Ideological (Mis)Use of Human Rights - David Chandler

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122 D. CHANDLER of the ruler or government—to justify intervention in the cause of enhancing the standards of human development or human security (Duffi eld, 2007). Graham Harrison’s work on the ‘governance state’ has highlighted how sovereign institutions of government have become transmission belts for external governance (Harrison, 2004; see also Chandler, 2006). On the basis of human rights frameworks, the claims of sovereign states to legal equality have been weakened, as they have been judged to oft en be less capable of ensuring that human rights are protected than alternative human rights-based frameworks of international regulation and intervention. On the basis of the undermining of claims of sovereignty, it is increasingly argued that international law is becoming ‘domesticated’, i.e. that it is becoming more like domestic law, enshrining the individual as its legal subject. It is oft en suggested that the prioritizing of individual human rights above the rights of state sovereignty can be understood as the creation of a new international moral legal order, highlighted in the conviction of state leaders for war crimes through the establishment of ad hoc international tribunals for former Yugoslavia and Rwanda, the prosecution of Chilean dictator Augustus Pinochet, the establishment of the International Criminal Court (ICC), and the development of ideas of universal jurisdiction. For human rights advocates, this new international order is one that is capable of institutionalizing the legal and political equality of individuals in place of the UN Charter framework of the equality of sovereign states. It is in the area of international law, therefore, that the problematic fact that the individual subject of human rights is not a legally constituted subject becomes clearly highlighted. Rather than extending international law on the basis of reconstituting the formal nature of the international sphere, international law is being transformed into a ‘moral–legal order’, where the spheres of ethics and of law are becoming blurred (Douzinas, 2007, p. 148). Th e sphere of law is formally one of equality, where under equal circumstances the punishment is the same. However, the rise of human rights frameworks has introduced an ethical component into international law that, according to Costas Douzinas, ‘reconstitutes the structure, subjects and core values of the international system’ (Douzinas, 2007, p. 183). Th is change refl ects and institutionalizes the shift ing nature of power relations in the international sphere in the aft ermath of the end of the Cold War. During the Cold War, there was a balance of power between the US and the Soviet Union. Although the sides may not have been exactly equal, the key point is that minor disputes or confl icts risked escalating into a nuclear superpower confrontation. For this reason, smaller states found that their sovereignty and independence were safeguarded, not so much because of the letter of international law, but because the maintenance of the status quo and restriction on the use of force to challenge sovereign borders was seen to be vital for world peace and international order. Weak states maintained their sovereignty against more powerful external rivals because of the constitution of the international order (see Jackson, 1990). With the end of this balance of power, a new more hegemonic and ‘unipolar’ world order came into existence, which has been refl ected in the renegotiation and overcoming of Cold War formal and informal limits to external intervention. Th e human rights framework has facilitated and smoothed the transition away from the formally constituted international order of the Cold War. Th e ethical challenge of human rights has helped to legitimize the downgrading of the formal legal subjects of the previous order, equal sovereign states, and in their place sets up the more fl exible framework based upon the claims of non-constituted legal subjects. In the 1990s the contradictions between the two approaches to framing international order seemed transparent in the debate between the formal ‘right of sovereignty’ and the emerging ‘right of intervention’ on behalf of universal human rights claims. Th is polarization was highlighted in relation to the NATO war over Kosovo in 1999, where human rights were held to trump sovereignty. Th e problem was that, for many, it was clear that the agency empowered by human rights claims was not Kosovo victims as much as NATO powers who claimed the right of intervention without UN Security Council permission. Following Kosovo, the UN established an independent commission, the International Commission on Intervention and State Sovereignty, which, with some success, attempted to overcome the problem of clashing rights. In its report ‘Th e Responsibility to Protect’ (ICISS, 2001), the Commission suggested reframing the meaning of sovereignty to include the respect for human rights, enabling external intervention to be presented as supporting or enhancing sovereignty, rather 08-goodhart-chap07.indd 122 12/9/08 3:05:59 PM
