What's Wrong with Rights?

Social Movements, Law and Liberal Imaginations

Radha D'Souza

• Editorial: Pluto Press
• Año: 2018
• ISBN:
  9781783717279
• Edición: 1
• Categoría: Politica e relazioni internazionali
• Categoría: Diritti umani

Through mapping the rights discourse and the transformations in transnational finance capitalism since the world wars, and interrogating the connections between the two, Radha D'Souza examines contemporary rights in theory and practice through the lens of the struggles of the people of the Third World, their experiences of national liberation and socialism and their aspirations for emancipation and freedom. Social movements demand rights to remedy wrongs and injustices in society. But why do organisations like the World Bank and IMF, the G7 states and the World Economic Forum want to promote rights? Activists and activist scholars are critical of human rights in their diagnosis of problems. But in their prognosis, they reinstate human rights and bring back through the backdoor what they dismiss through the front. Why are activists and activist scholars unable to 'let go' of human rights? Why do indigenous peoples find the need to invoke the UN Declaration on Rights of Indigenous People to make their claims sound reasonable? Are rights in the 20th and 21st centuries the same as rights in the 17th and 18th centuries? This book examines what is entailed in reducing rights to 'human' rights and in the argument 'our understandings of rights are better than theirs' that is popular within social movements and in critical scholarship.

PART I

The Rights Resurgence

1

Social Movements, Law and Liberal Imaginations

During most of human history, historical change has not been visible to the people who were involved in it, or even to those enacting it. Ancient Egypt and Mesopotamia, for example, endured for some four hundred generations with but slight changes in their basic structure … But now the tempo of change is so rapid, and the means of observation so accessible, that the interplay of event and decision seems often to be quite historically visible, if we will only look carefully and from an adequate vantage point. (Charles Wright Mills, The Power Elite, 1956, pp. 20–1)¹

This book is about rights, not ‘human’ rights. Throughout this book ‘human’ in human rights is used in inverted commas, so as not to reduce rights, a broader concept, to ‘human’ rights, and also to remind the reader not to lapse into reading rights as ‘human’ rights from sheer force of habit. The book is about what is entailed in reducing rights to ‘human’ rights.

SOCIAL MOVEMENTS AND RIGHTS

At least since the 1990s the motto of most contemporary social movements appears to be ‘every wrong must have a corresponding “human” right’. Even a cursory survey of contemporary social movements is enough to see that the clamour for more ‘human’ rights continues to expand. The expansion of rights continues notwithstanding the contradictory, even antithetical, right claims. The ‘human’ right to water comes hand in hand with new proprietary rights to water, the ‘human’ right to food with property rights to land titles, rights of homosexuals to marry with rights to religious beliefs opposed to it, the right to wear a hijab and the right to set up nudist colonies, rights of indigenous peoples and to private property, right to self-determination and security, rights to privacy and transparency, right to statehood and integrity of existing state boundaries, cultural and political rights, rights of migrants and ‘sons of the soil’, rights to health, the internet, even the ‘human’ right to happiness. After the United Nations (UN) was established at the end of the world wars in 1945, the Universal Declaration of Human Rights (UDHR) enumerated twenty-eight rights. Today, it is estimated that international law recognises more than three hundred rights.² Typically, an excellent diagnosis of a problem is followed with a proclamation of a new right and mobilisation for struggles that demand legalisation of that right. Eventually, notwithstanding the scepticism of many about the efficacy of rights, right claims seek out law courts. In the seventeenth and eighteenth centuries right claims inspired millions of disempowered men and women in Europe to rebel against the oppressive European feudal order under which they lived at that time. Today the demands for evermore rights and the reasons why diverse actors advance them are less straightforward.

