The International Human Rights Movement: Part of the Problem?[*]

David Kennedy[**]

There is no question that the international human rights movement has done a great deal of good, freeing individuals from great harm, providing an emancipatory vocabulary and institutional machinery for people across the globe, raising the standards by which governments judge one another, and by which they are judged, both by their own people, and by the elites we refer to collectively as the “international community.” A career in the human rights movement has provided thousands of professionals, many of them lawyers, with a sense of dignity and confidence that one sometimes can do well while doing good. The literature praising these, and other, accomplishments is vast. Among well-meaning legal professionals in the United States and Europe—humanist, internationalist, liberal, compassionate in all the best senses of these terms—the human rights movement has become a central object of devotion.

But there are other ways of thinking about human rights. As a well-meaning internationalist and, I hope, compassionate legal professional myself, I thought it might be useful to pull together in a short list some of the questions that have been raised about international human rights by people, including myself, who worry that the human rights movement might, on balance, and acknowledging its enormous achievement, be more part of the problem in today’s world than part of the solution. This Essay offers an incomplete and idiosyncratic list of such questions that might be of interest to the human rights practitioner.

I should say at the outset that the arguments I have listed are hypotheses. I have stated them as succinctly as I can, at the risk of their seeming conclusive or overly polemical. In fact, although some of them seem more plausible to me than others, to my knowledge none of them has been proven—they are in the air as assertions, worries, polemical charges. They circulate in the background of conversations about the human rights movement. And even

if these potential costs were demonstrated, it would still be necessary to weigh them against the very real accomplishments of the human rights movement.

I. Thinking Pragmatically About Human Rights

My purpose in pulling these concerns together is to encourage other well-meaning legal professionals to adopt a more pragmatic attitude toward human rights. My hope is that we will develop a stronger practice of weighing the costs and benefits of their articulation, institutionalization and enforcement. Of course, the best human rights practitioners are already intensely strategic and practical in thinking about their work. But it is often tempting (for those within and without the movement) to set pragmatic concerns aside, to treat human rights as an object of devotion rather than calculation. And even the most intense practical evaluations of human rights initiatives too often stop short of considering the full range of potential down sides or negative knock on consequences in their enthusiasm to move forward with efforts whose up side potential seems so apparent.

A. ”Pragmatic” Always and Forever or Here and Now?

Pragmatic evaluation means specifying the benefits and harms that might attend human rights initiatives in particular cases, under specific conditions, in particular time periods, and so forth. Those cases, conditions, times may be extremely specific (pursuing this petition will make this magistrate less likely to grant this other petition) or very general (articulating social welfare needs as individual “rights” makes people everywhere more passive and isolated) but they need to be articulated, and ultimately demonstrated, in concrete terms. At the same time, concrete does not mean sure or inevitable. The factors that influence policy making are not, by any means, all proven empirically. To count as a cost (or benefit), effects must be articulated in terms plausible enough to persuade people seeking to pursue human rights initiatives to take them into account.

Weighing the costs and benefits of “human rights” is difficult because the costs are often articulated in far more general terms than the benefits. The dangers on my list are often expressed as indictments of the entire human rights “idea” and “movement” in all times and places. The benefits are more often cast in immediate and local terms—these people out of this prison, those people provided with housing, this country’s political process opened to elections, monitored in this way, these individuals spared the death penalty. It is certainly plausible that thinking about problems in the language of human rights could entail some costs (or benefits) always and everywhere, which would need to be added to each more particularized calculation. More likely, these general costs will be more or less intense in specific places and times. It may turn out that the entire human rights vocabulary or movement suffers from a blindness or works an effect that we should count as a

cost. But it is far more likely that the vocabulary is used in different ways by different people, and that the movement is itself split in ways that make blindnesses more acute in some places and times than others. In weighing all this up, it is terribly hard to isolate the effects of “human rights.” People in the movement also speak other languages, perhaps using the movement/vocabulary of human rights to get in the door and then speaking instrumentally or ethically. People in the movement will evaluate risks, costs and benefits in quite different ways. The vocabulary and movement are themselves in flux—many of the open terms are subject to ongoing revision precisely to correct for the sorts of difficulties I have listed here. As a pragmatist, all one can do is take these possibilities into account as best one can, estimating their likelihood and augmenting or discounting risks accordingly. As a movement, one can facilitate open engagement about differing pragmatic assessments.

Imagine, for example, an effort to use the vocabulary and political capital of the international human rights movement to end capital punishment in the Caribbean. It might well turn out that leading corporate lawyers acting pro bono in London define the problem and solution differently than lawyers working with non-governmental groups in London, and differently again from lawyers and organizers in the Caribbean. For some the anti-death penalty campaign might seem a distraction from more pressing issues, might occupy the field, might, if the campaign is successful, even legitimate other governmental (in)action or other social conditions that kill more people in the Caribbean. There might be a struggle within the movement about the usefulness of the vocabulary, or within the vocabulary about the conditions and costs of its deployment in particular places. Some people might use the death penalty, and the human rights vocabulary, to leverage interest in other issues or other vocabularies—others might use it to close off broader inquiries. Wherever you are located, if you are thinking pragmatically about devoting scarce institutional resources to furthering or limiting the effort to bring human rights to bear on the instance of Caribbean death penalty, it will be necessary to come to some conclusion, however tentative and general, about how these conflicts and divergent effects will net out. I hope that this list of critical observations about human rights might provide something of a checklist for discussions of this sort.

In assessing costs and benefits, it is as easy to give human rights too much of the blame for costs as it is too much credit for benefits. It is possible, of course, that the potential costs of human rights—as a vocabulary and as a movement—arise when it is misused, distorted, or co-opted. It is possible that the benefits and burdens of human rights might, in the event, be swamped by the effects of other powers. Human rights may be a drop of liberation in an ocean of oppression, or a fig leaf of legitimation over an evil collapsing of its own weight. In thinking pragmatically about human rights, all we can do is disaggregate and assess these causes and effects as carefully as possible. At the same time, we should be suspicious if costs are always attributed to

people and forces outside the movement, just as we should be suspicious of claims that everything bad that happens was somehow always already inherent in the vocabulary used by unwitting human rights advocates. In thinking pragmatically about human rights, we will usually find ourselves somewhere in between, evaluating whether the vocabulary or institutional form of the movement, in particular contexts, makes particular types of “misuse” more or less likely. Again, I hope this list will provide a checklist of possible costs that we might think of (in particular circumstances or under certain conditions) as either potential misuses or as outcomes that may be made more likely by the human rights machinery.

Finally, it only makes sense to think pragmatically about human rights in comparative terms. How do the costs and benefits of pursuing an emancipatory objective in the vocabulary of human rights compare with other available discourses? How do efforts to work more intently within the human rights vocabulary compare with efforts to develop alternative vocabularies? How do human rights initiatives affect these efforts? Human rights might well discourage focus on collective responsibility, might leach the spiritual from emancipatory projects, but how does this stack up against alternative vocabularies and institutions—of family, kinship, nationhood, religious conviction—or with other political or legal emancipatory rhetorics? Whose hand is strengthened or weakened by each? How do we assess the medium or long term effort to develop new vocabularies and institutions for emancipation? Again, my hope is that this list will help spark this sort of comparative analysis.

