Ideological (Mis)Use of Human Rights - David Chandler
Ideological (Mis)Use of Human Rights - David Chandler
Ideological (Mis)Use of Human Rights - David Chandler
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124 D. CHANDLER<br />
as an ethical challenge to law (IICK, 2000). To some<br />
commentators, using ethical arguments <strong>of</strong> human<br />
rights to undermine UN Charter law against war was<br />
dangerous or an ‘abuse’ <strong>of</strong> ethics; for others, as outlined<br />
with respect <strong>of</strong> Habermas, this, on the contrary, was a<br />
valuable ‘use’ <strong>of</strong> ethics.<br />
However, the rights <strong>of</strong> the ‘human’ (<strong>of</strong> ‘human security’<br />
or <strong>of</strong> human rights) that are enforced are not the<br />
rights <strong>of</strong> legally constituted subjects, they are not the<br />
rights <strong>of</strong> states, the subjects <strong>of</strong> international law. As<br />
the rights being enforced are not those <strong>of</strong> legal subjects,<br />
the content and enforcement <strong>of</strong> human rights is dependent<br />
on the ad hoc agency <strong>of</strong> states willing to shoulder<br />
the burden <strong>of</strong> paying for and participating in intervention.<br />
Th e ad hoc nature <strong>of</strong> human rights enforcement<br />
means that the ethico-juridical undermining <strong>of</strong> UN<br />
Charter law cannot take a universal form, but is inevitably<br />
dependent on a case-by-case approach, with the<br />
decision making dictated more by the interests and concerns<br />
<strong>of</strong> the powerful than the needs <strong>of</strong> the powerless.<br />
a For some critics, such as Danilo Zolo (2002), it is the<br />
global hegemon, the United States, that is empowered<br />
by more informal and ad hoc decision making, but for<br />
others, such as Michael Hardt and Antonio Negri, it<br />
is global neoliberal capitalism itself, taking the postnational<br />
form <strong>of</strong> Empire (Hardt and Negri, 2001).<br />
Whether the case <strong>of</strong> Kosovo, where human rights<br />
were held to trump sovereignty and international law<br />
(HRW, 1999), is understood as a positive step toward a<br />
more universal order or as a reactionary step toward a<br />
more hierarchical order may be a matter <strong>of</strong> normative<br />
choice. What is beyond dispute is that the existing legal<br />
order was challenged and undermined by states powerful<br />
enough to take the decision to wage war against the<br />
Serbian state. Th e US and most <strong>of</strong> the European powers,<br />
which backed the war, unilaterally decided to wage war<br />
outside the legal restrictions <strong>of</strong> the UN Charter order.<br />
In doing this they claimed that they were waging war<br />
on behalf <strong>of</strong> the rights <strong>of</strong> the Kosovo Albanians. But<br />
the nature <strong>of</strong> human rights claims is that, while Kosovo<br />
Albanians were the subjects <strong>of</strong> these rights, the active<br />
agents in enforcing them were the NATO powers, who<br />
in doing so accrued or claimed the right to wage war<br />
independently <strong>of</strong> the UN.<br />
Today, human rights, the rule <strong>of</strong> law, and good<br />
governance provide the key framework <strong>of</strong> international<br />
institutional policy practices. However, when it<br />
comes to the international sphere, the lack <strong>of</strong> mechanisms<br />
to generate global consensus, the increased<br />
power inequalities, and the limited safeguards make<br />
any attempts to institutionalize human rights regimes<br />
outside the mutual agreement <strong>of</strong> sovereign states much<br />
more problematic. Th e problem with constituting<br />
frameworks <strong>of</strong> sanction, intervention, and war on the<br />
basis <strong>of</strong> non-socially constituted legal subjects is that<br />
it leaves wide open the problem, raised by Schmitt,<br />
<strong>of</strong> ‘who decides?’ (Schmitt, 1996, 2003). Whether the<br />
intention is to (mis)use human rights ideologically or<br />
to genuinely do good in the world, the outcome is the<br />
same: ultimately, greater decision-making power and<br />
authority accrue to the states (or some would argue<br />
the USA as the sole remaining great power) that have<br />
the capacity to take on the responsibilities <strong>of</strong> deciding<br />
and enforcing.<br />
KEY POINTS<br />
The human rights-based approach has facilitated<br />
humanitarian aid being denied in some circumstances<br />
and in support for more militarized humanitarianism—for<br />
example, the NATO war over Kosovo.<br />
<strong>Human</strong> rights approaches appeared to directly challenge<br />
sovereignty in the 1990s, but in the 2000s have sought to<br />
redefi ne sovereignty as being compatible with international<br />
human rights protections. Central to this shift has been the<br />
ICISS report ‘The Responsibility to Protect’ (ICISS, 2001).<br />
<strong>Human</strong> rights approaches tend to redefi ne war fought in<br />
the post-colonial world as a matter <strong>of</strong> human rights crimes<br />
and human rights victims; they also tend to redefi ne war<br />
fought by Western powers, seeing intervention in the cause<br />
<strong>of</strong> human rights as more akin to police action than war<br />
making.<br />
<strong>Human</strong> rights approaches have facilitated a more fl exible<br />
and positive framework for military intervention, shifting<br />
away from UN Charter approaches that saw war as the<br />
‘scourge <strong>of</strong> humanity’.<br />
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