Critical theory and human rights

From compassion to coercion

David McGrogan, Darrow Schecter

• Publisher: Manchester University Press
• Year: 2021
• Print ISBN: 9781526131829
• eBook ISBN: 9781526131843
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

This book describes how human rights have given rise to a vision of benevolent governance that, if fully realised, would be antithetical to individual freedom. It describes human rights' evolution into a grand but nebulous project, rooted in compassion, with the overarching aim of improving universal welfare by defining the conditions of human well-being and imposing obligations on the state and other actors to realise them. This gives rise to a form of managerialism, preoccupied with measuring and improving the 'human rights performance' of the state, businesses and so on. The ultimate result is the 'governmentalisation' of a pastoral form of global human rights governance, in which power is exercised for the general good, moulded by a complex regulatory sphere which shapes the field of action for the individual at every turn. This, unsurprisingly, does not appeal to rights-holders themselves.

1

Solipsism and imperialism

[R]ights are public goods: Taxpayer-funded and government-managed social services designed to improve collective and individual well-being. All rights are positive rights.

(Holmes and Sunstein, The Cost of Rights)¹

Introduction

Providing an explanation for the development and an account of the consequences of human rights in its managerial mode is the project of this book. First of all, however, the phenomenon requires definition and description. In this chapter I give that definition and description, showing how it has become not only possible to think of human rights as the rationale and justification for purposive social action carried out by the State or other powerful actors, but the predominant way in which they are understood by human rights advocates and institutions. As we shall see, this has resulted from an overriding sense that “human rights” is a purposive regime. This causes an inexorable growth in the scope of its purview, the range of rights it encompasses, and the number of actors upon which it imposes obligations. The consequence of this is that bodies engaged in human rights discourses – particularly courts and the United Nations (UN) treaty- and charter-based mechanisms – have become characterised by a vaunting ambition which sees human rights as the means by which the world can be shaped for the better. Here, I provide an overview of the scene. In the chapters which follow, I shall lay out the reasons for why it takes on this tenor.

Managerialism

There exist sizeable literatures in various fields on the meanings, effects, and origins of “managerialism.” In addition, the word is often used in lay terms as a shorthand for the deployment of techniques developed in the context of business management in other fields – or, alternatively, simply hierarchical or “top-down” organisation in general.² The purpose of this section is not to provide a survey of those existing usages or to provide a definition of general applicability. Rather, it is to outline the core elements of what I will refer to subsequently as “managerialism” within the context of human rights for the purposes of this volume, drawing primarily on the work of the most prominent thinker in the field of international law to have written extensively on the topic – Martti Koskenniemi. This may produce an idiosyncratic understanding of that term, but it is the one which will be used in the remainder of this chapter and the rest of this book.

In Koskenniemi’s usage of the term, managerialism originates, most simply, in two things: “each [legal] regime understood as a purposive association and each institution assumed to have jurisdiction wide enough for realising it.”³ That is to say – speaking in particular about international law – managerialism is the phenomenon by which a particular field or regime (trade law, criminal law, investment law, human rights law, EU law, environmental law, etc.) becomes understood as having a purpose distinct from mere settlement of disputes, and an unlimited and unrestricted purview vis-à-vis other legal regimes in which to realise that purpose. The relevant purpose, of course, varies from regime to regime. For trade law, it is unrestricted trade; for investment law, protection of investments; for EU law, European integration; for environmental law, environmental protection, and so on. But for each the mindset or underlying approach is the same – the purpose, having been identified, is to be realised through process, and is not to be hedged or hindered by the kind of constitutional or institutional barriers which exist in a domestic legal framework and help to keep different legal regimes distinct and circumscribed.

The result is a prevailing tendency within such regimes to what Koskenniemi (borrowing from Kelsen) refers to as “solipsism and imperialism.”⁴ Any international event – we might extend this to any event per se – can be conceived of as being significant in the eyes of any international legal regime in that regime’s own perspective. And this means that, unrestricted by constitutional or institutional barriers, any international legal regime is capable of perceiving any event as coming under its own purview. To use Koskenniemi’s own example to illustrate, in 2006 the European Court of Justice (ECJ) gave its decision in the MOX Plant case, which had originated in a dispute between Ireland and the UK over the operation of the nuclear processing plant at Sellafield in Cumbria.⁵ Ireland had brought claims against the UK to international dispute settlement under the OSPAR Treaty, concerning the protection of the natural environment in the Irish Sea, and the United Nations Convention on the Law of the Sea 1982. As a result, the European Commission raised a claim against Ireland because it had taken the UK (a fellow EU Member State) to international arbitration rather than raising the dispute in the relevant EU bodies applying EU rules. The ECJ ruled in the Commission’s favour. Here, an event – a dispute over nuclear processing on the Irish Sea coast – capable of being resolved under a variety of different legal regimes (environmental law, the law of the sea, and also most probably trade law, the law of maritime transport, human rights, etc.) became understood as being a problem of relevance to the purpose of EU law – European integration. EU law and the institutions of the Union thus quickly extended themselves in order to advance that project, and ruled accordingly, so as to prevent the dispute being resolved under a different set of rules.⁶ To the legal regime of EU law, nuclear processing on the Irish Sea was an event capable of being its own subject matter, and hence, absent any external constraint, EU law brought it within its purview in order to be resolved.