B. Specifying the Costs and Benefits

To weigh costs and benefits, we will need to be as articulate and concrete about the benefits as about the costs. I have not dwelt on the benefit side here, but it should be clear that people will evaluate the benefits very differently. There will be a struggle, both inside and outside the movement, about what benefits to seek and how to rank gains. Here, I have used the term “emancipation” to capture the broad range of (often conflicting) benefits people of good heart might hope to make of human rights—humanitarian, progressive, internationalist, social welfare enhancing. There might be other benefits—human rights might have aesthetic uses, might stimulate the heart or the imagination, just as they might be psychologically or ethically useful. And, of course, human rights might not be useful only for us, but for all sorts of people pursuing various projects, not all of them good-hearted. I leave the list of benefits to others.

But what about the costs. People who have made the criticisms I have listed here differ about the sorts of costs they feel should be toted up. Some criticisms are ethical, some are political, some are philosophical. For some the problem is aesthetics—the ensemble of characters, identities, vocabularies necessary to achieve what has been achieved by the human rights move-

ment is also an aesthetic blight. Of course, the human rights movement might create bad effects not so much by what it does, as by what it does not do. Costs might include things that happen on the ground to potential victims and violators of human rights, or to other people (innocent bystanders). They might include things that happen to other elites—people doing good things weakened, doing bad things strengthened—or things that happen to participants in the human rights movement itself—professional deformations of various kinds that might be subject to ethical, political or philosophical criticism and then count as a cost of the endeavor.

For some people, it matters (ethically, politically, philosophically, aesthetically) what the human rights movement expresses. If the human rights movement increases the incidence of descriptions of women as mothers-on-pedestals or victimized care givers, in legal decisions or institutional documents, that, for some people, is already a cost—ethically, aesthetically, politically. It is bad if women have been represented in too narrow or stereotypical a fashion, even if the only consequence is to pry loose some resources for redistribution to women. A number of the criticisms I have included here are of this type.

For other people, and I must admit, for me, nothing goes in the “costs” column until the human rights movement has a bad effect. A bad effect means influencing someone to act (or fail to act) or to think in a way that counts as a cost (again, ethically, politically, philosophically, aesthetically) for the person making the argument. Intensifying stereotypical representations of women might be thought to have an effect on at least some women (perhaps only plaintiffs and women using the human rights movement as a vehicle of self-expression and freedom, and others who learn who they are from what the human rights movement says women are), encouraging them to become narrower and more stereotypical or to think of themselves more narrowly than they otherwise might. And, of course, such representations would have an effect if they encouraged people in some positions of authority—judges, men, legislators, other women—to exclude women not meeting this stereotypical profile from benefits they would otherwise receive.

In weighing initiatives pragmatically, it is often more useful to focus on “distributional consequences among individuals or groups” than “costs and benefits.” The costs/benefits vocabulary suggests (incorrectly) that one could know at an abstract and general level what to count as a cost or a benefit of the initiative. In fact, of course, the “costs” and the “benefits” will look different and be evaluated differently by different people. For those who feel the death penalty deters, its abolition is a cost, which effects a distribution from victims to criminals. Although I speak here of costs and benefits (or the “problem” and the “solution”) as if we shared very vague and general aspirations for a more humanitarian, progressive and egalitarian global society, it would probably be more accurate to think of these “benefits” as distributions of power, status and means toward those who share these objectives and away from those who don’t. But let us take this general articulation as a first

step. Thereafter we would need to assess, from a more particular point of view, who would win and who would lose from a human rights initiative. In that effort, we would need to recast the criticisms I list here as distributions of power that one might oppose.

C. Some Criticisms Left Off the List

In keeping with this focus on usefulness, I have left off the list criticisms of human rights that are not cast in pragmatic terms. For example, the debate about whether human rights “really exist” or are “just” the product of efforts to articulate and use them. Although I find it hard to take too seriously the idea that rights exist in some way, let us assume that they do, and that the human rights movement is getting better and better at discovering and articulating them. If it turned out that doing so caused more misery than it alleviated, as a good-hearted legal professional, I would advocate our doing all we can to keep the existence of rights a secret. In a similar way, if it turns out that rights are “just” a fantasy, a social construction, and so forth, that tells us nothing about whether they are useful or not. If they are more useful than not, more power to the society that constructed them.

Traditional debates about whether human rights do or do not express a social consensus, in one society or across the globe, are similarly beside the point. Indeed, we could see them as updated ways of asking whether human rights really exist. Let us say they do express a social consensus—how does this affect their usefulness? Perhaps being able to say they express consensus weakens them, thins them out, skews their usefulness in various ways, perhaps it strengthens them. To decide, as my grandmother used to ask “whether that’s a good thing or a bad thing” we still need to know whether once strengthened or skewed or weakened or whatever they are useful, and if so for what and for whom.

Similarly debate about whether human rights “talk” is or is not coherent. Let’s say the human rights vocabulary, institutional apparatus, even the soul of the human rights advocate, is riddled with contradictions that would not stand up to logical scrutiny for a minute. Knowing only this does not move us any closer to an understanding of whether they are part of the problem or the solution. Perhaps ambivalent porosity is their secret strength—to the extent human rights is useful, we should then be grateful for the contradictions. Perhaps incoherence is a fatal weakness, but if human rights creates more problems than it solves, this would be all to the good.

I have also left out criticisms that could be answered by intensifying our commitment to the human rights movement—that often rights are not adequately enforced, that the list of rights on which we focus is underinclusive, that participation in the movement—in rights making and enforcing—could be broader, that rights are poorly or unevenly implemented because of opposition from people outside the movement or the movement’s own lack of resources, and so forth. This sort of criticism only makes the list when it

becomes structural—when it appears that deficiencies like this will not be solved by more commitment or resources—and when they also can be said to have bad effects. If what is done is good, but much is left undone, we can only feel more committed to what is precious in that which can be accomplished. But if the combination of doing and not doing makes matters worse, we must weigh that loss against the gain. We might decide, for example, that no matter how strong the human rights movement gets, it will always be disproportionate in its attentions to some rights and some regions. Skewed in this way, it might reinforce ideas and practices of elites that treat these regions, or these rights, differently in other ways—adding to the legitimacy of various other discriminations. If both these things seem plausible—the claimed skew is structural and there are plausible bad consequences—it makes the list. If made out, these consequences would, of course, need to be weighed against the good achieved to see whether either the broad human rights movement or any particular initiative undertaken in its name was more part of the problem than the solution.

