'e1. one:
may 0I5k: I::>oa the ngbt to protc:crion of integrity of lIurTUn hfe sund compromilitd
by the recogruaon ~OO rc:affimluion of reproductlvc rights for I'Omen? In ....--hat ....,,)"5
may cpital punishment compromIse: thee nght 10 hfe. enshnnro In the In~m3001Ui
Covenant on CIVIl and ~lmC11 Rlghts and Its Protocol? In wml ....~ys ouy we ~y wt
fonus of P~lci.m-a5Slstcd p:niem-pnvilegc:d forills ortemllllauon of hfe (or eutlu-
nasia) violate human rlglll 10 life? Wlm justio:-conceptiolls lII~y justify thc dlOl....1ng
of bright lines bctv."t'en freedol11 ofspeech and expressIon and the 11111115 ~ns1l1g from
the criminaliuuon of hate speech? Whal concepllons ofJl1suee of 'reasonable p1U1OI1-
1
5111' Justi/)' claims towards full recognition of hum;11l rIghts of 1cshlSly/lrlllsbotlltler
lIIumale assocIation, or Ihe pubhc, and often nllhunt, mam(esutlons of the fr,·edon}
of conSCK'IICe, worslup, and rchgton?
18 Human nghts hterature: docs nO( frequently concern Itself WIth a Ihmhold
quc:suon; What reqUIrements o(dehbc:ranve delllocrxy extend 10 the: enunclatory K'';
that ded1N: uOIvcYWII hunun nghts and fundamenul freedoms' Does JUsocc:
procedure: for nuking hUTTUn nghts sWKhrds Pnvlkjr dcmocrahC JUlrtKlpanon :IS a
Cnuqumg RIghts 125
(orther, to the approp~ate just n=sponses that may result m case of
Cn"4l1t that often lapses into Ile~ crit;rum ofthe forming practices of
n rights occurs at many levels. First, some contemporary Critiques
~man rights su~St.forms of 'l1Tljus~' lack of respect for dIfference.
'('be origmary enunClat10n of the UllIversal Decl~ratlon of l-h1lnan
RiP~ stands faulted at the bar of respect for the diverse cultural and
cirilizational traditions III the fonning practices of human nghts (as we
~ later).)O S«oPld, and related to the fi?t: .because app~~ches to
~ of justice vary across cultural and ctvlhzauonal tr.Khno."s, the
tp:sDon stands acutely posed: W1u"ch, w/uJt, and wllOst concepnons of
jIIItke may thus find salience in the enunciation of universal ~uman
....ts? te need no sharp remi.nder. in ~ ~t-9!11 world., concernmg the
ways in which some orgamzed political commUnities (states). ~nd
JIIIICOmmunities severely interrogate the justness of the seculan zl1lg
~ptions of humall rights. Third, ill any event, the pro~rly so-call~
-.:ubr/sccularizing conceptions of contemporary human rights contam
.-nents that energize contestation. The relegation ofreligion to the realm
tl pnvate ordering of ~lf-reflexive practices st;lnds opposed by critics
of human rights who pursue consistent articulations of religion-based
&Inns of collective identity.Jl
~ Vlnue;? If so, how nuy we Jud~ 015 'just' mlem",uon~llIlakmg!/enundations
IIhwrun nghts sUlldards and nonns, cspecially when these exclude people's panicl-
....? How 1tiSt' IS the IIOllon Ih~t member-states of the Uruted Nallons, or related
flPhiution",] bodlcs, represent all proplM? Is the power 10 mdcfinilely postpone
fIOIttuoon be(ore dlC Imematlonal Cnnllnal Court. vested III the Security C,.oullcil
,..•. ~peci"'lIy when its pemuncm members reTTUIll se:ized with the JUlr:tlytic pov."t:r
e( Ihe VC1Q? ll; the threshold exclUSIOn of indloow.1 recourse: Ixfort' mterrunonal
-.:s and mbunals :Just'?
~ How m~y we ev;aluate, III temlS o(jusmess, the gesrure of bmltless deft'rnI. by
- device of ·progresswe Implemcm:mon' the social, «OllonllC, and cultural nghts?
1Il The cdebr:ttlon of Its golden Juhtlcc m~ thl5 the ulk of the ton 015 "1:11 as
e( the gownl I deSist from clUng any reference 10 the: JUbilee IttcnllUre.
)I At suke: here are conntellng conceptions of 'justice', posll1g dlfflCllt indetenni-
!lines Whu jusuficallonJ cxm ,11 hand that outbw. at the baT of hlllll~n rights, and
• the threshold, autltenuc human ab'Cncy. for elCiImple. when PIOU! blamie women
~ their sclf-subordll1allOn, even subJugauon. 10 the shan"/I ImperatIves? More
~nlly, may autonomOUJ monl agents everJusnfiably chOOSt' to renounce the C$ute
ofbllman ngltts, l1egollallng d,elf fuTW.blllenal human fIghts and freedomJ (or a 1Il0re
~ place In forllls o( life here",fter? Put another way. how nuy soch xuntsiactOrs
choll:es betwt"en JCCubnzed. one-tll11t', here-",nd-now fimtt Itfe "'00 the
••..0., bc:hc:f systems In hfe after life?

75. 126 The Fulure of Iluman Rights
Follffh, extant human rights norms and standards remain simply agnos..
tic con~rnlng ofjustness ofthe constitUtion offl£itimtltt reprcscnbllon.12
There eXIst no known ways by which one may adjudge the JUStness of
actually CXlsung constltutionalisms,lxcause no normative standards gtlidc
us in adJudglllg. the ways In which the supreme or 'sovereign' authonty
may constitute Itsd( The human right, if indeed there be OIIny, to freely
choose fonns of governan~ ('free and 'fair' elections) does not address
issues ofjustlless ofthe ways in which elected officials may come to hold
and wield public power. There exists no way in which we may make a
deeply human rights infonned choice between frrst-past-the-polls as againSt
methods of proportional rcpresentation. Likewise, the scope and relative
strength of the principle of free and fair elections may remain agnostic
concerning the hi-tech mediation ofvoting procedures, which globally and
fatefully brought, for example, the Texas Governor, George Bush, to the
incumbency of the White H ouse, through the American Supreme Court
sanctioned indeterminacies of the validation of 'perforated chads'. Nor
do any specific human rights nornlS and standards guide us ullerrmgly, if
such things may eYer happen, concerning the relativejustness that chooses,
or negotiates, fon115 of Impcri,:11 Presidency versus the Cabinet forms of
governance.
Fifth, how lUay we fashion ~ust' conceptions of collective human se-
curity that 1112y justify abridgement, even 2brog:Hion of C
Ol15tltutional
gu;ualltees of human rights? The Covcn211t on Civil and Pohtlcal RIghts
(and related human rights instruments) does 110t 21together outlaw, for
example, declarations ofstates ofemetgcncy; even when it endeavours to
legislate normative brevil)1 ofany such state ofaffiirs. However, compara-
tive constitutional experience, and jurisprudence, suggeSts manifold JUs-
tifications for human, and human rights violation, in the name ofcollective
human 5CCUril)1.
Sixtll, how may anyone ever measu~ fully, and adjudge, the adcqu2CY
of reOexive practices in national constitutions by the measure of respecl
for the content of internationally enunciated human rights standards and
nonns? To take a rough example, what ways of saying do we have Ihal
adjudb't: the po~t-apartheid South Mrican constitution as mort'jll:.t thau the
bicentennial French and American counterparts? Whatjustice conceptions
may Jusllfy the scope of constitutionally enunciatcd human righl!t? Are
constitutional arrangements differentially enacting meanings of civil 3nd
n I bnllah Fclllchel Pnkm (1972) offen 10 View a profound Witlb...:nsl(~Ullan
account euncc:mmg JUSUCC of repn:senuuon, which ought 1IKJn: dOKly to IIIforl11
oollstrucuon of rebtlol1shlP ~n human nghts and JUStlCt: languages.
Critiquing Rights 127
-Ai '01 rights ~ust'? A simil2r question 2riSCS in constitutional construc-
,....0 that crect hierarchies of human ngJ-us. I address some of th~
ciJOPStiOns in this 2nd in the ensuing chapter.
~
,SnItfJlh, how nuy we assess the reOCXlve practices of adjudication
ooocerning human rights, no matter at what level, these mOlY stolnd enun-
~? Whatconceptions ofjnsticeljustness may Infonn adjudicatory policy
.men human rights emerge as rights in conOlct, no matter how enullci-
acrd~ Eighth and this is the question to which I DOW tum III the next two
s«:OOtlS, how may we approach in terms ofJustice/ju~tness the problem
of production of hum2n rightlessness?
The mere raising of these, 2nd rel2ted questions, further complicates
buman rights talk and event/discourse. I run the risk here of an 2ctivist
pure of impatient dismissal suggesting that the very posing of these
questions constitutes 'academic' diversion from 'real' issues. However, I
bcl~c, the problem ofjustness ofcomcmporary human rights forms the
wry b2sis of somc f(.'Ccm critiques of human rights; and accordingly
dcs«ves careful attention.
IV States of lnternational Law and Human Rights
_marional law doctrine aud practice has never been a str:mgcr to
CilJDCCrllS with the problems of forming practices of hum.an rights and
ilmbtles. Ilowever, thesc concerns rtmaUled origillary only in rebtion
to the tasks of constructions of collcctive identities of entire political
communities; the 'sclf' that had to be constructed in classical international
law was that of sovereign states. The inaugural Westphalian international
law md order conceptions (as is well known) perfonned at least six tasks
(or 'tricks').
First, it endowed collective selfhood on independent political COmntU-
aibcs named as sovereign states. Setot.d, by definition, subJug:ltcd territories
IDd populace were designated as incapable ofthis form ofselfhood; not all
ptopcs but only civilized nations constituted the 'subjects' ofintcrnational
law; all others (peoples, territories, and traditions) constituted 'objeCts' of
lJ What sundard~ ofjustice ouglll to inform theory and pr.tCllce uf adjudication
-lIfIUuon$ ofhunun nghlS III ConfllCl? When lI~yJudicial restulIIl III 1I11erpretitioll
~Utmn nghts stlnd Jusllfied? Is heroiC JUdlClll acllVISm, 111 ' li many ro111~l'lltM
s, al"""yt a Vlnue? Do utmt hunun nglll nom" and stlnduds ~n approxhes
~' .lIld rcbted, qUl.'511011111~? Further, how may we reOld kg:Il ethIcs and cause
. IlIlg (pubhe advocacy) 111 tenns of Ihelr rok III fash'Olllllg a Just' adjudicatory
JIOLcy and ptxtlcc?

76. 128 The FutufC of HUlllan 1ughts
mtcmationallaw.)c4 71rim, distribution ofsoverclgn rights remained .
'I (' 1 h ' fR be . prltna.
n y In tIe p rase rcgulle 0 0 n Young) :II 'whltc-only affair', F,
, ood 1 'I " I' . "OM,,,
msurgency st lcaVI y cnmlna Ized and penahzed., even as it "!IV "'
, f . . r. . t>""erlS~
to lorms 0 new incIpient lonnallons and bearers ofhuman fights fut
Fifth, civilization itselfstood constructed in terms ofconquest over "our«,
f
"-
o nature (both natural nature and humannature).J5 Past civllizations d
to I~c~.the.se twin powers ofco~trol or mastery over nature figured o~~
as c,lvd.IZatrOnSby ~our~y, and hable to conquest and occupation. Glol»J
capltahsm and clVlhZ2uon here become synonymous. Sixth , because tb
were c~lized, tbese natio~-states we~e.~ definition invested with hi;
tr.msnatronal order of ethical responSibility defined as the 'White M;rn's
Burden' propounded variously by administrators, armies, and adventurers
as well as by mer~~naries, missionar.ies, merchants, and monarchs.J6 Many
contemporary cntlques of human nghts stand affected by this inheriunce
of memory of the formative aspects of modern international law.37
At the same time, the foundational violence18
of modern international
law doctrine and practice achieves at least nonnatively in the later post_
J.I Intctn~1I0nOiI hUIll,Jontt.llnan law nomlauveiy IJlVCIlCi SCI11IOtK C
OIIIIllUlutJ("J of
non-<omb;!unts III IIlIerrumollal anrn.'1i COnfiKa and SIIllIUQnS ofCIVIl war du t nuy
escape their constltuuon :ill 'objccu'; rather, these sund possessed of a cnual residu.:
of rcspt:C1 for their hunullIty cven dunng urnes ofwar and aggrcsslon. LIkc:v.'lse, the
technology of'decl.lr.r1Ofy eloctnlle' opposed to a 'conStltutive' docmne of recognlllOll
ofSDICS and govcmmenlli pTOV'C$ c;apxious enougll 10 authOflU hermeneutic feats of
conVCf:'ilon ofsheer 'obJCcu' IIlIO 'sub)CCU' ofIntenUllolI~llaw. All tillS offcrs Iecwloys
for the lIlV'Cntloll of new subject-pOSItions as well as forms of COII~mutlon of novel
subJe<:tivity.
JS Sec, for this, Julius SlOne (1996) 94-121; and, more te<:ellll), Peter Fitzpatrick.
1992,2001.
J6 ~, the comprchcnsivt' namrtive III Roben YouTig (2001).
31 Such th~t the lIlaub'Ur.t1 :rdvocxy, by Fr.mOsco de Vitorla, of the nalUral ngbts
ofaborigina.l peoples m the New 'brld stUJds VJCWCd from the posunodem hcrmc--
!leune ofSUSpICion: sec tke arulysts offered by Alllhony Angtue, In the contCXI of11K
crmquc by Pc:ter nUp;itnck. (2001). Of course, It would be anxhrOlUsllC to rud
Vittori;a;as oi forerunner ofthe cvenllul hi"ilonC$ ofthe' StrugglC$ for self-detcrnlirution,
de<:olomZlltion, lll1d ovcnhrow of i1ICl$lIl. Yel, postmodern l:lIegC'SC'S of the cOllsticuUVC
amblgtmy of h'5 thought rcmOiln too IInp:.nlem III the gesture of Its dlsmisS41. MuCh
the ""IC needs to be "lei cOllcenung slllJilar trc~onent lIJeted Out to Il uRO GrotlU"
especially hiS doctrine of 1("'I"rlml~"'Q bdll (dllty to nllllllllile :lVoidOible sutTcrlllg In
the conduct of~r, even ~USI YIlr') that he at the hcart of IllternaliOlul humaJJlprJan
law. It IS, ofcourse, a wholly dIfferent matter 10 dt:mO'Utr.ll~ (;as the eX1r~ordulWly
p;luuulung work ofCturles Akx;;r,ndrOWlCZ has accompluhcd) that thl~ henug<! is !JOl
uniquely European and anscs OUt ofmter.ICtI()II WIth the lU5n~tur.lh$t a~huons oflUll
."" AIOO.
)II ~, for thl~ nouon, J:rcqUC$ 1JI:rnru. (2002) 228-98.
Cnttqumg R1glU5 129
"opI~I"o world (in the first halfof twentieth century CE) the recogJ1l-
..... ,n" all politically organized nation societies remain pDletltilJl subjects
...jIltItmaoonalla~, eventually entitled tosove~eignty equality. To be sure,
f«ogJlLtlOI1 anses not as an act of nonnative gr:ace but occurs under
: ausP1ces ofceaseless struggles for self-determination actually waged by
,.abordinatcd peoples everywhere.
SeriOUS students of international law also know ~11 the tormented
~, from 'constitutive' to 'declaratory' theory ofrecognition ofstates
_sovcrnments, marking the connexion between identity and VC(;tors of
... power. The Kdsenite 'con~tituti~' th~ry of r~cognUon of states
~which new states may be said to eXlst at tnternauonallawonlywhen
~zcd by the community of existing states) put to severe test the
....asof the right to self-determination. They know very well how that
.... is constructed, deconstructed, and reconstructed by the play of
~nic global power,3?with attendant legitimation ofenormOllSinflic-
... of human miscry. Some acts of reading indeed authorizc as the sole
... that self-determination signifies no mort! than thc power of hege-
tIIIIaic or dominant states to determine the 'sclf, which has then the right
Idf-determination, or in sum, a right to an access to a 'self almost
WIdty prc-<letennined by the play of hegemonic global powers. At the
time,such acts ofreading render us rather incapable ofunderstanding
e"
ectlCal postcolonial and post-socialist history ofsclf-determination
. All this having been fully said, the dialectical pertinence of the
, I doctrine ofthe sovereign equality ofstates remallls crucial for any
Imous und~rstanding ofthe transition from early Westphalian to late and
,...,Westphalian intcrnationallegal orderings.40
The state ofaffairs now stauds designated by common discursive cour-
..,. that names the emergent post-Westphalian mternational law. This
tlprnsion accords rather ~Il with postmooernist mood, method, and
~
Stt, HUf:'it I b.nnum (1993) who conUOlSCi effectively the rcservatlOf! by IMu
-..um.g the nght w sclf-detcnmnatlon In Arrick 1 of the Intem~lIonal (:ow,rnlnt
• CIvil .lind Polillall IUgins 'only 10 peopk5 under fOfClgn rule' WIth the Gcml;uJ
~n 10 it in.mlIlg on the avall.lbllrry of thIS nght to 'all peoples'
The lnl With which the developed countries haV'C sought 10 expand the r.lIlgt of
1eII''1:kt('mlillatlOn nghu ames from their umque capablhry for org;.rnrllilg collective
~la of thelT ruthless prowess III suppressing (not tOO long ago) evt'n the softest
"'kc urgrng freedom from the colomal yoke:.
~t haVIng been §.;ud, It IllUSt also be S4ld that Inel'Oi'$ rc,1CrvauOTI based Of! 'national
-snry', CTeOitlVeiy mlm~s the very S4n1e onkr ofenclosure of tht: pohncs of Identity
....dlffc:rcnce. III v;utly different postroionul conditiOn, the socl~llmagcry ofcolonuV
rcprescnt;luOf! of European TUuon-sulCS.
the Iilummanllg arulyslS by Eknfii,ct Kingsbury (1998),

77. 130 The Future of Human Rights
mes~gt'. It gene:r2tcs some anxious critiques of 'conte:mpor2ry' bu
rights as the re:~mcrgence of the: idea of ulliversality, a legacy of the~
of Enlightenment that helped pcrfe:et justifications for the classical c
:r
nialism, r2cism, and universal patriarchy.41 Comemporary form~ of so..
cifically abstr2ct production of human rights celebrate critiques ofnot:·
of universality as enacting new versions of essentialism about hurnan
nature as continual unfolding ofEurocentric metanarr2tives (large g1Ob~
stories about the Idea of Progress)~2 that not merely deny difference: but
also monopolize: the 'authentic' nalT2tive voice. The politics ofdifference
thus sWlds writ Ia~ in new fonns of human rights juridical production
concerned with participative inclusion ofthe voices ofwomen, IIldigenous
peoples, mignnt workers, child rights, and rights of transgenderJ1cshigay
peoples--indeed to a point where states of international law become:
indistinguishable from the affairs ofhuman rights law and jurisprudence.
V. The Constitutive Ambiguity of 'Human' Rightlessness
Back again with us then is the constitutive ambiguity of the Idea ofbeing
'human'. Unive:TS41 human rights, when conside:re:d as lineal descendants
of Ihe Amencan and French Declarations on Rights of Man, remind us
thai far from oclllg gtven, if ind~d anythlllg may be so, the notion of
'human' stands alW2ys constructed, often with profound righlS-de:nymg
impacts by the politics «ifhuman nghts. ThiS was cle:arly the case in the
formative pracuces of the 'modern' human rights paradigm (Chapter 2).
Are the comempor2ry human rights discursive practices possessed of a
similar impact? Docs this inclusivity equally mark. and mask, new orders
of violent social exclusion?
It is true that indusivity is the hallmark ofcontemporary human rights.
stamped with the exponential expansion ofthe very notion of'human', and
the nonnative ple:nutude of the reconstituted ulllversal human. No 1CS!i
nue (as HIDmh Arendt has a~ all shown) is the e:xtrc=me violent social
exclusion of human beings denied the very prospc=ct of belonging to any
organized polity. The: 'whole question of human rights W2S quickly and
inextricably associated with the question of national emancipauon4
and,
therefore, 'the conception of human rights, based upon the assumed
existence of a human being as such broke down the very moment' of its
.1 Concermng p~tnarchy, see, 5:.&lIy Sedgwick (1997) n-llO. See. ~Iso, Joan
M:I;ncnhcr (1995) 111 JOh~IIIU Methom (1995).
.0 Peter Flaplltnck (1992, 2001): Geoffl'q' Roberuon (1999) 388-405; Jane K.
Cowan. Mane-BcncdK1C Dcmboor. and Rtcturd A. Wilton (<<b) (2001).
4J H~nnah Arendt (1950) 291.
Cririqulng Rights 131
:~""",,;(," :" Jluman rights stand protected only within the zone of
ty, ambiguously cast. simultaneously within the creative as well
~tructive dimensions of the 'family of nations'. Peoples outsIde
:. zone stand condemned to conditions of 'absolute', 'fundamental'
rifCtJdessness.
Human rights and human rightle:ssne:ss are thus born together at the
.., wne moment. AJthou~ paradigmatically conceived as belon~n~ to
• hunun beings, human rights are at the very moment of enunCIation
.-:aningful only within the zones ofsovereignty. In cOllteXlSofthe refugee,
... stateless persons, the languages of human rights begin to provide to
'JII concerned-victims, prosecutors, and onlookers alike-the evidence
.hopeless ide:alism or fumbling or feeble-minded hypocnsy,.4s
The refugees or the stateless pc=rsons signift the very 'end of human
.....a'. The 'loss of polity... expels' such peoples 'from humanity' itselC~6
• stateless person is not merely one who suffers 'a loss ofhome but the
4Itpossibility of finding a new one',.7 which arises from precisely the
..auation of the 'One World' notion. 'Only with completely organized
~ity could the loss ofhome and politicalstatus become identical with
4IIpulsion from humanity altogether'.48
1Re calatntty of rightlessne5s that befalls them ...
• Dot Ihlt they:I;Tc depnved ofl!fe, hberty, :l;nd the PUrsUIt ofhappmess, or or
,.wiry before the law and the rreedom of opinion ... but thn they no longer
JIeIong 10 any community whatsoeVcr. Their plight IS not that d,ey an: not equal
~ the l~w, but no bw existS ror them.... Only in a last stage orthcir lengthy
fIIocc'!;sistheir nght to live thre:l;tencd; only irthey remam perrectly 'superfluous',
I'nobody can be round to 'cI:I;im' them, m:l;y their lives be In dan!:,ocr. Even the
Nu:.s surted their termm:l;rion orJews by first dcpriving them or :l;111egal status
.. WtttS ofsecond class Citizenship) and cutting them rrom the 'NOrld ofliving
., bndmg them into ghettos and concentration amps; :l;nd berore they SCt the
... dwnbers into motion they had carerully tested the ground and found Out ro
. . u osUction that no counlf)' WIll claim these peopk:. The POint is thai a
CUlnplctc condition or righdCS51lC55 wu created berore the right ro live wu
daalkngro.4'1
Statelessness is here already a doubled phenomenon. GiorgioAgambc=n
develops the first dimension acutely when he endorses Hannah Arendt's
44 Ibid. (1950) 291-2.
::~:~. g~~~ ::
: Ibk!. (1950) 293.
Ibtd. (1950) 297.
'" Ibid. (1950) 29$-6.

78. 132 Th~ Future of Human Rights
description of the refugee as 'truly ..the man of rights"', For A(.;;imbe
the refugee 'puc(s) the orlginary ficlion of sovereignty in CflSlS' bec,'! n,
'by breakmg thc cOlllinul[Y between man and CUIzen, PlllliVlty and IIa/ Use
~Jjry'~ and prescnts 'nothing less than a limit concept that radically:
IOto quesuon the fundamenul c.ater,ries of the nation-sutc from ~
birth- mmon to m.an--cltizen hnk. ,,', I Compelling as Ag:al1lbcn'~ IIlSlgh
IS, It perhaps no more than adds a linglllstic tum to Arendt's e~ ~
human fights. 'Rights are attributed to m..an: hc says, 'solely to the extent
that man is the immedi.ately V:l.Ilishing ground .. ,ofthe citizen.·52Beyond
this, I do not quite know how to receive Agambcn's saying th.at the rcrug«
by the fact of being such may cause .any real or imagined criSIS ofSOVer.
elgtlty of the nation-state.
All this,. fUT,ther, marks the consti~ltive diffcrence between the normativity
ofhumal1ltanan law and human fights law. Contemporary forming prac-
tices of human rights as yet do not afIiml any 'universal' hUlllan right 'IO{
to be displaced, uprooted, and tom from one's community of fate, faith,
and belonging; nor docs it enact allY fully nedged III/mil" right agamSI
divestment ofciuzeruhiplnationality. Nor, further, does tillS ereCt a prop.
erly rccognizable human right to asylum outside, of course, the p:mic-
stricken decisions of the Northern immigration bureaucracies chat grant
or U:n11l11atc the limited asylum statUS often with a modicum ofJudicial
review. Ironically. the Northcm Slue fonnatiolls, which strode like Co-
lossus over thc rest of the world, in cheir aggressive imperialist de~lgflS and
performances, now present themselves as dttply fragile and vulnerable
political communities in Imminent danger of being swamped by their
former loyal 'subjects'!
Yet, Agambcn is surely right when he, el.aboraung Arendt, IIlSISts thai
what we have here is a severe and ongoing crisis ofcontemporary human
rights. Intemational/nmltmitaria,1 bow begins to separate itself from Iwltliln
r(~ts law by placing the stateless peoples and individuals outside its pale,
Their rightlessness, f.ar from being symptomatic ofany crisisofsovereignty,
generates an awesome spectacle ofhuman suffering to which 'we' may, and
when we choose to, respond at times with the routine menu of meagre,
and shifting, ad lICK, measures.SJ Surely, Agambcn is right to bcmOJn the
'separation ofhum:mitarianislll and politics' as the 'extrcme phase of the
50 Ag;lmben (1998) 1)1.
SI Ibid (1998) 1l4.
5.2 Ibid. (1998) 128,
11 And, 3t 1lI1les. specucubrly 35 the dr..matlc ~fTort to !hIVC the life of 3 Serb girl-
child f10W1l to the bnt of hospluls III London 31 the height of the I3osnl~n CflitS
sh~ ,
Cnuqumg Rights 133
oon between the rights of man from the rights of ciuzen'.S4 This
::::igent scparation sigmfies then the end of contemporary human
ril,hb from the sundpoint of vlol.ued hum.allLty for whom, all too often,
tile vaunted 'universality' of human rights remams a cruel Joke,
I-fov.'e'o'er, the second move Wltilln Arendt's descnptlons of hum~n
rishtlessness implicitly recogmzes dlscnfranclllscment Wlthlll one's own
cornmulllty of fate, whether of origm, fanh, or political belongmg, Dis-
cufnnclllscment proc~ in ways that prescrve the form ofcitizenship btl(
JtoDows out its substance, Though not quite of the same order of the
....Iess peoples, human rightlessncss of the discnfranchlsed peoples (of-
ea described as 'internal exiles', 'displaced peoples', or 'dcvclopmenul
~', these equally uncl.aimed and eminently disposable peoples)
tanains defincd by denials of their righ t to life .and livelihood. We surely
__ to rcckon amidst these plentiful forms ofdehumanization the thou-
MOds ofmillions ofpeople who somehow eke out thcir 'CJ(Istcncc' within
• beart ofcontemporary globalization. those heavily structurally adjusted
.. emlllently disposable human beings.
Contemporary globalization thrives 0 11 the newly constitutcd post-
MlrxUn vast industrial reserve: army, under the conjoint exploitation of
pemments, mdigenous and multinationalc~piul. The en<:)'clopcdic forms
IIf'multlll.atlonal human violations, stand 'enriched' by the rather distinc-
Tlmd World practices of dlsenfranchiscmcnt. These now stand
Jlllnamly archived by Samantha Power,55 Malllllmod Mal11dani,56 and
. . In th(' texts of human rightlessness perennially authored by the state
Israel. and, to take a most recent example, the Myanmar citizen-people
carreotly being heavily exploited as sl.ave labour by Thai business houses,
.... ~ fomu of }mmmi rigll/tm tlm displlJ(t tht shrill Il,.d hoo~ {horus that
~ns lilt Nonl! as briflg tilt ollly, or most pm;'ltll/, soltru ofvWlation.
The righdess peoples remain 'citizens' but from perspectives ofbuman/
IOriaI suffering of a continually refined and rc-programmcd gulag global
South Neither dleir residual citizenship nor their simulacrum of being
iauru.n redeems them from the determination that thcirs is 'life that docs
Dotdeservc to live'.57 The continually reproduced/reconstituted 'wretched
oftheeanh',5lInow begin to expcricnce ncw forms ofhUlT1an rightlessness
lbalthe first four dre;fdful years ofthe promise of the twCnty-first century
"
ss "s;Imlx:n (1998), 133,
~ (2002).
,. (2001. 1996),
Sa Agamben (1998), 136-43
Now in the Imagery of the recently 'hlx:l'1IIled' peoples ofMghaOisun and 11"lIq.

79. 134 The Future of Iluman Rights
CE have already unleashed. ThC'S(' vanishing cibzens and hunun beings
speak to us less of:my open futurt' ofhuman Tights; rather, they testify to
new globally institutlonahzed enclosures of human riglulessncss.
Vl. Human Rights Essentialism
'Essentialism', or ways of thinking that explore commoll properties or
'universals' common to all phenomcna under i1lYcstig:uion, has ~n
shown to be important, perva..'.ive, and persistent, even when mistaken. In
'general and specific theories, and the conduct of re2soning',S'J and win
'not soon disappear' bcouse 'its causes are tOO varied'.oo It should not
occasion surprise then if human rights discursivity stands marked by
practices ofcsscntialist thought, especially concerning the identity of the
bearers of human rights and of human rights responsibilities. We explore
in the next section the difficulties that surround the naming ofthe essence
that constitutes us all in terms of the common property or attribute of
being human. We may, however, here quickly nOte that both in the modem
and contemporary pandigm of human rights the identity of the bearers
of human rights responsibility also stand esscmializcd, in ways that
designate the 'sUtc' as the p.2radigmatic subject of human rights respon-
sibilities. No doubt, some contemporary enunciations of human rights
nomlS and standards seck. to reach out to the 'non-sute' sites of human
rights m;ponsibllity. However, so pervasive, persistent, and important are
habits ofessentialist human rights thought that it always entails Sisyphean
labours to designate the school, the church, the family. and the rnarkc:t
as coequal bearers of human rights responsibilities. Bearers of hUlIlan
rights responsibilities stand overwhelmingly described in terms of sover-
eign mher than disciplinary power, to deploy the Foucaldian distinction.
~ notice some obstlcles to hum.:m rights that this tendency creates in
Chapter 9.)
A striking feature of human rights reflexivity is that it foregrounds
dangers concerning the ways in which identities of the bearer of hum.ln
rights sunds es.semializcd by deployment of overarching c2tegories th3t
subsume or sublate difference. Indeed, some even speak of the imposili."r
of human rights regardless of the diversities of loubjcct positions and acts
ofchoice (agcncy).61 It isoften maintained that the bearers ofhuman rights,
when conceived in terms of the essence that designates being human, end
59 Garth L Hallett (1991) 126.
60 Ibid., at 180,
61 See, for example. Heather Montgomery (2001) 94-6.
Cnuquing Rights 135
~~:':::I':~:~;;~ ofa ahlstoncal universal human, thus constitutinga vast
;; and critcriological prison ho~.
~lples, as always, mislead. Yet, we may usefully rt'fer to the para-
.
..,..",>c' constructions of CEDAW (the Women's Convention) human
women tvtrywlrert. The Convention constitutes 'women' as :iii
ofllla5sive generalized abstraction. Even when it differentiates some
.,ccific collectivities (such as, the 'rural' women or women caught ill.the
_ ofsex trafficking, for cX3mple) it still deploys lumping, undiSCcrnmg.
~ries. The human right of womcn not to be subJcct to culm.ral
enshrined in the Convention then emerges, Itsc.lfsuffused with
It docs not quite get around the problem ofconceiving
of women beyond a 'wife', a 'whore', and a 'mother>62 or as
monsters, and machincs'.M The Convention fails to ukr full
ofthe diverse histories ofsubject positions ofwomen; this inscn-
"'"y",cn';'I;"'''NOnt''~ '"lx"",,,ofhuman rights and poses the limits
thus enunciatcd.64 Indeed, some feminist thinkers mainuin that
:
~::~;~~ at defining 'women' or 'sisterhood across boundaries' figures
'Trojan Ilorse ofwestern feminist ethno-centrism,.65 Similarly,
by state and activists that pre-eminently focus on sexual abuse and
"'ott,,>tm of children proscnbcd by Article 34, ignort' the diversity of
subject posltions.66 Rencxive protesutlons agarnst essentialist
thought, however, go the farthest in rdation to describing 'indig-
J>(:oples' in the over half a century old quest for an authoritative
of their basic human rights. Contemporary human rights
regimes fail to articulate an authoritative chaner of human
nO( of{II/tura/, but dvi/izatiollal. resisunee to essentialism.
,un""draft declantions concerning indigenous peoples, tnnslated into
lldigenous populations, now begin to acknowledge thatwhat constinltcs the
~ of'indigt:nous' (or the essence of indegenity) lics rn what they
II Moiry Jo Frog (1995).
(,) ~, In a related context, Resl Br.MiK)rtl (1994) 75-94
"!itt, Elizabeth V. Spelman (1988); Judith Buder (1990): Anne Gnffiths (2001);
~ Engle ~ry (2001).
Spclnun (1988) )C.
lit. In many a Third World society. the life cycle distll)ClIon betwt(;n a 'ehlld' and
'ldull' sdf 15 Cllt bru~Jly shon. Montgomery (2001: 86-7) argues dut the 1Il~lstcnce
0.ArtIcles 12. 13. 14) Ih~t chIldren and young persons trght to form and express their
1IIna 'YICWS' and Ihn these .hall he 'glYen due weIght' be uken scnously In Ihe
.:",",,,,,,.",, of·'"" ~nlC'S obligatIon (under Aruclc 34) to prOtect the duld from 'all
of scJCU.l1 cxplou:ltlon and 5CXU.lI abuse'. H«dmg eJu1dren', VOICes Juslifying
'll:lf-cxploiuoon grounded In theIr apperceived obhgauon to dl('Lr ~renlS .lnd
II i5 argued. lex! to more nWLrKed hurmn nghu pohcy rnponslvcness.

80. 136 The FUlure of Hum:m Rights
themselves renexively ch:uacterize as such. Put more simply, prnl1aril
only those peoples remain eligible as indigenous who create, by th Y'
own cultural practices, the crireria ofwho should count as indlgt:nOUse!~
In COntrast, codification of international human rights COIlScn!)uS Stand
more rapidly achieved in relation to women's rights as human fights S
child nghts. or
. The anli-essemialist critique ofthe h~mon.ic production ofthe poli.
lIcsif(and evenfor, some would say) £h.t maintains £hat human rights allow
liule or no room for the play of radical plura.lity. Ofcourse, tillS powerful
criticism goes beyond the possibilities of alternate readings of this or t~t
text ofcontemporary human rights enunciation. At stake here remain the
formi"g practices of the concept of human rights as such-those t~1
determine the mode of production of human rights subjects/objects, the
nature ofrights they may have, and of the logic of limits that may mOeet
their human rights.
All this leads to a more gener.dized issue. Were we to regard human
rights as a 'philosophic concept', it 'does not refer to the lived ... bm
consists in setting up an event that surveys the whole of the lived and 11()
less than every state ofaffairs. Every concept shapes and reshapes the event
in its own way'.68 It raises the issues of the fonnallon of the '(ol/up/1Ul1
personae' in human rights discursivity.69 Their role is to 'show thought's
territories, its absolute territorializations and reterritorializations',7(l move·
ments of 'psycho-social types ... their... relational attributes ... exislellual
modes ... legal status.. .'.71 Because social 'fields are inextricable knots in
which the dlr« movements' of territOrialization, delerritorialization, and
fClerritoriaLization arc 'mixed up', in order to disentangle them we have 10
diagnose tNl typa or ptno,l«.n The movcment from £hese '1110Ugl!/-Ntt,U,73
67 Stephen Marquardt (1995): RUS3C"1 Barsh (1994): Ibchd Seider and J~
Witchdl (2001).
61 Gilles Deleule and Fehx GUlUri (199-4) 34 (emphasis in OI"Igmal deleted).
69 I here Invoke: me rICh analysis offered by Gilles Delcuze and Felix Gutun (1'»4.
61-84). They ~lX'ak of thiS entity as more than the ways m whIch 'olle concept
presupposes Ihe other (for example, 'man· presupposes 'animal' and 'r.lliOll~I' [61], or
'psyi:hosocial rypcs' luch as 'the stranger, the exile, Ihe migrant, Ihe Inns,ell!. tht
'lallVe, the hV'1lecomet' but about Ihe ~nieular movements that affect the Socious':
67: emphasiS deleted).
70 Ocleuzc and GIIIUri (1994) 69.
7' Ibid., II 71.
72 'In capluhsm cilplul or property IS delcrritori31itcd, tta!l(~ to be landed. and IS
rctcmton,mzcd In the means ofproductlon, whereas labour becomes 'abstraCl' bbour,
rctc:mtonahzcd m WlI8'l'I••• ' Ibid.. at 68.
73 Ib,d., aim.
CriuqulIlg Rights 137
Ibt discovery ofreal personae is cmcial for human rights struggles bUt
:. movement is, at the very same moment, inconceivable outsIde the
(lDlJCt"Pttul figuration of 'human rights'. The talk about women's nghts
being human nghtS, for ex:unplc, alreildy presupposes the conceptual
person~ of human rights. What ~he movement s«ks to achIeve IS the
eJ&Cnsion of £he concept by addmg further components, and many a
..,ment ofitsjuridical retcrriwnalizauon, where the conceptual personae
'DO longer has to justify' herscl[14
Given this an.:alytic mode, the indictment ofeS5entlahsm IS not particu-
IIdy helpful, outside what Gayatri C haknvorty Spivak names now as
'llnteWc essentialism'. T
n this image ofthought, essentlahzmg 'women' is
• form that serves useful historic functions 1Il the human right-ba!iCd
~ against universaVglobal forms of patriarchy.
VII. The 'Essence' of that which Designates Human
'Ibis lSSue goes to the very heart, as it were, of human rightS in r.ising the
.-old and well·worn question of the constitution Ofbe111g 'human'. If
~ is any 'csscnce' to 'human', its discovery/invcntioJl is possible only
~ discursive practices that priVIlege certal11 dcfill1ng attributes or
~ttristics over others. A universal category called 'human' emerges
aIiy m tcnns of (what Marx accurately described .:as) sptties-bting, which,
• cum, enables us to mark OuI the 'human' from the 'lIon·humall' and the
~n' from £he 'sub·lmman'. Nevertheless, the quahties or auributes
III dus species-being stand vanously conceived, with fateful impacts.
1'bcconceptual pcrsoru that constitutes the human subject, and the subject
.cbuman rights, constitutes a veritable minefield. Here a few quick, even
CIInory, remarks should suffice to illustrate the thematic complexity.
Great religious traditions, including those of ancient indigenous civi-
~, as is well known, create myths of the origin of the human in a
divine, cosmic mode elevating human .:and all sensient forms oflife to £he
It:atus of the sacred. The constitutive traditions of modem and contem-
porary orders ofscientific knowledges ill COntrast situate the origins ofthe
human, and of species, as evolutionary chance and necessity. Against the
IIcrcd tclos ofthe divine creation oflifc, the contemporary developments
III hfe' sciences presclll the meaning of 'human' in terms ofthe complexity
of~olllinuity and discontinuity in the evolution ofall life forms. Whereas
~us.belief and ideology construCt conceptions of the sacredness of
hfe, entitled to claims of deference by the sute and the law,
" Ocleuze alld Gum'; (1994) al n.

81. 138 The Futu~ of J hlO11n RIghts
evolutionary life sciences currently remind us that human beLllgs share 96
per cent of human genome with chimpanzees. All this sits oddly with
theological narratives endowing the distinctively 'human' as a Uilique
labour ofcreation by God(s), even ifonly for constituting the Great C ham
of Bemg. This w.r.y of constitutin.-: sp«ies life as sacred (havlllg bce:n
created by the Divine) beings has played an eminent role in some recent
human rights controversies, for eX2mplc, those concerning capital pUnish.
ment, abortion, physically assisted suicide (euthanasia), reproductive tech_
nologies, foetal tissue research, and the possibility of human clanmg.
Secularized conceptions of the species-being also furnish deeply COn_
tested sites. These remain open to some violent and aggressive Euro.
centric constructions (as seen in some detail in Chapter 2) wherein
singularization of the unique human faculty of reason and will results in
pncticcs of pesudospcciation, leading to the violent social exclusion as
'non-humans' (indigenous peoples) and 'sub-humans' (women, slaves,
minors, the mentally ill). And in the preceding section, we noticed the
ways in which even the inclusive contemporary human rightS paradigm
similarly excludes 'refugees' and we will have to further acknowledge the
convulsions induced by 9f11 and its aftemuth that conceptualize non-state
terrorist actors and entire 'outlaw' peoples as less than 'human'. These
latter remain somehow k.u tligiblt humans, and bereft of rights, bccau~
oftheir Incapacity to effectively present themselves as being either 'rallo-
n:!.I' or 'reasonable'. They definitionally assume the St:l.tus of'life that docs
not descrve to live'.75 Qnlhe other hand, this sits in contrast with the Wider
secularized fornlS of contemporary human rights that Stress that all
species-beings have equal worth and dignity JUSt because they are born
hum.an.
At the same time, the notion of spn:ia-lxitlg becomes increasingly
cuturological. As species-beings, humans stand distinguished frolll other
sentient beings by thcirapacity for language. Through speech and writing.
we become fully human;76 the Word becomes our World; and (with
Wittg(:IlSlein) 'the limits of my lan~ become the limits ofmy world'.
Hununseverywhere inherit language communities that nurk their ascripovt
community belongings. Belonging to a community is alw.r.ys first and
foremost belonging tO:l. language through which alone all other forms of
belongings, and longings, may be imagined and occur; the herein, the
75 Ag;Imben (1998) 136--43.
16 I do not here explore the relatIOn betlittn sp«eh ~nd wntlng and v1(,knce
mamfest severally III the dISCOUrse ofJacques Derncb., Emmmud Levinas. and MartIn
I kidcgger.
C ritiquing Rights 139
, ary locus, of all human rights paradigmatically represented in the
~tO freedom of speech, expression, opinion, dissent, and conscience
Yo'tll as of 'minority' rights. The species-being stands ,here culturally
~rsed, presenting b:l.ses simultaneously, even dialectically, for tndl-
~ and group Identity rights.
UurtUll rights languages, more than any other 'typlfymg Ianguages',n
provide the foundations for the emergence of rdkxive individuality or,
sunply, the human agency that opens the potential for choice and
re¥isability.78 The mystifying role of ideologies dwells in the modes of
~tation ofthe historically specific stntegic interests ofthe dominant
_ as the common interest of 'all the members of the soclety.in
~ note here briefly how contestation occurs at many levels: ideology,
cakure, history, and movement.1Il
These large spheres often intersect and
coexist; nor are any uniury or generally agreed notions ofany ofthese four
IeI'm!o possible. Even with this caveat, the indicunent ofessentialism emerges
II'IOf't sharply when we regard these fOllr levels as distinct or discrete for
-'Yrical purposes.
(1) Idrology
TIlt fact that prevalent ideologies playa large part in the construction of
Ihe essence of 'human' is unsurprising. Ilowever, the ways in which
IImrwl rights ideology production occurs remains importalH for any se-
lIDOs understanding of 'contemporary' human rights. ThiS at least entails
lilt labour of 'production and distribution' of 'ideas ofdominance' when
~ as 'the dominant material rt:lations' making 'one class the ruling
CIDe'; III the fonnadon ofidcologies 'matter, meaning. and social relations
do not Just interact but interpenetrate'.81 This production occurs within
'. complex set of institutions ... practices, and agents', which Gramsci
DIrDed as 'hegemonic apparatus' and Ahhusser was to call ideologiol and
tepressive state apparatu~.112 The mystifying role of ideologies dwells in
die articulation ofthe historially specific strategic interestS of Ihe domi-
_I class as tile common interest of'all the members ofthe society', thus
"
" See, ror thiS llOtion, Mlkhall M. Ebkhun (1981) 291.
" Will J<ymhcb (2000).
. Ahcm.auvdy, thc COlliilion imcrC$1 of all, to dcploy an older dIction, consists
III movement from SUIUS to contnct: see SIr Ilcnry Mallie (1931) and vIce versa,
lee~Ifgang Fricdnun (1945, founh edition 19'JO).
......_ I here Ignore the cthologJcaV5OCioblologlC:al cntlque, which reminds us thaI !he
~on bctwttn 'human' and 'non-hum"n' IgIlOrt'S Species contlnllltlCll.
III Upendra Bax. (1993) 99-100; Bob fine (2002).
Upendra Bax. (1993) 95-132.

82. 140 Th~ Fmure of Human Rights
lIni~rsalizing commin:ltory 'spe<:ial interest'.83 All this is by now Well
known, and now rearticul:ned in the rdatively more in.accessible PDstk
Marxian formulations of the problem of the subject and its farned vlcisk
situdes.
If there is 'essence' to be attributed to 'human', it remains inescapably
the labour of fonning ideological pn.ctices. Thus, bourgeois ideologies
constitute the essence of human ill terms of potential to realize infinite
human freedom through rights to property and contract. The bourgeois
human displaces the divine as the shapcrofhi.wber destiny; human politics
becomes a project for emancipation and, in this. guaran~s of human
rights enable each individual his or her shan: in the fashioning ofcollective
human futures as well as individual life projects unburdened by an overk
weening state fonn.84 Individual human incentive and effort stands enk
riched by sacrosanct freedoms of property and contract that together
constitute free markets. this paradise in which human freedoms ultimately
flourish. .
Of course, it happens that production and reproduction of capitalist
social relations constitute, for long stretches ofhistory, human Individual's
worth by violently differential access to means ofproduction. It remains
true that both capitalists and workers are 'human' but these 'humans'
remain differentially situated in the material fomlation of capitalist rela-
tions; all that workers ha~ is their labour power, which becomes Itselfa
commodity, alienated and objectified, and thus renders itself as no mon::
than a factor ofproduction. To the dominant classes who own the means
ofproduction also belongs the authorship and ownership ofhuman rights
imagery. A subsidiary and subservient fonn of humanness thus emerges
defined, initially at least, in terms of human rightlessness. I·!m....ever,
this is tID eternal order of things. Bourgeois freedoms constantly explode
when the proletariat wins its own conditions of restoration of its human-
!less, even when necessarily cmvombcd in the circumstance of'the objec-
ti~ crisis of capitalism' when the proletariat achieves 'its true class
consciousncss,.8S Even in this struggle, 'the proletariat must necessarily be
subject to the modes of existence of its creator' and may not go 'beyo~d
the criticism of reificatlon' thus remaining only 'negatively superior to us
antagonist,.86
8J Upcndn 81Xl (1993) at 112.
14 See, genc:nli)l Upcndr~ 13;00 (1993).
1115 Georg Lucbs (1971) at 76.
16 Lucbs (1971).
Critiquing Rights 141
In this sense. then, being human, far from being an anthropological
.-um, emerges as a project of struggle encased by the dominant mode
afproducrion. The limits of the project are at the same time wnt luge
(III the mode. The essence of the 'human' sUllds thus furlllshed by the
'VCry ideology ofthe embattled proletariat',67 whose ernancipative project
du'ough struggles lies ill achieving political freedom through adult uni-
Vd'Sll1 suffrage, the right to fonn trade unions, related associatiollal rights
_h as collective bargaining and the right to strike. These may constitute,
• Marx says, human emancipation in a 'devious way' through fOnTIS of
politics that enlarge abstract freedoms within the fn.mework ofstructures
of".wriJJi inequality and variety of fonns of exploitation.88 This enlarge-
JllCDt is at the same time said to constinlte the enhancement of human
essence.119
The classical revolutionary socialist project in the process contesting
Ibis bourgeois essentialism constructs its own. It conceives the 'human' as
..essence that thrives on non-exploitative social relations and structures
-. therefore, capable of creating historic and future horizons of true
J..rnan rights-oriented emancipation. Because production/reproduction of
apiaal was a paradigmatic relation ofexploitation, based on ncar-absolute
'-nan nghts to private property and COntraoCl, SOCialist reconstitution of
• human essence acquires WQrld historic pertinence by the revolutionary
~t of its overthrow. The socialist human personae and citizen is an
~Ip;l.tcd beingpart.xullnllt!. The citizen, always a(omrodt! citizen, seeks
.,mlile liberty and equality through practices of.fra~mjty. The comrade-
acizen stands, as it were, by the fact ofbiological and SOCial birth in socialist
IOOety, as a persona already emancipated from notions of human rights
based on possessive individualism.
These roughly hewn sketches risk irate cogtlDslt!rfli gestures ofdismissal.
~ so, these remain, for the present purposes, ample to demonstn.te its
'-tessential ideological profiles that construct the 'human'. In the lived
bms of suba.ltem existence and experience, narratives of'emancipatory'
~ness remain tethered to violent state formative practices., whether
UDder the auspices ofthe ncw Modern Prince (to evoke Gr.amsci)90 or the
"-nguard Party', these n.thcr lerrifying moral guardians of the ncwly
COnitltllted 'human' subject.
: Gwrg Ludw (1971) 258-9.
..:c: Upcndra 13m (1993) 60-8. for ~n~IYSls of SIX ~fOfms ofoplolutlOn.
let A...~t In the St"nsc:ofthe hlstonal pl'OttSSofTCI11OY:lI of'subl;ulltllol unfreedoms'.
,,-.-..ya Sen (1999).
Or now,;u Stephen Gill (2003) acbpu this phT2SC regime:, 'Itstmodcm Pnna::'.

83. 142 The FulUre of Human Rights
E~n Wlthout a funher recourse to sectarian strife withm libcrahsm_
the ongoing discourse berwc=en 'libertarians' and 'comtl1unJtanans"JI_th~
pomt that I Wlsh to nuke here remains fully made: there may nOt exist
any trans-ideological 'essence' ofwhat constitutes 'hul11an'. ~ rCVISit this
aspect In some detail in the neXt chapter but it needs r~itt'rauon here, WIth
GiOrgiO Agambcn, that. ..
••. II IS lime !O SlOP reg;.rding decbntions of human rights as procl;am~uolis of
etem.JI1 mel2Juridical structures binding the legisbtor (in fact, WIthOut much
success) to respect eternal ethical principles, and to begin to cOllSlder them
according to their re~1 historical function in the modem nation-sl2te.92
(2) ellllUIl'
Essentialist constructions of the universal 'human' fail to ackJlowled~
cuhur:.r.l diversity. Religion, language, and the artS in each societal culture
reconfigure the 'human' essence diversely and any approaches that reduce
cuhur:.r.l di~rsjty to the merely ideological remain cpistcmologlcally vio-
lcnt and, therefore, human rightS-unfriendly. Culturcs yield to us distinct,
and different, notiOilsofwhat it may mean to 'say' (and be) 'human'. They
furnish a vast repertoireofidentities often going beyond political allegaanct
or Ilationalloyalty; indeed, illvention and in~snnent ofpolitical idemities
may need to dr:.r.w upon this. To maintain that everyone ought to ~
regarded as fully 'human' does not yield readily dues to diversity consti-
tUtive ofdle 'human' ifonly because what counts as such remains differ-
entiallydeu:rmincdlconditioncd within each culture, suffuse Wlth Its own
quotients of 'sub'-<ultures (and I here dare not introduce the Infinitely
complex category of ·civilization,).9)
The hegemonic conceptions ofhuman rights allow little or no play for
radical plur:.r.lity. Indeed. it has been recently suggested that the 'monOC-
ulture' of human rights'}.t 'continues the cultural imperialism ofcolonial-
ism' perpetuating the beliefthat the 'underdeveloped' cultures arc tOO poor
or primitive to promote the good of their people, while imposing the
dominant culturts' notions of human well_bcing.9S On this view. gr:.iss
roots groups and initiatives that 'do not fall victims to this 'Trojan Ilol'SC
91 See, generally, Stephen Mulhall and Ad~nl SWift (1996): Rich:ud Horty (1993)
186-201.
'12 GiorgIO Ag:Imbcn (1998) 139.
9) Sec, for the recurrent col'llplexlty ofIhlS notion, Ronald Robertson (1992) 129-
37.
901 GU$l.Jiva F.su:va and Madhun Sun Pralush (1998) 124.
95 EsI~ and Pnbsh (1998) 119.
Cmiquing Rights 143
Ionization' deserve celebration for through t.helr libe~tJon from the
~=I Project' of universal human rightS because the~...
n ourC)'C'S and 'gaze" O~II our healU and nunds to the dIVerse cultunl W.JIYS
..tnbngabout the 'good life'; to "he mhcal plunhsm wllh whICh thewc:ll-bclOg
aiwun1en, men, and ammals is ullCkntoOd and promoccd III drffercnlloc:a1 spaces
aim!:' world. Cultural dIVersuy me~n5 not giVIng oue culure's monl concc.pt-
Ifyl nfhuman,lwomcn's righlS-pre~minence ~rothers: bnngJnghuman n~ts
down from ilS pedcsl2l; placmg il amidst other slgmficant cultural conceplS which
~ the 'good life' in a plunverse.!i16
The manifest tension de-pedestllizing human rightS furnish a nice
po&rmicalmotif; and the contras~ between 'm?nocultu~es' and 'pluriv~r~'
is summoning indeed. It constitutes a precIous remmder of multiplied
dislocations betv.'een 'senders' and 'receivers' ofhuman rights codes.97
No
~r how 'fancied' as dialogical, this suggestive insight guides us to the
iatrrcuhural production of 'contemporary' human rights as inherently
ibonocultur:.r.l. Hannah Arendt put this insight pithily a long time ago. She
It'eITCd that 'all attempts to arri~ at a new bill of human rights were
~red by marginal figures-by a rew international jurists without
political experience or profession:.!1 phila~lth,ropi~tS supp?rted ~Y the un-
eenam sentiments of profeSSional Idealists which delllcd voice to the
tlllftffing ofpeoplcs caught III the 'barb-wired labyrinth into which events
.... dnven them,.9EI
~ may ch()()5(: to ignore this difference between Hannah Arendt and
Ihe rttellt posnnodernist diSCOUrse but only at some peril. Arendt is
~fically commenting on early authors of contemporary international
IIamm rights; in contrast, the postmodemist critique embraces all those
who participate in the funher enunciation of human rights standards,
DOnns, and instruments. Arendt analyses the distinctive blindspots of lhc
post-Second World War human rights idealists and ideologues. The
JIOStmodemists say, in contr:.r.st, that the entire de~lopment of human
rights enunciatory movements since then is an archive of the manifold
hhndspots (put in the phrase regime of Paul de Mann as the dialectic of
blindness and insight). But the issue stands foregrounded : are the diverse
COnceptionsofgood life immanent in the lanb'uagcs ofhum:'!11 rights legible
..'" ~tllV:i and Prakash (1998) 118-19.
G~ltung (1994).
II1II At Its very best, lhen. hum:1II nglm emerge as 311 asscmbbge of 'a kmd of
Iddlbonall~w, a right of exception !)('("e»;l.ry for those who had TKlthlllg belteT to fall
Jt.n.. upon'. Arendt (1950) 33.

84. 144 The Future of Iluman RIghts
only for those pre-colllmitted to the notion that attnbutes the exclu .
aJthorship ofhuman rights only to the communities of the: North an~'~e
manifold and mullifanous clones c1sewhe:re? Its
~his ~~voc~tiou, however, remains wholly reductive. conflatLllg the
crucial dlstlllCtiOIlS that need to be drawn between. on the one ha d
, imposed 'ideology' and indigenous 'culture' and, on the other, be~ ,
mJ.cr~nt global cultures in interaction with national and sub-nationa~
(Vt'n IIlt~n5Cly local, cultures. Further, it veers to the view that global
human nghts cultures in the making are 'cultures of no cultures', rath('f
lign ofmany cultures. OfCOUI"SC, it rem.u1lS important to record the SOUnd
bytes ofthe global hegemony vibratingwithin the emergent global Cultures
<i hu~n ri~ts (I dwell 011 dlis in Chapter 8 in tenns ofa human rights
pua(hgm shift). At the same time, it remains, I believe, important to
recognize that in the making of 'contemporary' human rigllts the Third
1brld communities of resistance and the peoples in struggle have, at the
Vl:'ry least, played acoequal role.9? The autonomy and dignity oftheir voiet
iswrit large on this making, which confronts the imperialism, racism, and
patriarchy of the global hegemon. The postmodern critique of 'comem_
penry' human rights rem,uns unportlnt, ofcourse, but only as a p(ngnam
rmlinder that current forms of globalization summon resistance to
monological appropriation ofhuman rights truths in the service ofglol».l
apitalism. Beyond this, chanclCriutiotW'caricature.s that reduce human
Tts to a servile status as handmaidens of global capitll surely mislead
a5weJ] as mystify human rights movements that dare to confront impe-
nous global formations,
(3) H""rt
Because we lack an adequate historiography ofhuman rights, that is,forms
ofunderstanding the interrelation between wIILtpwal and social histories.,100
~ fail to grasp the play of differential construction of the universal
'human' enacted endlessly in their contemporary fonns and makings. The
nuking<; of the postcolonial world of human rights offer us different
cooceptual and social histories than those entailed in the making of the
'modern' colonial human rights. So do 'contemporary' hUII1;1I1 rightS
forms celebr:.tting stories of difference, gleaned beSt through the move·
~t towards claiming women's rights as human rights or the rights of
lt1big:.ty, transgender peoples as human rights. The paradigm shift frolll
J9 See Chlplcr 2.
100 RclOrn.rol KoMcI~k (2002).
Cnuqumg RIghts 145
_ pOlitiCS of rtCogtliliot/, in contrast to that of rtdisfribwiOlI, emplots nar-
~ of politicS of identity and difference in rather astonishing ways,IOt
~, what may thus count as 'history', or even as 'post-history', rcmallls
contested site, signifying the present as II form ofitl-btfwmmtsS ofthe past
~ the future. Not having at hand approaches to historiographyofhuman
rights. we lack conceptions of the llnthropologicaltime of human rights.
'Contemporary' human rights nornlativity thnves on the paradigrna~ic
ame-space compression; put another way, it §e(:ks to anmhllate plural ~ty
... multiplicity oflived, historic time, the 'heterodoxy III temporal behef
.,-rms', and the many forms of 'temporal cultural relatiVIsm'.102 The
IIelief w t contemporary human rights signify 'explOSIVe' time stands
confronted (in terms ofthe eight types oftime experiences in the typology
clGurviochI~ by 'enduring time ... deceptive time ...erratic time ... cyclical
• .. .retarded time.,. time in advance,., alternating time'. It also re-
aWns impaled on other distinctions etched in terms of 'mythic' and
"IPundane' time; 'microsociological' and 'macrosocial' time; 'secular' and
:'tIcKd' time. At least a Jack, the secular conceptions have little or no
:eoave~tion widl the sacred, mythical, eternal time conceptions. The
jIIte of time in narrating human rights, as far as I know, remains an un-
wroached question.
However, this much is at least dear: the future ofcontemporary human
~ values, norms, and standards, stands in dire confronution with
IIDDons of 'eternal', cosmic, enduringtime. For example, the Hindu dhanna
s..uch still sanctions the belief and practice of untouchability embodies
IkMions ofcosmic time, On the other hand, movements for the rights of
Nature (in a deep ecology, II0f sustlinable development, sense) and radical
~I rights movements (radical in the sense that defies utilitarian logic
efexperimenul, animal-based, technoscientific research) proceed from a
CIOIIage of different genres ofhistories oftime conceptions. Implicit in both
l'anains a holistic perspective concerning 'Nature' as an aspect ofthe Great
Chain of Being. The point I wish to emphasize here is that the time of
~n rights enunciations is not always secularly flattened tllne, uncon-
1Inunated by ahcmate time conceptions. Critiques of human fights may
IIDore with some peril the conflicting time conceptions.
When we move from the time of regimes of enunciation to the time
ol~alization ofhuman rights, what decisively matters are not conceptions,
0( rnacrosociological time, but lived time of the rightless peoples and
'" NUlcy Fraser tI til. (2OOl).
: Georges Alfred Gell (2001) 22, 61-7.
GurvlIch (1961): 5e<'. abo, Gcll (2001) 62-8.

85. 146 The FU[ure of Humln Rights
persons. One has just to compl~ the sonorous enuncilfions of
h .gh . 1 h . con~m
porary uman fI ts wit I t e liwd tIme of rightlcss .......ples to . •
1 d· 0 ,.-~ apprecla~
t lC Istance. l1e needs to compare the t"Ynnllclltial proliferatio, fl
.g1 -••,.~ I 0 luman
n Its l10rmsand standards, for example with the tell-talc United N .
De I ' atlons
ve opl1lent Program (UN DP), and related development , d
. I " ' n IC
ators
concerning t Ie quahty of human life undcr conditions of 'de 1
, . . ve apment'
and globalization'.
. H~man rights temporalities here m.l uifest attributes of'erratic tllne', of
tI,:"e slowed. down and speeded up by turns, neither predonllilatin
wtth.out predICtable rhythms'. 104 Indeed, these also slgnify'deceptlve tI ~
that IS, 'slowed time.with irrq;ularand unexpected speeded-up stretches~~!ti
From ~e perspectl~es .of violated persons and peoples, this erratic and
dcceptlv~ temporality IS probably all that matters. Indeed. the time of
human flghts-and human-violation emerges for them as cyclical t ' .
h· h . 1 . Imeln
w IC VlO auve 'events ... seem to repeat themselves'.106 l-fuman rightlessllcss
traverse~ ~hus .th~ spheres of deceptive, erratic, and cyclical time scales.
The ~Isto.nes ofthe pre~l1t hum~l1 rigllts denials stand confronted by
future hIstOries of human rIghts achievement. Thus, indeed, histories of
denial ofwomen:s righ ~ as hUI~lan rights stand sevel7lllyconstituted ifonly
h«ll.use ~omen s bodies furnish tile very sites that constitute 'history'.
Hum~n fights !angua~s, logics, and paralogics must COntcstJustifiatory
hlstoncal practICes of genital cutting. dowry, and Silti murders. loell rape
cultures, son-preference th.u engenders female foeticide, scx-ba..-;ed em-
ployment, and education differentials, forms of'dvic' sexual harassment,
aillong many horrid forms ofimpermissible and inhuman discrimination
encoding histories of multifarious locations of patriarchal microfacislll.
The future of human rights lies in the vigour of this contestation within
each distinctive historicaVcuhuraVdvilizatiollill sening; each sets a limit, as
well as m;uks a possibility, for the emancipatory politics for human rights
theory and practice which acquires meaning only within a notion that
repudiates history as destiny.
Social histories arc lived histories often embodied archived ofhurt and
~ann, maybem and murder, desexualization and degradation, srigmatiza-
U~1l and exclusion, marginalization, powerlessness, and anomie that con-
stitute and furnish narratives of even flXed and essentilaised subaltem
identities. that permit .minuscule options for exit. Each quotie'm of lived
human rlghtlessness lives on in foture history as a marker of docihry or
,~
1 tnvukc- here Ihe dUf';lClenUUOII by Gel1 (200I) 62.
lOS Gc:ll (2001) III 62.
lor. Gel! (2001) III 68.
Cnuqumg Rights 147
fIIPO'lce, the fomler marking the politics '?flluman rights and the latter
~t1ve ofemergences of the politicsfor human rights. Iluman nghts
bbtOriography. properly so called, provides thus narratives ofdomlllatlon
• ~II as of resistance.
(4) Movement
Hun12ll rights movements constilUte complex, often contradICtory, modes
ofthe 'human' at all the three levels: species-being, culture, and history-
c:oostituted narratives of the 'human'. For example, the assertion that
women's rights are human rights claims at the species-being level that all
humans are nccessarilyequal; to say that women are as fully human as man
• to claim (against a patriarchal perspective) a radical commonality ofall
hwnans as coequal species-beings. The maxim/axiom also contests the
Joeics ofdiscriminatory practices t11at plead extenuating features ofculmral
~rsity which allow, for example, such culturally divergent phenomena
• non-consenting female genital cutting, sati, forced marriages, gender-
l!IKd employment and education discrimination, date rape, and sextl1l
Junssment at the workplace. At the level of history, movements provide
...,-auves not just ofdomination but also of resistance, contesting, in the
poc~, the logics and paralogics ofpatriarchal human rightS nomlS enun-
ption, interpretive communities and practices, and statc1g1obal structures,
.fAd much else besides. Here, the surplus, the na~ss, 111 struggle is all that
,IDat1rrs. This also remains generally true ofother human rights-orientedl
'-sed social movements: ecological, indigenous people, children's rights,
.lesbigay/transgcnder, and all related movements. Their logics and paralogics
contest privileging modes that 'cssentialize' the 'human'.
VIII. The Politics of Identity
1bc principal problem here concerns what sbnds named in recent human
ri&hts discourse as the politics of identity and difference: does this dis-
CIOUrse essentialize the identity of a ImivtTS41i bearer of human rights,
obscurmg the fact that identities may themselves be vehicles ofpower, all
100 often inscribed or imposed.
Some familiar 'truths' at least concerning 'political' identity are capablc
ofl>Ulllmary statement. First, identities remain historically given, socially
constructed, and transformed by critical pfOlXes. Suomi, identity formations
ltand always constituted by the practices ofidentification. Third, these, in
two, desubilize 'the identity ofthe object'.107 Fourth, essentiali2.ing notions
'" l...acbu lind Zac (1994) 14.