Consider the recent demand by New Social Movements (NSM), by which I mean social movements that emerged in the Euro-American countries in the mid 1960s and in the Third World two and half decades later in the early 1990s, on one of the most important questions for people around the world today: land. The International Land Coalition (ILC) formed in 1995 is a global alliance of just about every type of organisation: G7 and Third World states, International Economic Organisations (IEO) and International Organisations (IO), bilateral and multilateral aid and development organisations, International Non-Governmental Organisations (INGO), national Non-Governmental Organisations (NGO), grass root social movements, and global, regional and international land alliances like the Via Campesina.³ The ILC argues, correctly, that the roots of rural poverty in the Third World lie in land alienations and displacement. The solution to the problem is the demand for ‘human’ rights to land titles, fair compensation for land acquisitions and resettlement and rehabilitation of displaced people.⁴ The ILC fuses diverse voices, interests and standpoints and brings about a convergence in the positions of actors as varied as the World Bank and Via Campesina, Group of 7 (G7) and Group of 77 (G77) states, and INGOs and anti-imperialist social movements. The glue that holds the convergence together is their common commitment to the language of rights. Rights are no longer adversarial as they were in the seventeenth and eighteenth centuries. Far from challenging existing orders or authorities and inspiring historical transformations in the dominant architecture of global power, the world’s most powerful economic, political and military alliances – the IEOs, the IOs, the G7 states, the corporations, influential ‘think tanks’ and INGOs, even the North Atlantic Treaty Organization (NATO) – champion rights alongside the disempowered, the working people, the unemployed and the discriminated. From coalitions such as the ILC at least it would seem as though we live in a world where lions and lambs have at long last recognised their common claims to water, forests and land and tigers have become vegetarians. What kind of micro and macro processes produced this convergence? Answers to these questions must await the chapters in Part II of this book. What is important here is to grasp what is entailed in the claims for ‘human’ rights to land and the reality of our relationships to land.

Land is, quintessentially, a relationship. Land is not a ‘thing’. It is a bond that ties people to nature and to each other. Land is the glue that holds people and nature together to form places. Historically, rights transformed places into property.⁵ It transformed a relationship into a thing, a commodity. The transformation characterises capitalism as a distinct type of social system. The European Enlightenment transformed land as the ordering mechanism in feudal Europe to commodity production as the ordering mechanism in modern Europe. The breakup of feudal land relations and the transformation of land into a commodity exchangeable in the market place was an essential condition for capitalism to advance in systemic ways.⁶ The modern concept of rights owes it birth to that moment when land was transformed into a commodity and hundreds of thousands of people were evicted from the places they called their ‘homeland’. New theoretical concepts and legal mechanisms were needed to reconstitute society where both nature and labour could become saleable commodities. The concept of individual rights was pivotal to reconstituting society ordered on land relations to a society ordered on commodity exchanges. The idea of individual alienable rights to land provided the theoretical, political and legal underpinnings for the transformation.

The idea of land rights helped found new social institutions for land transactions including modifications to contract laws, land surveying, state departments like the land registry entrusted with overseeing land transactions, new land laws and land transactions as a source of revenue for the state in the form of stamp duties, inheritance taxes and such. Land rights enabled new right claims by states such as the legal principle of eminent domain. Property rights to land came with its ‘human’ component – the right to fair procedures for land acquisitions, fair compensation and fair dispute resolution mechanisms.⁷ Thus, property rights to land were the first among rights to be instituted in transformations from feudalism to capitalism. Property by its very nature is the very opposite of glue that binds nature and people. Being necessarily alienable and transferable, it unbinds people from land and nature more generally. Right claims conceal what is entailed in our relationship to land and nature. Indeed, right claims facilitate the transformation of places into properties and homeland into home-market. Yet, even the more radical movements on land such as indigenous peoples’ movements that are opposed to the very notion of land, forests and water as property frequently end up supporting the idea of ‘human’ rights to land.

Speaking for the radical Mapuche movement in Chile, a spokesperson for the Council of All Lands (Consejo de Todas las Tierras), Aucán Huilcamán, relied on the UN Declaration on the Rights of Indigenous People as the legal justification for the creation of an autonomous, self-governed Mapuche region.⁸ Why do indigenous peoples whose land claims arise from being synonymous with Time’s claim to places find the need to invoke an international statute enacted in remote places like the UN headquarters in Geneva as recently as 2005 to make their claims sound ‘reasonable’? Social movements sometimes argue that right claims are nothing more than conceptual vehicles that validate ethical and moral claims. The need for legal justifications to validate their land claims invite us to consider why ethical claims are articulated as legal claims in the first place. Further, are right claims strictly ethical claims with no ramifications for law and politics? Right claims as ethical justifications do not lead us to questions why the UN Declarations on Rights of Indigenous People was adopted, who the actors driving the adoption were, and the timing of it coming as it did in the wake of sweeping neoliberal reforms of international order.