II. A Short List of Pragmatic Worries and Polemical Charges

This is not a list of things unknown. All of these criticisms have been around for a long time, and the human rights movement has responded to them in a wide variety of ways. Attention is routinely given to previously under-represented rights, regions, modes of enforcement, styles of work. The human rights movement is, in many ways, now moving beyond” rights, broadening its engagements and terms of reference. In many ways the movement has developed precisely by absorbing waves of criticism, often from those passionate about its possibilities and importance who cast their doubts in one or another of these terms. It would be interesting to list the reactions and reforms that these and other doubts have generated.

Sometimes, of course, reflecting on this sort of criticism can itself become part of the problem. If the costs turn out to be low or speculative, any time spent fleshing them out is time lost to the project of using human rights for emancipation—although having “been through” criticism might also strengthen the movement’s ability to be useful. We are all familiar, moreover, with the periodic hand-wringing about possible errors and limits that accompanies the professional practice of human rights. This practice might well do more to stabilize the profession’s sense of engagement, entitlement, confidence, than to undermine it, even where it turns out the costs far outweigh the benefits. Nevertheless, I can imagine good hearted legal professionals coming to these criticisms fresh, in a pragmatic spirit. How, and how adequately, has the movement responded to its critics? Have we done all we can to eliminate these down-side costs? Are we right to conclude that overall human rights is more part of the solution than the problem?

A. Human Rights Occupies the Field of Emancipatory Possibility

Hegemony as resource allocation. The claim here is that this institutional and political hegemony makes other valuable, often more valuable, emancipatory strategies less available. This argument is stronger, of course, when one can say something about what those alternatives are—or might be. But there may be something to the claim that human rights has so dominated the imaginative space of emancipation that alternatives can now only be thought, perhaps unhelpfully, as negations of what human rights asserts—passion to its reason, local to its global, etc. As a dominant and fashionable vocabulary for thinking about emancipation, human rights crowds out other ways of understanding harm and recompense. This is easiest to see when human rights attracts institutional energy and resources that would otherwise flow elsewhere. But this is not only a matter of scarce resources.

Hegemony as criticism. Human rights also occupies the field by implicit or explicit delegitimation of other emancipatory strategies. As an increasingly dominant emancipatory vocabulary, human rights is also a mode of criticism, among people of good will and against people of good will, when pursuing projects that, by comparison, can seem “too” ideological and political, insufficiently universal, objective, and so on. Where this is so, pursuing a human rights initiative or promoting the use of human rights vocabulary may have fully untended negative consequences for other existing emancipatory projects. Of course this takes us directly to a comparative analysis—how do we compare the gains and losses of human rights to the (potential) gains and losses of these other vocabularies and projects?

Hegemony as distortion. To the extent emancipatory projects must be expressed in the vocabulary of “rights” to be heard, good policies that are not framed that way go unattended. This also distorts the way projects are imagined and framed for international consideration. For example, it is often asserted that the international human rights movement makes an end run around local institutions and strategies that would often be better—ethically, politically, philosophically, aesthetically. Resources and legitimacy are drawn to the center from the periphery. A “universal” idea of what counts as a problem and a solution snuffs out all sorts of promising local political and social initiatives to contest local conditions in other terms. But there are other lost vocabularies that are equally global—vocabularies of duty, of responsibility, of collective commitment. Encouraging people concerned about environmental harm to rethink their concerns as a human rights violation will have bad consequences if it would have turned out to be more animating, for example, to say there is a duty to work for the environment, rather than a right to a clean environment.

The “right to development” is a classic—and well known—example. Once concerns about global poverty are raised in these terms, energy and resources are drawn to developing a literature and an institutional practice at the international level of a particular sort. Efforts that cannot be articulated

in these terms seem less legitimate, less practical, less worth the effort. Increasingly, people of good will concerned about poverty are drawn into debate about a series of ultimately impossible legal quandaries—right of whom, against whom, remediable how, and so on—and into institutional projects of codification and reporting familiar from other human rights efforts, without evaluating how these might compare with other uses for this talent and these resources. Meanwhile, efforts that human rights does not criticize are strengthened. International economic policy affecting global poverty is taken over by neo-liberal players who do not see development as a special problem.

B. Human Rights Views the Problem and the Solution Too Narrowly

Narrow in many ways. People have made many different claims about the narrowness of human rights. Here are some: the human rights movement foregrounds harms done explicitly by governments to individuals or groups—leaving largely unaddressed and more legitimate by contrast harms brought about by governments indirectly or by private parties. Even when addressing private harms, human rights focuses attention on public remedies—explicit rights formalized and implemented by the state. One criticizes the state and seeks public law remedies, but leaves unattended or enhanced the powers and felt entitlements of private actors. Human rights implicitly legitimates ills and delegitimates remedies in the domain of private law and nonstate action.

Insulating the economy. Putting these narrowings together often means defining problems and solutions in ways not likely to change the economy. Human rights foregrounds problems of participation and procedure, at the expense of distribution, implicitly legitimating the existing distributions of wealth, status and power in societies once rights have been legislated, formal participation in government achieved, and institutional remedies for violations provided. However useful saying “that’s my right” is in extracting things from the state, it is not good for extracting things from the economy, unless you are a property holder. Indeed, a practice of rights claims against the state may actively weaken the capacity of people to challenge economic arrangements.

Whether progressive efforts to challenge economic arrangements are weakened by the overwhelming strength of the “right to property” in the human rights vocabulary, or by the channeling of emancipatory energy and imagination into the modes of institutional and rhetorical interaction that are described as “public,” the imbalance between civil/political and social/economic rights is neither an accident of politics nor a matter that could be remedied by more intensive commitment. It is structural, to the philosophy of human rights, to the conditions of political possibility that make human rights an emancipatory strategy in the first place, to the institutional

character of the movement, or to the ideology of its participants and supporters.

Foregrounding form. The strong attachment of the human rights movement to the legal formalization of rights and the establishment of legal machinery for their implementation makes the achievement of these forms an end in itself. Elites in a political system—international, national—which has adopted the rules and set up the institutions will often themselves have the impression and insist persuasively to others that they have addressed the problem of violations with an elaborate, internationally respected and “state of the art” response. This is analogous to the way in which holding elections can come to substitute for popular engagement in the political process. These are the traditional problems of form: form can hamper peaceful adjustment and necessary change, can be over or underinclusive. Is the right to vote a floor—or can it become a ceiling? The human rights movement ties its own hands on progressive development.

Backgrounding the background. The effects of a wide array of laws that do not explicitly condone violations but nevertheless affect the incidence of violation in a society are left unattended. As a result, these background laws—which may well be more important in generating the harm than an absence of rights and remedies for victims—are left with clean hands. Moreover, to maintain the claim to universality and neutrality, the human rights movement practices a systematic lack of attention to background sociological and political conditions that will determine the meaning a right has in particular contexts, rendering the evenhanded pursuit of “rights” vulnerable to all sorts of distorted, and distinctly non-neutral outcomes.