86. 148 The Future of Iluman Rights
are liable to disruption by multiple, fluid. complex. and comradkto
p~tices o~ identifi~ationY18 .Fifth, narratives of politics of cruelty a~
Violent SOCial exclusion (especially class, gender. race, and 'despi!.ed sexu.
ality') frame politico-juridical identity, mirroring domination and r~i
unce, histories whose task is 'not to discover the roots ofour idcntity b~
to commit ourselves to its dissip:;!.tion'.I09 SOOII, a notable feature of cOI~
lective identities and group rights; forms ofsharing ofgroup membershi
history, ;md loyalty do not quite preclude contestation concerning ~~
injustice :;!.nd riglulessness that its mores cause to individuals thus framed tiO
S~"'h. identity politi~ thus raises the problematic of the 'recognition_
redistribution dilemma' confronting the overweening power ofstille and
social institutions or networks.III
Eig/llh, logics ofidenuty and difference
articulate themselves in the context ofstate-and regime-sponsored politics
of cmelty and social violence.
The problem then, starkly put, is this: do the languages, logics, and
paralogics ofhuman rights essentialize the idemity or celebrate the differ_
ence ofthe bearers ofhu11lan rigllts? There is no question. as already noted.
that the right to 'self-determination', as conceived in COntemponry intcr-
national law. esscntializes the identity ofpeoples within the terntorial fonn
ofthe nation-sute. The 'stir-Illdividual orcollective-although capable
ofbcaring human rights, t:xists only so far as it remams identified with-
whether by way ofthe fact ofbirth. descent, or allegiance-to an organized
politicalcommunity. As already noted. fX:TSOIlS lacking such affinities ceast'
to have any claim to a scln100d assuring them access to the estate of
contemponry human rights.
Further. human rights constitute various subject positions. The subject
of human rights is viewed as 'the articubtion of an ensemble of subject
positions, constructed within specific discourses and always precarious-
ly sutured at the intersection of subject positions'.112 In addition, me
lOll For CXOlmple. I:cheux disonglllshcs three pnc':lJCCS: 'idenufiGluon', 'counlC'r-
K!enrifiarion' :uK! 'dis-KknufKaoon'. The first is 'i(knufKatiOn': the 'good' 5UbJtct
Kcepts his/her place III JOCiety and the SOCial order as It Stands whereas tho: ~,
'o:ounler-ido:ntlficallon', OCCUI"ll when the 'bad' subJcct Simply demes and opposes the:
dominant Ideology, and In so dOlllg inadvertently confirms the ~r of the domll~nt
ideology by acceptms the 'cvidenmcss of meallms' llpoll which It re~ts. The dun!
posItion named 'dls-Idenuficltion' COIISlltutcs a working of the subject form and nOl
JUSt Its abollrion. (P«heux (1999) 156-9).
109 A1ctu Norval (1m) 121.
110 Vee:na Das (199-4); Martin Chanock (1994).
III Nancy msct " •. (2003).
m Cluntal MOIIffe (1992) 237.
Cntiqumg Rights 149
unity appears as 'a discursive surface ofinscriptions·.
113
There IS a
~ppeal in Chanul MoufTc's notion ofa 'non-individualist1~ concep-
~ of the individual'. The notion rejects, as concerns human TIghts, the
:: of the individual in terms of'~sessive indjvidu:lisn~'.I1~ It lI~lpltes
ore The individual stands conceived by MoufTe as the ITltersccuon of
rn uitiplidty of identifications and collective identities that consuntly
~rt each other'. lIS This dissipation .of subj.ects of h~lman ngh.ts into
~rs ofa variety of muttlaJly subversive subject-posItions d.oes lI1deed
..afy to the emandpativc= potential of contemporary renex1VC= human
,.us pr.lXCS. The bearer of universal human rights IS. on this view, no
iadwidwl human 1x:ing or community with a pre-posited 'essence' but a
kUlg born with a right to invc=nt practices of identificatlo~, comest id~n­
aDcs pre-formed by tradition. and the power to negouate subverSIVe
Jllb.ject_positions. Because, primarily, of this the bearers of human rights
lIDJ.3in (olltillgem persotlS I16 who may claim 'universal' human rights in the
Wmtity projects they choose for themselves from time to time. Although
IDI11ples remain treacherous, each of the above-mentioned practice of
Wmtification needs some concrete location in contemporary history.
(1) nle Humatt Rig/It to CllOost Praaius of Idtflli/iClltiotl
This human right entails a combll1ation of the proposItIonal content of
any human rights norms and sundards. including the TIghts to freedom
of speech and expression, association and movement. conscience and
religion. It is a right, in sum, to choose tnditions ofbehefs and commu-
mtics ofbclonglng, whether social, cultural, religious or political. Under
this assemblage of human rights individual human beings may choose
llheism or agnosticism, or they may make choices to belong to fundamen-
tal faith communities. Conscientious practices of freedom of conscience
enable exit through conversion, from traditions of religion acquired ini-
tiaUy by the accident of birth or by the revision of choice of faith,
which may thus never be made irrevocably, once for all. Likewi~, one may
cboosc to belong (and revise one's choices) to a labour union or political
PIny or indeed ch()C)SC: not to so belong. The cnldal point in these, and
~b.tcd ex:amples, is that practices of identification lInder the signature of
'" Mouffe (1992) 14.
IL4 See the instructi~ tclkcuons In Wlyne C. I3ooth, Helene Ci)C()us.Jllila Knsleva.
lad P~ul Ricoeur (1993).
115 Chantal MoufTe (1992) at 97, 100.
'" Stt, Agnes HeUer (1990) 52-69.

87. ISO The FulUre of IllIman Rights
'contemporary' hum.:1.11 rights secure an open nonnative future for each
and every human bdng. Funher, the human right to choose practices or
identifiC2tion necessarily contests attempts (by state: .and civil socicty) to
enfora enclosure.
(2) TIlt:' Hilma" Rigllt to &Iotlg to and to
Contest Comnll/tlitari(U! ldelltiry
Contemporary hum.an rights l.angllagcs, logics, and paralogics, also cllable
and empower contestation over tr.ldirions ofbelonging .and beliefto which
one subscribes by W3y of consciemious choia. The struggle over the
human right to intimate association enables lesbigay/transgender affilia.
nons that respect the choice ofidenrific.ation practices, This is illustrated.
in many a complex W3y (r:ven as I write) by the debate in the Anglican
Church communities over the ordination ofgay priests. Even though the
issue stands posed at times utterly bereft in terms of human rights, the
contestation entails a whole series ofthe hemleneutic ofhulllall rights. l3y
this. I mean the right to the best practice ofthe interpretation ofthc word
of God or the revel.atory scriptures. No such contestation may remalll
possible outside the recognition of the human right to read/imcrpret the
revealed Word.
To take another eX2l11ple, in the f.amous SJ,ah &110 C2SC.117 a pIOU~ aged
Muslim woman moved the Supreme Coun of India constructed in sup-
pon ofher contention that thc Quaranic texts provide a right of manne-
nance to dIVorced Muslim wives. The Coun acqui~ed with her, I lowever.
the Indian Parliament restored what it thought to be the onhodox n-ading
ofthe Holy Quran. 118 Progressive women's organizations and movemcnts,
across the religious divides, sought ajudicial reviewofthe Act, still pending
before the Supreme Coun of India. 119
When some of us gained access
117 MoM AhrMI KMn v. Shah &no Btgllm AIR1985 SC 946. S« :llso. Zl~ P.tthlk
and R:lJesw:ln Sunder RaJan (1989) and (2003): Fbvi:l Agnes (1999).
,.1 Indttd, the MllShm Women's Protet::tiOll of Rights Act mnov;W:s the shan"11 by
requiring ally rtbtlvc with the prospect (sptr SU(((JSiOtJis) of inheriting frulIl her to
IIllI1U;II11 the divorced WOIll;In. It further enuils a SImilar obhg;l1on on P'OU
S trUstS
(W/lkjl) to prOVide m;lIntenanee to divorced women. Through this, lndilll P;trhal11C111
exercises legubuve power to ameud the Slrori'o in w~ys th...t even the most progre)SIVC
reflJmlcrs of Muslim bw never could luve al1ticip~ted! Ilov.1:vcr, the politiCS of the
SltuaUon on ~ll sides prtvcntcd any acknowledgement (and It 51111 docs!) of tht~ daring
u~ruon of Ieg1sbtrve power.
119Tal'llAh Iblg. Madhu Meha. Lallka S:lJ'it.n, and' fikd the petlllon m 1985-The
first two pctlUonen h:lvc smce dIed. In addition, the last two :Ire at the edge of
Cnuquing RightS 151
Shah Bano, (a woman in her sixties. who had been married for over
~ decades) she reminded us, at the height of impassioned n.arional
controversy, that she W3S notjusl a woman but that she was also a Muslim
IWI""'" She was not a Mpak; as a woman she bclollb-ro, and stood con-
sacutcd, by the lived tn.ditioll ofthe Shari'a. In other words. she claImed
~r equ.ality Illi/hit! her tradition and was loathe to surrender it to the
~r of secularized interpretive communities.
Sh.lh Bano's response provides a striking example of a 'multiplicity
cJ identifications and collective identities' that 'constantly subvert each
oCher'. Her identification as an Indian cnizen led her to activ.ate judicial
power for the vindic.ation of her rights; but the rights she sought were
within the SJwri'a, not indwelling in the much-vaunted secularity of high
judicial discourse, The recourse to judicial power W2S creatively
conulluniurian, not a subscription to the 'Global Project' of universal
launwl righ ts.'20
(3) TIlf! Hilma" Right to Mat/age Praclicts of ldcmity SlIbllfrsio"
Jdmtity subversion remains a complex affair, indeed, situated as it is within
.,aphilosophy and erratic time (noted earlier). Thus. for example, pious
Wamic women may contest patriarchal regimes ofQuaraOlc lIuerpretation
• home, while at the same: time articulating a sort of global solid.arity
~. Women, living locally under the regime ofstrictly enforced shori'a,
.me protest forms ofTalLbanintion in Mghanis~n or related other forms
eaystill unite in global protest (as nowagainst the French dictat prohibiting
...,,) cI.aiming respect for the riglll to INdiffrmu oro right 10 difference. Their
deployment ofthe logic ilnd paralogics ofhuman rights seeks to subvcn the
'IDonological' viewofhuman rights through a pluri-universalistic praxis.121
Here we stand confronted by some ofthe most intractable: problems of
die conflict ofrights where self--choscn sedimentation ofidentity wimin a
religious tradition is at odds with forms of universalistic modes of de·
1raditionali:u.tion ofthe politics of difference demanding gender equality
andJusticc. What iscnlcial, in myvicw, is the fact that thisconflictofhuman
rights (to free choice ofreligious beliefand practice and to rights to gender
.;;:ahty! Obviously, the Court in itS IId.ninislnltilif powers has .ileneed the perition.
only ~ rt:lSOll fOf th,sJudlclJI alxha.tion stands provided by the cons,deratlons
lIlSticuuonll integrity ofthe Coun ;IS wdl ;IS political accommocbuon bctOltCn
SUpreme executrVC and supreme judle,al power.
, ~
Ste also Upendn 13;00 (2004).
'" See, genenlly Mane Dembour (2001).

88. 152 The: Future: of Ilunu.n RlgJltS
equality and justiu) b«omcs socially visible when a global paradigm of
human rights is securely in place. It is this JJappnli'~~ that makes legible t~
play of subaltern power 111 constant subversion of identinelO.
lX. Questions Posed by Imposed Identities for
Politics oj alldjor Human Rights
The celebration of multiple. fluid, and contingent identities constitute a
• •
Important story but not the only one. Other narratives guide us to the
problem of imposed identities; this raises several questions from the
sundpoim of those engaged in actual hunun rights struggles. Forms of
human rights logics and rhetorics, fashioned by historic struggles, of
course, assist ways of theorizing repression;l22 these cven pernlit us to
t~ink. ~f discrimina.tion ~n the grounds of birth, sex, domicile, clilnicity,
disability, sexual OTlelltatiOIl, for example, as violations of internationally
proclaimed human rights. It remains, on this view, the mission ofhuman
rights logics and paralogics to dislodge primordial identities that legHimate
the ordcrs-imposed suffering, to the point not JUSt of its total social
invisibility-at times, even to the rep~d.
This mission is fr.lUght with grave difficulties. When civil society en-
forcement of pnmordial identities remains the order of the day, human
rights logics and paraJogics cast responsibilities upon the state to combat
it, raising liberal allJaety levels concerning augmenting the New Leviathan.
In addition, ule state and the law may oppose such enforcement only by
a reconstruction of that collective identity. The 'untouchables' in India,
constitutionally christened as the 'scheduled castes', stand further bur-
dened by this reconstitution. In everyday life, they remain either untouch-
ables or ex-untouchables. Justifications ofaffirmative action programmes
worldwide, for example, depend on the maintenance of the narrative
integrity of the millennial histories ofcollective hurt. It is true that these
essentialize histOric identities as new sites of injury. Is there a way out of
emb.lttled histories shaped howsoever by the dialectiCS of hunun rights?
Further, imposed identities significantly reduce the repertoire ofprac-
tices of identification. Imagine your placement in the (non_Rawlsian)
original position ofa person belonging to an untouchable commullIty (say,
in a remote area of Bihar, India). Would YOll find it possible to agree that
caste and patriarchal identity has become fluid, multiple, contiTlbrent? As
an untouchable, no matter how you perceive your identity (as a mother,
wife, and daughter) you are still liable to acts of dominant C2SlC rape. As
!.U See Ins M~non Young (1990) 39-66.
Cnuquing Rights l:u
such.you will also stand demed access to WOlter 111 hlgh-<~te villa~ wells
and subjected to all kinds of forced and obnoXIous labour; your huts set
ablaze; your adult fr.mchisc regularly confisc~ted at elections by caste
Hmdu l11i1iua.12) The very lOame story may be said about many histOriC and
contemporary conullunities constituted by ascripuve IDgics ofthe dcsplscd
Othcr.124
Second, what is there to 1IIblltrt is a question that does. II1d~d, matter.
Self-chosen identities and identifications may indeed renum multiple,
contingent, and fluid; may they be said to be outside the realm ofcultural
prKticc=s ofidemificatlon and identity practices? Mahmood Mamdani has
recenuy argued that even when ...
.. 'the: identitiC$ propelled through violence arc drawn from oUlSlde of politics-
RICh ~5 race (from biology) or ethmciry (from culture: or rehgJOn)-wc need to
dennuralizc the~ identim:s by outlining their history and il1ulllUl1iUng their links
with otgall1led forms of powcr.l~
Marndani's project, III relation [0 violence in posteololllal Africa, also
anvilCS further attention to such benignly secular histories of organized
bms ofpowt=r lhal, for example, constitute notions abom nationality and
aOlellship. On the one hand, thesc very notions enable exercise ofhuman
risfns.On the OU1(:r hand, these structure fornu ofproduction/reproduc-
bOn ofhuman rightlessness. Illstories ofpolitiCllIJusuce show how all too
oCttn cltlzens sund converted to mere subjccts, as III emergency and
IeCUrity Itglslations, now generalized and globalized III contemporary
post.9/11 histories.
Third. and at a general level, if tht: 'subject' is no more and only sub-
ject-positions exist, how may we construct or pursue the politics for
human rights? Put another way: how may one theonze constitution of
violent subjcctivities? We need to sharpen these questions, attend to their
In Sec the dc:-nst:l.tmgly accurate" accQl.lnt In Rohlnton MIStry's novcl,.~"rtf &J/Qrn
(1995). Sec ~OO Upendn BaxI (2005) conceming practices of lndl~n pohocs, In the:
~ ofbrut:l.l vlobuon ofwome:n In GUJar.r.t 2(X)2 ·C()mmun~1 Violence:' as re:lter.mon
of ~ culture.
I ~ One: needs only to dunk of ullposed Ickntme:s III the IIll1r MIlum Umted States
hlory or reSistance 10 post.Civll War consmutlon~1 amendme:nts: the expenetlce of
it:p.lly Imposed South African ~p~nheid repmes: the plight of a!.$One<! mmuscule
nunOrttles wtdltn natton-tUle COlIIlIIUnltleS ~nd of the mdlgcnOll5 peoples genc::rally.
Sernenlly, Socittlisf RtglSftr (2003).
~hmood M~md~III (2003) 159 at 164. Profe:ssor M~mcbm precl!lc:ly :.cCOfT}-
plldtes thiS undem:;r,ndmg to hiS 1iwlysu of poht,,;:al vlOlen~ In postcOlonial Afnel.
ftJItti;tlly Rw;mda.

89. 154 The Future of I-Ium:m Rights
gene;lIogy, and salvage the possibility ofconversation abom human rights
from the debris of post-identity discou~,I26
Fourth, how may this diaspora of identity narratives empower thOst
haunted by pracuces ofClagr.lI1t, massive, and ollgoingviolauon.s ofhul11an
rights? For the gl/nll ofpostmodern elhics this is not a ~nously ellg;,.~
concern as is the preoccupation with defining and COlltcstlllg all that is
wrong WIth M)(:ralisrn and socialism,127
Fifth, is this human rights pathway (entailing the necessity to Internalize
:It primordial identity) counterproductive, especially when it casts State and
iawas neutral arbiters ofinjury rather than beingthemselvcs invested with
the power to injure?l2!I Emancipatory in origin, human rights, in the course
ofenunciation and administration, may become 'a regulatory discour~, a
means of obstructing or co-opting more radical political demands, or
126 Thest' dlffieuh 3nd complex qu('Stions require cxh3ust;ve 3n~lysis Outside the
scope of the present work. First, thc Usk enails ways of telling stories (not bhourtd
analytiC morphol<JSIes) ofwhat corutitutes concrete history of'I/mum mffirmg both as
disnmiw 3nd tu),,-diltufJIW order ofeveryday lived rc3lity. On the other hand, we need
to work through hislOnes ofhulnan nliKrylimmlscralion that the grand soclallhcory
(whether In i/l 1IfW"1Itlr)' narrative nlOdcs or postmodcrn reVivals) obscurcs, ~ccood,
renum w~)"t' of narrating the hl5tones of structures of torture and terror lllllW at
dtsu'Oyllig. or $ubJujptlllg, hUm3n agency III resistance. TIlIrd, thcre IS need 10 disrupt
thc stmggln for the r«ovcry ofIenSC$ ofhuman hiStory in which prxtlce ofhulllan
~ISbnc.: 10 dommarion sund conSlructed III the pre-human nghts and posl.human
rights cxpcncnce.
127 Jacques Oemcb nghdy aslinls the headyoptlllllsm for hbcnhsm ofFulruyatna
asklllg, nghu)( whethcr It lS credible 10 thlllk that '01.11 these calXly$ms (terror, opprei-
Slon, repression, cxtenmnauon. gcnocKk and $II (/fI)' constitute 'con tln~,'oent 01" IIUlg-
mfica.nt hmiutjons' for the messianIC and triumph3111 po5t-<okl W.1r IIlOI1lCllI of
llberahsm, Nocc herc thoe gesture of exhaustion in the ....,ords iuhcited here!
At the ,..,me ome, he ;tSsc:rts: 'Our 3poria here stem from the fact Ih3! therc is no
longer allY more IlaIN' or I«/t,.. for dctcmlining the Mannst COJ<p and ItSsubJCC1',
"""", jollmvJl Oemcb, aftcr a fasclllning detour on the work of mourmng and
narciSSism enJoms us thus:
One must cOllstantly rcmember th31 the impossible... IS, alu, posIi'lble. One must
constantly remember 1I1at this absolute evil., .can uu place. One mU~1 remandy
rcmember thai e:~n on the bUlsofthis terrible possibility ofnnposslble thalJusllce
IS desirable....
Though beyond wh3t he calls 'right 311d law', D<:rrida (1994), re~pcctivdy at 57, 98.
175 (199-4: clllpham addl-d),
1,1./110 I~ thIS 'one' addrcs!lCd by Dcmcb? The aVlnt-g;arde thc(,lnsl? Or, the: bemg
of those subJccted continually to thc absolute order of ev11? No doubt, 10 ~IISIU~C
UleorcllcaJ fellow travellcrs to the dangers ofamllCS~ IS nnportmt. I100000vcr.what doeS
II, or ,hould II, IIlC3n to the vlCUms of orden of absolute evil?
1211 wendy Brown (1985) 27.
Critiquing Rights 155
ply the most hollow ofempty promi~', It is Ironic that 'rights sought
;'21pohtically definedgrollp art conferred lIpon depoliticized illdulUiualJ;
.. dt~ moment a panicular "we-ness" SllCC«dS III obtailllng rlghts,lt I~
lIS -we-ness" and dissolves into individuals':'29
Inde<el, in certain moments, human nghts development Yields ItsdflO
lricks ofgovcmanc~; the 'pillar ofemancipatton' turns OUt to be the 'pillar
cLregulation',Uo as we see in some stnlong detail in.the next 5tttion, We~
Ibis enunciamry be the only moment of human nghts, every triumphal
attainment would also be its funerary oration. Does not oJinl a regulatory
discourse at one moment also becom~ at another an arena of stmggl~?
If international human rights lawyers and the movement people need
., ancnd to the type of interrogation thus raised, postmodernist ethical
dtinkt:rs need to wrestle with the rec~nt history of the politics ofcruelty,
which has fEConstrUcted, even rt-it'vtFlled, as it were, new pn'mordial (ommu-
tJiIiD. These are communities of the tonured and tornlented and the
prisoners of conscience across the world, espoused with poignancy and
uocqualled moral heroism by the Amnesty International. Would it be true
10 say that their identity as victims is random, cOllungt:llt, multiple, rather
dwt (tJuSl(/ by the play ofglobal politics? In the absellce ofa seriolls pursuit
« this int~rrog:nion, how may wcjustifiably say that human rights enun-
aauons and movements commit the mortal sin of essentialism or
bmwtionalism in insisting a ulliversalnormativity, which delcgitimateS
dais invention?
H ow rna}; despite this weller ofconstructivism, post~ntialism that
ldUeves many a rhetorical tour de forc~ for a Derrida, respond to the
problematic posed by an nchetypal Aung San Sui Kyi? She embodies
human rights t:SSt7I/ia/ism. So do the Afghan women who, under signatures
ofstate-imposed mortality/finitude, protested the Tahban ~me, while
1ft profoundly protesting the American invasion. So do the United Na-
boru C bildrens' Fund (the UNICEF) and movements like the Save dIe
Children which, flumks to the globalized media, seek at times to, accom-
plUh the impossible, That impossible feat lies ill moving the atrophied
conscience ofthe glo,balized middle classes lO all occasional act ofcharity,
and even of genuine compassion, by the unbe;u,tble CNN depictions of
OUC'lly starved children in Sudan in the midst oftheir well-earned aptritif
or the first course oftheir dinner. 131 No matter how flawed to the Parisian
,~
1.lO RtoO,l'l (1985) 98.
(I
I a<bpt here Santos' alUlysis ofdlalccl1c oftcgulauon and enunClpltion: Santos
995) 7-55
'" HOWt:ver, suffcring as a sp«tack Clll do no more. For, the vcry act of mass
-.s.a PTO<iuctioll of the spectacle of suffering needs 10 dIvest 11 of 3ny structuf<ll

90. 156 The: Future of Iluman Righu
and neo-Parisian cognitive fashions, hUlllan rights discoun.c furmshcs tilt
potential for struggle in ways that postmodernist discourse 011 the pohUCl
of identity as yet does 1101, May we allow these cognitive fashion pandes
to drain emergent solidaritieS in struggle unless the postmoderlll~t ;UIII.
essclllialist critique demonstrates th:u hllman rigllU arr a mislakr?
Indeed, engaged human rights discourse makes possible a deeper un.
derstanding of the polittcs ofdifference as far as n is in the act of SI!fftnllg,
rather than sallitiud, thought, It insists that the Other is not dispensable,
It sensitizes us to the fact that the politics of Otherhood is not ethically
sensible outside the urgencyofthe maxim: 'Ask norforwholllthe bell tolls'
it tolls for thee'. It insists with Rabbi Israeli Salanter that ',IIt maleriallltt'~
oj my neigllbollf are my spiritual netds'.132 Critically engaged human rights
discourse, even under the: banner of the diaspora of identities, obdurately
refuses the need to de~ssentialize human suffering.
X The Summons for the Destruction
of Narrative Monopolies
The critique of human rights may further maintain that tdling of I;uSC
global stories (metanarratives) is not so much a function ofany emancipluvc:
project as ofthe poliucs ofintergovernmentaldcsi~ dut IIlboests the politics
of resistance. Put another way, these only serve to coopt the langtllges of
human rights into pra«sscs and mechanisms ofgovernance such that bills
of rights may adorn with impunity many a military constitutionalism lnd
the so-called human rights commissions thrive upon the statclregime-
sponsored violation.
Unsurprisingly, the more scve~ the violation ofhuman rights, the more
the orders of power declare their loyalty to the regime of human rights.
The near-universality ofratification ofthe CEDAW; for example, betokens
no world historic perfonnlnce of human liberation of women; it only
undersundmg of the produ(tion of $utrermg itsel( In a w;ay; the commu!IIty of
8"'.1:: mOlY bc: IIlStlnt/y constmcted by the erasure of the shghtest ~warc:neS5 of com-
pliCity. Su abo, Guy Debord (1970, 1999),
TIlliS, the lIIa~s IIIcdiOli !lIUst obscure the fact 'all those we~pons used III nllke faT-
~w;ay hmlleIands IIIto kdlmg fields have bc:c:n supplied hy our own anns fJCWfU:S,
Jc:aloUJ of their order-boob and proud of their productIVity and oompetltlvcncs,-the
hfe-blood of Out own cherIshed prospc:nty': Zn,"Il111nt Baul1l~n (1998) 75. See also.
XIX Arucle 13 (1994). Jacques Dcrnda raiSC!l S2l11e uncanny qucstlons rollcennng
giobah~ed media, whIch he describes as 'giobaLamuuzatlon'.
132 Cited In Emmanuel Levin» (1994) OIt 99.
CriuqulIlg Rlgtus 157
endQWS the state with the power to telll11or(' Niett.schem lIe5,133 All too
often, human rights languages become stratagems ofimperialistic foreign
policy through military invasions as well as global economIC diplomacy:114
Superpower diplomacy at the Umted Nltions is not averse to causmg
untold suffenng to human beings through s;anctions whose malllfest am}
lO somehoW serve the future of human fights, us The solitary super·
~r, at the end of the second nllllenlllum CE, has l1l:llde the regime of
sanctiOns for the promotion of human rights abroad a gourmet cuisine at
&be White House and Clpitol JJill, All this now acquires an edge of
po&gnancy in the narratives ofjustifications for Star War-type infliction of
violence coded by {he post-9ft 1 'Wu on Terror' operations within nation
and:IICTQSS nations, the laner manifest in the Operation Enduring/Opera-
cion Infinite Freedom in Mghlllistan and the Second GulfWar.
What is more, the critique llIay rightly insist, the paradigm ofuniversal
human rights conuins comradictory elements, The UDHR recognizes in
the human rights ofhuman beings as well as that oflegaVjuristic persons,
me personifications of global clpita1.1
36 T IllS makes dialectically possible
its conversion, in these halcyon days of globalization, into a paradigm of
"'·rdaltti, markel-jrimclly /III/llan n'ghu (beglllning its cueer with WTO,
matUring in an obscene progression III the Organization for Economic
Coopcr./ltion and Developm('nl (OECD) Multilateral Agreement on In-
wstment) that we address in Ch;apter 8. Global trade rebtions now stand
~ted with the resonance ofrhetonc of the 1lI0raiianguagc of human
rights (witness, for example, the diSCOUrse 011 'social clauses' in WTO as
~1I as many a bilateraVregional ccononuc/trade ;arrangement). More to
Ihe point, many Southern NGOs who had originated a cnuque ofglobal·
iution now look upon international finanCial institutions as instrumentali-
lies of deliverance from {he patholDgles of the 'nation-state'.
III Stll( IS the lume of the colde$1 of all cok! monsters. Coldly, II tells lies, 100;
and this lie grows OUI ofiu mOUlh: 'I, the ~l:Il(, am the people'. N.et%SChe (1954) 160-
I·These lies stand exposed 111051 poignamly In shlftmSJustlficalioru for the c/);llmon
0( .....lllIng Sl:I[('$' massive 1II111aleni aggression m Inq,
n~ See, Noalll Chomsky (1996) 169-221. Sec also, Chandr.l MuutrOIr (1993),
m ....!llerican Association for 'lMJrld Ileahh, Ottllill C1jfood ,md III({/kil'lt; 1M impall of
.. us rmba'il' 011 healill a"d "1I/rillO" j'l ellN: hl//!://u"ww; USlltllgugt',org/~wdin/(u/NI,llImJ.
I here deSISt ftOm clung the equally poignant ardllVC orthe rtlPllle of5aIlClicl!ls agaill.'it
""1~ AfIlde 17 protects IIldividual as well u aSsoclJIIOllal fights 10 property, a
~Non thOII for all pr~cllcal purpose !tc(pteJ the rxhc~llooklllg assurances In ArtICles
27 ,Not surpflSlIlgI~ 1n{C1le<:lIal property fights 51ands fully recogrm:ed in Article
(2)

91. 158 The Future of Human Righu
The r.m~ and depth of the many strands in postmodernist Critique f
human rights is not dissimilar to Karl Marx's critique. 0" Iht J~
Quatio",IJ7 though the umque idiom of postmodernism was not as ab
n
dantly available to him! On this register, ~ need to reOect on the Profotl~
insight offered by Deleuze and Guttari:
Ifthere is no univ(~1 democrauc SUe(,Ill! f... it isI because the market is the onl
universal thing that 15 ulllversal m upllahsm and human rights axioms can c~
011 the marlu:t with many other a;OOIllS. noubly those conceming the seCUrity of
property, which are unaware ofor suspend them even more than they contndiq
them.U9
Thus the summons for the destruction of 'narrative monopolies,l40 in
hum;m rights theory and practice. is ofenormous importallcc, as it enables
us to recognize that the authorship ofhurrum rights rests with communities
in struggle against illegitimate power fonnations and the politics ofcruelty.
The local, not the global, it needs to be emphasized, rcmains the crucial
site of struggle for tile enunciation, implementHion, and enjoyment and
exercise of human nghts. The pre-history ofalmost every global institu.
tionalization of human rights is furnished everywhere by the local. l ~l
From this perspective. the ongmary claims of 'Western' authorship of
human rights become sensible only within a metanarr.uive tndition which
in the past served the dOlmnance ends ofcolomaVimpcrial power forma.
tions and now serve these ends for tile Euro-Atlantic community or the
U1 Sa: also Chapter 8. ror a poslnJ(JdcmlSt reVlSIuuon. see Wendy Bt()Wll (1995)
97-114.
138 Deleuze and GUlun(I994) 106.
IYJ Ibid., 107.
1.0 Lyotard (1989) at 153 IIlSiSlS: 'Destroy all narr.ltlve monopoliC5. ... Tau away
the privileges the narr.uor has gnnted himself'.
1~1 To quote myself iml1'lOde$t1y:
After all it was a man a lkd Loknuny.a Tilalr. who in the second decat'll: of thiS
celltury gave a a ll 10 India: swaruj (iNkpmdmct) is my blrdlriglll lInd 1 sluJllluJV(' ;1
,
long before iliteTtUuorul human rlghu procbuTlcd a ngill 10 sclf-det('nmnatlOn
h was ~ mall a iled Galldhl who challenged e:Jrly thiScentury racul dlscnmlnation
111 South AfriC:II, whIch laid several decatt<:$ larcr the fouldanons for I1ltenlalional
treaties alK! dedaratlons on the elimlnatlOTl ofall fonns ofracial dlscrlnUlallOIl and
apartheid. Compared Willi thcse male figures. gencnuOlls ()f leW:lld~ry ""VIIlen
martyred themselves 111 prolonged struggles ag:;unst patmrchy and for g..:ndcr
equality. The curren! campllSJI basc:d on the mono 'Women's nlghu.1« Ilulll;ln
Rights' 15 Inspired by a masSive hiStOry of local struggles all around.
The histOne blnhplKes 0( all hunun nghts struggles are the hearth and the
home, the church and the castle, the pruon and the pollee prl:(:'lIlct, the fK1Ol)' and
tnc farm Upendn Ib:a (1996).
C nuqumg Rlghu 159
']ludIC states (USA. EC. and Japan.) In this dOl1unam diSCOUrse, both
'Jl'to(knl' and 'contemporary' notions of human rights eme~, though
. different modes, as a 'vision of a IIOVUS ordo sdcorum I~ the world as a
on I ' 1<42 In addition this discourse prevents recogn1l1on that COIll-
who e . , . f
" "
n stru....le arrolinst human violation arc the primary authors 0
mUlllti ~ to • 1
, ',ghts No task is more important,:lS the golden dust ofUmvcrsa
buman . . . h
Declaration festivities settles, to ttact' the history ofhuman nghts fr~:lIn t e
sandpoint ofcommunities united in their struggle amidst unconscionable
hununsuffcrin~ .
Various feminist thinkers have rightly contested the thertUtlc of de-
strUCtion of meta-narratives :lS inimical to the ~Iitics ofd.lfference.HJ At
the: same time, they also maintain that the telhng of stones of everyday
violation and resistance which recognize the role of~men ~ a~tlwrs of
human rights is more empowering in terms of :r~attng soh~arny th.n
weaving narratives ofuniversal patriarchy or the~nz1l1g repression.only as
adiscursive rdation.I'" Feminization ofhuman nghts cultures begll~s only
when onc negotiates this conflict between meta- and I1llcra.:n~rratlves of
women III struggle. One may even name the taSk or the mission as one
of hunumizing 1J11man rigllts. going beyond the rarefied dl!.Couf'lie o~ t~e
vanety of posunodernisms and post-stnlcturahsms to hlstor1t:s of IOd:-
vidual and collective hurt. Narratives ofconcrete ways 111 which women s
bodies held;'1 tffrOfa", l<4S do not pre-eminelltly feature or figure in human
tights theory. Theorizing repression docs not, to my lund, best happen
by contcsting a Lacan, a Dcrrida. or a Foucault; It happens when ~he
theorist shares both the nightmares and dreams ofthe oppressed. To gIVe
bngua~ to pain, to experience the pain oftile Other irlSlde you,. re.mains
the task, always, of human rights narratology. If the varieties of
postmodernisms help us to accomplish this, there is a better future for
hUllUn rights; ifnOt, they constitute a dance ofdeath for all human rights.
142 lliVldJacomon (1996) I.
143 Stt. Chnstinc 01 Srcfano (1990) at 76; see also IUJowan Sunder RaJan.
144 Emesto Laclau and Chantal MoufTe (1985) at 87-8, 115-16.
I.~ Mary Jo Frllg (1995) 7-23. The lived reahty of sex-tnffiekll1g, sweat-labour,
~StlC ierfdom, wurkpbce dl~lmlllation, sc:xu~1 hanSlillle11l, dowry murders, npe
In peacellme as well as war as a me~11I of domg 'pohues', torture of women ~nd
rnedlcahutlon of !llelr bodleS-llll t1lesc: and related devlI:n 0( Jute and SOt'iety-
Prexnl problems of Imtlra"t_ 11/Jtm)f'.'WhIle fcnllTIIst KholarshLp has demonsmted
the power of 51Ofy-1C1hng. SOt'QI theory of human nghlS Ius yel 10 concel~ ofways
U!d rTKal1ll ofinvntmg lIlchVJdual b!0p'3phln of the VIOlated wnh the power of SOCial
~"',

92. ______________________~
6
What is Living and Dead in Relativism?
I. The Universality Thesis
T his assertion (hat 'contemporary' human rights arc 'universal' has
come under formidable attack from the standpoints of relativlslll
antifoundationalislll, and multiculturalism. The idea of the universal it;
human sciences is typically associated with the project ofuniversalh'ation.
In particular, with and evcr since Marx. we know that 'what is named as
univenal is the parochial property of the dominant culture. and that
'universalizability' is indissociable from imperial expansion': It thus ft-
mains understandable that some grass roots human rights activi~ts ass~il
the universality of human rights in terms of cultural and political impe~
rialism and that some heads of states and govcnuncnts construct J lIstifi~
cations oftheir impunity for violation ofhuman rights norms and standards
by appeals to cultural differences. The project of 'universalization' of
human rights, particularly ofglobalization ofhuman rights, also SU'aIIlSthe
idea of universality of human rights. Both the fonns of advocacy and of
the critique ofuniversality remain fraught with fateful implications for the
future of human nghts.
The problem concerning 'universals' neither begins nor ends with
human rights. The 'historical fonns in which the relationslup between
universality and particularity have been thought' are many and dlvCrse.2
Construction of'universals' involves both analyticaland ideological aspects
and the relation between the two remain problematic as the analytic is all
too often constructed within the ideological.) The ideological aspect ad-
dresses the problem ofjllstification of'human rights' and the comtructioll
of what counts as 'human'; the analytic then stands defined wnlllli this
I Judllh Outler (2000) 15.
2ErncslO Lacbu (1996) 22. See also the rceelll converulion hctW~~1I Judllh nuder,
£tnnto lxbu, and SbvoJ ~'lck (2000).
) As the MlITXlan and, more recently, the femlllist and lesblgay/tnmg.:nder cntlqllC
havt: amply shown .
What IS LIVing :md Dead in Rebnvism? 161
fi'arTlcWOrk. On the other hand, the analytic often inSISts 011 its own
auwnomy;4 indeed, the relation between the idcolOglcal and the alulyuc
.uggests both the sltuatrtiness of all human knowledge and the relative
auconomy of practices of logical thmlang. This is a fOrlludable territory,
»-'e sec shonly in thiSchapter merely COllcerned wah the 'umvcrsahty'
of human rights.
[n this mood then one may proc«d With an analytic tlut suggests at
least three distinct, though related, meanings of 'univers.al'. First. in a
unlveTS31, a property or relation stands instamiated in whole variety of
particular things, phenomena, or state of affairs. Thus, we may speak of
bunul1 beings as those sentient beings who have the capacity for language.
Orwc may say, somewhat self-referentially: to be hUlllan is to be privileged
amidst all sentient beings as possessed of some shared auributes of rec-
ognition and respect for dignitary interests and rights that mark the dis-
unction between human from non-human belllgs.5 Second, universality
IDlY occur independently ofthings, states ofaffairs, or phenomena. Thus.
to take rather a complex and difficult example, one may speak of hulJlan
rights as natural rights,independent ofand available against political'things',
lUtes ofafTain, or phenomena. Tlllfd, one may say that all universals arc
"hommal', that is just a matter of naming these within one linguistic
practice or protocol. From tillS sundpoint. the ciaimthat human rights arc
univcTS:l.I signifies access to a widely shared linguistic convention.6
~ Dttadc"s 2gO, for t'X1Inpk, I ~~ an ImerC"Stmg book raISIng the quC"StIOn whether
1httc em be a Marxian,:IS dlSlulCt from a bourp!. throryofZcroI Likewise, one may
.... TKKWIWsundmg all our findy nuanced undersundmg orthe culwral t"mbalment
oldomgsciellCC whnhcrthcre nuy be such thll1gsasa Manoan ({)f"~n post-Marxian!)
chtnusuy. physia, genetics, hft" SClCllCn, arofl(:ialmtclhgcna' 5C1('ncn, or astrooomy.
5 Animal rights mOW"mems qUcst)Ofl UliS privllcgmg on VlIOOUS grounds. InstTU-
Dlrnwist grounds suggest mimmlzanon of !>lin and suffering to amlTlills whether as
tources offood and numtlon for humans, beasts ofburden, mSlrumt"nts ofsports:md
PUn. muru of public enreminment, or as e:q1Crmxm:d guinea pigs. On all these
pounds, h~er expansive:, the range of dullC"S to prevt:1lI mfllctlon of unncccssary
lwnl and suffering. rcmains be clouded by what ...."(' may sull do With animals wlut
_ ought n(V('f quite do with humans. Intrinsic moral grounds In ullmal rights
movements go (unher in relation to a preferred C":Itegory from the above menu of'uses'
ofIlIlIluls. Spirimal vt:gctlnalllsm, for example. inSISts that trunng ammals as :.;ouren
offood for human~ is edncally repugnant with the Idea ofrC"Spc'Ct (or If(e; and the Sollne
....nclple clCICnds to movements for ehmlll;llloll ofalUmal blood sports although It may
toulld odd to describe theS( all aipc'Cts o( $pltltual vegetarianism. In contraSt, move-
rhcnt tow:lrds banlllng cxpcnmeTllal re!l(ueh with proceeds on the pnnclple that
Iri:Nturmg anlrlul fonnJ of SCllueTII h(e as :.;ourcCll for protecllon and promotion o(
hUfn~n and publiC health VIOlates respect (or hfe.
~ In thiS sense. 'uniYelYhty 15 a nalne which undergoes 51glllfiant accruals and
~~I$'. Judith Hutlcr (2000) 24.

93. 162 The Future of Iluman Rights
On an ideological planc, within which I also include the ethical a d
the rdigious,1 the 'universal' st:.nds conceived in difTerem ways n n
ethical theorists seek justification of human rights' in the u!lIve~1 i~t,
of politically organized human societies as mortll commumties. They a~
moral communities bttause they, in principle, ~oognize that hUIl13.
beings a~, by virtue ofbeing human, entitled to dignity and reSpttl. Th;
maydifTer in ways ofconstruing these values; and, further, In concretizing
the nature and number of human rights and the attendant T<lngt" of
obligations and responsibility. But they may not rcpudiate the nOllon of
human rights tlltogt'fllO', or comprehensively, and yel maintain their claim
to be counted as moral communities. Organizcd politial communities
such as those European colonizing societies that comprehensively main~
t:.ined that the colonized peoples miglu not coum as human were not
moral communities---or the Third Reich or the South African apartheid
stale remained ineligible to qualify as a moral community in this sensc.
Such horrendous political communities risk the ascribed status (in nor~
mative polilical philosophy) of bdng 'outlaw' societies/st2.u:s/reglmes.
How the 3ctual1y existing moral communities ought to respond to such
politically organized societies remains a vexed question.9
Second, with 3nd since Mme, ideological analysis contends that the
'univers;al' is the form by which domin3nt ideology ~neralizes formations
ofp3rlicubr intercsts (as 31rc3dy briefly noted in C haptcr 5). Radical Left
theory regards the construction ofthe universal human rights;as no more
than 3n exercise in ~lficauon, the ideological pl'2Xis of converting the
multitudinous ofdiversity under the totalizing b3nnerofa unity. Jlowever,
and equally, construction ofsocialist paradigms of being hUlll3n and having
hum3n rights also risks similar indictment. On this plane arises the fierce
problem of 'false universals'.
Third, ont' may attend, with Ernesto Ladau, the universal as a precious
'empty signifier', 3 'signifier without a signified,.10 Laclau's theorctical
an31ysis forb'ds simple summation, but its central insight that evcry
1 I do nOt here pursue questions that may justly anse cOrK:enung Ihe contbuoo
between ethiCS and Ideology. A!s a:mccms (orms tilJl univcf1i;lls assume III rehglOUS
dlseOIlt~, 5t'e the IIltere~ling explor-mon in Arvind Shanna (2003) 122-36.
• O f wlueh AiJn Gewlnh (1996) remains Ihe foremost CCVlIp/tlr.
" refer here to john Rawls' (1999) complexclassifieauon, under the law ofpeoples,
o( five types of JOeledes ordered m aceot<b.nce WIth eight prlllelplC5 consutuUllg the
unlVl:l$;Il lIlonhty o( Ihe law o( peoples.
10 EmC110 Lac:bu (1996) 36-46. I derive some ofthe qu~tioru nlscd here, though
nOt their (ormulauon In rclanon 10 hunlln "ghts, (rom the older anulropoi<JgIeal
dl5COUI"5e alld the currell! posunodemlSl one. See, as to the (ormer,john ladd (1973)
and, as to the latter, lacbu (1996) and Emeslo la(:tau and Lilhm be (1994) 11-39.
What is Living alld Dead III Relativism? 163
particularistidspecific articulu ion of3demamVinteresl fCmains 'split, from
tbt very beginning. between its own panicularity and more universa1
dimension,lI should be e3SY of grasp for lawpcrsons 3nd hum3n rights
,cuv1sts 3nd practitioners. The univtrsalistlc notions of'democracy', 'rule
ofbw', 1USlict=', and 'human rights', for example, remain empty sigmfiers
until the various specific, particularistic delll3nWantercsts a~ OIggfegated
or.as Lad3U put this, '3rticubtcd' into 'equiv3lent' demands through chains
ofeqUIValence.12 Recognition ofa particularistic dem3nd In one: sector can
inspire struggles for demands in other sectors. One h;as just to explore lhe
JUrisprudence of constitutional courts, supranational courts of human
rights, the International Court ofJustice, to realize how these 'chains of
equivalence' articubte themselves. 13 However, the: more cxtendcdlarticu~
1ated these chains bttome, the more pressing' the need for a general
equivalent representing the chain as a wholc' bc:comes 14 marking the
dw-acteristic 'hegemonic move' where 'the bodyofone particular assumes
a function of universal representation'.IS One has just to read, word by
word, the astonishing recent discourse ofthe European Court of Human
Rights,16 or the United St:.tes Supreme Court decision concerning the
II Ladau (2000) 302. Roscot" "'und', account ofule law In tenns o(agcnenllheory
of tNiJncing human intcrcsuldenunds, as subsequently enrn;:hed by Julius Stone,
iIRIlCd that mdividual dem~ndJ muSt relllaln If'msbuble 11110 50011 and public
attl:$ts ITUKcs Ihe very gmc poIlIt: 5«, ge~nlly, Julius StOlle (1966).
12 The same process is at work as well as In the-Juruprudence ofthe Unrted NatlOlU
'&caty Uoches (orever ~QZlng by ~y ofGcnenl Comments umntcndcd human
riFts trtaty ob1ig;mons.
13 Laclau (2000-.302) exemphfln Ihis by 5howmg how dlls amculaoon spills OVCT
.. the duu;tion ofuniven.ality WIth re(erence 10 anll-5}')lemIC demands bu lhose th;n
left rccognioon of IcgitilTUtion o( mlllS5 smkn um lead 10 'demands by students (or
RiantlOn ofdiscipline ill educanonal inSllnltlonS, hbenl pollUCWIS (or freedom ofthe
press and so on'.
I. Uclau (2'000) 302.
IS Ucbu (2000).
16 The European Coun or HUlllan Rights III !he case of Rtfoh llfnisi ('r'M Wdfott'
R.rry) aM 0tI1n'I v. Turboy (application n05 4134Q198, 413421>8. " 1l43/98 ;irId 41344/
98, 13 Fcbnmy 2003) vaiid;r.led !he five year dissolullon ofthe ruling natiOlUi po1itic:tl
PIny on the ground that Its continued oonstitllnonal CXlJlence lIIay In fUlure
~rdlle !he exislencc forms O( histOrically inslilullollailloo Turkish democracy
_I( TIus decision demollstntcs nther acutely Ihe awc!lOme supnnatlonai ~judi~
catwe ~r or adJUdlOIlVl: eplStenliC C:Olllllllllliliel. Professor Kevlll Boyle recently
Jllbcntcd tillS al the UnivcfSlty ofWlrwick llostgnduate Semnur (3 lkc:embc.r 2003)
~~"'IlS of'democncy and human nghts: which COIllC'S first?'. In hi5 conSldcrt'd view,
- 1UTIJII1 righlli precede: conceptions o( dcmocncy. Ile-conceptuahtcd III Ladau catego-
lies, thiSJuchdal reat siglllfies the dash o( 'empty 'lgrllfiers' perenmally UI quest o(
referent.

94. 164 The FulUre of Human Rlghts
human nghts ofth~ Guantanamo Bay dttentes.17 to fully grasp the artlClI.
Iation. as well :IS the imp:lct, of sllch hegemonic moves. In ~lUll, Udall
deepens our understanding (regardless, ofcourse, of the :luthorialllltcn.
tion!) of the articulatory praxd of human rights that insist~ntly conVert
'anti-SYSlC:mic' demands (pohncsfor human rights) in term~ of the prOS(
of govemance (poilucs afhuman rights).
ll. Justifications and Universality
The question of universality stands further compounded by the different
constructions ofjustificallons for human rights.Justification requires giv_
ing good reasons, and, in turn, the construction the very notion of,good',
for th~ acknowl~dgement or existence ofany universal set ofhuman rights.
Almost all the time textual justifications for the universality of hUlllan
rights remain incoherent, the paradigm case being that of the very foun-
dational document of contemporary human rights.
The Universal Dcc1::r.ration of I luman Rights in its preamble offers a
vanety ofjustifications. P:!.ra I of the Preamble asserts certain univernl
m0(31 truths concerning 'th~ inherent dignity' and' the equal and inalien-
able right.'; ofall members ofthe human family'. At the same time, It olTers
IIlstrumelltal (means/ends) type ofjustification for hUTllan right:.. Para 3.
for example, inSISts that recognition of human rights is es~ntial because
otherwise human bein~ will be 'compelled to h:we recour<;c, 1II.'> a 11ISt
resort. to rebellion aga.inst tyranny and oppression'. Curiously, human
rights are also declared essential, in Para 4, 'to promot~ the development
offnelldly relations between nations'. The preamble is also not lacking in
historicjustifiC2tions.IS It also advances specific instirucionaljustifications;
P:!.ra 5and 6 read together suggest that promotion and protection ofhunun
rights and fundamental freedoms of human rights is a 'pledge' to be
achieved through cooper..ation with the United Nations. P:!.r..a 7 privileges
a shared epistemology of human rights; a 'common understanding of
human rights is imperative'.19 The Preamble also furnishes specific stan-
dards ofcollective humllin endeavour: thus Para 1 refers to human rights
as the 'highest aspiration of common people', P:!.ra 5 invites atttmtlOn to
17 See. , lalndi v. RUIIU.ftld, &crtklry ofSliJlt tf DI.; RUlllifdd, MI'tf<lf)' ofSM/( v. {til/Ida;
Rasl/al tf tJl. Y. Bush, PmidtHl ofIht Uniltd SIiJIU (all decided 28 June 20(4). Ste also.
tht anal~.s by IWnald Dworkm (2004).
18 Set P~r.a 2thatJlullfies human rights by reference to 'barbarous acts which hay('
outraged the consclencc of mankmd ...·
19 keordmgly, lite opcnllvc or clUCtmg fOfmulauon at the eonchislot. of the ~­
amble ruts I common duty 011 states,civ.1soc~ty, intemallolul ofgim:uuons. mdl
Yldu
:
also and collectlVltlcs to nnve 10 promote hum:m nghu 'by reachmg and cduoI1OIl .··
What IS LIving and Dc:ad m RebtivIsm? 165
the promotion of 'social progress and better standards of life In larger
frccciom', and the enacting recital proclaltns human rights as a 'a common
' tand;ard of achievement'.
These assorted genres ofjustification arry within them inchoate an-
tiCIpations ofa future critique. Thus, the hlstortcalJustifiCltlons specifically
indude referents to the Holocaust and to H iroshima-Nagasaki but fail to
mention colonialism and imperialism as signatures ofbarbarism that 'equally
outragt: the conscience ofmankind'; feminist analYSIS remallls enabled to
protcst at the reference to 'the members ofthe human family' (and much
else besides, including the reference to 'mankind' rather than 'human-
kind'); ecological critique poillts towards the inherent environmental blind-
ness of the enunciation; critical race theory proteSts the inherent 'racism'
entailed in the notions of'human beings' and 'peoples'. And finally (with-
out being exhaustive), as we see shortly in this chapter, the cnalogue of
human rights and fundamental freedoms, even as it celebrates transcen-
dence from virulent forms ofsovereignty, pr~serves inract their potentiality
for production, and reproduction, offomls ofhuman riglulcssness every-
where. Many aspects ofcritique surface during the mandatory celebrations
of the Iluman Rights Day each year and these cascaded into a torrent of
criticisms-too numerous to bear the weight ofeven the lengthiest foot-
notc-during the recently org:mized fesllvals celebrating the goldenJubilee
of the U niversal Declaration. All thiS then ral.scs the quesllon of the
ideolDglcal inchoateness of contemporary human rights producllons of
)ustlficatlons' for universal human rights, Ifonly because mtroduction of
contexts seems subversive of clalllls of umversality.
Obviously. then, we need to step back from the enuncuwry (textual)
Justifications that human rights instrumentsolTer and invite attention to the
fact tbat the notions of'good' do nOt escape' geophilosophy (to evoke a tenn
ofDdeuze and Guttari),20 the conflicted timeplaces within which occurs
thc construction of an assemblage ofempty significrs and the shaping of
their content. Students of millennia-old diverse discursive traditions of
natllr..allaw know rather well this discomfiting truth. Gilles Deleuze and
Felix Guttari express the same truth distinctively: 'England, Ameria, and
France exist as three lands of human rights'. This is so because 'human
h!storyand the history of philosophy do not have the same rhythm'.21
~ph llosophy pauses to note the fact that the history of philosophy is
marked by national characterIStics or rather by nationalitarianisms ...
wilich are like philosophical ~opllllons'''.21
.. Gille! Ocleu!e ilK! felix Gutun (1994) 85-116-
21 Ibid., 103.
22 Ihld., 104.

95. 166 The Future of Human Rights
Concepts,assemblages ofempty signifie:rs,acquire: universality in terllls
of'external neighbourhood' or 'exoconsistcncy,.2J The: paradigm of 1l1od.
ern human rights attained exoconsistcncy on a panicular dimension of
human history, in which the immanent universality of human rights 0.11
only exttnd to the non-European other (as seen in Chapter 2) upon the
successful performance of the mission of the 'White Man's Burden' 24
Contemporary human rights discourse manifests a wholly differcnt
'exoconsistency'/re:-terrimrialintion of human rights principles across,
and between, all nation...societies. This stands faulted as making UllLverul
merely that which is militantly panicularistic within societies of wcll.
ordered liberal (or socialist) peoples or cultures. Even so, an edge of
'external neighbourhood' or 'exoconsistcncy' speaks very differently to
the future of human rights.25
'Contemporary' human rights discursivity now begins to rcconstruct
and addrcss the gcophilosophy ofhuman rights in tenns of the problem·
atic of ajust i"tertltlfj'o"al ordN', that is, a world order based on promotion
and protection ofhuman rights within and ruroSJ human societies, traditions
and cultures. Respect for human rights entails sustcnance of a complex.
interlocking network ofmeanings and conducts (and their renovation and
replenishment) at all levels: individuals, associations, markets. SUteS,
regional organizations of the stateS, and international agencies and orga·
nizations. Ind« d, the 'universahty' of contemporary human rights dis·
course thus marks a break, a radical discontinuity with previou5
Enlightenment modes of thought.26
The epistemological break IS of the
same order as that which occum::d in the SC'Ventttnth century CE European
tndition. If 'prior to the seventeenth century, governments madc no
2J Sec Ibid" 90.
24 Tknow of no femmlst rnriquc that cavils the 'man' in thi$ expression!
2S Arvtnd Shamu (2003) ~t 131-4, userully poina out the difference befWeen
Arrick: 18 of the UDIIR and Article 18 of the International Covtnant on CIVil and
PolitICal Righa. The rormer enshrined as;m aspect orright 10 conscience and rellgJon
'the rreedom to change' rehG'on Of behef; die blttr enshnned the nght to '~dopt' a
re1i~on. l ie suggestS th2t this subtle shift in language wall an aspcct of human nghtS
diplolll:acy that respected differences in religious traditions; bl~mic COUl1lrle~ winch
opposed the Universal Decln:ltlon on the ground that the 1Mri'", regards (/ltm~ an act
ofapostuy pUll1shable wllh de~th were content With the Covenant's bnguagc. I evoke
thiS disc:usslon here to dlustrate the aspect ofcxoconsIstcncy at work In COIltelllpOrJty
human ngills enunClanons.
ll> Thus. for eXlullple. when Ilegel lIIallltltned that 'the right to recognition'. Iha~
15 'respect ror the penon or "fttt personality- as such" IS the 'core orthe modern sule
(SmIth (1989) 112). he was not rnnqumg coIomahsm or Imperialism, p;itrtarch)t or
racism.
What IS uvmg and Dead in Relativism? 167
reterence to rights as astandard oflegitimacy',27 prior to the mid-~nueth
wry CE, me world intenutionalorder did not regar~ respect for human
~ ts as a standard for legitimacy ofIIltemauonal relations or affairs. This
~pi~tcmOIOgLcal break .complicates rec~urse to the Enlightenment
discursiVlty on hUl11al1 nghts as natu~1 nghts; for, as we have see~, the
notion ofbcing 'human' stood all along constructed on Euro-centnc, or
ncist, lines.
Ill. Three Moments of Universality
~ notion of 'universality' of human rights raises heavy and complex
questiOns that may seem distant from the 'real' world of human rights
praxis. But these erupt constantly i~ that 'real' ~rld as well. In~dvcrtence
to these questions make the enterpnse ofpromotmg and protecting human
rights t.,-ven more difficult than perhaps it actually need be. , . ,
In a sense, these issues rdate to how one may construct the umversal
in relation to the 'partien!;;"r' within the proclaimed 'universality' ofhuman
rights and, further, which interpretive comll1unity, if any, may feci privi·
Itged to so do. T he way this is constructed and contested, as we see later,
matters a great deal. Hegel states with finality (ifsuch things call be!) the
modes of construction when he distinguishes between three 'moments':
.raet tmiwrsality, abS/f'Q(t partituilJriry, and concm~ ullivtrsat.'ry.28 The: first
moment stands for 'undifferentiated identity'; the second for 'the: differ·
nutation of identity and difference'; and the third for 'concrete univer·
sality,which is the full realization ofindividwlity'.~ 111cclaim ofuniversality
ofhuman rights offers itselfto construction through these three moments.
Its abstract Imivmaliry addresses the undifferentiated identity ofall bearers
ofhuman rights, regardless of history or future:.30 The second moment
ofllbstratt univmafity occurs when the identity of tlte bearers of human
rights cognizes that bearer bygtrldtr, illdigtllitty. VUltlUllbility, or prrgmtwn
lltlribwts. T he third moment of {O'U"/~ Ultivtrsality becomes possible of
T! Smith (1989) 61.
211 Mark C. Taylor (1987) at 16-17. 1 rclllalll aW;IT(: of the IlIIpondenhlcs or:my
readllig of Hegd. and now Lac::an, presented In Judith ouder, Emcsto Lacbu. and
SbvoJ :!Iick (2002) but also Uluble, Wlthm the dire continel of tillS monograph. to
JlUtsue thCSC' uve all occ~sionaJ x knowledgement.
~
Taylor (1987).
30 '" .the lIlutual recogllltion of one aT1mhet', tlKhts', acrordlllK to J1cW;1. 'must
take pbce at the expense of luture, by abstrn:tmg or den)'lng all die mdlVldual
dlft'erenccs berwecn !a until we arrive at a pure · I ~, the fttt Will or · universal
~sciou§l1es5~ whiCh IS at the rOO( of thesc difTercncc:s.. : Smith (1989) 12• .

96. 168 The FulUre of Human Rights
awinment when the first twO moments prevail: the moment of Identity
ofall beings as 'fully' human and the moment of internal differentiation
of that 'human'.
Should we choose to distinguish these three moments, many of the
objections or difficulties With the 'universality' of hum:m rights .recede.
The cnUI1Clatory referents of UDIIR comprise Ilhslmtl lIuillfflltllt)'- The
UDHR addresses 'all human beings', 'everyone', 'all', and even '110 one'
(in the imperative sense that 'no one' ma~ violate human ri~llts thus
proclaimed). All these entities have human nghts; the o~ ly OCcaslOl.1wh~n
the moment of Ilbslract pilrticllwrity stands comprehenSively coglllzed IS,
perhaps, in its very last Article.)! Subsequent human rights en.un:iauons
increasingly address IlbSlrQ{t pt1rriclllllrities: for CDmple, ,":omen s ng.hts ;u
human rights, the rights of indigenous peoples, the rights of children
and migrants, including migrant labour, and the . hop<:~ully emergent
human rights ofpeoples with disability.These areporttmlllnlles because they
differentiate the Ilhstrtul /UJnlllPl in the Universal Declaration. These are
am/fila because the identities they constitute still as yct do not addres~ the
specificity of subject-positionsilocations of the human rightslobl~gatlons
constituencies. But this is what the third moment of {(mcrttt IIII11'l'fStll.ty
addresses; III this moment, rights come hOUle, as it were, in the lived and
embodied circumstance of being human ill time and place under the
signaturc of finite individual existence. In the moment of t1~e c~uac't
utlivtrstJl, individual life spalls and projects arc not merely filllte III ~he
abstract but arc governed by the malevolence ofthe powerful, the ~aga~':S,
and whims ofthe practias ofthe politicsofcruelty, and ofcllf4StroplucpoImfs.
The relation between the three moments remains deeply problemauc.
The moment of concrete universality appears, on one reading of human
rights, contingcm on the performative acts of the first two moments.
Concrtte rwivtfStllity of human rights, on the one hand, presupposes the
moment of both abs/Ta(/ ImivtrS4lity and abs/mc/ JHlrtitlllarity. On the otl~er
hand the moments are rrvmible, t ntailing no logic ofa hitrarrlry or progress/Oil
ofmo;"erus, in the sense that often enough (as explain~ ~arlier) it is the
he~-and-now assertion of human rights that lack a btil1g 111 1M world that.
in tum creates the space (the geophilosophy) oUfor the other twO mo-
, . I e · . h ", of
ments. The COI/frete u/1i/.'l'f"SQliry ofhuman ng Its olten consIsts m t e:le
prefigurative praxis. No theory ofmomcnts ofhuman rights guided struggles
)I Aruek 30 fates: 'Nothmg In thiS ()«br.lltlon nuy be Imerprnea as Inlpl)"n!:
fOl" any SIilIr. pp (1f" pn10ff allY nghts to engage: In any :KtIV1ry or to perfonn any.iCt
aimed at ~ cIartucricHr of any of Inc nghts and freedom 5et forth herein' (emph;rslf
. Ildd· · /lIr~1
ackkd). l QU the reference to pmt1fU:as symbohzmg(OrpoNlt pmt1fU '" 1"",,10 ltd
pmoru, IMI is indirN:l1IIJi "'11II1II11 """61.
What is Livmg and Oc;td III RelatiVism? 169
for decolonization or Mohandas Gandhi's protests agaLllst or may fully
aplail1 the incipient, but still vicious, forms ofan earlyregime ofapartheid.
Much the same holds true for the civil rights movements led by Maron
Luther KingJr; or of women's or environmental rights movements.'2
The distinction between universal and universalizable in hunun rights
IS also an affair of histories of ~r and of insu¥ncy. The interplay
betweell the moments of abstract, particular, and concrete universality
shapes the history, past and future, of human rights. Each marks some kind
of progress or at least a movement, towards the universality of human
rights. Without the notion, howsoever deeply anthropomorphic, that each
bunun being is by the fact of being human the subject of the discourse
of human rights, the discouTSC becomes wholly inscnsible. So, do all
further attempts at extending the notion to other sentient beings (as in the
Immal rights movements) or to 'nature' (the notion that trees, rivers,
moulltains, fragile ecological systems are bearers ofa certain order of rights
against incursion).
Ilowcver, human beings ate both biological and social constructs. The
moment of abstract particularity identifies human beings across various
picb of ~rs of classification on the lines of race, ~nder, nationality,
and c1J.Ss. Abstract particularity helps proclaun/enunciate orders ofcollec-
tivelgrouplassociadon identities, attaching to them configurations ofdis-
tinctive: vertical rights, additional to the horizonul rights ofthese as human
beings. Concrete univcnoality constitutes the realm of struggle both for
enunciation and enjoyment of rights in lived existence that the two mo-
ments bring to historic play. It is on this plane that decisive struggles
bnwecn rigllts-dmying fomutions of~r and rigllts-dm!atUfi'lg fonnations
ofcounter-power enact the dance ofdeath and rebirth ofsocial C0nsc10US-
~ and social organization. The struggle is inherently violent, moving
along the axis of the violence of law and law of violence." Not usually
acknowled~d, practices ofviolence constitute, wht"ther ofthe incumbents
or insutgcnts, or h~monic or countt"r-hegemonic practices ofviolence,
the matrix of concrete universality of human rights.l4 The moment of
COncrete universality stands constituttd by both the violence of the op-
~sed and that of the oppressors through distinctive histories ofpsrudo-
tptritJliotl (to which I allude later in this chapter).
"We nuy al50 nOtt' ht"re. wrthJudlth Butler (2002: 24) thn 'ulllve~llry unnot
PI'Oc«d WithoUt denroYlllg that which II pU
rpoIU to mclude'. She, h~r, also
:'rndl lIS that ·the c.:luslOn:uy eharxu:r of...eollventlotUl 11011115 of ullIversahry
1] not preclude further recourse 10 the lenn ... '(at 39).
l4 Upendra I3axI (1987) 247-64.
Upendra &a (1999c) 27S-90.

