International Law Research Paper by Charles Gimoh
The Paradox of Human Rights: Problematic Manifestation of Rights as Facilitator of Both Commonality and Exclusion
Human rights have done a lot of good in the world. They have become a powerful instrument in the hands of aggrieved individuals and collectives to articulate their grievances against oppressive systems. In many ways, they have helped in bridging the gaping chasm between the strong and the weak, the big and the small, the rich and the poor, the sovereign and the subject, the global and the local, the free and the marginalized. The victories attained in various human rights struggles by ‘common’ people against tyrannical despots, against exploitative multinationals, and against hegemonic institutions, are ample evidence of the effective potentialities of rights to level the playing field and reconfigure a common ground for everyone.
However, this wholly positive submission is premised on a Kantian approach to looking at the history of rights. This optimistic characterization is derived from a limited historiographic perception of rights from a strictly teleological perspective. In Kantian tradition, it offers a triumphalist evolutionary narrative of human rights. Such a view highlights the multitudinous conquests of rights through time to the present, without underscoring its current multifarious catastrophes. To get a holistic view of the nature of human rights, we also need to look towards Nietzsche who unlike Kant, would accord us a different approach, a genealogical perspective. As we explore this angle, we begin to see the other side of human rights; the side that is characterized by limitations and degradation.
Nietzsche advances the idea, that history should be treated on a subjective genealogical level, one that is more preoccupied with an examination of the conditions surrounding the evolution and development of values. By approaching rights this way, we get a glimpse of the paradoxical nature of human rights.
This paradoxical aspect is problematic, as it projects human rights both as a force for good and as a force for evil. Human rights are thus characterized as instruments of justice and as tools of injustice. Rights are seen as facilitating both commonality and exclusion. It is a phenomenon that has generated intense debates which have become more urgent in the light of recent national, regional and global events. This paper represents my attempt to contribute to this important debate, by arguing that human rights facilitate both commonality and exclusion.
We will explore the subject under three broad sections. The first segment is a general examination of the paradoxical character of rights. This generic insight is imperative as it would aid our specific interrogation of this subject. The second segment will explore how rights paradoxically facilitate both commonality and exclusion within civil populations, using the Arab Spring as a point of reference. And the third section will examine how human rights create commonality and exclusion through humanitarianism and neo-imperialism.
The Paradoxical Nature of Human Rights: Conflict between Rhetoric and Reality
Human rights are paradoxical. There is a problematic disconnect between much of its rhetoric and many of its realities. There are theoretical and practical conflicts running through its history and its very tapestry. Natural Rights were the precursors of human rights. The philosophical ideas of Natural Rights theorists like Thomas Hobbes and John Locke reflect paradoxical elements. In Hobbes’ Leviathan, we are presented with the paradoxical picture of individuals coming together in a Social Contract to constitute a commonwealth where they voluntarily aggregate their individual rights on an authoritarian sovereign who is expected to help them safeguard those rights, but ironically he cannot be brought to justice even if he denies them the same rights they are trying to protect. Unlike Hobbes, John Locke did not advocate absolute sovereignty, however, in his idea of a Social Contract, individuals give up some of their rights to the sovereign but paradoxically they can still use their rights to revolt against the sovereign charged with protecting those rights if he is found to be unjust.
From the foregoing, it is obvious that paradox is at the very heart of human rights. These paradoxes are evident on various levels:
Paradoxes in the definition, signification and application of human rights
This relates to the definition, semantic signification and application of human rights. The semantic denotations of key human rights terminologies are difficult to associate with their pragmatic connotations. The praxis of rights is radically different from the theory in many respects. The meaning implied by the words ‘human rights’ is difficult to associate with the reality of what they represent. At face value, they signify the rights of all humans by virtue of being human. However, if you were to ask an undocumented ‘human’ migrant in Britain or a peasant living under totalitarian rule in North Korea if these definitions are semantically applicable to them, the answers would most probably be negative in the light of their prevailing realities.
