Political Economy of Human Rights

Rights, Realities and Realization

Bas de Gaay Fortman

• Publisher: Routledge
• Year: 2011
• Print ISBN: 9780415644488
• eBook ISBN: 9781136702174
• Edition: 1
• Topic: Business
• Subtopic: International Business
• Index: Business

The plethora of literature produced over the past decade in response to the perceived failure of the human rights project to deliver results for billions of people living in 'adverse' environments has usually focused on international legal standards and mechanisms, with little regard for the root structural realities that constrain their implementation. Hence, a text that primarily focuses on the major challenge of realisation of human rights in the context of diverse realities is urgently needed. This book, then, provides an analytical as well as inspirational text on human rights from a contextual perspective; it offers a reconceptualisation of human rights as not merely legal resources, but political tools as well.

After an introduction that familiarizes the reader with some of the key concepts used throughout, the book is divided into six chapters. The first two combine a critique of the overly legal use of human rights with a reconceptualisation of their potential as powerful tools outside of the legal context. The next two chapters examine the nature of the structural challenges that face realisation, both on the global and on the local level. The last two chapters analyse two major areas of the human rights deficit: the structural non-implementation of the rights of the poor and the failing protection of non-dominant collectivities. Finally, a concluding chapter elaborates on the main findings and insights gained.

The book combines rigorous juridical study with a focus on political-economic analysis of rights in context. Hence, it aims at an interdisciplinary treatment of human rights as opposed to current texts that have a tendency to be monodisciplinary. The book should be of interest to students of human rights, political economy, law and conflict studies, as well as those who work or research in these areas.

1 Rights

The dialectics of power and protection

Law is not self-executing. It may open up possibilities, it may even facilitate changes and trends, but it is an instrument strongly susceptible to manipulation and neutralisation by other forces. To consider that the mere passage of a law has achieved its objectives is seriously to misunderstand the nature of law.

Yash Ghai (1978: 123)

Power and Its Limits

Power is habitually defined as the capacity to enforce one’s will against the will and the resistance of others.¹ Notably, however, there exists no pure power, in the sense of an ability to completely isolate one’s own will and objectives from the community within which power is exercised. A striking illustration of this principle is offered by Anouil’s Antigone (2001 [1944]). King Creon, Antigone’s uncle, had ordered that the corpses of his slain enemies should be left rotting outside the walls of the city. Yet, she collects the body of her brother Polynices in order to give him a decent burial. In their dialogue Creon stresses his power to kill her. Yes, Antigone admits, but that means actually doing something he does not really want to do:

ANTIGONE: “Me, I am not obliged to do what I do not want to do. You did not want that either, did you, to refuse a tomb to my brother? Hence tell me, you had not wanted this.”

CREON: “I told you already.” [He had tried to explain to her earlier that such brutal orders were unfortunately necessary because, otherwise, the brutes he had to rule would never understand that they should not rebel against his orders.]

ANTIGONE: “And you have done it all the same. And now you are going to kill me without wanting it. So that is what it means to be king!”

CREON: “Yes, that is what it is!”

ANTIGONE: “Poor Creon! With my nails broken and full of dirt and all the bruises on my arms caused by your guards, with all my fear that turns my stomach, I am Queen.”

(ll. 26–36)

In what follows, Antigone shows no interest whatsoever in King Creon’s theory of power. In her own words:

I didn’t say yes. I can say no to anything I think vile, and I don’t have to count the cost. But because you said yes to your lust for power, all that you can do, for all of your crown, your trappings, and your guards – all that you can do is have me killed.

(I. 18)

Power, as this passage painfully illustrates, is not identical to freedom. The core of power is the capacity to enforce, not the ability to act according to one’s own will.

Power and Freedom

Another observation subsequent to Antigone’s dialogue with King Creon is that the structure of power is often more important than the individual powerholder’s will. Indeed, power may also be conceived as “the potential ability of an actor or actors to select, to change and to attain the goals of a social system” (Terry N. Clark in Stalpers 1975: 30 [emphasis added]). Although Creon had created the system himself, it still undermined his own freedom to act as he really wanted. Hence, to understand the true nature of power, we have to investigate such systems. But let us now go a little deeper into the issue of power and freedom.

