Friday 19 June 2009

Moving on the human rights debate

Human Rights and Social Movements, by Neil Stammers (Pluto Press)

Neil Stammers’ Human Rights and Social Movements looks to solve ‘the paradox of institutionalisation’ which currently inhabits the academic debate on human rights: how can a doctrine which has become so ingrained in the framework of state power be used to challenge, change and limit that framework? Are human rights still the best mechanism for ensuring personal freedom, or are they now so insinuated into state institutions that they have lost their power to be subversive?

This paradox has purchase over the mainstream political debate around our own human rights framework. The Human Rights Act of 1998, which incorporates the European convention on Human Rights into domestic law, has undoubtedly altered the way in which freedom is discussed. But has this ‘institutionalisation’ led to more freedom, or simply passed the responsibility for ensuring our freedom back to the organs of the state?

Stammers situates his argument within a metaphorical ‘hall of mirrors’, which distorts and restricts modern arguments on human rights to focus on the doctrines institutionalised and legalistic form. This distortion is evidenced in part by the literature’s reluctance to explore large periods of the doctrine’s pre-institutionalised history, during which the language of natural rights was used to challenge and critique arbitrary power directly without the authority of the law. The typical omission of any account of the role of natural rights in the social movements of the nineteenth century illustrates the debate’s focus on the legal as opposed to social history of human rights. This has allowed over-simplified critiques of the doctrine to emerge, and a failure on the part of its critics to recognise the potential for social movements to employ human rights as a method of engaging with state institutions. This is the source of the ‘crisis of legitimacy’ that institutionalised human rights now face, one which has allowed them to be dismissed as tools for maintaining and legitimising state power rather than challenging it.

While Stammers acknowledges that the institutionalisation of human rights has allowed the doctrine to be deployed by states to maintain power over its citizens and to legitimise oppressive foreign policy, he argues that this is not a necessary consequence of the legal codification of natural rights. Rather, he contends that the process of institutionalising rights may open up new ‘possibilities for challenging historically sedimented exclusions from human rights’ and allow social movements to challenge dimensions of state power which may have become obscured.

What Stammers means by this becomes clearer in his chapter on ‘New Movements’, in which he argues that the social movements of the 1960s and 1970s are now represented by NGOs such as Greenpeace and Human Rights Watch. The legal codification of human rights has been matched by the evolution of spontaneous and radical political action into well-organised structural pressure groups, which engage efficiently with the mainstream frameworks of power. This has allowed NGOs to uncover ‘old wrongs’ such as the ‘major deficiencies in dominant Enlightenment understandings of the natural world’. For Stammers, the legal codification of human rights and the gradual ‘NGO-ising’ of social movements, allows for a whole new generation of rights to emerge, and for neglected avenues of state oppression to be challenged.

Although there is much to challenge about the ‘old wrongs’ Stammers propagates, there is much to say for drawing arguments such as his into the political debate around our domestic human rights framework. Arguments about the status of our own Human Rights Act are too frequently accompanied by an assumption that the legal codification of rights is, in itself, beneficial. While Stammers argues institutionalisation has the potential to empower social movements to challenge state oppression more efficiently, it also has the potential to remove any connection between human rights and their social roots. By allowing this connection to be lost we surrender debates about freedom to those who legislate its boundaries. In assuming that ‘human rights’ should only be considered as relevant in a legal context, the potential for human rights as a tool for social movements is lost.

Stammers then argues that ‘renewing the challenge to power’ involves reconnecting human rights with its heritage in social movement struggles; they must remain ‘subversive to be effective and legitimate’. For Stammers, this means disconnecting the idea of human rights from the nation state. In this sense, Stammer’s notion of ‘institutionalisation’ does not look to tie duties surrounding human rights into state institutions. In fact, Stammers claims explicitly that ‘the focus on Human Rights as law results in them being increasingly understood as nothing more than legal instrumentalism’.

Stammer’s analysis stops short of offering an argument as to why such a disconnection might be practically effective, and while this is not unexpected from a text that sets out to restructure an academic debate, it becomes difficult to tie such views on institutionalisation into the ‘real world’. Stammers argues that NGOs, as the evolved social movements now capable of engaging effectively with institutions of the state, must become the focus of human rights praxis. NGOs represent the non-state actors that are capable of decoupling the relationship between Human Rights and the state.

An examination of the extent to which NGOs today have adopted a legalistic approach to Human Rights campaigning perhaps undermines this argument, however. Even a cursory analysis of the arguments by modern NGOs show they are steeped in the rhetoric of legal as opposed to natural or more political rights.  For example, Liberty’s statement on the right to free speech opens with the lines:

’Though it can never be absolute, free speech is the lifeblood of democracy. All open societies rightly place some necessary and proportionate legal limits on speech’

It is worth noting that ‘free speech is the lifeblood of democracy’, is lifted directly from a judgement of Lord Steyn from 2000, and consequently has built into it a notion of compromise and balance.  In this sense, although Stammers makes a powerful and timely case for revaluating our ideas of human rights independently from the state and the law, a more critical approach could easily have led him to conclude that NGOs in fact enforce this connection rather than challenging it.

Human Rights and Social Movements is broadly a survey of the current academic debate on human rights. But it has a strong point to make in the ‘real world’ debate as well. At a time when our own domestic human rights framework is up for review, it is worth re-evaluating the extent to which institutionalised human rights can still be used to challenge state power effectively. This re-evaluation should recognise that a simplistic understanding of human rights as no more than a framework for Western colonialism may not get us very far. But Stammers’ faith in NGOs’ capacity to ‘de-legalise’ human rights is perhaps misplaced, considering the extent to which they too have imbued their arguments with legalism.

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