If we stretch this idea a bit by looking at its UN definition, the ambiguities become more conspicuous. ‘Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination'.
This definition implies the universal protection of the rights of the human, but paradoxically, human rights do not mean universal cover for the rights of people outside their state. In the words of Hannah Arendt, ‘The Rights of Man supposedly inalienable, proved to be unenforceable-even in countries whose constitutions were based upon them-whenever people appeared who were no longer citizens of any sovereign state. ’ The universality is thus practically restricted to locality within states. For Costas Douzinas, ‘The community of human rights is universal but imaginary, universal humanity does not exist empirically.’
Paradoxes in the articulation, institutions and administration of human rights
There are paradoxes in the articulation of certain rights treaties, as well as in the institutional structures and systems rights. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are said to contain rights that are indivisible and equal. However, these indivisible rights that should have been produced in one unifying instrument to promote commonality paradoxically evolved as two separate covenants, due to ideological incongruity between the interests that drafted them. The socio-economic exclusion that is rampant in many states today is largely traceable to this, as they prioritise CPR over ESR.
Institutionally and administratively, paradoxes abound within the human rights system. Human rights laws are created within global institutions which are administered internationally. Paradoxically, the majority of these rights can only be enforced locally by local administrators. The UN and its organs charged with the responsibility of sanctioning states in breach of human rights are ironically dependent on states, especially the major powers for support. Parochial national interests often undermine global interests.
Human Rights: A Unifying Tool for Political Agitation and a Marginalizing Instrument of Social Exclusion
Human rights are a unifying tool for political activism, but they also facilitate social exclusion. The ICCPR is a unifying civil and political rights document with 169 states currently party to it. The content of this covenant represents the collective aspirations of the nations of the world to construct universal political and civil commonalities for all of mankind. The existence of this and other human rights instruments, and their universal endorsement by a majority of the diverse races and nationalities of all regions of the world, representing various shades of religious, cultural, political and social backgrounds, reflects the tremendous commonalising influence of human rights.
On the basis of these international human rights laws, individuals and groups whose rights are being unjustly curtailed in an authoritarian state are somewhat empowered to legitimately agitate for justice against the state. A practical demonstration of this was the multi-chain phenomenon that became known as the Arab Spring.
Mohammed Bouazizi sparked a political uprising in Tunisia which reverberated all over the Arab world when he set himself on fire in protest against an unjust system. Through the act of self-immolation, this Tunisian became a universal unifying symbol of resistance against the excesses of totalitarian Arab regimes, as inspired Arabs in various countries rose up to agitate for their own rights too.
This civil uprising is consistent with Locke’s notion of revolt by citizens when the sovereign becomes abusive and violates the terms of the social contract. Walter Benjamin’s antithetical dualities are also evident here. On the one hand, the people are exercising their natural right to revolt against the unjust sovereign on the basis of natural law, using violence as a means. They are invoking the principle of natural law which ‘attempts, by the justness of the ends, to “justify’’ the means’. On the other hand, there is ‘violence crowned by fate’ embodied by the state and representing positive law, paradoxically deploying military and police violence to repress the people whose rights they are meant to protect. Benjamin’s notions of non-legal and legal violence, as means to natural ends and legal ends, come into play. The Arab revolt is natural law-making violence that succeeds in entrenching new political leadership in a number of affected states such as Egypt and Tunisia.
On yet another paradoxical level, the immolated body of the Tunisian becomes symbolic of the many Arab bodies that get drawn from various corners of the globe into the common struggle for rights in Arab states. This powerful image of universality is also reflective of a commonality of humanity that is central to human rights philosophy. These are Arendt’s plural members ‘of the human race’ who share the common earth, coming together to reflect shared humanity. Many of these bodies, some of whom end up getting killed in the ensuing violence, are like the victims in Stewart Motha’s “Bodies”, symbolic of individuals with implied fundamental inalienable rights but who have been devalued to mere bodies, paradoxically stripped of their human rights by governments that were supposed to protect those rights in the first place.