Between power and freedom lies a fundamental normativity that is intrinsically connected with the reality in which we live. Naturally, Creon did not want to kill Antigone. “You are too sensitive to make a good tyrant”, she tells him (Anouil 2001: l. 20). This remark could well apply, hopefully, to most people. Hence one might conclude, turning sideways to economics as a social science, that a value-free realisation of pure self-interest is just hypothetical. In real life, to avoid confrontation with values transferred from generation to generation over the ages appears to be impossible. We are, indeed, moral beings, as stipulated in Article 1 UDHR.

Based on the Biblical Thora, Calvin called this fundamental normativity between power and freedom civilis (or politicus) usus legis, the civil or political meaning of the Law, with a capital L: a public–political morality that has been written in the hearts of all human beings and accordingly constitutes the backbone of human community (Rothuizen 1962). In a secular shape such fundamental values have found reflection in universal human rights.

Thus, the normativity expressed in these rights encompasses many aspects of human life, including the need for an effective allocation of scarce resources so as to optimally satisfy human wants. Economic effectiveness is, indeed, a principle – the economic principle as Van der Kooy has suggested (1954) – that cannot be separated from other norms such as public justice, which is the primary juridical principle.

While in neo-classical economics a school of thought may be typified by a certain model, in political economy, that “broad approach to the study of economy and society” (O’Hara 1999: 868), the dominating characteristic is a vision (Schumpeter 1954). The vision lying at the basis of the present study may be summarised in the term “simultaneous realisation” (Van der Kooy 1954). Indeed, for the student of political economy of human rights, the challenge is to understand the close relationship between effectiveness in the allocation of scarce resources, and justice in the sense of ends and means rooted in the right public-political principles, decision-making that follows rules of due process, and an outcome based on fair balancing of the different interests at stake. For example, a law regulating entrepreneurial behaviour is not fair to the unwilling entrepreneur, if it is not effective for all; and it is not effective for all if it is unfair to the unwilling entrepreneur (Gerbrandy 1935: 19).

Yet power, as we know, will not automatically be exercised in accordance with norms and values tuned to the well-being of the community within which it functions. History has taught that perceived self-interest is a driving force of formidable dimensions, which is not necessarily in line with public justice. Hence, those affected by the use of power need protection, and there are distinct methods of securing this. A first way is to strictly delimit positions of power, both quantitatively and by tying these to certain clear functions. Thus, functional power becomes authority or “office”. Where power has been made subservient to the attainment of certain objectives, we can, indeed, speak of its use and abuse. Naturally, this is not enough. “Power”, John Acton wrote, “tends to corrupt, and absolute power corrupts absolutely… . There is no worse heresy than that the office sanctifies the holder of it” (Acton 1887). Hence there is an obvious need to control the exercise of power while those affected by its use need protection. To this end, an effort may be made to direct the use of power by prescriptions and prohibitions and to monitor observance. The point is that there be regulated enforcement, or, law. Indeed, throughout the history of human civilisation protection has come from an effective rule of law, itself developed through conscientisation and participation of those who were being ruled, and supported by an equally participative monitoring.

A limited state – as opposed to a totalitarian one – and a state subject to law have become essential elements of what is now written with capitals as “Rule of Law”. In its broader sense this includes treating people as human beings with rights, including the right to determine how and by whom they wish to be governed. In other words, “Hobbesian” democracy: a social contract² coupled with the substitutability of those in power.