97. 170 The Future of Human Rights
rv. Globlalization and Universality of Human RighlS
AU this suggests the possibility of two types of difficult distinctions: first,
between utlivmality and the utlivmalizabifiry and second, bctweenglobal',l"a.
tum and lmill(r1a/ity of human rights. The first set ofdistinctions cl1lcr~s
analytically as the dialectic among the three moments in tenns ofab~tract
universality, abstract particularity, or concrete universality, in their potcllltal
interrelation. Unill(rsalizabiliry thus names the passages between the three
moments, whereas globalization of human rights merely marks the ascen.
dancy of the contingencies of power plays of the h~mon.
'Globalization' of human rights is a process in search of d cdreful
description. This process rests on two fallible butsrill powerful beliefs: the
beliefcon~ming the ~[em' origin ofhuman rights and [he beliefthat
only some leading Euro-American societies Oldy most effectively promote
global human rigllts cultures. One may characterize the first order ofbelicfs
in tenns oforigin myths and the second in terms ofthe patrimony ofthe
dominant (as already discussed in Chapter 2). An.a.lytica.lly, It is at work
when the dominant stateS selectively target the enforcemcnt ofceruin scts
of human riglns, or sets of interpretation of human rights, upon the
'subaltern' state·membcrs. and peoples, of the world system.3S
The hcgc·
mon dcxs not accept as a universal nonn that its sovereign sphere, rife with
hum.an and human nghts violations, ought to be equally liable to similar
human rights-based intrusionlinvigilation. No major Euro-Amencan na-
tion would subject itselfto Third World institutional scnltiny and crinquc
of its human rights pcrfonnance.
For eX3mple, the rigours ofan mtemational panel ofobservers mOIll-
toring free and fdir elections will never find acceptance, even after the
electoral muddle and mess that elevated Gcorge Bush to the White House.
though insisten~ on such monitoring is now .a routine aid and good
governance conditionality for South Ildrions and peoples. South·based
35 However. the indictment of Eurocentrism merely SCrve5 to Kinforce a :.on of
pnde In these beliefs. Proponents and propagandiSts h~vc link or no dlfficuhy III
suggnung th~t such IndlCftTlCnt bcromcs and remams possible III lhe firsl plxc only
through the I"«Ollrse 10 ElIro--Amcncan onglllS alld dcvdopmcnt of human rights
I~nguages. Patnlllony beliefs, SImilarly, thnve whell subaltern peoples and SQre! appeal
10 leading Euro...Amencan StalC5 and peoples 10 observe hUlllan nghts nonns and
standards as, fot example, In the allcvuuon of the Southern dtbt or obligauom of
development ml)UrKe to 'ocvdop11lg' JOClC:tles, or calb for the 101I11In8 of lIlululIJ-
lIonal pharnuccmlcal rorponuons 10 fotego theIr patent monopoly over hfe 5;l.VUlg
n:uovltlll AIDS dru~. Pm another way, the procus ofglobalizing human rights enwls
new forms of global tutd~ alld even vassalage that KmforcC' the production of
patrimomal human nghts beliefs.
'(/hat is Living and Dead in RelatiVIsm? 171
rnonuoringofhuman rights violations in leading Euro-Amencan societies
likewise remains inconceiVllble, though a North-based surveillance of
foreign policy and developmental conditionality now routlllcly affeCts all
South societies and pcople5. Little or no effective human rights mOllltonng
is allowed to extend to the Israeli violations of the human fights of the
Palestinian state and peoples; Israel was recently allowed to mock, III the
gaze of the entire world, at the United Nations resolurion ordering a
human rights investigation conceming atrocities at the Jennin camp for
Palestinian refugees.
Globdlization of human rights is thus a 'discerning' process, which
marshals logics of impunity for some egregious violators, visiting at the
same time with ferocious severity similar agents ofviolation elsewhere. It
thrives on the distinction betweell the 'friend' and the 'enemy'. No doubt,
the assorted practices ofglobalization ofhum.an rights thrive on contingent
JlC("cssities of Realpolitik, or the politics of human rights. As the world
knows by now, the dominant Euro-American support for Osama bin
Laden and Saddam Hussein found VlIrious, even human rights-friendly,
'Justifications' during the various phases ofthe Cold War; upon its historic
ending, these actors stand presented, with fierce felicity, also as deeply
subversive ofglobalizin8 human rights regimes. Saddam Hussein enacted
endless 9!ll·type cataStrophes for the Iraqi and Kurdish peoples but these
~gan to decisively matter only when he sought to annex Kuwait and
survived the first GulfWar. I lis regime becomes an evil regime only with
the launching of the global war on terror in the wake of the terrifying
a.nault on the twin towers of the World Trade Center III New York City
and on the PentagOn, despi~ the fact tllat even the state-sponsored inves-
tlgattons remain unable to demonstrate any linkages between Hussein and
Osama bin Laden.36
Jt is pointless to enumerate other equally horrendous
examples.J7
Globalization ofhuman rights regimes thus suppresses, even
supplants, when expedient, the rhetoric of universaltty of human rights.
An ethiC animated by logics of universality of human rights necessarily
protests dgdinst logics of globalization of human rights.
These regimes of globalization ofhum;m rights furthcr now manifest
ever shifting orders ofjustifica.tion for the use offorce directed to the 'war
on terror.' Any state or peoples suspected of harbouring 'terrorists' now
remain exposed to massive violence by coalitions of 'willing states' under
the leadership of the United States. Any state that may be suspected of
Ih ~ See, Eliubelh Drew and Thomu J,o...-CfS (2004), James Mann (2004), James
nl~Ord (2004), EmmanuclThdd (2004).
See, SaHUntha !)wer (2002), Geoff Robertson (1999).

98. 172 The Fuwre of Humin Rights
possc=s ing stockpiles of ~OIpons of mass destrUction OIlso remOilins 1i00bie
to massive pre~mptive use offorce. regardless ofits demOills ofpossesSion,
ckployment apOibilities. or hostile intent. Further, the mere OIpprehen_
sion-Wlthout OIny semblance of evidence-that a state may have SOme
connection with any post-WI! terrorist network now stands considered
OIdequate to justify the 5O-<alled new prt:-emptl~ wars of'disarmament'.
When imtiOilI propa8Olnda of such connectivity ~twttn a target-state and
a 'terrorist' network is proved to be mythical by dlc very agenCIes of
mvestig:;ation set up by the hegemonic states, conscquenrialistjusuficatiolls
stOlnd assiduously promoted in the complex gr.unmar of'regime change'.
GlobaliZ.:l.tion of human righLS proceeds on moral maxims which arc,
as yet, not fully enunciated as intemationalnorms governing stOlte conduct
because they are not acceptable to the hegcmolls themselves. The pubhc
discourse concerning the removal of President Saddam Hussein
(rdteratively explicit in statements by the US President OInd the British
Prime Minister in December 1999), and especially since the Second Gulf
'W.Ir, for example, seellls based on the notion ofj ustified tyram,iridt (IiI:
killing oftyr'ants). Tyrannicide nowextends beyond the killingofthe tyrant
to the killing of all those who OIcted as his instrumenLS of ryt:lllny; both
stand presented now as global humOin righLS public goods. Further, the
notion of regime change underscores the imposition ofpolitical death for
an 'evil regime' or ~n 'an axis ofevil' such thOit wurants massi~ use of
forceJustified against entire peoples, regardless ofany normative restraints
posed by customary, OInd the United Nations Charter, prohibition of usc
offorce: (olltslde sclf-defence situations).l8 Postmodcrn coalitions ofW1l1·
ing states, cobbled together in a pastiche ofapperceived common strategic
interest, dlC:se fonnations of Prometheus unbound, suddenly emerge to
redeem a globOilI human rights civilization!
Further, tyr2nnicide or regime change remains the monopolistic estate
of the global hegemon. Any recourse: to the logic of enforced violent
}8 Moral duphclty, 51tlJ.1ted crudly early enough by the perambulatory paragraph
4 ofthe UDIIR, vaJorirmg human rights a5 an OI5pect of'che development offncndly
rdallOlIS bet'Nt'en nauons', chus stands WTltlargc on the globahunon of human nght5.
Only thOloC reglllles sund decbroo 015 evil that suit stracegic Interesc or conllngcnt fancy
of Northern hc~mollic power blocs. The logiCS of regnllc change jUMificd by the
global hegcmolllc power bloc glamlite human nghts III terms of imperatives of It~
gcophilosophlcs. Myanmar. SaudI ArabIan, ZImbabwe peoples in proleSI. dcmed any
prospect of lIItematlollal endorsement under che bJ.nncr of human nghts governancc,
ally SIgnificant LnteTlUlional colbborauon for mducemclll ofreglllle change, ha~ beell
quiek to pamt thiS oue m the wake of the Second GulfWar. Ofcourse. after Iraq. they
understandably dread any unilatcnhst )usnfication' of aggression even when they
expe'C1 a monl COllSCliSUli C hap'cr VII.typc Umted Nanons-rype collccuve actiOn
'iXlhal is Living and Dead in Rebrivism? 173
regime change by peoples in stntggle constitutes 'treason' at home and
'terronsm' abroad. Treason (including disscnl) must be outlawed because
It complicates the assumption of universal global responsibility of the
pOwer to name an 'evil rt:gime' and for ousting It by the sustamed use of
force; 'terrorism' must be fought, oULSide the constraints ofhuman nghts
norms and sta.ndards, to preserve structures of global power The unfold-
Ingofa 'new' post.9/11 international law in the context ofthe Second Gulf
'1hr and its continuing cruel afterntath brings about a new era ofviolent
globalization of human rights.. .
The predominantly Anglo-Amencan leadership ofwar prop:lg3.nda and
:actUal acts of WOIr has raised formidably technical issues concerning the
legality ofrecourse to unilateral force (in the sense not specificOilly OIutho-
rized by the Security Council), and ofthe ensuing rather lawless military
occupation.These will continue to invite contention amongthe cognoscenti,
especiallywhen the scope for residual adjudicatory c1arific::r.tion now stOlnds
rffectivdy diminished.)? However, no elegant dispute concerning the finer
points ofinternOitional IOIW can mask the brute reality ofthe installation of
the repertoire of~ustifications' for the twenty-first century's newly fash-
IOned ~ust' WOIrs. It invents three notions: first. the 'WOIr' :lg3.inst 'm~
international terrorism' (or simply, the 'WOIr 0 11 terror'); second, the hastily
assembled doctrines concerning pre~l1lptive disarmament WOIrs; and, third,
the power of unilateral OInd un~rifiable assertion that claims/constructs
authoritOltive linluge betwttn the two. This power cstablishes its own
iruugural truths, with a fierce plenitude.
In the proccss, the United States of America becomes the primary
rq>ository, the virtuoso exponent, of the newly institutedglobafjllrisdiaion
ojsuspicion. The solitary superpower's paranoia now becomes the standard
of human civiliZ.:l.tion. It may, with impunity, nOime any South nation as
aharbinger or home: ofmass international terrorism and further claim that
it posseS5CS unverified/unverifiable weapons of mass destruction which
mOly, eventually and somehow. be made potentially aVOliiable to agents of
massintemationOlI'terrorism'. Reiteration ofthese linkages, even without
a semblance of proof, becomes the founding truth that justifies OIttempts
19 The Umtcd SUles' successful insiStence dl3t Belgium upunge from its satuce
book the ulllvtl'S.1l jl1nsdlctlon for war crimes and enmel ag;tIllSI humanity will
n~te!osanly abate the current pc:C1C1on~ litpinscPresldcm Uushand Pnme MLl1Ister Blalf.
The II1b!muional Crnllltl31 Coun docs nOI yet deal with eTIIIlCS of aggression and, LII
.ny cwm, the United SUitS tus chosen I)ot to raufy the cre3ty. and in an extraordinary
PCrformarl(C even revoked Its inLllal Signature to Ihe treaty! GlVtn thiS, tile people's
rnhunals and truth cOlllmiSSlons providt the only. even when ,omewh~t hlstoriClll1y
t ffete, (unctional moral equtvalents.

99. 174 The Future of Human Rights
(with or without allies) to cajol(:. corrupt, conscript, and coerce all States,
and th(: entire United Nations system. to wage 'disarmament wars'. The
Pentagon and the White House now assume Ul(: new role ofa 'PosunodcTn
Prinee=';..:.l th(: Vllnguard bearer ofstandardless use of military might III hot
pursuit of a vision of world order that preserves Its str.uegic hegemoniC
domin:mcc as a Jil« qlla non of a civilized world. Thus stands established
a new neo-colonial world order in the pr«ise tenns that Kwame Nkrunl3.h
framed to describe it, as 'power without accountability and exploitation
without redress'.
Thus also bl=gins thecarcer .and the future ofan era of.a neweold War.4!
Th(: new Cold Wu ideology .and practice deploys the rhetoric of human
rights for its own distinctive ends. Fint, and .abov(: all, it generates a
messianic discou~ that now constirutcS 'rogue' South regimes :md sUtes
(ddined as thOS(: that once served but now threaten Northern interest)
pr(:Sented as a collective threat to human rights futures everywhere. 'Just'
wars against them constitute noble. even sacrificial. endeavours to redeem
affected South ~ples hum.an rights futures. Strotld, th(: cnonnOlls human
suffering of South peoples e.aused by Star War-typt massive aggression is
presented 25 ajust, necessary, and even om:m(jpalilJf' foml ofimposition of
human suffering. These extraordinary violent mediations, it is now hemg
said. aetll.ally birth new futures for human rights. TI,jrd, 'collateral' human/
social suffering thus imposed standsjustified by violent practices ofregime
change; the present surplus human-and human rights.-violation IS to
be tr.lldcd-off by ;rn lIne(:rtain promise of a life 'democ:r.JItic' here;aftcr.
Finitudes of suffering thus (:nter circuits of global reproduction and ex-
change. Fourth, .a 'higher' epistemology and ontology stand thus installed;
the knowledges of instantly suff(:ring peoples are perishable fomlS when
confronted with the 'superior' knowledgcs that ensures more secure human
rights futures for them. 'Post-confHct' Mgh.an and Iraqi pc=oples may thus
never be 'worse-o£f' in .. globally constructed Paretian optimum. Their
40 Stt. for thIS ortc:rniion ofa Gr~msci.an norion of the 'Modcm Prince' Stephen
Gill (2003) 211-22. See also Upendra Ibxi (2005).
41 The power to rwne an CY11 regime, or~n axis ofCVlI. 15 mdeed an awesome p""''tr
that nlarks .he hcgmnmg of thiS new Cold Var. Unlike the old Cold Won, It does not
disappear With the dcmlsc of a rIVal superpower. lndud. It SCCIll' 10 thnve In dlr~cl
proponlon oflhc clllllinatioll ofan umnediate urge. ofsuspIcion. Thus, clIlergo::. even
aJmdst the Second Gulf War. symptOms of the fUlure prognmschrift. Nonh Korca
emttgl.'S as a mobIle horillon; post-GulfWar urgets :also r:lpKlly cmerge (such ~ Sym
and lnn. even possibly. the: newly nuclc:anzcd state'S of P:lbstall and Ineha). Indeed,
:til nuclear .....~apon . and threshold,sUtCi remam Wlthm the arc ofsuperpower 5USpICKln
wd, given the relalrlC' C:a5C ofproducoon O(~1 and chcnllcal 'N'C':illpons, all South
stalCS rCIll:nn I~eellubly situa!C'd wlthm II.
wta. is Living and Dead in ReI.atMSm? 175
protest against the occupation regime must forever remain an index oHalse
consciousness. Fifth, at stake is the diplomacy of regional geopolitic.al
reconfigur.lltion; the nt=w Cold War, after all, yields even iffungible 'road
maps' for reconstnlction of Israeli-Palestinian peace .and amity. regardl.:
of the asymm(:trics of politics of indignity of regune change affecting
prilllanlyY.ass.ar Araf.at .and the 'dignity' assured to near permancnce ofthe
Saudi. and Emirate, and other regimes. Sixtll, fonns of glob.al capitalism
must underwrite affected human rights futures as mamfest III the un-
seemly wrangle, even among the chief allies (the United States and the
United Kingdom) for the post-conflict allocation of global tenders for
'reconstructing' the Ground Zero Ir.llql infrastructure facilities and endow-
ments and with greater obscenity the scr.llmble for Iraq oil and petroleum
Eldorado. Some of you may think tillS description to be overtly political;
so, it is, until the wholesome distinction offered in this work, between the
politics of, and for, human rights emerges fully.
These sUlllmary observations illustrative of the distinction between
gIoOOlizalioll and IIIl;vmality of human rights suggeSt that globalization of
human rights neccSS41niy fragments their vaunted universality; in contrast,
umvers.ality nukes problematic the new globalizing practices ofproduction
ofthe politiCS cfhuman rights. Globalization ofhum.an nghts signifies (to
usc Judith Butler's phrase outside her context) a 'form of politic.al
~rformativity' that 'retro.actively absolutize(s) its own cl3im',42 In con-
Ubt, the logicslparalogks of the 'universal' human rights remain deeply
ethical, tormented by reflexivity allll!~ way.4J The central question now for
the deciphcnncm of the future of human rights stand!> posed by the
manner and mode through which human rights :lCtMSm nuy historically
position itsclfin a pertinent response to tll(: globalization ofhuman rights
in its current violent fonTIS.
V. Antifoundationalism
The claim for utliumality of hum.an rights is also subJcct to a Vllriety of
antifoundational critiques. The ide.a th.at hum.an rights 2fe universal relies
on SOme high(:r or meta-justification. drawing upon the po~r ofethical
theory and moral reason. Pcrhaps, Alan Gewinh in The Com/mlll;ty ofRigllo
.q Butler (2000) 41.
4.1 The dlSCQU~ 111 Buder, Lacbu. ~nd 1.Ifek (2000), though not directly fl.lClUed
on the unlVttS;ility of human nghts. exemphfleS a reflexive con1ll11lmem to Situate
'what proper venuc for the cL;um of unrlC'~llty ought to be. Who may speak. of it?
And how it ought to be spoken? (Hutler at 38-9). Sec also. A1b.ll Gc:Wlrth (1996).

100. 176 The Fu!U~ of Ilumall Rights
provides the mostsusumcd account of 'objective' mo...1foundations Ii
universal human rights." Nornlaoveethical theory, ofcourse, subjects t~r
discourst on the right to striCt logical scrutiny and different thlllke e
provide diverst foundational justifications. However, the exponents a~
agrtt that the idea of the universality of hum:m rights ha~ vahdlty only
when grounded on some justifiable mor.al or ethical foundanon and that
the construction ofthe universal theory ofrights is feasible and desirable.
Without such anchoring, there would be no way to distinguish between
interests, policies, and goals on the onc hand, and rights, on the other.
In COntrast, antifoundationalists deny thc need, and question the desir_
ability, that mor.al reason can furnish universal bases for human rights.
Some insist that dlere is no 'ahistorical' power which makes for righteous_
ness-a power called ''Truth' or 'Universal Human Reason'. Not. mdced,
are there forces that may bring the powerful, unjust, and brutal people
amidst us to a sense of universal human vengeful rights: 'ifnot a vengeful
God, then a vengeful aroused proletariat, or at least a vengeful superego,
or.at the very least, the offended majesty ofKant's tribunal ofpure practical
reason ... '.4S It is also being argued that universal human rights arc simply
impossible ~causc what counts as 'human' and as rights belongmg
to humans are context-bound and tradition-dependent. There IS no
t...nscultu...1f-act or being 'human' to which universal human rights may
be attached. Eduardo Rabossi (all Argentinejurist) has recently urged that
the ;hUllUll rights phenomenon has rendered human rights foundationailslI1
outmoded and Irrelevant'.46 By human rights phenomenon Rabossi means
(I think) the f.lct ofenunciative explosion of human rights. For him that
fact is all that matters. It IS unnecessary to revisit the philosophical grounds
on which hUlllan rights may be based.
Anti-foundationalism is a close postmodemist cousin ofrelativism; each
urges us to pay heed to contextS ofculmre and power. Both insist, though
in somewhat different ways that do matter, that the agenda ofhuman rights
is bestarticulated without the bbours ofgrounding rights in any transcultural
fact or 'essence' named as 'human being'. The claim here is that such
labours oftheoretical pr.actlce arc either futile or dangerous. They are futile
because who, or what, counts as being hUlllan is always being socially
dcconstTucted and reconstructed and cannot be legislated by any ethical
imperative, no m:uter how hard and long one may try to so do. They arc
dangerous because under dIe banner of universality of human nature,
.. Albll Gev.'lrth (1m. 19(6).
45 RIChard Rorty (1993) 112 at 122, 130.
'" Quoccd Without CIUtlOfl by RlChilJ'd Rorty (1993) 15. 112 JI 116.
'What is Living and Dead 111 Relativism? In
reginles of human violation actually thrive and prosper. The danger for
hurnan rights stands constituted by the very constructIon of 'human',
which then allows the power of (what Erick Erickson named as)
l*udospeciation', a process by which different regtmes of psychopathic
practices ofthe politics ofcruelty may erect dIe dIchotomy betwttn human
and non-human, 'people' and 'non_people'.~7 My own cnuque of the
'lnodcrn' human rights pa...digrn commits me, perhaps, to an acknowl-
edgement of the power of this very danger.
The danger stands compounded when we attend the mission of the
Dead White Males, or what was earlier called the White Man's Burden,48
drawing sustenance from the rhetoric ofuniversality ofhuman rights. The
American Anthropological Association, in its critique of the dr.aft decla-
ntion of Universal Dedar.ation of Human Rights Stated. memorably in
1947, dIat doctrincs of 'dIe white man's burden'...
.. hilve b«n employed to implement economic exploiution and to deny the right
CO control their own affairs to millions of peoples over {he world. where the
eq»nsion of Europe and America has mu m nOI (sil] {he literal atermination of
the whole populations. nationalized III lenns of asc:ribmg euitullil mferiority to
the peoples, or in concepuons of badewardness III development of their 'primi-
live mentality,' thatjustified their hems held III the tutelage of their superiors. the
h~~ry of the western world h..a.!i b«n marked by dcmorahUtlon of human
pn-sonallty and the disintegration of human tights among the people o....er whom
hegemony h.as bern estlblished.49
Justified in me conjccmre ofUOHR enunciation. this alarm sounded
with elegant clarity in the en preceding the posnnodern e... (that has since
then been enacted scvcr.ally) signals concern with the Dark Side of the
Enlightenment, and even gt"lle...red profound doubts about the furure
history of'progressive Eurocentrism'. The concern continues III the con-
Ittnpor.ary postmodern critiques ofthe umversahty ofrights. Nevertheless,
the sounding of the alarm in the same mode is, simply, dysfunctional.
Indeed, the Association pleaded in t988 for a new decla...tion on human
rights, which recognized mat. ..
peoples and groups have a generiCright to rcall%t diCIT Opacity for culture, and
to produce. reproduce. and ehange thc conditions and forms of their physical.
!)('f'SOnal, and social existence, 5() long as such .1.ctivitics do not diminish the same
capabilities ofothers.... As a professional org:'ll1iz.1tioll of anthropologists. the AM
47 Tu Weimmg, (1996) 149 at 1ti6-7.
• Roben Young (2001).
49 American. Anthropolog..::LI M5ocliltJon, Statement 011 Human RJghts (1947).

101. 178 The Futu~ of I-Iuman RlgJlts
has long ~II, and should continue 10 be, concerned whenever huoun dlffercll(co
IS made the bUls for a demal of human rigtns, where: 'human' IS unckrstood In
its full range ofcullural, social, lingulslic, psychol<>gJcal, and bIOlogical SCllse~_$O
Regardless ofw hether this is 21 'f2lr cry',SIor 21 Subtle shift in the Associ".
tion's positioll rel.uive to human rights, the fonn ofantifound2ltionalisrn
thus expressW remains precious for human rights fututes. I $;Iy IhlS for
two reasons. First, this repudiates the globalintion ofhum2l1l rights, at 1C'2ISt
when pervaded by the phenomenon ofthe politics C?fhuman rights marked
by ethnOCentrism. This kind of ethnocentrism is best described as 'the
point ofview that one's own way oflife is to be preferred to 2111 others',52
w hich becomes particularly pernicious when it is 'ntionalized and made
the basis of programmes of action detrimental to the well-being ofother
peoples... ,.53 Second, it combats 'the ouonoded concept ofculture deve!.
oped by anthropologists early in [he twentieth century' which emphasized
it as 'static :md inflexiblc'.S4 The Association's re-conceptualization of
culture as 'capacity for culture 2Iccentuates a 1I0tion ofculture as '3 process,
developing and changing through actions and struggles over meallLllg',SS
its 'inherently soci:al character and virtually infinite plasticity·56 rather than
a repertOire of fIXed and relatively immutable mits and attributes.
AntifOllndatlon:t1 critiques of human rights refer us to the 1ll()lllent of
concrete unlversahty and ItS infinite openness to violent forms of
pselldospeciation, ThiS is a valuable lesson, one that, unfortun:ttcly. ~
need to learn repeatedly. At the same time, not all amifoundanonal cri·
tiques realize that the subaltern struggles remain inconceivable, or :tt any
rate unllltelligible. outside frameworks that invoke a universal concepnon
:tbout the meaning ofbeing 'hunun'. Iffoundational beliefs )ustify' prac-
tices ofviOlent social exclusion, these also ground an ethic of mclusion.
To uke a civilizational example, nther than a mcrely historical one, it
becomes diffkult, ifnot impossible, for the Indian untouchables to claim
dignity and rigllts against the dominant and violent structure of social
exclusionjustified, cosmologic:tlly by some varieties ofclassical Hinduisms,
were their claims to be held vitiated as being 'found:ttional'.
.'A) Cited 111 Sally Mary Engle: (2001) 38-9.
51 Engle (2001) ~t 39.
52 MelVIlle J. Ilmkoviu (1955) Chapler 19.
1) Ilerskovlu (1955). Ilc:nkoviu. here, spc:cifit'lilly refers to such ntionalnm'lliin
'Euro.Amer1t'l111 culture'.
504 Sally Merry Engle (2001) at 39.
M Engle: (2001).
S6 Te~ncc Turner (1994) 406 at 420.
What is Living and rkad in Relativism? 179
Richard Rotty, ofcourse, would disagree. This disagreement is wonh
noting as exemplifying the h:tzard ofpostmodem philosophical anthropol-
ogy, He says:
Most peoplc:-cspecially people relatively untouched by the European Enhghten.
menl-simply do nol think oftMnudvu,firn I3ttdfortm4St, lIS 13 humon &ting. Im/tiJd t"?
1ft lilt ofthorud~ lIS bring °good serf ofhumon btint-son defined by ClCphot
~itiOn to a particularly bad sort. II 15 crucial for thclr sense ofwho they ~
thlt they ~ not an inftdel, not l queer, not a woman, not an untouchable. Just
IJSOfllas they are impoverished, lnd:ts their lives are perpetually at nsk. they have
htdc else: than pride in bc-ing whlt they :t~ not to sust:lin melr self-respect.57
T ills brief passage raises a whole variety of questions. First, what docs
it really mean to refer to people relatively 'untouched' by the Enlighten.
men! when almost everyone in the Third World has been deeply affected
by its'deep, dark. and violent side. whether through colonization, thc Cold
W:tr or contemponry economic globalization? Second, is it a fact that there
ex:is~ people actually and in re:tllife who vallie their ethical worth by .their
notions ofgood and bad and do not consider themselves as human bemgs?
Third, w hat about people who think :tnd act otherwise: for cJCImplc. those
women and those untouchables who resiSt caste :tnd patriarchy and in the
process still think ofthemselves as human beings? FoUM, do the im~­
enshed l:tel, ways ofsustaining sdf.respect in forms othcr th:tn by taking
'pride' in social identities shaped by violent social exrlusion? Fifth, how
does onc :tccount for change in beliefs :tnd practices of'most people' where
they either change their notions of what makes the gcKXf sort of humans
or alter their tolention of the bad ones? It is pointless to enlarge this
catalogue of questions. However, it needs saying at least that if suc.h
IIlterludes :tt philosophical anthropology are all we h:tve by way of ann-
found:ttionalism, the case for found:ttional theorizing sunds :tdequatcly
reinforced! An essay extolling sentiment, rather th:tn reason, or changes
III transfonn:ttion ofsensibility to make room for pragmatic solid:trity. fails
to persuade when it begins with such l:trgc·scale generalizations about the
non-European Other, in seeking to displace simil:tr generalizations ofme
normative ethical theory of hum:tn rights.
The 'Hiscories' of universality
It is at thisjullcturc that one may raise the iSSue of how onc may narrate
the histories of 'universality' of human rights. My distinction bctwttn
'modem' and 'contemporary' hum:tn rights paradigms suggt=sts the ways
S7 Rony (1993) 126 (3dded emphasiS In the first sentence).

102. 180 The Future of HUmOln Rights
III which the univerulity notions get constructed in radically d ~
So
. . h1ert:nt
ways. does the dlstlllctJon I draw between politics oland/<" I,"
I
. . Illan
ng Its, and the IIIteractlon between these two forms From this ..... s
. r_r PCC
tIVt'
whatcvt'r may havt' been the case with the UDHR, the argument COl
ing 'rtb.tivism' is curious III tenns of the actual history of mak.Jl~t:rn-r
" " I h go
contemporary IIIttrnauona ulllan rights standards and norms.
The histories ofclaims for univerulity ofhuman rights occur on r I •.1
b d'er . t' aku
ut IHerem regaster. I here tnee thesc along three remsters conflic,"
" fh "
g h " - ~
notions 0 uman n ts authorshIp, competing assertions of'Western' d
'''-' , did ' "
..-ulan an re ate cultural [fuths and values and the politics of and r
h "gi ~,
uma" nIts.
Q. Authorship
Wt:rt: ,,":e :,cre .to accept the view that 'contemporary' human righ~ au-
thorstup lies wlCh the communities ofstates, what we need is not so much
~ recourse to gn.nd theory, or to a gourmet diet ofa whole variety of po~t­
Isms or endologtt:sSS but a close study ofwhat mttrnatiollallawycrs nallle
as the sources of I.aw. I low univerulity of human rights IS constructed
through these so,urces is notJUSt a mater of identifying the principal ones
such as International custom and treaties but a question of IIlteractiotl
~twttn these and related sources. These latter arc not easy to exhausuvely
hst b~t Ulclud~ at leas~ the following. First, the adJudiC2tory pohcy and
practice ofthe IIl1ernational Court ofJusticc and ofregional courWlribu-
nals ofhuman nghts; second, the opinion ofpublicists or specialists; third.
the Iaw.-making practices embodied in the General Assembly and Secunry
CounCIl R~soluuons that initially produce 'sofi law'; fourth the impact of
the entcrpnse ofthe progressive codification ofinternational law under the
auspices of the International Law Commission; fifth, the normativity
crea~ed by the United Nations bodies concerned with human rights (in·
cludmg of course: the United Nations Human Rights Commission. the
~oml11ission~r for I-Illlllan Righ ts, the United Nations Treaty Bocilcs, the
SIXth Committee of the General Assembly); and sixth, human rights
norms and standards emanating from intergovernmental confercnc('~ and
the various United Nations summits. Thejuridical histories ofunIVersality
of human rights are thus constructed variously.
. I focused in the first edition ofthis work primarily in terms of hulllan
rlghts treaty law. Any international human rights lawyer worth her calling
knows the not ofreservations, understanding, declarations that parody the
SI Upcndn 1
m. (199620).
WIUI is Living ~nd Dead 111 Rc:btlVlsm? 181
~ of univerulistic dedarations.59 Thefi"~ pritll of reservations usually
cancels the {QpiltJ/Jom of umversality but not all the way as there are legal
tinnts w the sovereign power to derogate. Thus, no treaty may transgress
the non·negotiablc or peremptory norms of IIlternational human nghts
law such as, for example, the outlawry of slavery, apartheid. and colom-
zallon. Such norms calledjlls {~tU may have 111 the past few 111 number
but now they arc on a high growth curve as exemplified, for example, by
the: CEDAW obligations prohibiting gender discnnllnatlOIl and VIolation;
prohibition on torture, cruel, degrading, inhuman treatment or punish-
ment; slave·like conditions of child labour; and crtm~ agamst humanity
and war crimes as now refomlUlated in detail in the Statute of the Inter-
national Court ofJustice. What is universal about human rights is that
they signify an order of pre-commitmem concerning the non-violability
of certain types of human rights. Further, as concerns thc large corpus
of relatcd human rights enuciations, universality abides in the purported
logic ofaspiralioll, even when not always approaching thc reality ofanai/l-
JNmI. In ally event, it is unfortunate that the high discourse of relativism,
anti-foundationalism and po5unodernisllls, unformnatdy, has little or no
U5C for the details concerning the makingofinterllationally binding human
rights, or the juridical histones constmcting thcn universality.
Different histories of ulliversahty emerge if. one the: other hand, we
were to entertain a more radical viewofauthorslup ofhuman rights (which
llu.ve elaborated thus far) where peoples and commulllties are the primary
authors of human rights. In this view (as already noted in Chapter 2),
ttsistance to power 1125 a creationist role in the mak.Jng of'contemporary'
human rights, which then at a second-order level. art translated into
standards and norms by community of states. In the making of humm
rights. the local translates into global languages the reality of their aspira-
tion for a just world.
For example, the anti-colonial struggles furnish a vast laboratory of
cn:ation ofnew human rights scarcely imagined in the t8th/t9th century
CE which specialized in unabashedly relativistic practices; these claimed
individual and collective rights for some peoples and regimes and denied
th~ wholesale to others. These latter were denicd rights either because
they wcre not fully human or the task of making them fully human
reqUired denial of rights to them. In contrast, do not the anti-colonial
Stmggles deplete this full repository for practices of relativism?
llowcver, human rights univcrsalismSOrtlr//Ow begins to become prob-
~matic at the very time ofthe beginning ofthe end ofcolonialism and the
59 Upcndl'3 au. (1996c) 34-53; Ehubcth Ann Meyer (1996) 727-823.

103. 182 The Future of IllIman Rights
value of self determination proclaimed in the UDHR! True, the Oecla.
ration also occurs :lit the onset of the Cold War. True, it also embodie~
exception:lll regard for right to property (Article 17, 27(2). But It al-.o
contains vital social nghts (education, work, and health) that can, and have
bttn used, to impose an amy of reasonable restrictions on the rights to
property. The values repressed by the Empire, by the doctrines of the
White Man's burden, are no longer considered legitimate. ~re not the
anti-colonial struggles all about the realization ofthe right to ajust 'llner-
national and social order' respectful of dignity and human rights of all
pwple (Article 28)? Or, about rights to freedom ofopinion and expression
enshrined in Anicle 19? Or, about the right to peaceful assembly and
association (Anicle 20), and a right to democracy assured by Anicle 21?
Still. the dominant discourse wishes us to believe that the anticolonial
struggles relied upon, and wholly mimed, the typical human rights dis-
course ofthe 'West'. Even the girted Gayatri Spivak invokes the notion of
taratilftsis, signitying the lack or'adcquate historical referent' in the cl1lmre~
of the Other.60
The point, however, is that this Other :IIlso includes the
collective human rights self and tradition of the 'West' as welL
b. Relativity of J.illlifS
There is much debate concerning 'Western' and non-Western' values. As
already indicated in the preceding chapter, these traverse vast and varied
territories of thought ;md praxes, both of ~r and resistance. The
ancmpt to describe human rights values as 'Western' in origin leads. as so
far demonstrated, [Q m.:r.ssive distortions in both the history of human
rightS and social theory about human rights. No reading of the regional
human rightS instruments, sustains the mindless hypothesis ofthe mimesis
of the 'WeSt'. I ur~ the reader to focus closely on, for example, the
American Declaration ofthe Rights;md Duties ofMan (.:r.dapted at Bogota,
2 May 1948. followed by the Pact ofJan Jose-die American Convention
on Human Rights, 1969), the 1988 Protocol of San Salvador amplitying
the Convention, the Amerion Charter on Human RightS and Peoples'
Rights. 1981, and the Cairo Declaration ofl-luman Rights in Islam, 1990.
Undoubtedly, these: instnlmcnts constitute more than a variation on {he
UDI IRenunci:lltions. In fact and in many a mode, these construct a morc
encompassing the history of universality of human rights. To all this, we
may now add the astonishing auspices of the Third World leadership (in
the Sixties and Seventies) in crystallizing its distinctive conceptions of
60 Gayam Chamvorty Sprvak (1995) 155.
What IS LIving and Dead in RelatiVISm? 183
global justice .:r.nd human rights. Thus, a wholly new en ofhum.:r.n nghts
is born; norms :lind standards proliferate, extending to the collective nghts
of decolonized States :lind pwples. from the Oec:lanuon on Permanent
sovc:rclgJlty Over Natural Wealth and Resources (to take a long leap!) to
the declaration of the New International EconomiCorder and (he Rights
of States and ~ple's to Development. I suggest that the discourse on
'rclattvism' remains affiictcd by its very own (to borrow FrednckJamcson's
fecund notion61
) 'politiol unconscious'.
That poLitiol ullconscious, in relation to human rights discursivity,
assumes many forms ofhistoric, cultural, civiliZ.1tional and even epistemic
racial arrogance toward the Other of the Enlightenment, and even post-
Enlightenment, thought and politicalaction. That arrogance which regards
all hum;m rights imagination as the estate of the West, which others can
at best only mime, prevents recognition of authorship ofhuman rights by
sutes and peoples of the Third World. Must all that the latter history be
reduced to the thesis that 'universality' of hurnan rights is the pervasive
syndrome ofWestern hegemony? Does not. after all, this cultural or ethical
relativism ulk ostensibly directed to the recognition ofdiversity pcrfonn,
in reality, the labour ofreinstalling the Myth ofOrigins about human rights
III the West?
t. TIll' Pofitia oj a"d For, Hilma" Rights
What is of interest here is the fact that the practices of politics of human
rights converge, at times, here with those ofpoliticsJorhuman rightS.The
very regimes and cliques that deny freedom and dignity, and canons of
politio l accountability, denounce human rights 'universality' as a sinister
imperial conspiracy find suppon from intellectual.:r.nd social activists cri-
tiquing it in the same prose. Undoubtedly, the United States, and her
nonnative cohorts have conspicuously consumed human rights rhetoric,
most bruully in moves to make 'would safe for democracy' (read global
capital) during the Cold War and beyond. An expoSe of this horrible
practice ofpolitics oj hUlnal1 rights is continually necessary and desirable.
It is but natural that peoples and states that believe in 'manifest destiny'
to lead the world deploy all available normative resources, including the
languages of human rights, to pursue it. !-foYeVer, docs that necessarily
COnstitute the indictment of the very notion of universal human rigllts,
or the notion of universality of human rights? Should this ineluctable
Critique of politics of human rights becolTle also the 1I0nn of politicsJor
human rights?
61 Fredric Jameson, (1981).

104. 1B4 The Fulllre of Ilum:In Rights
Free floating historians of ide.s keep telling us that Asi.ll/Afrie.n or
other 'non-Western' t...ditions had no .n.logue to the expression 'human
rights.>62 But neither h.d the 'Western tndition' even the phr2Se 'rights'
till the 'mid-nineteenth century,6J And the invcntion ofthe phr.ase 'human
rights' is very recent II1decd. AJUrt from the socio-linguistic discovery of
novelty, nothing much follows! No doubt, words and phrases carry bur_
dens of histories. But histOries also g;ve rise to regimes of phrasn that
mould the future. Surely, the discourse on human stmggles and move_
ments that em~r human beings in time, place and circumstances to
resist oppression (whether in East 1imor or Myanmar) is also entitled to
the same order ofprivilege that historians ofideas or cultural anthropolo-
gist claim for themselves!
This work does not address the daunting tasks oftracing these scattered
hegemonies of 'relativists' desires, a task cmcial for a social theory of
human rights, However, as a prelimim.ry step towards it. I undertake a
critical overview ofthe agendum ofrelativism in relation to contemporary
human nghts discursive formation.
In doing so, I transgress simple logic. A logical W2y, exposing the fault
line ofrdatlvism, is to prestnt it as an axiom that maintains that there arc
no truths save the truth th:/ot all tnlths are relative! You may subs-tilutc for
'truth' in this axiom for 'values', 'human rights' or notionsofbcing human
(or whatever the context reqUIres.) It is well known by now dlat logically
such a position is simply mcoh(:rent,
If, on the other hand, ~ were to entertain a more radical view of
authorship of human rights (which I have elaborated thus far) where
peoples and communities are the primary aurhors of hum.n rights, the
history of universality of human rights emerges differently. The 'Univer-
sal' here 2fe practices of resistance w power, which playa creationist role
in the makingof'comemporary' human rights. The nonns and standards,
and even values, proclaimed by people in stmggle and communities of
resistance get promulgated then at a second-order level as standards and
norn1S eventually adopted by community of states. L
n the making of
human rights, the local translates its aspirations for a just world into the
reality ofglobal languages. However, the dominant discourse wishes us to
believe that the anti-colonial struggles relied upon, and wholly mimed, the
typical human fights discourse of the 'West',
Opposed to tilis mode ofthought is the notion that invokes the notion
of (of4(hr'tSis, signifying the lack of 'adequate historical referent' in the
62 Interested readers may PUI'llUC the citation to rc1cV;lIIt I,ter:lture in the masSIVe
footnote 3 III Stt'phen I~ Matb (1998) 459 at 460.
6J Alasd;&,r Macintyre (981) 69.
What IS living and Dead III Relativism? 185
cultures of the Other.64 The point, however, is that the Other here Itself
refers also to the formative human rights traditions and cultures of the
'West' as well!
VI I. Absolute versus Universal
Foremost among the many confusions and .anxieties that surround the
notion of universality of human rights is the confusion between the
UllIvmtlUry and absoillfenm ofrights. However, nothing about the logics of
Universality renden human rights absolute. for at le.ast two reasons. Fint,
and foremost among the many confusions and anxieties that surround the
notion, Hcrskovits has reminded us:
Ab,.,Jm6:are fixed, and as far as convemion i~ concerned, are not ..dmittcd to have
variation, to diffcr from culturc to culture, from epoch to epoch. U"illCJQb, on
the other hand, arc those Ic:ut common denominator.! to be extl'llcted from the
ranb~ of phenomena of the nalUral or cultural world mamfest.65
Second, it is clear that my right to do or have or be x (or be immune
fromJ) is limited by your similar right to x (and immunity from y) .as
well. If human rights release individual energies, talents, and endow-
ments to pursue individual or COlleCtive hfe projects, they .also set bounds
to tlus valtant enterpnse. Human fights thus make sense only within the
texture of human responsibtlltles. The logtcs ofuniversality entail j/Ilmlt-
ptlldtllu of human rights: every human person or bemg is entitled to an
order of rights because every other person or being is so entitled to it. If
tins were not so, human rights l.anguagc will CC2SC to posses any ethical
Justification whatsoeVer.
It IStme that this was not.always tile case. 'Modern' hum.an rights logics
wcre obsolutist, not unjun'SQi. 'Contemporary' human rights .are, in contrast,
univmai precisely because they deny the absoluteness of ony positing of
rights, although some hum.an rights are said to be ntarobsoi'dt as is the case
with a handful of, and often contested, jus (Oft/IS. Further, the logic of
universality is constantly bedevilled by 'utilitarianism ofrights', that is, by
arguments from consequences, Univenality of human rights symbolizes
IwivtfsaUty cif(olltttive humall ospiration /0 Itwkt' POl4'ff mort' Q{(Ollll/oblt, govu-
IWtllt progrwivtlyjust Oil/I s/atl! ill(rtlfltIIltllly mort' tll/iro/, I know of no 'rel.a-
tlVi!.t' strand of thought that contests this desideratum.
: iliyaO'i Chaknvorty Sp'v~k (1995) at 155.
HerskovlIs (1955) at 74.
66 Albn Gcwinh (1996) 47-8,
,

105. 186 The Future or Human Rights
VIII. Multiculturalism
Multiculturalism 2S this re1.:&tes to the discourse on the future ofhurn21l
right:; and needs grasping in at least three distinct ways. First, we need to
ask.: are expressions of coutemporary hum2n rights st2nwrds and norms
merely v2nations on the Euro-American themes 2nd traditions? Second.
given the processes of globalization, as well as the earlier histories of tht"
formatlon of'minontles', what conceptu21resources exist to nuke human
rights st2ndards and nonus relevant to sitwtions ofvoluntary and imposed
migration ofhum2n beings across national frontiers? Third, we need to
ask, more profoundly with Zizek, whedler 'multiculturalism' is, after all.
a species of poslrnooem racialism.
1. FomlS ofMII/rim/wralisms
'Multiculturalism' is a new word but nestles many old, even ancient.
histories ofviolent socialexclusion. In particular, conservative or co~ratc
multiculturalism has a distinctively colonial 2nd racist genealogy.6 In Its
postcolonial and now globalizing fonn, it remains irredeemably 'Whitc'
both by refusing to 'treat whiteness as a form of ethnicity' and positing
'whiteness as an invisible noml by which other ethnicities are judged'.611
Its conceptions of diversity remain assimilative; it fails to 'interrogate
dominant regimes of discourse 2nd social and cuhur:ll practices that are
implicated in global dominance and are inscribed in r:lcist, c1assist, seXlSl,
and homophobic assumptions,.69 The discourse ofliberal multiculturalism
stressing equality and human sameness among and across ethnicities t2kes
myriad forms, aspects of which we notice bricfly, in what follows. In
contrast, the critical or 'polycentric' foml 'sees all cuhural history in
relalion to social power', where 'minoritarian communities' emerge not
as 'interest groups' to be added onto a pre-existing nucleus but rather as
active, generative participants at the core ofa shared, conllicUial history'.
Only 'reciprocal and diaiogic21' modes remain capable to 'recognize the
existential realities of pain, anger, and resentment' of the violated, ex-
cluded, and the rightlcss pcoples.70
The question then is not 'merely a
queslion of communicating across borders but of discerning the forces
which generate borders in the first place'?1
67 Sec. e5pCClally. Ihc an~Iy!ls or 'while le1T01" III Ptlcr McLaren (1994). Cednc
Robinson (1994). and llie tllSlgblrul work or Aclllile Mbembc (2001b).
" Mc13ren (1994) al 49.
~ Ihld.
711 Roben Su.m and Ella Shottal (1994) 296 at 300-1, 320.
71 Ibid., at 320.
What IS Livmg and Dud in Relativism? 187
III complete disregard of the facl that contemporary human rights
norms and st2nwrds are not monologically, but dialogically, produced and
enacted (and stand brokered and mediated by g10~1 diplomacy, mcluding
that ofthe NGOs) some critics ofcontemporary human nghts still maln-
taJll that these ignore cultural and clvilu:ational diversity. This is bad,
mdeed even wicked, sociology. T he pro-chOice women's groups at the
UnilCd Nations Ikijing Conference, for example, confronted by His
Holiness the Pope's Opcn Lener to the Conference, or the participants at
the Cairo United Nations summit on population planning know thiswelJ.
The enacunent ofhuman rights into natiOll21 social policies stands even
more heavily mediated by the multiplicity ofcultural, religious, and even
civilizational traditions. The American fcminists on every anniversary of
ROt: v. I%dt know this. So docs the African sisterhood modulating public
policy on female genital cutting. So does the Indian sisterhood in its moves
to effectively outlaw dowry murders. No engaged human rights theory or
pr:lctice, to the best of my knowledge, enact, in real life, pursuitofuniversal
human rights without any regard for cul[ural or religious tnditions. Nor
do Ihese completely succumb to the virtues and values of 'theoretical'
ethical relativism.
In ways Ihat the arguments from relatiVism do not, Ihe logic of the
universality ofrights opens up for Interrogation settled habits, even habitus
(111 the connicted sense that Pierre Bourdieu endows tins notion with), of
repr~nt2tion of 'culture' and 'civilization'. It makes problematic that
which ~ earlier regarded as self~dent. natural and true and m2kes it
possible to practice a human rights-friendly reading of the tr:ldition or
scripturen and even to claim that some COlltemporary human rights stood
anticipated by these.
OfCOUT'SC, as is well known, connicts over interpret2uon of tradition
are conflicts nmjust over values but also about power. In tum, both the
'fundamentalists' and human rights evangelists become prisoners ofa new
demonology. Both tend to be portrayed. in the not always rhetorical
warfarc73
that follows, asfit,lds, not fully human and, therefore, unworthy
n Re:~dlOgs or scriplUral !~Iuons Y
Ield repreSSIVe: as well as Clll11lClP<ltlVC conse-
quence:s & is wcll known-or ought 10 bc:-Iong berore rCtnnltSm h~ppened, the
Koranic vcrse 011 polygamy gcncr.1led a twO-<e!1tury old deb.ue, berorc the doors of
l/j(/tQJwc:rededarcd 10 bedoscd til Ihc tl:mh ccnIIH) eOIKcmlngthc ve:rseon polygalllY
which Wl5 COnStrued toprohibit the prnti~ orpolygaJlIy whIch It,oncsubltshcd re~tIIg,
pctnuned. Slmlbrly. right 10 ~xu d <>ricnutlon-rncndly re~inss havc been discovered
III n.;jJOf rehglOus texts of'lhe: world by thc herme:ncuue laboursorhuman rights pruis.
Those who prosdym:c: ·r.Wlal' readttlg:! or Ihe Knptural traditions. though no
longer burnt at 5ukc:, are rekmlcssly subJccted to lemtotial, and cYnI extr.t.tcmtorial.
I''PI''SSlOn and punishmem.

106. 188 The: Future of Iluman Right.~
ofdignity ofdiscourse. Practices of politics of intolerance begin to dmve
all round. Practices of solidarity among human rights activists-national
and transnational-bcgin to be matched by powerful netwOrks of power
and influence at home and abroad. The politics of the universality of
human rights becomes increasingly belligerent. In the event, the martyr~
dom count ofhuman rights activists registers an unconscionable increase.
At this level, universality of human rights ceases to be an obs/ratl Id!;:a
with its history of doctrin.al disputations and becomes a living practice, a
form of struggle, a practice ofconflicted transfomlativc vision. Its truths
of resistance, in constant collision with the truths of power, seek to uni-
versalize themselves. Cruelly, its truths stand fomled not in the comfort
ofcontemplative life but in and through the gulags. In this sense, the claim
to universality of human rights signifies an aspiration, and a movement.,
to bring new civility to power in the society of states and in human
societies. That civility consists in making power incre:;r.singly accountable.
Does the dialogue over the rcl:uivity ofvalues matter much whttl so //lUll!
is al stokt'?
2, HllmlJlI Rights lJlld tile Clurllellgt of'MultiCIIlwralism'
Most societies are multicultural and most states arc multinational. Th:n,
at any rate, is one truth that requires, at the d ose of the second, and at the
onset of third, C hristian millennium, no labour of demonstration. The
recognition of diversity, and respect for it, is aptly writ large in contem-
porary human rights enunciations and movements, However, deference
to diversity remains a complex and contradictory affair. Put another way,
the conc~ "NillffSOliry ofrecognition of, and rcspect for, diversity is culture
and history bound. And that cuhure and history entails not just feats of
high social theory but also forms of both human rights generative,14 and
human rights destructive, practices ofthe power ofthe state and insurrec-
tionary forms of violence.75
Despite the history ofthe radical logic ofthe right to sdf-determination,
it is d ear that both the extant international legal regime and the regime
ofmultinational states do nOt recognize the human rights of'nationahties'
to secede from the existingnation-state frameworks and frontiers.76
In this
zodiac, any practice of the 'right' to secession involvc:s forms ofboth state
and insurgent 'terrorism', a site where human rights havc no present,
7. Sec Robe" Cover (19HJ), ...
75 Sec E. Y..Jle:nune: Damel (1997).
76 Set- the intc~sulIg analysis by Alle-n Buchanan (1991).
Wh.:r.t IS Living and De.:r.d in RdativlSm? 189
whatever may be said about their future. U ndersundably, then, contem-
porary human rights discourse focuses on the rights ofmmoritles, indig-
enouS peoples, migrant wornrs, and rcfUb'«S and displaced peoples 111
terms and vocabulanes of the stability, more or less of a global order mat
valorizes the actually existing imagined communities (I use this phrase
with apologies to Benedict Anderson) ofthe deeply oxymoronlCnotion of
natlon-scnes.
What, then, we arc left with (and this is impomnt) is the problematic
of minority rights. The problematic is acute everywhere but I take, for
tbe present purposes, the theoretic feat offered by Will Kymlicka. He.
nghtly, insists that 'an adequate theory of rights must.,. be compatible
with t~just demands ofdisadvantaged social groups'.n It must recognize
three broad foons of 'group-difTerentiated' rights of the minorities: self-
government rights, polyethnic rights, and special representation rights.78
While the first and third forms of rights are imegral to international law
of human rights, the second form is of interest to us here in terms of
liberal-tradition-spccific relativism.
'Polyethnic rights' are 'intended to help t thmc groups and religious
minorities express their cultural particularity and pride without it hamper-
ing their success in the economic and politiC21I institutions oftht dominant
society',79 These rights are justified because the 'dominant society' may
not ~upport these 'adequately suppon through market',110 or lIlay be dis-
advanuged '(often unintentionally) by existing legislation,.81 These rights
typically accrue:: to IIllmigrams and refugtts.82
The recognition of polycthnic rights is, of course, instrumentalist; it
enables both the dominant society and servient cultures to coexist in a
functional mode::. The preservation ofsome cultural identity is important
for tht immigrant and refugee groups; and the dominant society benefits,
in the long run, from the protection of'narcissism ofminor diffcrenccs,.83
More tmpoml1tly, on this perspective, we need to carefully attend always
to ensure that such recognition does not hamper 'their success in the
TI Kymhcb (1995) 19.
'8 Kymhcb (1995) 10-34.
"Kymlick.1 (1995) 31.
~
Kymhcb (1995) 38. The: e:x..mples ht'r~' are:; 'fundmg llmllgr~nt bnguage:
pr(yalUs or am group'il'.
l Kymlicb ( 1995). The ou.mplc:s he:re a/"(': '¢Klllpuons from Surl<by dosmg
kgul,liUOIl or dress rodc:s that conflict WIth ~hg:tOus beliefs'.
It2 Kymhcb (1995) at 98-9.
IIJ ThlS phra~come:5 from Mrchxllgrmkff(I9'J3) 21, quoted by Kymheb (1995)
at fill.

107. 190 The: Futurc: of Human Rlgtus
econOlnlc and political institutions of thc dominant socicty'. In othcr
words, subaltern cultures must always be subject to connicted forms both
ofdisciplinary and sovereign power through strat~gies ofpolyethnic rights,
the justifiC2tion of the conferral ofwhich is they internalize the valllc~ of
the economic and political institutions of thc dominant society.SoI
'MlIlticlllruralism' conceived through thc prism ofpolyethnic rights is.
at the end of the day, an adaptation by liberal cultural traditions of the
universal human rights and standards. Such adaptations nourish outside
Eure-American cultures as well. [n each the abstract universality and
abstract particularity ofhuman rights remain in tension with the concrete
universality. Insistence on the universal human rights culture makes prob-
lematic the project ofconcre~ universality; national definitions ofminor-
ity rights become contested fields from the standpomt of the abstract
universal and the absu.ct particular.
J. Milltiwlwralism as Postmo<lfnl Ra(ism
Slavoj Zluk has recendy commented 011 the obvious contemporary 'para-
dox of colonintion, in which thert' are only colonies, no colonizing
countries-the colonlzmg power is no longer the nuion-statc but the
global company itself'.The Ideology ofcontemporary capitahsm generates
vaneties of ':lutocolonintion'; 'multiculturalism' poses the of new colo-
nialism:
... the reialiollship between tndiuOflallrllpc:rial colonization and global capllaiisl
sclf-colonization is e:ucdy the ume as the rdalionship betwecn Westen! cultural
imperialism lnd Illuiricultur.dism-Jusl :is global Clpiulism involves the paradox
1M I know WI filS 15 not what Kymhcb means and tnn I do considenble vtOknce
to hIS finely nllllK"'W reworkmg of the 'hbenl' tradition. Yet some such rc::idmg will
be plausible &om the StandpolIIl of a bcnclkury of nuny a polycthmc nght. And
readers a~ supposed 10 agree "mh Kymhcb Wt the 'only long.lenn solution 15 to
remedy the unjust Intemattonll distribution of roources' (Kymhcb (1995) al (9). a
problem that cxisong reworking or 'hbcnl' rrx htions sca.rcdy ponder.
InclCiellully. an Immen'ICly useful account ofhow, outsIde the Iog1c of polyelhnic
rights, 5Intcgic Idenuty fOTlI1:1uon orren moments of TeSlsunce (ull the unjust
d'$trlbutlon of world resource~ i! remedied) IS provided by Anna MUle Slllith (1994)
171. ~hllltary ;as well as enforced movclllents of indIviduals and peoples further
oomphotc any consider-mOll of the quesuon of redrC'»<lI of unJuSI d,smbunon t)f
world resourees. The monl and legal TIghts ofcmlgrauon and Immlgnuoll. 111 sum
the freedom of ~nlem a(T'I;m IUUOTill borocr. remam d«ply problenuuc 111 the
hbenl tradiDOll. S« F1uhp Cole (2000) for l nchly pmvocatl'~ analYSIS of the
'phllosophlCS of aeluslon'.
What is Living lnd Dead in RdniVlsm? 191
(Ifcolomution without the colonlz-mg nation-state metropohs, rllulucuhuralism
InvolVC"S l palrCHIIZmg Eumeemric dIstance and/or T
espec! (or lonl cultures Wlth-
Oul roots in one's own eulrurr.1I5
As concerns humal1 right.~, multiculturalism concedes both 'too much and
not ttlOugh'. It tolerates the Other, not as a real Other 'but the ascetic
Other.. ,.' This much isclear from the notion ofpolyethmc rights ofSouth
imnllgnnts to North. But Ziiek's point cuts deeper. The muluculturalists
adVomCt and applaud the progressive abolition ofcapital punishment as a
kind of (Parsonian) evolutionuy universal o( human rights; on the other
lund, they remain 'tolerant ofthe most brutal violations ofhuman rights',
lest they run the indictlnent ofpreferred value (White) imposition.86
The
Other needs fuller recognition: on the one hand, in terms of 'cllirnral
jouissnlllt that even a "victim~ can find in a practice ofanother culrnre that
appears cruellnd barbaric to us' (here, of course, T:llal Asad, to whom I
refer later, is a more insightful guide than Ziiek) and, on the other hand,
in terms of the split in the Other (:I point I have been making under
different phrase-regime so far). In the laner situltion, re(erence to human
rightS (presumably defined by thc West and, on this point, Ziiek is still
Eurocentric on dle lolle of origins of human rights!) as :I 'catalyst whicll
sct$ in Illation an authentic protest agolinst the constraints of one's own
culture.87
Ziiek brings valuable eorrcctives to the current conceptions of
multiculturalism, generally, and their implications on hmmn rights, in
particular. Neither takes new modes of social reproduction of globalized
coloniality; nor does it alert us so fully to the cmpty potential of
multiculturalism as a culture of no cultures. A remindcr of cpistemic
racism always renders great service 10 the futures ofhuman rights. Yet the
examples that guide Ziiek remain problem:ltic, whether progressive abo-
lition ofcapital punishment as merely constitutinga 'Western' evolutionary
IIldicator (ar iftt~ditions such as Hinduism, Buddhism, Confucianism, or
mdigenous religions had no space in the denial of rt'tribution of this
m:lgnitude) or clitOridectomY:ls a pathway to 'feminine dignity', even as
a (onn of 'victim' cultural jOllWallU. Traditions, as well as critiques, of
multicultural theory and practice that so justify these pl':lctices will C:luse
anxiety across the North-South diVide on universality of human rights.
At the cnd ofthe day, 2.iZek docs not take quite seriously his own notion
of the Other as split in itsclfl
IS Sbvt:!l .tlkk (1999) 215-16.
.. tlick (1999) 219.
17 tIZd:. (1999) 220.

108. 192 The Future of Ilumm Rights
The point, from a human rights perspective, is simply that the extremes
of100 mllth and ,,0/ (flOlIgll stand constructed, in the fi nal analysis. front the
standpoint of progressive Euro-<entnsm and its contradictions. Were the
subaltern to speak. its Other Will be the split Euro-American postlnooem
'a~nt' subJcct!
lX Wes[oxificarion
I may not be pursuing here the complex historical itineraries ofthe notion
ofWt.sloxijitalioP
I,88 but its interlinked, episremological. and political dnnen_
sions as concern the future of human rights warrant some attention. The
project of Isl:l.mic revival contests the notion that it is 'ollly Western civi_
Iilation which is universal' making the discourse of modernity (and
postmodernity) a 'discourse, the center ofwhich is occupied by a particular
ide-ntity,.8?On this view, 'Muslims who usc Islamic metaphors' interrob'3tc
the 'dominant language games ofthe last twO hundred years,90
contribut-
ing, in ways very different from the posunodem, the 'de-celltering of the
West,.9' The distinction between that which stands glooolized and lim
which one may describe as universal comes alive in the distinction between
the '''politics ofdifference~ at the center and a ·politia; ofauthentic,ty ~ at
the periphery'...92 In SUIll , there are dIfferent ways ofkPloll,jflg and bril~ that
Islal11itauon, takcn seriously, bnngs to the world oftheory and praxis that
rcpreSt'nt 'a tOlflifwm;oPl and radicalization ofI/I~ procw ofd«oIoPlizalio,,'.'1.1
Wcstoxifiation critique inSISts that human rights enunciations and
cuhures represent secular versions of the Divine- Right to rule the 'Un-
enlightened'. It demonstrates that the ~st seeks [Q impose standards of
right and justice, which It has all along violated In its conduct towards
Islamic societies and states.~ It rejects the norion that the outpourings and
acrions of the US Statc Departmem, and their nonnative cohortS, arc
exhaustive oftil(: totality ofcontemporary human rights discourse. It seeks
to locate the politics ofhuman rights within the tradition of the s/lari'a.'IS
As Shaykh Muhammad Hussein Fadlallah eloquently stated:
l1li See, for a ri,h account of the hiStOry of origins. John L Espo)1I0 (1995) 188-
253; sec also, the provocallve analYSIS by Dobby Sayyid (1994).
II!l SafYId (1994) III T77.
10 SaY}'ld (1994).
'I Sa)'yld (1994) at T76.
'1.Z Sayyld (1994) at 279.
" Sayyld (1994) al 281.
'H See Chandra MuufTar (1993).
9S See the recent QIIID DrrJamlion 011 Human RigblJ in Ishlm ( 1997).
Wh:u IS Living and Dead in RelatiVism? 193
/<.$ Moslems, we. consider politics to ~ p.1rt ofour whole life, beauS(' the Koran
emph;tSizes the csubhshmclll ofJusucc u a dlvme mIS§lon.. • In /hIS smst. ~ poiltia
11/lilt}:Ilthfol is 1/ hnd 11/praytr,%
At the heart of the critique lies the epochal politics of difference which,
of course, does not regard Islam in the Imaw, of 'the recurrent Western
myth' ofa 'monolithiC
', unchang1ng. tradition. Hesponslble Westoxification
notions seek to bring an dement ofpiety within the logiCS and paralogics
ofconstruction ofthe human rights. If politia;for human rights is a kind
of 'prayer of the faithful for pious Muslims', so it also remains for the
secular congregation of a civic religion named human rights.
The contribution that this kind ofunderstanding brings for the future
of numan rights (of a very different order than thOit provided by
postmodemisms or recrudescent forms of relativism) calls for inter-faith
dialogue, germinally urged by somewhat incommensurate orders of
discursivity: from Mohandas Gandhi to Emmanuel Lcvinas. A dialogue
that will yield a sense ofjustice to the worlds ofpower provides invaluable
resource for the universalization of human rights.
X Types of Relativism
Relativism, a coat of many colours,'18 md,ctS the logiC of universality of
human rights (as noted) on the ground that different cultural and
civilitational traditions have diverse notions ofwhat It means to be human
and for humans to have rights. Were we to follow dOllunam discourses,
we see that at le:&st three types of relativism remam pertinent to any
diSCOUrse concerning the future of human rights. First, (oglli'i~ ,nati"ism
userts that all truths are relative, and remain unhinged from any belief in
'univeruI' imperative standards that render one set ofmoraVethic:.a1 beliefs
superior to others. Second, ~Ihi{al rtlalivism adopts a frankly social
COnstructivist approacn situating the truth ofbe1iefs within our preferred
ways of privileging moral communities. Third, and related but distinct,
remain forms ofsituational ,nativism that urge us to believe that our moral
beliefs, far from being grounded in acts of transcendental reason, remain
dependant on our situations or, rather, situatedness.99
In what follows, I
96 QUOted 11 EsPOSito (1995) 02 at 149 (emphasiS added).
'11 Esposito (1995) at 201.
911 Sec ChrIStopher Norns (1996), Johl1 Ladd (cd.) (1973),
Ofcourse, 'relanvlSln' IS a vacuous word. We nced to dIstingUish between sevenl
~ofrdatlVlsm . Sec Ihe useful dfo" by Femalldo R. 1bon (1985) 869: Adamanria
Pollis (1996) 316.
99 A1l1m Badiou (2001) remalllS compelhng on thiS score.

