Human Rights Standards

Makau Mutua

Description

How are human rights norms made, who makes them, and why? In Human Rights Standards, Makau Mutua traces the history of the human rights project and critically explores how the norms of the human rights movement have been created. Examining key texts and documents published since the inception of the human rights movement at the end of World War II, he crafts a bracing critique of these works from the hitherto underutilized perspective of the Global South. Attention is focused on the deficits of the international order and how that order, which is defined by multiple asymmetries, defines human rights in a manner that exhibits normative gaps and cultural biases. Mutua identifies areas of further norm development and concludes that norm-creating processes must be inclusive and participatory to garner legitimacy across various cleavages and divides. The result is the first truly comprehensive critical look at the making of human rights norms and standards and, as such, will be an invaluable resource for students, scholars, activists, and policymakers interested in this important topic.
Preface
Acknowledgments
Introduction

1. Norm Setting in International Law and Human Rights

2. The Process of Standard Setting in Human Rights

3. The Multiplication of Actors

4. The Role of NGOs in the Creation of Norms

5. The Question of Deficits

6. New and Emerging Standards

7. A Normative Critique of Human Rights

Notes
Bibliography
Index

Sujets

• Civil Rights
• International law
• 20th century
• Human rights

Informations

• Publié par: State University of New York Press
• Date de parution: 14 janvier 2016
• Nombre de lectures: 1
• EAN13: 9781438459417
• Langue: English

Extrait

HUMAN RIGHTS STANDARDS
SUNY series, James N. Rosenau series in Global Politics

David C. Earnest, editor
HUMAN RIGHTS STANDARDS
Hegemony, Law, and Politics
MAKAU MUTUA
S TATE U NIVERSITY OF N EW Y ORK P RESS
Cover photograph by Henri Ismail, used with permission.
Published by
S TATE U NIVERSITY OF N EW Y ORK P RESS , A LBANY
© 2016 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever ­without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher.
For information, contact
State University of New York Press, Albany, NY
www.sunypress.edu
Production, Laurie D. Searl
Marketing, Michael Campochiaro
Library of Congress Cataloging-in-Publication Data
Mutua, Makau.
Human rights standards : hegemony, law, and politics / Makau Mutua.
pages cm. — (SUNY series, James N. Rosenau series in global politics)
Includes bibliographical references and index.
ISBN 978-1-4384-5939-4 (hardcover : alk. paper)
ISBN 978-1-4384-5941-7 (e-book)
1. Human rights. 2. International law. I. Title.
JC571.M954 2016 323—dc23 2015008209
10 9 8 7 6 5 4 3 2 1
CONTENTS

PREFACE
ACKNOWLEDGMENTS
INTRODUCTION
CHAPTER ONE
Norm Setting in International Law and Human Rights
CHAPTER TWO
The Process of Standard Setting in Human Rights
CHAPTER THREE
The Multiplication of Actors
CHAPTER FOUR
The Role of NGOs in the Creation of Norms
CHAPTER FIVE
The Question of Deficits
CHAPTER SIX
New and Emerging Standards
CHAPTER SEVEN
A Normative Critique of Human Rights
NOTES
BIBLIOGRAPHY
INDEX
PREFACE

