One of the most forgettable parts of the development of the UN Guiding Principles for Business and Human Rights were its provisions on balancing prevent-mitigation-and remedy strategies when no matter what choice is made, there will be breaches of human rights. At the time (2006-2011) the idea of significant conflicts in that respect, with the possibility of significant breaches of human rights (and thereafter of sustainability) was more theoretical than actual.
And yet the UNGP did provide a mechanism for enterprises (states were, to be cynically blunt) a lost cause given the fundamental principle of state supremacy that states controlled their own human rights domestic legal orders and their manifestation in action. The effort to help those with influence recall these mechanisms and to apply them in the context of the second phase of the Russian Invasion of Ukraine (from 2022) has had some, though limited, success (The Russian Invasion of Ukraine and Business: Responsibility, Complicity and the Responsibility to Respect Human Rights Under the UN Guiding Principles for Business and Human Rights). The framework was simple: in cases where no matter what decision was made human rights breaches would result, the enterprise ought to choose to avoid the most immediate and tangible, mitigate where it can, and with respect to the rest, provide effective remedies. The framework is intertwined with issues of complicity (Texts of Cour de Cassation Decision Remanding, in Part, the Issue of Complicity in Crimes Against Humanity Leveled Against the Cement Manufacturer Lafrage for Activities in Syria); and increasingly the broader notion of facilitation (Human Rights Goes to War in Myanmar: Complicity, Facilitation of Gross Violations, and the Norway Pension Fund Global's Exclusion of Korea Gas Corporation (KOGAS) and GAIL (India) Ltd). In all these cases the state was the culpable party (or at least those in de facto control of the apparatus of state).
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| Pix Credit Tannhäuser Act 2 |
It is with this in mind that the important essays now appears in Telos 203 can be usefully approached. These essays serve as the reconstitution of memory, and the necessary performance, for this generation of the totentanz of contradiction--at the same time desperate for a simple, straightforward and state based coherent system of rights (which is labelled human though that is now far too narrow a concept) and convinced that states are the problem the solution to which is beyond their nature. The essays offer the usual hoped for state of Eden--somewhere in the bowls of international legality, commonality, morality and the like. But they are all the more refreshing for bringing in the first of the perspectives emerging in what later generations may identify as the "post-global." But that produces irony in contradiction--the fundamental postulates of the international system make the current state of affairs inevitable.In a way, the essays, all brilliant and thoughtful remind one of the offerings of songs in Tannhäuser and the Singers' Contest at Wartburg Castle (Act 2). Except that these offerings of abstracted love remain disembodied, in want of the gloriously disruptive entry about physical love in the Venusberg proffered by Tannhäuser to his (almost) eternal damnation--the essence of phenomenology. This is the land of Oberon and Tatania--the king and queen of the fairies. Indeed, one might be excused for expressing a longing for that subterranean world, if only as a means of pulling away from the Tannhäserian Wartberg--the grand architecture of discursive approaches to human rights now over 70 years in the making, and perhaps sharing an evening in a different discursive realm. Indeed it may be time for us to finish playing Nick Bottom to a bewitched Human Rights Tatania.
It is, indeed, perhaps, time for our human rights Tatania to awaken. For starters--eliminate entirely the notion of state sovereign immunity with respect to claims for remedies arising from human rights and sustainability breaches. States can then (and they will in short order) sort out how their domestic legal order partitions liability for remedial obligations to which it is subject. That, at least, will get things moving in a very different direction.
David Pan's marvelous introduction to the issue follows.
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Telos 203 (Summer 2023): The Manifold Foundations of Human Rights
Telos 203 (Summer 2023): The Manifold Foundations of Human Rights is now available for purchase in our store. Individual subscriptions to Telos are also available in both print and online formats.
One of the most disappointing human rights debacles in the last few years was the withdrawal of U.S. forces from Afghanistan. For those who still take an interest,[1] the human rights situation there has become horrendous, with Human Rights Watch documenting the denial of schooling and employment to women, extrajudicial killings, and torture.[2] Moreover, in a severe rebuttal to those who supported the withdrawal, Taliban rule has created the conditions for a renewal of terrorist groups that can now develop and train in Afghanistan with impunity.[3] There is also a good case to be made that the U.S. withdrawal there emboldened Putin to invade Ukraine, calculating that the United States and its allies no longer have the stomach for protracted conflicts in order to prevent human rights abuses. It may be that we have traded a low-grade conflict in Afghanistan for a high-intensity one in Ukraine.[4] The lesson here is that the struggle for human rights, while beginning as a moral problem about our common responsibilities, can only be taken seriously when we consider its political ramifications. What do we owe to our fellow humans, and what sacrifices should we make in order to fulfill those responsibilities?