Even very broad social movements of emancipation—for women, for minorities of various sorts, for the poor—have their vision blinkered by the promise of recognition in the vocabulary and institutional apparatus of human rights. They will be led away from the economy and toward the state, away from political/social conditions and toward the forms of legal recognition. It has been claimed, for example, that promoting a neutral right to religious expression in Africa without acknowledging the unequal background cultural, economic and political authority of traditional religions and imported evangelical sects will dramatically affect the distribution of religious practice. Even if we limit our thinking to the laws that influence the distribution of wealth, status, and power between men and women, the number of those laws that explicitly address “women’s issues,” still less “women’s rights,” would form an extremely small and relatively unimportant percentage. However much the human rights movement reaches out to address other background considerations affecting the incidence of human rights abuse, such “background” norms remain, well, background.

C. Human Rights Generalizes Too Much

Universal goods and evils. The vocabulary and institutional practice of human rights promotion propagates an unduly abstract idea about people, politics and society. A one-size-fits-all emancipatory practice underrecognizes and reduces the instance and possibility for particularity and variation. This claim is not that human rights are too “individualistic.” Rather, the claim is that the “person,” as well as the “group,” imagined and brought to life by human rights agitation is both abstract and general in ways that have bad consequences.

Sometimes this claim is framed as a loss of the pre-existing diversity of experience—as a vocabulary for expressing or representing experience, human rights limits human potential. In this view, limits on pre-existing potentials and experiences are themselves bad consequences. For others who make this argument, the loss of a prior, more authentic, humane, diverse real experience is not the issue. Even if it turns out that behind modes of expression there is no authentic experience, much less an edenic one, this particular vocabulary is less useful in encouraging possibility or hope or emancipation than others that generalize less or differently.

Becoming free only as an instance of the general. To come into understanding of oneself as an instance of a pre-existing general—“I am a ‘person with rights’”—exacts a cost, a loss of awareness of the unprecedented and plastic nature of experience, or a loss of a capacity to imagine and desire alternative futures. We could term this “alienation.” The human rights movement proposes itself as a vocabulary of the general good—as knowledge about the shape of emancipation and human possibility that can be “applied” and “enforced.” As an emancipatory vocabulary, it offers answers rather than questions, answers that are not only outside political, ideological and cultural differences, but also beyond the human experience of specificity and against the human capacity to hope for more, in denial of the tawdry and uncertain quality of our available dreams about and experience with justice and injustice. Rather than enabling a discussion of what it means to be human, of who is human, of how humans might relate to one another, it crushes this discussion under the weight of moral condemnation, legal adjudication, textual certainty and political power.

Not just bad for victims. The articulation of concrete good and evil in abstract terms is not only limiting for victims. The human rights vocabulary makes us think of evil as a social machine, a theater of roles, in which people are “victims,” “violators,” and “bystanders.” At its most effective, human rights figures victims as passive and innocent, violators as deviant, and human rights professionals as heroic. Only the bystanders are figured in ambivalent or uncertain terms. To enter the terrain of emancipation through human rights is to enter a world of uncivilised deviants, baby seals and knights errant. There is a narrowing here—other evils and other goods receive less attention. Privileging the baby seals delegitimizes the suffering of

people (and animals) who are, if anything, more typical in the complexity of their ethical and political posture, and renders the broader political culture less articulate about, and less able to engage, suffering that is embedded in or understood to express a more ambivalent constellation of characters. But this vocabulary also exacts a cost from those who fit most easily into its terms. No number of carefully elaborated “rights” is sufficient to recover a complex sense for a “violator’s” human possibility and ambivalent experience. Differences among “victims,” the experience of their particularity and the hope for their creative and surprising self-expression, are erased under the power of an internationally sanctified vocabulary for their self-understanding, self-presentation and representation as “victims” of human rights abuse.

Even bad for advocates. To come into experience of oneself as a benevolent and pragmatic actor through the professional vocabulary of legal representation has costs for the human rights advocate, compared with other vocabularies of political engagement or social solidarity. Coming into awareness of oneself as the representative of something else—heroic agent for an authentic suffering elsewhere—mutes one’s capacity for solidarity with those cast as victims, violators, bystanders, and stills the habit of understanding oneself to inhabit the world one seeks to affect. This claim is often put in ethical or characterological terms: human rights promotes emancipation by propagating an unbearably normative, earnest, and ultimately arrogant mode of thinking and speaking about what is good for people, abstract people, here and there, now and forever. This is bad for people in the movement—it can demobilize them as political beings in the world while encouraging their sanctimony—as well as those whose sense of the politically possible and desirable is shrunk to fit the uniform size.

D. Human Rights Particularizes Too Much

Emancipating the “right holders.” The specific way human rights generalizes is to consolidate people into “identities” on the basis of which rights can be claimed. There are two issues here: a focus on individuals and a focus, whether for individuals or groups, on right-holding identity. The focus on individuals and people who come to think of themselves as individuals blunts articulation of a shared life. The focus on discrete and insular right holding identities blunts awareness of diversity, of the continuity of human experience, of overlapping identities. Together these tendencies inhibit expression of the experience of being part of a community.

Again we find two types of claims. For some, the key point is that human rights reduces and distorts a more promising real experience, of more shifting, less bounded identities, at times fused with a general will or co-participating in identities and social arrangements for which one will turn out to have no corresponding right or privilege. For others, the point is that compared to other vocabularies, human rights renders those who use it inar-

ticulate about and less capable of solidarity and open-ended possibility. Either way, the human rights movement intensifies the sense of entitlement in individuals and groups at great cost to their ability to participate in collective political life and to their understanding of own lives as part of a more diverse community.

Strengthening the state. Although the human rights vocabulary expresses relentless suspicion of the state, by structuring emancipation as a relationship between an individual right holder and the state, human rights places the state at the center of the emancipatory promise. However much one may insist on the priority or pre-existence of rights, in the end rights are enforced, granted, recognized, implemented, their violations remedied, by the state. By consolidating human experience into the exercise of legal entitlements, human rights strengthens the national governmental structure and equates the structure of the state with the structure of freedom. To be free is . . . to have an appropriately organized state. We might say that the right-holder imagines and experiences freedom only as a citizen. This encourages autochthonous political tendencies and alienates the “citizen” from both his or her own experience as a person and from the possibility of alternative communal forms.

Encouraging conflict and discouraging politics among right-holders. Encouraging each person and group wishing to be free to tally the rights he/she/it holds in preparation for their assertion against the state reduces inter-group and inter-individual sensitivity. In emancipating itself, the right holder is, in effect, queue jumping. Recognizing, implementing, enforcing rights is distributional work. Encouraging people to imagine themselves as right holders, and rights as absolute, makes the negotiation of distributive arrangements among individuals and groups less likely and less tenable. There is no one to triage among rights and right holders—except the state. The absolutist legal vocabulary of rights makes it hard to assess distribution among favored and less favored right holders and forecloses development of a political process for tradeoffs among them, leaving only the vague suspicion that the more privileged got theirs at the expense of the less privileged.

