Thursday, March 24, 2016

Ruminations 62/ Democracy 34: Human Rights as the Ordering Element of Global Constitutionalism?

(Pix © Larry Catá Backer 2016)

I have been considering the work of a very few of the Special Procedures of the UN Human Rights Council (see, e.g., here, and here).
The special procedures of the Human Rights Council are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. The system of Special Procedures is a central element of the United Nations human rights machinery and covers all human rights: civil, cultural, economic, political, and social. As of 27 March 2015 there are 41 thematic and 14 country mandates. (Special Procedure of the Human Rights Council; 2014 Report of special procedures here).
Almost invariably, the work of these special procedures is viewed in isolation and only with respect to their substantive objectives--environment, investment, gender rights, etc. And operationally they are subject to some not undeserved criticism (see, e.g., here).  Yet, taken as a whole, these efforts suggest an emerging and quite powerful trajectory for the construction of a new ideological basis for societal, economic, and perhaps most importantly for legal and political ordering among and within states. This essay suggests the elements of a new constituting framework that may be suggested by the work, in the aggregate, of these special procedures. 

Taking a broad view of the aggregate and collective work of these special procedures, one begins to see emerging a quite interesting international constitutional regime. That regime is marked by the institution of a grounding set of constituting principles around which all human activity, and especially the organization of politics, is centered.

The first is that the individual is at the center of all institutions of social, political, economic and cultural regimes. But not specific individuals; instead a "human rights" individual is emerging as an aggregate construct against which the activities of specific individuals, of states and of non-governmental constitutions (including the institutions of religion) may be measured, assessed and constrained. That is, individual autonomy has been abstracted as an aggregate trait for purposes of constituting legal and governance orders around fundamental objectives--such as human rights. Legal and governance orders are constructed around the protection of the "human rights" individual--as an aggregate category. The difficulty of the current discourse turns on the still unsettled relationships between this fictive aggregated individual--the holder and object of rights--and any one particular individual who may cause or suffer human rights wrongs. Thus human rights are not centered on the individual person, it is centered on the fictive aggregated person. That itself produces some significant consequences for political theory in terms of the meaning and application of autonomy and rights and the responsibility for them within a governance order (states, enterprises, religion, etc.). Not all of these implications reinforce current thinking about individual political autonomy in the West.

The second is that legal, governance, societal, cultural and political regimes are constrained against an emerging constituting architecture in which human rights is itself centered. Thus, for example, there is no autonomous law of sustainability or of the environment, there is a law of environmental management that is specifically tied to and managed against and understood as an aspect of the human rights of "human rights" individuals affected by environmental management (exploitation, celebration, preservation, etc.). As a consequence, the apex constraint on any sort of societal expression or institutionalization of human activity might be increasingly understood as derived from or constrained by an emerging and increasingly sophisticated governance architecture built around the first principle of human organization--the protection of human rights. The current difficulty centers on the development of a coherent political ideology of governance the first principle of which is human rights. The potential templates for deriving this ideology, constitutional documents such as the German Basic Law or the Chinese constitutions, are limited by the constraints of their context.

The third is that, human rights becomes the ordering element for constituting political, economic, societal and religious orders. Thus, within this constituting framework, the highest objective of all human institutions is the protection of the human rights of this "human rights" individual (and not, at the cost of repetition) an single actual autonomous person (who has been abstracted into this fictive aggregate individual). This has as a critical consequences that the language of politics, of institutions, changes in some significant ways. And the lens through which all other constitutional concepts are understood, is also changed. Thus, for example, consider the core principle of democracy (or participation and concept in the societal, enterprise and religious spheres).

The fourth is that, within this emerging way of ordering institutions, the traditional approaches to legitimacy and normative hierarchies might be modified before the transcendent authority of the ordering language of human rights. While religious, political, economic or societal systems may be constructed under principles that autonomous human individuals serve the community for some specific ends, every community must serve, and the methods of their governance must be constrained by the overarching principle that the principle objective of any organized community (state, religion, enterprise, etc.) must be to preserve and further the human rights of the "human rights" individual. The construction of human rights as a supra-constitutional first principle would transform the hierarchy of institutional ordering by centering human rights as the touchstone not just of the substantive or normative order of systems, but of their institutional construction and procedural elements as well. One gets a sense of this from the usually unstated ideological presumptions at the base of much of the critique in special procedures reports.

The fifth is that as the principles of human rights are centered within political and governance discourse, the understanding of human rights itself must change in relation to its object. If everything is human rights, then what is human rights? That is, if human rights touches everything, then human rights might become meaning-less. Thus there is a danger to the current project of making human rights the ordering center of human organization, of its law and institutional practices, and of the constraints of individual and institutional behaviors. Human rights might well lose its coherence as a normative principle if it must be stretched to serve as the constituting basis for human organization. Or more likely, like its predecessor organizing principle--democracy--it may fracture into a host of sub normative principles grounded (again) in the customs, traditions and political ambitions of states and other governance actors. And yet, understood broadly, and as a concept that suggests institutional obligation, it may well be a more robust foundation for constitutional ordering than democracy or its related principles (which would be subsumed under the more general human rights normative order).

At the international level, at least, one begins to see a regime that starts with human rights in the service of an aggregate fictive individual, against which the legitimacy of human organization will be measured and through the standards of which their practices and governance systems will be constrained. This suggests the first glimmerings of the institutional and regulatory character the seeds of which were planted with the Universal Declaration of Human Rights. Perhaps without even understanding what they were doing, and for what might have been purely short term and self interested motives, states whose own core constitutional ideologies might have been based on other principles and objectives have moved global discourse, and increasingly at least formally constructed global consensus, toward a generative principle of legitimacy in institutional systems (and their practices) that must tested against conformity to global principles of human rights--but of human rights applied against the aggregated construct of the fictive "human rights" individual, and against people, institutions, religions, and societal orders or every sort. This constituting hierarchy of organization, assuming it continues its current trajectory of development, will have profound effects on everything--from the constitutional jurisprudence of states, to the readings of regional human rights conventions, to the organization of economic and religious enterprises.

And, indeed, the constituting language of human rights has increasingly been deployed in the competitive discourse of politics, economics and religion. One sees it as the base of the recent efforts to transform the legal regulation of economic enterprises--from one centered on the protection of aggregations of capital, to one centered on the protection of the human rights of individuals (discussed eg here). One sees it as well in the transformation of discourses on religion (see, e.g. here). But most importantly, it suggests that it may be possible to base global constitutional standards of public and private institutions around the normative construction of human rights, and that these might both transform the way in which organizations are understood and operated, and the way in which they might relate to each other. Constitutionalism will not change but its normative ordering may (eg here). For a human rights basis of organizational legitimacy has within it the possibility of erasing other differences whose normative constraints have impeded coherent development of transnational management of behavior--from the re-ordering and transformation of public and private spheres (eg here), to the notion of representation and democratic rights (eg here), to the relationship between local and transnational organizations (eg here). On the wake of this trajectory of change, if successful, for contemporary organization will emerge unchanged.

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