Responding to this question, the essays in this special issue on human rights originate from a conference held at the University of Notre Dame in November 2021, organized by Paolo Carozza and sponsored by the Kellogg Institute for International Studies, and I wish to thank him for his work in bringing together the speakers and facilitating their contributions to this issue. The crucial problem running through all the essays is the difficulty of establishing a unified foundation for human rights given the variety of cultural, legal, moral, and political perspectives that we find in the world regarding the question of how we relate to each other as humans. Three key themes dominate the discussions: the difficulty of balancing the commitment to the universality of human rights with a respect for cultural diversity, the centrality of individual conscience rather than legal determinations in the development of the habits and conventions of human rights, and the inevitably political nature of the human rights project.
Mary Ann Glendon describes the impact and continuing influence of the Report of the Commission on Unalienable Rights.[5] Much of this impact has been outside the United States, where a series of conferences and discussions have affirmed the Report‘s conclusions and discussed their significance. A key aspect of this discussion has been the Report‘s proposals for balancing the universality of human rights with a respect for the diversity of the world’s cultural traditions. While the Report insists on the universality and integrity of the principles laid out in the Universal Declaration of Human Rights, it recognizes that different traditions will have their own ways of justifying those principles. In addition, Glendon cites support for the idea that a respect for human rights cannot be imposed from above by international bodies but must be affirmed and implemented locally through the sovereign, democratic decisions of existing political orders. Turning to the U.S. tradition, Glendon reaffirms the Report‘s characterization of the U.S. history of human rights as one of constant and continuing struggle up to the present day. The discussion of the U.S. example is meant to encourage all peoples to “draw upon their own heritages to reinvigorate dedication to the basic rights that belong to everyone, everywhere.” To that end, Glendon ends with the hope that U.S. foreign policy will remain engaged with human rights issues in cooperation with other countries around the world.
Martha Minow argues that the notion of dignity is key to the human rights project because it expresses an aspiration rather than a foundation. Because definitions of dignity differ, its value lies in its ability to reflect the way in which the human rights project depends on cultural variations in its implementation, even though the basic goals remain the same. Though dignity was once only connected with people of a certain class, it is now used to describe the dignity of all humans, and the concept serves today to appeal to our common sense of justice and equality across all manner of cultural, social, and political divides. She points to the extremism exhibited in social media and the dangers of artificial intelligence as the major technological threats to human dignity today. As an aspiration, dignity provides for Minow the “lodestar” that can orient our political decisions in situations that threaten democratic norms.
Nigel Biggar argues that human rights should not be understood primarily as a set of legal rights but as part of a natural morality that is oriented around human flourishing as its general goal. Support for human rights must occur within this moral framework before it can have meaning as a set of legal rights. In fact, a strict adherence to legal rights can sometimes be deficient from a human rights perspective if such strictness overlooks the concrete moral situation that would provide the framework for legal determinations. Biggar points in particular to situations of war or domestic instability where the rule of law is not secure and therefore a strict adherence to legality would be misplaced. Finally, Biggar rejects the idea that human rights are linked to democracy. Instead, he contends that the rule of law, even in a non-democracy, can be a sufficient guarantor of human rights.
Bemoaning the fragmentation of the human rights project due to a proliferation of rights that have diverted attention from the basic human rights that are in most need of protection, Aaron Rhodes argues that we must affirm “natural law as the substance of universality.” He traces the development of natural law within the Hebrew, Greek, Stoic, Christian, and Enlightenment traditions in order to demonstrate that natural law is grounded in an innate human capacity for reason, “which offers the possibility of harmony and tolerance in the exercise of liberty.” He insists, however, that this human capacity only exists on an individual moral level and cannot be the basis for global, universalizing institutions. In practice, these institutions have created an easily manipulable bureaucratic system that has drawn our focus away from the core rights of freedom from murder, torture, slavery, and genocide. Rhodes argues for a privileging of civil and political rights over social and cultural ones as well as the need for nation-states to be the key actors in promoting human rights through their alliances, sanctions, and support of civil society movements.