Hence, international legal regimes are both solipsistic (because they are only capable of seeing a given problem or event through the lens of their own respective projects) and imperialistic (because they know of no bounds to their self-perceived authority to make rulings with respect to anything they conceive as being relevant to said projects). The consequence is a continual struggle between such regimes, resolved purely through power: “every purpose is hegemonic in the sense of seeking to describe the social world through its own vocabulary so that its own expertise would apply and its structural bias would become the rule.”⁷ In the MOX Plant case, the project of European integration prevailed over other legal regimes because of the comparative strength and vigour of the relevant institutions, and for no other reason than that.

But for Koskenniemi this is not the end of the story as far as managerialism is concerned, and this is where his account finds its relationship to other more mainstream understandings of that term. Because international legal regimes have purposes or projects which are to be realised, and because the realisation of such a purpose or project is not automatic but subject to constant challenges and difficulties thrown up by the randomness of events, the project has to be able to react, and in order to undertake this, “there have to be experts.”⁸ There must be a class of people whose role is to pursue implementation – to see the project through. From the existence of such experts there are, then, two necessary consequences. First, a complex array of technical processes flow: monitoring bodies, committees, compliance groups, and so on – followed by the policies which they enact. And, second, law as such becomes seen as a mere instrument to justify and fulfil whatever purpose it is that the experts are implementing – and hence to be ignored or circumvented (replaced by concepts such as “regulation,” “governance,” and “compliance”) if they appear to contravene such purposes. The result is an absence of critical reflection or contestation of anything other than how the technical processes in question contribute to the overall project.⁹

For Koskenniemi, then, managerialism might be described as the combination of solipsism and imperialism, producing in that combination an interest, above all, in process. Because the purpose of a given regime, whatever it might be, is known, and because that purpose is overriding, the only matters to be resolved concern how that purpose is to be achieved. And this, fundamentally, is a matter of technical expertise, not political contestation or legal principle. This transforms legal regimes into fundamentally programmatic enterprises where the dominant interest is merely in developing the techniques necessary to achieve identified goals. This causes them, indeed, to cease to resemble bodies of law per se, with their character becoming increasingly regulatory or policy-oriented in tenor.

There are certain lacunae in Koskenniemi’s account, which was only ever, after all, provided in the spirit of a spur to further investigation. The first of these will be evident to anybody reading it, and indeed was perfectly evident to Koskenniemi himself: a legal regime might have a “purpose,” but that purpose will itself always be contestable and contested – and, indeed, can be understood to mean more or less anything with the right amount of “ingenuity.”¹⁰ The purpose of environmental law might be protection of the environment, for instance, but careful argumentation can turn that broad principle in many different directions in any given circumstance. This means that international legal regimes are not so much settled domains but sites of “controversy and compromise where prevailing ‘mainstreams’ constantly clash with minority challengers.”¹¹ By extension, this means that despite their “solipsism,” such regimes are by no means monolithic – far from it. They are the battleground of competing narratives, “divided as regards their point and purpose and the right strategic choices to be made.”¹² Yet Koskenniemi does not aim to provide an explanation for how one narrative comes to prevail in a given context so as to become “mainstream,” nor how one strategic choice becomes preferred over others.

The second, related lacuna – more accurately, a series of lacunae – is that his sketch does not contain a full explanation for where competing narratives concerning the central project or purpose of an international legal regime come from, nor what or who generates them, nor why. They are postulated not so much as givens, but as the products of technical idioms or “functional vocabularies.”¹³ But the task of elucidating what in turn produces and shapes those vocabularies is left, in effect, to others.¹⁴ In particular,...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Preface
• List of abbreviations
• Introduction
• 1 Solipsism and imperialism
• 2 Between nomos and telos
• 3 Human rights’ directing idea
• 4 The governmentalisation of global human rights governance
• 5 Tactics rather than laws
• 6 Nothing but rejoicing
• Conclusion
• Bibliography
• Index