than undermining it. At the same time, the report advocated the revival of Just War justifi cations for military intervention if the UN Security Council was not able to agree to interventions to protect human rights. Th e Commission’s report smoothed the transition away from the formal framework of the UN Charter toward a more fl exible moral–legal framework, which inevitably gave more rights to power (Simpson, 2004). Critical commentators suggest that rights-based approaches shift sovereignty toward a new global centre, but one which is not formally or legally constituted. For many critics, the work of Carl Schmitt (1996) and the more recent work of Giorgio Agamben (2005) highlight that sovereignty, understood as the decisionmaking power over the exception, has shift ed to give Western states, specifi cally the USA, greater sovereign decision-making power, at the expense of the loss of sovereignty of post-colonial states. For these critics, the key examples of the shift away from formal equality of sovereignty can be found in Box 7.4 Cosmopolitanism: A New Hierarchy or a New Universalism? Costas Douzinas on Cosmopolitanism The alleged cosmopolitan character of contemporary politics does not derive from their global subjection to universal rules. The reverse is true: universal rules are created as ideal accompaniments of global phenomena by those who can exercise world policy. Domestic considerations have always played an important role in the calculation of the great powers and determine the ways in which foreign relations are exercised. This leads to a crucial distinction between globalisation and universalisation, which has been almost totally elided in the debate on human rights. (Douzinas, 2007, pp. 180–181.) Vivienne Jabri on Cosmopolitanism The consequences of what may be referred to as cosmopolitan war are profound, for they suggest . . . a wholesale transformation of social and political relations both domestically and internationally . . . [and] in Foucaultian terms . . . relations of power that seek to discipline confl ict and dissent emerging from other societies. . . . What emerges from discourses that seek to modernise, civilise, or democratise, is a conception of a world rendered in hierarchical terms, those that can claim the right of judgement and others who cannot, those within the law and those located beyond the law, those worthy of protection and others not so deserving; all suggesting a hierarchy of worthiness the remit of which is hegemonic domination. (Jabri, 2007, pp. 96–97.) IDEOLOGICAL (MIS)USE OF HUMAN RIGHTS 123 the overturning of the principle of non-intervention in Kosovo and Iraq. Th ey highlight the inequalities created by this process: while the USA refuses to be bound by international treaties that are held to limit its powers of sovereign decision making—for example, being the only state (apart from Somalia) not to sign up to the International Convention on the Rights of the Child, its refusal to submit to the ICC, etc.—other states have been forced to admit external intervention into their aff airs. For Douzinas, human rights discourses constitute a challenge to the UN Charter legal order, but one that seeks to constitute a hierarchy of unequal rights rather than a more universal order based on the equality of rights (see Box 7.4). Th e rights of sovereignty and selfdetermination for smaller or more peripheral states have been removed: ‘Lost sovereignty has not disappeared. It has been absorbed and condensed into a super-sovereign centre.’ (Douzinas, 2007, p. 271; see also Jabri, 2007.) For Douzinas, the collapse of traditional restrictions on military intervention and the projection of Western power undermine plural relations of equal sovereignty and reveal that, ‘In a historical reversal, an emperor is emerging but the empire is still under construction.’ (Douzinas, 2007, p. 257.) Human Rights and Military Intervention Th e privileging of human rights as individual rights above the sovereign rights of states has altered traditional international practices, especially with regard to international law and the use of force. Th e human rights-based justifi cation for military intervention is oft en posed in terms of the revival of pre-modern Just War thinking, which is concerned with the moral and ethical basis of war rather than with its legal grounding. Here the clash between the universal ethics of human rights and the legal framework of international society as it is currently situated comes into stark clarity. Th e Kosovo war is oft en seen as marking the highpoint for human rights internationalism. Jürgen Habermas supported the Kosovo war, despite the fact that it was illegal under UN Charter rules, on the basis that in going to war for human rights NATO was pushing the boundaries of international law into a cosmopolitan, universal direction (Habermas, 1999). Th e war, alleged to be in the ‘grey area’ between legality and morality, illustrated the essence of human rights claims 08-goodhart-chap07.indd 123 12/9/08 3:05:59 PM
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Ideological (Mis)Use of Human Rights - David Chandler

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