Le dépassement est exploration projective. L’esclave est d’abord celui qui ne sait pas. L’esclave de l’esclavage est celui qui ne veut pas savoir. Il serait périlleux de projeter la Relation planétaire en succession logique de conquêtes, en fatalité de conquêtes pour un peuple. Elle conduit parfois à la disparition collective. La Relation planétaire ne comporte pas de morale agie. Toute théorie généralisante de l’histoire qui sous-estimerait les redoutables vécus du monde et leurs sautes (leurs impasses possibles) peut constituer piège.
—Édouard Glissant, Le Discours Antillais
Human Rights (HR), as my previous blog post argued, are facing a crisis of legitimacy in the eyes of both victims and the very forums that enabled their creation more than half a century ago. The current disjuncture in global affairs problematizes what has quite apparently become a performative universalism of HR – a bid to universalize a set of values not yet quite universal – and the contingency of felt violences – caused by baroque nationalism, humanitarianism, the failure to address environmental degradation, etc. that have accompanied this process of contemporary HR universalization. HR need a shift in their “operating system”, accounting for the changing nature of the world and capable of facing its weaknesses, thus transforming the nature of HR from an ideological project with naturalized hegemonic relationships, both material and normative (Davis 2018, 2).
When we speak of globalized human rights, of “human-rights-made-global”, we speak of the dissemination through persuasion, culture, force or other means, of a politics of human rights, of the conduct of statecraft and actors, of forms of power, domination and war through a narrative of HR informed by the values of this pre-defined rights framework. This persuasion, domination or violence is necessary to make those who are not yet under this framework adhere to it, and become a part of the state-based politics of HR. Reflecting on this crisis, legal scholars and practitioners have to consider the possibility that the state paradigm may no longer be enough to solve contemporary problems arising from HR violations.
On that matter, sociologist Salvatore Babones is unequivocal in declaring that the Westphalian era is over, arguing that the coup-de-grâce was given by the constant urge by Western powers to settle the internal affairs of states through war and then humanitarian interventions, a design to which HR were central (Babones 2016). The Universal Declaration and the 1966 HR Covenants, for example, have acted as a soft power, instrumental in bringing about a form of westernisation, a “global uniformity of lifestyles” and a standardization of the mind (Kho 2017). As activist and critical philosopher Ichiyo Muto rightly proposes, “The West […] appropriates for itself the privilege of turning its private affairs and concerns into public affairs and concerns of the non-West” (Muto 2010, 178), or as Peruvian philosopher Anibal Quijano (W. D. Mignolo and Escobar 2013, 23) frames it, “cultural Europeanisation was transformed into an aspiration. […] European culture became a universal cultural model.”
In that sense, “universal” HR instruments are at a disadvantage in providing an understanding of, and measures to protect human dignity since, as the central pieces of the politics of HR, they are incapable of making sense of HR violations that transcend or are abetted by modernity’s biases. This however does not point to a breakdown of HR, but rather to the Future of Human Rights. What I wish to further in this short essay is a glimpse at this future, a perspective into how we can rescue HR from a moribund statist and modern paradigm, so as to offer a pragmatic global outlook on humans and societies.
This future implies that a “new global human community is emerging, […] based on the dignity of each person rather than the sovereignty of each nation-state” (Domingo 2010, 587). As I concluded in Part I, the crisis can be averted by a move away from this politics of HR, towards a politics for HR that accepts globality as a premise. This blog post proposes a counterpoint to Upendra Baxi’s defense of a politics for HR grounded in the experience of “peoples in struggle and communities in resistance”.
The Global; A Radical De-Centering of HR
To put it bluntly, HR need to de-center themselves from the state paradigm. As Part I argued, universalism shares a common history with the legacy of (European) coloniality, the underside of the project of modernity. Any attempt at a politics for HR centred in the (ontological) dignity of all – their possibility to “become” and not be “erased” – requires a de-linking from Eurocentric modernity and thus from the state. A philosophy of a global community must refuse to authorize HR as an absolute uni-versal paradigm centred on modernity/coloniality and its obsession with the Eurocentric (Westphalian) form of the state.