109. 194 The Future of Human Rights
deploy the categories painstakinglydevdopro by RG. PefTer
loo that enable
an appreciation of the distinction between what is obviously true but, at
the same lime, trivial,l°l about relativism that simply docs not make
impossible cross-. or Intef-. or trans-c",hural understandings.
C learly, if relativism claims that 'what people believe to be right or
wrong detemuues what is wrong or right for mem',I02 then universal
sundards of human rights (such as the prohibition of genocide, tOrture,
racial discrimination, and violence against women, women's rights a~
human rights) remain universal only fOf the groups ofpeople who believe
them to be so. The insistence on universality is also mistaken when it erects
the notion that moral judgements apply notjust to 'a particular action but
to a class of actions'; that these judgements apply to everybody' and that
'others besides the speakers are assumed to share' these.
loo
Unfortunately, the good news that docs not travel fast consists in the fact
that this form of relativism turns out logically or analytically flawed! The
fatal flaw lies in the fact that even when those who believe it to be 'good'
or 'moral' to kill, torture and rape, may nOt a claim a duty on the part of
others (who believe otherwise) not to interfere with their practices of
'vinue' (as seen, I must add, by them!)I04The bad news is thatevcn a gifted
philosopher hke Richard Rorty could base his entire meditation onlllllnan
rights at the Oxford-Amnesty Lectures with the following initial sutement:
... Serbi.all murderers .and rapists do not thlllk of themselves ;l$ viol.1ting hunun
rights. For they are nm domg these things [0 fdlow human beings bUI to Mus/loo.
They .are not being inhum.an, but rather .are discrimin.ating between the tole
hum.ans and pseud()o-bulll.ans. They are making the SlIme soru uf distinction as
100 Peffer (1990) 268-316 offers a more sustained analysts ofrel.auVlsm. lie dlSlUl-
gl.ushes between four types of rebtlVlsm:
{djafriphfllt tfhkll/ldlllJllism ...the doctrine th.at what people behC'Vl: to be nght or
wrong differs from mdlVldu.a1 to indiVIdual. society to society. Of culture to culture:
(fI}omrIIltnlf! tthiatl rtIIltivisrn •.. thedoctrine th.at wh.at is rightor wrong differs from
1IldivtdUlIIo mdlVldUlI. SOCIety to society. culture 1
0 culture (M-.lIm people beheve
thlllS' to be ngbt or wrong detennines ....1131 is right or ....TOng for them);
(rn)ftll~hitlll rt/alivisrn . .the docmne that thcre IS no sure way to pro...c (to
~ryone'$ sallsfxuon) wh.:n is ",omlly righl or WTong... ;
(m)tfll-tIAII/llllli'/f' Trialimm ..• the doctnne th11. lhere is no sure way 10 prove (to
~'veryol1e's sau,fxtion) what IS right or wrong. ...
101 Bec.al1sc what people may believe is an important socl.al datum. 110tll1118 fuIlO-"
from tlus on the Issue of what they ol/ghl to believe. q. Peffer (1990) at 272-3_
102 For the cbborallon of the notlOn of 'normauve ethICal rebllVlIm' .as enutilllil
rwo distinCt ~Uons, see, Peffer (1990) at 273-4 and the Illerature there ciled DueS
nonnal.lvc ethu:,,1 rdal.lVlstic po51t101l f(':fer to an indIVidual', Crlten.a ofmoral nghtTIes.'
or does 11 refer to C1'lletl.a xcept«i by a society or culture as a whole?
101 8cnurd It. Mayo (1958) 91-2, quoted III PtITC'r (1990) 31 276.
I~ See the lopaol demonStnt)()!1 of this III PtffC'r (1990) at 275.
What IS LlVmg and Dew in Relat;vlSm? 195
die CnJS;)dcrs made between humans and mfidel dOSS, and Black MuslllRS make
b(tWfi:11 humans and blue-eyed devils. The founder of my u1Uverslly was abk
both to own slaves and [0 dlink Itsdf-ttldel1t th~t .all men YlCre CI'C.ated eqwl.
Like the Serbs. Mr.Jefferson did not dunk ofhmuc:lf;lS 'K)laong hlll,lIm nghtJ.105
What follows, with full alloW:lI1ce given to Roruan pracuc~ of irony?
Does it follow that the 'murderers and rapists' are Justified? From the
relativist position so far canvassed, they could so maintain. But Rorty
suggests that the way out of all this lies in 'making our own culture-the
human rights culnlre-more self-conscious and powerful', nO[ in 'demon-
strating its superiority to other cultures by an appeal to something
transcultural,.IOtt By 'our culture' or 'the culture of human rights', Rorty
means primarily the United SUtes culture (and, more broadly, the Euro-
Atlantic culture.) The Other has to be educated in human rights scnsibility;
the acknowledgement aboutJefTerson, and the Crusaders, suggests heavily
that there has been a progress in moral sentiments in the United States (and
all;ed Northern cultures), which has yet to reach the benighted Serbs.
107
Probably, what Rorty exemplifies is not so much a variety ofnormative
ethical relativism buteitheror even both 'meta-ethical' and 'meu-cvul:nive',
fonns ofrelativism. Probably, there are no 'sure' or 'objective' ways to prove
to everyone's satisfaction that something is morally right or wrong or just
that something is right or wrong. Howevcr, who is that 'everyone'? This
is apP;lrently a vexed question for ethical thronstslO8
and may well remain
so for the better pan ofthe next millennium. However, both these forms
ofrelativism rely on, or at any rate invoke, the possibility of'intr:.lsubjective
consensus' on, at least, the prima Jad~ validity of certain moral norms.
Neither prevents us from claiming that 'a certain moral principle (for
eX2mple, 'slaughtering ofdefencdess infants is prima.Jack WfOng,).I09
lfso,
human rights constitute at least the burden ofethical justification on those
who engage in practices of 'pscudospeciation' or indulge in catastrophic
practices of the politics of cruelty.
lOS Richard Rorty (1993) III at 112.
106 Rorty (1993) 117.
107 It is remarbble th1t Rorty colb.J!$C$ the 'pre-modem' (Crusxles). the 'modem'
(coloT1i3Vimperial) 3nd the 'contcmporary' (human nghl!! era) IIlto one rn3ster narra-
tlvel On the paradigm contrast offered In tlus work. Jefferson was consistent With the
logics and paralog1C5 of11lodern human nghts practices ofexcluSIOII. Rorty's Serbs are,
however, located in a world which imJtllltJ h/llllllll ri,(hu, mcludll1g. perhaps, the basle
hum.an nght against (to invoke Ene Enckson's ternl ag;:nn) 'pcsudospecl.al1On'. See .al.so.
Th Weiming (1996).
lOB See, Willl.am K.. Fr.mkena (1963); Kurt 831C'r (1965) and the discussion III Peffer
(I ~ at 281-5, 305-B.
1 A:iTC'r (1990) at 273.

110. 196 The Future ofl luman Rights
And, if serious·mmded rel:ltivism suggestS that construction of such
OPlIl$ probiWdi is itselfacomplex monl affiir and, accordingly, requires great
iQ" in thc cnunciauon ofhuman rights norms and standards, tillS lllC'ssa~
is of cOluidcnblc Importance for those who would steer the future of
human rights. Anyone fanuhar wuh the Asian, Ara.b, Nrlcan, and ~tm
American charters and conventions on human rights (and the spawmng
NGO re·articulation of the UDIIR on its golden jubilee) surely kno'M
that human rights enunciations are marked by such man! agollizlIlg,
though 1I0t alw;l.YS in languages that comfort moral philosophers. Argu.
ments from relativism that remain willfully ignorant or dismissive of the
histories ofconstruction ofthe 'universality' ofhuman rights are altogether
unhelpful. From the perspectives of sociology of knowledge, they may
even appear to some as CXl!rcises in unconscious realpolitik, which It is the
task of 'contemporary' human rights to render problematic.
Xl. Universality and the Voices of Suffering
No discussion on universality may remaill complete without a careful
understanding of how human rights theory and practice may mystify
human/social suffering and t:VCn aggravate It. This work i!> focused through·
Out on the ways ofaniculation ofthi!> complex and ever--changrng relation-
ship.We have noted, repeatedly, how the histories ofullivcrs.alityof'modcm'
human rights contributed to enornlOUS human/social suffering dUring
long periods of colonization and imperi:r.lism and also nised concerns
regarding the production ofrightlessness and hum.an exclusion tlut even
contemporary human rights languagts and logic harbour. We now pose the
question: how may we understand and nuke legible: the scripts ofsuffering
in the discourses concerning universalism/relativism of contemporary
human rights?
What is, perhaps, helpful in relativism discourse in relation to contell~
porary human rights movement is the notion tiut human suffering is not
wholly legible outside cultural scripts. Since suffering. whether defined as
individual pain or as social suffering is egre:gious, different religions and
cultural traditions enact divergent hierarchies of 'justification' of experi·
ence and imposition ofsuffering, providing at times and denying at others,
I:mglagc to pain and suffering.
The universality of human rights, it has been arb'l.lcd recently by Talal
Asad, extrav:l>galllly forfeits cultural understanding of social ~t1fferingl o
and alienates IHnnan rights discourse from the lived experience ofcultur·
ally/civilizationally constituted humanness. Asad highlights the fact that
the Western colonial discourses 011 suffering valorized '(p)ain endured in
110 Tabl AsxI (1997) at 285.
Wlllt is Living and Dead in Relativism? 197
the movement of becoming ~fully human... ..was seen as necessary be·
cause social or moral reasons Justified why it must be suffered,.111 He
shows the ways by which the very idea ofcruelty and degradation becomes
and remams 'unstable, mamly because the aspirations and practices to
whICh it IS attOiched arc themselves contradictory, ambiguous, or clung.
ing,.112 This instability, he argues, is scarcely remedied by either the
'attempt by the Euro-Americans to Impose their standards by force on
others or the willing invocation ofthese standards by the weau:r peoples
in the Third World'.113 He alerts us to the fact t1ut 'cmelty can be expe·
rienccd and addressed ;rr waY$ OIlier IIIQII violalioll ofright.r-for example, as
a failure of specific virtues or as an expression of particular vices'.II.(
This is a re:sponsible practice of cultural relativism, indeed, because
while maintaining scepticism concerning the 'universalistic discourses'
around the United Nations Convention Against Torture, Crud or De·
grading Treatment and Punishment, it does not contest its ethical foull-
dations. Rather, it shows us how ethnographies of cruelty may assist
progressive promotion and protection ofhuman rights there enshrined, in
ways that respect discursive traditions other th:l>11 those of human rights.
Similarly, ethnographyofsufft!ring summons us to focus on the difficult
relationship between violence and rigiltS. The protection and promotion
of rights has always entailed regrmcs of practices ofjfmijw or legitimate
violence, although rights-talk habituates us to the Idea that Violence is the
very antithesis of rights. Moreover, human rights discursiVity rardy con-
cedes that violence ofthe oppressed can often be rights-generative. It can
also be horrendously destructive.
This destruction poses the problem of relationship bctwttn pain ;md
suffering and languages of communicative action. Vttna Das (following
the rather incommensurable discursivityofElaine Scarry as well as Ludwig
Wittgt:nstcin) names some forms ofsuffering as simply ·unnamable'. The
aftermath, however, and from the standpoint of those violated, remains
both describable and nameable. Das names the constitutive aftcrnlath of
the horror of the partttion of India inscribed on the bodics ofwomen, as
leading to the birth of citizen-monsters: 'if men emerged from colonial
subjugation as autonomous citizt!lls ofan independent nation, they cl11ergc:d
simultaneollsly as monsters'. IIS The so-called post-conflict situations else-
Where also remain marked by citizen-monster dialectic.
11 Ibtd.• 3t 295.
112 Ib1d., at 304.
IU IbId.
114 Ibtd. (c-mphasiJ added).
lIS kcna Ihs (1m) 139. Sec also Sanky Cavell (1997) at 93.

111. 198 The Future of I-Iuman RightS
Responsible relativism mvites us to consider wlut Walter Benpllun
n:l.Illed as thejolmdaliolUlI violf"{f oftl'f /awl16 almost always entailed, one
may add, in historic practices of human right to sclf·dttcrmination and,
now, acts ofglobalization. The challenge that this genre ofwriting, which
exposes wrltmg as violence, poses for human rights logics and paralogicl>
is simply enormous and directs attention [Q the central fact that human
rights languages lie at the surface oflived, and embodied, human anguish,
and suffering and fully questions auspices of production of suffering
(whether as state-imposed and 'prople'fcivil society' inflicted, globally
provided, or even sclf-choscn and imposed suffering).
The practices of protection and promotion of universal human rights
entail construction of moral or ethical hierarchies of suffering.lI7
Such
construction takes place when certain rights (such as civil a.nd political
rights) stand prioritized overother human rights (such as social, economiC,
and cultural rights). It occurs when even the former set of rights stand
subjected to the reason of the state (as when their suspension stands
legitimated in 'time ofpublic emergency the life ofthe nation'.118 It occurs
when solemn treaties prohibiting genocide and torture, cruel and dcg:rad·
ing treatment or punishment allow scope for reservations and derogations
that eat out the very heart ofremedies otherwise declared available for the
violated. Not merely does the community ofstates construct such trans·
actional hierarchies. Even human rights praxis does so.119 This make:s
human rights prv::is, at best,global but not ullillf'nal, with deep implications
for the fmure of human rights.
116 Jacques Derncb (2002).
117 I <knve thiS notion from Ikc:na. Das (1994) ~t 139.
118 Article 4, Imemauon~J Covenant on Civil and Pollucal Rights (ICCPR).
119 Th4: wry in which hum~n nghu nuod~tes ~r4: fuhional or formed within the
United Nations .ncics and across the NGOs iI1ustr..tl: this problem nthet strikingly_
As conC4:m$ the fonner, It IS olkn ~rgued th:r.t s~ahud ~ncies claim a vo:rsion
ofhuman oghu fOt themseJ"," nther than for the vklbt«l. K:lt~rin~ Thrll~so:vski (1994,
~t 70-91) has shOWll ro:ccndy that much discour.il': of UNHCR has been focuse:d on
the riglll ofMCtsI by U1tl:rgovernment;LI .noes 10 VlCllms of 'w:oirs ofhunger', nthef
tlwl of the human nghl$ of xccss by the viobt«l to amebor.llrive agcnelcs.
Iu con«rns the Kulptrng ofhunun rrghu nurxbles, xtIviSI grapevme all too often
condemns Amnesty Internuron~1 for foCtwng 100 he~VlIy on Vlobllons of civil and
politic~1 rrghu, 11 the process failing to fully under.lund the imporuncc of Ihe
ptotl:Ctlon of eCClIIomrc, socul. and cultunJ nghts. Iluman ngllu NGOs who :.JdOpl
I Special mand.ltc for themsdvn (fOt OCiIniple, 'susurrublc dc....dopmclll', 'popubuon
planning') arc often chug«! for negk<nrlg Other bodies of crtICta! hurnan nghtS It
15 potndess to rnuluply Insunces. In each ~uch SltuatrOn, the crillcrsm rs onlyjustrfi«l
from the sundpoim of different constrUcttons ofhicnKhy ofsuffenng or evil, r.ucly
made theoro:uCllly exphcll.
What is LIVlllg and Dead in Rel~tivism? 199
What then is to be done? I suggested 111 an article in 1999 th..t human
rights diSCOUrse must be related to the voice ofstruggle and ofsuffering. 121}
Writing around the same time, and sharing many of the same thematiC
sources, Klaus Gunther also suggests that human rights may best be
understood as 'the result of the process of the loss and recovery ofvOice
with regard to neg'Hive experiences like: pain, fear, and suffering'.121
I agree; I also find salutary his counsel that we move away from the
proportional COlltext of human rights norms and standards and regard
these only as an index of' the process by which the victim of Injustice
regains voice and control':
The Ide~ ofhurn~n rights is somethmg like ~lIl1bbrrvialj"'r ofthrs proces~ by which
th4: victim overcomes neg;nive experiences of p~in, or hunllli~tion with their
consequences of muteness, p2$siVlt) and helplessness. The proposllion~1 cont4:nt
of human rights depends on the kind of soci~l prxtice which is ~rienced 2$
p~lIIful and humi1i~ting, like tOrture, arbitrary imprisonment, exclusion from basic
socul goods. In the background of these rights are ~!ways mdrvidu~l~ who suffer,
who hn-e fear, who raise these lIOices, who clalln that others shall liSten to their
report of thdr ncgau~ experience, and who demand justifK:ltion ...for the kind
of social practice whrch produces these neg;ltIvc ~riencc:s.'22
Gunther describes this approach to reading human rights as 'complex
universalism', a form that a!tends fully to 'difference in dialogue' and to
'human beings who arc speaking and acting-to their performance ofvoice
and agency,.I2J This remains a brilliant rendition of the third Hegelian
moment ofconcrete universality in struggle with the moments ofabstract
and particular universality, compelling the conclusion that when 'we begin
to conceive: of human rights as the It:g3cy of injustice and fe:ar, it could
happen that the universalism oflll1man rights turns no longer to be a pro--
blem'.m However, what begins to emerge as a problem is the constitution
ofthe 'we-ness', an aspect that we explore in the: next two chapters in terms
of conversion of human rigllts movements into m..rkets and of a n~
paradigm ofhuman rights emerging under the signature ofcontemporary
globalization.
120 Sec. Uaxi (1999)
121 Sec KlJU5 Gunther (1999) 117 al 123. nlal Asad, whose work he approvll1g1y
Cites, hOWl:VC:r 11151515 !lUI stich expcnen« mlly not always be lIe8;;lIIve from per.lpec-
tlvn of persons who uode:rgo ~ufTcrll1g. Acrordl1lgl~ he confinu Ius analysrs to
'rn~1C1l0n of pam against the: will of'llcl1m only' (at 129, footnote 22).
ott Gunther (1999) 135.
III Gunther (1999) 119.
1204 Gunther (1999) 1+4.

112. 7
Human Rights Movements and
Human Rights Markets
L Preliminary Ques[ions
C hapter 3 offered a partial analysis of specific (onns of collective
social ;!.CtiOIl named as practices of human rights activism. The
question we may now confront is whether these practices amount to a
'social' movement and, ifso, how may we understand the relation bcrween
human rights activism and social m~mellts. The threshold question
raises, in tum, sevenl ~btcd questions: What is gained by cndeavour~
aimed at describing pr.u:tices of human righ ts activism in terms of social
'movement?' Put another way. what fresh .'inning points may present
themselves for lhe domg of human rights wen: this to be informed by the
perspectives of soci. 1 movement theory? Does this theory at all take
human rights movement seriously? How are the silences in social
movement discourse concerning human rights mOVClllents to be grasped?
Where do we locate the potenti.al for concerned conversation between
hum.an rights and social movements? What are, or how may we construct,
the matcrial--scmiotic spheres of human rights movements? In orner
words, how fir do the productions of meaningr/significatiolls of humall
righ ts relate to the sphere ofeconomic production? How do markets fonn
and inform the practices of human rights activism? I low may we
undcrsund the conversion ofhuman rights movements into human rights
markets?
It may sccm superOuous to say at the outset that the fonns, practicc~,
and careers of human rights activism and of related social movements
remain always heterogt=neous; they cnuil ensembles of collective social
actors, located in different timespace5 and 'geophilosophies.' But so pow·
erful are the tendencies of reification at work that the education in the
obvious becomes a consunt necessity! In both human rights and social
movements, the relation between 'ideology, grievance. :l.Ild collective
Human Rights Movements and Iluman Rights Mar~ts 201
Identity' provides contested sites. I Both h.amcss me potentiality for IIlsur-
gem social action olTered by 'cxp.anding politic.al oppon unl1ics' th.a1 offers
'a ccruin ~objective structural potential" for collective politic.al aClIon'.2
These opportunities come variously, although oftcn abldll1gly produced
by 'suddenly imposed grievances,J or the 'dramatization ofsystem vulner-
abihty'.4 In addition, social movements marshal 'master protest frames',
that is 'ideol~c;3l accOl.lIlts legitimati'!f p~tcst. activity that come to be
shared bya vanety of socl.al movements. Wlllie fights movements provide
such master frames, it remains mightily uncommon for the mainstream
social movement theory to fllily cognize human rights master frames as
constituting a gramm.ar for the Study of the 'new' social movements.
Even .a cursory reading of movement theory suggests th:u there is no
agTeCment on what may constitute core .aspects ofthe notion. The idea of
social move~ent as 'a conscious collective, orgmized, attempt to bring
about or resist a large SCale change in the social order by non-institution-
alized means'6 has proved contentious. While this definition aims at ad-
equacyof nemraVobjective description, the discursive temlS deployed raise
scv~ral ques~ions. What may we say constitutes 'a la~ scale change in
SOCialorder? How may wt: undersund the notion ofnon-Institutionalized
mc.ans? Wh.at kind of reflexivity may wt: refer to by ,he demand that social
movement should be a 'conscious collective attempt?' And how rn.ay we
app.roach the notion of 'orgall1zed' attempt to promOte or resist large-sc.ale
SOCial change? How maya generalized definition accoult for agency?'
Further, while State repression ofsoci.al movements m.ay well require these
bemg treated as a well organized 'conscious collective attempt' to threaten
Its supremacy as a paramount social .association. the levels of org:m ization
among the insurgent groups .and movements vary enormously.
Indeed, some recent studies of anti-corporate globalization movements
COntest the key clement of 'org::l.I1ized' effort; they start with til(: explicit
understanding that 'participants in the protest and in me confederations
tbat have loosely coordinated these protests' may be viewt:d as constituting
,
As concerns social movements, see Hank Johnston. Enrique larma. and Joseph
R?~~a,~~ki)I~~.
) See Edward Wolish (1981).
~ McAdam (1982) 41-3.
5 Followmg the work of David Snow and Robe" Ihmford (1998). McAdam (1982)
49 mstancn how the 'cl'1l nglns' muU'r fn me In the hber.r.1soc.eua and 'ckrnocncy'
master fr.r.me III Eastern Europe k~ u nuster frames for tht emergence of a whok
V1r~ of 'rn<M:meDt tme~nce' McAdam (1982: 41-2. 40-54).
, John Wilson (1973) 8.
Sec. for aample, Robm Cohen and Shmn M. Ib n (cd.) (2000) 3.

113. 202 The Futlll't' of Ilumall Rights
a movement.8 The pointhere(now reiterated by the discourse oftile World
Social Forum) is not that episodic, amorphous, protests have the potential
of becoming a movement but that they may actually be said to C
OllStUUte
it. My dlStincuon bctwttn 'episodic' and 'structural' human rights activist
practices (anvassed in C hapter 3) also gets severely tested on tilLS terrain.
So does the dlstincuon between 'movement' and 'organization'
The notion of social movements, it Ius been often remarked, reSISts
overarching definitions or description. The notion itself is a fuzzy one
because of the problem of reading collective intentionalitics of those that
initiate movements, participate and sustain these. N ot all social move-
ments proceed with a clear, conscious, and coherent original ultent. Nor,
further, do social movements always constitute fields of resistance to
power; often they also contribute to rei nforcement ofstructures of domi-
nation. In any event, the intent undergoes changes as the movements
proceed to acquire some level ofintemal coherence in time and place but
also begin to marshal a certain level of social legitimacy and political forCe.
Not to be ignored is the distinction between symbolic movements (move-
ments th:
H seek to change or resist transformation of symbols, beliefs,
sentiments, and attitudes) and instrumental movements (tho~ that seck
to achieve clearly posited concrete outcomes.) These theoretically neat
distinctions are ovcrrun by SOCial practice. The bright lines between the
twO ensc' themselves all too qUlck1y in the ongoing traffic between ·sym-
bolic' and 'instrumental" clements in social movements, or put another
way, when we move from thc dimension of.the description 0;p.urvosc;
rationality to the realm ofactual effects, that IS from the actors Wl.sh.list
(as it were), to observable and meOlSurable effects or impacts. T hiS IS so
because of the well-known problem posed by the distinction between
intended and unintendedllatent effects. The accumulation oflatent effects
often disrupts in course of time the manifest intentions that guide the
formative moments of social movements. The trajectories of collcctlve
intent get transfonned as social action unfolds because social movement
actors learn only through dire experience the unforeseen, and often,
unforeseeable effects and W3ys to cope witll these. In any event, our
descriptions of social movements become even more complex, and even
contradictory. All this is rather well known to social movement actors
themselves and, in varying degrees, to those who choose to run the
narrative risks of theorizing social movements. . .
There is even so no question that the practices ofhumall fights actiVism
" . . .. I sense
remain clig.ble for description as SOCial movements 111 the n llllll
ua
8 FredrIck H. Buttel and ~nrKth A. Gould (2004.).
Human Rights Movements and Iluman Rights Markets 203
that human actors contest, and seek to transfonn, the soriw, both in the
sense ofcverytby lived social relationships and tile Structures wlthm which
these occur. However, human rights movements remalll seriously under-
theorized III the contemporary movcment theory. The reasons for this are
many and complex, a theme for another treatisc. But for the present
purposes, I su~st that the growing 'technizJafion' of the field ofhuman
rights. that I describe here in temlS of'legahzation', Impedes any serious
explor.1tion by social movement theorists. Also at issue arc the unstated
unders13ndings and assumptions concerning the role and limits of the S13te
law.as an agency ofsocial transformation. T his aversion, and at limes me
disdain, towards the distinctively leg:;ll or j uridical impoverishes, in my
view, the movement theory and scholarship. The forms and practices of
human righl~ activism may also contribute to this impoverishment; many
actOn and entrepreneurs of human rights movements aspire to preserve
their own historical specificity whose force, they fear, their subsumption
into larger ~omains of social movement may dissipate. At stake here, then,
~ Ihe claims of relative aUtonomy of human righ ts mOVements from
rtlatcd social movements. Further, at Stake also remains the specificity of
Ihc 'emanCipatory' char.1cter orhllman rights movements, COmrasted some-
how with the telclogies of other social movements.
II. The 'Emancipatory Character of
Human Rights Movements
How may then one present the inSistence on the 'emancipalory' character
of hu.man rights movement discourse? This is indeed a very complex
qX'stlon and one.~th ~ massive presence in the history ofideas, especially
:,:~ of me dlstlllction and opposition between 'reform' and 'revolu-
. ' between change in slow motion (what Edmund Burke once de-
~bcd as 'growth by insensible degrees') and the acceleration of historical
~that .brings about huge transformations in radical, and often violent,
do
' ~th the past that all too often, in tum, IIlstall new forms of
mlllaUon.
Human rights ' '
enh
. movemcnts, as relormtst movemcnts, mark strllD"O'les to
ance d··d 1 ~
th m IVI ua human freedoms against thc ovcrweenmg powers of
e modem st:1t fi . d I · . . . .
and C ormatlOl1S an I Ie repressIVe powcr ofSQClallnStltUUons
cultural p'''''e,,,, 5 1 1 I' , I ' "
arb . lIC 1 movements a so lI1ut t l iS aSplralion and
Icvemem by th ' f " d '
hOtttI thus . e proce~s 0 negotiation an comprOllllse. As already
seeki ~r III the previous chapters. human rights movements, while
Ilg to dlsempowc tI . I ' I ' d ' ,
-., 1 r Ie Statc 111 re allons to t Ie 111 IVldual human being
r asoscek to · · 1
re-cmpowcr It III tIe COntcxts of amelior.1ting, even

114. 204 The Future of liuman Rights
eliminating. SOIllC systemic pattcrns of social, economic, and cultural
domination that result III hum:1.O and social suffering. BUt, ~ IS wdl
known, the re-el11~rmcnt ofthe state: for evellJust human.tights C
.1luses
does not .1Ilways le.1ld to the real life achieven~ent of 'emanClp.1lll0ll' from
the oppressive structures of power and dOI11I1l.1lllun. .
The subjects ofhuman rights movements (as Marx ::.howcd III rc~allon
to the histories ofthe workingclasses) break away from the 'Iron c~
'C unly
be r. ther bound '111 silken strinp;;'. Michel Foucault expressed a similar
to lur . f'l· I
·d d·m -ntl, in terms of 'infr.1lpower', these rcgllnes 0 Itt e powe~
I C.1I I c.... . '1
little institutions' that weave a 'web of micr~oplc.' capl a~ power...
h· , ,he production apparatus while making them IIltO agents
...ttaC 1I1g men 0 ' . . . . ,
ofproduction, into workers', and thus create a.'synthetic, pohtlol hn~
between 'hyperprofit' and 'infrapower:9 In tll1~ sense, th:n, hUln...n tights
__·,1 ",ovements bear a conflicted relationship With the
movements as ",,-,,-I .
. f ra.. and infra- pOwer/knowledge formations.
regnnes 0 mac, , . ' . ' be I
All h· then invites the conSideration of relanonslup tween llIoun
t IS I . . I h
rights movements and soci...1 movements. It is on t liS re~stcr t lat t e
complexities of the distinction, rife In contemporary SOCial movement
I between the 'old' and the 'new' social movements fully emerge to
~;:~To venture a large generalization, this distinCtion merely unfolds
fresh understandings of, and renewed forms of struggle with, the
'hyperprofit' :l.Ild 'infrapower' regimes. I Iowever, the Iangu~ges of hu~u~
rights make a difference. One way ofstating the di.fferen~e IS th~t the old
~....,..; I movements encased within the manifold nse of tndustrlal capltal-
_ . a , . I ' fh 'glltS nomlS
iS111, led social movements to generate artlcu a1l0n.o uman n 10 Th
...nd standards, hitherto unscripted, ...nd even enurdy u.nknowl1. a~
also incrementally bUl surely fostered new hum...n tights values .
. Th" social movements conunue
cultures of power and resistance. e new _ h'ld
a similar order of struggle against swtItshopS, econonuc zones, c . I
I · ' f' rced' ;,tbour pracuces
labour and related fomlS of cxp oltation 0 outsOU .. h'fts
in the' heavily globalized conjunctures.
l1
However, ~hc ~eclSlve ~esl to
d "-'e notice' the 'old' social movements formed lustonc strugg d·
e;>,., · . . h ' traSt the 15-
.1IrUculate: altogether new regimes of human ng ts: III con .j the
course of the 'new' social movements tlmves all too heaVi y In
9 Foucauh (2000) at 86-7. See also Chapter 5. . , conccrning
" Soch as cckbnted by K.1rl Mane 111 Chapler Ten. iGJplIII/ Wumt. I ~,tcty
I · truggc that u u,, _
me InnlUuon of houN of....,ork through a romp ex siXtY-year~lesomc confisa(lOT1
b-- - .J "-~uvcly a Ten Houn Uw pItted against the' uri I .C_","
x ~ ,_ ..- 993) 39-43 MI the' male"a U'"
ofworur's lifcllmt and hfeworld,. Scc:, Bax:a (I . .11
cited.
11 S«, for CXOImple, Peter W.ucnl1an (20(4).
l-IU1mn Rights MovclI1enu and Human Rights Markets 205
~ of human rights .already in place. All the same, in both fonns,
_ pl~ of human rights movements rem...ins somewhat insecure.12
The histories ofthe 'old' soci...1movements present fully the dlfficuluo
ofrt)dl11g the 'emancipatorych...ract.cr' ofhuman rights movements. I low
nuy human rights movement theory re.ad the now furiously proclaimed
di"'lde bcr.veen the 'old' and 'new' social movements? Much here depends
on what we may wish to regard :lS paradignutic of the 'old' soc]al move-
ments. ~re we to regard the struggles ofthe working c~s .ag;;ainst the
capitalist ona as such, the dominant trends in the Marxian discourse resist
descnption of human rights movements as emancipatory movcments. The
figure of human rights appears in this genre of movement theory only in
lI!fTIlSofcritique ofextant models ofrights, state, and the Iaw, ...s any reader
of On m
l'Jnuish QlltStioll and Thl Critiql~ if'"l' Col/ao. Programme surely
know:>.Although human rights emerge as the plentiful 'necessities ofclass
lIJ"tI.88Ie,'3 the very notion of human rights was regarded, in the final
asW)"Iis. as the m ...rker ofa 'radiC.1l.lly deficient' social order.t~ In contrast,
wttt one to locate as paradigmatic ofthe 'old' social movements the anti-
colomalstruggles, we gr:lSp the revolutionary em...nclpatory potential oftile
amque ethio l l1lvcntion ofthe right to sclf-detetlmn.1ltion. But cvtn here
II the VlrtuoSQ exponent of the rigllt to self-detetlnination Moh:mdas
Gandhi demonstrated the emancipatory character of struggles for self-
dttrrmin...tion entailed transcendence from the received ethlc...llangl.lages
ofhUJlUn rights; he believed in the vinue ofnot the vinue ofjusI freedom,
.w:jUlitjrrtdom.ls In a furtller contrast, some different, and liberal discur-
IIV'rframes privilege the narratives of'old' soci...]movements (such as anti-
abvery and slave abolitionist movements and the suffragette movements)
_ .enuncipatory potential ofhurnan rights movements in temu ofp...ins-
tWnggradual displacemellt ofstatus and hierarchy based amiD! regime that,
III Ihe net result, expands the power of individual choice of life-projects
IDd protects autonomous constructions of lifcworlds. But even these
12 Sc (,
'c. or an acCOUnt of thc OVC'nli dltrJCJloC'S Ihus prt'5enled III J study ofglobal
=tTlOv(:mcnts. Robm CohC'll and Shinn Ra. (cd.) (2000). Ilut Itt Mary Kaldol-
........ _) fOf a mol"(' susumcd analysIS ofdw: I"('btlOl1Shlp bC'tv.oC'en soaaI moYC"mCnlS and
_l cIVJI~
1
3. ---'·'1'
14 ~ Upcndn ):lJO (199&); IhxI (1999).
~ , ~,Allan )uchan3n (1982). BUI as Uevcrley Sll~r (20(3) pomu OUi olle may
~:.hl~totlC'S M workers resistance dlffel"('ntly a.~ dlvKicd 11110 rwo 5tntqpC'S:
~ . truggles (OVC'T thc pohtlcs of producuon and productton ofpolincs. 10 use
~I fC'CUnd CJq)I"C'SSIOI1) and 'Pobn)'lan' stnJggks (nurklllg C'VC'f)'Cby SIIC'S of
~ ~IP,"SI thc collfisotton of Imc h~lihood nghu through Ihe play ofsheer
n forces).
Sec, UP!:ndr~ Bui (1995) and the lttcncul"(' therein ("ltM.

115. 206 The Future of lIulTllon Rights
narntiV6 gnsp human rights movements not as ends but as a means
an end, enunciated in different terminologies and dICtion of'dclllocracy~
'rule of law', 'dcvdopment' or dle newly fangled public goods langu.s:
In COntrast, and at first sight, many of the 'ncw' social movements
appear as distinctly human rights-oriented. Movements confronting patn.
archy, environmental degradation, racism in all its fomls. and the politiCS
ofimposed Identities, for ex2mple, everywhere entail recOllrse to contem·
panry languages of human rights values. norms, and sundards. These
movements are human rights reinforcing but also at rime innovate human
rights and standards, and thus remain jurisgenerarive. In the pursuit of
realization of existing human rights values, sundards. and norms, 'new'
sociaimovemcnts also further produce new norms and sundards. In this,
they partake the defining feature ofthe 'old' movements as well. Even so,
social movement theory seems to have little use for human rights as
providing a distinctive-even constitutive-marker of the distinction
between the 'old' and 'new' social movements.
16
16 Sec, for e:ample, Alex Tour.lIne (1981), Alberto MelUCCI (1989), M~IIUel ('..astells
(1996). Ewn when new JOClal nlOVi:ments ~re eonsidered dlstlllCUve b«ausc lhey
tr.lIIscend their f(IOtroneu In ebss.speclfic location s, mirror new Wily! 111 winch
identltlcs sh..pmg collecuve behaVior are formed, and nurk the emcrgences for the
ndlClllly plunhst polUiCS, Ihe spc"Clfieuy of hunun rights n1(M!mem rt'lIIam hllk
;KKnowledgcd.
M.try K2.ldor (2003) <kvdopmg dlt' dixour5C of the 'dungtng defimtiOfl of cIVIl
SOCICty' sU(Ij&'C!Sts that v.'C ppsp the dlsancuoD be~n the 'okl' ..00 the 'new' sooal
mov<:ments not so much by rCCOUI# to diffusOfl ofem:mclpatory Mieas and bn~
but ntht'r through 'the te"uonally bounded Wily in wblCh CIvil JOCiety ....";15 realized.'
ThiS boullcledness 'hnked' cMI 50Clety 'to the wn-m..kmg coloni..1lUte, which con-
stituted a hmual10n on CIVIl society itself as well as barricr to the development ofCIVIl
SOCIety clscwhcl'C' (44). The '1C"W' social mowl1lC"llts bemg cross_national. even :II
moments authentlClllly tnn.mauOIul, no doubt rep~m u,mscendence In the slmpkSl:
sense of gomg beyond hlstonc:U1y multiplex loc.ational conllngencleS. But these ~150
further pose chlllcngc:s to the mid WoIys o f undc:rsunding the global CIVil SOCiety now
III nukmg; detcrncon ..hullon 15 .. lKttSS.1ry but not ~ sufficlem condition for under-
standing InnsfonlUltons of CIVil society. K2.ldor insists that we Sf"'Sp the 'new' soc.al
movements In tcrnlJ of new teielogles that intermg;ttc the 'fundamental 11I11I1;I1I0It5
posed by w:tr and colol1lahsm or by socieries org;lIiled for war' (49). In thiS, the
amorphous and chaotic char:lctet of the global Civil SOClety in the makmg ({Dill"" N«n
C handoke 2001 Cited m JUldor ..t 107) constlU,lICS Its strength r~thcr than a hnll
Ulion
, ' . ~~-
precisely because II !leeks to revtsc a global SOCial contract which tr;ouCS aWlY
nghts III the odc of cullcc1lve human security before and S11lCe 9111 ClearlY. a neW
. d I ~Id anD-
global CIVIl SOCICty 15 now m the makmg through the peace, l$armaillcn , r;tdcal
QPuOlIIst movemcnts that provtdc l 'legiumllmg pbtform for discordant and IfI-
demands--a name whICh explainS why authontles have to take these dell
ullds
~
ously' (107).
HUlnll1 Rights M().'Cmc nts and Ilunull Rights M2.rht"i 207
HI. Juridicalization
COluentpor2ry movemcnt theory approaches to hunun rights movements
neWto negan.ate the IIlclucuble features of'legahzation' and )Urldlcaliul1OO'.
These twO notions arc related but also distinct. Legalization yields to some
easy description. It p.rimanly consists III the production of lawyer's law
concenllng human nghts as legislation, interpretation, Implementation,
and enforcement. T he production of normative law itself b, however a
complcx affair." T he complexities aggravate when we tum to the prod~c­
cion ofhulTW1 rights law,18 celltral to which is the beliefthat as legal codes,
human nghts norm~ and standards require constant engagement with re-
~liatlon ~f legality and legitimacy of state power. I....cgal and judicial
actiVIsm entails the consequence that human rights movements by defini-
non pursue the tasks ofrefoml and renovation of the law. Reformation of
state, parastatal, and global stnlCtures and practices constitutes a vital part
of the very agendum of human rights movements. At stake in these
movements remain t~le im~ulse to make power Illcrcmcntallyaccountable,
govenJancc progressIvely JUSt, and the state conduct increasingly ethical.
While one m~y contest her d~pllon Ihlt that dK!5C dem.lndl for ':lCccs.~ open-
_ . .lnd dcb.ues' .jft"alllri/y mmsforms glob.ll paltcy actors mto 'a 11c:8ICh.ln ur~IVC~
dau. ;acting III the InteTCSts of humalllty' (108), thc Imprcssl~ cvldence that she
rrun!uls (5I)....n, 1
09-41 for the I0UOIl of a gtobal CIvil SOClCty» '..nswcr 10 w;ar' IS
.appe.1lmg nideedgtvcn the 'new 'pervasl'C tr:lnsnattollal K't ofllls«urtucs' :iIId for thc
1IIIIC Kll<"In the Imper:ltl'C need for .. 'ciVlhlro' con'eruuon free fi--."
sao. and . ''''' ,(';II', super-
mu:;' pKJudCC,' these 'new - Isbnds of engagemcnt" (160). The IlC"W global
WId! .uUOlUlum now fostered by lhe f'A.'O 'terror' WilI"S (Bui 2(05) lease arid IC5t
aho r gnotmcruelty some chenshcd nonons of'clVlhzed' dl.lloguc on a1lsidcs which
(I~"~;:;" over yin 'SOCtetlC5orpnlud for Wolf'. K2.ldor focuses on fi"; ISSues
could
l
represent the possible content ofa gI~1 sornl ooml"1lCl or twplll III which
~ sccunty IS provided through the upholdlllg human rtghts and hUIIl:mitlri:m
r. III ~hangc for n:3C.hncss to commit resources through gloWl UXOItion or other
omlS offinancl~1 tr.lIlsfer and re.ximcss 10 risk hvc-s, ..lthough IlO( lIl ..n unhmlted
way, In the SC'tvlCC of hum..mty (158).
All thl~ w.trt
n allts a IllOSt allXlous dlalcctlc..1auenuon,
Itpl R~oe Pound (1933) remmdcd us th..t m the produetlOTl of the 'authontlliW
pnnCi~~e~als' oceured at various k.'vels of gencr:lhty: leg;.tl Ideals, v;r,lucs, goals,
lI eo p , 1:llC1111S, doctrmes, standnds ~nd rule~. Greim~ ~ prcsenung !e=hlalion
n~uIUUn'twoaUlo b I ~ ~ I ~
.....,. _. nomous II re lIeu sp ICres: proouctlonj ..ridllJj~ and jlfrijicariD,j
':"-"l" tOW:lTUnsthesecrucl I d I' "'- r I
s. J:.tlaon (1985 a IS mctK)ns. ..>=, Tor an cxp or:lton ofGrellnas Bcrnud
IR ).
SecCItt.
Ptud . pier 4, and diSCUSSion III C h;r,pter I concernmg hunull ngllts » JuridiClI
-..

116. 208 Tht Future: or Hum.an Rights
At stake then art tht ways ofrefashioning/retooling/rethinking the ttl I
I fIRlf " d l " I " Ilea
anglUgcso tIt ueo Law. Un er ymg cg;allzauon'areformsofwh
Friedrich Engels named as juristiKllI I#lt411.stllammg, the world jUridi a~
outlook.20 a seellb.rizing outlex>k that consolidates 'emnomie and SOC~:I
relationships' as 'being founded on law and ereattd by tht state', wherein
all redemptive human aspirations sptakthe languagesofeither to bourgeois
or socialist legality, or (to evoke Santos in a wholly different context) 'inter_
legality'. Thus, the social me.:mings of human rights norms and standards
produced remain complex, and as has bten so far seen in this work, often
contradictory.21
A statecentric understanding ofhum;;m rights law remains contested by
the practices ofcontemporary humall rights activism and the 'new' social
movements. In this perspective, the production of human rights norlllS
and standards may not be undersrood as a spectacle of state sovereignty.
Peoples in struggle and communities of resistance, as repeatedly stressed
in this work. also emerge as the makers of human rights norms and
standards. I low then may we describe dIe powtr ofcontemporary human
rights activism, in conjunction with the 'new' social movements? Perhaps,
one way to achievt lhis is to S21y that most human rights llttcr.mces belong
to the genre ofptrjonllativt spccrh acts 'that create the very state ofa/Tami
they represent; and III each c~, the state ofaffairs is an instiu1t1onal fact'.22
The paradigmatic human rights declarations concerning equality and
dignity of all human beings everywhere signify this perfonnarive power.
When Lokmanya liIak inaugurated the Indian stmggle for independence
with the motto: 'Swam) is my birthright and I shall have it' and when
Mohandas Gandhi translated this into a collective feat of Indian IIldepcn-
denec, they were enga~ in a ~rics of perfonnativc act; so were the
makers, and the successors, of the UDHR. In each case of human rights
declaration/enunciation, 'the state of affairs represented by the preposL
-
tional content ofthe speech act is brought into existence by the successful
performance of that very spttch 3Ct'.23 This son of 'bootstr.lpping' is
inherent to the invention, and reinvention, of human rights.
19 See, rOl'" cnmplc, ror an exploraliou of the ambivalent Ullpacl of human nghlS
movemems on pohllo.l culture, Manu Kosckenmcmi (1999). ~ abo my analysl!
(201).4) o( the Jurldlcahution o( the Bhopal caustrophc.
20 Sec, VA ThmalK)V (1974).
11 Even the much vaunted 'empowctmcm effects' orhurnan oglrts produclLOIL alSO
pr«otm a caILte$lw lemur: ~, Duncan Kennedy (1997) 224-35.
:t2 John R. Searle (1995) at .11.
1) Ibid.
H uman Rights Movements. aud I lulllan Rights MV"kca 209
In eontf;l.St,joridicalization oflmman rights, as understood here, helps
understand the 'd~p stm ctures' of which their legahzatlon IS merely
::coutward manifestation. Thus understood, human nghts remain (10
Searle's terms) both lallgua,tt dtp(rldt:1It and tllouglu dt:pt:rtdmt. Human rights
ponns and standards remain concelV2ble only as SOCIal facts that come mto
~ang 'by human agreement' to use the symbolism oflanguagc: 111 a sh.ared
manner.24 They arc tluwg#tl dt:pnult:llllll the sense that all mstitutlonal facts
'can exisl only... if reprcscnted as existing.2S
Jundlc2.lizatlon ordains thai
these facts 'can exiS[ only if people have certain sorts of belief.:md other
menu lattirudcs,.26 Because they havc 'no existence outside representation.
we need some way ofrepresenting' them through b.nguagc. Human rights
noons and standards are 'social objects' in the sense that they arc consti-
blced by 'social actS' 2nd 'flit: ob)t:fI is the lominl/O
IlSpossibility ofacfivity'.v
The distinctions I make between the paradigms of 'modern' and 'COI1-
llemporary' languages of human rights (Chapter 2) fully demonstrate
different histories ofjuridicalization of human rights. Thc contemporary
Iangu;ages (whether through outlawry ofslavery, genocide, apartheid, scx-
IIIDl. ethnic discrimination, for example) create sociaVinstitutional facts,
bclirfs and attitudes alien to the languages of",odml human rights. In both,
iluwnrer, a certain tendency tow.trds sclf-referc11liality remains inevitable.
'11tr concepts that name social facu', S21ys Searle, appear to have a peculiar
lind ofself-referentiality.28 The vcry concept of'human rights' entails this
• exuberance. When we ask why human beings should have righu at all,
Ibe MlSWer is bc:c;ause they are hUIl12.n; wt:re we to ask what constiultes
'human' the answc:r is the self (individual or collectlve) that is the be;arer
ofhuman rights! To say that social facts are thus ~If-referential is Oot an
evaluative buta descriptive comment. There is Simply noway ofdescribing
IOCW. racts outSide this refercntiality. Put another way, 'tllere is no W<ly to
cxpbin the content of the beliefwithout repeating the same feature over
and over again'.29
~
2S Seule (1995) al 46.
Scull' (1995) at 63.
16 llHd.
n
2LI Searle (1995) al 36.
2'1 $carle (1995) al 32.
Scnle (1995) at 33.
~7;tulional faclS also tm;ul nu ttflallty or pbYSlcahty. '... ITI here: an: no instr!u-
~acts WIthout brute: facts' rtqulnngsome son ofph)'IlcaJ reahuILon: (34.) Searle
Clast es nlOncy: )U51 about any ~ o( subsunc( OIL be money but monty has to
04-~n pbyncal form' thai may ulo: 5CVCral rorms 'as 1
0ILg as It canfonllion as money
), the forms .. :lIS5umcs are 1L0t deciSive. One may Sl.y tbe s;,r.rm: :tbout human

117. 2 10 The Future of Ilumm Rights
T he activist impatience with legalizatio n of human righ ts IS fUlly jus-
tified. 13m it ignol'('s the 'd e(:p structures' ofjufldicahzation, which direct
atte ntion to the poliucal unconscious-the very infrastructure ofthe pro-.
ductton ofhu man fights law. its norms and standards. TheJuridlClhUtlon
oflUlinan figh ts movements already produce me ntalities, and us VariOus
11Iswn es, the habIts of language, thought, and heart that may only give
name to Illmllm rigllU Violation, d istinct from human violation, the deSC'cra_
tion of belllg, and remaming. human. At suke remain the relatively
u narticulated notions o f 'human' in 'h uman rights', an aspect that we Visit
in C hapter 8 in relation to the materialiry of globalization.
T his distinction remains, however, crucial because globally. and Other-
wise instituted h uman rights norms and standards do not reach Out to
all forms of human violation. Nor do social movements always readily
Tights emmci;lIlons; these. m all their many forms, have to as~ume sollle m:ncnaliry
or physlc.lhry for functlonmg as opcT1luve norms and st.mdards. Tht malenal infr.._
Structure. tillS ent;ulment nf physic.lhty, st<lnds all too offen ignored 111 the prose of
human rights.
lJssnsion or. and access to, cerulli matenal resourees remams necesury for
contC'mpQnry a(uvmes concemll1g hUllun rights to flourish even In Its nonl~t1~
prooucuon (Ihat IS Ihe nukmg. remalong) and acru~l re~huuon (imcrpreutlon and
IInplelrn:nutlon of TIOI'IIlS .lnd sunwrds.) These remam Imp<KSlble OUtsIde 3ihec:r
physicality ofthe Unned NanOtls butldmgs and other venues. and matenal plxes such
as courtrooms, police: pr«incH, and pnson houst$, for example. Yuu also IlCCd alrpotU.
airpiaJH'S. ~ys. and vanous meallli of transport, luxury hotels and n~ny other
'thmp' (such as commuma!Uons tCChnologtc:s) to produce IIISlIlUtlOIUI fxu of, and
about, human ng;hb. What human Tights languages create as MJCial facts IS a hlenrchu;al
slfUCtunng. which (to borrow the phrase rtgIme ofSc:.lrle) places '$0 10 spc.lk,' these
'on top of brute fKtS' (35).
The: 'order' of 'brute fact:;' is ~r IlO( ahogethcr easy to n~me III our conlCX:.
II IS templlng. In the domg ofhurrun nghts theoryand prxticc. 10describe: Iioloc;.uslian
practices of sovereign power as 'brute facts' (d Ag;unbe:n, 1998) HO'o'CVCr, th~
remain as much socl.lVinsutuu.Ollal fx:ts as human nghts nOnlls and sundards. Con-
c:c:ntT1l1l011 camps and gul~ arc not 'brute facu' in the sense that lIlounU1llS, 1lI0le<;ulc:s
are; and wars and WlIy5 of power, or 'govenullenulity' arc by no means prelmgulstlc
'brute
nalural fx:ts. I luman Tlghu languagt.'s rerruin however. a tcmlln thaI contest
fX:L' of power. [n tillS mOOc, however. brute: facts 'Will not be lIIarlfe~lI:d ;as ph~~
obJeclS but as sounds comlllg nut ofpc:oplc's momhs or as marks nn paJlCr, or..·
as thoughts m their hcads' ( 3 5 ) . . Ii
Like. al Searle: saY'. a 'twenty dolbr bill ... IS a standing posSibility of payu,lg or
solllcthmg.' human Tlghu norms and SUlldards constltutc prorl1lS!lOry wNhh for 0f1~1:
of human acuon Ilegardlcu whether the currency IS authentK or counterfclt w a
matters 1
5 Its po«"lItlal purehuc of the pr05pec! for a 1ust' and 'cqlllublc:' hUI1~;
futures. Whal we note at this pomt ISthe way III which mslltuuorul facts 'substtltl
b
" •
Ihecr puuc:sslOn :md pTOXlmlty' (85-6) md thus acquire dlnlllcl1VC deonuC a
un ute....
Human RighlS Movements and Human Rights MirutS 211
tnnsl~te h uman violation as h uman rights violatio n, These movements
mark several O
ows from the local to the global and back. Put another way,
b nun rights mavcments are in herently inlmtctiw; the IptJl~ ofviolation of
h~l1un rights at alllcvcls th us stands converted 11110 'imt for human rights
..aio n (local, ~gional, na tional, supranational, and global). In dlls sense,
human rights movements fonn an asp«t o f global social movcmen ts.JO
Further, aDd related, the growing interaction between human rigllts
~mcnts and social movements o n the o ther increasingly redefine the
missions, mandates and methodologies ofhuman rights moveme nts. The
Amnesty International thus redefined in 2001 its mission to embrace
aspects of social, cultural, and econo mic h uman rights. Increasingly, hu-
nunitarian NGO organizations and movements begin to assume a new
bum;ln rights orientation. Perhaps, the most significant instance of the
intrraction occu rs when human righ ts movemen ts, govern me nts, and
international development agencies pursue 'a rights~based approach to
development, collaborative campaigning by human rights and develop-
ment N GOs, and the adoption o f economic rights o rientation by human
rights groups'. T hese ' high-stakes' processes, widl 'potcmial dramatic
sigJ1ificance' both 'challenge and stretch the m andate and structu res of
existingorganizatio ns'.Jl Likewise, the anti-corporate globalizatio n human
rights movements seem to emerge as the 'movement ofmovements'.12 Put
anther way, the tasks of human righ ts moveme nts are never ever done;
aIobal human rights movements emerge as a kmd ofpermanent revolution !
Social movements, including cultural, political, and even spiritual
~ments, in contrast, are nOt always related to the umvcf'SC o f h uman
rights movt=men t!i. N ot all social movements ideal typICally address con-
ctrns to politically organized communities, namely. politIcal actors and the
IWr apparauhik and appararu~. Far from being human rights-oriemed,
~ social movemen ts indeed shun the rights languages altogether,
emphasizing languages of duties and o f solid arity. Some harbour deep
SUspicion concerning legalizatio n of human rights via languages of law,
,mlch are, at the same time, languages of power. Intense j uridicalizatiOn
ts ~id to expropriate the power o f the voice ofthe vio lated .1 T he resisunce
to, Such ~ppropriation assumes many fon ns-from o utright negation (as
'litth righ ts nihilist socialmovelne tlts) to conti llgcn t and strategic recourse
"So,
) 1 • Robm Cohen and Shmn M . Rai (2000); sc:c: also, Jacloe Srnlth (2004).
1.2 ':'ul J. Nelson and Ellen Dorsey (2003). at 2014.
lJ See, Frc:dcnck 1-1. Uuttel and ~l1ne{h A. Gould (2004) at 39.
tIiU As OC:cur:s nOtably; bUI nOl only011 tillS Slle, with the V
IC
ll1ll5 ofBh~1 caustrophe
IttlIgghng for Justice twO dcadcs. Sc:c: Upc:.ndn IJ:UII (2004.)

118. 212 The Future of Human Rights
to human rights norms and sundards.14
A large number of social move.
ments celebrate dedication to causes that the sute form may rarely address
seriously.JS Further, many a social ~ovem~~t target refonn ofcivil SOCiety
fonnations (for example, the f;lllllhal. reltgJous, and markrt sites).
And indero social and ethical thcory enacted by some movcments
suggest r(:Cou~ to Ian~ other than those provided by cOTUcmporary
human rights. of which three at least must here be mentioned: the Ian.
guagc:s of apabilities and flourishing. rather than rights;l6 the langua~
of thcory of public goods,)? and the Gandhi:m/Lcvinasian languages that
address the spiritual ethic ofhunun rcsponsibilitywherein each and evcry
human being owes a non-negotiable oblig;ltion to regard seriously the
suffering of the other. These, howsoever incommensuratc, languagt.'S, in
various modes, reach beyond the critiquc oflegalization ofhlllnan rights
towards all interlocution of the very structures ofjuridicalization.
IV Value Neutrality
Already. the discoul'SC concerning the emancipatory character of human
rights movements as social movements compromises the stance ofvalue-
neutrality t.hat insiSts that our narntives ofthe diversity and rang<= ofsocial
movements kccp dcstriplioll somehow autonomous of ~Ilflllioll. Move·
ment theory 1I15ISts th.1I ally serious study shows a willingness to under-
stand 'social movements .. , in their own terms; they arc what dley say they
arc. Their pr.lctlces (and foremost their discursive practices) an: their self-
dcfillition.l8 To this demand for descriptive realism , stands added a furdler
prescription emanating [rom the importance ofcither the Weberian value
neutrality or the postmodem suspicion o['predetennined directionality':
thus writes Manuel Castells:
Social movements nuy be socially conscrv.ltivc. .socially revolurionary or both or
none. After all, we now have concluded (and I hope for c'er) that there IS no
].I Ctupten 3 and 5 streSs thIS dIversity hut obvlously more work IS nct"<kd to trace
Ihe rel~uon between 5OC1~1 and human right.~. . . . such
n Such as (and III panKul~r In South SOCICUes) provision of prt!ll:
ny goods
as 11Ieracy and numcncy. oomb.mng vicious fornu ofhostIle civic ~nd cthllle dlSCT1ml:
natiOn, and CIVIl society Inscd pr.tCtices of m~ss impovenshmcnt and slave-hke pIX
nces of child and domestic labonr. ~ III
)(j III the edllCi111:4I1guaga rl(')W madc familiar by the corpus of Marth~ Nuss ~
and Amanya !kll, human rtghtS nomlallVity main-soptllnalsense. onlywhcll COlleCI lit
11 post_Mannst bnguages of human cap;ablliries and flounsillngs, Sec, for a recc
dlscUSSI(.m. Sabllla Alkm: (2002).
37 See. Inge Kaul tf aI. (cds) (2003).
31 Manuel Castells (1996) at 69-70.
Human Rights Movements and I Inman R.ghts Maruu 213
prtdc:remllncd directionality in SOCIal evolurion, that the only sense of history IS
the hl§tory W sense. Therefore, from an analyucal pe"pccClve, thcre are no 'bad'
_ 'good' social movements. They arc all symptomsofourSOClctles and all impact
social urucmTC'S, WIth variable IIItensltlC$ and Olltcomes that must Ix estabhshed
by socill rescarch.l9
This is indeed an understandable observation; all social movements de-
serve equal theoretical attemion. Movements that seek to ameliorate and
those tlu t aggraV:l.te hmm.Il/5OCial suffering, movements that promote
large-sole social trans[onnation and those that opposc= tllis, movements
that affinn as well those that deny or devalue human rights, for example,
coequally furnish the grist for the social movement theory mill. Their
ideologies, outcomes, ;and transform;ative impacts 'must be established by
social research'. It is 'unscientific' to privileg<= one form ofmovements over
dle latter in doing social theory. U ndoubtedly human rights movements
demand such research.40
Descriptive realism enables us to shed naivet~ that, at the threshold,
classifies some movements as inherently anti-human rights movements.
Value-neutrality further insists that we cognize the logic of movements
III tttms dIelr au thorial intentionalities. On this count, social movements
diat describe themselves as human rights movements sund fully entitled
.. such to acknowledgement of their Status. For the most part such
rnovt=ments themselves appeal to some preferred conceptions and values
aashnned in the internatiolul, and related, hum.an rights standards and
1IOnru. Pro-life social movemellts thus, for eX2mple, appeal to the enun-
oations ofthe human right to life and the fundamental nghts offreedom
oJcOll5Ciencc and religion, speech and expression. assembly :lnd associa-
1ioru1 freedoms. These movements, as is well known, ntend to justifi-
atlon of prohibition of 'wanton' forfeiture of fetal life foons. from
practices of abortion to embryonic stem cell research, [rom the absolute
prohibition against suicide to criminalization of physically assisted forms
~tentlination of'bare life'. Likewise, movements that pursue the distinc-
IIfe nghts to identity, language, and culture mvolve contestation over the
hurnan righ t to interpret the rang<= of imem ationally proclaimed and
atCC'pted human rights norlllSand standards. Iluman rights claims to the
IIIkgrtty of faith in an intensely secularising world stand opposed by
movenlents that proclai m and proselytize the reprod uctive rights of
'Wornen, the identity and culture rights concerning sexual orientation and
COnduct. Descriptive realism insists that we fully cognize thc multiplicity
~
40 Ustells (1996) at 71.
Up.;-ndra &x! (1998); (1999) 33>52

119. 214 The Future of I luman Ilights
ofsocial and human rights movements that crystallize conflicting conc,,"p-
dons of human rights.
Difficulties, however, arise when, for eXllmple, we come across the self-
presentation of social movements that egregiously pursue vIOlation of
human rights values, norms, and standards universally agreed as morally
abhorrent, wllich further stand outlawed in contemporary international
law. Thus 'social' movements directed, for eXllmple, to fostering hate
s~ch , xenophobia, racism, and other fOn1~ of soci.a~ intolerance, the
reinvention of fonns of apartheid, even genOCIdal, pohucs :as an aspect of
the pursuit of 'common' good, and justificatory praCtices of mass inter-
national 'terrorism' often deploy to their own ends the actually existing
contemporary human rights regimes valorizing the human rights to free_
dom ofspeech and expression and association, conscience and rdigion, and
rdated transactional human freedoms. In terms of descriptive realism,
these movements present the reversal of already outlawed regimes of
domination as causes worthyofloyal espousal. SOllle movements, through
lhis fonn of'insurrectionary' politics4human rights, even prcsent them-
selves:as making the future of human rights more 'secure'. Epistemic
egalitarianism would counsel recognition of such SOCial movements as
human rights movements because analytically, 'there arc no "bad- and
"good" movements' but only 'symptoms of our SOCieties'.
What follows? As I read (and hopefully wrongly) Manuel Castells'
further insistence on bidding adieu to a 'predetermined directionality'
renders our common understanding of human rights movements as
social movements as merely the comingent necessities ofour times; the~r
attempts to advance human futures may not be defined in terms of Uni-
versal human rights of all human beings everywhere, if only because all
teleology stands bdied by 'history'. The passion for human right;>, an~ the
politicsJor human rights based upon it, must men remam a hlstoncally
transient fonn,41
Human rights activist communities may wish to assert otherwise. Some
may ~nt to say that the histories of human rights do, indee:rl' ~ny ~e
future signatures of 'pre-determined directionality'. Such directiOnality
stands manifest, for example, in the outlawry ofterritorial occupation and
subjugation (in yesteryear colonizing fonns), justifications of ch,aud sla
d
very ofhuman beings, foundations ofracist apartheid state forma.tlons, an
d"" " 1 . fi lor--clcn
overt forms ofpatriarchy that regard women as Isunctlve y III er . I
sub-human beings. What is more, human rights movements as SOCia
41 I am noc qUlle sure thaI Caslelb InICnded hiSICxt 10 be read thus In the (0111(:X1:
of hunun nghts but thiS emctgc:s as a strotlg imphouon or whal It says.
Human Rights M~ments and I'luman Rights Markets 215
movements engage glo~1 praxes in securing future Irreversibility ofthese
.and related forrl1s of constituting the ·human'. From tins perspective,
hunlJ.n rightS movements remain future-oriented and cannot take as axi-
omatiCthe notion that 'the only sense of history IS the Illstory we sense'
1~,I.ther, these emerge as historic endeavours at fashiOning human futures!
Students oflUllnan rights movements who may concede value-neutral
description, still impermissibly though, be inclined to dIStingUIsh between
'progressive' and 'regressive' social movements. They may IIIsist that while
both may be worthy subjects ofsocial scientific investigation, 'progressive'
human rights movements accentuate useful forms of'organlc' knowledge
that advance prospects ofhuman rights and fundamental freedoms. Avery
long lillie before me erudite discipline ofthe study of social movements
was born, human rights movements installed 'organic' knowledge.
Mohandas Gandhi, Nelson Mandela, Marrin Luther KingJr, the suffrag-
ette movement panicipams and leaders, the labours of the working class
movements, for example. prefigured future kJlowledgcs concerning hu-
man freedoms and fulfilmcnts. They subvened and transformed the
domlllant paradigms of transfonnative social movemellls from a strong
evaluative and ethical base.Any cOlUemporary celebration ofvalue-neutral
descn ptlve realism orphans the profound moral Iog..cs of human rights
~l1lents by forbidding. at the very threshold, me POSSibility ofdistinc-
tion between social movements cOlTlmitted to subversion ofcontemporary
buman rigllts from th~ that s«k to preserve these Nell for an uncertain
future.
, By the same toleen. the social theory of human rights may have con-
siderable difficulty with the perspective demanding that even the mani-
festly rights-denying o r rights-diminishing social or human rights
movements should escape moral evaluation pending social research, Such
movements turn me very power ofhuman rights rhetoric to name cen:a.in
Teglmes of human rights upside down! The power of human TIghts dis-
COUrse to name an order ofevil is used to name human rights as me very
order ofevil! A 'willing suspension ofcmical beliefs' (to adopt the fecund
phnse of the poet William Coleridge) deferring human rights action to
~U~t.1lt1ed social SCience research can have impacts 0 11 the power ofhuman
ngh~ movcmellts to name an evil and to create! public concern and
cap.1blllty to contaill or eliminate it.
udSocial theory of human rights, ofnecessity, has to find bases for ethical
J gt'lllent conccrningdlstinctions between 'good' and 'bad' social move-
'lknts' hawsoev 1..1 1 " "
, er COllteSUIJ e, Hlman ngilts movcments cannOt (to reu-
entc) take ' . 1
IS lh ' as axiOmatic t Ie notion that 'me only sense of history we: have
c history we: sense'. Ramer, 'progressive' human rigllts movements

120. 216 The Future of Human Rights
seek to provide a 'pre-detemlined directionality' in human social dcvel.
opment by articulating an ethic ofpower, whether in state, civil loOCiety Or
the market. They contest the nOtion that ceruin orders of human
tran5aCtionalilies constitute moral fr« zones.~2
Even so, clearly, outside the range ofthe limit snu:uions I have thus far
described, the characteriu tion of some hunun fights mOVements, as '~.
gr~ive' docs not quite withsund realist analysis. It IS nOt manifestly clear,
for aample, that the votaries of capital punishment, or the right to hfe
champions (who, for example, oppose abortion, emh.ana.'Ha, possibihties of
human cloning or stem cell rescaTch) or those who advocate equal rights
of man (movement for the rights of fathers or husbands), and those that
oppose 'same sex' marriages, t1fuSlorily engage in human. rights negation
or nihilism. It is a social fact that peoples of such persuasion arc daullIng
(as noted earlier) a hmtlatl riglll to itlterpret humatl rigllts 1I0mlS, still/dards, alld
tilt" va!ut!S. Human rights activism must then, of necessity, restrict the
plenitude of its categories that describe quintessentially 'progressive'
movements. I.)escriptive realism, all said and done, thus otTers a preCIOus
antidote 10 some contemporary fonns of human rights romanticism and
evangelism.
V From 'Movements' to 'MarketS'
E~r since Ronald Coasc's famous enunciation of 'transaction COSts', va-
rieties oflaw·and economic-movements have directed attention to rights
as factors ofproduction featuring alongside with land, Ia,,?ur,and C~PltaI.4~
More recently, the UNDP approaches toWards 'managmg g1o?"hzauo,!
ukcs account ofhuman rights in tenns ofa theoryofglobal pubhc ~s.
In an Important sense, these approaches direct attention to human rlgh~
to th(' transformation of 'movements' in the diction and logic of 'free
nurketplaces. .
Increasingly, and in mimetic relationship with high economiCtheory,
humal1 rights movements organize themselves in the image ofmar.kets that
produce, exchange, and service production/reproduction ofsymbohc goods.
In an illlportant sensc, these symbolic markets seck to overwrite, as It were,
. h h k · pose non_market
economiC markets; put anot er way, t ey see to 1111 I .
f . ' INTHS
constraints on economic .
:md al10cative forms 0 econOllllC rall0l1a I'r .
is, indeed, an extraordlllary venture, which I analyse in some detail III
42 D)v~ GauthIer (1986) 13, 83-112.
~ I h)vc rCVIewed thl~ elsewhere: sec, Upendra FWci (2003a).
44 Sec lngc lUul tI ... (2003).
HU/ll21l Rights Movements and 11uIll2n RightS Markets 217
Clupter 9. For the present, I remain illtereSlltd 111 the forms ofconversion
of human nghts movements tnto human nghts markets.
11te production-that IS, the maktngand die unplemenution-ofbuman
nghts as an ongoing enterprISe (both III the form of the toc:tual and
unplementational production). It remallls resource-mtenslve. It entails
costs ofhmnan nghts producuorV'reproduction mcludmg capiul, labour,
.lnd mfornutlon. COSts considerations, for eX::llnple, JUsnty the Y.lried
constructions of the hierarchies of human rights production and imple.
mentation (those that distingUIsh here- and·nowenforceable human rights
MId those: dcfern:d to an uncertain future.) Finitely available resources
dictate the COSts of distribution of production and realization of human
rights. in various languages of feasible 'balancing', or optimal produC[
mixes, and 'fixes', ofhuman rights 'hard' and 'soft' human rights regimes.
The former require a high order of allocation of resources in ways that
the laner do not. However, lhe eCOllomic aspects ofhuman rights move-
ment production/implemelltation remain little understood.
Competition for scarce resources for the making and implementation
of human righ ts severely constrain their fmures. Human rights groups
compete illf('r ~ to capture or mobilize scarce or limited resources; NGOs
of vanous kinds and at various levels thus emerge as «onomic actors
JeCking to mobilize avalbble resourCes around the adopted human rights
ap;endum. This results in a scramble for resources, which d~ not alW2YS
PfO'"lde a level plaYing field; some human rights actiViSt agendum finds no
steady investors as so poignantly illustrated by the struggles for indigenous
people's human rights or lh~ ofpeople with di~bilitles. Some markets
for human ~glHS--that is, u-ansactional resource regimes as well as regimes
ofInformauon-rcmain historically well--csubhshed compared to others;
for eumple, the Beijtng conference for women's rights as human rights
that fostered 'gender mainstreaming' markets for research and action
networks has few parallels for the international investment in human rights
~t It, cO~lcretized and regenerated. Likewise, markets for 'good gover-
nanCe onentcd human rights production thrive more readily than those
~
seek t? pr~tect hUIl1~n rights ofthe .suteless persons and refugees, or
h' entailed III comballllg sex-tramclcing, or evell the human rights of
C~dren now Irrevocably situated witlun the Internet reproduction of
P Ihc global markets. More investment flows, to take 2nother example
~n markets for human rights for post-socialist 'transitional societies' tha~
~t--cOI1f1icI' ones like former Yugoslavia, Mghauisuu, or Iraq.
rncn~~dlllgagt"ncics (whether national, rt:gJonal or global, private, govern.
<itt- , ' Intergovernmenul or international) are economic actors that
15lvely allocate resources for human rights atUinment. Some NGOs

121. 218 The Future or Human Rights
that tap these markets also Sttk to generate n-sources :lddiuon:llly throUgh
priv;1tc IndlVidu:ll or citizen contributions. HUllun rights markets thus
comprise :I senes of tr.Ulsactions across a range of economic actors that
pursue competition withm a fnmcwork ofcollaboration. Tim sigmfies:lt
least that both typeS of economic actors .seek to shape the mutual Com-
peting agenda. or pursue the sum total ofhuman rights goods and services
thus produced. circulated, and 'consumed'. But this process of social
production raises many problems which actors in human rights markets
have to necessarily negoti:ltc, giving rise, in tum, to what Illay be named
as hUlmn rights market ntionality.
Across time and place, there :Irises the fonnidable question ofthe social
reproduction ofhuman rights market actors. Some human rights markets
remain threatened with extinction, as, for example, those directed at the
preserv:ltlon of the innumerable indigenous peoples/groups that :lfe f:lst
losing their capacity for social reproduction. In contraSt, some other human
rights markets, as :llready noted, burgeon-and even implode-with re-
sources :lnd nows of investment. These decree the patterns of the ftllllre
surviV3l of the :IImost already lost hum:ln rights C:luses and agend:l.
Non-governmental economic :lctors, and ab"Cncies that fund--or re-
source 111 other allied manner-human rights NGOs (c:lll these 'inves-
tors') relluin embedded In cultural traditions of philanthropy. These
:Ire socu.lly reproduced (reasons of space :lnd competence forbid a full
exploration here) more readily in the North rather th:ln the South. The
now of South-South resources for promotion and protecoon of human
rights rem:lins minuscul~ comp:lred with the flow of Nonh-South re-
sourccs.
The issue ofsocial reproduction ofinvcstors is important for the future
ofhuman rights for:lt least twO rellSOllS. First, in terms of the net now of
influence, the combined :lnd uneven distribution of investors cre:ltes
difficult, at times, intractable problems for the South recipients in terms
ofaUtonomy, account:lbility, and national legitimacy: South governments
find it rel:ltiveiy e:lSY to come down hard on fragile NGOs in the title of
regul:ltion of foreign funding, even when their own national budgets
remain he:lVlly dependent on this very source. Second, most North Inves-
tors rem:lin ti~d to the North corporate philanthropy. ThiS feature
often sets the bounds of the do-able in so far as one strategic obJcctlve of
the NGO movement is to comh:lt human wrongs perpetuated and per-
petrated by global c:lpiul. The invisible hand does not qui£(= rClgn. But It
does rule.
Moreover the forms of market rationality st:lnd often enough repro--
duced :It the ~ob:lllevds, especially of the United N:ltlons system. Since
Human Rights Movements and Iluman Rights Markr:ts 219
the 1980s, the production of imernational :lgend:l for human rights is
creasillgly muked by a dominant concern to nuke the 'dvil society' a
I~ual partner,whether through the idiom of'sustalnable development'.
~glolnl govern:lnce', or 'good governance'. The vanous UllIted Nations
wei:ll summits (at Copenhagen on Soci:ll Development, at BelJlIlg on
bffi('n's' Rights as Iluman Rights, :It C:llro on Population, Ist:lnbul on
Hablt:lt, :It Rome on the Right to Food, as well as the UNOP initiuive
at 'mainstreaming' human rights) stress the notion thu corporations and
other economic entities ought to remain equal p:lrtners to human rights
IUlization. Given the exigencies of the Umted N:ltions budget, the call
to corporations, especially global corporations, to assume this role is
understandable. At the same time, this m:lrks a process of what I have
elsewhere named as the privolizotum oftile Uni,ed Natiolls. This tendency
is likely to grow, not diminish in the first h:llfof the twcmy-first century.
To a heavy extent, then, the NGO movement, too, remains exposed to
the new grammar of market rationality. The very production of human
rights goods and services now ent:lils new, often onerous, patterns of
social cooperation (working together) between the efficient causes of
human :lnd hllm:lll rights viol:ltion and progressive social human rights
movements th:lt still must, persuade the vioinors, 10 cost-efficient
ways. to reduce the nllturt and scope of viol:llioll. In the process, some
degree ofcommo<hficuion ofhum:In suffering and human rights becomes
tnductable.
Human rights markets Ihen consist, overall. through myriad networks
oftr.lll5actions that serve the contingent :lnd long-term mterests ofinves-
Iors, producers, and consumers. These mnsactions rely upon the aV3il-
ability, which they, in tum, .seek to rcinfor«, of symbolic capital45 in the
form of relatively successful patterns of entrepreneurship in the making
~Intcm:ltlonal human rights norms, standards, doctrines, and ofsuppon-
I"C organizational networks, even human rights cartels.
_ Smce the grids ofpowerlknowledge relmin heavily globalized, human
nghts markets also create :lnd reinforce global networks/cartels e:lch of
wh h . '
IC mulnply :lnd seck to innuence the conduct of those actors who
viOl:lte human rights standards :lnd norms :lnd the behaviour ofthose who
articulate resistance to sllch violation. M:lrket rationality requires the
pr;tuctlon and re-production ofall tOO often donor induced specific skills
an competences,which in turn enable negotilltion of tolerably :lcceptable
OUtc~mes betwc~n and among the viobtors :lnd the viol:lted such that
mar t f:lliures do not erode the legitimacy of the network of overall
.,
P1c:rrc Bourdleu (1993) 74-H2.