In a similar vein, the declaration of the Keepers of the Water movement, an alliance of the indigenous Dene peoples in northern Canadian provinces, begins with the statement:

Water is a sacred gift, an essential element that sustains and connects all life. It is not a commodity to be bought or sold. All people share an obligation to cooperate to ensure that water in all of its forms is protected and conserved with regard to the needs of all living things today and for future generations tomorrow.

In the next paragraph the declaration continues with the statement:

All peoples in the Basin have a fundamental human right to water that must be recognized nationally and internationally, and incorporated into domestic law and policy. Progress towards the realization of the right to water must be monitored, and appropriate institutional mechanisms developed to ensure that these rights are implemented.⁹

The same can be said about campaigns for incorporating forests, seas, and everything else that is brought under a regime of ‘human’ rights. Right claims as ethical and moral claims divert attention from the context, the actors and the mechanisms at work in the rights resurgence underway manifestly since the 1980s. The powerful indigenous critique of individual property rights in nature ends up reifying the dualism of property and ‘human’ rights on which liberal rights are founded.

The voices that converge in the rights discourse, as in the ILC example above, are far from harmonious. Indeed, the rights discourse today is a cacophony of discordant voices. Each actor in coalitions to promote this or that right, such as the ILC, has a different understanding of rights, of its history, its philosophical presuppositions, and above all expectations. Each actor canvassing for this or that right is located within a distinct type of institutional setting and carries a particular ideological orientation to rights. Arguments about rights in international coalitions and campaigns take the form of ‘my version of rights is better than yours ...’ . This argument is analogous to the argument ‘my god is better than yours’, an argument that ultimately relies on faith, a belief that cannot lead a rational engagement about god, yours and mine. As Brewster Kneen observes,

Whether it be in reference to human rights or property rights, the right to life or abortion rights, farmers’ rights, right to water or intellectual property rights, the word itself seems to have become a sort of essential – if powerless – invocation.¹⁰

At the same time, there is growing disenchantment with rights among critical scholars and social movements alike.¹¹ The disenchantment with rights is not new. It goes back at least to the nineteenth century. By the nineteenth century, as European feudalism became history and rights revealed new realities, the euphoria about rights died down. With rights came new class polarisations, new forms of poverty, displacement, dispossession, large bureaucracies, states, armies and wars.¹² In the United States (US), ideas from the European Enlightenment inspired the expansion, construction and consolidation of the American state on the backs of the lands and resources of indigenous peoples and the labour of African slaves. Rights to trade freely, far from abolishing slavery, revived and modernised the ancient institution of slavery.¹³ In Europe, expropriation of indigenous lands and slave labour were located in far-flung colonies removed from the sights of ordinary people on the streets of European cities. In the US, liberalism did not have to struggle against an existing feudal order. Instead in the US liberal capitalism came hand in hand with colonial expropriation and slave labour located in the same sites, where slavery and expulsion from land occurred in full view of all the actors as part of the same processes of nation building and liberal constitutionalism. The mythology of rights should have broken down first and foremost in the US. Instead the US became the bastion for rights where the ideology of rights remains strongest even as it wages wars, displaces people and drives them to destitution around the world.

The mythology of rights did break down in those parts of the world where capitalism also broke down towards the turn of the twentieth century. Since the Paris Commune at least, rights were challenged both in theory and practice by the socialist movements in Europe, movements of indigenous and black Americans and anti-colonial movements. These challenges to rights occurred against the backdrop of crises of capitalism. At least since the 1960s Euro-American capitalism has undergone a series of crises that shows no signs of abating. While radical scholars and social movements have become more sceptical about rights, their critique comes hand in hand with a critique of the Old Social Movements (OSM) of the early twentieth century. Disenchanted with socialism and liberalism and unable to embrace the critique of imperialism wholeheartedly in its totality, rights scepticism flounders and gropes for theoretical moorings.

The irony is that the environmental crises everywhere, the ever deepening poverty and destitution in Third World societies and the general crises of human alienation, call it aesthetic, emotional, whatever that we see everywhere impels us to ask the very questions that dominated discourse in the seventeenth and eighteenth centuries. What is a human being’s relation to land and nature, to law and state, to one another? Can land and nature be commodities like shoes or clothes? Can people live without ties to places? Are r...