I have spent most of my life as a human rights thinker and advocate. My outlook on the human rights project has often been contradictory, but for a reason. I am both sympathetic and critical. This is a paradox to most, although not to me. There are aspects of the human rights corpus—and its movement—that are deeply seductive. But there are others that are completely repulsive. I feel that I am simultaneously both an outsider and an insider. The human rights project is an uneasy political home to those who, like me, have been orphaned by dominant political ideologies and economic theories. In it, I see a sliver of hope for the redemption of the worst excesses of negative human proclivities. But I do not see it—as currently conceived—as an adequate answer to human privation and powerlessness. That is why I have written this book—to critique the human rights movement for its normative shortcomings, but also to hold out hope that it can be reconstructed as a medium for a fuller human liberation.
No scholar can credibly deny that the human rights corpus has noble aspirations. Its impulses, grounded in humanism, are basically correct—to protect the individual and society from the tyranny of the state and the barbaric instincts of fellow human beings. But to do so, it purports to create what it thinks is the most liberating vision for the good society. Central to that vision is the nature of man according to the human rights project. It fundamentally thinks that man is an individual egoist, the sort of creature whose autonomy from, and equality to, others must drive society. Everything else, including the norms and structures of society, rises out of this basic premise. This, in my view, is the fundamental flaw of the logic of the official human rights movement. And, unfortunately, it is the rationale for virtually all human rights documents—the important founding texts such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, as well as all the others that use them as starting points. In my view, this philosophical tradition necessarily creates a society governed by the market, that is, by norms related to open competition among individuals, communities, and societies.
I do not deny, nor do I disagree, that the human person is an extremely important index in the universe. But I refuse to worship the individual egoist and to valorize her, although I will not abandon her atomized uniqueness. Human beings are not the only creatures, or things in the universe, that matter. Since we—humans—seem to have a large capacity to affect our universe, it only makes sense that we temper our selfishness with humility. Yet humankind has been anything but humble. Humans have abused each other and the universe in ways that haunt the conscience. Have political democracy and human rights tempered some of these abuses? The answer is certainly in the affirmative. But could they have done more? I think there is no doubt that the construction of political society could have been reimagined to produce less horrible results. The entire Cold War period, for example, was a blight on both the East and the West. So has been the current period of economic globalization and free market triumphalism. More people have been lifted out of dire poverty, but many more have been consigned to the margins. The environment is being destroyed by business interests, and there seems to be no sign of a return to environmental sobriety.
It is in this context that I ask myself, Can anything be done to redeem the human rights corpus, as well as its movement and discourse? I think so. I believe that the corpus as it stands today has nuggets of wisdom from which we can reconstruct a fuller project of humanity, but it will be a huge challenge. We can start by deconstruction. By this I mean treating the corpus not as a holy text, but as a suggestion for the human condition. Zealous advocates of the corpus should step back and accept that the status quo is not the answer. They must agree that theirs has been a valuable contribution but a woefully incomplete, and even at times misguided, one. The current corpus is largely a product of the West, which even the zealous advocates would accept without too much disagreement. It is a glass that is half-empty. If that is accepted, then we can think of inviting other milieus—cultural, religious, political, local, philosophical, normative, ethical, moral, and historical—to make their contributions. The human rights project must accept that there are ways of knowing other than European, white, and from the global North. It is only from a healthy intercourse of different types of knowledge that a new human rights project can emerge.
My hope for this book is that it will open new doors and permit more searching—and less defensive—conversations about the reconstruction of the human rights project. A reexamination of human rights standards, and how they have been set, is necessary. Where do I think most of the energy for rethinking the human rights project will come from? I argue here that universities will play a large role; in fact, I believe the leadership for deconstruction and reconstruction will come from the academy. However, I believe that the academy in the North—and academics whose primary intellectual orientation is from the North—are unlikely to lead this renaissance. The reason is that they are too steeped in the cultural milieu that gave us the status quo. They can, and should, be partners. But this exercise needs fresh eyes, totally different perspectives, and a geopolitical shift in intellect. It is not that I doubt the ability of my colleagues in the North to exercise the skepticism that is necessary; rather, I think that the voices that have been shut out are the only ones that are likely to say something really new.
Like several other human rights thinkers, I have struggled to reconcile my competing fidelity and opposition to human rights. This is a cognitive condition that afflicts most scholars of international law whose native origin or intellectual orientation is of the South, or the so-called third world. I cannot really describe it in a way that my Northern colleagues can fully internalize. It is an “outsiderness” and “otherness” that is both imposed from the West on me, but also intrinsic in me because of my location in the human rights field, and in international law more generally. I know, as do most Africans and Asians, for example, that the human rights corpus has an “alienage” to it that smacks of the colonial project. Certainly that is the way the discourse and language of human rights has been constructed. As a person from the third world, I am supposed to be redeemed and “saved” by human rights, which supposes that my natural state is as the barbarian and the savage. In the past, I have decried this phenomenon of the human rights corpus as a project of the empire, 1 and I believe this is what must change for human rights to acquire the sort of legitimacy and effectiveness that could transform the world.
The human rights project has “othered” me. The question is how it can be rethought and remade so that I can be an insider. Perhaps this is not possible, but that would be too pessimistic. As a scholar who subscribes to the school of thought known as Third World Approaches to International Law (TWAIL), I do not seek to throw the baby out with the bath water. My project is to deconstruct, reconstruct, and build a world without hegemonies where conditions of underdevelopment—especially in the South, but also the North—can be eradicat