Ideological (Mis)Use of Human Rights - David Chandler

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116 D. CHANDLER Box 7.2 Hannah Arendt and Carl Schmitt on Human Rights Hannah Arendt on Human Rights . . . the public sphere is as consistently based on the law of equality as the private sphere is based on the law of universal difference and differentiation. Equality, in contrast to all that is involved in mere existence, is not given us, but is the result of human organization insofar as it is guided by the principle of justice. We are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights. (Arendt, 1973, p. 301.) Carl Schmitt on Human Rights Humanity as such cannot wage war because it has no enemy, at least not on this planet. . . . When a state fi ghts its political enemy in the name of humanity, it is not a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against a military opponent. . . . The concept of humanity is an especially useful ideological instrument of imperialist expansion, and in its ethical-humanitarian form it is a specifi c vehicle of economic imperialism. Here one is reminded of a somewhat modifi ed expression of Proudhon’s: whoever invokes humanity wants to cheat. To confi scate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him to be an outlaw of humanity; and a war can thereby be driven to the most extreme inhumanity. (Schmitt, 1996, p. 54.) fore an arbitrary one. Arendt argues that it may result in ‘privileges in some cases, injustices in most’ because ‘blessings and doom are meted out to them [bearers of human rights] according to accident and without any relation whatsoever to what they do, did, or may do.’ (Arendt, 1973, p. 296.) For Arendt, human rights frameworks, in separating the rights bearer from the agent capable of enacting these rights, legitimize a framework that is in fact worse than that suggested by Bentham’s view of pious wishes and utopian dreaming. Arendt suggests that a fi eld of fi ctitious ‘rights’ is opened up that is inherently open to abuse and arbitrary interpretation and enforcement. Carl Schmitt, a German legal and political theorist, writing at the same time as Arendt, was also critical of the idea of universal human rights. Schmitt approached the subject from the opposite end of the spectrum (not from the viewpoint of the human rights subject—the individual claiming human rights—but that of the external actor deemed to be responsible for enforcing human rights). He argued that claiming to intervene militarily on behalf of universal human rights was an act of power rather than principle, stating famously that ‘whoever invokes humanity wants to cheat’ (see Box 7.2). Schmitt makes similar points to Arendt in arguing that the concepts of ‘humanity’ and of ‘human rights’ are empty abstractions, i.e. that they do not correspond to any political reality of constituted rights and duties. Schmitt argues that the concept of human rights may well have had a useful polemical appeal at the end of the eighteenth century as a rallying cry against the then existing aristocratic feudal system and the inequalities and privileges associated with it. However, this did not mean that the era of universal human rights had arrived. Th e fact that the world is divided into diff erent and distinct political societies or states means that universal rights-bearing individuals do not exist. If they did exist then we would have a universal government, giving political and legal form to those universal rights (Schmitt, 1996, p. 55). For Schmitt, in the absence of a unifi ed world government that could constitute the universal human being as a rights-bearing subject in reality, human rights claims will have no clear court of adjudication or mechanism of enforcement. Schmitt argued that humanitarian action could be unproblematic if it was based on inter-state agreement and administered through a nonpolitical body, such as the International Committee of the Red Cross (ICRC). His point was that if abstract human rights claims were set against the agreed constituted rights framework then they threatened confl ict and instability. Th is was because the subject of these claims was separate from the agency enforcing them. Th e enforcement of claims of non-socially constituted legal subjects is necessarily an arbitrary one, decided by questions of power rather than principle. Schmitt feared that universal claims to judge the needs or interests of ‘humanity’ were not just illegitimate acts of power rather than law per se, but that they were also dangerous and destabilizing in a politically divided world (Schmitt, 1996, pp. 53–58). The Paradox of Human Rights Th e points made by Hannah Arendt and Carl Schmitt get to the heart of the paradox of human rights. Th eir capacity for challenging power as well as for being 08-goodhart-chap07.indd 116 12/9/08 3:05:55 PM
mechanisms of the exercise of power (unrestrained by law) stem from the fact that human rights claims are made on behalf of non-legally constituted subjects. Human rights claims may refl ect the immanent revolutionary overthrow of the established order or they may refl ect the oppressive use of governing power to rule beyond the limits of the law. Human rights claims, by separating the holder of rights from the agency of enforcement of these claims, refl ect merely the challenge to the legal order. Without a consideration of the context in which a discourse of human rights arises, it is impossible to make a normative judgement as to whether this challenge to the legal order of constituted rights is something to be supported or opposed. The Rise of Human Rights Natural rights, in terms of human rights, were revived in the sphere of international politics only during the Second World War. Th e modern government-led human rights movement could be seen to have been born during the War, with US President Franklin D. Roosevelt’s famous ‘Four Freedoms’ speech of 1941 or H. G. Wells’s publication Th e Rights of Man, or, what are we fi ghting for? of 1940. Th e defence of ‘essential liberties and freedoms’ helped to cohere the Allied War eff ort against Germany and Japan, but it is important not to confuse the declaration of abstract universal values with the intention (or capability) of enforcing a framework of universal rights in the international sphere. Th e gap between human rights as abstract rhetoric and as legally constituted and enforceable rights is illustrated well by the Universal Declaration of Human Rights (UDHR) agreed by the United Nations General Assembly (UNGA) in December 1948. Th ere was agreement on thirty human rights expressed as a set of abstract moral claims or aspirations; these rights were abstracted from political questions of concrete societies’ priorities and concerns and therefore could be signed up to by states with market- or stateregulated economic systems. Th ere could be common agreement precisely because the UN did not claim to be describing rights that were universally recognized in every state, nor did it attempt to enact or enforce these rights in a legal form. KEY POINTS IDEOLOGICAL (MIS)USE OF HUMAN RIGHTS 117 Human rights claims confl ate ethical and legal claims because the subject of rights is not a socially constituted legal subject. For this reason, human rights claims challenge the existing legal framework (whether it is authoritarian or democratic). Human rights claims express a capacity gap—where the rights holder is held to lack the capability of acting on their own behalf—therefore an external agent is held to be required to enforce these rights. The dependency on an unaccountable external actor therefore makes enforcement indeterminate and contingent upon the relations (and interests) of power. The Post-War Order Human rights frameworks can therefore be read back into the formative legal and political moments of the post-War international order. However, if we were to read this focus on universal human rights as a either a challenge to sovereignty or a challenge to the dominant framework of international order, we would be reading history backwards from the vantage point of today. It is important to appreciate that the Nuremberg tribunal, the UDHR, and even the 1949 Genocide Convention were seen as enforcing the framework of equal sovereign rights and the principle of non-intervention. Th e post-War order was constituted by the establishment of sovereign states as the only rights-bearing subjects of international law (see Chapter 2). Th is was made explicitly clear in the great power deliberations and international conferences in preparation of the UN Charter. Th ere was no contradiction between state sovereignty and human rights (between the rights of states and the rights of individuals) because the international order did not recognize individuals as legal subjects. Th erefore, as US Secretary of State Edward R. Stettinius stated, the legal situation was clear: ‘Th e provisions proposed in the Charter will not, of course, ensure by themselves the realization of human rights and fundamental freedoms for all the people. Th e provisions are not made enforceable by any international machinery. 08-goodhart-chap07.indd 117 12/9/08 3:05:56 PM
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Ideological (Mis)Use of Human Rights - David Chandler

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