Sherman A. Jackson argues that the Report, in privileging the U.S. tradition of human rights and focusing on a natural rights approach, created the unfortunate impression that other conceptions of human rights might be less authoritative. In order to work against this impression, Jackson, in affirming the importance of the human rights project, details the ways in which human rights have been an integral part of Islamic thought, even if these aspects of Islam have not always been properly appreciated. He refers in particular to the distinction between rights of God and rights of humans developed 750 years ago by the Egyptian jurist Shihāb al-Dīn al-Qarāfī. The rights of God include freedom from arbitrary murder or usury and are similar to the idea of unalienable rights because they are granted by God and cannot be forfeited by humans. In laying out this example of an Islamic tradition of human rights, Jackson justifies an approach to human rights that depends on the ability of each culture to arrive at human rights using the resources of its own traditions. In so doing, he praises the way in which the Report differentiates between non-derogable rights such as prohibitions on genocide and torture and other rights where there may be more variation in their protection and uniformity.
Timothy Samuel Shah and C. Holland Taylor argue that the human rights project cannot be criticized for being a Western-oriented one. They point out that the impetus for including human rights as a key issue for the United Nations came from smaller and weaker nations rather than the Western colonial powers. Moreover, the basic principles of human rights do not derive solely from a Western tradition but are also grounded in many other traditions. Shah and Taylor describe how the Indonesian Islamic tradition has long had a notion of inalienable rights that has been the inspiration for the Indonesian constitution and its current successful democracy, which maintains strong protections for religious minorities within the world’s largest Muslim-majority nation. Finally, because human rights are based in habits and attitudes, Shah and Taylor emphasize the key role for human rights of religious institutions such as Nahdlatul Ulama, the world’s largest Muslim organization, which has been active in countering Islamic fundamentalism through its interpretations of Islamic teachings.
In my essay, I argue that the defense of human rights requires support for nation-state sovereignty as the basis for international order. While international law can aid in setting norms and expectations, it cannot replace sovereignty as the basis of actions that would counter human rights abuses. For this reason, the Universal Declaration of Human Rights is just as effective as international treaties in the sense that they both function to provide a set of aspirations and expectations for behavior based on the principle of universal human dignity. The practical application of this principle will depend less on the judgments of international law than on the actions of sovereign nations that are supported by popular will. Consequently, Russia and China pose the most serious threat to the human rights project today, not simply because of their authoritarian rule but because they seek to undermine the legitimacy of a Westphalian order built upon nation-state sovereignty. The problem here is that nationalism is not always limited to the establishment of the popular will within a nation-state but can turn into a virulent nationalism that seeks to subjugate other peoples. The discourse of human rights can help prevent this kind of development by establishing the norms and expectations that would undermine the legitimacy of such imperialist projects.
In an essay that also reflects the human rights focus on individual conscience, Aryeh Botwinick describes how monotheism is based on a contradiction between the oneness of God and the consequent inability to make any statements about God. Any statement about God would pull God back into the entire network of subjects and predicates, causes and effects, that undermines the idea of God as one. Because God’s infinity cannot be grasped in any more than a metaphorical way, Botwinick argues that “God being nowhere in the world is logically coextensive with His being everywhere in the world, or with His being the world.” Consequently, our vertical relationship to God has to be thought of in terms of a horizontal relation to other humans. The political consequence is that the process of representation by which the sovereign relates to the people for Thomas Hobbes is not a vertical relation in which the people simply obey the sovereign. Rather, Botwinick argues that the process of representation must be interpreted horizontally as a form of participation of the people. As an example, Botwinick suggests that a shift from representational to participatory democracy will be an important way to respond to an increasing scarcity of resources brought on by climate change.