122. 220 The Futu~ of Human Rights
transactions. Iluman rights nu.rkets. thus, begm to assume and share the
salicnt fcatUres ofglobal st'rvi(t' judustria.
Of course. the use: of terms like 'market' and 'collumxhficauoll' may
cause: dccp offcnce to human rights practitioners. And the analogy with
markets may turn out, on closer analysis, not to be tOO ~trong. Further,
we ought to distinguish ~tw«n discourse of social movement and the
"'social processe:s" with which they are associated: for example, globahza.
rion, infonnationalization, the crisis of reprcsentational democracy, and
the dominance of symbolic politics in the space of media'.46 From this
standpoim (and quite rightly so) 'movements' stand analytically diStill.
guishable from 'markets'. A reductionist analysis, which disregards thc
relative autonomy of movemcnts from markets, docs not advance clarity
or conviction. At the same time, the idiom of the market bnngs more
sharply to view the complexity and conmdiction of human nghts move·
ments, perhaps even more vividly than the alternative symbols of eco-
nomic coordination such as 'netwOrks' or 'associational governance'.
While these images, no doubt, cnhance our understanding of social
cooperation beyond the metaphor that 'market' may ever bring home to
us there is somc merIt in resorullg at lcast to the notioll of a 'qllasi-
market'.47
VI. The Investor and Consumer
Markets in Human Rights
Iluman rights movements at all levels (global, regtonal, supranational,
national and local) tend to become capital-intensive. The praxis of pro-
tecting and promoting human rightS, as already noted, entails entrcpre*
ncurship in raising material resources, including funding, from a whole
variety of governmental, intergovernmental, imernational, and philan*
thropic sources. These: sources are organizcd in terms of management
imperatives, both of line-management and upward accountability. Any
human rights NGO or NGI (non-governmental individual) currently
involved ill programmes for the celebration of the golden jubilee of the
UDHR surely knows this! Further. protection and promotion ofhullian
rights requircs emcrprisc that entails acccss to organized networks of
support. consumcr loyalty, and effiClcnt internal management. manage·
ment of mass media and pubhc relations, and cardul craftlllw'recn,(ung
of the mandates, missions, and mcthods. A full analysis ofthesc v..nablcs
46 Castell~ (1996) 7().
47 Gary S. 8e<:kcr (1964. 1981).
Hunull RIghts MOIremems and Iluman Rights M3rkc:ts 221
will UIIC0I1SCIOIUbly burden this work. However, it needs to be acknowl-
edgctl th..t NGOs competc jlll«it for scarcc resources; SO do the funding
'FnClcs. T IllS scramble for resources gencrates complex coli:lborauve and
contllcted patterns III which both the NGOs and the dOllors collaborallvtly
produce forms of IIlvestor rationality. This form of rauonah:r may be
grnerally described as seeking tangible returns on Investment. It has to
negou..te the Scylla of mobilization of support for govemment;al and
corporate conscience money and community contributions and the
CharybdiS of their legitimation through forms of host societies
and govcrnmcntal regulation. This negotiation, in turn, requires marshal-
Ung. 0 11 both sides, of high entrepreneurial talent suffused with a whole
range of negotiating endowments. Understand..bly, invotor rationality
m human rights markets is constantly exposed to a cnsls of nervollS
ntioIulity.
[)onor 'rationality' re-mains crisis ridden in tenns of the dialectics of
short-term investment that somehow must also servc its long-term expe_
dient ~Is. Recipicnt rationality likewise: needs to combme/recombine
~nsoft'xistcntial functiollal autonomy with the logic ofthe imperative
oJ continual IIlve~unel1l. Both the inputs and OutpUts III the portfolio
I:IInlment 111 hUllIan rights protection and promotion remain indetcrmi-
Date; ncvertheless, these havc to be Icdgered, packaged, sold. and pur-
C'hasnI. on the most 'prooucuve' tcnns.
!he crisis of nervous rationality stands replicated in consumer ratio-
DIlity. Hum..n rights NGOs, especially in the Third World, have to
OCSOtute the dilemmas of legitimacy and autonomy. The cver so precari-
ous Icganuacy of human .rights networks seems forever threatened by
aUqphons offofelgn funding orchestrated both by national governments
and by nval NGO formations, which want to do better than their rivals
~rc cxists t . . .
_' 00, competition to capture the bencficiarv ....oups who
rneuur I ' r ., ~
• e egltlmacy 0 hunu.n rights netwOrks not ill terms ofany 'l"'::1r<>n
cult or mess" . I" b . --0·
. lalllC ratlona Ity ut In terms of herc-and-now accomplisl1-
rnm~ or results.
_ IUdthe same time, NGOs seck a free enterprise market relativc to the
~h ;l of their sc ' I "
<kfi ' ml-autonomous lUman fights concerns. They seck to
!he their global . rod . .
-....._ servICe p uctlon markets for nghts promotion and
r'""-'Ctlon !lot mer I . r 1 1
~ . e y III terms 0 w la[ llc m..rkcts of human nghts
........t.~lelll WIll bear at ally gIVen moment but also III tcmu of how tJlese:
---lICbmayhere ed f
r.a...._ -onentat III ternu 0 consumcr-power.Thc bal"U:l.lIling
~ ltlC5 and t . f . . ~
s f3tegaes, 0 COurse:, vary, dependmg on variations in the
.~, D~v'd GlilLes (1996); Kal<lnn.a TOlll3scvslo (1997).

123. 222 The Future of I lunt:.J.n Rights
typf=S ofNGOS....dientele. This is not a theme that I can pursue III any detail
here.·9
VII. Techniques ofCommodification of Human Suffering
The raw material for Investment and consumer human rights markets is
provided by the acts ofglobal rep~lltation ofthe here....and-now human
misery and suffering. Howsoever morally deplonble, it is a social fact that
the ovenll human capacity to develop a feU
owship of humall suffermg is
indeed awesomely limited. It is .a s.aliellt, and s.addening, f.act about con-
temporary human sin.ation that individual and associational life-projects
ofm.any who pr.aetice human rights activism are rarely disturbed, let alone
even displaced, by the reality ofhuman suffering or the spectacle ofhuman
suffering and hum.an suffering .as a spectacle. In such a milieu, human
rights markets, no matter whether investor or consumer driven, stand
confronted with the problem of compassion fatigue. This is a 11101'21
problem, to be sure; but it is also.a material problem. Ofnecessity, markets
for human rights concentrate on representation ofhuman/soci.aIsuffenng
.9 11(W.'tycr. my qu.~ner ttntury-plus engagement WIth hunun ngtns xltv"m In
Indl~, ~"d dscwhere, 5Uggnts the folloWUlg. First. f1edglmg NCOs th~t c~n only nnltt;
very modcst ~uronomy demands present alkrn~te, lind lit tllnes effeclt~, marketS (lit
mve5Utxnf; mdeed, IlQt merely the (undmg agenClCS go shoppmg, as It "''ere. for $och
NGOs bUt also labour to produce them! Second. nation.lll netwOrks of NGOs ~In
to oomnund grt~ter lIUtonomy-cnluncmg mfluence t}un others. Tlurd. ex h renev...1
of tt'SOurc::mg produccs opponumucs for slgnlfKant bargammg. cspcculty when the
d ient NGO tus dth..'tJed some Impn:sslVe results. Founh. shifts in lI1VC5tmClIt poliCY
occumng lit gIot».l CItlCS hexlqlUrtcr5 of interrutlOlul donor lIg'trKlCS orten S1(;Jllfi-
candy euh,uloCe scope for NCO bargammg. ThC!iC seasmul shifts m fundmg prtontttS
~Jmost self-sdeet eligible NCO constituencies. Post-United Natlorn Bclmg Confer-
ence led, (or e:omple. to massive shift of resourccs to progr:unmcs ofwomen'~ nghts
lIS human nghts, thus erubhng women's movements greater autonomy barg;ull.mg
lIC«:S5. Fifth. bargaUllng strateglcs play out differently dtpending on 'ownership of
NGOs; thus CIVil servants who instituk devcJopmelit NGOs upon supcnnnu,lUOU
comnund gn:,lter influence III te-mls ofautonomous ~gello:b-senmg. So do NGOs who
may m,lrstul ullpreSSlVt names of el<Ccutlve or advisory commmee membershiP,
Fillllily (withom belllg exhaustive) the play of pov.'t'r occurs differently Ifl rcbuon t~
the United Nations and other supr.uutional fundmg lIgenclcs, as well as rrglonll an
international financilll mstitutlon!. d
All thi' mly, putly, explain the pupulous presence and panlelp,luon by the best an
thc bnghtcst ofSouth NCe>s '1.IId NG ls in thiS dec:.tdc and,l hal( ofthe United N~uo;;;
SUlllllllts: VIClITla, e,lm). Copenhagen. lklmg. and Isunhul. Uy their dctc
rnUII
)
partlelp,lUO'II at these (,llld the mcvH~bly rnaltdlted plus-51plus-IO rcvleW IlleCUll~
they seck to reonent the gklbal mve5tmellt markets In human nghts. The Intcres~()f
cJVII-'Crvants (lutlOO,l1and gIoWl) mtemlnh, In thiS proass. With those of die N
lind the NGIs.
Humlln Rights Movem('nts lmd Jlumln Rights Markets 223
ifonly because when compassion dries out, the ~sources for the alleviation
f human suff(,ring through human rights l.angu.ages stand depleted.
o This imersection regasters the n«esslty for human nghts entrepreneurs
commodify human suffering. to p.acla.ge and sell It In tenus of what
:"'rkets WlII bc=ar. Jluman rights violations need prolific, and constant,
commodification ofhuman suffering. Human suffermg has further to be
pxbgcd in w:ays which the global mass media markets will find profitable
w ben over:t.ll.!iO
But. by definition, the mass me(ha can commodify hum,m suffering
only on a dr.amatic and contingent basis. Injustice and human violations
is headline news only as the hard porn ofpower .and its voyeuristic potential
may pennit the r('iter.ative packaging ofviolations which titillate and scan-
dalize for the momem .at le.ast, the dilettante sensibilities ofthe global zing
classes. The mass media also plays a creationist role in that they...
man imporunt SCl1o;e 'crute' a disastc-r when th(,y decide 10 recognize it...they give
IRnitutional endorsement or attestlUon to but events wluch otherwise will have
a n:ality restricted to a locll clrcl(' of VlCtIIllS.
51
Such instltution.alendorsement poses intr.aCtable issues for the marketization
oI'human rights. Giv('1l the world...,';de patterns of the mass media own-
cnhip,and th(' assiduously cultivated consumer cultures ofinfo-entertain-
~nt, the key players in human rights markets n~ to manipulate the
media into projection oflIuthcmic representations of the suffering of the
vioutcd They need to nurshal th(' power to mould the m.ass media,
Wlthom luving~ccess to ~sourccs th~t the netlNOrks ofeconomic/political
~r so cver-rcldily comnund, Into exemplary roles ofcommunicators
of'human solidarity. So far, this endeavour has rested in the commodification
of human suffering, exploiting me markets for instant news and views.
. In agerminal monograph, Stanley Cohen has brought home the daunt-
mg tasks entailed in the commodifiCltion of human suffering. Cohen
~ngs to our attention an entire catalogue of perpetr.ator-based tech-
ruqu('s of denial of human violation and the variety of responses th.at go
und(,r the banner of 'bystanderism', whether intemal or extemal.!>2 Th('
~
Sareely lIek.nowlcdg«! 111 contcmporary diSCOUrse, we all O'NC (he nonon of
~;;:;Iodlfiation ofhum~ll/soei~1 suffering to Theodore /domo and Max HorkhCllller
~t); lite. fu"her, Enc L. Knbuer (1998).
Sl Jon~thln lkntlu ll (1995) at 90.
libtb ~ese COnSM In: (a) denial or II1JUry; (b) denial of....iCIII1IS: (c) demal of rcspon-
'-_.. ty. (d) rondellln~tJon of the condemners and (e) appcal lo higher loyalty. These
~tnt.Z:;Ulon· '--h fi I .
~ ... _ ... IlIques arc Im1 y III pJ.lCe and vlol~tol"5 only pby vanations of thiS
. ~ Cohen (1995).

124. 224 The Future of Itum.an Rights
commodific.:l.tion of human suffering has, as its task (according to Cohen
with whom I agree:) the conversion of the 'politlcs of deillal' Into that of
the 'politics of acknowledgment', which marks the very Site!> ofconfron_
ution between the politia for, and of. human rights.
The various techniques of the marketizing of human suffering under
the mle of human nghts succeed or fail according to the sundpolill one
chooses to privile~. Efficient market rationality perhaps dictates the
logic oftxCw. The more human rights producers and consumers succeed
in diffusing hOrTor storie' the better it is believed they sustain, on the
whole, global hum.an rights cultures. The more they SllCCeed In establish_
ingaccountability institutions (truth commissions, human rights commis_
sions, COlllmissions for human rights for women, indigenous pcoples,
children, the urban and rural impoverished and people with disability) the
better commerce there is. Giving visibility and voice to human suffering
is among the prime functions ofhurnan rights service markets. However,
this is :1.11 enterprise that must overcome compassion fatigue53
and overall
desensitization to human misery.
'When the human rights m.arkets arc bullish, the logic of excess does
scent to provide the opumal resources for disadvantaged, dispos!oessed and
deprived human conlllluniues. But in situations of human nghts nurkt't
recession, now typified by contemporary econonuc globalization, !oeriOllS
issues arise concermng dle mys 111 which human suffering is or should
be merchandized. And when those who suITer begin tocounter these: wa}'l>,
we witness crises III human rights market management.
Human rights markets arc crowded with an asso~ment of a.ctors,
.agencies, and agenda. But they seem united in their operational techmques.
A standard technique is ofinvestigative reportage: seven.l leadmg ?rgam:
zations specialize in services providing human rights 'watch' and action
alerts. Rel.atro market techniques target-through lobbying offiCial or
popular opinion- human rights violations, events, or cataStrophes. Atlurd
technique is that of cyberspace solidarity, the spectacular uses of lOstant
communication netwOrb across the world. Manuel Castells has recenlly
provided stunning examples of how cyber-technologies have mad7a.dr1r
madc dilTerence in networking of solidarities; but as his anal~l!> I(SCI
suggests, these: solidarities may work for human rights advancement (as
IY" TillS en-
l'rofessor hen also offe" a typology of bysander jUSSlVlty or elleCt. L_
b bl d 'y wllh I"..
semble conslsu of; lal dlffuSH"ln of responSibility; [ jma I Ity 10 I ent! _I " II
" 1 IC 11I"1b'llfl
VlCum; lei inability of conceIVing an effcctlve 1IltervenUQII. .xC ~ .,0 (1 .
ana~ls of Cohcn (1995).
Cohen (1995) al89-116.
Human Righu Movements and Human Rlghu Markets 225
. me ase of the Zapatista) or, more importantly, against the n.ascent
~urnan nghb cultures (as in ~le case of the American 11lIhtia orJapanese
Aum Shlllrtkyo movements). Apparently, the days ofdie pre-cybc....pace
creation of mass ntovement sohdarlty are number«! or over, If om: I!> to
~hevt that the cyberspace markets for human rights provide die only or
bot creative SOCial spaeC$. In any case, once we recognize the danger of
Wistorical cyberspace ronunticism. It remains a fact th:n cyberspace offers
a w.cful nurkr:ting tci:hnique. A fourth technique consists m converting
~ reportage ofviolation in the idiom and grammar ofjudicial actlvism.
An ~mplary arena stands provided by the invention of soci.al action
bngarion, pursuant to which Indian appellate courts, including the Su-
preme Court of India, have been converted from the ideologic.al and
repressive apparamses ofthe state and global capital intO.an institutional-
ized movement for the protection and promotion ofhurnan rights.55 The
resonance of this movement extends to many a Third World society.
A fifth technique is to sustain the more conventional networks of
IObdarity of which tile facilitation of IIlter-NCO dialogue is a principal
.ptet. Usually accomplished through conferences, colloquia. seminars,
...facilitation ofindividual visitS by Victims or their ncxt ofkin, in n:::ct'nt
taDI:s, extended to the holdmgofheanngslll5tenings ofvicum groups. This
dcYitt seeks to bring 'unmediated' the voices and texts of suffering to
.apathcuc observers .across the world. The various Ulllted Nations sum-
.... provided aspecucularemergence ofthis techmque but tllere arc more
IllMituttonalized ammgements as wt:1I. All these bring thl' raw materi.al of
baman suffering for further processlIlg and packaging in the media and
Idurd hum;m rights m.arkcts,
.A sIXth technique is rather specialized, comprising various acts of lob-
bpiug ofthe treaty bodies ofthe United Nations. This fonn ofm.arkcting
bunwt nghts specializes in making legislative or policy mputs in the nonn
creation process, with NGO entrepreneurs assuming the roles ofquasi-
~Uonal civilserv.allts and quasi-diplom.ats for human rights although
_ISthe thinkingand conduct ofthedtjurr International dlplom.ats and civil
servants that they seek to in£1uenee. By tillS specialized intervention, this
~I[y ~ns the risks of cooptation and alienation from the community
i e Violated, especially when the NCO actiVity becomes the: mirror-
':::~ln~crg~Vem?lellt polity.Thisson ofimervclltion does offer, when
burna .Wlth mtegTlty, substanual gains for the progressive creation of
n nghts norms,
"
,." 5c<:, Castclls (1996) at 68-109.
5c<:, Upendra Ilvt!, 1988. 2000, SatyaranJali P. SatlM:.

125. 226 The FuIU~ of Human RightS
Asc=venth :
md, for the present purposes, final technique is that ofglobal
direct action against imminent or actual violation of human rights. Apart
from the spectacular CX2mpleofGr~npeace. this techniqlle ISnot consid.
erW sustainable by the leading global and regional NGOs. Nor to be
ignored, III tillS context. are recourses to direct action by the Argt-mmean
mothers against "disappearances' or of the British women's 1110Velllcnts
(Grcenham Colllmons) ag:linst the siteS of ciVlhan or Illlhtary nuclear
opC:rations. The ami·globahz.auon or global justice movements remain
ambivalentconcemingjustificlion and modalityofdirect :Iction. At theend
ofthe day, however, the dominant market cost-benefit rationality does not
legitimize such recourse todirectaction in the dramamrgyofhuman rights.
The point of this illustrative listing is to suggeSt the variety and com.
plexity of human rights market initiatives, which entail high quotients of
1l1an:l~rial and entrepreneurial talent and the ability to boost market or
investor confidence in human righ ts ventures, as well as to withstand the
'bust and boom' cycles of market reproduction of human rights. It is also
partly my intention (that I further pursue in Chapter 8) to suggest th:1.t the
'science' ofnsk-analysis and risk-management is as relevant to the markets
ofpromotion and protection of human rights as it is to those ofperpetra-
tion of Vlolallon.
It is true that as human sufTenng Intensifies, markets for human fightS
also tend to grow. BlIt to say this does not entail any ethic;al Judgement
concermng commochfication of human suffering. The reader may feci
justified In t~ating some anguished sub-textS in thiS chapter as W3rranung
a wholesale moral critique of human rights markets. I lo~r, the futll~
of human rights praxis is, .as alW3YS, linked with the success or failure of
human rights missions with their latent or patent cpability to scandalize
the conscience ofhumanlcind. The modes ofscandalization will, ofcourse,
remain contested sites, among the communities of the viobtors and ~
violated.The task for those who find commodification ofhuman suffertng
unconscionable lies in contestation ofways ofthis accomplishment, and not
in lamenting the global fact ofthe very existence ofhum.an rights markets.
VIII. T he Problems of Market Regulation
State regulation of human rights markets is fraught with C01I1PIc"itieS
r
When may it be said to be invasive of human rights? How far should, I
. f ' of the
at all, stateS regulate thc very exlstcnce or modes 0 operation. I
NGOs? Should the certificatory regime of accreditation of NCOs In t I.e
United Nations system be liberal or conservative? How and by whOlll
iS
tllis process to be detennined?
H Ull1lln Rights M~men[S and Hunun RIghts Markets 227
RegUbtion ofhuman rights movements often posesdifferem problems
than the regulation of human fights markets. When social and human
ntthlS movements do not aspire [Q become fully-fledgc=d SOCial orgamza-
aons, they escape altogether the conventional state regulatory reach. When
~ go m nstLltional, conventlon.al models of State regulatlon remam
mapt. ProteSt movements ofCOUr5C remain subject to the rOUlIllised gov_
enunce forms captured in tennsofminimalist 'law and order' compliance.
When such movements acquire the visage: of alternate legahty, and even
alternate govemmentality, both apperceived as threatening state or regime
secunty, systemic repression begins 10 define the conceptions of 'good
governance' that deV3tCS collective human security over human rights
orinued fonns ofstate conduct. It is unnecessary to dutter this text with
specific examples of suchlike occurrences, our present concern being
'regulation' as at least normatively distinct from 'repression.' Nor may we
pursue here (beyond what has been already said in C hapter 3) the quest
tOr advantages that guide conscious choices that impel movements to
lI$ume fonns of social organization.
These choices remain formatted by a number of'ul11brella' legislations
dwconstltute and govern associational activities everywhere. Some typical
....bve fonnats h.ave now become ncar- Universal. State recognition,
IIIppOrt. regulation, and control occur through the proviSion of forms th.at
1egaamate' associallom.l activities must chose from . These are: registered
~I($, cooperative societies, charitable foundatlons and trusts trade
Imkln!. firms and companies. On the surface, the law and regulatidn here
~ presented as facilitating choice for 'non-govemmcntal'/civilsociety
actIOn and I[ remains generally true that NGOs chose one or the other
bm, ;although my research does not extend to understanding why NGOs
PftiC'r some fannats ofassocutional actiVity over others. For CXllllple it
.- .
easy to understand why very few South NGOs form themcl.seves
• companies or pannership, even propnetary, finns.
. BUI each associational fonn, while conforming WIth the 'system' also
oawl •
tancouslyempowers and enables state bureaucracy (and police power)
~ an O lympic obstacle course for the NGOs, evCIl III their faun-
al moments, such as the very naming of an associational activity.56
~
(Iop~us. when S. Da.sgupa and Isought to re8JMer an aSMClauon a iled the PIDIT
~. h$t!tutc III Development and lh unmg) 111 1975-thc perIod of lll1crnal
~
ncy where all CIVil Tlghu wcre suspended, the Rqpstrar of SocIC!I" l!Iiually
~ to the name on the ~PCCIOUS ground that 'dL"Wlopmcl1l' and 'traming' con-
S. a Ionan cnunen! sphere ofsUle actIOn. not perml5Slhk to an NGOI Sex-workcrs
.. the Rtlthc III Indta wert" delllcd assocuOollat nghts as trade 111ll011Son the ground
I't' <'X1stcd no 'cmploycr-cmployce' relationshIp!

126. 228 The Future of I-Ium:m Rights
The patterns of admimstr.uivc surveillance vary wuh COilch associ;?Ollorul
fonn. But a common thrcOild runs through 0111 these: subjection to slone
recognition and rcgulOiltlon is the cost that social, and human rights
movements, must incur to exist and operate withll1 zones ofdifferentially
constituted legalities. T hose who chose to operate hmn:Ul rtghts
markets all to eagerly embrace these entrepreneurial crn:;ts. These: lI1c1ude:
appropriate forms of legal instrumelll20hties of registration With admmis_
trativc bureaus, conformity with requirements of II1ternal govenunce
including annual audit of accounts, submission to dIsciplinary ~rs
of 'roving' enquiries into resource-raising and management under the
title ofthe 'public Interest, and monitoring over 'unlawful activities, more
often than not under the exigent sway of the interests of a governance
regtme.
In particular, the fecund phrase 'unlawful actl1l1Ues' expo:.es the full
range ofstate regulatory and prosecutorial (often persew/oriaf) powers. This
combination of powers inveighed somewhat rmhlessly during the Cold
War and In both the supc=rpowcr regions and is now again m full play III
the new fonnsofthe two 'terror' wars- the warof, and on, 'te-rror'.57 Outside
these formative conteXtS of 'global civil wars',SII this quotidian regune of
state regulation hinges on four axes. First. human rights markets, typically
the N.GOs, should enga~ III 'non-profit' activmes. Second, foreign/over-
seas collaboratIOn and funding must n=main subject to prior state autho-
rization. Third, and by the same: token, foreign foundatlonslagencies must
remain accountable to a strict regime of governl11ental oversight and
control. Fourth. NCO entn=prcncurs and agencies may not engage III
'political' activities.
Each of these: requirements/entailments furnishes siteS of governance
as wdl as of resistance:. The requirement ofnon~llgagement with profit
making activities remains problematic in so far as it may eXlCnd to what
Pierre Bourdieu named as 'symbolic opital.' Put another way, hum:m
rights markets also u"2ode political power, leverage, and 1Il0uence, not c.s.ly
amenable to the regimes of non-repressive regulatiOlvprohibUl.on. The
second requirement blithc:ly ignores the power of both transnanonal ad-
e . . g, cl><
vocacy nerworks and ofthe foundations supported, and o[ten sc:rvlCIll
governmental ends, or those of the strategic industries th:l! ~hapc th~~
ends of the North societies, T he third re:quirement obViously plots lC
grapil ofasymmetrical power relations between the donor agenCies (all t~
often legitimated by the now heavily privatized United Nations systelll
~1 Sec me nUlCnll, C:!ltd In IWa (2005).
sa 5«. Agamtxn (2005) J.
Iluman Rights M~me:nts and Human RIghtS Maru.s 229
and the fragile, and even combustible, South soverc-igntles. The fourth
entailment remains roughly hewn if only bcOllse 'polttlCS' rC!ruIllS a
contested category always and everywhere!
More rominc:ly, in the 'democratic' South, state regulation assumes the
form of 1Ilsistence that the requirement that NGOs Illay not engage 111
'political' action. This mystifying 'necessity' produces regtme styles of
human rights movements and market regulation signify a dmx:t product
of patterns of 'mediocre Iiberahsm' (to evoke RanaJit Guha's favourite
phrase characterizing postcOloniailndWJ historiography.) The postcolonial,
'overdeveloped' state apparatus revels in tormenting NGOs for indulging
In 'political' activity, as If mobilization of mass or popular action can
C'Vt'r be tlpo/itiltl/! Overall, and in complete plain words, NCOs remain
more accounuble to South governments than these governments them-
selves may ever fully n=main accounuble to the electorate! A simple,
ytt powerful, message thus emanating from the fields of resistance
conSntuted bodl by human rights movements, and markets, continually
remgages the very constitution of 'politio.' The legtslatlvely installed
drfinitions of that which constitute 'politics' also, by the same token,
c:orntltute a fie:ld of reSI~tance concerning the legmmacy of the right
110 assocIate and organize under the historic conJullctun=s where particu-
larly constitutional emergency rule or constitutional dlcutOrship procla-
mations often become a defilUngcharacteristic ofnational 'Illtegntion' and
'development,,59
Then,: are, however, no ready at hand ways to descrtbe the regimes of
~latory oversight and controls, especially a.cross the 'democratic' and
"iUI~ral'.South regimes. In single party 'democracies (so varied as Uganda,
Cuba, Vietnam, North Korea, and China, for example) state regulation
ohm enough assumes a visage of prohibition of both human rights
~ments and markets. The regulatory reach here extends beyond the
~~, as conventionally understood, to 'social organizations' as such that
reaten the security of the regime. The prohibitory regtmes arc cruelly
real enough;at the same time, the lenth Wonder ofthe World (as prese-ntly
con~Ututed) conSIsts in the extraordinary resilience of human rights
ftlOvement!Vmarkets.
•
~IoA.t th(' l('vel of lugh theory. 1m: ntlOnale of COnSt1!ullonal dICtatorship was
COrbo pet! VI~ Ihe d. IlIIellOIl berw«:Il' eOlllllllSS;?orlai dletltorsillp' (~form [n which the
dan.~~II~", IS iuspc:ndcd III order !O ~llliUTC Its mol"(: assured fulUrt') and 'JOVcTClgn
....,., f, p (a form III which conditions arc CTCltcd, outside: th(' ('xuung fnme.
dnocnor the IlIJpos[UOO of new corutnuuon altogt'ther.) GlOflPO Agamlx-n (2005)
Id.rultt.~n ('lItirc monograph to a ('nuqu(' of ttllS dlstmcoon as fonnuul(:d by Carl

127. 230 The futUre of Human Rights
To take but just one e;ample, in the People's Republic ofChina, where
the Ministry ofC ivilAffairs, records the number ofthe officially registered
NGOs as 283.000, the 'real' number is about three Imllion, according to
the investigations carned out by Tsinghua University's NCO Re~arch
Center. Tills poses the problem ofreahstic regulation ofthe NCO markcl/
movement' while at the same time providing a kind of obituary for the
SUtc regulatory reach. The current 1998 management regulation on
registTation of SOCial organizations. a category to which NGOs belong,
prescribes a 'dual-management system' that 'required NGOs to
also ... register with a relevant industry watchdog'; any failure to do this,
resulted in the lack of official registTation. inviting somewhat nuhless
st.ate/parry repression. But, as it turned. out, the very immensity of
NGO enterprises led to a situation where there existed no corresponding
bureau or ministry! The regulatory/repressive regimes arc here mixed,
even mixed-up!
For example. 'founded in 1995, Global Village of Beijing has not been
officially registered as a full-fledged NGO because it could nOt find
an industry watchdog with which it could be registered'. Even so, 'such
an identity meant that the Village couldn't get the 'preferential tax
tre.tment [rom the government.' The Village, was finally regtstered
under the !Ume of. 'school, as • pnv,ue non-cntcrpri~ entity 111 2004,
.n Identity still lacking the full sums of an NCO In that It cannot
exp:l.1ld Its membership.' Wlllie the calls [or the .bolltion of the 'dual
membership system' are unlikely to be heeded in any amendatory rqp~ne,
now under way, the smws III the wind suggeSt at least the followmg.
according to the draft 2005 revision. First, the 'dev~lopment.of NGOs IS
to be incorporated into the country's overall SOCial planmng. Second,
'prefercnti.1 policies such as taxation, favourable government purchaslllg
policy and others will be extended. to NGOs.' Third, the 'SignS are
emerging' for greater autonomy for grass-roots NGOs; perhaps, on
the way out is the requirement that 'regional NGOs must have. 30,000
yuan (USS3.6t4) in activity funds before they can be registered. At the
same time. the proposed regulation seeks to remove the lacunae concern-
ing the lack of regulation of about 3000 to 6000 overseas NGOs because
many foreign NCOs 'who have already entered and opcntcd 111 the
, II ' . d d govcrn-
country who operate, though not lonna y fCglstere ... un cr
ment acquiescence.' Although 'small in number' these remain 'financially
powerful .nd have impressive activity capacity and thus wield huge
influence in society.' Fourth, according to the new proposed regu!:l.uOll,
the reglstr.ation of foreign NCOs, like the 'domestic ones, ~tllI h~;:
observe the dual-management system, which means those foreign N
Hurnan Rights Movements and Human Rights Marlttts 231
will have the same problem as domestic ones when registering them-
I
,.,
se v<S •
I Cite the above .s a leading example of the dialectic character ofstate
~Iaoon of human rights movements and markets, sittuuons in which
state repression is percdved increasingly as .n inefficient response to
NGO conduct, especially when the indigenous movement proliferate
;and tr.msn.tional human rights advocacy networks find new arcs ofglo~1
influence and impact. Constantly, the glo~lizcd sute fonns, and fom lats,
sttlll to need innovatory regulatory regimes thu combine the elements of
regulation with repression.
To say this is not to altogether deny the multiple functions of claims
ofstate sovereignty. 'DcsubiliZ2tion' ofSouth governance regimes is seen
to be,and often is, the privileged function and role ofsome foreign funding
auspices. And this is as true of the Cold War as of the post-Cold War
pr;actices of pursuit of human rights :IS an aspect of foreign, and global
economic, policies pursued by the North hegemonic states. When this
sentiment is wh.ipped into paranoiac govem ancc/regimc styles, 'regulation'
becomes . pattt!m ofpersecution and engine ofgovernmental confonlliry.
In the proccss, a vital truth is lost to national experience ofstate forntation:
hwnan rights praxis remains always COllftxt-sl11ashing, as Roberto Unger
~ about the p~radigJn;atic ~har.acteristic of.lI human rights; these being
lDSulTCCtlonary mterrog:uones of here-and- now fonnative contexts thu
etltn:nch the power of the few as the destiny of millions.
StalC-centnc analyses of the problem of regulation of human rights
IIW'kcts take as the sole point ofdeparture the control over the investor-
~ mYTi~ fonns of channeling and controlling human rights agenda
m' tr,msarnons. At the end ofthe day, all this merely genentcs a product
IX, that IS the very essence of.n audit culture (ofupward accounubility
and hne management). Further, the regul2ttory endeavour Invites and
= '
olCs .fonns ofs~te or regulatory capture, forms in which the global
rs 111 human nghu marnts constr.ain the host society md govern-
ment to fa T .
CI IUtC, and suborn to their own str:ltegic interests and ends their
cross-border markets in human rigllts protection :llId promotion. By me
lame tokn 011 h' . . .
....... , t IS mVl1es eonstructlOIlS of new forms of resisunce to
e"'.ernance and thi . I "
'b, I ' s, IJl tIC present perspective, constitutes, as it were, the
ttcr lalf of the story.
The story in .a d
na..... . ' nyevent, oes not cndfaurt dt mitllx with any preferred
...tlVeof the Un h I d'l
w 0 esome I emm.s of state regulation. The oper.ators
..1 dl:l1Ve th f,
Clri...o"J 29 IS In omlatlon from Xong He, 'Helping NGO! Develop Strength'
huang y~~ (:?20()5. Xc ;1150, generally, &lWOIrd T.Jackson, Gregory Chm and
).

128. 232 The future of Human Rights
of the locaVglobal human rights markets also unfortunatdy confront
rdated but distinct problems in devising self-regu latory and the other_
oriented regulatory frameworks. Self-regulatory frameworks must address
the:: crises of investor rationaliues, in a highly competitive scramble for
resourcing. Other-directed regulatory appt02Chcs present no less com_
pkxitia. On the one hand, they aperience the need to manuam
accepuble patterns ofconsumer solidarity in ~c global i~lvestor markets;
on the other. 'good' NGO 'business' practices contnbute, from the
standpoint of ultimate beneficiaries, to a culture ?f invigilation .over 'bad'
NGO practices manifesting corruption, co-optallon or subverSIon by the
forces of global capitalism.61 If there were no pa:r group regulation of
occasions of co-optation, human rights markets may have undergone
substantial downturns.
But the fornls ofpeer-group based regulatory interventions rollSC some
difficult, ifnot intracublelintransigent issues. When, and at what costs of
production, are some NGO communities entitled t~ ~Ol;lld the alar~ a~
the pcrfonnance of other. and often, rival communities. How are bad
business NGO/human rights activist practices to be defined and dcscnbro
and from whaclwhosc moraVethical platforms, obviously different from
those already provided by modds of state regulatory invigilation? Arc the
NGO market/movement platfonns that collaborate with internauonal
finanCial institutions to achieve: some real life human rights amelioration,
and prospects ofredemption from human/social sufferin~, more progres-
sively 1ust' compared with those that adopt a fUlldamen~hstlhosule sunce
ofno conversation with these? What supererogatory edllcs may be In play
here, and with what orders ofjustification? . '
Put another way, what standards of critical morality emb~)(hed In
human rights instruments (addressed. p~marily ,to ~':"te m0r21~ty) pr~
vide good enough grounds for 'sisterly NGO ,cnuque, urglll~ s~t
action? Under what historic conjucrures, and With what probablhuesl
possibilities of historic impact. may some entrepreneurs of human
rights movements/markets invoke the reach of the state regulatory
powers/regimes that fully justify the crystallization ,of peer-group e~~::i
ation of 'bad' business practices of some human nghts NGO Illar
movements? I to
These imponderables aggravate the ethical dilemmas ofstate regu:1 ry
reach, How may thecommunitiesofstate regulators conscientiously handle.
bo cd asc: of the
61 A problem has bc:cn recently Illustrated, III the now h:applly a n c sed
Hangl~h Gr.lIllCCn Bank, which Initially proposed a'deal' WIth the Monsanlo-ba
ICmlllUtor seed teChnologles.
Hunu.n Rights Movements and Jluman Rights MMket'l 233
and (('solve. the compctingcalls for the regulation ofthe rival human rights
pWkets? In what ways may the logics, and the so-called nOrmative, Im-
peratives of 'deliberative democracy' gUIde us to relatIVely safe harbours
of~ne and sensible state regulation ofhuman fights markets and move-
ments? And. indeed, what may the regulatorycommulllties learn from the
peer group con~trUc~, and even often mandated, messages of human
rights 'market failures? .Easy enough to formulate. the conflicted regimes
ofpeer-group demands for state regulation all too often test and tease the
reach, and legitimacy quotient/deficit, of state regulatory powers,
Overlll, all this also somewhat imperils the distinction that I make
concerning human rights 'markets' and 'movements'. All the same, l hope
that Ihave demonstr.ued somewhat the usefulness ofthe market metaphor
that now inexol'3bly designates the jdrologj(a{ complexity ofthe variegated
practices of human rights activism. By the same token, it also exposes its
lfIIUn'iality. which is ever present in the cross-border transactions in the
symbolic capital of hUlllan rights, and the various vicissitudes of its for-
mative contexts that stand now illustrated in the ensuing chapters.

129. 8
The Emergence of an Alternate
Paradigm of Human Rights
l. The Paradigm Shift
I
t is perhaps best to start this chaFter with a star~ statement: t1~c
paradigm of the Universal Ocdaranon of Human Rights (UDHR) IS
being steadily, but surely; being supplanted by tlIat oft~de-rclated, Illark~t·
friendly human rights (fRMFHR) under the auspices of cOlltcmpor:ary
glob2liution. This newpar:r.digm seeks todcmotc, ~n reverse, l,he ~lOtiOn
that universa.l hUI1l21l rightS 2fe designed for the attamment ofdL
b'111ty and
well-bemg ofhuman beings and for enhancing the security and we11-bemg
ofsocially, economically, and civiliz.ationally vulnerable people~ and COIl1-
munities. The emergent pandigm insists upon the promotion and ~he
protection of the collective human rights ofglobal capital, in ways wluch
'justify' corporate well-being and dignity even when it entails ~ontlnulIIg
gross and flagrant violation of human rights of :r.ctually e:ostmg human
beings and communities. .
This formulation rai~s m.any distinctively different sets of questlons.
Fint, in what ways m.ay we underst;;r;nd, and extend. the notions of para-
digm and paradigm shifts to the sphere of human rights? With what
f h 'gh d,,1 I this after
justification may we speak 0 any uman n ts para Igm . s ,
all, not 2 'false' toulity that essenrializes the n14ny colliding worlds of
human rights theory and practice?
S«olld does the expression 'human rights of global capital' make any
sense at ;11? Does it rcify collectivclgroup/;!.ssodational human rights? Is
it sensible to endow aggregations ofeconomy and technology VIth hUll1a~
rights attributes? At best, is it not m~re accurate ,to speak 0:I?>I(II (:::d
equitable) rights, rather than ilUmaPl fights, of bUSiness assocIations
multinational enterprises?
I See, D~V)d Trulxk and Man: Galanter (1974) and Boua~nmr:ll de SoUSl ~lltoS
(1995, 20(2) for some: crc~~ usages of the nOOOfl.
The Emergence of an Ahernate Paradigm of Humm Rights 235
'fluid, how nuy we read/construct histories ofhuman rights; in particu-
br ~ need to ask when 'human rights' were not trade-related and market-
fri~ndly? Does the so-called 'paradigm shift' merely suggest vanauons on
themc Of a radinl breakldepanure? Put 2110ther way, how best nlay we
~ribe trends, processes, forces, and agencies ofcontemporary economic
gJobaliZ2tion as consututing a radical dISCOIltUlUity?
Fourth. wh2t criteria best define the categories 'trade-related' and 'mar-
ket_fricndly'? In other words, how arc the contents of such nghts to be
read and derived? Arc these to be dCrlved from de f2CtO cbuns specific211y
rnxlc on behalf ofglob21c2pit;;r;l? Or are they to be read III the prnctices
ofhuman rights-oriented resist;;r;nce to such cl2ims?
Fifth, what, if anything. is unethical or wrong about trade-related,
market-friendly human rights? Is it not the C25C th2t the inherently human
rights agnostic 'free m.arkcts'2 may still her2ld a rem2rk2ble furore history
of emancipalOry potemial?l What conceptions of trade-related, markct-
friendly human rights may, in the post-War 2nd post-Cold-War global
economic development (in itselfan analytic well beyond the scope ofthe
present work),~ aniculate challenges to the very future of human rights?
The epistemological, 2nalytical, historical, ideological, and futllre-
~ssing concerns lurking within these five sets of questions/thematic
invite a fully-fledged pursuit. This chapler IS merely a first step in this
dirrction, even if only as agenda-setting for funher research conversation,
II. Globalization
'GloWlization' is om: word comprising diverse re2lities, We know that the
eftnb, processes, and happenings lumped under this rubric are complex
and contradictory and signify uneven and IIldetenninate developments.
1beories..bout'globalization' present (10 use afavourite phrase ofHabermas)
a'whole continent ofcontested conceptions', Ofpanicular importance is
the problem of drawing distinction between analytical and historical ap-
proaches because the teml 'globalization' is often used to refer to 'abstract
conceptu.al elements which enter into concrete social relations' and 'a
complex set ofsoci.al changes which have occurred over historical time'.s
,
3 Sec, for CX<Inlpk:, DaVid G~mlucr (1986).
HIghlighted by Karl Marx, and now reformatted by Alllartya Sen in a post-Marxist
wa~ o.f relUlIIg 'development as freedom', See, Amartya Sen (1999) ,
s Sec, for exarlJple, Robe" nrcnner (1998).
bon ~"tn Albrow (1996) n 89. A1brow offers an IIlteresttng accollnt of differentia-
II h·0 these elemcnts of'IIIaklll8 or being lII~e glomi' (at 88-118): equally Interesnng
-.: s(UIVey of ways of makmg the 'reality' ofgIoWhution a 50Cial 5Ct(:ntific rts¢arch
at 193--7).

130. 236 The Future of Human Rights
It remains necessary to map this diversity, howsoever ungentially, from
the standpoint ofhuman rights.This itself raises a complex qucstlon: What
fonns ofcontemporary globalization may best be studied through ahuman
rights lens? How may human rights theory, practice, and movement rela~
to various fonns of globalization? This chapter seeks to address some of
the issues thus far raised.
(1) Contilluities alld DjSlontj'lUjlj~
Are contemporary globalization processes and outcomes constirutive ofa
massive new chapter in the never-ending story of internationalization of
the sute and the economy? Or are these sui gn.ms, marking radical
discontinuities? In what may we locate continuity/discontinuity? Do we,
here, trace changes in forms of governance or in the fonns of resistance,
or bodl? Or should we prefer to tell the stories of globalization in terms
of interaction between the old and new fonns of globalization, how are
the narratives ofdle 'old' within the 'new' to be framed? Who may we say
are the winners and l~rs of globalization, even if we may regard this as
a non-zero sum 'ga.llle'~ Which sorts of human being stand subjected to
ever-new fonns and estates of human rightlessness in the processes of
globalization? What responsibilities ofjidllcitJry thought are owed to dIe
present and future generations ofrighdess peoples in the way we choose
to tell stories concerning globalization?
Narratives of globaliz,ation as a world historical process do not always
provide a safe, or sure, guide for historians ofhuman rights. The processes
of globalization have been at work for centuries7
and thus the 'temporal
horizon' ofa few decades of the twentieth century in which human rights
langttage5 have been prominent docs not offer any worthwhile, ways of
understanding different globalizations. Clearly, the human rights perspec-
tive docs not seem compelling in any serious historical grasp of the three
'waves ofglobalization' that occurred in the thirteenth century CE with the
fomlation ofthe Mongol Empire,'or in the sixteenth century CE. European
expansion, and in the further third ofthe nineteenth century CE colonial
domination of the non.European peoples and worlds.9
Ilowever, some
thinkers insist that at stake in the studies of globalization is the issue of
relations between the state and capital, thus opening lip the possibilities of
6 Sec, In pmicul~r, Jun Chen (2002. 20(3).
7 So Imag'"~t1vdy trxed by lilly (1995), Abu-Lughod (1989). w..lIerSI(:III (1995).
and Amgtll (1978, 1994.2000).
• Abu-Lughod {1989}.
9 Tilly (1995).
The Emergence of an Alternate Pandigm of Human Rights 237
bn ging human rights back in the study of the fommive contexts of
~IiZ1rion. At leISt, twO major developments occur in the third 'wlIIve'
of 1
0bahUUOIl: the ascendancy of the transnational corporations as the
ha~i!lgcrs ofcolonization and the struggle over the rights ofthe working
lasses. The question ofinterpretation ofthe relations between the state and
~e transnationalcorporations invites twO responses. First, typical relations
tam duracteristic continuity; second, that these vastly changr. Immanuel
~lIerstein insists that 'transnational corporations are malllClining today
dle Jllmt' srTUcwrtllstatile vis·a-vis 'Mstak tIS did aU ,heirglobolpm1«won'IO On
the other hand, Giovanni Arrighi notices a fundamental changes in the way
m which the 'number and variety of multinational corporations' procttd
to constitute the disempowcrment of the VCstem state formations; the
mulunt novelty dwells in the 'Thatcher Regan type response' that uses ...
...a hlmlQd state to ddhte the social power ofthe First World workers and Third
~id peoples in an attempt to regain the confidence and support of an increas~
mgly tr.lIlsnationalized lnd volatile capita1.l
!
The 'offensive against workers rights', and the human rights of die
Third W>rld peoples provides, 1 believe, a ustful way of dcscribing the
fragthty of human rights in narratives ofglobalization, whether old, new,
or interactive. Perhaps, and after all, the continuity/discontinuity theses
~t that different forms of globalization provide distinctive histories
oI'human rights. Thus, the two cenruries long history ofcolonization and
amperialism (constituting Globalization t or Gl) develop a 'modcrn' hu-
man rights paradigm (Chapter 2). The second phase (which I describe as
G2) h~ a relatively short historic she1flife; it marks the period animated
by visions ofan emcrgent post.Vestphalian internationallaw/order, which
subverts formative antecedent histories of globalized racism through the
unique invention of the right to self-detennination and struggles against
apartheid everywhere.12 What is now known as the 'Global South' was,
thus, bom amidst visions of a new world order, constantly articulated by
'non-aligned', 'Third brld', G-77 platforms within the United Nations,
which itself emerges as a 'weapon of the weak'. The UDIIR, and its
majestic unfolding, even during the horrors of the Cold War, launched
~ astonishingJUrisgencrative era ofSouth-based renewal of international
w that gave rise to, and sustained, the contemporary human rights
"
Paul Wallo;orstem (1995) 24-5 (o;offiphasis added). Sec. also, thollgh 111 a dlffen;:nt v-cin.
ItH1TSt and Grah~ll)t Thomp5Ofl (1996),John Bnnhwall(: and Peter Drahos (2000).
t2 Arnghl (2000) at 12.
Includmg. of course.. South Afnca and the Umted StateS.

131. 238 Thc Future of HumJn RightS
p2radigm.ll l-luman rights nontts and standards now began to be incrtas-
inglyaddrcssed in this period to civil society [onnations as well.l
• Hunlan
rights~~ apprC»lches to understanding pre~ . and contemporary, histo-
ries of globalization problematize these differently than much av;ulablc
literature so far suggeSts.15
The third phase, under which we aU livc.. is bc=sl described b COlltelll~
porary economic globalization (G3). However, economic globalrzauon IS
a process that assumes different meanings depending on 'what sorts of
economic relations ue at issue'.16 The all too frequent generalized descrip-
tion ofG3 as a series ofintensification ofcross-bordcr/trans-frontler trans-
actions, nows, and movements of peoples, ideas, images, technoscienufic
process, products, and praCtices infonttation, and biotechnologies), inter_
national finance networks, global commodity chains, goods and services,
popular cultures, and transnational advocacy networks (including various
fonns ofpolitics oj, andJor, human rights) provides a broad enough picture
but does not enable us to identify [he pertinent forces of production and
economic relations at stake. R:ather, within this picture. we need to etch
out 'Snl21ler glob2liz2tions' that 'reinforce' the processes as well as clash
with e:ach otiu:r.n Concern with 'sm:aller globalizatiollS' has led some
human rights theoristli to distinguish between 'transactional' and 'regula-
tory' glob21ization that simultaneously hold promise as well as Imperil the
fUUire of hum:an rights.IS Increasingly. salient fomlS of human rights
J} ThIs was an en ofenmw;:uuon of the (Worted) New World Informauon Onkr,
the New InternlluonJI Ec:ononuc Order, mc UmlCd NUKms Decl.lntlOn on Socw
Ptogrns. and the: D«1u:lIUon concrmmg Sclcnafic and T«hnolOSIcal r>«bnuon If1
the Imctc:St of ~l1cr and fOf the Hendit of Mllnkmd.
I dncnbed thIS pcnod m tcmu of'gIoIWism'; sec, Uperxln U;lX1 (1994.37-46)
as mllrbng a momem ofconcrct.e cthical uniw:r.wlism: for thiS notIon see, "Ibrow M.
;md E. King (cds) (1990). ~ 111so &bknshnm R.t.j2gUpal (2003).
4 For example: The lbkyo D«bmion, 1971. otddres5C$ medu;aJ professlollS In
deJhng with tonure, cruel, degndmg.:rnd inhumm punishment, the Gencnl Assem-
bly proclaUllS the Code of Media.l EthICS (1982); the United Nanons Cotmnlllee on
emile Prevention and Treatment of Offenden; continues to concrellze asSlul1 on
micro viol.ations of hunun rights standards and nonns in total Instuuoons and even
CIlUJlClllte$ a Code of Conduct for Law Enforcement OfIici;r,I~, Lawyers, and Judges.
U St.-c: Ronald Robertson (1992); Paul llirst and Grahame Thompson (1996);
Winfried Ituigrock. and I~ob van Tulder (1995), and for a viSIon of rcgllbl1on/
're-regulauon', see John BrallhWlI«: and ~ter Dnhos (2QOO).
16 Anthony lbodIWlSI (1m) 211.
17 Alex V. SeIU (1997). Sciu's pnneipal focus IS. OOwcvt'r. on value convcrgellee
arismg out of pohucal, tcchnolOS'Cl-I, and economIC elements.
18 Sec,espccully. GareLll (1999). 'Tnru.actlOnal gklmllutJOn' refen to tfJnsboundary
flows of f1iCtQrS of prodllCtkm 'such thai they come 10 resemble In opcranon a 51l1g1e
The Emergence of an Alternate: Paradigm of Hum~n Rights 239
movement critique the hUlmn rights-viol2tive potential ofthese fonns of
Bfobalizaoon.
Idc:OlogJcally, G3 celebrates a world without alu:rnauves to global caPI-
talism 2ud associated transfonniluons in sute sovereignty. Thus, the
~1I_lalown dleses of FranCIS FukuY2ma celebrate: nOtJUSt the end of the
Cold W2r but the end of human history as well; the endlllg slgrufies
the temllUUS of'lll2nkind's ideological evolution' and precludes any alter-
Il2tive to 'the universaliz.ation of Western democracy as the fin21 form of
hunun government'.1?This 'inverse millenarianlSm,20eme~ now in the
paradigmatic form of 'liber:"1 mi~lenarianis.m' in co~t~mpoT2ry theory.of
inttrn;lrionill Law 2nd relatlons.2 The various spcClliilsms of endologtes
celebrating the 'end' of everything (sec 'Endologics' section (4) below)
enabk and empower at the same time the beginning of the paT2digm of
trade-related, m;rrket-friendly human rights.
The alleged lack of alternatives docs not preclude wide-ranging talk
concerning better, fairer, or humane globalization. Thus we hear about
poiulization with a human face, or 11lI11l2n rights-oriemed globalization,
'IociaIist globalization', 'green glob2Iization', 'feminized globalization', 2nd
even 'globaliution from below' or 'grass roots globalization,.n Within
IIobabz.atton hberal millenarianism is understood at least III thrcc distinct
ways. Fint, the newly emergent globalizing 'middle class' (erasing North!
South divide) produces a 'consumer capitalist ideology', outside which
tilt queSt for systemic alternatives nuy nOt rn2ke any historic scnse.Z3
A DCttSSary COnsequence follows: human rigiltS, and social action move-
ments may amdioT'2te the harshness of G3 but only within the gcneT'21
anp:ratives of this ideology. PUt another way; human rights production,
aaarkn sp:mnmg the globe'; 'regulatory gIobahulion' 'emphasl:teS a qualiurive clunge
~tLlIturc of our regulatIOn of markets' (at 366-7). See, furilier, for the many
19 of regublOty gIobahul1on, Bl'2lthwal«: and Drahos (2000).
(1982Fr.InCiS Fukuy.una (1992). Sec, also for an cqwlly cclebl'2lOry tncl,JxqUes Anah
) HOWntcr. Michac:l ll;a.rdt and Amomo Negn (2004) now offer ndial dqnr-
~ 10 undersundmg thIS tranSlIion.
21 As Frednek. Jameson (1995) namn tillS.
2l See Susan Mllrb (1995) for a sustlincd CTluquc.
IUch Tnl.llscendelll. or rcvoluuon~ry, nOllons of de-globahuuon occur mfrcqucmly;
Won crmqucs an: conSidered, ~t beSt, as exemphfymg pll1l0s0phical anJrChlSlll or, al
~, as pb l1l1y p~thologJc;,r1. Already, we Wltncss the revival of the lropc of 'hmatlc
taIJy; ~~the context of alltl-globaliuuon mass prote5t 3t, and sincc, Seattle. Inciden-
~ ltma G~ndhi. who summoned de-Illdu$tnahutlon. collccu'¥'(: economic sclf-
III arc:·:ropertyas a~red COllInlUllltlrun trU.'it. cmergt:s III the present eOntext as
b order of luninc frnlge.
5« Le5he Skblf (2001) 84-117.