States, the actors of modern international HR law, have given the normative framework a principally internal account that is largely self-referential and positivistic, in the sense that HR law is contained within specific legal documents that have the state as the nexus, and as the central actor in their enactment, realization and sanction. As Maldonado-Torres rightly argued, “The universality of human rights is delimited by what is considered to effectively constitute the state of being human in the first place.” (Maldonado-Torres 2017, 117) Hence, first the concept of the human needs to be reconsidered, and for this to happen, the subaltern status needs to be conceived as one not of submission, but of scepticism and critical potential, not only vis-à-vis the a priori superiority of post-WWII liberal HR “but also radical doubt about the lack of the full humanity of the colonized. As a result of this turn, the colonized subject emerges not only as a questioner but also as an embodied being who seeks to become an agent.” (Maldonado-Torres 2017, 118)
If we take this radical perspective of a future grounded in the lived experiences of “peoples in struggle and communities in resistance”, the experience of the colonized, the “wretched of the earth”, then the grounds for this future lie in total opposition to modernity’s uni-versal future. It lies rather in the struggles and very realities of the people that have actively been denied full humanity/dignity or the possibility to “become” by the operations of the politics of HR, humanitarianism, developmentalism, or the failure of HR to rein-in nationalism or other modern ills. A global philosophy of HR is thus itself a practice of liberation, and it cannot be Eurocentric. “Philosophy, and ethics in particular,” as Enrique Dussel contends, “must free themselves from ‘Eurocentrism’ in order to become empirically, materially, and factually global from the perspective of the affirmation of its excluded alterity” (Dussel 2013, 52). Any “philosophy of the future,” he continues, should have “from the beginning a global perspective and horizon” (Dussel 2013, 260).
A Global Human Rights framework rejects the erasure of differences, of the diversity of human experiences and corpo-realities in the name of a so-called universality, but it also rejects the essentialization of cultures, communities and people in the name of the particular. It is neither specific, nor universal. It is a dialogue between specific universals, current and yet-to-be traditions, that transcends strict boundaries defined “from above”; nation, gender, culture, race, etc. It is interested in human experiences, and in the ways in which rights, HR, can support this multitude of existences. Global Human Rights give meaning to rights in transcending borders and it accepts that not every migrant lives migration the same way, that there is not one but many ways to mitigate climate change or populist nationalism and their effects.
Evolutive design; pluri-versal multiperspectivism
What is required for insightful debates on the evolution of international law in that framework is the understanding that there are functioning normative frameworks, or normative plights, dilemmas or questions that stem from modernity but that express entire life worlds from a counter-project beyond the modern one that has left them wanting. We require a de-coloniality of HR, a decolonisation of the “mind of HR”, within a process of de-linking (W. Mignolo 2007) from the matrix of power of modernity discussed in Part I the production of knowledge and subjectivities. HR must radically de-center from the state paradigm that fails to understand contemporary HR issues, and incorporate the views of “peoples in struggle and communities in resistance”.
Philosopher Eduardo Mendieta proposes a solution to this enigma in advancing “dialogical cosmopolitanism”, a position that avoids and rejects the certainties of a uni-versalistic position, but attempts to take responsibility for a shared world; it “situates us in our global fragments, but also turns our moral look to our global responsibilities and duties toward others” (Mendieta 2007, 13). Following Tung-Yi Kho, this methodological, theoretical and praxical move promotes the re-discovery of “more holistic, empathic, and aesthetic conceptions of being-in-the-world […] by cultivating an aesthetic of moral feeling, which is always communal, shared, and inter-subjective” (Kho 2017, 149). This counter-project is a move away from individualist and instrumentalist reason, and it seeks to overcome “individualist and contractual social forms - notably, gessellschaft (society) - in favour of affective and moral gemeinshaft (community)” (Kho 2017, 149).
Considering that the role of international human rights law is meant to govern relationships between diverse political and social actors dispersed in a multitude of cultures around the globe, international (HR) law, must be a pluri-versal universal (W. Mignolo 2012). In providing rules and principles that apply generally to all, a multiperspectivist, or pluri-versal international human rights law considers a plurality not only of perspectives, but also of life-worlds and corpo-realities that must be brought to bear on the definition of said norms.
In that sense, echoing such critical insight from the Global South, a transnational memory of HR would allow us to consider for example, pointed resistance and the perspective of subalterns wherever they are in time and space. It would acknowledge the resistances of not only the drafters of HR documents and state officials, but also that of Waman Puma de Ayala, Frederick Douglass, Lokmanya Tilak, Jemal al-Din al-Afghani, Aimé Césaire or the villagers of Bil’in today as actors in the field of HR whose discourses have value for our understanding of the normative core and meaning of HR. For example then, we must reconceive the epistemic hinges of HR law, away from the centrality of the UDHR and the Covenants, and closer, for example, to a normative appreciation of the Haitian Independence, Césaire’s Cahier d’un retour au pays natal, or Fanon’s Les damnés de la terre.