In his survey of the development of Chinese communism, Alexander Lukin argues that China’s communist government can only be properly understood through its ideological commitments. Lukin develops a typology of different forms of communism—left-wing, right-wing, and bureaucratic—to help understand the historical development in China since 1949. Left-wing communism, such as that pursued by Pol Pot in Cambodia or Mao in China, seeks to immediately eliminate private property. But because such a measure runs into considerable opposition and becomes economically catastrophic, the implementation of the left-wing agenda depends on the direct control of a leader, who creates a mass movement through ideological fervor and forcefully re-educates or eradicates those who oppose this agenda. Right-wing communism, for example in Lenin’s New Economic Policy in the Soviet Union of the 1920s, by contrast does not seek to immediately abolish private property and instead promotes economic growth through market mechanisms. Rather than depending on a single leader, this form of communism establishes a professional bureaucracy and provides more vocational than ideological education to the people. Deng Xiaoping was the major proponent of right-wing communism in China, which sought to accommodate itself, at least temporarily, to capitalist countries and methods. Finally, bureaucratic communism, while not completely rejecting market methods, depends more on administrative planning and control, as well as an orientation toward building a cult of the socialist state in the education system. Lukin argues that Chinese communism under Xi Jinping has entered a phase that conforms to this bureaucratic model. Echoing Nigel Biggar’s questioning of the importance of democracy for human rights, Lukin contends that it is possible but not certain whether this authoritarian model will be successful over the long term.
Jay Gupta contends that recent worries about the dangerous consequences of artificial intelligence for humanity do not really respond to serious new threats. Instead, they are the newest expression of long-standing concerns about our submission to an instrumental rationality of economic and technocratic efficiency without a proper examination of substantive goals.
Spiros Makris reviews a recent collection of essays on the question political theology in the field of international relations.
We conclude with a tribute to the life and work of Fred Siegel, who was a long-time collaborator with Telos until his recent passing.
David Pan is Professor of European Languages and Studies at the University of California, Irvine, and has previously held positions at Washington University in St. Louis, Stanford University, Penn State University, and McKinsey and Company. He is the author of Primitive Renaissance: Rethinking German Expressionism (2001) and Sacrifice in the Modern World: On the Particularity and Generality of Nazi Myth (2012). He has also published on J. G. Herder, Heinrich von Kleist, Friedrich Nietzsche, Franz Kafka, Walter Benjamin, Ernst Jünger, Bertolt Brecht, Carl Schmitt, and Theodor Adorno. He is the Editor of Telos.
1. Unfortunately, the Biden administration’s attempts to hide the way that it mismanaged the withdrawal have had the side effect of keeping the topic of Afghanistan out of the news cycle. Alexander Ward and Matt Berg, “The Afghanistan Report State Didn’t Want You to Read,” Politico, July 5, 2023, https://www.politico.com/newsletters/national-security-daily/2023/07/05/the-afghanistan-report-state-didnt-want-you-to-read-00104687.
2. “There is no country in the world in which the basic human rights of women and girls are more restricted than Afghanistan. In 2023, Afghanistan remains the only country where women and girls do not have access to secondary and higher education.” “Afghanistan: Support Afghan Women Still in the Country,” Human Rights Watch, June 20, 2023, https://www.hrw.org/news/2023/06/20/afghanistan-support-afghan-women-still-country; “Afghanistan: Taliban Execute, ‘Disappear’ Alleged Militants: Over 100 Bodies Found Dumped in Canal in East,” Human Rights Watch, July 7, 2022, https://www.hrw.org/news/2022/07/07/afghanistan-taliban-execute-disappear-alleged-militants; ”Afghanistan: Women Protesters Detail Taliban Abuse: Ex-Detainees Describe Torture, Mistreatment of Their Families,” Human Rights Watch, October 20, 2022, https://www.hrw.org/news/2022/10/20/afghanistan-women-protesters-detail-taliban-abuse.
3. Annie Pforzheimer and Shabnam Nasimi, “Thanks to the Taliban, Afghanistan Is Once Again a Hotbed of Terrorism,” The Hill, July 6, 2023, https://thehill.com/opinion/national-security/4081833-thanks-to-the-taliban-afghanistan-is-once-again-a-hotbed-of-terrorism/.
4. Sinéad Baker, “Former Army Ranger Who Fought in Ukraine Says Conflict There Is Far Worse than Fighting in Afghanistan and Iraq,” Business Insider, July 4, 2023, https://www.businessinsider.com/former-army-ranger-ukraine-fighting-far-worse-than-afghanistan-iraq-2023-7.
5. Commission on Unalienable Rights, Report of the Commission on Unalienable Rights, August 26, 2020 (Washington, DC: U.S. Department of State, 2020), https://www.state.gov/wp-content/uploads/2020/08/Report-of-the-Commission-on-Unalienable-Rights.pdf; hereinafter abbreviated as Report.
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