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7 Human Rights

Abdullahi A. An-Na`im

Human rights is not commonly accepted as a field in sociology, despite the clear overlap in subject matter and possibilities of mutual conceptual and method- ological influence. In terms of the organization of this volume, for example, freedom from discrimination, as an overarching human rights principle, has obvious implications for fields in sociology ranging from citizenship and national identity to education, stratification and mobility, and health policy. Specific human rights, like freedom of speech and association, are clearly rele- vant to issues of political participation and labor. Gender, sexuality, children, and race are major themes among human rights scholars. The relationship between the state and civil society is central to the international articulation and national implementation of human rights in all societies around the world, and as such of interest to sociologists. Human rights considerations are also relevant to the mediation of competing claims to economic and social justice, identity, and communal autonomy, in global cross-cultural and comparative terms. These concerns join those of sociologists over such issues as globalization and postcolonial power relations, social movements, development, accountabil- ity of transnational corporations for labor relations, and environmental con- cerns.

To explore possibilities of collaboration and mutual influence between sociologists and human rights scholars, I begin with an overview of the human rights paradigm as the framework for the specification and implementation of rights through national politics and international relations. Since many of the main themes of human rights are commonly known in terms of constitutional or civil rights (subject to the crucial difference indicated later), sociologists might want to consider whether their familiarity with the working of domestic (national) civil rights could enable them to contribute to mediating what I call the paradox of international accountability for the domestic practice of

sovereign states. Mediating that paradox also calls for some understanding of the debate over the universality and cultural/contextual relativity of human rights, discussed in the second section. In the third section of this chapter, I discuss the need for complementary legal and social science approaches to the implementa- tion of human rights as a framework for justice; and provide a brief review of some of the ways in which sociologists have addressed human rights issues.

The Human Rights ParadigmThe Human Rights Paradigm

Human rights, in a generic sense, can be seen as a framework for an adequate response to the profound social concerns of persons and their communities. This primarily procedural sense of human rights is about creating and maintaining `̀ the space'' for individuals and groups to achieve justice, personal security and well-being, general political stability and economic development, and so forth. At the same time, however, human rights norms do have a specific normative content that reflects a certain understanding of what these individual and soci- etal objectives mean, and how they should be realized in practice. In a substan- tive sense, therefore, human rights have a clear ideological orientation to what it means to be human, and how social and political institutions should work in order to achieve certain ends. However, there is a tension between these two dimensions of human rights. To inspire and motivate people to take them seriously, human rights need to have significant and relevant normative content in each specific context.Yet this is likely to be resisted by privileged and powerful persons and groups in any society precisely because of the potential to change existing power relations. Aspects of this tension and its implications will become clearer after a brief explanation of what human rights are commonly understood to mean, and how they are supposed to work.

By the human rights paradigm I mean the idea that the protection of certain individual and collective/group rights, as discussed below, is a matter of inter- national concern, rather than the exclusive internal affair of states. Paradox- ically, as explained below, the same states control the processes of determining these rights at the international level, and applying them within national jur- isdictions. Moreover, what the so-called international community may do about a state that willfully and persistently disregards its international obligations to protect those rights is also subject to a complex interaction of legal principles and practical considerations. For instance, the notion of `̀ humanitarian inter- vention'' to stop serious human rights violations within a country (as claimed by the NATO governments who intervened militarily in Kosovo in 1999 against the government of Yugoslavia) involves balancing such factors as human concern about the suffering of the victims, the risks of action or inaction for international peace and security, and the political and economic interests of the intervening state(s), as well as the short-and long-term implications of violating the sover- eignty of that country.

Much of the normative, as well as the procedural, dimension of human rights is traditionally supposed to be provided for in national constitutions and laws

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for domestic application by the judicial and executive organs of the state, as a matter of national sovereignty. Earlier attempts by some states acting collectively to extend such regimes into the boundaries of another state included interna- tional efforts to end slavery and to protect minorities during the nineteenth and early twentieth centuries. But the real launch of the human rights paradigm in the generally accepted sense came about around the middle of the twentieth century. The horrific events of the Second World War prompted strong agree- ment by the mid-1940s on the need to effectively check the serious failure of any state to protect the rights of all persons and groups within its territorial jurisdic- tion (Steiner and Alston, 1996, p. 59). That was the first time there has ever been such a broad consensus about the need to reconcile respect for the sovereignty of a state with the protection of certain human rights as rights due to every human being by virtue of his or her humanity, without distinction on such grounds as race, sex, belief, language, or national origin.