“Refugees” are people too. For fifty years the human rights movement, and the legal departments (often in opposition to the “humanitarian assistance” departments) of the great international institutions have struggled for legal recognition of the status of “refugee,” helping to generate millions of people who think of themselves as “refugees,” and whose status has often been so certified by one or another institution in the human rights family. Formalizing a status of disconnection from the state of “origin,” the “host” state and the state in whose location one seeks “settlement,” has taken an enormous toll on everyone’s ability to think about and affect either the causes or consequences of refugee status. It is a status defined by its detachment from both. The thirty year stillborn effort to codify a “right to asylum” as an entailment of refugee status illustrates the difficulty of addressing solutions as matters of legal entitlement. Illustrates it so strikingly that we should ques-

tion whether the effort to define the identity and rights of “the refugee” is more part of the problem than the solution.

E. Human Rights Expresses the Ideology, Ethics, Aesthetic Sensibility and Political Practice of a Particular Western Eighteenth- through Twentieth-Century Liberalism

Tainted origins. Although there are lots of interesting analogies to human rights ideas in various cultural traditions, the particular form these ideas are given in the human rights movement is the product of a particular moment and place. Post-enlightenment, rationalist, secular, Western, modern, capitalist. From a pragmatist point of view, of course, tainted origins are irrelevant. That human rights claims to be universal but is really the product of a specific cultural and historical origin says nothing—unless that specificity exacts costs or renders human rights less useful than something else. The human rights tradition might itself be undermined by its origin—be treated less well by some people, be less effective in some places—just as its origin might, for other audiences, accredit projects undertaken in its name. This is the sort of thing we might strategize about—perhaps we should downplay the universal claims, or look for parallel developments in other cultural traditions, etc.

The movement’s Western liberal origins become part of the problem (rather than a limit on the solution) when particular difficulties general to the liberal tradition are carried over to the human rights movement. When, for example, the global expression of emancipatory objectives in human rights terms narrows humanity’s appreciation of these objectives to the forms they have taken in the nineteenth- and twentieth-century Western political tradition. One cost would be the loss of more diverse and local experiences and conceptions of emancipation. Even within the liberal West, other useful emancipatory vocabularies (including the solidarities of socialism, Christianity, the labor movement, and so forth) are diminished by the consolidation of human rights as the international expression of the Western liberal tradition. Other costs would be incurred to the extent the human rights tradition could be seen to carry with it particular down sides of the liberal West.

Down sides of the West. That the emancipations of the modern West have come with costs has long been a theme in critical writing—alienation, loss of faith, environmental degradation, immorality, etc. Seeing human rights as part of the Western liberal package is a way of asserting that at least some of these costs should be attributed to the human rights tradition. This might be asserted in a variety of ways. If you thought secularism was part of what is bad about the modern West, you might assert that human rights shares the secular spirit, that as a sentimental vocabulary of devotion it actively displaces religion, offering itself as a poor substitute. You might claim that the enforcement of human rights, including religious rights, downgrades religion to a matter of private and individual commitment, or otherwise

advances the secular project. To the extent human rights can be implicated in the secular project, we might conclude that it leaves the world spiritually less well off. Other criticisms of the modern liberal West have been extended to human rights in a parallel fashion.

In particular, critics have linked the human rights project to liberal Western ideas about the relationships among law, politics, and economics. Western enlightenment ideas that make the human rights movement part of the problem rather than the solution include the following: the economy pre-exists politics, politics pre-exists law, the private pre-exists the public, just as the animal pre-exists the human, faith pre-exists reason, or the feudal pre-exists the modern. In each case, the second term is fragile, artificial, a human creation and achievement, and a domain of choice, while the first term identifies a sturdy and natural base, a domain outside human control.

Human rights encourages people to seek emancipation in the vocabularies of reason rather than faith, in public rather than private life, in law rather than politics, in politics rather than economics. In each case, the human rights vocabulary overemphasizes the difference between what it takes as the (natural) base and as the (artificial) domain of emancipation, and underestimates the plasticity of what it treats as the base. Moreover, human rights is too quick to conclude that emancipation means progress forward from the natural passions of politics into the civilized reason of law. The urgent need to develop a more vigorous human politics is sidelined by the effort to throw thin but plausible nets of legal articulation across the globe. Work to develop law comes to be seen as an emancipatory end in itself, leaving the human rights movement too ready to articulate problems in political terms and solutions in legal terms. Precisely the reverse would be more useful. The posture of human rights as an emancipatory political project that extends and operates within a domain above or outside politics—a political project repackaged as a form of knowledge—delegitimates other political voices and makes less visible the local, cultural, and political dimensions of the human rights movement itself.

As liberal Western intellectuals, we think of the move to rights as an escape from the unfreedom of social conditions into the freedom of citizenship, but we repeatedly forget that there is also a loss. A loss of the experience of belonging, of the habit of willing in conditions of indeterminacy, innovating collectively in the absence of knowledge, unchanneled by an available list of rights. This may represent a loss of either the presence of experience itself, experience not yet channeled and returned to the individual as the universal experience of a right holder, or of the capacity to deploy other vocabularies that are more imaginative, open, and oriented to future possibility.

The West and the rest. The Western/liberal character of human rights exacts particular costs when it intersects with the highly structured and unequal relations between the modern West and everyone else. Whatever the limits of modernization in the West, the form of modernization promoted by the human rights movement in third world societies is too often based only on a

fantasy about the modern/liberal/capitalist west. The insistence on more formal and absolute conceptions of property rights in transitional societies than are known in the developed West is a classic example of this problem—using the authority of the human rights movement to narrow the range of socio-economic choices available in developing societies in the name of “rights” that do not exist in this unregulated or compromised form in any developed western democracy.

At the same time, the human rights movement contributes to the framing of political choices in the third world as oppositions between “local/traditional” and “international/modern” forms of government and modes of life. This effect is strengthened by the presentation of human rights as part of belonging to the modern world, but coming from some place outside political choice, from the universal, the rational, the civilized. By strengthening the articulation of third world politics as a choice between tradition and modernity, the human rights movement impoverishes local political discourse, often strengthening the hand of self-styled “traditionalists” who are offered a common-sense and powerful alternative to modernisation for whatever politics they may espouse.

F. Human Rights Promises More than It Can Deliver

Knowledge. Human rights promises a way of knowing—knowing just and unjust, universal and local, victim and violator, harm and remedy—which it cannot deliver. Justice is something that must be made, experienced, articulated, performed each time anew. Human rights may well offer an index of ways in which past experiences of justice-achieved have retrospectively been described, but the usefulness of this catalog as a stimulus to emancipatory creativity is swamped by the encouragement such lists give to the idea that justice need not be made, that it can be found or simply imported. One result is a loss of the habit of grappling with ambivalence, conflict and the unknown. Taken together, belief in these various false promises demobilizes actors from taking other emancipatory steps and encourages a global misconception of both the nature of evil and the possibilities for good.