A more indirect method of seeking protection against harmful use of power is through positive and negative incentives: the carrot and the stick. Yet another way is to avoid its concentration while ensuring a proper spread of capacities to enforce: creating checks and balances, in other words. Deconcentration, decentralisation and separation of powers – “Montesquieuean” democracy in other words. And finally, attempts may be made to correct unacceptable outcomes of the use of power. One may think here of policies for redistribution of wealth and income.³

What all these ways and means of protecting people against use of power harmful to their interests have in common, is that they demand regulation and hence law. Law is meant to ensure an orderly protection of interests and an orderly settlement of disputes arising out of conflicting interests. Thus, it regulates and delimits power. At the same time, law naturally reflects existing power relations. Consequently, every community and society manifests an inescapable dialectic of law and power (De Gaay Fortman 1990). The position of a certain country on a hypothetical scale from 100 per cent pure power and 0 per cent pure law, to its opposite of 100 per cent pure law with 0 per cent pure power, depends on factors such as the democratic character of its institutions and historically grown cultures of personal leadership.⁴ Naturally, in the real world law and power cannot be simply separated, nor indeed can they be fully identified in the way Karl Marx has suggested.⁵

Law, power and Morality: Who Wins?

Should Thucydides be read in the light of the Sophists or is he better understood as a predecessor of Aristotle? Although his account of the Peloponnesian War was written almost two and a half millennia ago, the question still bothers the minds of students of International Relations. The usual interpretation of this Greek author, founder of the Realist School, bases itself particularly on the Melian Dialogue (Thucydides 1972).⁶ Crucial in that exchange of views between the militarily strong Athenians and the weak inhabitants of the island of Melos is an admonition by the former to the latter:

not to imagine that you will influence us by saying … that you have never done us any harm … since you know as well as we do that, when these matters are discussed by practical people, the standard of justice depends on the equality of power to compel and that in fact the strong do what they have the power to do and the weak accept what they have to accept.

(“δυνατα δε οι προυχοντες πρασσουσι και οι ασσενεις ξυγχωρουσιν”)⁷

The Melians, however, did not accept; instead, they trusted in the justice of their cause and hoped for the help of their gods and the Spartans. Subsequently, the whole story ends with the conquest of Melos by the Athenians, the killing of all male inhabitants of military age and the selling of all women and children into slavery. Justice, the message seems to be, is not for international politics. What counts is “the law of the stronger”.

In a comment on this memorable history, Nancy Kokaz (2001) argues that Thucydides criticised Sophistic dichotomies of power and justice, human nature and convention, domestic and international politics.⁸ Her point is that throughout the Melian dialogue “there is never a doubt that the Athenian action violates rules of ‘fair play and just dealing’ ” (Kokaz 2001: 34). The Melians used the wrong arguments, when they referred to their own self-constraint in regard to the Athenians and to Athenian self-interest – if you conquer and destroy us, the Spartans will come and do the same unto you – while at the same time hoping for outside help. They did not, however, appeal to justice. In fact, according to Thucydides, the Athenians had a normative view on power: “to stand up to one’s equals, to behave with deference towards one’s superiors, and to treat one’s inferiors with moderation” (quoted in Kokaz 2001: 42). According to Kokaz, this maxim is to be called “safe rule” rather than “just rule” because in the Athenian mind there could be no conflict between genuine considerations of safety and justice. The condition of humanity⁹ is not that power automatically amounts to domination: it “offers both constructive and destructive possibilities depending on its use” (Kokaz 2001: 41). The Athenians only maintained that the standard of justice varies with the power of those concerned. What Thucydides hated, like Aristotle after him, is mere “cleverness” as expressed in the Melian arguments. Practical wisdom goes deeper; it requires moderation and justice. Thucydides, Kokaz (2001: 49) argues, “offers us an invitation to move beyond the Sophists and rediscover our human potential for political excellence”.

Here we are, in the beginning of the third millennium, and still discussing Thucydidean perspectives on moderating power. But should that surprise us? Has humankind in the ages since Thucydides found conclusive answers in the triangle of law, power and morality? Should human rights be seen as a way out of these dialectics, indeed some sort of synthesis in the form of a decisive instrument to moderate power by binding its use to internationally accepted legal standards? Is this humankind’s definitive response to the moral history of inhumanity as exemplified by the killing of the Melian men and all those terrible violations of human dignity through the ages?¹⁰ No, this book sets out to argue, it is a beginning, marked by strong ideals and convictions, but also by constraints and setbacks: a constant struggle with realities.