But since the process of determining the nature and scope of these rights, and approaches to their international protection, was confined to sovereign states which were members of the United Nations (UN) in 1945, only four African states and eight Asian states were included. The rest of Africa and Asia was colonized at that time by the same European powers that were proclaiming the universality of human rights at the UN. Moreover, some basic ambiguities in the original concept continue to frustrate the prospects of its practical application. For example, these rights are proclaimed in general terms as belonging to all human beings, while their realization is strongly associated with citizenship of a specific country. Although some general principles of international law still apply to how a state may treat non-citizens who happen to be within its territory, the distinction between citizen and non-citizen is sometimes difficult to justify from a human rights point of view (Turner, 1993b, p. 495; 1997). To avoid these complex issues in this brief overview, I refer to persons under the jurisdiction of a state, instead of identifying them as its citizens.

The consensus of the mid-1940s was strongly reflected in the Charter of the UN of 1945, which is the most authoritative document of the present interna- tional order. According to Article 1 of the Charter, `̀ The Purposes of the United Nations are . . . (3) To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental free- doms for all without distinction as to race, sex, language, or religion.'' While emphasizing this basic obligation in other Articles, the UN Charter left the task of definition and implementation of `̀ human rights and fundamental freedoms'' to subsequent developments.

That process began with the drafting and adoption of the Universal Declara- tion of Human Rights of 1948. But the Declaration is not binding as such because, according to the UN Charter, resolutions of the General Assembly are merely recommendations to member states of the organization. The drafting and adoption of detailed treaties, which are binding under international law, followed, to provide definitions of rights and their implementation. Moreover, some human rights norms can also be found in certain principles of what is

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known as customary international law, like the prohibition of genocide, war crimes, and crimes against humanity. These norms are binding on all states, regardless of their ratification of treaties on those matters. Some human rights scholars argue that certain aspects of the Universal Declaration have become binding as customary international law. For example, the prohibition of torture is generally accepted as binding on all states as a principle of customary international law, regardless of their ratification of the specific treaties on the subject.

The treaties setting the international `̀ legal'' standards of human rights range in scope from earlier Conventions on labor rights (1930), genocide (1948), and slavery (1956), to the broad 1966 International Covenants, one on economic, social and cultural rights, and the other on civil and political rights. There is also a growing number of specialized treaties, like the Conventions for the Elimina- tion of All Forms of Discrimination, on grounds of race (1965) and gender (1979), and the Convention on the Rights of the Child of 1989. Similar stand- ards appear in the regional documents of the European, Inter-American, and African systems (Steiner and Alston, 1996, p. 563). This legal regime also includes principles of humanitarian law regulating the conduct of armed forces in conflict situations, like the four Geneva Conventions of 1949, and the 1951 Refugees Convention. Human rights standards have also been elaborated through several major international conferences. During the 1990s, for instance, human rights principles and policies were elaborated in such documents as the Vienna Declaration and Programme of Action (1994) and the Beijing Platform for Action of the Fourth World Conference on Women (1995). Human rights are integral to the mandate of specialized intergovernmental agencies like the Inter- national Labor Organization (ILO), the World Health Organization (WHO), and the United Nation Development Programme (UNDP).

As the increasingly wide range of local, regional, and global actors and processes envisioned by this complex web of documents and institutions clearly shows, the development of an international legal framework cannot mean that the implementation of human rights be left to purely legal approaches. The basic idea of the human rights paradigm is now firmly established in international relations, as well as in the national politics of the vast majority of countries around the world, subject to differing assessment of its efficacy or consistency of its application. Nevertheless, the basic paradox remains: how to achieve effect- ive international supervision of domestic human rights protection without violating national sovereignty as the expression of the right to self-determina- tion, which is itself a collective human right under the first Article of the 1966 Covenants.

From this perspective, I suggest, social science approaches would be extremely important for understanding the processes of legal articulation and implementa- tion of these rights as the proper and legitimate exercise of the right to self- determination, rather than its negation. Sociological analyses are needed, for example, for understanding the processes of social construction of rights, whose interests are served by those processes, and the role of civil society and social movements in generating the political will to adopt and implement international

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treaties protecting these rights. Such insights are essential for mediating the paradox of international protection of human rights through respect for sover- eignty, instead of its violation, as explained below.