In doing so, the “global” in the phrase “Global HR” takes all its meaning in expressing interconnectedness between formations – peoples or communicative spaces – that are historically constituted and generate different meaning in different contexts. This new conception of the Global refers to the generation of dialogues between historically and socially contingent groups, a “pluriversal multiperspectivism” that creates insights into the redefinition of HR. On the premise that this “global” is built both cognitively but also materially, the assumption is that this dialogue of pluri- against uni-versal happens at the level of a globalized memory that epitomizes the interplay between both the material and the perceived reality of globalization. Hence this memory becomes the blueprint from which we can make sense of a material but also an imagined “global” from a multiplicity of perspective, of lived experiences. In that sense, this memory allows us to understand HR beyond it’s accepted confines; that of the UDHR, the 1966 pacts, and the accepted history, both near and far, of the field.
Making the Global “Local”
Baxi’s originality allows us to move away from the state paradigm as the articulation of human rights, rather centering people’s resistance as originators of the language of human rights. This perspective seeks, as Hasan-Khan proposes in an exegesis of Baxi:
“to respond to the lingering legacies of formal colonialism [and, I contend, coloniality as discussed in Part I], including attending to the normative demands of “the wretched of the earth”, born out of centuries of suffering under colonial rule, which included the need to address the massive material inequalities amongst the different, now formally equal, nation-states comprising the extant international society.” (Hasan Khan 2018, 157)
From there, we can sow the seeds for a plural global community that recognizes the radical differences between life-worlds that share the same material world. However, the problem inherent in reflecting on this view of the “global” is that we are thinking, paradoxically, from a local, lived-experience position, about an overarching normative global space that then tries to be both local and global at once. Of concern here is that we think through global problems while trying to recognize contextual specificity, thus that we “look to the world even as we are indisputably rooted in specific ethical traditions” (Mendieta 2007, 8).
As Professor Frédéric Mégret discussed in his contribution to this blog, “if there is to be a universality to human rights, it is surely the universality of traditions of human rights.” I would add to this that there is one more form of plurality of human rights - the “diversity of experiences” of those human rights, which do not necessarily lead to “traditions”, but to corpo-realities that have normative repercussions. By this I mean not only that there is a diversity of experiences of the UDHR-based human rights regime, but also that lived experiences create not necessarily only traditions, but decentred cultures that are lived in ways that stratify, for example, a UDHR-based structure.
For example, a culture of human rights and of what they ought and should be, exists in the corpo-reality of migrants crossing the Mediterranean or riding “La Bestia” (or “El tren de los desconocidos”) bound for the US border. The plight of those people, as well as that of the Rohingyas, of Indonesian sexual minorities, of disabled people in South-East Africa or of the villagers of Bil’in, cuts straight through, above, under and beyond the structures of human rights law, especially in its national variation. Thus, if we are to make human rights meaningful, these plights must not only be listened to, but must also be brought to bear on the structure of international HR law.
In considering the situationality of normative arguments, we attempt to realize a bottom-up legal universalism that refuses the abyssal acceptance of a top-down, states- and international institutions-centric HR law. The exercise is then to step out of epistemological determinism and consider the realists’ assumption that actors can make moral and normative statements, or merely ask “the right questions” outside of perceived epistemic biases, based in their very corpo-realities. In doing so, we open Global HR to the potential of being not a set of Europeanised, state-centric legal transplants, but a common resource, a public good with a conglomerate character. This common frame, to which actors situated in different sites contribute normative questions, statements or articulations from the local, national, or transnational level of global society, or from above, under or through them, is global Human Rights, a radical definition of HR from the lived experiences of “peoples in struggle and communities in resistance”.
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Davis, Benjamin P. 2018. “Globalization/Coloniality: A Decolonial Definition and Diagnosis.” Transmodernity: Journal of Peripheral Cultural Production of the Luso-Hispanic World 8 (4). https://escholarship.org/uc/item/3xt7p9n6.
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About the author
Pierre-Alexandre Cardinal is currently an O’Brien Doctoral Fellow based at McGill University's Faculty of Law, in Montreal, Canada. His research focuses mainly on an interdisciplinary study of legal questions such as the intersections between international law and racial capitalism, or decolonial environmental law. Besides this, he maintain a strong commitment to community organization, especially with regard to sports and underprivileged communities. He can be reached at pierre-alexandr.cardinal [at] mail.mcgill.ca.
Special thanks to Maia Stevenson, BCL/LLB candidate 2020, for serving as a guest editor for this article.
You can read the first part to his post in On Global Human Rights — Part One.