Tuesday, December 11, 2018

Ruminations 82: On the 70th Anniversary of the Universal Declaration of Human Rights

Monday, 10 December, is celebrated as Human Rights Day. This year marks the 70th anniversary of the Universal Declaration of Human Rights.  International Organizations, and those individuals and groups who value that document, has sought to make the most of the event.  

This post celebrates the anniversary in a slightly different way. It uses to occasion of the anniversary to consider very briefly three different aspects of the human rights project that might well be now worth a moment of thought. The first of these is the danger of a relentless focus on the rights aspects of the Universal Declaration.  The second is the mania for victimization. The third is the need to re-focus on the obligations of states, other collective actors, and individuals.

I can think of no better way to celebrate the achievement of survival not by eulogizing its past, nor even by contributing to its (potent) mythology, but by considering the ripples it has produced in the organization of relations between individuals and power holders.


1. Focusing on the rights aspects of the Human Rights Declaration. It is not without reason that one centers rights in any consideration of the Universal Declaration.  Indeed, one of the great innovations of the Universal Declaration was precisely to focus on the individual, not as an object of rights, but as its source. Rights could not be vested in an individual by any power holder (states, religions, societal communities, and the like) because the rights were inherent in the person. Detaching rights in that way could radically alter the way in which one approached both the conception and the implementation of systems for the protection of those rights.  But more importantly, it acknowledged that the individual herself had the inherent authority to protect those rights herself.  An individual was not dependent on the good graces of a power holder for the elaboration and protection of her rights—she could assert them herself. That insight brought with it the possibility of an even more radically transformative possibility, that the individual need not be dependent on the state for the elaboration or vindication of her rights.  She could do that herself. The individual, in effect, became the central holder of power over her own rights.

The consequences have proven to be profound.  Over the course of the last 70 years, human rights have become detached from the state.  It has moved to first public international institutions which have elaborated more and more law and norms of human rights.  It has shifted the views of many about the hierarchy of law (and norms), displacing the state at its apex, with the international community. That has caused substantial reaction by states, to be sure.  Yet that radical possibility, inherent in the Universal Declaration is now quite respectably assumed even as the state retains the central role in administering these international instruments and norms.  Yet the full potential of this insight has not yet been realized. In the wings is the notion that those rights inherent in the individual and recognized in the Universal Declaration need not be dependent on politics, and political bodies, for their elaboration or vindication.  As rights are inherent in the individual, they might also precede politics.  Two consequences may follow.  The first is that rights may be elaborated and protected by any community; that is that individuals may band together in elaboration or defense of their rights.  The second is that rights themselves may be detached from any community. At this most radical level, rights no longer require a social context. And the relationship between the individual and communities, and between communities and political orders, becomes upended.  

2.  The mania for victimization. There has been a growing solicitude for the suffering of rights holders whose interests have been adversely affected by others—individuals, enterprises, social or religious communities, or the state. That solicitude reflects a general social trend in many developed states, that emphasizes the suffering causes by deprivations of the protections of rights at the hands of others. That trend has given rise to a curious recasting of the rights holder—who are all of us—into the victim, who represent only those rights holders who have suffered loss (and sometimes who have alleged such loss), at the hands of others.  Perhaps this is designed to refocus the business of the protection of rights more towards those who suffer loss.  Perhaps it is a means toward a political project of reform of the policy emphasis or on the modalities of approaching issues of remediation or prevention of such loss, in law and policy.  The result is the recasting of law and legal instruments, on the one hand, and the re-focus of policy, on the other, away from the rights holder to the victim. Human rights has shifted its focus from elaboration to accountability, and from rights to remediation.

Whatever the value of that re-focus, it s consequences might have some radically transformative effects. First, it opens the possibility of creating a new status based legal category—the victim. To that extent, the connection between the individual and her rights become detached—that is the solicitude for victims evidenced in this manner effectively strips the Universal Declaration of its core achievement, individual, not as an object of rights, but as its source. It does so by shifting the understanding f rights from something inherent in the individual to something that arises only upon the occurrence of a triggering event.  In effect, it centers rights discourse on acts of violation, which acts create the “victim;” in this way rights become attached to an individual only as and when it is understood that they might be violated.  