132. 240 The: Future of 1·luman Rights
distribution, and consumption have a limited, or no, fllture outside th
pnctices ofthis ideology. even when these severdy critique COl1tcmpon e
globalization. ry
S«otld, the distinctiveness ofcontcmpor.uy global capu4llism lies III the
development of semiotic economies of 'signs' and 'space' consmuted by
practices of'rencxive accumulation'.2" These practices v:uy25 butwhat they
entail generally is the displacement of 'nationally based., orgallIzationally
and institutionally framed social structures by globally (and locally)
situated ... information and communication structures'.26 These processes
sttttl W render capitalist accumulation historically more resporuive to
stakeholder human rightS-oriented demands. Corporate governance and
business conduct rem.ain, overall, more accountable in terms ofnew forms
of business ethic, whether expressed in tenns of codes of conduct, or
languages ofsocial responsibility ofbusiness, or more esoterically through
the languages of human rights/sustainable development hypcrgoals and
hypcrnonns (aspects that we analyse in some detail in Chapter 9). The
ascendancy of anti-corporate globalization movements sUggt'sts, in the
main, that activist human rightS reClexivity corresponds rather well with
practices ofreflexive accumulation. Reflexive globahzation no longer surely
speaks the language of material contradictions 2nd class struggles because
of 'the displacement of reflexivity from production to consumption,.27
Becaul>C the 'global' in itselfnow carries connotations ofcommercialization
of humanity,28 resistance to it after all yields to a rcflexive discourse
2rticulated in te:nus of 'good' governance: of 'the other side of recent
economic development' signified by 'ungovernable places' occupied by the
new undercbsses.29
The third dimension of post-9fl1 G3 now stands articulated in the
'global state of war', an 'active mechanism that constantly crcates and
reinforces the present global order'. War 'becomes' the: gencnlmatrix for
all relations ofpowerand techniques ofdomination', a'rrgimeojbiopouJU, ...a
fonn ofrule aimed not onlyat controlling population but as producing and
24 S«, In pmlCulu, Lash and Urry (1994). They help us undcnurond varIOUS "'-11)'$
in which, IIlcreasmgl) what IS produced 'are not moucnal objectS but Signs' (6) Ie~mg
to 'the senllotlciuuon of ronsumpllon' (61) and, funher, to the 'dcl11QCl1IuU,tlon of
reflexIVity' (63) ron which people 'arc mcrcasulgiy IOlowlcdge3blc abom JUSt how little
in fact Ihey know' (II).
25 Sec, Scot! Lash and John Urry (1994) 60-110.
26 Lash and Urry (1994) 64.
27 Lash and Urry (1994) 57.
11 M¥tm Albrow (1996) at 83.
l'J Scott lash and John Urry (1994) 145-70.
The Emergence of an Altemate Par.ldigm of Htumn Rights 241
reproducing ~JI as~cts of ~ial life'.lO Cultures of hUJ1121l rights now
beCOme, III thiSzo(h~c, subsemcnt to awhole varietyoflogics and paralogia
of homeland security and a 'global W2r 011 terror' which, put together,
afrnostJustify altogether new forms of global preci2tory politlcs.J !
(2) Ntmatiw Strattgies
The processes of contemporary economic globalization have 2ttncted a
huge amount ofresearch 2nd writing. And the choice ofnarrative strategies
vanes. Some present contemporary globalization as a singular narrative of
the march ofglobal capitalism or ;as new imperialism. Some lIlsist on the
muJti~irect:ionality o~the globalization process; far from bemg ajugger-
naul, It allows for different p2ths attainment fully deferenti21 to local
culnm:s and nationa.1 ci~lization traditions. Others speak notJUSt ofone
but of many globahzauons. Thus, one he;ars about distinct 'forms' of
contemporary globalization: the 'political', 'cultural', and 'economic'.
The ~rst from directs hegemonic univers;alization of the languages of
aalobal Rule 2nd Law', 'dcmocracy', and 'good' govern;ance,;a phenom-
enon I have named .IS globalization ofhulmn rights. But politics also stands
conttlved 111 tenns ofresistance to globalization; the nascent field ofglob;al
ecbnography ofprotest movement, especially anti-corporate protest, illus-
tntrs how peoplc's movements question the foundation21 premises of
contemporary globalization. The issue ofwhat I name elsewhere as good
RIlstance n:=ver emerges .as ~Il ;aspect of significOlnt agendum of 'good
JO'VnTuncc.. The second lIlVltes clOM: anention to cuhunl globalization
that expropnarc:: IOGII diversirylZ and the modes in which corporate gov_
emanc-e strateg!C$ result in corporatiz2tion of the right w freedom of
rch and expression; put bluntly commercial free speech hcre trumps
~hcr fonns ofhuman right to the freedom ofsTlN"ch expression and
-.oclatlo I .. JJ r - - ,
ofG3 In n~ OIWVlty.. The third presents more fully the slligt,tniJ ;aspects
~ thIS perspective new forces ofproduction (digitalization, biotech-
J'Orary' ..nd nuclear power) dialectically serve as Wt:U as subvert contem-
bier h~~an rights p:1ndigm, an aspect th2t ~ more cJosdy examine
III lluSchapter.
Othcr Ramti h .
'lac I" ve pat s constructing G3 contcnd for the autonomy ofthe
;a Within th I . f "
e lcterogenclty 0 the global'. Too m;aIlY assumptions
~
11 ~Ch~1 IlardI and Antonio Negri (2004) 12-13.
~ Chapler 5.
II ~tnary Coombe (1998).
k s«--r~nlark:ably archIVed by NXlml Klein (2001, 2002).
. orex:anlple, AlJun AppadUl1l1 (1m, 2001, ed.): Mike "=at~rslOnc (1995):

133. 242 The: FutuI'C of Human Rights
here crowd these discursive moves. The locaVglobal distinction, whiJ
imporunt, obscures their histories. It is ofu:n enough difficult, if no~
impossible, to locate the dislirflliwiy 'local' Wlthm the 'glob;l', given
the hcavy tnffic or commerce between these two splu:res even when (u
I do) we ;ldopt the standpomt tll;lt the authorship of hUl1un rights lies
scattered amongst people in resistance. :
md commumties III struggle. The
local and the global co-exist and intermingle. even infinllciy so, III the
multicultural, or intercultural, production ofcontemporary hUm;ln rights
v;llucs, norms, ;lnd stanwrds. Neither then the resistant 'local', nor the
universa.lizing 'glolul', nor further the hybridized 'glocal'. prOVIde any
world historic redemptive clues for hum;ln rightS futures amidst m;lny
paradigm shifts.
Further entailed here are contestations conccrning distinct 'forms' of
contemporary globalization: the 'political', 'cuhuldl', and 'economic'. Far
from being 'ncat' c;ltegories, these comingle and overrun. What Ill;ly
constitute the bright lines demarcating the 'political' from the 'economic'
;lnd the 'cultural'? Wil;1t ploy of non-reductive understanding may enable
us to grasp both the relative ;lutonomy and interconnectedness ofthe three
domains?
(3) Dillf'r'li/ies
Contention is also nfe concerning the ways of privileging the narldtivcs
of globali:a,tion. I low may wt: narnte stories about g1obahution as the
march of global capital~S How may th~ nalT3tivcS take account of
'dlffe-rent tnjectories ofcapitalist development, 'v.lrious social systems of
production' and the problems of dleir internal 'coherence', and of 'the
ideal mix of institution;ll arrangements for economic ;lCtOrs for each
broad system ofproduction'~ Do historical and contemporary V3riations
within the movement of global capital still produce discursive objects
named e;ITlier by the tt nn 'capitalism'? If so, may we still present this as
monolithic or invulnerable? Would it mark a triumph ofhopc over expe-
rience to regard. in autopoetic theory temlS, varieties ofglobal capitalism
Mike Featherstone, Scott Lash. and Roland Robertson (cds) (1995), Mtche1 !lura....'O)'
("'1(2000).
wlie SldalT (1995. 1999). Sec also J. L. Gihson-Gnham (1996).
)6 Tht'$C ISSUes ,und adminbly fornlub.tcd byJ.Roger Ilolhngsworth and R(Jbcrt
Boyer (1997) 1-48. Anthony WOOChWlSS (1998) marks an 1Il1portlllt contrtbutlon.
whICh burs upon the futulY of human ngllts, by trac:tng the: differentials bct......« n
f
Japallese and Amem:an caplullst fonns in the MnteXt'i of pr.a<:UCd and fOflTlS 0
·~march.ahsllls' In I'acific &Ia.
The Emergence of an Alternate Paracilgm of Hunun Rights 243
as 'sclf-dissipating structures'? What historic infe~nces may we dnw
when we acknowled~ fully, with and since Karl Marx, the glolul social
fact that these fonns remain wholly crisis-ridden? Are we to narrate the
newsocial movements (say the feminist or the ecological) or ;ln Impressive
array of antl_g1obali:u.tion protests as ineluctable manifestations of the
crises of ;Ite capitalism?
Further, and at descriptive level, acuu: contentions surround globali:u.-
Don discoUrse concerning the politics of naming its pnncipal agentS and
forcers. Is it tOO reductionist to read in the current career of economic
glot»lization the not SD invisible hand ofthe unique hegemon, the United
Sutes?:n Or is it more aecunte to tell the stories in terms of the power
blocs (in Gldmsci;ln tenninology) and their ovenll hegemonic e{fects~
Who may we identify in this frame as principal ;lgentS and forces: the G8,
dx Canwn wro Conference emergent formation of G20, global and
regional financial institutions. multilateral world tnde arrangements,
'multi-' or 'trans-' national corporations, or ;III these in their combined
and uneven development? Where do we place, within these grids ofpower,
other actors and networks such as thoS(: named by the formations of
stomlized 'crime·39 and dle now increasingly distressing enactments of
mass International 'terrorism'? In how many ways Illay we further read
Ibe current discourse conarning 'war on terrorism' winch constitutes ;It
me same moment also a war on conternponry human rights? The
~lCament of the contemporary politicsJor hunun n ghts practices lies
In the complexity of decipherment of the power blocs ill their dynamic
~ cons~ntly unfolding relationship betwe<:n glolulized crim.inality,
tncludlllg Its state-sponsored forms, and 'terrorism,.-40
Morcovc~, ho~ may discourses on ideology, or Ideological discourses,
enable us to Identify the dominam and the strVinIt ideologies in globalization
narratives? T he question remains awesome in its FJ('rtinence. On the one
hand, con~e.mponry economic globalization makes legible (in tenns now
~e famlhar by Leslie Sklair) the wildfire spread of consumer/capitalist
ideology of a growing global middle class that legitimizes globalization,
more or less, as a fornl ofauto-colonization, th;lt is, 'coloniz;ltion without
"
l(I Mlch;l(1 Hardt and Amonio NegrI (2000) suggcn precisely tillS.
SlIe'IhSec. the complex prescnution III Michac:1I lardt and Antollio Negn (2000 20(4)'
~ ell Gill (2003). ' ,
* MinUel Caslells (1997).
No.,L~stclls ]>I"O'dcs 5()me telling insunccs of oollabonuon and complicity of the
"C'rn SUIe fo . _ .J
rdatJed s rttUtions all" pr:lCtica III a~nas of mternauonal narcouc traffic:
See.... tones abound collccnung otherwue nominally declared '1Ilicit' anns traffic.
50. Stephen Gill (2003).

134. 244 The Fmu~ of Human Rights
coloniz~rs'. On th~ other hand, and at the end of the dav the n .
d d gI
LI' . .. I' ew SOCial,
an ~- au;( n;atlon, mov~ment actors remam simply unintdlirt1bl
'd h od ' ~ e~~
Sl e t e pr uctlve consumption of the very technolouies (es....c II
fi
' I I I - 0 ' Y - la yln-
onnatlon tee 1110 <>gles) t ley also critiqu~.
(4) Elldofogits
~rh.:l.ps in resista~lce to such p~tia-s ~f n~ading, reflexive globalinuon
theory. promotes Images of ending. which I name as mdology, ofien also
assummg forms ofmdold/ry and even nwomania. The end ofsomething or
the Other stands. ceaselesslr proclaimed so mllch so that everything is at
an tnd save t~e .glft~ vocation ofthe theoretical practice ofrndology! I have
eisewhere
41
dlstlllgUlshed betw~en practices ofJormal, ee/ectil, and material
endology. The latter direct our attention to the end of work,42 end ofthe
farmer43 (,facilitated' by new forms oftotal multinational enterprise oon-
trol over world food production),« and the end of nature, which now
(both as biodiv~rsity and as in vitro production ofnt'w forms ofgent'ucally
mutated orgamsms) becomes a multinational enterprise corporate re-
soura-:'5 This riot of'endings' marks th~ btginllillg of 'New World Order,
Inc.' b.:l.cked by the risc of economic fundamentalism." This, ;1If0 olio,
entails the notion that not just the state :rnd the law become increasingly
global capital-friendly but also an impassioned defence ofitS hum:m nghts
(as we note in some detail later), at times trumping thc universal human
rights of indlVldual human beings and communities.
(5) Evaluntioll
Difficult ambivalences surround the modes of evaluation ofhuman-'lIld
human rights--impacts and consequences ofglobalization. Marx made us
all familiar quite som~ time ago with the human freedom-enhancing
potential of earlier fonns of class struggles within capitalism that carried
41 Upendl'2 O;ua (2000).
'2 ~ Andre Con (1982). I lis thesis IS far more comple,.; than tillS title sU8!;Csts.
!-hsconcerns arc 10 enhance autonomy, dJiciellCY, and creativity III complex knowle<!gt
based heteronomous pmductlon.
'1 Paul Kt:nnedy (1993) 7+-5.
... Sec, for an account of the emergent patlerns of'food dlctatorshtp', the &oIogist
(1998),
: Jerctlly Rlilon (1998); Fnncis Fukuyam:.r. (2002).
Jane Kelsey (1995), rcpnnted under a different title (1999).
l11e Emergence of an Alternate Pandigm of Human Righa 245
the double consequence; these struggles reinforced as well as held hope
Cor tnnsccndence from profoundly exploitative capitalist formation. Marx
mod, prophetically, in the last part of Gnmdrim. the much of g1ob;&l
capitalism as the acceleration of a futur~ of postcolonial histoncal ume.
{.tkewlsc, in the so-called post-Marxist epoch, Nobel Laureate Amanya
Sen. though on a lesser dialectical register, in less complex and contradiC-
tory modes, is now able to pronounce the theses concenllllg d~ve1opment
.s freedom.f1 that coequally favour both contemporary human rightS as
well as the G3.
Somc globalization theories/narratives remain obstinately optimistic.
Roseate in the afterglow of globalization, these seek to demonstrate that
tbt contcmporary movements for human rights owe a great deal to the
'globaI instilUtionalization' of human rights,4lI in ways previously unimag-
inabl~ even a decade or two ago. Even the globally monopolistic mass
media becomes, from this viewpoint, a resource for human rights and
IOCW movements for transforming a globalizing world. In all its de, and
rr-. gcn(d)eration, the United Nations system, and its normative regional
cohorts, seem (to them) to offer the beSt historical sites that somehow
n:nuin.a.vailable as discursive sites for alternative (even insurgent)
~I1Vlty.
I now attend briefly to the difficulties ofevaluation ofG3 in two salient
contexts that reconstitut~ the sutclcapiul relation; thc cnd of the n.ation-
ICaDe and the reproduction of 'sofff failed' statcs.
111. The End of the Nation-State
This striking thematic ofglobalization remains atr~mely problematic in
Itk'Ifand from the perspective ofhuman rights. I do not pUr.>ue here, for
reasons of space, some vast antinomies involved in this coupling of the
:::?~; with [he 'state' form, questions concerning thcoxymoron 'nation-
.,
... Amattya Sen (1999).
...~.._Ron:.r.Id Robmson (1992) at 133--4, 181
-2.1am TlO( suggoestmg~re tWt ROOtruon's
--lJ~u tS thu~ celebntory.
<'Om ISuffice It to "y for the present purposes that 3 'naUOIl-litlte' articulatCS the
_,J eJI: notton III which a trtumpham Stlte forlll ISnude possible ollly by somehow
.........lIlg d,verse . I '
emr naltona Illes 11110 a smgular lustoTlc forlllauon. wttlun whtch thcn
ethnTJ;!! the UISCOUn;0e5 concernmg 'mulucultuntlistm' and the relationship between
Aaty~~. markeu, and dcfTIOC1"aq. Conccnung the latter, see the ms,gittful analysis by
...,<. u:.r. 111 her 2004 Grotlu..~ Lecttlre, Amc:nc:.r.n Society of International Law and
nlTnents (200Sb).

135. 246 The Fullin:: of Human Rights
Historically, dlis thematic raises the question: W'har btgitl1 a"d r"dJ IlIh
h · ,-, I . . . dd . tt.
t t ,wI/ott-start ttlw. t remams IInporant, III a resslllg this question
acknowledge that the end of colonialftmperial Westphalian sate f~r~
marks the bcginl1ingoftheory and practice ofcontemporary human righ:
which commence their carttr with historic plentitude of movements of
the right to self-determination . The~ result in a prolifenuon of 'new'
sa~s, disrupting altogether the ~stphalian conceptions of 1Iltentational
orderings. Contcmponry human rights movements thus mark the birth
ofnew fomlS ofterritorializationldc-territonalization ofdiverse state forms
within which duties ofallegiance and powers ofgovernance stand routincl;
recast. perfonned, and exercised. The post-~tphalian notions [nnsfonn
these duties and powers in discursive tcntlS of 'democracy', 'rule of law',
and 'human rightS', thus making possible engagement with the problem
of'failed states' or (as Gayatri Chakravorty Spivak now names this) 'failed
decoloniz.ation,.50 This discourse is remarkable ifonly for the reaSOl1 that
the langua~ of 'failed states' stands somehow m/usively reserved for the
South state forms. These languages necessarily attenuate the classical
notions ofstate sovereignty, with the attendant doctrine ofequalityofstates
in international law.Sl
Arjun Appadurai describes this phenomcnon as 'comprolll1scd sover-
eignty' in which contemporary forms of global capital cnact stntcSles of
'predatory mobility (both 111 time and space) that have vastlycompromised
the capabilities ofactors in single location even to understand, much less
to anticipate or resist, these strategies,.52 No doubt, these epistemic crises
signify 'momentous changes in state sovereignty' in w.rys that TANS
(transnational advocacy networks) now almost produce a substitute for
earlier state fonnations.SJ In some sense, the growth ofthe global culrures
ofhuman rights has contributed to the (ntherwcll known to Intematiom.l
lawpcrsons) erosion oftraditional notions ofsovereignty. But even on this
register, one has to distinguish (as I have tried to do in this work) between
practices of the politics oj, andfor, human rights.
What thegunH ofglobalization mean by the thematic ofthe end of the
nation-state is that the state becomes a poinl, perhaps. not even a nodal
one. in the network of intensified international economic relations in a
'borderlcss world'. And outside the dominant framework ofa solitary and
50 G~yatrl Chakuvorty Splv.tk (1999); lItt also. Ruth Gordon (19117).
SI IknedlCt K11Igmury (1998).
Sl Aryun AppadUr.1I (2001) ~I 17- 18.
~ The glob~J TlC'tworu (or human "gins (such :l5 Amnesty Intem~uoll.;il, the:
Greenpc:X'C), reg.on~1 NGOs :lUdll, u well u challenge many perforlTl~t1V(' acts of
SQVl:Telgn SCote power
The Emergence of an Alternate Paradigm of Iluman Rights 247
capriciolls global hegemon that seeks to enforce its fractured values and
viJlORS of an international rule of law. there exist multifarious networks
that cuJ11IIJatively'dc-territorialize' national sovereignties. These networks
comprise illternational financial institutions, posunodern confeder.atlons
(Ltke the European Community). global and regional human rights II1ter-
~mmental frameworks. global trade pacts, (such as the wro and the
proposed order ofMAl) and regional economic arrangements, with vary-
mgdcgrecsofeffcctive presence (from NAFTA,on the one hand, to APEC
and the Free Trade for America fFTFA]. on the other).
The principal point concerning the end ofthe nation-state then, in die
dominant perspective, is the creation of a borderlcss world for global
capital. even though it stands cruelly bordered for the violated victims
su~t to practices of the politics of cruelty, even barbaric practices of
power. Myanmar is thus borderless for Uncoal though not for Aung San
Suu Kyt and the thousands of Burnlese people she symbolizes. India is
borderless for Union Carbide and Monsanto but not for the mass disaster-
Yiolattil Indian humanity. Ogoniland is borderless for Shell but becomes
1be graveyard of human rights and justice movementS led by Ken Sam
--The hollowing out ofstate sovereignty, ~ mmt reatll. ISan extremely
tmcYen process. As the end ofthe checkered second Chnstian millennium,
the Euro-Amerie:m states maintain a surprising degree ofstate resilience,
• teast when compared to (and precisely in co-relation with) the: debt and
crises-ridden orders of the sovereignties in the South.s.4 And, overall,
bwn.an rights confrontations with State po~r remain less of a 'threat' to
~ postmodern bol1r~isie in an increasingly 'multicultural' North than
1ft ~ compantively chaotic and inherently muhi-civilizational South that
aspires to fonns of'liberal democr.acy' in contextS ofmass impoverishment
IS., for example, in India and South Mrica.
How may the practices of human rights activism read the textS of
~sive' diminution, even to the point ofdestruction. ofstate sover-
~ty III the South? It is surely comforting to tllink thal, though united
:athe vision ofpower and profit. global capital is itsclffaction-ridden (as
tharx sought to educate us all). To be sure, some current eontroversies
U t engulf trade relations between the European Union (EU) and the
la nlted States (for example, in the banana dispute or the Burton-Holmes
r:~hat ern~rs the United States to impose trade retaliatory sanctions
uropc:an COrporations that dare to do business with Cuba, or the
"
.. :r~p$, Ihe pa~jgJII case is offered by continw! multiple illVOlsions of H~lIi:
• POlgn~nr ~ru.IysIS 111 I:ter H~lIw.1rd (2iX)4).

136. 248 The Future: of Hum:m Rights
r~gulation of gc:netically mutated foods) manif~st aspects of mIra-global
capitalist conflicts. I I~r. itwould be an extraordmary reading that may
5u~t that the EU h~art bleros for th~ Caribbean ImpoverIShed or for
th~ C uban people affiicted by th~ more than thr~ decades old nuscry of
Ih~ US embargo. TI1CSC trade wars between Euro-Amencan states pulu le
with the competitive edge of global trade. Despite the outcn~ that Sur_
round the American angst at the wro dispute pand's recent rulings;~5 the
EU is ad idmt with the United States on the nero for a new millennium
wro round of talks that will further release corporate genius for global
human welfare!
The coalition of forces that nourish the global vision of borderless
international capital sceks to proselytize the end of tht: nation-state regu-
latory prowess. From this standpoint, 'globalization' means the diminish_
ing of the state as the planner of national economic develo~mellt, ~he
owner ofcommunity resources (and ofother means ofproduction). active
participant in production ofgoods and services and p~oa~tive regulator of
patterns ofmultinational corporate behaviour. It also slglllfies thai the state
will be a willing, even enthusiastic. promoter of 'free mark:t'. All tillS III
some important ways marks the end ofthe processcs and reg,mes of/Illtrum
rigllU-()ritPIIM, ttdisfrib'djO"isf gowmaflu prtUtita, in ~ys that convert the
mandate of'progressive realization' ofsocial, economiC, and cultural nghts
of the people 1I1tOan ongoing cruel hoax.
TV The Reproduction of 'Soft' States
The UDHR paradigm assigned human rights responsibilities to states; It
called upon states to construct, progressively and within the commU1llty
of States, a just social order, national and globa~ that wi~l at least.m~et th~
basic needs of human beings. The new paradigm demes any s,gn,fican
redistributive role of the state; it calls upon the state (and world ord::r)
to free as many spaces for capiul as possible, initially by fully pursU1ng
the 3-Ds of contemporary globalization: dt-rt'gulatiOll, dr_nationalizationalld
diJi"lI'tSt/ll/'/lt. Putting an end to national regulatory and redistributive p0-
tential is the leitmotif of present-day economic globalization. as anyon('
who has read several drafts of the Multilateral Agreement on Investment
knows. I Iowevcr, the programmc of rolling back tllC state aims at the sa~~~
time for vigorous state action and role when the interests ofglobal cap'
I :Ad $lIKIIOrtJ
S5 Authonl:mg. for example. the Umted SateS 10 Impose rea lat01)' Ir e of
agamn the EU for Its human right to heallh-<anc:nted proh,bltlon on Impal'U
l1on
meat treated With growth hormones or 5ubsKhes to Its natIOnal MCeI mdusll')'.
The Emergence of an Alternate Paradigm of HUlmn Rtghts 249
arc at su ke. To this extent, de-rtgU/alioll signifies not the end ofthe nation-
~ but the end of the n-JiJrn'butiollist Jtate.50
Recent history has shown tlut multinatIOnal capital neros aJfJjt state and
aIwnI one at the same time. In the heyday ofdevelopmental.sm. Gunnar
Myrdal identified the crises ofdevelopment In South Asia as causro by 'soft
sateS' that lacked the power of disciplllling practices of pohucs and gov_
~cc.S7 'Soft' states were thus effete entities unable to fu lfil any of its
nUlJOf' .social welfare roles; its 'softness' stood constituted by the profiles
of ~rdevclopcd bureaucracy. anomie, corruption-ridden practices of
politics and state-formation marked by a conspicuous lack of discipline.
Capricious and corrupt law~nforcemcnt practices aggravated the growing
lick ofa civic culrure, in which the new middle classes claimed rights (and
abused these) but acknowledged no social responsibility. The way [0
pJarmcd social and economic development lay in the reversal of these
gmds, which would eventually legitimate a progressive stale.
1Dc processes ofcontemporary globalization. thriving upon the heavily
cmiqucd ideologies ofdeveloplllentalism and its eventual demise. seek to
NpIOduce, in a post-devclopl1lentalism era, new versions ofthe soft state.
11tr notion now stands reconstructed in several important ways. The
~s,vc state'. at least Ill, and for. the Soulh. is now conceived as a state
DOC in it!; 'nternal relations with its own people but 111 relation to the global
c:a:nmunity of foreign investors. A progressive state is one that is a good
..., JI/IIIt f~r global capital. A progressive state 's one that protects global
apitaI ag;ilInst political instability and market failures. A progressive state
itone that represents accountability,wt so much directly to its people, but
ODe that offers ltsel( as a good pupil. to the World Bank and International
~_ Fund. A progressive state is one which, IIlstead of promoting
..-Id ViSIons of a just international order. leana the virtues of debt
I'l:paymem on schedule. Moreover. a progressive state is now one which
~:
rcd to gamer eonce~tions of.~ gove~nance. n~ither from the
ofthe Struggles agalllst colollltation and nu......nahsm nor from its
lbternal . I ' ,..-
. SOCIa and human rights movements but from the shifting pre-
~ns of global institutionalgllnu of globalization.
~ _construction of'progress' is [hatof a post-Fukuy:mla world in which
ISno Other to capitalism, writ globally large in rather contradictory
~
......""""JiO
e Kelsey (1999, 1995). 111 (crms ofemp,rical ;mal)'5IJ. this furthcr connOles
~Ute Cip. . " d
.. Dan I ,,_ ure . m"uence, in corruption: see. Joel S. I!ellman. Gcr.llnIJones.
S7 C Ie ","ufoun (2000).
...... ~11IUt' M)'Tda1 (1963). Myrdal's concern was 10 ponl1lY South As,an sates as
..... c-L ~Iil and msututionil dlsclphne th~( made JOCICry alld nate vulncDble to
Ioprmcm and the 'revoIuDOn of rislog cxpecauons'.

137. 250 The FutuI'C of Human Rights
modCi. 'Rule of law', 'democracy', and respect for human rights :l.re
imper.lti~s that the Global South is required to achieve in W:l.ys not quite
historic:l.lly attained in the evolution of'Western' democr.acy. The accelera_
tion of future historic llme for the Global South manifeSts the dramatic
tensions betw«n trade-related, market-friendly human rights and the
human rights of every human being in the Global South as follows:
• War :l.gainst hunger gets transformed in the 1998 Rome Dedar:l.tion
on the Right to Food into free mark:et-oriented state and internatiorul
management of food set:urity systems managed by a handful of multina_
tional food corporations;S8
• Struggle against homdessnessand shelter, in thel998 United N:l.tions
Social Summit :l.t Istanbul, becomes a series of mandates authorizing a
whole range ofhuman rights-violative practices ofdlCconstruction indus-
tries and urban developers;
• 'Sustainable development' becomes a double-edged sword of sUtc
conduct and corporate governance in ways in which massive public projects,
including large irrigation projects, proliferate in order to primarily serve
the infrastructural imperatives of direct foreign investment and the pro-
motion :l.nd protection ofcorporate governance 'greenwashing practlces,;59
• The UNDP-inspired 'mainstreaming hum:l.n nghts miSSion' envis-
aging the raising of a billion-dollar proposal for the Global Sustalllable
Development Facility, stands already subscribed to by w:'Y ofseed money
from some of the most egregious multinational enterpnse corporate hu-
man rights offenders.
In sum, all progress tow<l.fds the :l.Crucvement ofsocial, economic,.and
cultural rights is thought best awined, by a cash-stripped U~ited ~auo~
system, widlin a cooperative framework that assures ample IIlcentlVC5 fo
muhin:l.tional corpor:ue philanthropy mwards funhering the purposes of
the United Nations. This framework stood fully articulated recently In the
United Nations Sec~ury General's D:l.vos speech, where Kofi Annan
suggested a 'social compact' between global capiul and the United N:l.k
tions While global corporations and foreign investors were urged to war
with ·the United Nations, there W:l.S not even a hint of a suggestion that
sa The shift from the tight 10 food 10 an integrated management of foOd SI."<urilY
Sy1IC"I1I$ III the Rome DeclanbOll oPC~$ up a~nas for state.-mulllllauonal ~nte~r;;
colbboratJon. ""ther than for human nghts-onented regul,lbOn over agnbuslOCli
FLN (1996).
59 See Jed Greer and Kenny Bruno (1996); Andrew ~II (1996).
The Emergence of:l.l1 AlternalC Paradigm of Hunun Rights 251
egrqpOltS violations ofhuman rights enuiled in corporate governance were
ptr g IlIcgJtllnate and .t1~at they ought to be bound by a stnct regIme of
buoun rights responsIbilities.
But rlus fr:unework. assiduously promoted, and even promulgated, by
the ~rious United Nations Summit declarations aud programmes of
Acrion, IS, by and large, congenial to transnational capiul, and its legendery
kgions of nonnative cohorLS. because It mandates uneven pannership
betwtt" global capital :md 'developing stales'. Unshackled by even a
nunimal international code of human rights-oriented conduct, the pan-
ntrship between state and civil society so abundantly emphasized in the
various United Nations summit declarations empowers multinational en-
trrprises to mould state policies and purposes to their own ends. The
production of soft states as its strategic high priority 2gendum, which
craftdy deploys languages of humane development and governance and
bunun rights and well-being, follows, almost as the law of natllfC.
I cite, as a prime example of Ihis, the continuing reports of Fatima-
Zohra Ksentini, the Special Rapponeur to the Commission on I-Iuman
Rights, on the adverse effect ofIhe illicit movemcnt and dumping oftoxic
and dangerous wastes on the enjoyment of hurl1:l.ll rights.60 Thc bigge~t
"WUIr exponers are, ofcourse, 'the most 'developed' COUntries and wastCi
continue to be di!>patched to regions lacking the political and economic
~r to refuse it'.61 Thi!llack is nOt innate but cau~. in the last instance,
by the fomlations of glob:l.l economy.
All kmds ofbusiness practicn abound: the use offalsified documents
bribing ofofficials III the 'country oforigin, the transit country or... th~
counrryoffinal destination', and the existence ofprivate contracts 'between
~m companies and Mrican countries whe~by the companies paid a
ptnance for the land on which to dump toxic products .. .'.62 The Ianer
scandal brought fonh :l.n anguished resolution from the Organization of
:~an Unity,.a decade:l.S?' which ded~red toxic dumping a 'cri~e against
a and Mncan people .63 The Specl:l.l Rapponellr has no dIfficulty in
~Iogulllga very large number ofviolations these practices knowinglyand
"""rrtal/y entail.~
The reproduction ofsoft states and regimes or the benefit ofthe global
caPItal, benefitmg a few communities of people defines :1.11 imperative of
~Co
~l mnUUlon on Illlman Illl:hts (20 Januuy 1998).
4a CommiSSion Oil I hml1n RIghts (1998) pat:ill9'lphs 54 and 56.
'l ~mnuS~lOn on Hum~n Rights (1998).
04
eu
mmlSSIO(J on Human Rights (1998) pan 57.
IIiId ~IllmlS$}on on Human }{Igh!S (199t1) paras n-I07. See also, Anthony l)'Amato
~ Engle (1998).

138. 252 The Future of Iluman Itlgtlls
contemporary ~conomic glob;&liz.ation.6.5 Th~ suffering of impoverished
propl~ is itTelevant to th~ ruling standards ofthe global caplul, which mUSt
m~asurc the excellence ofeconomic entrepreneursillp by su.ndards other
than those provided by ~ndless human rights normativity.66
The comextuality of this enterprise bids a moment of reflection; the
multinational corporations may not perform toxic dumping prOjects with.
out the activ~ support provided, for example, by the operations of the
intern.aional financial institutions. These make some Third World COlin.
tries which, ridden by 'over-indebtedness and collapse of raw material
prices', to view the import ofhazardous ~tcS u 'attractive' as 'a last resort
for improving Iiquidity,.67 O ne is talking about, in this context, of no bad
business practice which International codes of conduct may reSClle but
rather ofgenocidal corporate and international financial institutional re-
gimes of governance. These righticidal regimes and practices of 'global'
governance remain at the end of the day rhe products of'hard' sUtcs that
find safe haven for hazardous waste, and much else besides, III 'soft' states.
Hard-headed international business practices also reqUIre proliferation
of hard states and rcgtmes. which must be: market-efficient in suppressing
and de-legitimizing human rights-based practices of resistance or the
pursuit ofalternative: politics. Rule oflaw standards and v:alues nC<'d to be
enforced by the State: on behalf. and at the bc:hcst, offotllmions ofglobal
economy and technology. When, to this end, it is necessary for the 'host'
State: to unleuh a tclgn of terror against its own propk, It must bc:
empowered, locally and globally, to do so. The 'host' state (or a state held
hostage), at all times, must remain sufficiently active to ensure maximal
security to the global or foreign investor, which owes some inchoate duties
to assist the state in managing or refurbishing any resultant democratic
dcficit.68
V A New Paradigm of Human Rights
My notion ofthe emergent paradigm (that oftrade-related market-friendly
human righu), so far implicit, nttds a fuller statement. At issue, ofcourse,
6S If }'Qu find tillS too meuphoncal, plcuc rec~11 clukircn pllymg 011 irrnhaleG
nucJcar wasle dump Sllel In Marshall bbnds or the V
ICIltIiS of Bhopal su1J ~utTcrlllg
fro1l1 the lelhal Imp;JCt of caustrophlc exposure of 47 tonnel of MIC.
66 Naomi Klem (2000, 2(K)2) rcmams an Impc:nuve text.
67 United Nanons (1998) at Jnn 57. I
61 The flagranl, ongomg. and massive VKlbtlons of human nghts Ihus t:'11;
dturtlCubuon of Ihe VlOblcd by a po5l.Uhopal caunrvphc Umon Cublde salt:' •
the..,an man¥ment of publIC and polIIcal OpllllOll, nauonal1y and gIoMlly.
The Eme'l,'cnce of an A1tenUte Pandlgtn of Human RIghts 253
the ways of reading the politics oj, :and for, human rights. The former
at'CiSlS thai human rights bc:long:as much to indiv;dual human belllgs u
IllSceonollllC collectiVIties; the latter argues for the primacy ofthe human
~ghts of human beings. ?ver the human rights of :aggregations of
t«hnoscience caplul, enulIlIlg the: consequence that trade-related market-
friendly human rights remain 'secondary' to the 1I111versaJ human rights
of human lxings.
h may be maintained that fund:amental rights and frcc:doIllS, v;;alorizc:d
by the United Nations Charter, belong to individuals as well as associations
ofindividuals. Any argument th:at seeks to exclude corporations and busi-
ntSS associations :as claimants of human rights remams exposed to an
mdictment of enormously inaccurate misreading of the human rights
norms and standards. The right of association acknowled~d as hasic
hunun rights sincc the UDHR at le25t signifies that the right to property
(including intellectual property) may be exercised individu:ally as well
uaociationally. Moreover,since human rights remain av;;ailable to 'persOIl5',
legal persons such as corporations and other business associations stand
CIOtqwlly possessed of a Certain regime of prot«tlon and promotion of
human rights. Further, both under customary and conventional interna-
aonal law st:andards of State: responsibility entail obligations to protect
IDd promote TRMFIIR. If so, all this faults any notion of:a paradigm
oIuti
However, thiSway of reading the UDHR is in itself excessively trade-
Rlaled and market-friendly. Its Article 17 endowing 'everyone' with the
"right to hold property alone or in association with others' does not lay
down what constitutes property; nor docs it concretize what action will
countas an 'arbitrary' depnvation of property. C losely read. Article 17 does
DOt quite: enshrine intellectual and industrial property rights; it only speaks
oCthe nght to 'the prot«tion ofthe moral and materi:al interesu resulting
&on, any scientific, literary, or artistic production of which he is the
author' 6')
Even assuming that the UDHR somehow protected trade.relatc:d
market.friendly human rights, it should be clear that the right to property
WStt
lilt the complex argument III Roscrn.;r.ry Coombe (1998). The UDIIR unlvcr·
oiled neIther the bourgeOIS eapluhst conceptions not the MaouJt-Lcnmlsl notions
II f~rpotale and the fornu ofprol«uon of mtellectual property nghtli: much less did
Irann IOn a code of 'authorshlp' addressmg tI~ consU!uuon ofdeprlvauon, and arbl.
~,Of ~Ute KIIOI't The detcrmillalion of the nature and $Cope of the ngllt 10
~ ,and USOClltcd nouons. rt'mamcd open 10 the powers of nallonal self·
-.s' ~tJon, IlUmfC$1 III dlfferenl rnode5 of the Cold Wlir colutnuuonalisl11 !nven·
n",.u15.

139. 254 The: Future of Iluman Rights
was one among the many hUl1un rights thus enshrined. As such. 1l was
subjet:t to inherent limitltions :!.rising from rights such as immunity from
discrimination on the ground, itlteralia, of'property' (Article 2); ownership
of human beings in 'slavery or servitude' (Article 4); the 'right to work'
and to leisure (Articles 23, 24); and the right to 'adequate standard ofhvLIJg'
(Article 25). In addition, it remains important to stress lim while these
other rights find further elaboration. the right to property does not find
allY place. in the two human rights covenants. To this extent, the view that
the trade·rclated market-friendly human rights paradigm isjust an unfold_
ment of the potential of the UDHR is plainly incorrect.
The argument that corporations have associational and property rights
under customary and conventional intemationallaw may find some sup-
pon from the normative history of state responsibility for lIljury to aliens
in particular the provision of the right to prompt, effective. and JUSt
compensation for taking and the law of belligerent occupation. b~uries
thus suffered by corporate entities stood construed as injuries to the
national state and duties to recompense, ifany, lie with the violating state.
Even so, the post-United Nations Charter law no longer sanctions the
invasion ofits member·states as ajustified mode ofprotecting associatlonal
property rights ofcorporations. Indeed, specially negotiated treaty provi.
sions. such as NAFTA. that enable corporations to sue treaty sute parties
for Violation of their rights, suggest the absence ofany contrary pertinent
regimes at customary mteruational law.
Finally, the objection that corporations arc not bound by any human
rights obligations, under international law, remains unpersuasivc. The
Nuremberg lnternational War Crimes Tribunal did, indeed, sentence lVO
leading German corporations for participation in genocide and crimes
against humanity. Anicle IV of the Convention 011 the Prevention of
Genocide. 1948, provides for punishment of'persDns' committing genD-'
cide 'whether they are constitutionally responsible rulers. public officials,
or private individuals'. Arguably, this inclusive definition may exten~ to
corporate entities.7'O Similarly, the Convention on Discrimlllatioll agamst
bmen, 1979. (Article 2(t», at several places. imposes duties of respect
for and compliance with, women's rights declared applicable to ·an.y
person, organization, and enterprisc'. Many a United Nations surnntll
declarations and programmes of action and provisions of environmental
treaties and arrangements are open to a reading that cast certain hlln~an
rights responsibility lIpon global corporations. Orcou~, any slIch readlllS
will initially provide exercises 111 subaltern construction of instnlnlents
70 Sec:: me 3ru1~l$ In AllIlOl lUmS35UY (2002) and m.lllCTI.lIls 'herem Cited.
The Emergence of an Ahemate Pandigm of Ilunun RIghts 255
thai Intend otherv.rise, in terms of tr'2de-offs between human rights: and
dIr valUes ofintemational social cooperation.71
It is beyond the scope of
che present work, for reasons of space, to develop tim thematic further.
.ArtIcles 28 and 30 ofthc UDHR enshrinc the most overarchlllg prlll-
ciples of human rights responsibility ofcorporations (as well as states and
IndiViduals). The formerdcclares that: 'Everyone is elltltled to a social and
international order in which the rights and freedoms set fonh in this
[)reb.ratlon can be:: fully realized'; and the latter states, memorably, that ...
. .NOUllng in this Declar:lt1on llIay be interpreted as implying for any Slate, group
or p:rwn to engage in any activity or to perform ..ny act aimed at the destruction
of Mly of the rights and freedoms SCt forth he~ill.
AnKle 30 clearly extends to all the beneficiaries ofhuman rights including
~Iions ofeconomic and technological power in the shape ofbusiness
association groups or corporate leg21l persons. They have a duty, among
ocbcrs. to so behave and conduct themselves as not eng21ge in the destruc-
lIOII of the rights and freedoms thus enshrined.
I un aware that many interpretive strategies can be marshalled against
dais conclusion. One that is dearly illegitimate inSISts on the exhortative,
aon-bmdmgcharacter ofthe UDHR. Jlowevcr, ifit IS open todenve basic
~15 of~onol1lic associations from It, it should remam equ;ally open to
cIaive obligations from the same text. especially when these are so explic-
-kiyworded. Nor is the notion that corporations arc not subjects ofintcr.
-.on~ law persuasive in the light ofthe developments already mentiolled.
VI. Why Speak of Human Rights of Corporations?
~ a~ready e~~oumered SOme degree of activISt discomfort among
nghts actiVIsts and lawyers at what they think 10 be an unnecessary,
~
C'Vc::~ dangt:rous, extension of using langwgt that even attribUl~
lIOn n rlght.'i to corporations. It is unnecessary because:: common convcn-
~ ~~Iy;:,qulres a reference to. tI.l~ir legal and co~stitutional rights. It may
enc gc us to allow the poSSIbilIty ofsuch attribution as such transfer.
Ohlyt' oflogic and rhetoric to formations of capit;ll and technology could
enhance tI . I d' ·d .
COu lClr a rea y ,orml able powers. Surely, It mlglll be said, the
f'e ofhurnan rights activism illustrates the strength ofthe denial ofany
'I Sec
~. c~for an interesting ;!(COlIn! ofcomplex blrg:ullIng position the industry lobby
CItt9). rporabOn·spoJUO~ NGOs. 300 envlronmena! NGOs, Chlaf';l Giorgt'tti

140. 256 Thc Future of I-Iuman Right!>
claim to human rights by concentrations of economic and technolOgIcal
POW<'o
In a world ruled by the muhinational.co~rations,' this SOrt of readlllg
~n further empowers a world already rife wtdl massive human violation.
It needs to ~ interrogated through all aVllilable, howsoever meagre. COIll·
parative sociology of human rights potential. If trade-related marb=t·
friendly human rights we~ already anchored in customary intenuuonal
law. itbecomes difficult to understand why glolnl capital increasingly seeks
to inscri~ its rights through treaty regimes. Thl:: archetype of tins is. of
course, the wro agreement, in particular the agreement on trade.rdated
intdlecmal propc=rty rights (TRIPS.) The cxtensivt: regime ofbasic nghts
stand further codified in the World Copyright Treaty, 1996, that now
protects digital works, in particular ownership over electronic and genetic
(human genome project) databases. Further, human rights now stand
claimed in the arena ofscientific research and experimentation (which has
now become hitech and capital intensive and, therefore. increasingly
corporatized) as essential aspectS ofthe human right to freedom ofspeech
and expression. Corporations have also claimed and acquired the right to
'commercial free s~ch' as well as a right to reputation and honour. not
just as a propc=rty. but also as a personality interest.
It is also striking that justifications typically offered for this panoply of
rights thri~s on the logiCS, paralogics, and languagts of human rights.
Collective orders of capiul and technology claim these rights as emana·
tions of al~ady existing human rights of individual human bcmgs since
these a~ human associations, collections of individual humans pursUIllg.
in acts of social coo~ration. their common aims and aspirations. Wh~n
~~Iy interrogated, protagonists ofthese new rightsjustify these in terlllS
ofdIe legltimacy and potential offree markets to stture a better future for
human rights as such. To take a few examples, it is argued, or indeed
arguable, that-
• Human right to health is best served, in a Vllriety ofcontexts. by th~
prott:ction of tht: research and development rights of pharmaceutical and
diagnostic indmtries;
• The right to reproductive autonomy, the right ofwomen over t~~lr
bodies. becomes possible only in a technological t:ra based 011 prott'C
tl
on
of the industrial pro~rty over reproductive technologies;
• A whole vaflety of sustainable development righ~ and proce~ses
de~nd on technological fixes that corporate techosciences make posSible
through new technologies, IIwcnting ways of biodegradable and other
forms of recycling and treating wasteS;
T he Emergence of an Alternate Paradigm of Human RIghts 257
• The menacing environmental problems confronting hununkmd as
J species (depletion of biodiversity, perforations in the ozone layer, and
dunate change) can best be redressed by tcchnoscience;
• The right to food (now re-concepruahzed by the Rome Declarauon
as the right to food security systems) is best scrv~ by proteCtion of the
"gilts of agribusiness corporations:
• The right to public and political pOlrticipation (enshnned III the I)(:c·
brarion on ~he Right to ~Io~ment) is best secured by the rapid growth
ofinfo~at1on technologt.es, whIch has made unanticipated fonns ofglobal
solidanty of the new SOCIal movements possible, in all their resilience.
In sum, the argument is that the promotion and protection ofsome of
the most cherished.contemporary hlll.nan rights becomes possible only
when tht: order.~f nghts for global capItal stands fully recognized. Global
nwkct c.ompetltlon stall~s presented as servicing, directly or indirectly.
human nghts. whether tillS occurs through 'ethical investment', fait-trad·
109. con~u~ler ac~ountability or, as more recently, in the industry-wide
leadershIp III banmng production and distribution of manifestly hazardous
Fnmcally mutated f~stuff. And, increasingly. many human rights ac·
IMSl groups seek to 1Il0uenct: global trade policy for arresting massive
Wobtions ofhuman rights ofthe vulnerable sectors ofsociety (child labour
.. grnder-bascd w:lgt: discrimination. for example). Given all this, t~
~nta~n that corporations and busmcss associallons have human rights
obligations ~d responsibilities is, at the same tlllle, also to maintain that
Ihcy are subJccts of human rights.
Nor nuy 'Nt: obliterate al~ther from actiViSt memory the remarkable
~ples for South Africa developed by and named after Reverend Leon
an, a board member in General Motors. The Sullivan Principles
::; on ~nc estimate, ~OPled by 200 of 260 US corpof2tions doing
ess WIth the apartheId South Africa. Much the same needs to be said
COIlceEummg t~c: McBride Principles for Northern Ireland. And at last the
ropean Bnberv Co ° 1996 ' ,
10 . , nvenllon, , marks a triumph for people's right
transparency in . . I b °
live .. Illtemallona usmess. even though besct by construc-
amblgmty about the proscribed conduct72 as it also registers the success
~
.....,T h,e Convcnnon makes 1 an offence 10 bribe foreign st;lte offiCials. This
nt yexcludes acu th b °bo
r' °
Cldrn Tb a comprise rl IIlg 0 po IUc~1 paniCS. thdt leWers. and
. e reason for thiSISobvio IS Co ' d ' I
qul~ th d I . rponlC un mg or e « tlOII campal8l1mg has
_ E e ImcnSlons of die FirSt Amelldmem type rights In the Umted SuteS·
...I.....- UI'()../unenCOIII h roved ffi • In
_ 5 of d ' I SAIC:I It as p dl Icult to structure hlmu 10 11 as well as
~. .~sc osurc. Such fundmg. leglUliute at home. forbids Its deSCription as
, ~...""'; ell pncnsed abro.d. In any case, outlawmg ofsuch prxtices IS left to the
potcntul of the 'soft' suteS!

141. 258 The Future of ilumafl Rights
of underlying pressures from the American industry for cre2t1ng a level
pl.aying field . .
Ofcourse, a radical reductio nist position Will refuse to recognize these
industry inioatlves as 21lything more thall tokenism, given the domin21lt
business ideology summed up in the m.axim: 'The Soc121 Responsibility
''' And - - - h
of Bus iness 15 to Increase PrOfi15 . It 15 cerulll y true t at the
community of multimtionals (no matter how riven with intem21 compe_
tition) m2intains an unsurprising solidarity against. imposl~o~ of new
hum2n rights norms on their structure and operations. ThiS IS clearly
manifest in the recent successful efforts excluding multin2tionals from the
jurisdiction ofInternational Criminal Court, and since the 1970s, pr~ent_
ing211 United Nations-based efforts at a Code ~~Con~uct for Tr.msnatl?nal.s.
A less fundamentalist position, while recogJ1lzlllgfallures, would maultam
that glob21capital is already in the t~r~s of the ~Iitics oJ humaT~ rights
2nd the task is to seek to convert tillS IIlto a pohtlcsfor human n ghts.
VII. The Nature and Content of Trade-Related
Market-Friendly Human RightS
Increasingly, global c;!.pital claims a new o rder o f intem:Hion21 rights for
Itself in w:ays that h2ve profound destructive imp2cts o n the hum:m n~1tS
of human beings everywhere, as even a bare rt"ading of the euly verslOll
o f the Draft DECO-sponsored MAl abundantly shows. The prote<:non
rigllts o f foreign investors is to be ofsuch a high order as to deconstruct
all traditional and newly emergent human rights as 'trade distonmg' pohcy
obstaCles that need to be overcom e in the very title of making the future
of hum;!.n rigiltS secure.
In 1995 as befitted the occasion of the United Nations Copenhagen
Summit o~ Social Development, I circulated the following Draft Charter
of the I Iuman Rights o f the: Global Capital?·
- . f h and SOCI~I
Adtnou~'W that economic d~lopment IS the qUlIltcssence 0 uman
developrnelll. f 11
RNlliziNg that the pursUit of profit, at lIny or all costs, is the qUintessence 0 a
economic growth and devdopmem,
d d h laid foundJllons
NotillX thlt throughout human history tr:.I e an commerce a,!e 11 le-
for multiculmraVmulu-civilizational contacts and exchanges III the rutura y
gitim:l.te IT.7.ditions of social Duwinism,
1i 13 ScptCnlbcr
7J Advocated by Nobel Laureate Milton Fnedman. Nn41 'Writ 11111'1. .
1970 (Ma~zme)_ ~. for funher analYSIS, Chaptcr 9. eOIWfU1
74Sec Upendra Ibxi (1995). The statement is repnxiuccd here with nllnor
vanauon.
T he Emergence of an AJtemate Paradigm of Human jljghts 259
ialllfg fully that all possible alternatives to caplulislIl have btxn tried and
::; WoI.nung by the states and peoples of the world.
1ft the Foundmg Father1 of Globailuuoo, affirm and announce the foUowlIlg
uuilCllabk rights of the gJobaI capiuJ as the beSt :lS5ur.mce of achlCVng a new
world Older, haVIng the potential for progressive realtzauon ofall other subsKiwy
human nghts--
M The right to Immunity from any symbohc or other sigruC.cant displays or
cxm:ises of State sovereignty,
(11) The' right to cajole', corrupt, national regimes III the interest ofhllman and
sorUI devdopment;
M The right to command. as required, national sovereignries to coopt, corrupt
or coerce human rights communities engaged in acts. and even thoughts and
brbe&, manifestly subversive of globalization;
(J) The right to suborn all lcamed professions (including bw, medicinc, media,
science, and education) to practice and propagate values serving processes of
gIoNliZiitiOIl;
(~) The collective rigllt of global capital to u<;c democnric processes and power
(and where nt:'Cl:sS.7.ry thl: right to subvcn these) by W.7.y of spccialmtercst lobbying
to enhance the factotS of production;
(/) The right to inlillunny ag.:unst corporate confusion or incoherence arising
&om unsohc:ited, undue and untuward exposure of management and Ciltrepre-
btUlUl taknt to the counter-prodocuvc and corrupting langu~ ofhulIlan rights;
(f) The right to freely create. WIth sustanuble illlpUlllty human. bio, etO, and
tmnic hu.ards and m order of human violation commemurate to. and functioml
wicb, lhe development of the productive forces of g1obaliutlon, WIthout undue
obIiganoo for repantlon, restltuuon and rch.7.blhution;
(II) The right to resist, covertly md oven~ all threats to global c;J.piul and, in
particulu the freely organize, reorg;tnize, and dlsorganiu public memory con-
cenung the so-nlled corporate violations of human righb, :lS an IlllcgraJ aspect
ofthe human right ofcorporations to privacy. honour and near-absolute right of
Commercial free speech;
(i) The collective right of the capital to inveTlt. and put to work, llllemational
and Intergovernmental organiZiitions which are funeuon.7.lIy superior cqUlV.7.IClllS
10 the protection of rights set forth herein.
Thus enunciated, tllis Magna Carta of global capit21 may invoke 2
moment of mirth , both ;!'1lI0Tlgst the CEOs o f multinationals and even
among !>Orne communities of human righ ts activism. But granting the
IItlsfaCtlon of the yet unscripted. yet b2Sic. hmmn right to laughter, my
~nt remallls: the On.ft Declaration reflects many an element or configu-
fation o f collective rights ofthe glob;!.l c2pitill curremly firmly in place. An

142. 260 The Future of Human RIghts
exhaustive demonstration furnishes scope for another work: here a few
illustrations will suffice.
I attend to (g) and (d) above in some detail in the ~ction lX below, The
materiality ofglobalization'. The right enshrined ill (b) has a long history
offructuation in ways that American global corporations, during the Cold
War era, sought to depose duly electcd leaders (as, for example, in Chile)
and supported, and connived with human rights-violative authoritarian
regimes in Latin America, Africa, the Middle EaSt, and Asia. The rights
enshrined in (i) arc already at work in the CUrTent processes of the
privatization of the United Nations7s and me formulation of POwerful
inu:rgovernmenul global and regional trade organizations. The rights
enunciated in (() stand poignantly illustrated in the now well-established
patterns ofmultinational-host state collaboration rd uhing in the Judicial
murder ofKcn 5.a~WiWOl. Other cxamplesofrepressive compliC
ityabound.
50 do industry-based NGOs that elCploit the freedom of association and
expression, which usually stands denied to the oppressed and the re-
pressed, or is attained after prolonged, and often bloody, struggles.
The recent emergence of Strategic Law Suits ag:.inst Public Participa-
tion (SLAPPs) deserves a special emphasis in relation to the rightS en-
shrined in (h) above. No reader of the work of the Georb>C W. Pring and
~m:lopc: Canan, who first Invented this neologism.76
Will remain In a
position to comest melr conclusion eimer about the 'chilling effects' of
SLAPPs or the ideology and material interest forntanons that these rep-
resent. As they put the heart of darkness:
By filing the SLPI~ economic IIItercslS express their intolerance for alld seek.to
stifle the expression and views of other citizt'ns, c:ffcclivcly den)'lllg the equal'lf
ofcitizenship so fundamenul 10 infomled politial dccisioll~maJong. SUJ'P filers
justify solving politlCll disputc5 non.politiclily on the inslS ofrighteous ~onoml.c
sclf.illtercst coupled WIth intolc:rance faT civic-mindt'd public J»"IClpatiOn. ~lIS
is an ideologic argumc:nt for cconomtC intererol1S the superior VOice in detemun·
IIlg public policy
SLAPFs, a dominant modality of multinational endeavours for the
cancellation ofthe rights offr~ spc:cch and expression ofindividual hu~n
beings, arc also directly violative of me: values of public participation
affirmed by the United Nations Declaration 0 11 the Right to DevelOP-
mem.n And it would be a mistake to conceive of SLAPPs as wholly
75 Tht'K is no other "'~y ofckscnbmg the: ~tatc: ofsome of Ihe current miliaUVd
at 'mamsueammg' hUIlUII rights.
76 Entltkd SLiPPJ. CttlltW Sutdfor Sprftlng Out (1996) 221.
n Upendra IbxJ (1998).
Tht' Emergence of an Alternate Pandlgnt of Ilunun RIghts 261
cbs ncllve Amerian phenomena. Globalization of legal technique now
:rc:s that South human rights activists stand equally, evt.n more, con-
:nlc:dby Its 'chilling' potential.
VIII. The Paradigms m Conflict
'(be new paradigm may succeed only if it can render unproblematic the
voitts of suffering. This occurs in many modes. One such IS rationality
monn, through the production of epistemologies that nonnalize risk
(dJtre is no escape: from risk), ideologize it (some grave risks arc justified
ror the sake of 'progress', 'development', 'security'), problematize causa-
DOn (in WOIYS that the ca12strophic imp.acts may not ~ traced to activity
rJi global corporations); raise questions, (so dear to law and economics
specialists, conceming efficiency ofleg;!.1 regimes of liability) interrogate
eftI1 a modicum amount of judicial activism (compensating rights-
'fiobtion and suffering, favouring-when risk management and damage
oontainment strategies fail-unprineipled and arbitraryextra-Judicial settle-
mnu). It is not surprising that some of the most important questions in
JIobahzation discourse relate to how we should conceptualize 'victim';
whonuyauthentically (on behalfand at the behest of) speakaboutvictimage;
- what, md~, may be said to constitute 'suffering'.
The new paradigm asks us to shed the fetishism of human rightS and
~ate that in the absence ofeconomic dc:velopmelH human rights havc
bo future at all. Some behavioural scientists urge liS to believe in a quan-
thativt- methodology that produces results,ttrtainly for them. demonstrat-
inga positive co-relation between foreign direct investment, multinational
capital, and observance ofhuman rights.71I
It is easier to combat dictatorial
regimes that suspend human rights on the ground ofpriority ofeconomic
dtvt:lopmem than to contest the Gospel of Economic Rationalism, which
.. mystified by new scholasticism content with the assertion, for example,
that 'meso--dcvelopmcnt' is best promoted under conditions ofauthoritar-
Ian 8OVemance.79
Fautr dr minIX, human rights communities must now work within the
~s and imperatives of economic rationalism ; they must not only
toYtr the high ground of posunodern political theory but also the new
~tut'onal economics, maintaining, at the same time, constant convcr-
IItion with human suffering.
.~
_ dus Ilh~m H. Meytr (1996) 368-97. Hut 5tt (or I~ mht'r IIIdncmlinatc findlllg
" kOk, Wesley T. Milner (2002) n.JJ7.
",,""Id Ibnkltiv (1994); see also Cathanne Caufdd ( 1996).

143. 262 The Future of Human Rights
The paradigm of universal human rights progressively sought norma.
tive conSC'nsus 011 the j,utgtlty ofhuman rights, though expressed in differ.
ent idioms. The diverse bodies of human rights found thclr hIghest
summation With the Declaration on the Right to Development IIlSistlng
that the indiVldual is a S/lb)ttt of d~pmtnt. Plot iu obpl. The etner~nt
p;aradigm reverses this trend. It seeks to make notJust the human indiVidual
but wlloI~ IlaliellS into the obpts ofdevelopment, as defined by global capital
embodied in the 'economic rationalism' of the supr.Htatal networks liu
the VOrld Bank and the lMF, which are neither democratically composed,
nor accountable to any constituency save that of the investors. Their
prescriptions for re-{)rientating the economic structures and polices ofthe
indebted and impoverished Third World societies, far from bcingdesigned
to make the world ordercquitable, stand addressed toserve the overall good
ofworld hegemonic economies, in all their complexity and contradiction.
Prescriptions of 'good governance' stand viciously, and nOt surprisingly,
addressed only to states and communities outside the cort! Euro..Atlantic
statt!S. Even so, in good governance stands articulated a set ofarrangements,
including institutional renovation, which primarily privileges and dispro-
portionately benefits the global producers and consumers.
T he paradigm ofuniversal human rightS enabled the emergt:nce ofthe
United Nations system as acongreg;;ation offaith. Regarded as noomllll»'
tent deity but only as a frail. crisis·ridden arena, it became the privllegW
historic site for cooperative practices of reshaping the world through the
idiom and grammar, as well as the vision, of human rights. The: votaric:s
ofet:onomic globalization who proselytize free markets that offer the: best
hope for human redemption now capture this arena. But the residue of
the past cultures of universal human rights remains, as has been recently
manifested in a United Nations document that dares to speak aboutpnvrtsf
forms ofglobalizatien: namely, those which abandon allY degree ofrespect for
human rights standards and nonns.80 A moment's rcllection on the wro
agreementS and the proposed MAl should demonstrate the truth of this
assertion. But, ofcourse, at the end ofthe day, no United Nations fonnu-
lation would go thus far, give:n itS own diplomacy on resourcing the system
and the emerging global economic realities. The Vienna Conference on
Human Rights Slimmed it all lip with itS poignant preamblilatory reference
to 'the spirit ofour age' and 'realities ofour time,.81 The 'spirit' is hwnan
rights vision; the 'realities' stand furnished by headlong and heedl~s~
processes of glObalization creating in their wake cruel IDglcs of soCIa
exclusion and abiding communities of misfortune.
80 Se<-, Commission on Human Rl.ghts (1998).
II See Upcodn 8axJ (1994) 1-18.
The Emergc:nce of an Alternate Pandigm of IlullUn RIghts 263
Of course, the continuing appropriation by the forccs ofcapital ofhard-
1l/'Of1 human rights for its own ends is not aJui gtt/ern CVCnt. Long before
sbvtry was abolished, and wolllen got recognition for the right to contest
and 'lo te: at elections, corporations had appropriated nghts to f'MOllhood,
claIming due process rights for regllucs of property, denied to human
~ing5.82The unfoldment ofwhat I name as 'modern' hUlnan nghts is the
scary ofnear-absoillten~ ofthe right to property, as a basic human right.
So is the nalT2rive ofcolonitationlimperialism which began its career with
the archetypal East 1ndia Company (which ruled India for a century) when
tfIII1I"'ak sollffrigllty was illa/lgurat~d. Politics WoOlS comllltTtt and commerce
became polilin.
So, it might be said, is the case now. Some may even maintain that it
bad bc:en the case even during the halcyon days ofstriking human rights
enunciation (from the Declaration on Permanent Sovereignty over Naru.
raI Wealth and Resources to the Declaration on the Right to Develop-
ment). Peel offthe layers ofhuman rights rhetoric, they maintain, and you
will find a core of historic continuity where heroic assertions of human
....15 remained, in fact and effect, the insignia of rriulllpham economic
IIIIICrC'sts.
This continuity thesis dekrves its moment. It directs attention to facts
tad feats of glowl diplomacy over human rights in ways that moderate,
orcwn cure, thecelebrationist approach to human rights (whether human
li&htsrottlanluism, mrstirism, trimnphaliJm, orhtdoniJm). 1t alerts us to the fact
. .wadlln the modalities ofhuman rights enunciation pulsate the regular
ltartbeats ofh~monic interests. It directs us towards a mode ofdtought
... rt"!oc.ues the ;!.uthorship of human rights aW3Y from the politics of
~emmental desire to that ofthe multitudmous struggles ofpeople
Iplnst human vioi.tion.
..!'so, is there a paradigm shift or merely an cxtension ofbtent apitalism
h h.s always moved (as the readers of the volumes of Vas Kapirol
~1:"oW) ~Iong the bourgeois trajectories? This is an important and
_q~esnon. My short answer for the present IS that while the
~Iatloll by the capital of human rights logic and rhetoric is not a
IIUi ,vely contemporary phenomenon, what marks a radical disconti.
ty IS the scale of revmal now entailed
Global bu . . I fi .
0( SlOess practIces canee, or example, many a normative g:lin
COntel11porarv I . h
If ~ . .I lOll1an fig ts movements through techniques ofdisptf141
t'IIIls. T he exploitation of child and sweat lahour through free
as<,
, for an analYSIS of tlus. by no n1(,:lns complex, process Dri J. M3yer

144. 264 Th~ Future of Human Rights
d .ccomp,nying sex~based discrimination m cven
economic zones, an
bs· s is the hallmark of contemporary tcononllc g1obahza.
su Istenct wage: , b I ' k ' . '" I
S ,I e 'o.n" of creation of a 'glo a ns society, t Ie cver.
lion. 0 are I " S4 I bl .
replenished 'conulluniucs of danger', ~nd th~ v:=ry cgl e ~np15 of
'organized irresponsibility' and 'organized Impumty for corporate ofTel~_
ers. of which the Bhopal cawtrophe f~m.ishes a mo~rnful remlllder.
d ' ' h 'h ,radignl shift 15 the doctrine of legWtn(l/lOtI of
What IsungUis es e p
.J' • •• ojh"m(lll sull"erina in the cause and the courSt" of the
txfrl1()T"ltkJry In/poSl/tOII !ti' '" •
h fthe global capital. In the 'modern epoch ofhuman
contempor2ry marc 0 ..
, h ~. ......., considered ...... ~ legitimate. Contemporary
nghts, suc SUII~rmg "".... Y" . I
' h I ' d P .....1
n<7ics challenge and at tulles deny, t liS self-
human ng ts OSIcS an a... _~_ , . . .
, ' TI d'gm shift seeks to oncd the hlstonc gams ofthe
evident axiom. Ie para I . bl
' I I 'gh'o movements in seemingly Irrcversl e ways. It
ul11versa luman n '" ' . . . I
I 'ce' of ,uffering and III tilt: process, regress Ullllan
seeks to mute t Ie VOl ,
rights futures.
IX. The Materiality of Globalization
TIle paradigm shift cannot be understood outside the mate.ri.:llifiity 0J;~
b.:ilization By this expression, t wish to signify the t«'mOSt/tllt/ l( /PI )
. . ' .deotogy (in the Gr.ullsclan sense:
proc/Ulriotl and the accompanYlllgorgamc I . Th od resents
that resents itsclfas redemptive ofhurnan suffermg. at III e p . .
itsdfin several unfolding moments: in the civilian ~sc: o~nu~lea~ en~~;
the incredible growth of infonnation technology (dlgltahlatl~I1). an
nd
in
development of new biotechn.ologies. Each on~:!d~~~':~~~~~rary
combination, threatens us all WIth the prospect 0 f hg -nds pro-
.th obsol~tn(t Each one 0 t ese s....
hum.:ln rights lan~ WI ' . U d lying e.:ICh
moted in hOlmn rights, hum.:ln futures, fuifilllllg sen~. d n ~r ken of
of these IS the ceaseless promotion ofwhat are concelv~ .:I~l spa ught
as 'str2tegic' new industries whose competitive pro~ouol~' a;~~nostate
to rem.:llll the be-.:III and end~al1, of contemporary u.ra- c;es ofcivil
form.:ltions, And each marsh.:lls.:Ind commands the crea~lve ener •• and
. h I f ew SOCial mavemen",
society brroups in rcsistance-Ill t e.s lap<: 0 n formations of
often undcr the title of human nghLS-t~ thes~ new . t in any rich
technosciencc: power. It would overburden tillS wor to prc~n , adi n.
d~uil, the challenges thus posed to the universal human nghts par gJ
A silhouette: must perforce suffice.
&) Ulnch Ikck (1992). See. al~, Donunlck Jcnkllls (2002)
14 Ottp~k Mehu and Rom~ Chnlel)t'e (2001).
85 See Upc:ndra H:axJ (1990) I·box; Upc:ndn &xi (2004).
The Emergence of an Alternat.e ParadIgm of Ilum;1n Rights 265
(1) Nudear Euergy a"d J.#aponry
Tbt developmcnt ofnuclear weaponry .:Ind energy for Civilian use IS coeval
th dIe growth ofcontemporary human nghts, which were born 10 the
:nu:xtofthe Holoc.:lust as well as t liroshima and N.:Igasaki. And It .:IfTects
for weal and woe the nature, carttr, and the future ofhulllan nghts. The
suuggle .:Ig3inst prolifer2tion, .:Ind tht movement to end nuclear weapons,
ba~ beeD .among the most impressive moments of human solidarity
worldwide. These even led to.a partnership ofprofessions that initi.:lted a
function.al equiv.:llent ofsoci.:ll action litigation before the World Court on
cbc issue of legality of nuclear we.apons.86 It yielded some hum.an rights
pins but it would be difficult (Q gle.an as .:Imong its .:Ichievements the right
10 pe.ac~ or even a right to a de~nuclearized world order.
The most profound effect on emergent hUlll.:ln rights cultures ofnuclear
military technology is the construction of a security state, which readily
converted itself into an order of (as E.I~ T hompson described) the secret
1Mit.1J? The culture .:Ind the cult ofofficial sccrecy monopolize infonnation
.. , fcw h.ands .:Ind structured censorship that, in tum, helped promote
pinnaia .:Ind prop.:lgand.:l. The State shield also extended to civilian nuclear
cangy plants. whether or not state-owned. From the very beginning
ddimce industries secre:tize the processes ofsctentific research and tceh-
DDIogical developmcnt and legitimiud Wcgious viol.:ltlon ofhuman rigllts:
aptnmentation with human subjects, exposure to llllpennissible lewis
Clfradiation to scientific, technical, .:Ind mtmal workers.:lt the site, conscn-
...or coerced exportation ofnucie2r wastes, various orders ofheahh and
aMronmental harm by nuclear teSt sites and zones, both within .:Ind
outside nation.al borders, and dle development of a policy culture: of
CIlVironmenta1 racism t.hat, most crucially, confiscated indigenous peoples'
Imds and rights. The secret state (network of defence establishm~nts,
~tries, civilian scientists and technologists, and b.:ind of select politi~
Clans) m.arks a toul negation of hum.:Ill rights. Propagand.:l- now height-
thed. in a post-9!l t world--of course, maintains that the secret state
rtrnains the best assur.:lnce for the achit.'Vcmellt of nation.al and global
litturity within which rights-talk l11.:1y make sense. In some sense, the
•
IlO6-See, fOf ClQnlpJc, Burns f f. Wcslon. ltiehml A. Falk, 1111.uy Ch;.rlcsworth (1997)
" 19.
• E.p Thompson (1989) 149-80.
~
The liternure 011 IhlS ,uhjcct IS VoISI. 1 here IIVI~ allennOIl 10 Ihe following:
a..dc; (~Ikc:r (1999), P:!.ul II. MeNClI (1998). Jay tUtt (1997). Richard PIerre
), BntJsh Mc(hcal Assoc.auon (2001). KelVin M . Kmg (1998), and the
photo ~y by Carole G~Jlcngher (1993).

