Can Human Rights Survive?
This work links together a collection of essays Gearty believes will serve as a manifesto for human rights activists and thinkers. He argues that the concept of human rights radicalizes, forcing people to recognize their similarities, and transform social structures to create equality of rights and opportunities. However, Gearty explains, this potential role for human rights has stagnated. In the modern world, where religion and philosophy have declined in popularity people find the idea of human rights lacking a value structure that motivates them to act.
Moreover, particularly since 9/11, Gearty worries that the concept of human rights has been co-opted by established legal systems. When legal regimes position human rights as an already embedded check on their conduct and a guarantee of fundamental freedoms, how can the concept truly realize its potential to challenge and alter existing norms?
In this manner, Gearty seeks to ask not so much whether human rights as a concept can survive but whether human rights as a social campaign can be reinvigorated and serve as a modern day anti-establishment tool that will generate new political realities--realities that bridge and reconstruct existing geographical, social and political distinctions to create a "solidarity of reciprocated esteem" (p. 141). Unfortunately for both Gearty and the reader, his effort suffers from an imprecise philosophical and historical foundation.
First, and foremost, one might note that the term "human rights" is not concretely defined in Gearty's work. This linguistic ambiguity is a consequence of the author's attempt to make his vision of human rights resound for everyone. As a result, the reader is left wondering what Gearty believes the human rights campaigner is working towards and how his concept of human rights could inspire a generation of anti-religion anti-philosophical cynics.
Initially, Gearty describes human rights as a Kantian ideal. It is based on a respect for the "dignity" of human beings (p. 30) that calls on us to provide others the same freedom that we would want for ourselves. When this vision of human rights is embraced, it generates a "moral magic" (p. 19), which forces us to aid those who are discriminated against and deprived of liberty, through "acts of compassion" (p. 140). This notion of human rights as being an internal, almost spiritual motivator leads Gearty to decry "legalism." The formalistic enforcement of human rights through the creation of legal structures and judicial oversight turns what should be a personal ethic, directing us to work for the betterment of others, into a conservative tool of elites (p. 69-70). When human rights is implemented through existing social structures, those who might affect change by convincing the polity to recognize a more encompassing notion of human rights acquiesce in inaction, seeing the enforcement of rights as the responsibility of others.
However, given this introduction, Gearty's solution is perplexing. To prevent human rights from becoming captured by conformist legal structures, he calls on human rights activists to turn their agenda towards achieving specific political milestones. Among other goals, the human rights campaigner should promote a Roe v. Wade-esque outlook on sexuality and abortion, a right to die that includes enforceable requests for physician-assisted suicide, and specific limits on genetic modifications (p. 146-49). Even if these goals are achieved through democratic political processes and thereby engage the larger electorate in questions about the nature of humanity and individual "dignity," once these schemes are in place, one wonders how this possibly disentangles human rights from the legal system. How does the inspiring "moral magic," that he posits we will find through human rights, manifest itself by continuing the existing pattern of lobbying and institutionalization?
Even if one were to overlook the contradiction inherent in these objectives of human rights, Gearty's initial attempt to propose a new philosophical foundation for human rights lacks rigor. "Compassion," which Gearty thrusts before the reader as the obvious key to breaking down the distinctions we now create between humankind, has been the focus of important scholarly critiques that challenge his underlying premise and which Gearty fails to even consider. Most notably, in On Revolution, Hannah Arendt examines compassion specifically because of its ability to open "the heart of the sufferer to the sufferings of others, whereby it established and confirmed the 'natural' bond between men." (1) However, she quickly dismisses the political potential of compassion because she recognizes that it is too personal and intense to have meaningful social consequences. When we feel compassion for another, she argues, it is because we sense ourselves in their position; it is a direct one-to-one relationship. If we try to have compassion towards a "whole class of people" the emotion loses its meaning as it is about individual solidarity. (2) Drawing on cultural images to prove the resonance of her analysis, Arendt points out that, for some, what separated Christ from mortals and made people accept him as God, was his ability to feel compassion for all of humanity, not just those with whom he individually connected. (3) In the terrestrial political realm, the best we can hope for is "pity." Towards other groups and societies, man's psyche only allows him to feel an empathy that he holds separate from his sense of self, as he cannot allow himself to become intertwined with indistinct masses of needy peopled. (4) Thus, according to at least one analysis, Gearty's goal of shared humanity through compassion is specifically undermined by the nature of the emotion itself.
Lest one think that Arendt's view is no longer applicable in a modern, globalized world, more recent critiques of compassion have not been any kinder to Gearty's vision. In a world where the media constantly brings images of those suffering and deserving of our compassion, Luc Boltanski, in Distant Suffering, (5) says that it is not personal connectedness we can be motivated by, but "spectacle." The fact that we see these others in our day-today life, but are entirely removed from their actual experience, creates a sense of responsibility to act. However, because this "solidarity" is only generated through disembodied images, we will not expend resources to assist them, but instead maintain our sense of "integrity" by engaging in political speech. (6) Boltanski points to an important stumbling block for Gearty: How do we truly feel interconnected with those we do not know and whom our society has constantly positioned as the proverbial other to be held at arms length?