Second, the trend toward the victimization of human rights produces the possibility of a further trend—the trend toward the detachment of agency from the individual rights holder, to those institutions with authority to declare the conditions for the violations of rights, and who can reserve to themselves the authority to vindicate those rights on behalf of the individual. Those in authority could include other individuals, states, international organizations, or civil society.  They need not ask permission. That deprivation of agency and subsequent shift of authority to act can at its limit itself constitute a violation of a core human right—that of human dignity and autonomy. Third, beyond detaching rights and depriving agency, the trend toward victimization appear to move the social and legal order back to status-based forms. 

Third, while the focus on remedy is laudable and necessary, it runs the quite significant risk of changing the character of the right itself.   At first blush this may strike the reader as odd.  Many of us have been taught that remedy is inherent in rights; that right without remedy is an illusion, and that the tie between the two is unbreakable.  At a very general level of abstraction, of course, all of this is true.  But consider what happens when rights are transformed into injury to victims, and remedy becomes the principal expression of rights.  It is possible, within this relational construct to see the notion of rights reduced to expression, and that expression itself constructed from out of the modalities of administration.  It is at this point that the consequences may well become, well, consequential. First, rights understood as expressions directed by one body against another loses its endogenous character and becomes exogenous.  That is, that the understanding of rights shifts from the individual to the expression. Second, the authority over such rights shifts from the rights holder to those who can define, and then administer such expressions of “triggering events.” Again, rights are framed to recognize victims and potential victims,  and they do so from an exterior position. It is a small thing, really, but one with great effect in a world where the agency of the individual tends in any case to be understood as a residuary principle.   

3. A Re-Focus on the obligations, of states, other collectives and even individuals may be necessary.  I have spoken of the core value of the Universal Declaration as sign post for the important development of the concept of rights in individuals. And I have suggested how some trends, especially that of solicitude for victims, can pose a threat to that development. I have suggested the primal importance of agency as against other actors as being at the core of the principles in the Universal Declaration.  Yet the Universal Declaration also includes limiting or at least balancing principles that have been overlooked as well. These limiting and balancing principles arise from the notion inherent in the Universal Declaration that rights are relational; they are relational in the sense of acknowledging a connection between those in whom rights reside, those whose actions may interfere with the enjoyment of those rights, and those (including the rights holder) with the obligation to prevent or remedy the consequences of such interference. To that end, it might be better to speak not of the centering of remedy in relation to human rights, but rather to speak to centering of the obligations of states, other collective and individual actors with respect to human rights.

That, lamentably, remains among the weakest of the achievements of 70 years of human right stalk. The reason of course is that it has remained to some large extent talk.  Yes, of course, high profile instances, when they align with the strategic interests of states, or of markets, tend to generate a lot of discussion and some action. But those are exceptional and speak more to the ordering interest of states and markets than to the inherent obligation that ought not to be detached from rights. Human rights, in consequence, usually serves as a fetish—words that are uttered in furtherance of some agenda or other.  They do not speak to a specific thing, but increasingly to an amorphous amalgam of desires and objectives conveniently clothed not just as human rights, but increasingly as human rights law. The entirety of human relations can be seen through the prism of a human rights lens.  The danger is that, at its limit, human rights loses its character as rights and becomes a set of ordering principles from out of which rights and obligations can be framed. It is this tendency, of course, that generates the drive to center remedy.  Yet perhaps it might be as useful to center obligation as well. But that is a hard task, and one that has eluded resolution almost from the moment the Universal Declaration was adopted. And principally, the hard task of obliging states to specify what each is willing to concede as human rights, the relation of those rights to remedy, and the mandatory obligations of power holders with respect to those rights. This, then, might be a useful task for the next 70 years of the Universal Declaration.

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