145. 266 The Fltu~ of Human Righu
development of biotechnologic21 industries W2S, as we notlcC' I:l.ter, to
n::produce some of dlesc very features,
Civilian uses ofnuclearenergy have been assiduously pcnTluted as 'safe'
even:lS rd::advdy ceo-friendly (as compared with coal mining, and asSOC:i~
::ated violation ofhuman right to he::alth). The nuclear industry has silenced
ev~rywhen:: and by :l.llm2I1nC'r of me2n5, issues conce:rnmg safety at th;
workplace. reactoraccidents.disposaloftoxic, long-life nuc!e.rwastcs, and
decommissioning of civilian nuclear plants for which no known safe
technology exists. Its promoters. at least on Capitol Hill. capped through
congressional legislation corpOratC' li2bility to an order of$560 million, the
rest where called for being the responsibility of the federal government,
whose regulatory :l.gencies were .Iready captive to the strategic industry.
The amniocentesis ofhuman rights was thus predetermined by patterns
ofstate-industry collaboration, which 'ltmnaliztd risk-::analysis to the point
ofindustry-oriented risk.managclffrnl, rather than Iwman riglJts-flrit'tlfw risk
analysis ::and man2gemcnt. Movements, both social ::and human rights-
orientC'd, wen:: thus constrained, from the start, by the logic of this St2te-
industry combine. Pitted against the state_tcchnoscientific combine, soci:l.l
movements, including human rights mOVC'm~nts, stand reduced to con-
frontation wah locale decisions, nucl~.r wast~ disposal ::and eventu21de-
commissioningpublic choice decisions (as in the temporary loc::ation decision
ofhaurdous nuclear W2StC'S in Nevada). This habitat. marked worldwide,
dlOUgil important, does not yet fully address the might of the state-
industry combine of the worldwide civilian nuciC2r industry.
The industry marsh2ls langu~ ofrisk-an:l.lY'iis and risk_managemelll
to which human rights I2nguagcs have yet to provide an effceti'(: responst.
If scientific and 'menial' workers are exposed to radi2tion risks, ofcourst
these are said to be minim21. ofno diffen::nt order than those involved In
convention21uses ofenergy. When statC'-of-the-art nuclear-safe technology
fails this is due only to an inefficient state management (:l.S in Chemobyt)·
Nuclear technocrats surely h2ve bener answers to safety of reactors than
ill-informed, loud-mouthed. and sciemific211y iIIitC'rate public opinion
leaders and movements. In any case, is it not true that more human beitl~
perish in road accidents, and from drug-addiction, smoking-induced atl-
ments, prcm::ature sport fatalities. and simil2r epidemiologies? What the
nuclear CZ2r5 ignore is the order of mutagenic risks thus entailed. But, then,
who C:l.n S2y, ill the statC', even ofpost_Hiroshiana!Nag2s2ki discour~r""hat
the environmental and he21th risks may be, given the World Court'S re,c:~
determination on the impossibility or hazards of nucle2r weapOnry·
19 Sec Uum5 Weston, Richard nlk. and Hilary CharlC5WOnh (1997), 1)06--19,
The Emergence of an Altemate Pandigm of Iluman R'ghu 267
"'aching. they further m2intain. needs to be S2id 2=ill"llh 'OL_- "
I'" . rr" e u:oo..uranuSlu
ci hunlan nghts movemen~. Should we rather nOt accept the delightful
iJuOUClance ofJ2mes Schlesinger, the Chair ofthe AEC h b -,-~
, , w 00 SCIVl;U2n
underground explosion ofa nucle::ardevice at Amchitn AJ••,- 'I '
" 1 k'" d '" do' ' lo...., S2ymg: Is
fortJ"f I'~ JW ar! my IIII
~, /jllIN 10 gtl all'a),Jrom the IrQUMJor awhilt'?,90
Tbus, It comes to pass, III these halcyon wys of g10~hZ4tion, th2t the
corporate Im:&ge of Wttkend 'fun' st2nds symbolizro 2S a L.J f ..'
h
L _' d h ' . lUUgc 0 J;;Uety
(or- uman Ul:"lIlgs an t elr enVironment.
But, ofCOUf'sc, the hum2n rights of::affected loc.1 ,ommun I ' h '
I d
' IleSlnt elr
r~bcally 2 tere environments st2nd <7r.Ively J""'"2rd d CI b
. I 0" - - - r Ize , as lerno yl
With awesome crue ty demonstrated. The testing of nuclear weapons has
the S2me adv: rse e~e~t. 2S shown by.the plight of the affected people in
PoIdur;m, ~~asd12n. Indeed. the Indian prime minister was heard to sa
that some cItizens had patriotically to be2r the burden of I d" 'd Y
, I nlaspnem
acqUlnng nuc e2r weapons capacity. The lanmla...... of -- ' 1 1
and'd 'l . . e,' e,-" . ...oolla 101l0ur
pn ,c make I lusory the entire Issue of the rights to health and survival
m dlglllty of pc~ples thus adversely affected. Nucie2t nationalism con-
mves the p~rsUlt of collective hl1man security ::as ::an elld in itself. t h
cost of massive and ongoing violation of the ri...lu to be: d • at. e
human. ~ all to relllam
t3,23~ post-Cold War 'deconllnissiolllng' ofnuclear weapons (as many as
weapons or warheads were 'dlS2ssembled' m the U . _.J S
betwttn 1982 92 f mtcu tates
~ad - atana~erageo l300pennnum)9I andesumated 10.000
a; ~ were to be dlsm2ntled in the 19905; one does not have an
au
omu~on from the Russian side. The lifC' of contalmnant w.lSte ~
PI
mat, to be: 700 million years fot Uranmm-235' 24000 l'
ulOllIum_239'9'1 d ' 'I . ' , years lor
!em. h gh • an Slx ml hon ye2rs for Plutonium-240; similar prob-
Th
• t ou on a lesser SC2le, exist for aging nudear powe' plants '1.J
ISrather summa ' d " .
10 conv ~ na~auon, esplte bemgjudgemC'ntal. is intended
.1__ . C')' that nucieanzauon constitUle5 a dominant and dotenn'
UUflUJn ofth . r f ., IIWU
IUspC'nd I e I~tena Ity 0 globahz2t1on. It is a force: ofproduction th2t
them ths t Ie ethical order. It also produces certain superstructu~s among
with th ~ e~ergence of a New int('rn::ational Military Order 94 i~ 2t war
e ogtc and rhetoricofcontemporary human rights enlll~ciationsand
~
Jame'S Rldgewa d J ffi
"1 US Offic yan c rcy 51. Claire (1998: emphasIS added) 1(10,
91 US om C of1Cchnology Assessment (1993a, 1993h).
91 US O~ce oflkhnology AsseSSlllcnt (1993a, 1993b) 68
94 Sec ICC of Teehnology Assessment (1993a) 101-47..
c-. ,Anthony Glddenl (199016>-78 183
_ OI'dcrs .J-fi ' • l ie depICtS 'glohahuuon' as am'· f
~ , U'C IIllllg the arlOgn h f h ... 0
tional dIVision of 1 bou P Y 0 unun ooochuon: the lutlon-Sute system,
a t, wutld apluhsr economy. and world nllhury order.

146. 268 The Future of Hum:m Righu
movements.95 Its own distinctive patterns of hegemonyand subordinuion
foster civic culturc5, legal orders. and lx-liefsystems. including ideolOgles
that;are irredeemably antagonistic to the global cultures of human rights.
And the current movement tOW2rdS reduction of nucle;ar weaponry
and comprehensive test ban, while open to a human riglns readmg. is
dictated more decisivelyby inner strategic compulsions in a post-Cold w...r
scenario still within that mode of production. In that sense. the future of
human rights remains as fractured and conflicted as it Ius been for the P;lS[
five decades.
(b) Digitalization
Enwombed in defence technology industry, the eml!rgt:nce ofinformation
technology is another decisive transformation that Ill;!.rks contemporary
globalization. The contemporary world stands transformed in several ways
by the revolution in microchips and integnted circuitry. First, it enables
patterns of timc-space compression, a defining feature of contemporary
globalization.% Second, it makes re..l the hitherto unimaginable advances
in genetic sciences and strategic biotechnology industries: advances in
recombinant-DN A technologies depend wholly 011 revolutionary tech-
niques of artificial intelligence. Third, it reinforces the very foundations
of a secret state monopoly over weapons ofmass destruction. r"Ourth. thiS
development provides a driving force for the global emergence of trade-
related market-friendly human rights. Fifth, it leads a movement towards
re-definitions ofimpovtrishrnent: poverty is no longer to be identified III
tenns ofmaterial deprivations but in tenns of access to infornu tion or to
cyberspace. Thus. one hears of 'dead' or 'wild' zones of urban impover-
ished in tenns of cyber-poverty, rather than in those of right to f~,
housing, and health.97
The new South is cyber-poor; the new North IS
cyber-rich, thus marking what is now named as a 'digital divide'. Sixth,.we
witness the emergt:nce of a netwOrk society in which political practices
stand heavily mediated by the timeplace of privatized mass media and in
which human and social suffering becomes heavily commoditized a.ud
fungible, to a point where it seemS to lack any voice or future outside
corporate media packaging. Sevcnth, the emergence ofinformation t,:ch-
Ilologies has facilitated widespread privatization of governaTlce fUTlctionS
95 Soanng anns txptnduurts and unconSCionably high defence budgets luve
forever dcfcrrcd Ihe 'progn:5sIve K~hu.lion' of soc::ial. ccononllC. and clllUr~l nghtS.
116 Ronald Roberuon (1992) at 8-33; Oavid Ilarvey (996) 207-328.
'T1 Srott Lash and John Urry (199<4) 145-71.
The Emergr:nce of an Altemate Paradigm of Human Rights 269
( welfare administration, education and research. health and sanitation),
~king and finance. business and industry and transport and commum-
carions. Eigl1dl, robotics Ius had enonnous impacts on notions of work
and kisure and pauems of !>ystemic under-employment.?8 Ninth. thiS
emergence makes mcoh~r~nt t~e old appr03ches to regulation by means
of law. policy, and admuustntlon as the current controversy ~r the
subjeCtion of Microsoft to the US ;mn-tnlstJunsprudencc and over the
regulation of the flows of obSCt'ne and violent traffic over the Internet
shows. And finally, (without being exhaustive) digitalization ofthe world
provides timeplacc for increased and voluminous solidarity among new
sorial movements, nourishing, as well as fatal, to contemporary human
rights culturcs.99 The halcyon days of mass movements tend to be replaced
by pcrfonnative acts in cyberspace.
These: ten features in all their complexity and contradiction complicate
thttaSks ofreading the future ofhuman rights. BlIt one thing is clear. The
patterns of global hegemony of ownership of cyber-technology, and con-
lCqucnt cyber-vassalage. arc here to stay and grow enhancing further the
Non:h-South inequities. unless hl1lnan rights m~l1lents foster new futures
bdte cyber-proletariat. It is also clear that instant email solidanties. while
Iel'Ving to arrest (as the reformation of the MAl shoW$), carry with them
• danger of making local mass m~mel1ts almost irrelevant to the
IBIking of future huma.n rights. Digitaliza.tion of protest movements, as
c.trlls has :.nown, no doubt contingently enhances the power ofcollcc-
_socia.! action; how far this powt:r assumes often an illusory form must
ftlnain an open question. [n contraSt, there is in eviden~ the incrusing
pown- and movement of some manifestly human rights antagonistic
lnrNttnents that succeed in naming the values and nonn ofcontemporary
human rights as a source and seat of radical evil.
(e) BiotedmoWgy
l(civilian and military lISCS of nuclear power dominated the early decades
olthe second half ofthe tw'entieth centllry CEo the latter decades have been
~d by the pervasive breakthroughs in the field of genetics. The
anees 111 recombillallt DNA engineering have been spcctacularlywide-
:tng and ~cJate to almost every area of 11lIIllan life. Advances in cyber-
~ol~ give rise to a whole variety ofbiotechnologies and underlie the
1St: and 'perils' now of new forms of emergent nanotechnologies.
-
" Gorr. (1982).
5« Castells (1997) 68-109.

147. 270 Thc FolUre of Human Rights
These also give binh !o the fomtation oftechnoscience based100 Strategic
industries that resent and often reject state and internation.al regulatIOn and
generate new fomls of t«hno-politics.101
1bgcther, these constltme a
genomic materiality of globalization (little noticed in social theory narra_
tives ofglobalization) contributing to the formation of'New World Order
Inc,.102 Biotechnologics, united in the pursuit of reductionist life sci~
ences--where 'life' is no more than infonnation open to technoscience
codification, manipulation and diverse techniques of mutation and repro-
duction-fail into several domains. Each domain prOlmses the 'greatest'
human good. Agricultul'lll biotechnology. fostered by agribusiness, prom_
ises food for all; pharnlaceutical biotechnology promises health for all;
industrial biotechnology promises sustainable development for the world
and the human genome projects, among other things, now promise new
possibiliries in therapeutics and benign human cloning. The belief that
biotechnology provides unprecedented vistas ofhuman progress is notjuSt
media hype; its practitioners, in all parts of the world, live by it.
It is an anicle offaith with this community that, no matter what human
rights and social movements may say about the human and social costs
entailed in the processes ofgenetic research, experimentation, and appil- I
cation, the ovel'llil gain to humankind is so immense as to render any social
critique counterproductive.IOJ
The mode ofconstruction ofprogress ru!;lT':Itive has little use for the old
pandigm of hum.an rights. based as it is on notions which corpor.ltt
technosciellce now renden obsolete. The essentialist ideas which this
paradigm rests upon now seem insensible. insofar as these could be said
to rest upon the norion of inviolability of that which constitutes the
distinctively 'human' and the 'dignity' that should invest that ·human'.
Technoscicnce deconstructs the notion ofbeing human altogether differ-
ent1yas hi-tech, capital-intensive sites of research and innovation, where
being human is constitute'd of ever SO readily available and exploitable
ensemble ofgeneoc information. What is human is truly a cyborg (in Dona
Hanway's inimitable conception.I04 Notions based on the integrity of~C
body, for example, make very little sense because 'body' is now big busl-
ness.'OS Genetic information in bodily tissue, parts. fluids, emanations and
100 Donna l lar~w~y (1997).
101 Dan L Burk and Barbara A. Bocur (1994); US Congreu. Offia: ofTc('hl101og)'
As5e5~n~m (1998) 78--9; CaI~lOu5 Juma (1989).
102l1.uaway (1997) al 151-72.
103 Martha Nussbaum and <Ass R. SunS1t1ll (1998).
104 Donna lI:anway (1991). See also Justm Burley (cd.) (1999).
lOS E. Richmt Gold (1996): Dorothy Ndkm and Lorn H. Andrews (1998) 12·
The Emergence of an All(~le Paradigm of Human Rights 271
,..ces, including the DNA of"vanishing' indigenous peoples,I06 has now
beCome the common (orporalr hrriUlgr of hUlllollkilld. What 'dig11lty' and
'inDegTity' may we attach, outside the cOllSldel'lltions of management of
ploughing in super-profits for billion-dollar biotech strategiC Industries, to
human particulate matter, these tidbits of a gigantic genetic seesaw, is a
q~SUOIl considered not merely unworthy of a susuined response but
rather as a frivolous mode of interlocution.
There is no doubt that, in some ways, technOSClence must remain
accountable. But this accountability is owed to t«hnocr-mc peer groups,
pOt to 'people' at large who stand ascribed with scientific pre-literacy, and
ac the same time constituted as avid consumen of many a biotech Sant3
Claus bearing in r-DNA stockin~ the gifts ofheahh-the promise ofcure
of dreaded genetic diseases, xcnotransplams, life-sustaining therapies,
iDcredible diagnostic immunoassay toolkiLS, genetic enhancemenLS, ge_
DCtic~ly mutated foods and beverages with longer shelflife, and the future
markets for bodily spare parts through the human clones.
Ina great Inversion, then, the global communities oftechnoscience, not
me 'duly' elected representatives of the people, become the custodians of
pubbc policy and human futures. The categOry of'pcople', at any rate a
IUlpeCt category in much of non-socialist democl'lltlc theory, to whom
tIXOUntabiliry now becomes replaced with the category ofneedy consum-
... Their legi~imation denves In responding to these pcoples' needs,
"ns, and deSires. Law, poilcy, and administl'lltioll must then stand ill
-Aduc:wy relationship to the potential of self-regulation amongst the
edmoscientific peer groups. These understand best the need for self-
ftltramt on where to go next and how far to go. And '[hey' do not
constitute a monolithic community: the disscnting .academies within peer
IFOUp knowledge production modes will insure against errancy .and prof-
~oftechnoscicllce development. In such a situation, neither legislative
~07nor judicial oversight furnishes the best model for public regula-
lion. Surely, trans-science comprising questions that can be 'asked of
~e and yet callnot be answered by science'l08 must be best left to thOS('
W'quknow h h . . d
w at tee nOSClence IS, an not to the Outsiders who at be,.
""0 I - . ' ,
n Ypl'llctlce )unk science'. 109
Lfo~e death of reb'l.11ation. or de-regulation as a form of regulation is a
OIII;'lnmgmod f . I . '
eo genomIc Cll ture, now upon us. From AsIlomar to the
,..
107 ~hy NeIlan lnd Lorn U. Andrews (1998) 17.
...... ( • Susanne Wnglu (1984): Kennelh Fosler and Pelcr Ilubcr (1990): Peter
III 993).
'" ~n M. bnbcra: (1972) 209-22. John P.tlcnon (2003).
nnelll R. f'wlcr al}(! Ptl(r W. Iluber (1999): Ptlcr W. 1'uber (1993).

148. 272 Th~ Fumre of Human Rights
current debates on hunun cloning the progress narrative ofbiotechnology
constructs and reconstructs the self-same scenario of self-regulation:
proclaim technoseientific concern about new developments, declare self-
imposed moratoria 0 11 some kinds of research, encourage wcll-ll1ana.~
interrogation of mega-science, promulgate regimes of hi-tech, nOll-trans_
parent self-regulatioll thus preempting public oversight, and allow a cas_
cading takeover by special interests of the pubic arena, precluding popular
constructions of risk. mayhem , and injury. A new global public of
tedmoscience thus overeomes the arel13 (in Habermas' vein- from this
perspective) constituted by representations of 'communicative power' (md
its hopes) in the fornution of discursive will-fonnation and public opin_
ion-making as the sint qua //OP/ of the production of 'Iegitimille law' in
postmodcrn societies.
Despite all this. this new fonnation nourishes itself on some old ele-
ments of human rights paradigm . though transformi ng it in Monsanto-
Dupont- Shell terms of trade-related market-friendly human rights. The
transfonnation is, indeed, a species of genetic mutation! The right to
perfonn scientific research is presented as immanent in the modd of free
speech; 50 is the right to experiment, mostly without 'i!lfonne<! consent'.
The right to prtvacy, through Its reincarnations as right to publicityllO and
as a competitive right to know-how and trade secrecy. becomes paramount.
All human rights become trade and investlm:nt related. empowering the
Northen1 industrial- military complexes to enhance the lT1eqmues of the
N ew World Order Inc. 'N aulfe', and the very notion ofthe deep ecological
sclfsustaining the environmental and human rights movements. becomes
corporate raw material merchandise.
(d) n,t' Situatedlle5S 1"MOllt'metlZS
I-Iuman rights, and social movements. are already thus situated in the new
pan.digm. And they have begun to work within it in many complex
WlIys. Perhaps, the most complex of these modes is oppositional, :iS would
become manifest when the history of the surpnsing results obtained ~
a coalition ofNGOs in aborting the first draft text of the MAl and.1Il
producing a more sustained framework of participation of dialogue with
civil society. I describe this mode as complex because the opposition to
MAJ was not, in my impression, so much based on mass mobilization: as
in the case ofGATTIWfO Dunkel Draft proposals. It was a cOllver~t1on
betwccn f3dically indited academics and transnational human TIghts adVO;-
cacy netwOrks both fi rnlly ensconced with the cyberspace. The terms 0
110 Goki (1996) :11 116-106; see also note 88.
The Emergence of an Ahemate raradigm of Human RIghts 273
diICOursc were set by those who saw no difficulty in putting on paper die
.ovc:rcign profile of dIe foreign investor. It was time to beexpliclt on behalf
of'the global capItal, aCCUStomed to regulatory capture III several arenas.
And experience :Uld wisdom ind icated the ovef31l g;.;ns of gettlng the
.ctversary to fight within the strategically chosen terrain. How radical can
me oppositional discourse be then? It may not deny the Importallce of
direct fort"ign invesunent; it may not advocate any more regimes of na-
aomhzation and state financial capitalism; nor may it challenge the idea
dial global capital. personified in several modes. may indeed share the
q;cs and thc language of human rights discourse. All they m.ay insist i!:
011 rolling back the extensive derogations from the contemporary human
riFts nonnativity. The international codification of these derogations has
been. for the time being, successfully resisted. At the same time. the
cIcrogations exist deJ
acto. The power of current campaigns against MAl.
«course. need recourse to a degree of triumphalism-an invaluable
raource, after aU
, for the morale of collectivities that seek to roll back the
dele of future histories. O ne needs to ask, that feature amply conceded:
.... remains?
~ such interTogation, a major answer is to S2y that what remains is
IICft than the IIOIkJgruf, in a manner of speaking. the Spifll ofthe Sixties•
• Iftt for romantic revini in a post·romantie era ofglobalizallon, a process
af"mterlocutioll ofpowc=r In all its global hiding places. Though dlis in itself
an Important revinl111
what matters is the way in which the rather
ledmkal and, at times, ~soteric. issues of world trade and finance were de.
III)'Uified an presented a$ human rights issues. The MAl campaign marks,
t.opdUlly, a beginning of a process of partnership between activist NGOs
aDd professional exerts in the context of extraordinary assertions of rights
by global capital. At the same time, the new paradigm confronts human
:=ts movements to ~ morc prottss, and less "Ju/I-oriemed. Human
Ihr t!., III an age o.f new.global forc~ ofp~uction, have a future only to
~nt that dissentlllg academies begin to converse, oil a common
....-orm. with anti-globalization activists in ways that respect the integrity
1111- Iu
_ r ps. it would be true to uy that what IlUrten; are nOt ~ much the xtll.lll
....,.mel now ;accomplishments of human and SOCial rights IIlOVCIIlCniS but the
I _Ilnof their people's pohucs Ihey nrry fOlWllrd III lime. The wk at IC;lISl thcn
need •
____.. to relter-Ite III closl11g. IS to perfect and render endutlllf; the colit'Ctive
._-.ny IIf hUlllan. and hUIII~1I rlght~. viobuon III WlI)'S thai somehow haum the
;l1ld their re!lIduallcgalees. Ir. a, Mlbn Kundcra uld: Ihe struggle ofmen
over power IS Ihe struggle ofmemory over forgcuillg. Ihe struggle
stands dlTeaed ag'lllmt the orgamzed polities of fotgemng. Contr.llry to
~
adage. pubhe memory tJ nO! shon but made shon by donunant II1teresa
e of power that stand to benefit by the polil1cs of organized obliViOn.

149. 274 The Future of Hum:m Rights
of each foml: activists do not become academics and acadelllics do n
be
. . at
come activIsts.
However crudely put tillS distinction is, any wonhwhile:: mode of re_
sistance to glob;ahutioll demands this. Dissenting academics require to ~
seen as academics in the eyes of the peer group; otherwise, they lOSe Its
suppon and legmmatioll and with it the access to resources needed 10
develop the counter-knowledge ustfullo social activism. ActiVist groups
likewise, remain wary of specialistS that move in and out of the corrido~
of power. Both may lay claim to relevant knowledge and insight that the
other may never be said to have. No member of the dissenting academy
can quite claim the:: grasp oforganic knowledge that arise through everyday
strugglc=s against modes of existence and the orders of resistallce and
snuggle agamsl the::se; no activist can claim full access to technoscientific
knowledge that do mol/er for people's struggles. Thus, partnership amongst
learned professionals and social and human rights activists remains vital
to the preservation of human rights norms, standards, and values as we
now know and even che::rish the::se. Its actualization must remain cOlllin-
gent in t(rms of global social origins and location. and III relation to the
unfolding matenality of globalization. At the same time when not fully
reflexive such acts and mission of partnership between the erudite and
organic intellectuals may also unwittingly further the values and ends of
the trade related market-friendly human rights paradigm.
The managers and agents ofcontemporary economic glob;a!izauon are
constantly on the prowl; througll their high-minded summons for 'global
civil SOCiety partnership' they pursue their some thinly disgUIsed overall
strategic 1I1terestS. The rate of consumption of people's rights friendly
erudite and organic intellectu.als by the United Nations systcm, the inter-
national, supranational, regional, and national agencies, and the intema·
tional financial institutions is already unconscionably high. Thc beliefthat
working witlllll th~ enclosun::s-from within the belly of the beast, as
it were, to use an animal rights unfriendly expression for the moment-
remains crucial to service human rights (unITes seems to be on a high
growth curve. May we read this as a moment of danger or as of oppar·
tunity? Does all this signify the 'cunning ofcapital' or an ethical struggle
against it. cvcn in a post-Marxian world?1t2 How many working the
III When sollie of us, kiKIillg a ea!l1p~ign agamst Ihe UNDP's Glob~1 Susl~IIl)t.l(
Dcvtlopmcllt F;tClhty mel (Ill May 1999) the hciKI ofthe agcl1cy, he O~l1ed Ihe IllC'Cun~
Wllh all accOUIlt of his own cnt,ulment as an environmentll ",!lVISI wnfrolltcd W1~
the need 10 respond 10 mulunationals who insiSted on Wl)'$ of p~rtllerShlP 111 ~
Illal1lstrc~lmng of human nghts-onentcd devdopf11('nt. He asked us whether we y,"li
any guKbncc 10 offer hU
ll. His concern for the lmpovenshcd people and cou
nlnes
The Emergence of an Alternate PUlodigm of Human Rights 275
'fY5leIl1' against itselfcompromise the wholesome integrity ofwhat Karl
MarX named in a happy mome::nt as the potential of the 'gmual intt/her!'
Is this intellect now li~ly to lose its world transforming potential by Its
'subsumption into the sphere oflabour ofwhat had hitheno belonged to
poIilical action'? How may this process of 'pohticization ofwork' where
thought itself 'becomes the primary source of production of wealth' be
actt.Wly rc:versed?1IJ
The: phnse that so dominates practices of resistance to trade-related
market-friendly human rights is 'creation of space'. But the place of the
spact" created by various modes of activist imagination and social praxis is
largely pre-detemlined by the space of contemporary globalization, pro-
cesses that create of human rightS pIous within Ihe globalizing 5poct.
114
Is
the contemporary human rightS mode of resistanCe to globalization his·
torically adequate to retrieve the ltIovtmem from the markcl? 1explore in
the next chapter some recent normative tendencies [hat mayor may not
be hislOricaUy adequate.
~nulOe· h t h' ,
tit ,U so WlS IS concern to m~ 0 1W:1rd the agency'. future. And that nn
~ovc only with the legitimacy of dIalogue With the internatiolul civil society.
IIYt ' hov.tcver. rcqUIl"fi a common plll'lillit ofalllU. IIO'W is Ihat to be cstlbhshcd
Itc:n.the teml already presct?
114 SceP:aulo Vimo (2004)
DWld Harvey (1996).

150. 9
Market Fundamentalisms
Business Ethics at the Altar of
H uman Rights
I. The Proposed Norms on Human Rights
Responsibilities of Transnationals and
Other Business Enterprises
I 11 this chapler, I explore a particular set of practices of resistance to
the onset of the tr.KIe-rdated, market-friendly paradigm of human
rights, which takes the fonn of full rcasscrtion of the UDllR paradigm
in rdatlon to corporate governance and business conduct. What is IIldeed
m ()$t remarkable IS the fact that the articulation ofthis reasscrtlon occurs
under the very ~usplCes of the United nations system, which otherwise
fosters contell1por~neously, and assiduously the trade-related markel-
friendly paradigm of human rights.
The United Nations Commission on Human Rights and particularly
the Sub-Commission on the Promotion and Protection of Human Rights,
of course, provide the important sites of critique and renewal. The Sub-
Commission thrives on dialogical interaction with the community of
NGOs; and often its expert consultants (howsoever named) emerge from
within these communities or, at the very least remain extr.lordirurily
sensitive to activist critique of contemporary economic g1obalization.
1
I Jere I focus on the Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with Regard to Iluman
Rights. formulated by a Working Group of five independent experts; the
adoption of the Norms tQb>cther with the Commentary by the Sub-
Commission (on 13August 2003) marks the first step in along and perilouS
journey to~rds the final adoption.2
The Norms, now transmitted to the
I 5«, 'Globahuuon and us Impxt on the Full ErJ.JO)'Tmnl of I lum~n RIghts'. UN
000;. OCN.4ISub.?I2OOO'Il.
2 Su. Sub-CommlUlon 011 the Promotkm and Procccuon of Hunun Rights,
Market Fund~menulisms 277
n Rights Commission, remain open [Q further consideration Wlthm
: : :tside the United N:
uions system and the comments and responses
i....oostand slated for furtherconsideratioll by mld-200S. In the mtenm,
~sub-Commissiol1's Working Group stands mandated to assemble 10-
(orn1ation front all relevant sources concerning implementation processes
well as to further innovate these processes, where' necessary.
iii The Nonns, and the accompanying Commentary,3 had a very short
puoon comparc:d with the archetypal endeavour that produced a still-
born United Nallons Draft Code' of Conduct for Multlllational Corpo-
pDOIlS. Even more remarkable is their enullciatlve audacity unfazed by
pmering hislOries of past failures. Twenty-three articles put together,
provide an arsenal of general and specific oblig3cions; transnational corpo-
nOons ~nd other business organizations stand conceived as networks of
QOrPOratt:' governance and business conduct. Ideologies of voluntarism
ItIIld replaced by those of regulation and implemcntation. What is more,
.. Norms have been produced interactively by consultation with affected
~sts, including business and industry, trade unions, human rights
NGOs.The Norms undoubtedly take global citizen action seriollsly. This
JDeenctivc mode ofproouction of the Norms fosters and furthers legiti-
..-y as wdl as imperils It. If the communities of human rights and social
flCbVism have already begun to deploy the Norms:lS a potent human rights
~m,· emergent too is the silhouette of global corporate resistance.s
Contestation is inevitable and as arc future compromises. What makes
p Norms, and the Commenury, preciolls is the now proclaimed zero
Jtfonru on the ResponSIbilities of 1hlUn3tionai Corporations and Other Business
IMrrpriscs wllh Rcg:ud to 1
·luman Rights, UN Doc. fJCN <V$ub.2/200Jl I2/Rcv2
CZ803); herafter CIted as 'Norms' and for me Commenury on the Norms FJCN/V
hb.2I2OO~ev.2. 26August 2003.The I~ttcr document refers to '~phs' rather
... ~des'; J here describe: the pn;Msioru as Amdes. Funher, all ciuuons to tnc
~ are derivro from the l;lSt document ~bove.
1Sec for mckground analysis, J)~vid "Wc-i5Sbnxlt and M um Kruger (2000); see ~Iso,
~ Muchhnski (1995) 592-7; see also Muchlmsb (2003).
..... d~ Nomnglum Armual Student Conference (Much 2(04) at wluch I first
Jllbentcd tillSthenutu;, Dallle! Ab'Ulree (a doctoral fcHow, the Jnsh Centre ofH unun
~IS, Galw:ay) mentIoned a .,anlllng insunce of thl5 trend; an Irish company was
i:;=dand shamed, under the Nor'ns, (or its contribution to the construction o( the
~ II Wall In Palcsl1ne.
Already the British Confederation of InduSIne1i has begun the Itinerary o( bill·
~n over the b3leful ullpxt of lhe UN Norms 0 11 developmgcoumnesl 5«, for
, the G",mllOn, 8 March 2004, the CBI 5Ulemelll III the G'klrokln, 4 March
Amnesty InlCrruUOlu l response (in the leiters to EdItor column) III tI~
1i1lltJ. 9 March 2004.

151. 278 The Future of Iluman Rights
tolerance for egregious fonns of business conduct and practices that tr:lns-.
~ human fights and constantlyreproduce human violation.This single_
minded PUrsUit of a human rights-oriented fumre for globahzation and
human development is perhaps the only peninent WAy ahead.
This ehapter explores five rdated themes. First, the denSl! inlenextuality
of the Norms and the Comment<try; Sttotld, the 'network' conception of
tnde and business conduct; 'hird, W2YS of categorizing the range ofgt'neral
and specific obligations;fourth, strategies of implementation; andfifi'l,and
related, some rather intrallsi~nt ethical theory concerns that may not ~
any longer ignored. I do IlOt explore here the archival lustories of the
WOrking Group and the antecedent discursive formations concemmg
social responsibility of business.
II. The Dense Intertextuality of the Norms
T he ever-proliferating forms. and formats, of'soft law' production enUl1
immense orders of sdf-referentiality. Each 'soft law' declaration thrivcs on
multiple. even protean, references to the lit<tny, even the litter of prior
textual enunciations. This process may be named as self-generating nor-
mativecannibalism,or Ule self-devouringconspicuous consumption.Eidler
WAy. this complicates practices of reading enunciatory textS. And, many
event. many 'soft law' declarations remain worthy, for their artistry, for the
Turner Prize on Contemporary Art!
Ofcourse, no human rights text may. by itself. stand alone in splendid
isolation; each derives Its nonn.ative strength by reiteration of prior textS
in ule circuit of semiotic overproduction ofhurnan rights norms. Under-
standably, all later human rights texts necessarily refer to prior innu~l~rable
cultural software of 'hard' 2S well as 'soft' international law; ThlS mter-
textuality raises questions concerning the integrity of human rights
enunciatory instruments. At what point does such an amalgam beglll to
threaten to produce categories of 'meaningless rcference?6 (Call this the
intelligibility quesdon.) Are thcre W2YS of determining threshold~ for
meaningful reference to prior texts? (Call this the optimality que~uol.l.)
T he optima.lity question poses, at the first sigllt, merely a 1eSlslatl~~
. I 'I rd' or 'SOlt
drafting question. Should the preambulatory reclta to any 13 . I
I ·bl . I case WIt I
instrument be as comprehensive as human y paSSI e, as IS t Ie . I
the N orms, or !>hould it be parsimonious, referring only to foundatlonar
core, or key texts developing the international standards, and norms 0
·--'10 fcOlIl-
6Juhm Scone (1964) descnbed thIS as theu1iem Item, In theJu(hcu-I rouo 10
mon bw Interpreullon.
Markee Fund.lmentalisms 279
~tional I~w? I-Io.w is ~is determination to be made? We may note
here dut. unltkt theIr national counterparts, human fights legislauve
~rson5 cnjoy even more contingent location, all too often task
..,ecilic, within the ever-expanding institutional nerwork of the UllIted
NabOns systems. Independent experts, special rapporteurs, or even expert
g10UPS remalll guest artists within the system, working WIth sparse servic-
JDgsccreuriats-a usuallycompact and circumspect group ofofficials. The
buman nghts draftspersons, drawn from the worlds ofacadelnta and now
IQCw and hum:rn rights movements, st<tnd often guided to err on thc side
fJiQution and cite every available nonnative tidbit, lest the jurisdictional
eaos ofany ~ncy or official within the system adversely affect the career
and future of the norms they propose.
Exuberant intertextuality of norms thus partly reflects the endless 'turf '
wars within the United Nations system. Besides, the problem of internal
(within United Nations) legitimacy problem, the optimality question also
__5 to legitimation with the communities of the eventual bearers of
IIaman rights responsibilities. Iftoo iiI/It' invocation of prior texts weakens
1hclegitimacyofthe instant (draft or final ly :ldopted) human rights instru-
.cot, too much recourse makes it self-defeating. The norm of optimality
aMi at the rather indetermil1:1te thresholds of this too 'little', :lnd too
'lDuch'. It raises tile question of integrity of the instrument because the
pnor corpus of'hard' and 'soft' law furtht"r refers to sinnlar anterior norm
,.oouctions. However, different instruments entail very different nonn-
-.ders, :r.ddresses. and receivers? and willie dley may speak to the high
purpos.eof promoting and protecting huma.n rights, they speak differently,
.... ~n III many different tongues or human rights dialects.8
This raises the second issue: intelligibility. The more numerous the
referents to the amalgam of 'hard' and 'soft' law, tile greater are the crises
,
....Johan C'.altung's (1994) much Ignored :mal~1S remams. to my mmd, decisive:. All
III ~Inon, pomts to the differcnces between corpus, genre, lind text m hunun
~b Instruments. See gene rally, the discusuon m Ihxt (2003).
-..!thiSI Intend to refer to the special vocabubnes ofconte:mpon.ry mtenurional
Ilghts nonns and 5undards. Each Iandm~rk instnlluent develops Its own
~I(" nnS" and SOmewhlll specialized languages. The Internatlon:tl Bill of Rights
-0 dl~crennate:! language'S ofimplemenu non 11110 reglllles of IIlSUflt obligations as
IIIet:a~ progres.sIYe Implcmcnuuon'; the Jailer IS a speci~1 dl.llc:et enulling various
~()ts of obhg:mons to respecl, protecl, ~nd promote: 5OCI~I, economiC, ~nd
"If b rights. The CEDAW. 10 uke anuther ex:l.lnpic:, through Ihe General Comment
110 ~red ~l""ponmg oblig:molls, now elllbn(e5 wllhm Ihe mu nmg ofdISCrimination
llCe apllm WOmen. I m~y nOi pursuc thIS IIllporunt thc:nuuc here SolVC to
tasks oflmgtllsuclpan_lmglllstlc, and SCnllotlc ~nalysis ofdlfTc:rem d ialccts of
nghts tCllUln pres§mg.

152. 280 The Future of Human RighlS
of legibility, intelligibility, and understanding. Not everyone outside the
charmed circles of the self-selecting norm-makers,9 and unfortunatety.
even within these, actually knows every word ofeach text. and accompa_
nying context, thus cited and invoked. Nothing less than a fully-fledgotd
reality check concerning intdligibility among nann senders, add~~,
and receivers remains conducive to the fmurtS of hUlrun rights.
On a very rough count, simply because the [ext of the Norms at least
refers to at least 56 instruments,lO the dense imcncxmality needs unrav.
ding. The count is rough indttd and must remain so because of the
inherent indeterminacy at play. and war, in at least five categories: 'hard'
treaty and custom based obligations; 'soft law' constitutive clementS Within
'hard law' fonnations; initially 'soft' enunciations that somehow COllven
themselves into regimes of 'hard' law; 'hard law' enunciations that ulti-
mately soften; and 'soft law' enunciations too variously 'soft' as to def)<
predictions offuulre hardening. I shall not, for reasons ofspace, elaborate
or exemplify these distinctions further but no reflexive student ofhuman
rights norm creation may quite remain innocent of these patterns of
nomlative hybridity, now and yet again writ large on the Norms.
This peculiar fonn ofintertextuality remains worrisome ifonly because
it tends to produce continuing fonns of human rights j1/ill'rtU}' for the
human rights (ograoswlli as well the laity. Not merely the human rights and
social m()V('!l1ents constituenCies but also transnational CEOs Il1<1Y, wah
a measure ofJustice, cI.aim unfamiliarity with all the Instruments of the:
so-called networked knowledge bases.II Too many, exuberant rcfe~nces
to past sources legitimitt enunciation of new norms; at the same time,
9A hiStory ofhow the Umted N3tJoru system selects c:xptns for noml fomluiauon
hu yet 10 be wntlCn but w~n wnttcn it ISwotlCn It will c:xpo5e nthcr fullythe charM:t'
and circunlsunces, Wlthm SClJltercd networked hcgrmonrs Ihn dcfine the ~ltm
th~t bongs only a ccnam 'dns' ofepistcmic Ktol'3/xtlnwfigul'C$ 10 tillS gSk. 11tclr
K'nsmvny 10 suffcnng. as Dou:lilUS (2(X)2) dcvasutingly rcnllll(b us, may oflen be
confined to the suffering mduccd by 3 ~ wine!
loThcsc mclude 18 trt'~tle5. 11 other multiialcn! ill!StrumcnlS and gtudclmcsunckr
the Umted Nations. Intemauon)! Labour Org;Iniution, )nd rclated supr:UUIIO~
auspu:es, three mdustry/commodlty group 1II11!auves. SIX uflIorv'lnde IIllllallV't'S. of
'self.lmposed company Codes'. ~nd fivc NGO Mode! GUldclmes E;u:h of IheS('.
, r i d d' I us ofartlCu·
coune. harboun an mfir1l1e vUlety 0 c::omp c:x an cOllin IctOl)' e emer -
!awry pncllces. Here I must perfoKc mvtte your tririt-1l1 tIlJ.'l't,nnJl wilh Ihe exlen~IVC
referentul preamhulalOry I'CClul in Ihe NormJi. II)'
II Incklenully. despite the Inlerllet explOSion. riot all Ucll1VC$ ren1~1II e(JeqUl I
,~" ~_"_ M ltnuuorta
av:,ul)hle. For (':ample, try trackmg down the UN 1.IT~,t "--"-""" 011 U pre:-
Corpontions. 1984; to OOum access to this requites dlffteull forms of ac::ccss ;r the
~b Illenlure. now. abs. an aff~lr of the h~ry ~mlc p6!it! So Jlluch then
'Infom13uon society' gI~1 cxploslOfl of buman nghlS ~t
Market Fundamenblisms 281
COC)'Clopaedic referents complicate underst41nding and generate new [onns
tL human rigills illiteracy, particularly the more perniCIOUS form of the
II/iIrrd()' oftill /i/MJ/l. The political economy ofexcess ofself-referenttality
til the production ofcontemporary human rlglm production inVites care-
ful thought (aspects already analyted in Chapters 4 and 7).
Ill. The Network Conception of Corporate
Governance, and Business Conduct
Corporate governance and business conduct12 have hitherto been thought
m £emu of lcgalliability of business entities, and not in tenns of human
righb responsibilities. The Norms now accomplish two outcomes. First,
aD business entities remain subject to the disciplinary regimes of 'human
rights' and 'international human rights' inclusively described as constituted
by.. ,
civil,culmn l. ec:onOllllC, politic::al, and social nghts. as Sct fanh in the lflcrnation)1
III uf Human Rights. and other human rights treatlC$, as well as the righl 10
hlopmem, and rights rtcogruzed by 1Ilienlauonai humamurian law, illlema-
donal refugee bw, mlemauonal bbour law. and 01,," rrltvdn, IlISlnl/nt/11s ll00p/fd
... lilt Unr/fd Nalw,1S syslem IAnide' 23. emph.;asIJ added.)
Second, 'business enterprises', defined generically by Article 2t oC the
Norms, mclude:
-r blliinrss cnu~ rcgardl~, of the imematlonal or domestic sphere of ilS
atIvItJc:s. includmg ) transnational corporation. contractor, subcontnclOr, sup-
...., licensee, or distributor; the corponle' Plnnenhip, or other leg:il fonn used
to nublish the businc:ss entiry; and the nalUrt' of the ownership of the business
-.y,
ntc ~orms 'shall be presumed to apply, as a matter ofpractice under two
IltUanons: where 'a business enterprise has any relation with a transnational
COrpo~a~on' or where 'the impact of its activities is not I'IIli"ly /oeal'.u
bet.ThiS IS an cxtraordin.ary articulati~!l. The .Nonns conStruct the alpha-
gramma.r, and the library ofbusliless ethiCS ofthc ncw human rightS
t;:llle prOJ~ct! Here no possibility ofjunk genes may be ~l1visagcd! All
s of busilless entities attr.let all norms and all standards of human
USc M
45...64- e uchlrnski (1996) 57-89; ItltcmanOllal CoulI(:I1 for lIulmn RighI!; (2002)
u . B:ua (2000).
,.."",.
'""
n,,"t~itd SIIU~Uon i$ where 'thC' activltlel of a buslllcss entctpnK' mvolvC"
IIldlCalcd III paragraphs 3 and '4'.Amcle 21 the Norms (emphasis added).

153. 282 The Future of I-(uman Rights
righu. The heavily netwOrked conceptions both of hUlmn rights and
business enterprises and ofhuman righu forbid any eclectIc approach Writ
large on company codes and ofcourse the so-called United NatlonsGlobal
Compact. On this perspective, all human rights obligations matter co-
equally regardless of the source, contingency, and viciSsitude of origin
(treaty, custom. treaty-based custom, or allied and ancillary fonns Of'50ft'
law') no matter how diverse the range ofspecific and general duties thus
prescribed and how difficult the implementation or actualization of the
enshrined human rights. The Norms do not, of course, and nghtly so,
provide anyabsoliltist conception ofhuman rights (that is a world ofbuman
righu beyond the realpolitik and not subject to national reseIVations and
derogations) but they do legislate a Imivmal cOllct:ption. which mandates
fulfillment and realization as a paramount duty of all centres/networks of
power and domination. To say 'human rights' is always to say chokingly
a very great deal, and also to always participate in an economy of excess!
The netwOrkconception ofcorporate governance and businessconduct
points to the web of imerconnectivity of within-nation and cross-nation
business entities that so paradigmatiC2llydefine the forms of comemponry
globalization. Production, supply, distribution, commodity, and service
chains increasingly, and heavily, intennesh the global with the regional,
national, supnnational, and the intensely local. Severance of interlocking
and intertwining constitutive dements that constitute business activity.
enterprise, and entities is no longer. on this conception, possible: devis1l1g
human rights-oriented regimes ofsurveillance at any ftxed nodal point IS
insufficient; indeed because the very notion of 'nodal' poUltS rcaches Its
vanishing point in a post-Fordist and postmodern global economy.
C ritics may justifiably assail the runaway invocation of human rights
regime thus comprehensively framed in relation to all business entities and
conductAlthough said to be primarily targeting 'transnational corpora~
lions, larger business, and any firm with connection to transnational cor~
porations', the Nonns may even extend (in the words ofone ofits principal
authors) to 'corner bakeries, dry cleaners, and other small 'mom and pop'
types of local business,.14 The detailed description of suppliers, contrac~
tors, iicenS«$, distributors, security personnel, and others, stipulating
human rights responsibilities for small vendors ofmultinational co~ra~
tion producu as well as processes does not exclude smaller business SItes
. ,
not thus ostenSIbly connected. It would indeed be hard to define, In
rapidly globalizing economy, when (in the language of Article 21) the
impact of business enterprises 'is not entirely local'.
I~ ~ David ~1$5bro(1I and Moma Kruger (2003) 910.
Market Fundamenb.hsms 28J
As we all must leam frOIll the feminist critique, no site is ever toosmafl
for nusslvt hUI1I;l.n rights violation. Microfacism ofpower manifests itself
rnost crtlelly at ~maller.s~teswith low p~blicvislbility. lt may thus be argued
ddt consIderations aflSmg from practical reason reinforce conccrn WIth
small and medium enterprises, no maller how defined by the m:e of
Utve)tmcnt, workforce, or turnovcr or any other relevant factor.
The Norms, however, invoke deep contention. Strategic tr.msnational
busaness interests cannot but .contest a netwOrk conception ofcorporate
sovcrnance that makes these hable for each infraction ofhuman rights by
aU and sundry associates and affiliates. Local small and medIUm business
(DO matter howsoever defined) may, with equal vigour, contcnd that such
massIve: ~ure to. wi~e-rallging human righu standards not merely
IpCl1s the rum oftheir t1ll~o-entrepreneurial activity but also the Oppor-
aauucs they may otherwtse offer to the millions of the impoverished
10 cheat t~elr ~y into survival.IS State actors may also, particularly but
DOtcxcluslvcly In the South. voice similar concerns because strict enforce-
IIXnt of labour-related huma,~ ~ghts obliga.tions for business enterprises
IDly swell, bey~nd actually eXlstmg governmental coping capabilities, the
IIrndy harrowlllg numbers of the impoverished unemployed-/under_
employed.A recent UNIDO study Sums this type ofargument pretty well:
~mg mapproprl<ltc sliindards which cOllnram the value creation role or
_nCJl; ..le:.d toJOb losses. under~invt"stment, Ixl: ofSCIVlCCS. and ever-Wlden-
illpp between developed and devt:1opmg countnes.16
1'hte-thic~I.logicsofthe proposed overarching articulation ofhuman rights
I'tIponslbll~tles for all business activity and entrprise remain thus fraught
lritb matenal (as against logical or nonnative) contradictions. One hopes
lpinst hope that by mid-200S, when the Nonns may be finalized, some
"
ofllNJ
~~;tdy Ihe strict applicalion of("IlVltonmcntal sliIllcbrd.!l leading to m(" closure
So.ch h..J tlSlnCSSoeS beall5C oftheirpropcnslryforpoUuuon In nuny ~m ofthc G~I
beatr)Cu.::~ ~11ed toa cnuque of!IOClal and human rights otalVism by Its supposed
anitt ' Dunnglhe XI/VISI shce ofmy hfc, when ISCC'Urcd aGUJarat High Coun
~ ',
n1ullIlg SInce cllrOrCCIIICIII of the amehoratlve Indtm li'OI~lalion pm=
......... 0 COlllDeI kc h -,.- IIlg
~ wor no, I e COntractors r~ialed by putting people OUi orJob and
ioo.oL_I.~kcrs only 100 eager 10 filllhcir shoes. The owtcd workers !hen 10 dw~~~
-7-tI"numbc cd • ~q,.
~ .f$, turn up al mydoorstepaskmg me 10 provide them Wlth 51nablc
... W15Illt!llt' Idid Illy bcsc but rnll~ed thac as;an NGI (non-govc.mmcnul IIlchvidual)
s.am d /USI noc good enough to eOUliter the)oll blackmail' by powerful comractors
"
I Clllllla IS acUte fi " _~~ .
~an cven or 'Nt' -teSQUI ~"" NGOs who USC" thc human tights
16 UN~~ ~mZCd (Ihc lIIorc accurate cxpTnSlOn IS di1«ga"~ workct$.
..
(. ). Ofcourse. the UNIDQ does 1101, whilc presenting ii, enurel
IS POSition y