Justice. Human rights promises a legal vocabulary for achieving justice outside the clash of political interest. Such a vocabulary is not available: rights conflict with one another, rights are vague, rights have exceptions, many situations fall between rights. The human rights movement promises that “law”—the machinery, the texts, the profession, the institution—can resolve conflicts and ambiguities in society by resolving those within its own materials, and that this can be done on the basis of a process of “interpretation” that is different from, more legitimate than, politics. And different in a particularly stultifying way—as a looser or stricter deduction from a past knowledge rather than as a collective engagement with the future. In particular, the human rights movement fetishizes the judge as someone who functions as an instrument of the law rather than as a political actor, when

this is simply not possible—not a plausible description of judicial behavior—given the porous legal vocabulary with which judges must work and the likely political context within which judges are asked to act.

Many general criticisms of law’s own tendencies to overpromise are applicable in spades to human rights. The absoluteness of rules makes compromise and peaceful adjustment of outcomes more difficult. The vagueness of standards makes for self-serving interpretation. The gap between law in the books and law in action, between legal institutions and the rest of life, hollows promises of emancipation through law. The human rights movement suggests that “rights” can be responsible for emancipation, rather than people making political decisions. This demobilizes other actors and other vocabularies, and encourages emancipation through reliance on enlightened, professional elites with “knowledge” of rights and wrongs, alienating people from themselves and from the vocabulary of their own governance. These difficulties are more acute in the international arena where law is ubiquitous and unaccompanied by political dialog.

Community. The human rights movement shares responsibility for the widespread belief that the world’s political elites form a “community” that is benevolent, disconnected from economic actors and interests, and connected in some diffuse way through the media to the real aspirations of the world’s people. The international human rights effort promises the ongoing presence of an entity, a “community,” which can support and guarantee emancipation. This fantasy has bad consequences not only when people place too much hope in a foreign emancipatory friend that does not materialize. The transformation of the first world media audience, as that audience is imagined by the media, into “the international community” is itself an astonishing act of disenfranchisement. We might think the loss as one of “real” politics—such as that available in the context of a legislature, or at the national level. But even if we conclude that these are also fantastic—vocabularies of emancipation and oppression and opportunities for their expression—they are more useful vocabularies, more likely to emancipate, more likely to encourage habits of engagement, solidarity, responsibility, more open to surprise and reconfiguration.

Neutral intervention. The human rights vocabulary promises Western constituencies a politics-neutral and universalist mode of emancipatory intervention elsewhere in the world. This leads these constituencies to unwarranted innocence about the range of their other ongoing interventions and unwarranted faith in the neutral or universalist nature of a human rights presence. They intervene more often than they might otherwise. Their interventions are less effective than they would be if pursued in other vocabularies. Effective or not in their own terms, these interventions-without-responsibility-or-engagement have unfortunate consequences that are neither acknowledged nor open to contestation.

Emancipator as emancipation. Human rights offers itself as the measure of emancipation. This is its most striking—and misleading—promise. Human

rights narrates itself as a universal/eternal/human truth and as a pragmatic response to injustice—there was the holocaust and then there was the genocide convention, women everywhere were subject to discrimination and then there was CEDAW. This posture makes the human rights movement itself seem redemptive—as if doing something for human rights was, in and of itself, doing something against evil. It is not surprising that human rights professionals consequently confuse work on the movement for emancipatory work in society. But there are bad consequences when people of good will mistake work on the discipline for work on the problem.

Potential emancipators can be derailed—satisfied that building the human rights movement is its own reward. People inside the movement can mistake reform of their world for reform of the world. What seem like improvements in the field’s ability to respond to things outside itself may only be improvements in the field’s ability to respond to its own internal divisions and contradictions. Yet we routinely underestimate the extent to which the human rights movement develops in response to political conflict and discursive fashion among international elites, thereby overestimating the field’s pragmatic potential and obscuring the field’s internal dynamics and will to power.

Think of the right to development, born less in response to global poverty than in response to an internal political conflict within the elite about the legitimate balance of concerns on the institutional agenda and to an effort by some more marginal members of that elite to express their political interest in the only available language. The move from a world of “rights” to “remedies” and then to “basic needs” and on to “transnational enforcement” reflected less a changing set of problems in the world than a changing set of attitudes among international legal elites about the value of legal formalism. The result of such initiatives to reframe emancipatory objectives in human rights terms is more often growth for the field—more conferences, documents, legal analysis, opposition and response—than decrease in violence against women, poverty, mass slaughter and so forth. This has bad effects when it discourages political engagement or encourages reliance on human rights for results it cannot achieve.

G. The Legal Regime of “Human Rights,” Taken as a Whole, Does More To Produce and Excuse Violations than To Prevent and Remedy Them

Treating symptoms. Human rights remedies, even when successful, treat the symptoms rather than the illness, and this allows the illness not only to fester, but to seem like health itself. This is most likely where signing up for a norm—against discrimination—comes to substitute for ending the practice. But even where victims are recompensed or violations avoided, the distributions of power and wealth that produced the violation may well come to seem more legitimate as they seek other avenues of expression.

Humanitarian norms excuse too much. We are familiar with the idea that rules of warfare may do more to legitimate violence than to restrain it—as a result of vague standards, broad justifications, lax enforcement, or prohibitions that are clear but beside the point. The same can often be said about human rights. The vague and conflicting norms, their uncertain status, the broad justifications and excuses, the lack of enforcement, the attention to problems that are peripheral to a broadly conceived program of social justice—all this may, in some contexts, place the human rights movement in the uncomfortable position of legitimating more injustice than it eliminates. This is particularly likely where human rights discourse has been absorbed into the foreign policy processes of the great powers, indeed, of all powers.

Humanitarian norms justify too much. The human rights movement consistently underestimates the usefulness of the human rights vocabulary and machinery for people whose hearts are hard and whose political projects are repressive. The United States, The United Kingdom, Russia—but also Serbia and the Kosovar Albanians—have taken military action, intervened politically, and justified their governmental policies on the grounds of protecting human rights. Far from being a defense of the individual against the state, human rights has become a standard part of the justification for the external use of force by the state against other states and individuals. The porousness of the human rights vocabulary means that the interventions and exercises of state authority it legitimates are more likely to track political interests than its own emancipatory agenda.

Background norms do the real damage. At the same time, the human rights regime, like the law concerning war, is composed of more than those legal rules and institutions that explicitly concern human rights. The human rights movement acts as if the human rights legal regime were composed only of rights catalogs and institutions for their implementation. In fact, the law concerning torture, say, includes all the legal rules, principles, and institutions that bear on the incidence of torture. The vast majority of these rules—rules of sovereignty, institutional competence, agency, property and contract—facilitate or excuse the use of torture by police and governments.