For a moment, it appears Gearty is going to respond to these concerns. However, when he starts to "fill out our idea of what compassion entails" (p. 48), he falters, saying simply that those who feel it must be willing to give voice to the needs of the marginalized and embrace "[the] imaginative understanding of what compassion can be made" (p. 49). Gearty might have a new explanation for how the personal emotion of compassion can be translated into action, but the limited space he allows himself to explore this idea which is so central to his thesis and agenda provides little basis to defend his theory as having particular merit.
Gearty's suggestions for how to practically apply "compassion," through social and political activism in place of "legalism," also suffer from this lack of depth. Looking at the history and development of human rights, one has to wonder why Gearty wishes to disengage it from its legal structures. Gearty suggests that only following the end of the Cold War has human rights really articulated an encompassing model of rights and privileges that would provide for the dignity of all. Before this, human rights was so entangled in the political machinations of the Western and Eastern blocs, each wielding its own legal covenant and preaching its own social ideology that it inevitably fell short of achieving its potential (p. 26). However, Gearty entirely skips over the initial and continuing successes that this early human rights "legalism" achieved. Moreover, it remains unclear what Gearty believes human right has accomplished since the end of the Cold War that is not grounded in this institutionalization of human rights norms.
Gearty himself acknowledges that it is only because of the Cold War political conflict that countries were willing to draft and support the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (p. 26-27). Together, these two documents are typically thought to demonstrate the baseline rights to which all individuals are entitled and countries should work to achieve. It is true that they were not unified in this manner until the end of the Cold War divide, but it is because of Cold War development of these covenants that they remain features of the international legal and political landscape.
In fact, one of the few social transformations directly tied to human rights is traceable to the early developments of international human rights legal regimes and the political desires of elites during the Cold War. The Helsinki Accords, which have been credited for the rise of meaningful human rights concessions under Gorbachev and thus aiding the eventual fall of the Iron Curtain, were effective because of the intersection between politics and law. The Accords were initially proposed because the European community saw human rights as a means to expose the hypocrisy inherit in Soviet socialism. The Eastern Bloc was willing to sign onto the Accords because of the increased political legitimacy inherent in written and enforceable legal structures. The Accords became a basis for activism both inside and outside of Eastern Europe because they came into effect at the same time as the ICCPR, thereby increasing the political weight behind human rights as legal and social mechanisms. One of the few grand successes of human rights must be credited to politicians wielding legal enforcement structures as a tool towards self-serving ends. (7)
Since the end of the Cold War, human rights has had no such impact, and this can be directly tied to loopholes in the legal regime, rather than, as Gearty claims, the failure of human rights to motivate political activism. During the genocide in Rwanda, the U.N. Security Council hid behind the possibility of a cease-fire and a peaceful resolution to avoid their responsibilities under the Genocide Convention. (8) However, following the end of the crisis, the official investigation of at least one of the Permanent Members and the statements of Secretary-General Kofi Annan acknowledged that all Security Council members were complicit in the genocide. (9) When European states were sued in the European Court of Human Rights for their bombing and killing of Serbian civilians during their air campaign for the Kosovars, the Court was able to dodge the challenge on procedural grounds, avoiding the question of what was proportional and proper military force. (10) Nonetheless, the petition was filed, appealed, and reviewed.
While these are certainly significant failings of the present human rights system, the acknowledgement of state responsibility and existence of access to courts suggests that existing human rights legal structures are having normative effects. Thus, perhaps the present challenge is not, as Gearty suggests, that human rights, politics, and law have become too interdependent, but rather that the lack of existing international political conflicts allows the law to be pushed aside, unneeded as a political tool. If this is true, the goal should not be to dismantle the legal oversight that human rights provides and make it solely a political question, but rather to use the political process to create more effective and stringent legal review so that at some point it will not need political will to ensure its enforcement.
Can Human Rights Survive? begins with a valuable observation: We need to determine what will be the modern rallying cry for human rights activists who must continue to push states to embrace human rights ideals. Even for the most liberal-minded, human rights principles appear at times to be afterthoughts to more immediate concerns. How do we ensure that people are constantly motivated to work for a general human rights approach, when human rights exist independent of a movement? The solutions this work proposes do not resonate with the reflective human rights worker. Books on human rights have the potential to inspire, to break us out of a myopic focus on present circumstances and to make us recognize the commonality of the human experience, forcing us to work for the betterment of others. Disappointingly, because of its loose definitions and selective interpretations, Can Human Rights Survive? is not one of these works.
(1) HANNAH ARENDT, ON REVOLUTION 81 (Penguin Books 1990)(1963).
(2) Id. at 85.
(5) LUC BOLTANSKI, DISTANT SUFFERING; MORALITY, MEDIA AND POLITICS (trans. Graham Burchell, Columbia University Press 1999)(1993).
(6) Id. at 20.
(7) Daniel Thomas, The Helsinki Accord and Political Change in Eastern Europe, in THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Thomas Risse, Stephen Ropp and Kathryn Skikkink eds., 1999).
(8) LINDA MELVERN, A PEOPLE BETRAYED: THE ROLE OF THE WEST IN RWANDA'S GENOCIDE 113(2000).
(9) Id. at 233, 235.
(10) Bankovic v. Belgium, No. 52207/99, ECHR 2001-XII (Dec. 12, 2001).
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|Publication:||Stanford Journal of International Law|
|Article Type:||Book review|
|Date:||Jun 22, 2007|
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