Stephen Hopgood and other contributors are right to identify key failures, weaknesses and deep asymmetries of power imbricated in the practices of the existing human rights institutions and large western NGOs. But the apparent crisis of legitimacy that afflicts human rights is also the consequence of long standing caricatures from both proponents and critics which, as Cesar Rodriguez Garavito points out, rely on overly simplistic and reductionist arguments and claims.
Given the many positive references to movement activism and social struggles in contributions to this theme, it is especially relevant to consider whether such caricatures rely upon a separation of a concept of human rights (either as theory or law or both) from the long and persistent history of human rights ideas used in social movement struggles against extant relations and structures of power. Even when aspects of those histories are acknowledged, for the example in Jack Snyder’s contribution, the emphasis is usually on serving rising power rather than challenging existing power. In contrast, I believe we cannot properly evaluate the potentials and limits of human rights without working through the implications of their place in social movement struggles. We need to engage with what we might call the missing histories of human rights. Let me make three points:
The first is that these histories demonstrate that human rights have often been at the heart of radical attempts at social change, which seeks to transform existing structures of power. We should not ignore the 18th century slave rebellion in Saint Domingue, which led to the founding of Haiti in 1804. During the 19th century, the emerging worker’s and socialist movements made extensive use of notions of ‘natural rights’ and, at the heart of struggles against imperial oppression around the world, lay claims for the rights of peoples to self-determination.
Since the end of the Second World War, a wide range of social movements have sought to challenge existing forms of power, in part by seeking to reshape the global human rights agenda. Indeed, Upendra Baxi argued in 2002 that, in the previous 60 years, it was the oppressed of the world – mobilised in and through social movements –who were the hidden authors of developments in human rights. This claim contradicts Stephen Hopgood’s assertion that ‘Human Rights’ (capitalised) are ‘a product of the 1%’.
While he supports ‘human rights’ (lower case as distinguished by Hopgood) and calls for new movement mobilisations to replace today’s top-down western-led model of activism, he doesn’t explore how such bottom-up activism could transform the existing international human rights regime. I think this is because his political economy of power is restricted to an almost zero-sum concept. He says, ‘the wealthy have it, the poor do not unless they are organised in sufficiently large numbers’. True, but there is more to power than this. A broader understanding of social power could recognise the reality of elite dominance without the assumption that such dominance is only ever challenged in exceptional moments of mass mobilisations. There are always struggles – large and small - around the construction and re-construction of domination.
My second point is that these missing histories make it clear that human rights were never simply ‘western’ or ‘liberal’. Jose Manuel Barreto is right to argue that eurocentric understandings of human rights do not allow for a comprehensive history, nor the reclamation of anti-imperial and emancipatory struggles. However, his proposal to “supplement” eurocentric human rights with a number of “eccentric” events seems unduly defensive, precisely because there have been strong anti-slavery and anti-imperial moments throughout the histories of human rights as he himself suggests.
The characterization of human rights as philosophically liberal is one shared by many proponents and critics. This is exemplified in Aryeh Neier’s argument that there is a fundamental core of civil and political rights, and by Hopgood’s implicit assertion that human rights are inherently “middle class”. Both arguments can be traced back to a claim that, in origin, ‘natural rights’ were the rights necessary to create and sustain possessive individuals in an emerging capitalist society. Yet, there is clear evidence that ‘natural rights’ had important economic and collective dimensions which were more to do with protecting the customary rights of the poor than emerging bourgeois property relations.
My third point concerns how we should go about understanding the relationship between ‘bottom-up’ and ‘top-down’ versions of human rights. If ideas and practices of human rights originate in social movement struggles against extant relations and structures of power, how do they become top-down versions - controlled by elite gatekeepers, academic, legal and political – and what happens to them then?
In my view, the answer lies in processes of institutionalisation. If, where and when movements succeed, they typically seek the institutionalisation of particular constructions of rights through constitutional provision and law. It is in these processes that rights become ambiguous in relation to power and can come to serve power rather than challenge it. But this potential for power to be switched from something positive (empowerment) to something negative (power over) is not just a problem of, or for, human rights. It is a much deeper problem of how collective ‘power to’ persistently morphs into forms of ‘power over’ in institutional settings. I have called this the paradox of institutionalisation and it may be a paradox that can only ever be mitigated, never resolved.
But if this is so, we damn human rights at our peril. As several contributors have argued, ideas and practices of human rights need to be reinvigorated by re-connection to their social movement origins and the missing histories retrieved. As John Vincent put it, human rights must remain subversive to be effective and legitimate. This is the challenge and what needs to be put at the forefront of all forms of human rights praxis. Elite gatekeepers and their caricatured apologias and denunciations will not do.