H. The Human Rights Bureaucracy Is Itself Part of the Problem

Professionalizes the humanitarian impulse. The human rights movement attracts and demobilizes thousands of good-hearted people around the globe every year. It offers many thousands more the confidence that these matters are being professionally dealt with by those whom the movement has enlisted. Something similar has occurred within academic life—a human rights discipline has emerged between fields of public law and international law, promising students and teachers that work in the public interest has an institutional life, a professional routine and status. Professionalization has a number of possible costs. Absolute costs in lost personnel for other humanitarian possibilities. As the human rights profession raises its standards and

status to compete with disciplines of private law, it raises the bar for other pro-bono activities that have not been as successful in establishing themselves as disciplines, whose practices, knowledge and projects are less systematic, less analogous to practice in the private interest. Professionalization strengthens lawyers at the expense of priests, engineers, politicians, soothsayers and citizens who might otherwise play a more central role in emancipatory efforts. At the same time, professionalization separates human rights advocates from those they represent and those with whom they share a common emancipatory struggle. The division of labor among emancipatory specialists is not merely about efficient specialization. We need only think of the bureaucratization of human rights in places like East Timor that have come within the orbit of international governance—suddenly an elaborate presence pulling local elites away from their base, or consigning them to the status of local informants, attention turning like sunflowers to Geneva, New York, to the Center, to the Commission. To the work of resolutions and reports.

Downgrades the legal profession. Sometimes the concern here is for the legal profession itself. The human rights movement degrades the legal profession by encouraging a combination of overly formal reliance on textual articulations that are anything but clear or binding and sloppy humanitarian argument. This combination degrades the legal skills of those involved, while encouraging them to believe that their projects are more legitimate precisely because they are presented in (sloppy) legal terms. Others have argued that human rights offers the profession, particularly at its most elite sites, a fig leaf of public interest commitment to legitimate the profession’s contributions to global emiseration in its daily practice, in part by making all other legal fields, and particularly commercial legal fields, seem outside politics by contrast. For this, the sloppiness of human rights practice is itself useful—marking a line between the political redemptive profession and the apolitical workaday world of other legal professionals.

Encourages false solidarity. Of course there are many different types of people in the human rights movement and bureaucracy—different generations, different nationalities, different genders. To be a male human rights lawyer in Holland in your thirties is to live a different life altogether from that of a female human rights lawyer in Uruguay in her sixties. The human rights vocabulary encourages a false sense of the unity among these experiences and projects. As a vocabulary for progressive elite solidarity, human rights is particularly ham-handed, making it more difficult to articulate differences in the projects of male and female Palestinian human rights lawyers, Americans and Nigerians, etc.

Promotes bad faith. One thing these professionals do share, however, is a more or less bad faith relationship to their professional work. Every effort to use human rights for new purposes, to “cover” new problems, requires that they make arguments they know to be less persuasive than they claim. Arguments about their representative capacity—speaking for a consensus, a

victim, an international community—and about the decisiveness of the vocabularies they invoke. Professional bad faith accumulates the more the movement tries to torque its tools to correct for its shortcomings—to address background conditions that affect the incidence of abuse as if they were themselves violations, for example. We need only think of the earnest advocate re-describing torture or the death penalty or female genital mutilation as a problem of “public health” to feel the movement’s characteristic professional deformations at work.

Speaking law to politics is not the same thing as speaking truth to power. The human rights professional’s vocabulary encourages an overestimation of the distinction between its own idealism and the hard realpolitik motivations of those it purports to address. Professional human rights performances are, in this sense, exercises in de-solidarization. One intensifies the “legal” marks in one’s expression as if one thought this would persuade an actual other person who one imagines, paradoxically, to inhabit an altogether different “political” world. In this, the human rights intervention is always addressed to an imaginary third eye—the bystander who will solidarise with the (unstated) politics of the human rights speaker because it is expressed in an apolitical form. This may often work as a form of political recruitment—but it exacts a terrible cost on the habit of using more engaged and open ended political vocabularies. The result is professional narcissism guising itself as empathy and hoping to recruit others to solidarity with its bad faith.

Perils of “representation.” The professionalization of human rights creates a mechanism for people to think they are working “on behalf of “ less fortunate others, while externalizing the possible costs of their decisions and actions. The representational dimension of human rights work—speaking “for” others—puts the “victims” both on screen and off. The production of authentic victims, or victim authenticity, is an inherently voyeuristic or pornographic practice that, no matter how carefully or sensitively it is done, transforms the position of the “victim” in his or her society and produces a language of victimization for him or her to speak on the international stage. The injured-one-who-is-not-yet-a-victim, the “subaltern” if you like, can neither speak nor be spoken for, but recedes instead before the interpretive and representational practices of the movement. The remove between human rights professionals and the people they purport to represent can reinforce a global divide of wealth, mobility, information and access to audience. Human rights professionals consequently struggle, ultimately in vain, against a tide of bad faith, orientalism and self-serving sentimentalism.

Irresponsible intervention. The people who work within the human rights field have no incentive to take responsibility for the changes they bring about. Consequences are the result of an interaction between a context and an abstraction—“human rights.” At the same time, the simultaneously loose and sanctified nature of the vocabulary and the power of the movement itself opens an enormous terrain for discretionary action—intervening here and

not there, this way and not that, this time and not that time. There is no vocabulary for treating this discretion as the responsible act of a person, creating intense psychic costs for human rights professionals themselves, but also legitimating their acts of unaccountable discretion. Belief in the nobility of human rights places blame for whatever goes wrong elsewhere—on local politicians, evil individuals, social pathologies. This imposes ethical, political and aesthetic costs on people in the movement—but also on those elsewhere in the elite who must abide them, and in those who, as the terrain of engagement and the object of representation, become the mirror for this professional self regard.

I. The Human Rights Movement Strengthens Bad International Governance

Weakest link. Even within international law, the modes of possible governance are far broader than the patterns worn by human rights professionals. The human rights movement is the product of a particular moment in international legal history, which foregrounded rules rather than standards and institutional rather than cultural enforcement. If we compare modes of governance in other fields we find a variety of more successful models—a standards/culture based environmental regime, an economic law regime embedded in private law, and so forth. The attachment to rights as a measure of the authenticity, universality, and above all as the knowledge we have of social justice binds our professional feet, and places social justice issues under the governance of the least effective institutional forms available.

Clean hands. More generally, international governance errs when it imagines itself capable of governing, “intervening” if you will, without taking responsibility for the messy business of allocating stakes in society—when it intervenes only economically and not politically, only in public and not in private life, only “consensually” without acknowledging the politics of influence, only to freeze the situation and not to improve it, “neutrally” as between the parties, politically/economically but not culturally, and so forth. The human rights movement offers the well-intentioned intervener the illusion of affecting conditions both at home and abroad without being politically implicated in the distribution of stakes that results, by promising an available set of universal, extra-political legal rules and institutions with which to define, conduct and legitimate the intervention.