The burnt-out carcass is synonymous to the floating bodies of refugees on the high seas and to others like them in Australia and the West, who are being denied rights meant for humans. Like Omid Masoumali and Yasin Hoda the enisled refugees who set themselves on fire protesting against dehumanising conditions in an Australian island camp, these victims are archival manifestations of ‘sovereign violence and cruelty’. The living is no better than the dead. These are breathing bodies, but deprived of their basic rights as humans, you wonder what constitutes the ‘human’ when they cannot fully express themselves as humans. Worse than Foucault’s perceived modern subjects of non-sovereign biopower, they are replications of Giorgio Agamben’s victims of biopolitical exploitation by the sovereign. These have been reduced to bare life.
On a social level, the feminine bodies in the Arab Spring become paradoxical representations of oppressed Arab women in totalitarian states, whose governments are signatories to international human rights conventions protecting women’s rights everywhere, but who antithetically remain socially marginalized and excluded by the same governments. These are victims of ‘Unjust laws, discriminatory constitutions, and biased mentalities, that do not recognize women as equal citizens, hinder women’s rights to such things as political participation, economic security, mobility, and state protection’. Stripped of their humanity, they are like mere bodies floating through the system, existing yet not existing. They are 'zoe' who has been dehumanised They are the dispensable ones who are still included in the system, yet excluded. Human Rights that are meant to safeguard them are paradoxically rhetorical rather than practical.
However, Pollis and Schwab have contended that human right is a Western contraption and a reflection of cultural imperialism, so it does not take non-western culture into account. In their view, some perceived rights violations in Arab states are not seen as such within the local context. Arguing along similar lines to justify the exclusion of women from social activities such as sports, a senior Arab official posited that this condition of exclusion is not a human rights issue but one to do with culture and religion. Jack Donnelly tows a middle line, postulating a weak cultural relativism ‘that permits limited deviations from “universal” human rights standards’. But, Francesca Klug counters these views and argues in support of the universality of rights, by highlighting the multiplicity of representatives who drafted the Universal Declaration of Human Rights, as well as the variety of cultural and ideological perspectives they brought to bear upon the preparation of the document.
Human Rights: A Commonalising Force in Humanitarianism and a Polarising Weapon of Neo-Imperialism
Human rights facilitate commonality through humanitarian action but they also promote exclusion through the imperialistic activities of Western powers in various spheres of humanitarian activities.
Rights: A Force for Commonality through Humanitarianism
Human rights are inextricably tied to humanitarian action due to the necessity of protecting the rights of the human caught up in the prevailing humanitarian situation. Based on this understanding, human rights have played a pivotal role in helping to facilitate a common ground between individuals, communities, and states for the promotion of universal human welfare. In times of humanitarian emergencies and catastrophes, aid has poured into affected areas internationally. At such times, we are confronted with images of the extraordinary potential of human rights to promote the common good.
The huge global coalescence of a multiplicity of organisations and states that is swiftly generated to support affected communities in times of humanitarian crises, such as the Indonesian Tsunami, the Ebola Crises, and the ongoing civil war in Syria, is testament to the power of rights to facilitate commonality via humanitarian activity. Through humanitarian action, we identify with the various forms of life that are affected by these tragedies. The precarious form of life, the vulnerable form of life, the grievable form of life, and so on. Collective humanitarian action is our pragmatic response to Judith Butler’s question of ‘Who counts as human? Whose lives count as lives?’ In responding, we identify with her conclusion that loss makes ‘a tenuous ”we” of us all’.
Rights: A Weapon of Polarity through Neo-Imperialism
In spite of this afore-mentioned enumerated unifying influence of international human rights, there is a corresponding polarizing phenomenon facilitated by rights in the field of humanitarianism, in the form of neo-imperialism. Noam Chomsky calls it ‘humanitarian imperialism’. This is the dark side of humanitarian activity, one in which human rights takes centre stage in international political dramaturgy on the at times, melodramatic arena of what has become known as humanitarian intervention, reconceptualised as the Responsibility to Protect (R2P), in United Nations phraseology.