154. 284 The Future of Humall Rights
cre2tlve mcdl2tion of this nuteri2l comn.diction 1112y be, aflCr all, be
achieved. 1dedicate this Chapter to the bbour of human rights activism
aspiring to such 2 mediation, within and outside the bounds ofthe lIllT('_
21istic de:adline.
rv. Categorizing Obligations
C:ategoriutlon of human rights oblig::niol1s 2nd responsibilities directs
:attention to twO levels: the hum:an rights responsibilities ofsutes 2nd those
oftn.nsn:ation21corpon.tions 2nd other business enterprises. Regardingthe
former, the 'primary' sute responsibility to 'promote, secure the fulfill_
ment of, respect, ensure respect of, 2nd protect hum:all rights recognized
in internation:a12s well as n:ational law' now stands invested (by Article 1)
with the obligation to ensure that 'transnational corporations and other
business enterprises respect human rights'. The human rights responsi_
bility orbusiness entities nuy be summated in terms of duties of nOIl-
benefit from human rights violations, duties of innuence, and duties of
implementation. SUtt responsibility is unqualified; transnational corpora-
tions and other business enterprises bear these responsibilitiesonly 'WIthin
their respective spheres of activity and innuence'.
(d) n'e Primary Slalt Responsibility
How are we to re2d this fonn of responsibility, which is nowhere articu-
lated speciJically? This is undersundable bcca.usc the Norms pre-el.ni-
nently address corporate and business human rights responsibilities.
However, far from being momatic, the 'prim2ry responsibility' ofstates
is profoundly problematic,
If one prefers a 'Strong' reading, this immediately suggests that stateS
~ a non-negotiable duty to translate these nonns into national leglsla*
tion. A 'we2k' reading, at best, merely suggests the state's obligation to
develop an 'operative human rights culture' for tr.msnational and other
business enterprises. An 'eclectic' reading would suggest progressive (read
expediently V2yward) implemenution. I
A 'Strong' reading of 'primary responsibility' would reqlllr~ al
states to extend human rights responsibilities to all macro- aud 1I11C1'O"
economic activity-regardless of the issue of their economic vlablhty-
through performances of law. administration, and policy. They wOlll~ be
required to rein 111 the awesome power of the transnational cOrpo~JtlOIIS
to naunt national jurisdictions. At manifold normative levels, tillS does
. gI .. f .. . las wd1as
not merely involve wrltln rewriting 0 conSlItlltlons, nauona
Market Fundamenuli~nlS 285
~al,17 but a massive programme oflaw refonn that translates without
gansg.rcssmg the primary responsibility of SUtcS.18
If national laws in fjmtlj~ do not incorporate reqll1slte human nghts
obligations, what remains of this vaunted 'primary rC5ponsiblhty?' I low
may pohcy, law, and public administration, lIlciuding law enforcement,
be adequately transfonned t0W2rds due dili~nce and discharge of the
primary obligation? Does the 'primary' oblig:oltlon extend to courts and
JUStices in their everyday work? Because courts are 2 constitutive aspect
ofthe 'sute', do the Norms enuil an order of specific duties of~udicial
acuvism', and as a concomitant obligation, due deference, by coordinate
branches ofgovernment to judidaltjuridical autonomy that mandate spe-
cific {onns of hum;an rights oriented accountability? In tum, any serious
discussion of these aspects should uke into account the Cruci2i issue of
within-nation budgctary/2110cative resources that governments must pro-
vide III order to effectively service administration and implementation. 19
Additionally, how may all these considerations apply equally to regional
and supr:
mation21 institutions formed by sute coalitions?20
Th: Article I enunciation ofprimary sute responsibility thus remains
whollyvacuous. Perhaps a kinder description ofthis 1I0rn12t1Ve happening
• that thiS fonnulation of general responsibility of sutes, is at best. a
'Boating signifier'.
(b) n,~ Crt/tral Obligatio,1S ofCorporal~
Golltmanct (md Business COlldUCI
Manyd~ricsattach (under Anicle Iofthe Nonns) tocorporategovemancc
.. bUSiness conduct within 'the... spheres of innuence and activity' of
-.nsnallonai enterpri~ and other business enterprises. According to the
Cornm~n~ry 2ccompanying the Anicle,these obligations inc1udefim the
~Slblhty to 'use due dili~nce' such that 'their 2ctivitles do not con-
tributedirectlyor indirectlyto human abuses'. &lond, business entities may
"Th
Ptup. IS~I~, for example, dlmeull qU!'5uons concerning the oolT1p~ubillty ofthe
~~~ ConsuttJuon with the Noolls. In any event :.IS richly dClllonstr.ned by
JIObcics I h~ms (2004. 20(5) the Elropc~n Unions hllm~n rights plbcy embodlC$
1& '" r.tthcr than p hum~n nghts.
h""", 1
_n
tid: . to t~ns ~te IS ~1w.lYS to transgress. M~ny hmmn lanb'u~gt'$ and dialects
~ SCmlotic C(jUlY,llents even across the worklllg bnguagcs adopted by the
19 Nations.
. ;::ere CXlsts :.IS yel no diSCipline Ih~t may be l1~med as III/mil" rights t(IHIDmi(s.
~...~,,',;'",~rrent eontl'Ol('rsy conttrnll1g tlie award ofcontractS to favoured American
In OC'CUpIOO Iraq r."'~ acute questions not wholly antiCIpated by the

155. 286 The Future of Hum;m Rights
not 'dir«tly or indirectly' ~ndit from abu~s of which they were aware
orought to have been aware'. Third. the Commentaryexplicates furtherdu
diligence obligations. In particular. business entities 'shall Inform them~
selves of the human rights impact of their principal activities and major
proposed activities' so that they can 'avoid complicity in human rights
abuses'. Follrth, these shall 'refrain from activities that would undermine the
rule oflaw as wellas governmental and other efforts to promote :md ensure
respect for human rights'. Fifih, they 'shall use their influence in order to
help promote and ensure respect for human rights'. Indeed. the Nonns
provide a massive detailed footnote elaborating variously these frve duties.
I attend later to the ways in which these overarching duties rai~ dctp
ethical questions. For the present, some close textual analysis renuins
pertinent. The Committee deploys two discrete categories: hUI/Jall tlbusa
and hUnuln rights tlbl/Sd. The first two oblig;nions mentioned ..bove ..ddress
hum..n ;!.buses, the rest speak to human rights abuses This distinction is
indeed crucial. Not al1ll11maPl abuses may necessarily constitute Iwmtltl rights
abuses; further, not all human rights violations may remain synonymous
with human abuses. It is important to stress that the Commentary seeks
to impose a more stringent obligation with regard to human abuses in the
s«o"d principle above. Corporate and other business entities may"'" profit
from forms ofdir«t and mdirect human abuse::; the final adoption ofthe
Norms must then fully address the problem at least ofsuch UllJust enrich-
ment.21 Prescinding thiS it is clear that failure to observe human rights
standards and nonns, and to generally foster rule of law and respect for
human rights, carries no such dire conseqUence.
Clearly, human abuses remain more directly accessible both for the
perpetrators and the victims than human rights abuses. The Commentary
here adopts a phenomenological basis in sculpting the duty to ;!.void bo~
di rect and indirect human abuses; accordingly, this form ofbusiness ethIC
forbids forum shifting. Put another way, the fact that the~ abuses ~r
under the auspices of business affiliates (including subsidiary compa.mes.
contractors, subcontractors, licensccs, corporate distributors, and busme5S
~curity personnel) does not dissolve network responsibility. Ofn~es~lty,
this notion will attract a whole variety of diverse future apphC3~on,
locally and globally. However, starvation wages, slave-like labour practices.
unconscionable forms of child labour, sexual harassmenl al workplace,
21 Sec generally Andrew Clapham (2004) 50; Amu RaIllSastry (2002). AsSU~:
dut such Inlpemllulblc: benefits result. what dutK's of n'PJir.moll then (olloW) I 't
nuy these dulleS df«uvc:iy rcsltuate those vlOlatcd? Put another way. how "uy~
mit' this obhgmon within the Imaglnatlvcly crafted !lOtlolU of global dlStnbu
JUSUCC by Charles R. Hem: (1997) and Thom:u W. 11oggc (2002).
Market Fundamenulislllll 287
..,.ntOn disregard for worker safety and occupational health, thofQughgo-
• creation of environmental hazards. rape, sex tourism, tying young
children to camels in camel races as a fornl of commercially sponsored
sport. child conscription for purposes ofinsurgent action, clearly constitute
IIMnulll abuses, even when existing human rights norms and standards may
not ;J,llow description of these practices as human rigl,1S abuses.
ThiS phenomenologicalapproach to human/social suffering rests, at the
end ofthe day, on a distinctively intuitive moral anthropology. Because all
human beings everywhere, at all times and places, know from experience
what human (and possibly human rights) abuses are, the second obligation
UI10lizingiy refers to duties ofabstention from direct or Indirect derivation
~ 'benefit from abuse of which they were aware or Ollgl't to have hem
1IM'tlR" (emphasis added). Yet, many human rights abusers, especially the
trmsnational corporations m;!.y plead, at least prima facie impurity on the
tpoUnd of indeterminate nature or non-applicability of intcm;!.tional
lIw-b~d human rights obligations. Detemlined efforts at expunction in
the final United Nations adoption of the Norms and the Commentary
may thus be expected. Given this possibility, Ihe way ahead lies in ex(:m-
pbfying the category that renders opposition to human abuses a manifescly
1II'UIl0ral, and obscene, public performance.
Thefouffh and thefiftl, orders ofgeneral obligations may, for the pur-
posn of analysis, be named respectively as the 'refram ' and 'proactive'
codes ofobligations. The refrain codes remain understandable in terlllS of
'educal inv(:smlent' and company codes, as well as the exhortative United
Nabons Global Compact. Even so, these remain deeply problematic sim-
ply because we do not quite know, nor are always able to say, what may,
Ifttr 0I1i, undermine the 'rule oflaw', both lutionally and globally. This
IaiUlns vexatious question. Is corporate campaign funding for manifestly
bwna.n rights adverse political panies and candidateS Justified under the
Norms? Outside the industry/corpora~ stnuegies of suppon for partics
IQd ~mes that advocate within-lacross-/nations cnmes against humanity
(fonunatdy now a term of art under the Statute of the International
Chminal CoUrt) some difficult questions arise and persist concerning the
- discharge of this 'mle of law' reinforcive order of obhgatlons for
COtpol7lte governance and business conduct. tbuld massive corporate
iobbYlIlgand funding for legal change for repealing progreSSIVe labour law
:nsutlile aviolation ofthis obligation?Are pressures for the establishment
free trade economic zones human righ ts violative? How may we view
:'::sess the Global Compact and company codes that' ~If-sclect' among
~ n fights norms and standards from the vantage point of this obliga-
and thus self-destruct these very nomts?

156. 2tI8 The Future of J Juman Rights
The obligation stipulating deference for 'governmental and Other
efforts to promote and ensure respect for hum:m rights' (the proactive
code) also raise:s a cache of questions. Transnational corporations and
within-nation prelmer industrial houses,often workmg in concert, POSsess
vast spheres ofinfluenee negating human rights enjoyment and nulhfying
their eventttal realization, eveil their protection and promotion. Ilow may
the duties ofdeference be deployed to aid governmemal efforts to foster
respect for human nghts? Should these entities be required to materially
comribute resources for literacy, e!emenury, and primary educ.tion?
Should, in the area oftheir influence, such emities be called upon to mak,c
available at affordable prices life-saving drugs and biotech diagnostic
toolkits and programs? Do they have an obligation to respond to govern_
mental effortS th.t Sttk to ameliorate the plight of the disabled peoples?
And how may these entities assist the CEDAW progt:l.mschrift dial
not merely calls for end to distrimimlliml against women and violence
against them but also for the eradication ofprtjlldict? What specific human
rights responsiblhtles may extend to the mass medi., cybcr-culture,
entertainment 2nd advertiSing industries, now increasingly owned by
trallsnation.1 entities, to avoid in all their operations performances that
further entrench and enhance cultunl stereotypes? How may one, finally
but without bc:ingexhaustive. opcrationalize Article I mandated corporate
and business solicitude for 'the rights and interests ofindi~llous peoples
and other vulnerable groups, at least in terms of duties of corporate
'philanthropy'?
Further, how may the Norms be COllStnlOO to avert and forbid corporate
govemance/business conduct that aids and abets some gruesome, massive
corporatC/business enacted human rights catastrophes, as for example,
those in Ogoniland and Bhopal? Does this duty entail any further social
contract type obligation in disinvestment programmes or the perfonnances
of public-private regulatory regimes, requiring that special attention ~
given to the continuation ofaffirmative action policies, programmes, and
measures borne by the erstwhile state!govcrnmeut corporations from whom
private actors have taken over? How may we, finally without being exhaus-
tive, opcratlonalize the Article 1 mandated corporate and business soliCi-
tude for the rights and interests ofthe indigenous peoples, at least ill terms
of corporate philanthropy? Put anothcr way, and more gem:rally, how may
human rights values, norms, and standards fully Iilform the 'theory' and
'practice' of corporate SOCial philanthropy? , .
The further obligation to cooperate with 'other efforts' must Signify
duties of coopcrallon with the inestimable work of the NGOs. Th~
obligation entails a radie21 transformation of corporate governance an
Market Fundamenuhsms 289
bUsIness conduct, which, wage a war ofposition (in the Gramscian sense)
~n..t NGO critique. expose, action, and movement. The hostile opera-
gons IIlciude attempts at actual harassment of NGOs, lluSlnf
ormaoon
cam~lgl1s through mass media coverage, legal liltllllidauon such as SlAPPS
sOlb, attempts at cooptation22 and capture and control over human fight:>
markets.2J Additionally, corporate and business strategies create their own
NGOs (business and industry artcls propelled instant and endumg NGOs)
III counteract human rights friendly work of human rights organizations,
movements, and imtiatives. Do the proactive duties entail a genetic mu-
caaon that, may as it were, result into conversion of the mighty interna-
ciona.l lions into meek lambs? What software of management education
processes that program the lust for power and profit may be needed to aid
chis uansforn13tion?
A proactive code ofobligations ought not to remalll dangerously inrna-
_ . It should not allow tokenism that signifies opportunistic cooperation
with efforts.t fostering respect for human rights. To allow such accretion
of' symbolic apiul' lin the phrase: regime of Pierre Bourdieu) remains
.. Itself mherently human rights violative.
(c) Sp«ific Duties
Pam B-1r[Articles 2-14) ofthe Norms enunciate • whole range of!>pecific
dunes and the Commentary further elaborates this range. Rc.solls ofspace
bbid a detailed analysis of this admirable performancc. even aehieve-
1Bmt. Ilowever, one must nOte that the specific obligations sUlld animated
by the belief, and conviction, that almost all human rights norms and
ItIndards by definition apply to transnation.1 corporations and other
business enterprises. I wholly endorse this welcome asprration but this
rtnu.ms somewhat beside the point, because: the eminently sute-cemric
burnan rights discourse extends primarily to state actors-thus not entirely
.n to translocation to the real world of trade, business, and industry.
1"0 thiSextent, the automatic affIXation ofobligations under international
..... to non-scile entities articulateS, to use a rather obsolete phrase regime,
hot elements of Itt law but those of d~ lf1r!tjeromJa, not the POSItive Law,
bu. the law in the making, or high on a wish hst. The contrast between
fOrms of politics of insurrectionary desire and politicsJor hum.n rights,
and politics oJhuman righ ts (that is deployment ofhuman rights I. nguages
IDd rhetonc that serve the ends of domination and governance) thus
~
a:J See, ChaplcJ 8.
Sec, Chapter 7.

157. 290 The Future of Human Rights
" ,
"
, 1._ 0" the Norms and dIe Commentary. All progr~lve
remains WT • r.- . .
codification ofIntern.:ltional lawvcntures, ofnecessity. negotla~cs these two
radically distinct realms of politics. The ,Nonns suc~eed l~npresSI~ly
when read as ammated by the politics ofdeslrt" that fUTmsh an Ideal Utopia.
The NomlS crr on the side not of cauti~.n but exube.r.lnCc.
E John Rawls reminds us all. such PUrsUits have a prospect
ven so, as .• b "Id
of qualified success when they seck real utopias Ulat UI on ;av:ulablC'
forms of moral sentiment-not idealistic ones that seck to transform
h Itogethcr. The question is: how onc may read accurately the
,=. (.1 rate direction and standinWv1;1.bility) of the moral senti_
progress u l C , . I b I C
, " ."". h- -mpant voluntarism of the Goa ompact and
menl, I...IUC!I t ... ,.. . I "
od £i 'sh an indicator ofprogress 10 mora sentiment such
company c ~ urnl 'g1 "b"I' . ,
c h ta~ '0' development ofhuman n us responsl I ItitS.
that setS a ,urt er s 0- 10 . .
"I bl b "", -,h ies discourse lIIdlcate a robust base for tht
Docs aval a e lIsm ... .
Norms?25 Is the moral sentiment emergent to some areas ralher .than
I L_~ d,26 Docs a moral reading of some patterns of busmeSli
across t Ie ll'Uoir . . , . f h
d d ornnr1te governance suggest a 'thm conception 0 timan
con uct an c ' Y - be ' 0
.gil )21 OoC's pragm.atism COllnsel parsimony, not exu r.mce. ne
I
n ts. """inst ho..... that by the moment of final adoption of the Norms,
lOpes 010- Y- h ' I which Will
the 'thin' :appro:aches prevail over all all or not mg approac I ,
surciy con-sign their futures to the normative recycle bill. subject 10
instant cyber deletion. 'fi d by th
A sumnury quantitative 'hc:adcount' of obligations SpeCI Ie . "I e
Articles 2-14 yields rar fewer obligations than those revealed by a smtl ar
_.... . h Co ntarv2!l Qualitatively. too.
count of obligations menuoncu m t e mme . r . I d the
. . . th · ly across the Aruc es an
the scope ofobllg2tlOns vanes r.I er munense fi 'lIIes
Commentary. ThiS happens at least in two distinctive w.ays: fl~t,~" les
obligations that may not be said to ensue from the text 0 ~rgat~~ns
emerge from the Commentary; second, not all Commentary 0 I
cast mandatory duties.
~ John lbwls (1999). I ' (. r buslntSS
" Much he~ de::.....nds not Just on the:: 'search for I1l(Iral umve::rsa S 0 ...-s of
,,- . . r to' only cerlalrl '1"-
bUI on Ihe fdt neceMlty 10 lilllit Ihe e::xtcnSIQ/1 0 norms F (20113) S6l
" d '0"'--' c __ ThomOlS W. Dunfee and limolhy L. orl ~
oorporanons an.. ........ =<=.
al 567. Sc::e also DunfL'C (1999). . ' . III Ihc ~renas
2ti Alre::ady, the Norms deftly adv.lnee:: .11I0ra~uman nghts senumenlS
of conSumer ~nd envlronmenu1raghls III Articles 13 and 14. I'- b SIChunlln
n Sec (or example::, Thomas Donaldson (1989) who argues that)""," ~
" 1 I nons
riglilS re::sponslbllJtles may e:ae::nd to mu unatlona corpon . h ComlllcntifY
21 Much of rourx dc::pc::nds on ways ofcompuullon; on my e::~ulII,I e
providc::s for more Ihan the ovcnl1 sum of 105 spc::cafic obhg;auons.
Mar~t Fundame::nulisms 291
First, manifestly, even a most parsimonious code of human rights
responsibilities of all business entities should include Article 3 type obh-
poons that forbid these from benefiting from
wu ( nmes, crimes :against humanity, genOCide::. to"ure, forced, or compulsory
),bour, hostage taking. extra judicial or summary or arbllrary executions, olhe::r
ytObtions ofintematiorul hUnUlln:.uian law, and othe::r cnmes :agaInst the:: human
personas defined by inlemalionallaw, In puticulu internauonal humanitarian law.
Equally Justified stands the Commentary extension of thiS obligation to
'"stCUri£y arrangements for tr.lnsnational corpor2tions and other business
CIIlrfPrises' in a post-Ken Saro-Wiw.a world ordering. In terms ofimple-
mentation, such violations ought to incur heavy civil liability for the
ratitution and rehabilitation of violated peoples and work2ble proposals
iDr criminalization of stich COrpoldte conduct.29
Second, Pan E (Article 10 alld its :accompanying Commentary) obligat-
.. duties of 'respect for national sovereignty :and human rights' remains
wholly consistent with a 'thin' code prescribing positive oblig<ltions. Such
.code would, in my opinion, exclude omnibus oblig<ltions articulated by
*Commentary 'to respect the right to development', or even the more
..,-avatingly non-sp«ific yet comprehensive oblig<ltion to 'encouldge
IOciaI progress by expanding economic opportunltlcs-particularly in
ftloping countri~ and most importantly in the least developed coun-
, The aspir.ation thus articulated is laudable but overbrmd. Thus. the
IIau oblig:.tions subjecting expansion of 'economic employment' to a
IlEber n gorous regime of obligations (particularly Articles 5 relating to
:dMId labour, Article 8 relating to ·remUller.ation that ensures an adequate
......rd ofliving' with further obligation 'towards progressive implemen_
.aon,' Anicle 9 relating to the insistence on workers' assoc:iational rights
collective bargaining, all variously and fulsomely clabor.ued by the
Commentary) furnish future sites offierce contention. A 'thin' normative
Jltbging would highlight the more cmci:al non-negotiable elements,
II.vingequally vital human rights responsibility performance to achicvc_
_l over designated time pcriods..lO
llurd, the 'tldnsparcncy, accountability, and prohibition ofcorruption'
41t1igations under Article 10 remain inadequately anicul:ated by the Norms
~
30 Con«tlling Ihis, see IlaXi (2000) alld Ihe:: IlIeralUre therem Cited.
On t h ll register, e::unously Ind polg:nant!y, lhe V~I"IOU~ ID1UIIIon tlilles pre::scrii:M:-d
WTO agreements proVIde a good enough modd for planmng IranSllion for
...",'",,,~Implemenucion of corporate alld bU5L1~ human rightS responSibilities.
r l...L may not. h~r, be: Justifiably heard 10 JaY dUI such extended penods
'"IlJCrcntly ul1re~li..o;tk.

158. 292 The Future of HUlT.;ln Rights
and the Commentary. As regards 'corruption', the Norms Will now ha
to ~ re2CI further in terms ofthe United Nations Corruption Conventio:
2003 2nd the equally recently adopted Mrican Union Convention o~
Preventing and Combating Corruption. More vt"xing, ofcourse, remain
the msensitivlty in the Norms and the Commenury toemplricallllerJtur:
concerning 'corruption' and its impact on human rights, which identifies
discrete forms of types of 'relationship marked by different dislnbUlion of
rents betwttn the firm and the state.' These include 'SUte capture' ('de.
fined as ShllpiPl,~ 'litjomlillion ofIht basic ntm of,I~ gamt' via 'illici" and non
uansparem private payments to public officials'), regulatory captllre (via
influence that 'refers to a finn's capacity to have an impact on the fonnation
ofthe bask rules ofthe game wi,hold necessary recourse to prillalt payment
to public officials'), and administrative corruption 'defined as prill(l(t pay.
ments to publk officials to distort the prescribed impitmtt1l(llioll ofofficial
rules and policies,.JI State capture emerges as a decisive is:'lIe on this
register, crucial to developing as well as least developed societies, and the
so-called transitional post·Soviet economies. Available evidence suggeSts
embryonically that human rights thresholds limit state capture, even in
forms of regulatory capture. The Norms and the Commentary remam
seized, however, with ~rformances of administrative corruption thus
defined. From a human rights regulatory peT5pective, it remains IInportam
to address forms ofstate and regulatory caprures; one hopes that further
development ofthe Norms differentiates these categories more adequately.
Outside this framework, I am not confident that the relation between
the Articles and tilt: commentary remain at all symmetrical, in lenns
already mentioned 111 the prccedjng paragraph. For CX2mple. the proscrip-
tion in Article 5 forbidding use of'forced. or compulsory labour' develops
in the Commentary so far as to outlaw deployment ofchild labour simply
because of its use of Iar~ language describing economic exploitation 'in
the manner that is harmful to ... health or development', specifically 111
ternlS ofaccess to schooling or 'perfonning school related responsibihties.
This assumes inter-state conscnsus not yet at hand concerning the human
rights ofthe child within and beyond the United Nations COllvention on
the Rights oftbe C hild, 1989. This is deeply unfortunate, indeed. But the
qu('stion is how best 10 craft normativity that centimetre by CCllwlleter
paves the W2y to real-life achievement in a zodiac of globalization that
profits by the theory ofcompar.nive advantage. Would it not be a concrete
mode ofachieving ameliontiofl to prescribe that multination:al and other
31 ~ Jalll(5 S. Hdlnun, GcUUlI Jones, uad Datlld Kaufman (2000.) Sec also.
Upt"ndn Ihxi (1990) for a rda!ed typOlogy.
Market Fund;Ullenu,hsnu 293
busllless enterprises to cease and desist from use of child labour 111 W2YS
chat deeply affect schooling by a certain cut-off date and 111 the interim
direct a percentage of their profits to the crcation of conditions under
which etublc developinW$outh St:ltes and societi('s can expand theireffortS
at child literacy and education? And here I speak on the Issue as a child
l~bc)Ur abolition fundam('ntalist!
(d) Dlltjfj of !mpltmellfatio"
Part H (Article 15) addresses these duties rather admirably. The Norms
and me Commentary envisage these in terms of'il1ltial implementation'.
First is the obligation to 'adopt, disseminate, and Implement internal rules
ofoperation in compliance with the Norms'. The Commentary further
specifics duties of communication
in oral and wrinen fonn in the languab't' of workers, trade unions, contractors,
suoconcn.cwrs, suppliers, Iicen5('S, dimibucors. n.ltural or ICg:&1 ~rsons tim enter
inco concr:lCts with the trallsnational corporAtion or other business ~nterpri5('.
cu,comers, and other sukeholders ...
Upon the adoption of such procedures arise further human lights edu-
cahon obligations to 'provide effe<:ti~ training for their mallagers as well
• workers and their representati~s' wnhm, of course, 'the extent ofthcir
mources and capabiliues,.J2 When the various entltlCS and persons thus
C'Il1bracro prove recalcitrant, both in terms of duties 10 'refonn' and
'decrease violations', the Commentary adds a concrete obligation, not to
be found in the parent Nonn obligation ofArticle 15,ofcessation of'doing
business with them'. Further obligations, accordmg to the Commentary,
entail 'disclosing timely, relevant, regular and reliable infonnation regard.
~ their activities, structure, financial sitUation, and performance', espe.
ctally providing infonnation ' in a timely manner (to1everyone who lTI2y
be affected byconditions caused by enterprises that might endanger health,
safety, or the environment'. The obligations stand progressively cast in
trnns of the 'endeavor to improve continually... further implementation
ofthese: Nonns'. Article 16 subjects "0 periodiC monitoring and verifica-
UOn by the United Nations, other international and national mechanisms
already in existence or yet to be created, regarding application of these
~onns'. New, and wide nnging, forms of envisaged implementation
Inflect with human rights respomibilitics all actors, instrumentalities, and
P~tforms of power and authority at all le~ls (local, regional, national,
"nus must of COUf"S(' refer- co small·!IClII1e and other buslllcss enterpnscs.

159. 294 The: Future: of I-Iuman Rights
supranational, inten12tional. and global}. The Nonns thus Innovate no-
tions and strategics hithertO unimagined for implementation of human
rigillS norms and sunduds.
V Business Ethics In Relation to Human Rights
The Norms and the Commentary seem to have benefited little from the
growing discourse concerning business ethics. The axiology ofthe Norms
and the Commentary assumes that 0/1 human rights responsibiltties thilt
extend to state entities extend also, both in principle, and in detail, to
tr.lnsnational corpol'lltions and other business entcrpri~. Ilowever, many
a question arises concerning the source/seat ofobligation. The most fun-
damental question is: on what ethical grounds corporate governance and
business conduct ought to remain subject to some moral and §OCial respon-
sibility regime? The second order questions incllld~s: What ethical lan-
guage may best i1tticulatc such obligations-the languages of Corpol'llte
Social Responsibility (CSR), those of g10bill justice or those of hUllliin
rightS? What kinds of norms arise from these sources? To whom arc the
obligations o.......ro? Are these owed to shareholders or to iI wide, and
inherently indetenninate, :and unstable, constituency of'sukeholders?,JJ
Who remain tile duty bearers? IlOY.' rilr may we Justify 'one )IZC fits illI'
type nonnativity, regardless of the scale and economic vlablhty of the
enterprise? These, and rdilted issues, may nOt be ignored in ally endeavour
to further promote the Norms because one person's axioms articulate
another person's radinl doubt!
(a) Tht Foundational Questioll
Concerning the foundationill question, even the field ofemergent business
ethics grapples with but does not yet quite overcome the 'corporate
Neanderthalism, associated with Milton Friedman who wrote, 'there is
one and only one kind ofresponsibility ofbusincss-to increase its prof-
its'..}4 Ofcourse, Friedmiln subjected his observiltion to a caveat: this duty
of 'making as much moncy as possible' was subject to elementary obliga-
tions arising from 'the basic rules of society, both those embodied in law
and cthical custom:l5 I lowcver generously constnled, it is quite clear that
the caveat docs not extend to the imposition or ascription ofwholesale and
retail human rights oblig;uionyresponsibilities nowexplicated by the Nonns
l) Ebbor:ltdy defined In Anlde 22.
301 Thomas Donaldson (1989) 44-64.
J5 See Mllron Fncdman (1970); Wilb Johnson (1989).
M.1rUI Fund~mc:nullsms 295
and the Commentary. At the most, the reference to 'ethIcal custom' 111 the
c~eat m.ay suggeSt a range of obligations owro by the managt!rnem of
'profit-making corporations with public owncrship',J6 Wlth somc severely
hmitcd obligations cntulcd thus to 'stakeholders' (such as workers, con-
sumers, and environment and even the much debau:d-issue III bus1l1Css
cthics discourse-of corporate philanthropy). Likewise, the reference to
the 'basic rules ofsociety' may extend to important duties to refralll from,
for example,' hiring a hitman to murder a key witness against the finn in
a major product lidbility case',J7 However, outside this mimmalist range,
further human rights ~pol1sibillties remain indetcnninate and contested.
Both the key t(mlS ofthe caveat then do no mOre than counsel prudential
action by m;uugers in their pursuit of maxinul competitive advanugc in
domg business.
Even so, the foundational question in btl5iness ethics and related litera-
ture does not always attend to what the Nonns characterize as 'other
business enterprises'. These, as noted diversely, typically include: wholly
pnvate finns (unincorporated business associations), statutory corpor.l-
Dam and government companies, trusts, foundations, and chariuble or-
pniziltions related, in one Wily or the other. to business and IIldustry, and
(wnhout beingexhausrive) human rights ilnd soc"I2lmovement NGOs, and
pabalcitizen action agencies/fon. ilided by business and industry (whether
cpisodlCilllyor in a sustained mode). This latter siruation becomes infinitely
complicated now with the United Niltions system (prccmlllently the
UNDP and the WHO), pursuit of raising resources from mulcinatiOllill
corporations, some ofwhom remain egregious violators ofhuman rights,
ID the cause of 'mainstreaming' human rights. I am not sUSb>csting that
the illready encyclopaedic Norms should be funhcr extended counter-
productively, I do suggest, however. that the issue ofextension ofbusiness
ethics and human rights standards across this range is relatively unexplored,
D:I WOI)'5 that renders difficult any theoretical critique of the Norms.
Over illI, the emergent fonns ofbusincss ethks discourse suggests that
~e and commerce 'formiltions', 's)'5tcms', and practices ought to remain
';::0;al free zone' or ilt bc~ bear witness to extraordinary complexity of
, morals by ilgrccmcnt'. Thomas Donaldson and Thomils W. Dunfee
~ tltelr immensely valuable worj.:;J9 suggest iln approach they nilme as
ntegratlve Social Contract Theory'. T his approach re-posltions 'moul
~
17 Thollus Dunfee: and lImolhy L Fort (2000) 563 al 567.
I detl~ thiS felicltoUJ nongc of lllu51nhons from Thomas Dunfee (19991129
·132 ( .• .
p.a.tenmescs III the onglllal f'Cmoved here).
19 Sec, the path-bre:along work of Davxl Gauthier (1986).
1M 1iD that Bind (1999).

160. 296 The Future of Iluman Rights
free spaces' In tc:nns of a 'macrosocial' and 'microsocial' comracts..o by
notions of 'hypernonns', 'hypergoals'. and 'authentic norms',41
(b) nle Issllt ojAppropriate Etlfjeal LallgIltJ.~
Ifthe foundational question may be somehow 'satisfactorily' addressed, the
contest shifts to the terrain ofappropriate ethical languages through which
we may construct the ethic oftrade and business, I luman rights languages,
on his register, compete with those ofCSR. These, put togt:thcr, further
contrast with deontological ethical languages,
Exploring first, and necessarily briefly, the languages of CSR they seem
to have been in constant evolution, so much 50 that one now speaks of
the third generation,..2 The first generation showed that business entities
be socially responsible primarily through corporate philanthropy, not in-
imical to but indeed beneficial to 'commercial success', The second gen-
eration seeks perhaps more than a veneer of ethical respectability by
accentuating company engagement with social responsibility; put another
W2y, taking social responsibility seriously emerges as a crucial aspect of
doing good business, Social responsibility here also figures often in terms
of best industry standards, Aside from minimal compliance with tax and
labour laws, :
md company/industry-defined modes of self-regulation, the
notions of 'corporate citizenship' or of 'citizens CEOs>4.l begin to uk«:
seriously nsk analysis. and management. A recent United Nation~ Uni-
versity study presents this in terms of me Principle of Double Effect.
providing for the minimization of negative side effects.« The thIrd gen-
eration ofCSR languages leads on to thc now tireless talk abom 'sustalll-
able development' fostered by the Business Council for Sustainable
.0 Students ofEugcnt Ehrlk h wdl readily under:sund this unf
old~nt as InsanC.ng
whll be memonbly called as the bw lrising out of the 'inner order of as,sociauoos'
Students ofMlchcl Walzer may gnsp this in terms ofsome 5()I't of'spncUll ofJusucc'
argument: human nghu or JUStlCC v~lues, staruhrds, llKI norms entirely appropn;lIC
10 Ihe publ..:: spheres of govcrnlllCc/satc conduct m.:r.y thus become mapproprlll
C
inlp05IUOns In the sphere ofmde, COllllllerce, and business. Worse slill, these lnay also
prove counterproductive,
41 Om: may of course argue, follOWIng Nlncy Fruer (2003:34-7) 'ag:unsl rcduc-
tiOlUsm' and for 'perspectIVal dualislII' In Wlyt mat suggeSt Ihat govern~nc~st:ltc
conduct and markcu may t1ms nOl be reprded as separate aUlononnc spheres bUI
rather u s.teS of comple" and inlerlockmg 1II1crsectlons, exh heaVily, and hiJloriu11y,
permeating Ihe O
lher. I suspect that Ih.s provides the besl bet there 1~ for any wonh-
while groundlllg of Ihe Norms,
4~ Zadck (2001).
4l C ited .n UN II)Q (2002),
44 Lene Bonullll-Lanc:n and Oddny Wiggin (2004).
Market Fundamentalisnu m
[)evelopmcllt and related ventures45 and further by the ever-proliferari
disCOUrse on 'good governance'. ng
The comparati,ve advantage: ~f CS.R languages is mat they open up
valuable.space for In~r,-~nll and mtra-mdustry dialogue concemmg mlnl-
nul socl:1l responslblhtu:s, marking contests :lmldst :I vanety of acto
principles, and 'wc:bs of influence' (insightfully described by BraithW:l~~
and Drahos). C lea,rly, as a recent UNlOO study nclliy shows. the kvds
at whIch contestat10~ takes place is cruCIal; shifting CSR dlscursivity to
SME (s,mall and,med,um enterprises) involves a whole vanety of cognate
but ~~tln~(conslderations. This perspective, at the very least, surely invites
:II teV1sl~u~.n_ofthe scope ofthe 'one size fits all' insistence on human rights
rcsponsl~lhtles ofall business entities tveryw/lm, even if at the end of the
day, onc 15 not ever c,on~dellt what CSR languages may signify in tenns
of h~re-and-n0:-V obligation of I~~ and medium business cnterprises,#>
outsIde the ethIC of conseque,nuahsm for business and indllstry,
Whatever be ~h,c vantagc poUlt,ofthe critique ofCSR, its languages have
te2Ched so~e ~nt1cal t,hresholds III ways that human rights languages have
ret to a~qUl~e III relation to business and industry, Surely, the talk about
generations of human rights does not even n=motcly approximate the
development of the languages of CSR. This talk, until the emergence of
the .Nonns, ~id not speci~c~lIy address human nghts responsibility of
busllless an~ mdustry, In thiSlight, one understands more clearly the dense
mtertextuallty ofthe Norms. However, th15 mdetermlnate Pt=nclopc's wc:b
finely spun by the Norms does not by itselfmimmize the 'culture shock'
thus ~used ,to trade, business, and industry, accustomed :md addicted to
ptactJcallCJgIcs ofvoluntarism and minimIzation ofappliQuon of human
rights Standards and norms,
(() Hllmall Rights as Hypenwmu?
~: ~tchove~ to ahe~ative languages of human rights responsibilities
raIses host11e recepuon problem/situation, The inItial resistance also
~5 1n th
actJ . WiI)'S 3t bnngto mind Andrew RIlW'eU'sanalyslJ (1996) and cqw.1l., trcnch3n1
Y1SI cntlqUC5' sct' fo r I ) I'd "
fXcou ',' CXlImp c, am~ ~l gew.ty and Jeffery 5 1, Claire (1998) and
(200J)tse the lummousd.scourse of Naomi Klein (2000, 2002.) 5« al~ An11 Zamm'l
; LIIC Feny (1992), ' 1
funI mUSI of C?urse add that my de!ICnptlon o f these Ihree 8'=neratlOns docs not do
~u~tlce 10 Sunon Zadeek's superb analysis.
The UNIOO b 1
orcourse narn&l1ve t lSI cs, understtlKbbly, WIth progr.nnmauc confidence
10 the ' co~slderable rell life om needs 10 be done to carry Ihe CSR langu.a~
lOme smu::ro5lles ?f bUSlIlCSS and mdustry and the namuve provjdes an account of
UCcc:n Stones that we may not ignore,

161. 298 The Future of Human Righlli
ari~s (rom gnnd economic theory. w~ich (~ we know since the pioneer_
, fRonald C~) views the mseruon of human rights sund:
l.rds
mg corpus 0 . ' I
and nomlS primanly In the diction ofmanag1~g transac::tlon C
O!.lS; lUlll:r.n
rights languages. alongside others t~len stand ~ewed as factors ofproduc_
tion'Y Rights, including human nghts, constitute no trump,,5. renulllIng
infiOltely negotiable in doing business when they enter :It a In manage.
mentlenterprise decisions. .
A normative discourse that m~ beyond tius conscq~ent1ahst frame
" fco,nm,'onent to Mr.Ilitarian or rights-onentcd nOtions,
ental s some son 0 -0-
d h
' h ' o. conduct lsj
'ustified independently of the outcome
un cr W Ie actIon
f
' ' I-I '" what matters aT
Cnot consequences of act/conduct
o one 5 actions. -:aCT..., . ' •
but ' a variety ofTules, principles, or COl15lr.unts mvolvmg mon,1 duty and
h f '··-'f' 48 This 'deontolnmcal ethic' seems to be affirmed
t e nature 0 act I...,... . -~' , . ,
by the Norms, which disallow ongoing recourse tra~mg. away ~uman
" " Deo "ol""";cal ethic rniscs the already heavIly SIlenced Issues/
Tlglts. I -D' I ' . 50 I I'
thematics concerning emerging approaches to globa Ju~t1ce. . n t ~
sense, human rights nomlS and stand~rds, h~er admlr.l~ly IIlstall
by the Norms, remam ethically sclmble only IIlsofar authoTlzed by ap-
proaches to global justice. . f
Out :all this po~ considerable difficulties. In his notable extenSIon 0
th........-v ofj'usoce to illlernation:aljustice,John Rawls, the foremosl plnloso-
~-'1 . . , , f th I of peoples docs not find It
pher enunciattng Justice va ues 0 e aw '. .
sible to foreground for corporations and other busmess entltl~~ any
::ific duties of justlce.SI Perhaps, there is no sure way ;Od.edllC2l1~
adjudlc:llte the chOIce betwttn tYJO constitutive clements 0 ISCOUrse.
'7 See, for CXllmpk, the analysIs of v:ilOOUS approxhc:s of'wl:alth nlal'tlimUtlOn' m
Nicholas Mercuro and S~ G. Medina (19'17).
48 See FranckJ. Garcia (1999) at 1022.
-t9 See for thiS nooon. Garcia (2001).
SO See'Thomas W. Pogge (2002); Upcndn Haxi (2004). not
" <•• John Rawls (1999) 35-9, 59-88. Corpontc and buslncss cllUt'b
~
1 do ,••
""""'. . I f I I f la apphc~ e to ..~
fc~ture '" hiS enuncl;ItIOII of eight prlnClp cs 0 t Ie ~w 0 PCOP I' a~pc(t ~
n.>nI"S of SOCieties. nor as any (OllSritutlV( feamre .of thc bttcr. On t u5
bl
,orrup-
.... d n._ (2002 200-4) Ofcourse Rawls rcmam concerned With pu Ie 1 (
Upcnn,~ " , d II hen, III eonuu 0
~s an aspect of 'background culture, with Ie great wc:a t I I ffeet
non , I lc asks: 'is It any wonder th~t congrcsslonal lcgniallon 15. m e . ~
ec:onollllc power . b . I her where b W'i
written by k>bbylSU, and the Congress becomes a arg:unmg Clam clll lfitd
be
,., d ",d' (1999 at 24 fn 19) Ways of rcwmg Rawls, superbly cx P 1;I(t
"wit all ' . ' __.......l I Even 50 thc p
by Thomas I-'oggc (2002) yield dlamc:tncally op"",",u COI~C US10IU. ' llldudl1,g
of hUlll.~n nglltS responsibilities of big and small busmess emcrpnscS,
tnnSnatlonals, rennms amblv:illent III tillS corpw.
Market Fundamenulisms 299
voluntarism and enforcement.52 Volunurism necessarilySttks to minimize
d1~ range ofhuman rights rel>ponsibiittl(:s extC'ndable to trade and businc=ss.
This 'mainstTeaming' of human rights further c=ntai l~ the problem of
fTag1ncnution of the universality, illimiubility and indivisibility ofhuman
nghts.ln contrast. the Nonns suggest maximal enforcemc=nt ofalmost aU
human rights. If voluntarism enQils a smorgasbord approach to human
rights. in which corporate CEOs maychoose to feast, enforcement is more
like a prescribed Spartan diet. It entails imposition ofexternal llOnn.tivity
on the 'inner order of association' (to borrow the phrasc= from Eugene
Ehrlich) of transnational governance and business conduct.
Human righl'i norms and standards may emerge, in this context, as
'hypemorms' that furnish a 'limited set of universal principles that con-
strain the relativism of (business and industry) community moral free
space,.53 The Integrated Social COntact Theory that Donald son and
Dunfee propose, ofcoursc, assumes that 'that norm-governed group ac-
tivity is a critical component of economic life.'SoI Hypernorms arc 'prin-
ciples so fundamental to human existence that ... we would expect them
10 be reflected in a convergence of religiou~, philosophical, and culturnl
beliefs'.55 Clearly, hypcmorms, in the discourse ofbusiness ethiC5, do not
extend to all human rights norms and standards, applicable across tlll fon115
of corpornte governance and business conduct. The NornlS, and the
Commentary, however, presum(: otherwi~!
An Important reason for thi~ hiatus is furnished by the felt necessity in
busint'S5 ethics discou~ to translate hypernorms further in the languages
ofhypcrgoals.56 A closer analysis may wdl reveal the pote:nti..1to bridge
Ihis gap---a task I do not essay here for reasons of space as well as of
competence. Yet, it is cic:lr that not tlll human rights responsibilities of
Ctansn;,uional corporations and other business enterprises, as envisagro by
Ibc Norms and the Commentary, render themselves open to a business
nhic discou~ of hypcrgoals. I, incidenully, illustrate this in what now
follow,;,
';l The former tefer.s to rebtivt' aUtonOmOlH self-rcgubuon uf tnlde and bmmf:5s
Mille the bttcr signifies a reaJ hfe, and variegated. rcCOUI'SI: to a rather a p;lr.simonious
-.cmblagc of lllOnVeducaJ gtudehna, the fCW(r the bellcr remams nomlaUve ap-
Ptoach IS guided perhaps by the difficult Ik gehm Iheme of quality converting luclf
~~t1,l1y mto qu~nuty.
!>4 Tholllas W. Dunfee (999) 129 ~t 146.
~ IbId.. 145.
St Ibid., 146.
S« Thomas W Dunf~ and TImothy L Fon (2003).

162. 300 The Future of Human Rights
(C) 'Orle Size Fits All Non1lativity'
This question, at the end of the day, stands posed both ideologically and
empirically. Ideologically, the histories of global capitalism and human
rights suggest that hopes for human rights achievem~nt may md«d be
overstated.57 Put more manageably, in the present context, the question is:
How far may the notion of business ethics orient itself to human nglus?
Can it, consistent with its originary t:r.ldirioos ofdiscourse. go as far as the
Norms suggest? Is there a core aspect of doing business that necessarily
enuils 'trading away' human rights? How may human rights implemcn.
tation approaches, unlike voluntarist ones, necessarily inhibit the gigantic,
werewolf, appetite for profits and more profits at the cost ofpeople's rights?
The broad empirical questioll is: Whaifwhich 'human rights' may applyl
extend to multinational corporations and other, related, business organi·
Z2tiolls? I only address the latter question here (again for reasons ofspace).
Fif'Sf, given the diversity ofeconomic enterprises as well as of interna-
tionalmode of production of human rights, raises the question whether
hurnan rigllts fundamentalist approaches adequately address and exhaust
empirical and normative conceptions concerning 'social respollsibll1ty' of
trade and busllles5 formations and practices. Put more manaboeably the
question is: Which are the right language and rhetoric-those furnished by
the gnmn1ar ofhuman riglltS or the wider languages of'social responsIbIl-
ity'? Do human rights langu~s and logics adequately recast 'social respon·
sibility' ofnlUitinationaVtnosnational enterprises, no nutter in howcomplex
and contradictory ways? How may we, funher, locate authorship ofsocial
responsibility in the normative evolution, as well regression, of fonns of
interstate consensus and conduct, fully exposed toview in the inten111nable
wrangle concerning the fonru of 'hard' and 'soft' intentational12w?What
warrant on human futuresjustify the adequate dialecticaldescription of not
only the Stories we may choosc= to teil about how 'soft' law becomes 'hard,
law bm also narrati~s concerning the softening of the 'hard' law? How
may we further understand also the narratives concerning the softening of
the 'hard' human rights law. conspicuously manifest in the Kofi Annan-led
United Nations Global Compact? It ,clearly, now empowers multinational
corporations to pick and choose among human rights norms and standards
that may bind them. with the mOSt feeble accoumabiHty obligations.
Suorld, there emerges the conflict between voluntarism and
maximaliution; that is. between corporate self-selection ofapplicabIlity of
human rigllts norms and standards versus hum2n rights maxlmalizatloll•
57 Chlpttl'S 2 and 8 explore some aspects of tillS relation.
Marut Fundamenulisms 301
now abundantly exemplified by the Norms. A.l1 this raises the issues of
business ethics in evolution;advocacy ofmaximal incorporation ofhunun
rights norms and standards is more likely tostymie their nonnative: binhmg.
On the other hand, trade and business nonnarive shopp11lg hsts may
legatimize 'free choice' (in the fullest sense of the tenn) that may result
111 abortion. even amniocentesis. of progressive human rights futures.
TIlird, impltnltnf4tion issues, thereby, also become ISSUes ofdiversefight.
irlgjaiths. On the one hand, the proponentsoffree market fundamentalisms
may demonstrate polemically the perils of strict, comprehensive, and
iI1sunt implemenulion to the very agendum, and tasks, ofthe human right
to development; on the other hand, the advocacy of fullest advertence to
contemporary hunun rights may nornlatively suggest the lack ofany half·
way house amidst the clash of market and human rights fundamentalisms,
often fierce, no matter how dispersed on diverse sites.
Fourth, even as we may closely attend to the complexity and contradic-
tion in human rights discursivity, the non·discursive clements do indeed
nutter. I recourse here, in a shonhand language, to the issue ofimpact of
current. cruel, and endless 'War 011 Terror' and ''War !?fTerror' both on the
CSR and human rigllts languages ofcorporate and business responsibili-
ties. The New Imernational Miliury O rder, decislvdyemergellt in a post-
9/11 world ordering, marks an extl"2Ordinary revival ofdefence and global
annaments 'miliury-industrial complex' (to invoke a yesteryear, anachro-
nistic, phl"2SC). All this raises extraordinary questions for the hUlllan rights.
Iypc business and industry human rigllts rcsponblitUe5 proposed already
by the Nanns. If this prescriptive nonnativity forbids, as a matter of an
~rarching principle, that trade, business, and industry may not profit
&om human, and human rights abuses. where indero may one locate the
'ethics' ofscramble for contracts in the current 'postconflict' Iraq milieu?
Does In anyway the now privileged Status ofthe Iraq war coalition favored
allocation ofcommercial contracts for the 're·building' of Iraq violate the
Norms on the one hand and the cvcr proliferating business ethic literature
concerning hypernorms and hypergoals on the other? How may we relate
«PCcially in the latter context, the basic principle that no one may thus
profit from such abuses?
The Norms and the Conunenury ambivalently repudiate the rather
gruelling choice expressed poignantly ill the lIlvcim 'half a loaf is better
than nOlle'. The question, put in the metaphor ofthe Genetically modified
(GM) food discourse. directs attention to the necessity ofchoice betwccn
the human rights 'organic' and the human rights 'mutated' versions of
responsibility regimes of transnational corporations and other business
enterprises!

163. 302 The FUlure of J-Ium:m Rights
To conclud~, I su~t a full ran~ of 'precautionary principle' (so
recently adumbrated III th~ discourse of the Cartagena Biosafety Protocol)
to funhcr exercises alO1w at tile development ofthe Nonns. The endeav.
our al wholesal~ medl;J;tion of free nur~t fundamentalism via coequal
human rights fundamenDlist languages and logics ofcontemporary human
rights values, standards, and nonns raises impondcl7lbl~ issues 111011 now
invite even funh~r heroic f~ats than those now r~adily;J;vallablC' III the prose
of the Nonns and the Commentary.58
51 Reference here is nude to a rc:ccm cOTltribUlion of pol1l1cal pluJosopber Ins
Moms Young (2004), where she. In the m.;Un;and in the COntexts ofJusufll::ltlon for
ann-sweatshop :lCI1V1SI human rights movements, rightly advocates movement from
Ihc liabdlty-bued 'blame model of responsibility' to a 'shared pohuol responslhillty
model', in which the followmg man.! p~s remain pre-cminenl. first, mlhlS model
of pollnol re'ponslblllty (u distinguished from the convennonal c1YiVcnminal legal
lwnllty reglllles) we accept 'a responsibility for what we have not done' Simply hcC:l.u:;e
many 'ases ofhums, wrongs or injustice havc no isobble pcrpelntor, but rather result
from the part1clp~tioll of mllhons of people in institutions and pr;lclices thllt n'~ult In
hamu' (at 377). Second. Ihe conceprion of pohrial responsibility is one 111 willch
'findmg that 50me people bear responsibility for inju$uce does not neccssanly absolve
othen' (at 3n). Third, such a conception renders problemauc, III waY' that the: lel;3l
lubillty appn»c:h m..y not. somc: of'the normal and accepted b.ckground condmolU
ofacuon' (at 378). Founh, the ellure pomt of the shared polmol responsibility model
1$ ·to bnng about results' n the:r !han to apporuon blame: and sh..m<:, precl:;ely heC,,"u5C
thelle btter mechallisms tnggc:ror.tl avouilncc ofshared resPOld lbdlty. Fifth. me ~ham:l
pohtlcal T«pOT1siblhty model n the end ofthe day 'mvolv<:s coordmauon wnh othen
to x hlt'VC...ctu.Ilt;t:' (at 387) Ifonly bcca.ae It IS 'more forward.lookmg than b.ckward-
Iookmg' (at 3811). Sutth, ovcr.tll. Young nUIIIQln~ that the concept of ~ed pohtlcal
responsibility fCmams ·gen<:r.tbuble and applies to any suuctunl ITIJUStlCC' (at 388)
prectsely benusc eontemjXItaI)' economiCgIobilizarion sigmfiC$ an Inlnlensc order of
ethlOl interconnectedness. It remains Ullporunt to stros, in the pr~nt conteXt. that
advoacy ofthiS approach does not altogWtcr supplant the kgalliabllJty (both ciVIl and
cnminal) approach. Young, suspects, would theTeforc wdrome the proposed UN
Norms; and mdet'd read, in the light of her awlysis, that the Norms nuyevcn he saKi
to Implicitly advance the model ofsh~red politiol ~nsibility. Even 50, the qUC'Suon
remams: does lICcentwled emph;lSis on reforrrVinnov.lI1on of the legal hablhty tnodd
carry any advcrse potential for the shared political responsibility model? Put another
way, how best may we approach an undc:r.;Qndmg of the: complcmenQrlt1CS of both
the approaches? Space ronstr.l1nts forbid funher anal)'5"is of tillS aspc:ct.
It i! abo tnle that the shued political responsibility approach olTer a more rollJ1d~-d
educal bnguagt than do the fr.tCllred languages of·corponle Cltl7,enshlp' or CSlt Yet
it IS not fully den. given Y
oung's dlStillCtiVC: emphases concerillng eol1cell~ 1110nl
agency of all globalized human bcUlgs and enuncs to work together to produce Just
results III the future, how all tlus l1llIy n:ndc:r the CEOs of mult1l1ational corporauoJls.
the leaden ofGS, as well as the gene:rals and focx sokhen of 1IllCmatlo,,~1 alld TCb'lOllll
financial IIlsuturions, cloK COl1S.lId. or even etlucal near·dones. or human TIghts
actiVIsts.
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A1exandrowicz, C. 120
Ali, Shaheen Sardar 102
Alkire, S. 202
Alston, I~ xviii, 18, 107, 114
A]thus~r, L 59, 60
Amencan Anthropological
Association, In
Amena.n Auocuuon for World
Health, 157
Anand, A. 70
Andrewll. L. B. 279, 271
Anghie, A. 120
An-NOlim, A. fIl
Anonymous. 70
An-Pyong. Jlk 41
AntOny. L. M . 14
AppOldurai, A. 241, 246
AquinOlS, St Thomas 26
Arendt, H. 27, 130, 131, 133, 143,
147
Arrighi, G. 70, 237
Asad, T.196, 197
Atali, J. 239
BOldiou, A 193
Bagguley, p. 115. 120
BOlter, K. 195
SOlkhtin, M. M. 139
Author Index
&lbus I. 122
&libu, E. 70
Ihlkin, J. M. 21
B:.unford, J. 171
Ihrsh, R. 136
Ihssiouni, M. Cherif 1I
lhudriJlud, J. F. 98
»OlumOln, Z. 156
Ihyefsky, A. 54
Beck, U. 95, 116, 118, 264
1kcker, G. 220
Beia, C. 286
Bamford, R. 201
BenjOlmin, W. xiII, XII
Benthall, J. 223
Berbm, L. xvii
Bernstein, J. M. 121
Boc:ur, Ihrlw. A. 270
Bonunn-l.01rsen L. 296
Boothe. W. C. 149
Bourdieu, P. 67, 219, 289
~n, T. 86
Bowie, M . xxiII
Boyer, R 242
Boyle, K. 163
BrOldiotti, R. 135
BnithWOlitc.J. 64, 65, 71, 97.
237,239
Brenner, R. 235
Brighouse, II. III
British Medin] Assoc;~tioll 265
Brown, W. 48. 55, ISO, 154,
158, 162
Bruno, K. 249
,
BuchOlnOln, A. 188
Bunwoy, M. 60, fIJ, 101. 242
Burk, D. L 270
Burley. J. 270
Butler, J. 135. 160, 161. 167, 1f1J,
175
Buttel, F. H. 202. 211
Callero, P. L 16, 119
Camus, A. 56
Unan, P. 260
Drdenas, S. 64, 93
Cudens. J. H. 61
Castells, M. 60. 66, 206. 212-13,
220, 225, 243
Caufeld, C. 261
COlveJl, S. 197
ChOl.l1dler. D. 65.79
ChOlndoke. N. 206
ChOlnock, M. 148
Ch...,lt'S'NOrth. H. 265. 266
Cmmov;a, S. 71
Chasblon, A. 101
Clutteljee, R. 264
Chell. J. 236
Chin, G. 214
Chomsky, N. 157
Chua, A.. 245
Cixous, H. 149
CiOlphml A. 286
Cbude, R. P. 265
Cohen, Robin 201, 21 I
Cohen, S. 222-3
Cole, P. 190
Coombe, R. 241, 253
Copjc<, j. 27
Cover. R. 20, 26, 188
Cow...n, J. K. 130
Cox, L. 120
Cranston, M. 81
D'A.m~to, A. 251
D~Jlm~yr, F. 34, 41
D~nid, E. V. 188
D~nncr, M. 108
Author 1ndeJr 331
Das, V. 31, 148, 197, 198
D~vis. M. 102
Debord, G. 156
Dc:leu%~, Gilles 136, 137, 158. 165
Dembour, M.8. 13, 14, IS, 151
Dc:rrlcb,J. -'(vii, xxiI', 128.156. 198
DI ScefOlno. C. 159
Doruldson, T. 290, 294, 295
Donnelly, J. 107, 108
Dorsey E. 211
Douz;nas, C. 38, 162.280
Drahos, P. 64. 65, 71, 97, 237, 239
Drew, E. 171
Duggard, J. 89
Dunfee, T. W. 290, 295, 299
Dworkin, R. 164
E:lgleton, T. 124
Eco, U . 24
Ehrlich. E. 296
Elioc, T. S. ~
Engel, K. 251
Engles, F. 122
Bani, G. 36
Escobar, A. 65. 70
Esposito. J.L 193
Estcv.l., G. 83, 142, 143
EVOlns, M. 7
FOlIk, Rich01rd A. 25, 47, 265, 266
Fe~thentone, M. 241
Ferry. L. m
FlAN.2SO
Fine, R. 55, 121, 139
FitzpOltrick, P. 29, 45, 21, 28, 130
Forsyth, D~vid B. 71
Fort, T. L 290, 299
Foster. K. It 271
FOllcault, M. 31, 48, 61, 63, 64, 66,
11 8, 204
Fowler. A. 93
Fnllkena, W. K. 195
Fnsc:r, N. 45, 146, 296
Friedlll~n. M. 258. 292
Friedman, W. 139

177. 332 Author Index
Frog. Mary J. 135, 159
Fukuyama, F. 239, 244
Fuller, L 14
Gabmc:r, M. 234
Gall~c:r, C. 265
Gallung. J. 39, 106, lOS, 110, 143,
279.298
Garcia, F.J. 279, 296
Garfield, J. 41
Gauthier, D. 295
Gdl, A 145, 166
George, S. 84
Gewirth, A. 38, 82, 162, 175. 176
Ghali, Il B. 1
Gibson, J. 113
Gibson-Graham, K.J.
Giddens A 116,217
Gill, S. 27, 141 , 174,263
Gillies. O. 221
GIlligan. Carol
Gtorgetti, C. 76, 255
Girard, R. 35
GllSman. M. 27
Glc:ndon, M . A I
GI~r,J. 4
Gold, R. E. 270, 272
Goldh~n, D.J. 48
Gordon. R. 245
Gorz, A 244, 269
Gould, K. A. I
Gouldnc:r, A I
Granier, J. 12
Grec:n, M . 113, 249
Grec:r, J. 250
Griffiths, A 135
Grotius, II. 43
Guha. R. xivji, 6. 37
GUrvitch, G, 145
Gusfield J. R. 201
Guturi, F. 136, 137, 165. 168
Gutto, S. B. 48
,·labc:mlU, J. 14, 15, 16, 23. 36
Hac:nni-Dllc:, C. 7
Hallett. G. L. 134
Halley, J. xivji, 14
Haltw..rd, P. xix, 247
Hannum, H . 127
Haraway, O. 270
Hardt, M . xvi, 243, 245
Harr, J. 86
Han,H. LA 14
Harv.url Human RighlS
Pmgnm 30
Harvry. D. 268, 275
Hay, C. liS
Hayner, P. 30, 86
Hc:gd, F. 167-8, 299
Hc:ideggcr, M. 2, 12, 115
Hdd, V. 14
Heller. A. 149
Hdlman, J. S. 249
Hc:nkin, L 104
lIc:rskovilS. M.J. 178, HIS
Higgins, Tracy E.
Hirst, P. 236
Hobsswam. E. 4
Hollingsworth, J. R. 242
Horkheimer, M . 223
Huber, P. W. 271
Igwtieff, M. 189
lngram. O. 37
lntemarion~ Commission on
Peace and Food, 84
Imcnutional Council for
Human RightS, 281
Jackson, E. T. 231
Jacobson. D. 159
Jagger, A. K. 55
Jame!iOn. F. 239
Jenkins, D. 264
Jessop, B. J8
Johnson. W. 294
Johnsmn II. 201
Jones, C. 61
Jones, G. 249, 292
Juma. C. 270
Kaldor, M. 205, 206-7
){am, I. 34
KatZ, J. 265
K:lUfman, D. 292
Kaul, I. 193.212, 216
Kaunov, M. 4
Kelsey. J. 27, 244, 249
Kennedy, D. 208
Kennedy. P. 244
Kmg, E.
King, Kelvin M. 265
Kingsbury, B. 129, 246
Kittichaisarec, K. 100
)(Jaus, G. 199
)(Jcin, N. 241, 245, 247
)(Jt:inman, A. 27
)(Jcinman, J. 27
Kosckcnniemi, M. 28
Kosscllcck, R. 42, 114
Kraiuuer E. L. 22J
Krimski, S. 22J
Knstcva. J. 149
Kritz, Neil J. 30
Krugc:r. M. 2n, 282
Kumar. Madhurcsh
,Kundera, M. 108
Kurtman, C. 13
Kym hciu. W 139, 189
l.aclau E. 147, 159. 160. 162,
163, 167, 175
~d,J. 133
Lara, M. P. 4
un.na, E. 201
ush. S. 116, 242, 268
uwycr's Commiltec for
Human Rights. lOS
!.efo", C. 63
Lt-uprttht, I~ 18
Levlllas, E. 15. 38, 156
Luclw. G. 140
Lyourd, J. F. 156
Macintyre, A. 40, 81, 184
Macrae). 102
Author Index 333
Maine, H. 139
MamwlII, M . 44, 133, 153
Mann,J. 171
Mann. Paul de, 143
Marks, S. P. 184
Marks, S. 239
Marquard. 0. 32
Marqundt, S. 136
Marx, K. 64, 122, 204. 235
Mayer. c.J. 261
Mayne. R. 73
Mayo, B. R. 194
Mbc:mbe, A. 51, 186
McAdam, D. 201
MeLem, P. 186
McNeil, P. M. 265
Mead, M. 119
Medema, S. G. 298
Medvedev, R. 4
Meehan, J. 130
Mehu, D. 264
Mehu. U. 45
Melucci, A. 206
Menchc.r. J. 130
Mercuro. N .298
Merry, S. E. 135. 178
Mcyc:r, A. E. 181
Mcyc:r. W. ,.1. 261
Mgbeoji, I. 4
Milner, W T. 261
Mmnow, M. 30
Mistry, R. 153
Montgomery. H. 134, 135
Mouffe. C. 148, 149, 159
Muchlmski. P. T 2n, 281
Mulhall, S. 142
Muuffar, C. 192
Myrdal. G. 269
Nair, Il.. 79
Negri, A. 35. 241, 243
Nelkm, I). 270, 271
Nelson, I~J. 211
Nietzsche, F. 12, 157
Nmo, C.S. 27

178. 334 Author Index
Nordlinger, E. A. 98
Norn~, A. 124
Norris, C. 193
Norval, A
.J. 148
N~unl, M. 117.213, 270
O'Brien, M. 115
Ophir, A. 7
Osicl, M. 30
Parekh, 8. 44. 45
Pashubnis, E. 8. 62
Palerson, ). 271
~thak. Z. 150
Pe<:heux. M. 148
Peffer, R). 194, 195
Pennll. S. 115
f'l:tersmOlnll, E. xviii
~ttil , I~ 37
Picciono, S. 73
Pitkin, I I. F. 126
Pittman, ). R. 40
"'t;g<. T. W. 6. 286. 296
Pollis, A. 193
Pontlng. C. 4
Poulantta5. M. 7
Pound, R. 163,1!J7
Power. S. 8, 100, 133. 171
Powers, T. 171
~h M. S. 142. 143
Pring. G. W. 260
ROli, S. M. 65, 201, 21 I
Rajagopal, 8 . 21, 120
ROlmsastry. A. 254. 286
Rawls, ). IS, 16,99, 162, 290,
298
Rieoeur, P. 149
Ridgway, ). 267, 297
Rifkin, ). 244
Robcruon, G. 30, 171
Robcnson, R. 130. 238, 242,
245, 266
Robinson. C. 186
Rohit-Arnau, N .
Rony. R. 20, 38, 142. 176, 179,
194-5
Rosemont, II. 41
Rounder, L S. 36
Rousseau, ).). x;ri"
Row!:II, A 256, m
Ruigrok, W. 238
Rummel, ). S. 4, 54
Sandel, Michel
Santos, B. 6, 16, 35, 47--8, 89, 155,
172, 208, 2J4
S.
uo-Wiwa, K. 60
Sathe, S. P. 109
Sayyid, B. 182
Schlag, P. 12. 81
Schon, D. A. 115
Searle,). 208-10
Sedgwick, S. 130
Seider, R. 136
Seila, A Y. 238
Sen). 70
Sen, A 141. 212, 235, 245
Shanm, A. 36, 41 , 162, 166
Sherry, S. 82
Shiv.Jl, I. 16, 47
Shblr, ). 39
Shohat, E. 186
Siddiqi, M. S. 93
Silver, B.). 49, 69, 205
Simmel. G. 121-2
Skbir, L 88, 239, 242
Smith, A M. 190
Smith,). 211
Smith, S. B. 166, 167
Snow, D. A. 201
Spelman, E. 135
Spivak, G. C. 182. 185, 246
St. Clair). 267. 297
Starn, R. 186
Steinmeu. G. XII
Stiglmayer, A. XII
Stone. J. 12, 44, 128. 163. 179. 278
StnUS5, L 43
Sunder Rajlln, R. 150. 159
J
•
Sunstein, C. R 170
SWift, A. 142
Tmlbiah, S.). 41
Taylor, C. SO
nylor, M. 167
Teson. F. 193
Thompson, E. P. 260
Thompson, G. 236
Thompson, ). B. 1
Tilly, C. 236
Todd, E. 171
Tonusevski, K. 198, 221
Touraine, A.
Tra-week, s. 22
Tmbek, D. M. 234
Tuin, P. 44, 45, 54, 62, 78
lldder, R. V. 238
TmTlOlIlOV, V. A 208
Turner, T. 178
lWAIL, 48
us otIkc of Technology
Assessment, 267, 270
Unger, R. M. IS, 98
Urry, ). 116, 242, 266
VilOria, F. 13
Willerstcm, I. 70, 237
v.I.lsh, E. 201
Wilier, M . 296
v.I.u:mun P. 70, 204
Authoc Index 335
Watts, M.). 72
WeIlTlmg. T. 36, In, 195
Wemberg. A. M. 271
Welllgmner, R. A 121, 122
Wetssbnxlt, D. 'En, 282
Weltr., E. D. 8
Weston. 8. II. 46, 265, 266
Wiesbcrg. R. 48
Wiggcn, O. 296
Williams, A 285
Williams, R. 44
Wilson, ). 206
Wilson. R. S. 136
Wilson, R. A 130
Witchell, J. 136
Witt, C. 14
WiItb'Cnstcin L. 8, 138
Woodiwiss, A. 23, 236
'W'right. S. 271
XIX; Article 19, Internationlll Centre
Agamst Censorship, 1S<i
Yongun. II. 41
Young. I. M. 152. In, 302
Young. R. 35, 128, 176
Zx. L 147, 162, 167
ZlIdck. S. 296. m
ummlt, A. m
2.i~ek, S. 82, 160, 167, 175, 191
Zwi, A. 102

179. Amnesty Imcmattonal, 79-80, 211,
246
animal rights, 7S-9
Bhopll cltlStrophc, ;ti-«ii, 88, 118,
252, 264, 288
biotcchnology, 269-72
citizen pilgnms, 25
culture, 142-4
enlightenment, the 35. 37, 39, 47, 48
globaliution
capit:1iism, lnd 212
chlner of Hunun Rights of the
Globli Dpital, and 258-9
conceptton5, of 235-41
contemporary forms, of 236-41
continuities, in 231-41
de-globaliution, and 239
diversities, of 242-4
end of nltion-stue, and 245-52
evaiuuion, of 244-5
foreign investment, and
hUlllln ngllts, and 258-64
1lI1tcriality. of 264
narntive$ of, 236, 245
new IIltemltion:ai military order,
and 236. 241-2
nUcClr energy and WC:lpon~
and 265-8
Theme Index
nulCri;ility, of 264
perverse fomu, of 262
regubtion, l nd 237-8. 271-2
risk society, and 261. 266
snuller, fomlS of 23M
'Soft' sutes, and 248-52
transactional and reb'ulatory
fonns of, 238-9
t~c wastes. and 251-2
Grameen Bank, 232
Greenpeace 226, 246
humln nghts
[Sec lisa globalizatIon, human rights
activism, identity, NGOs,
movements, rebtiv1sm, suffcrIIlg.
universality, United Nltions Norms
for Corporate Responsibility, and
Women's Rights as Iluman Righl$]
ldjudication, and 85, 163
aid conditioru.libcs, and
ambiguities, of9, 10-12
anomie, and 28
authorship, of 33
basic m:cds, and 105, 108-9
bureaucratization, of 92-4
Clplhilities, lnd 212
clarity, and 8-10
Cold War, and 42, 52-3, 55. 93,
174,239
colonization, and 35
contemporary and modern, 42-4
cosmologies, lud 26
(:()StS, of 91-2
•
culture, and 21-2
de-coloniution, and 30, 70, 79
di:.llogism, and
desire, lOO 11-12
dlscursivity. of 22-4
Endologics, and 244
education, and 9
ethICS, and 12-15
ethnocenu15m. and 178
essentialism,lnd 134-7
Eurocentrism. and 192
evangelism, lnd 34--6
evii, and 27-30
Exclusion, and 44-5
expertise, and 97-8
'failed' States, and 246
Feminization, of 159
food, and 257
foreign investmem, and 261
fomlS , :md 120-4
Future, of m-xxii, 4-5, 25-6
genealogies, of 8
generations, of 106
global govenllnce, and 17-19
~rnance, and 15-17, 61. 62,
71, 85
genocide, and 8, 254
history, and 144-5,
histories, of 40-1
holocaust, lnd 25
hunun nlture, and 137-42
international law, and 127-30
images, of 11-12
Impossibility thesis, lnd 37-9
indigenous peoples, and 270-1
Insurrection, and 20--1
jus 'ogmf, and n
justice, of 127
juridical production, of 20-1
languages, of ;ti.x-Jor, .:0.;1', 8, 9,
101-2
bwycr's law, of .'JIiii
logics and plralog1cs, of 24-5
mainstreaming. of 250
MAl, and 112,
Theme Index 337
markets, of 103
Marx, lnd 90
MlJ'lOan Crluque, of 55-6
musurtmem, of 113-14
mUlIeS/S, and 38-9
morality, of 14-15
nature and number of; xviii
nltural rightS, and 13-14
nuc!eUlzatlOn, and
ongms of. 36-8
overproduction of 33, 99, 104--6
paradigms, of 42-3, 234-5, 252- 5
participation, and 110-11
plurality, and 12
politics oj, andJOT, xiv-xv, 80, 82.
83, 84, 85, 86, 152-6
polyethnic TIghts, and 189-90
potentiality, and 2-4
production, of9, 46-7, 95-9, 213
pesudospcciation, and 169
qUllity control, and 106-9
racism, and 53-5, 191-2
rdlCXIvlfY, and 14.99, 115-20
reSlonal mstrumcnts, and
re$lsunc~5truggles, and 19-20,
66--7, 103
nghdessness, and 59, 130-4, 153
nsks, aim 261, 264, 266
ronunucism, of 90--2
Silnctions, and 157,
scienusm, and 65-6, 134
self-dctennnution, lnd 50--3
Socill Darwinism, and 40
social theory, of 47-8
solidanty, and 73, 74, 102
soft law, of 27~9
software, of 21
technoscience, and xxiii-«';II
Terror, and XlHClIi, m, 157,
time. and 143-7
Trade-related, market friendly,
parldigm of 258-64
unto uchability, llld 145, 152-3
VIolence, and 3M
w;lrineSS, and 82-5

180. 338 Theme Index
wearineu, and 81-2
WeslOlufiallon, and 192-3
White Man's Burden, and 34-5
human ngllls :lCbvism
'anti-human righu' practices, and
76-80
ami-systemic nlOVemenu, and
70-1
buruucrallulton, of 92-4
corruption, of 65
costs, of 91-2
hislOries, of 67-n
juridlcaliution, of 69-70
professions, and 64-5
n:alism, and 94-5
social movcmentli, and 68-9
social practice, and 59-6)
terrilOrialization. and 68
ulli~lUlity, and 170-5
varielles, of ~7
worker's righlll. and 69-70, 236-7
Idenllty
C:lSte, and 145. 152-3
communiunan belonging. and
ISO-I
difference, and 159
Empowennent, and 154
idenuficauon pracuces, and 149--50
namlUw monopolies, and 156-9
IUmllive righu, and 31
politics, of 15J--6
postmodemism, and 154. 159
Sdf-delenninalion, and 50-3
subject-positions. and 14S-9
subversion rights, and 151-2
truths, about 147-8
movementli
emaneipalOry eharKlcr, of 20.3-6
juridicaliulion, of 207-12
human rightS, and 21~16
markets, and 216-220, 220-3, 233
notions, of 201-3
'old,' and 'new' 204-6,
regulation, of 226-33
value-neutrality, and 212-16
non-govemmenul organizations
accountability, of 232-3
!Urning. of 75--6
Mapping of, 64, 73-4
nurket rationality, and 219-20,
221-2
Ikd Cross, 71
regulation, of 226-33
resources, and 217-19
Spaces, of 72-3
techniques of, 222--6
'Third sector', and 67-8
violence, and n, 78--80
relativism [see also universality)
American Anthropological
Association, and In-8
multicultunlism, and 188-92
suffering. and 196-9
Types, of 193-6
SLMPS 260-1
social action litigation 225
suffenng
adjudication, md 163
appropriation, of xrii-«Xivi
authorship of rights, and
commodification, of 219-20,
222-<>
compassion fatigue, and 222
corponte philanthropy, and 218
i:krrida, and 154, 155
Discourse, and 24--5
genocide, and 8
global ClIpiulism, and
human tights, and 26-7, 47-50
holOC:lust, and 3, 28
justifications, (or 26-7
mass media, and 155--6, 223
millermial developmem goals,
and xvi
moral anthropology, and 387
-
left legalism, and xviH;vjii
ndical evil, and 27-32
representation, of 6
reSISWlCe, and 2l-4, 102-3
sanctions, and 27, 157
sdf-detennination, and 138
solidarity, and 31-2
technosciencc, and xxiv
truth commissions, and 30--2
un-narneablity, of 8
UDHR xv, 3, 42, 157, 159, 268,
269, 164-5, 168, In, 181-2
UNDP, 109, 146, 216
United Nations Nornu for
Corponte Responsibility
business ethics, and 294--6
corpor:lte social responsihility,
and 296-7
corruption, and 257, 291-2
criticisms, of 2n, 282-3, 288,
ethical langu~s, and 296-7
hypemonns, and 297-300
implementadon stntegies, of
29'-4
intertextuality, of 278-81
nonnativity, of 300--2
McBride Principk$. and 257
scopr, of 281-3
Theme lndex 339
specific duties, under 289-93
state obligauons, under 284-5
Sulhvan Pnnelples, and 257
Umversahty
absolute, and HI5--8
antifoundatlO!Uhsm, and 175-9
Asian w.luC$, and 184
Dtaioglsm, and 86-9
fngrncmed natutC', of 50-2
notions, o( 161-4, 167-9
Marx, and 162
glomlization, and 170-5
hegel, on 167-9
histories, of 179-85
human rights, and 163-7
Women's Rights :IS Iluman Rights
CEDAW, and 67, lOS, 181,288
identity, and 150-1
Essentialism, and 153
difference, and 151-3
re$Crvations, and
SIuJt &"" CQX, and 150-1
VIOlence, and 146, 152-3
World Bank 71, 249
World Social Forum. 70
wrO. 18, tl2, 157
ZapaUSta, 225