The Dialectics of Law and Power

The tendency to abuse power is as old as human history; hence the incessant efforts to tie the use of power to certain norms. Where such norms express legal protection of the fundamental freedoms and basic entitlements of each and every human being, we speak of “human rights”. Since here human dignity itself is at stake, claims based on these rights should normally trump other types of claims, both private and public.

The way in which this human rights mission has been conceptualised in legal instruments and mechanisms has placed great emphasis on the second foundational principle of human rights: the quest for fundamental rights (cf. above, pp. 5–7). The major flaws that affect implementation can be traced to this overreliance on legal, judicially enforceable rights as such. International mechanisms for the realisation of human rights were set up as if the emancipatory struggles preceding adoption of the legal model had already been definitively concluded with the victory of the allied forces in the Second World War. That model is based on three stages: standard-setting, supervision through monitoring of compliance and enforcement. Its capacity to enforce international human rights law, however, is terribly weak, as we shall see in Chapter 2. Indeed, the responsibility for implementing all those internationally declared rights still rests basically at the national and local level.

A major complication in this regard is that more than half of the global population lives in socio-cultural environments in which the notion of a “right” is of fairly recent origin (in the Bantu languages, for example) or etymologically close to power per se (China, for instance, Perry 2008). As rights are interests protected by law, let us now take a closer look at law and the ways it may provide a normative setting in contemporary society.

Law’s Domain

Legality means no more or less than that the law is applied for all: “equally in equal cases”. Its foundation lies in a simple division of responsibilities: the legislature determines legality in the abstract, the executive decides on policies and concrete execution on that basis, and the judiciary determines the consequences of legality in individual cases.

The essence of law is that it binds power to certain norms, implying at the least normative processes of settling disputes. This is a mission of a highly noble character as exemplified in the inscription shown in the reading room of the Harvard Law School’s library: OF LAW NO LESSE CAN BE ACKNOWLEDGED THAN THAT HER SEAT IS THE BOSOM OF GOD. In a Biblical perspective this implies an allegiance to justice. Legal norms then are meant not only to regulate in the sense of securing order but also to reflect what is generally seen as “right” and hence ought to be enforced. Law, in other words, binds power to a morality that is seen as essential to the integrity of the community as such.¹¹

This rather idealistic view depicts law as it is meant to be: justice incognito. At the other extreme we find “anti-law”: the use of legal instruments to institutionalise injustice. One may think here, for example, of the Neurenberger race laws and the South African apartheid legislation.¹² Karl Marx (2009 [1875]: 21) saw law as rooted in class relations. Socio-economic power, in that view, completely dominates law. Or, in the words of a sixteenth-century English song: “Law grinds the poor and rich men make the law.”¹³

Reality, as we saw, tends to lie somewhere between: on the one hand, the binding of power to norms rooted in morality and, on the other hand, the reflection of existing power relations in the setting and execution of such standards. These dialectics of law and power are appealingly echoed in the way in which the notorious villain Bull Super – a comic figure in Marten Toonder’s “Adventures of Tommy Cat” – expresses his view on law: “right is something crooked that has been bent”.

The issue then, is law’s moral foundations and connections. Obviously, human rights are rooted in justice, first and foremost. Yet, the global venture for the protection of human dignity is shaped in modern state law by bureaucratic mechanisms of standard-setting, monitoring and procedures to secure compliance. Consequently, the whole project has certain traits of a functional system, and it is precisely in its fundamental link to morality that the human rights system needs constant renurturing from a lifeworld...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• List of figures and tables
• Preface
• Acknowledgements
• List of abbreviations
• Introduction: rights, realities and realisation
• 1. Rights: the dialectics of power and protection
• 2. Rights: the dialectics of international norms and national practice
• 3. Global realities: conflict and confrontation
• 4. Local realities: strife and struggle
• 5. Realisation: the rights of the poor
• 6. Realisation: the rights of collectivities
• Conclusion: the quest for realisation
• Notes
• Bibliography
• Index