The paradox occurs when a sovereign country is invaded by other powers in the name of humanitarian intervention under the guise of protecting human rights. Two pertinent recent cases are those of Iraq in 2003 and Libya in 2011. While the UN accused America and its coalition allies of acting illegally in the Iraqi occupation, the Libyan intervention was sanctioned by the UN but the coalition went beyond its mandate and effected regime change. These are clear cases of sovereign states constituting themselves into archives of violence in a state of exception where they operate outside the dictates of international law. In these instances, human rights became a tool of imperialism. These interventions led to monumental human suffering, human rights violations, national instability and large scale displacement of people. Though Shadi Hamid has argued in support of the Libyan intervention advancing that it actually created a better Libya compared to what would have happened if the coalition had not intervened. However, Alan Kuperman has challenged this suggestion and posits that the incursion was wrong and disastrous. Gholam Khiabany argues that imperialism is largely responsible for recent humanitarian and refugee crises. Jolyon Howorth goes a step further by situating the origins of current terrorist activities and instability in Iraq and Syria on imperial arrangements between Western European powers in 1916, exacerbated by American involvement in 2003.
Thus, human rights that are meant to create commonality become a polarising imperialistic tool of exclusion. Exclusion is generated on various levels. First, the perceived human rights-violating state is vilified, and then systematically isolated by hegemonic interests. Based on sometimes spurious charges, these powerful forces then, with or without the approval of the UN, choose to intervene militarily in the affairs of the sovereign state, breaching its sovereignty.
The corresponding human misery that is unleashed on the local population has far-reaching implications in terms of rights abuses, especially as regards exclusion. Apart from the marginalisation of the country, many local people are displaced from their homes, creating economic hardship and upsetting the social structure. The gap between the well-off who may be able to flee abroad to re-establish themselves, and the poor who slip further down the social ladder, creates another exclusion bracket.
Refugees created by the crisis also constitute other layers of exclusion. They become archives of sovereign violence. Some end up as stateless persons, circulating along transnational borders unable to return to their countries of origin or to gain access to their desired destination. These exist as bare life, excluded from the normal legal civil population of states. Those who are fortunate to gain refugee privileges may end up as second rate citizens, unable to integrate fully into the new system? Others, are dubbed ‘economic migrants’ and herded into internment camps. There, they are isolated from normal citizens, in what Motha describes as the ‘re-spatialisation of sovereignty, a new nomos’ and the refugee body becomes ‘A sign of a state’s aspiration for sovereign solitude. The refugee body is also a sign of its abandonment.’ These are living bodies. They are the san papier with ‘the dual nature of homo sacer: …..hostages of the state of exception without legal rights or safeguards, playthings and sacrificial victims in the hands of the sovereign’. Some end up literally as bodies floating on the oceans of the world.
Australia’s immigration policy and its treatment of refugees, presents a clear case of the facilitating role, rights play in excluding individuals. Many of these refugees have fled to Australia expecting to benefit from the universal protection of human rights which Australia is a signatory to. Theoretically, they are under the jurisdiction of Australia, creating the illusion of inclusion, but practically they are in a state of exclusion on the island nomos which Australia has created in the surrounding island nations.
Under these extra-juridical camps or nomos, which are often but not always island enclosures, the human is spatially confined as in a zoo, and reduced to a 'zoe' form of life, a beastly form of life where the body is exposed to sovereign violence. This is the paradoxical idea of being part of the universal community, just like literal animals are part of the world, but ironically you are excluded from effective participation in the political process as you have been denied an identity and are now just bare life like common animals.
Demystifying the idea of universal humanity that human rights supposedly protects, Jacques Ranciere posits that ‘the Rights of Man turned out to be the rights of the rightless, of the populations hunted out of their homes and land’, he explores the argument advanced by Arendt that ‘the Rights of Man was a mere abstraction because the only real rights were the rights of citizens, the rights attached to a national community as such'; but he goes beyond Arendt’s position through his suggestion of the idea of dissensus. We shall return to this idea shortly. But from these conclusions, we get a picture of the refugee situation today.