Fantasy government. International governance is often asked to do globally what we fantasize or expect national governments to do locally—allocate stakes, constitute a community, articulate differences and similarities, provide for the common good. The human rights movement, by strengthening the habit of understanding international governance in legal rather than political terms, weakens its ability to perform what we understand domestically to be these political functions. The conflation of the law with the good encourages an understanding of international governance—by those within and without its institutions—which is systematically blind to the bad con-

sequences of its own action. The difficulty the human rights movement has in thinking of itself in pragmatic rather than theological terms—in weighing and balancing the usefulness of its interventions in the terms like those included in this list—is characteristic of international governance as a whole. The presence of a human rights movement models this blindness as virtue and encourages it among other governance professionals by presenting itself as insurance of international law’s broader humanitarian character.

Governing the exception. Human rights shares with the rest of international law a tendency to treat only the tips of icebergs. Deference to the legal forms upon which human rights is built—the forms of sovereignty, territorial jurisdictional divisions, subsidiarity, consensual norms—makes it seem natural to isolate aspects of a problem that “cross borders” or “shock the conscience of mankind” for special handling at the international level—often entrenching the rest of the iceberg more firmly in the national political background. The movement’s routine polemical denunciations of sovereignty work more as attestations to its continuity than agents of its erosion, limiting the aspirations of good hearted people with international and global political commitments. The notion that law sits atop culture as well as politics demobilizes people who understand their political projects as “intervention” in a “foreign” “culture.” The human rights vocabulary, with its emphasis on the development of law itself, strengthens the tendency of international lawyers more broadly to concern themselves with constitutional questions about the structure of the legal regime itself rather than with questions of distribution in the broader society.

J. Human Rights Promotion Can Be Bad Politics in Particular Contexts

It may be that this is all one can say—promoting human rights can sometimes have bad consequences. All of the first nine types of criticism suggested that human rights suffered from one or another design defect—as if these defects would emerge, these costs would be incurred, regardless of context. Perhaps this is so. But so long as none of these criticisms have been proven in such a general way (and it is hard to see just how they could be), it may be that all we have is a list of possible down sides, open risks, bad results that have sometimes occurred, that might well occur. In some context, for example, it might turn out that pursuing emancipation as entitlement could reduce the capacity and propensity for collective action. Something like this seems to have happened in the United States in the last twenty years—the transformation of political questions into legal questions, and then into questions of legal “rights,” has made other forms of collective emancipatory politics less available. But it is hard to see that this is always and everywhere the destiny of human rights initiatives. We are familiar, even in the United States, with moments of collective emancipatory mobilisation achieved, in part, through the vocabulary of rights. If we come to the recent British Human Rights Act, it seems an open question whether it will

liberate emancipatory political energies frozen by the current legislative process and party structure, or will harness those political possibilities to the human rights claims of de-politicized individuals and judges. The point of an ongoing pragmatic evaluation of the human rights effort is precisely to develop a habit of making such assessments. But that human rights promotion can and has had bad consequences in some contexts does seem clear.

Strengthens repressive states and anti-progressive international initiatives. In some places, human rights implementation can make a repressive state more efficient. Human rights institutions and rhetoric can also be used in particular contexts to humanize repressive political initiatives and co-opt to their support sectors of civil society that might otherwise be opposed. Human rights can and has also been used to strengthen, defend, legitimate a variety of repressive initiatives, by both individuals and states. To legitimate war, defend the death penalty, the entitlements of majorities, religious repression, access to (or restriction of) abortion, and so forth. The recent embrace of human rights by the international financial institutions may serve both functions—strengthening states that will need to enforce harsh structural adjustment policies while co-opting local and international resistance to harsh economic policies, and lending a shroud of universal/rational inevitability to economic policies that are the product of far narrower political calculations and struggles. As deployed, the human rights movement may do a great deal to take distribution off the national and international development agendas, while excusing and legitimating regressive policies at all levels. These difficulties are particularly hard to overcome because the human rights movement remains tone-deaf to the specific political consequences of its activity in particular locations, on the mistaken assumption that a bit more human rights can never make things worse. This makes the human rights movement particularly subject to capture by other political actors and ideological projects. We need only think of the way the move to “responsibilities” signaled by the Universal Declaration on Human Responsibilities of 1998 was captured by neo-liberal efforts to promote privatization and weaken the emancipatory potentials of government.

Condemnation as legitimation. Finally, in many contexts, transforming a harm into a “human rights violation” may be a way of condoning or denying rather than naming and condemning it. A terrible set of events occurs in Bosnia. We could think of it as a sin and send the religious, as illness and send physicians, as politics and send the politicians, as war and send the military. Or we could think of it as a human rights violation and send the lawyers. Doing so can be a way of doing nothing, avoiding responsibility, simultaneously individualizing the harm and denying its specificity. Thinking of atrocity as a human rights violations captures neither the unthinkable or the banal in evil. Instead we find a strange combination of clinically antiseptic analysis, throwing the illusion of cognitive control over the unthinkable, and hysterical condemnation, asserting the advocate’s distance from the quotidian possibility of evil. Renaming Auschwitz “geno-

cide” to recognize its unspeakability, enshrining its status as “shocking the conscience of mankind” can also be a way of unthinking its everyday reality. In this sense, human rights, by criminalizing harm and condensing its origin to particular violators, can serve as denial, apology, legitimation, normalization, and routinization of the very harms it seeks to condemn.

III. Conclusion

So that is the list. As I said at the outset, some of these worries seem more plausible to me than others. I would worry about some of these costs more than others. The generation that built the human rights movement focused its attention on the ways in which evil people in evil societies could be identified and restrained. More acute now is how good people, well-intentioned people in good societies, can go wrong, can entrench, support, the very things they have learned to denounce. Answering this question requires a pragmatic reassessment of our most sacred humanitarian commitments, tactics and tools.

Whatever has been the history of human rights, we do not know its future. Perhaps these difficulties will be overcome, avoided. But we will not avoid them by avoiding their articulation, discussion, assessment—by treating the human rights movement as a frail child, in need of protection from critical assessment or pragmatic calculation. At this point these remain suspicions, intuitions, hunches, by people who have seen the human rights movement from one or another point of view. Each person involved in international human rights protection will have his or her own view about which, if any, of these doubts are plausible and worth pursuing. As a profession, it would be good to have a more open conversation about worries of this sort, and to think further about how they should affect our understanding of the human rights project as a whole.

[*] This Article was originally published in the European Human Rights Law Review, Issue 3, 2001, and is reprinted here for a wider readership.
[**] Henry Shattuck Professor of Law, Harvard Law School. Let me thank a number of friends who brainstormed with me about this list, often by offering withering criticism of the positions advanced here: Jim Bergeron, Yishai Blank, Hilary Charlesworth, Janet Halley, Vasuki Nesiah, Joel Ngugi, Pat Macklem, Susan Marks, Scott Newton, Philippe Sands, Hani Sayed, Natalia Schiffrin, Amr Shalakany, Thomas Skouteris, Henry Steiner, Chantal Thomas.

Copyright © 2002 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 15, Spring 2002