States have supported their exclusion of refugees with the argument that many are economic migrants and not ‘real refugees’. This throws up another significant human rights paradox. There is no explicit provision for ‘economic refugees’ in the 1951 Refugee Convention. So, while political victims are tagged ‘refugees’, impoverished economic victims are derogatorily labelled ‘economic migrants’, automatically setting them up for discrimination and exclusion by the state. But this discrimination has been strongly challenged by Kieran Oberman who argues that ‘there is no morally relevant distinction between refugees and economic migrants’. Julia Hermann also contends that ‘the differential treatment of the two groups is unjust’. However, the weight of public opinion is heavily against economic refugees.
This highlights the age-old problem of the dichotomy between civil and political rights. Here we see rights creating commonality for political refugees, and facilitating the exclusion of economic refugees. This throws up some interesting points and necessitates a number of pertinent questions:
Extreme hardship and poverty are major reasons for the preponderance of economic migrants today. Some of their problems were created by imperialist activities in the forms of unjust military interventions, unfair economic policies, undue political influence in the affairs of sovereign states, and the unmitigated consequences of past colonial activities. This proposition is aptly summed up in the following words, ‘Debates seem to focus on whether people moving to Europe are ‘economic migrants’, people who want a better life or ‘genuine refugees’? There is a blunt answer: ‘we are here because you were there’!1 ‘We are coming because you have not stopped meddling in our affairs’.
These refugees are staging a dissensus. They are acting ‘as if’ they have the rights they are being denied. This is in line with Ranciere’s argument which counters Arendt’s void and tautological propositions that human rights are the rights of those who have no rights and that rights are citizenship based. The refugees are moving as if they have the right to do so, enacting ‘the performativity of the assertion of rights’.
Why are major powers quick to breach sovereign borders in the name of human rights as they rush to rescue oppressed civilians in developing countries, but are not quick to welcome these same suffering civilians when they show up as bodies in boats and at the borders of their countries? Are economic rights not universal? Are they not meant to protect human dignity and human welfare? Are they not meant to protect the human? In the light of the universality of rights, why is the life of a citizen more important than the life of a refugee? If these humans do not qualify as citizens do they not qualify as beneficiaries of universal human rights? Is it a qualified humanity? Is it a qualified universality? If this is the case, I would argue that there is no moral, rational or ideological basis for criticizing the argument for cultural relativism in the Middle East, Africa and elsewhere. If the major powers can apply human rights selectively, why should Africa, Asia, and other regions not be able to do so? Is it right for powerful nations to come together in the name of human rights and paradoxically use those same human rights as tools to exclude individuals, groups and whole nations?
Conclusion
The preoccupation of this paper has been to show the paradox of human rights as a facilitator of both commonality and exclusion. We have examined the paradoxical nature of rights, highlighting the ambiguities inherent in the rhetoric of rights and in its practical realities.
The paper has explored the problematic manifestation of rights as a facilitator of commonality and exclusion in socio-political contexts, focussing on political activism, humanitarianism and imperialism. In terms of political activism and social exclusion, we have seen how rights facilitate commonality focussing on the activism of the Arab people in the Arab Spring. We have also looked at the social marginalisation of Arab women in totalitarian states that are ironically signatories to international human rights laws.
The paper examined the commonalising force of rights in humanitarian action, especially evident in times of humanitarian disasters; it also looked at the polarising influence of rights manifest in the neo-imperialistic activities of major powers in the domain of humanitarian action and in terms of refugee treatment. The strong contradictory elements on these issues, as with many human rights issues, are indicative of the paradoxical nature of rights. They facilitate commonality; but then they also facilitate exclusion. We cannot but agree with Douzinas that ‘Human rights have only paradoxes to offer.’
Research paper by Charles Gimoh
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