It is true that, by ratifying treaties and subscribing to international human rights policy statements, states are indicating voluntary acceptance of human rights obligations as limitations on their national sovereignty. But that notion itself can be seen as entrenching, rather than diminishing, the underlying para- dox, because it is the state that decides when, how, and to what extent to limit its own sovereignty. First, the structure and content of any human rights treaty are negotiated and agreed among the delegates of states, before the treaty is opened for ratification. Second, and regardless of its publicly declared position, no state is legally bound until it formally ratifies the treaty according to its own internal constitutional and political process. Moreover, subject to the requirements of the international law of treaties, a state has the right not only to enter `̀ reservations'' limiting the scope of its obligations under a treaty, but also to repudiate a treaty that it has previously ratified. Third, the state is also intended to play a crucial role in the interpretation and implementation within its territory of the human rights treaties it has ratified. Where national legislation is required to incorpor- ate international treaties into national law, as in the United States and United Kingdom, the domestic normative content of a treaty is effectively determined by the way it is expressed in legislative language, and interpreted through the judicial process, of the country (Steiner and Alston, 1996, p. 26). In other words, domestic compliance with a state's international obligations to protect human rights can only be achieved by the official organs of the same state.

Thus, while intended to ensure the protection of certain minimum rights, international protection is dependent on the active cooperation of states in limiting their freedom of action within their own domestic jurisdiction. The paradox of self-regulation by the state of its own behavior is, of course, also true of domestic constitutional and legal protection of rights. The crucial differ- ence, noted above, is that constitutional rights are the product of internal dynamics, whereas the human rights paradigm seeks to influence domestic situations in favor of upholding certain internationally recognized standards. In other words, the paradox is sharper for the human rights paradigm because it has to overcome internal opposition within the country in question, without having the power to impose its will on states which refuse to comply. The need to mediate this enduring paradox calls for a clear understanding of the nature and functioning of social and political forces and institutions within each country, and in its relations with other countries.

It is not helpful to simply call for formal limitations on state sovereignty, because that is neither practically feasible nor necessarily good for the protection of human rights in the long term. Formal limitations on sovereignty are not feasible because sovereignty is integral to the foundations of the present inter- national order, as entrenched in Article 2(7) of the UN Charter and other international documents, and fundamentally affirmed by national constitutions around the world. Since states are the principal actors at both the international and national levels, they are unlikely to relinquish their own autonomy by

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abandoning sovereignty or allowing other actors to achieve that result. Even if they were practically feasible, formal limitations might also be counterproduc- tive because sovereignty is the essential expression of the fundamental collective right to self-determination, as the practical vehicle of domestic policy and the necessary medium of international relations.

A more realistic and desirable approach, I suggest, is to seek to diminish the negative consequence of the paradox of self-regulation by infusing the human rights ethos into the fabric of the state itself and the global context in which it operates. In that way, the protection of human rights becomes the outcome of the free exercise of the right to self-determination, instead of being seen as an external imposition which violates that right. This paradigm shift can best be achieved by upholding the universality of human rights as, in the words of the Preamble to the Universal Declaration, `̀ the common standard of achievement for all peoples and all nations.'' Since external imposition will probably be resisted as a clear violation of sovereignty, while voluntary compliance with commonly agreed standards is likely to be seen as vindication of sovereign authority, the universality of human rights must reflect true consensus around the world. At a formal level, that is said to be achieved through agreement among states, as the representatives of their societies under international law. But according to the human rights paradigm itself, and as a matter of practical politics, international agreements are legitimate and sustainable only to the extent that they express the genuine consent of national societies and local communities.

The Quandary of Universality and RelativityThe Quandary of Universality and Relativity

The issue of popular acceptance of the human rights paradigm is frequently discussed in terms of a binary of universality and relativity (Steiner and Alston, 1996, p. 166; Negengast and Turner, 1997), as if one has to either fully accept or completely reject the universality of certain rights for all human beings. At one end of this purported spectrum are said to be countries which claim cultural/ religious relativity or contextual specificity to justify rejecting or qualifying certain universal human rights norms, in contrast to those which are supposed to fully accept the universality of all human rights, at the other end. Whereas some Islamic and East Asian countries are commonly placed on the relativist side, Western countries are commonly assumed to be universalist. Upon reflec- tion, however, one can see that such a binary view of this issue is both misleading and difficult to substantiate or maintain in practice.

A binary view is misleading in assuming either that human rights can be culturally and contextually neutral, or that a conception of human rights emerg- ing within one culture or context can be accepted by other cultures for applica- tion in their context. To explain, I would first note that, as a normative system that seeks to influence people's behavior and direct the institutions which regu- late their lives, human rights can only be the product of culture, to be interpreted for practical application in a specific context. In other words, human rights

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norms can be neither imagined nor understood in the abstract, without reference to the concrete daily experience of the people who are supposed to implement them. As indicated above, the human rights paradigm is founded on the belief in the possibility of universal rights, due to all human beings, everywhere, as the basis for international concern about how people are treated in any part of the world. Yet, since any conception of human rights as a normative system is the product of some culture(s), a given set of these rights can be perceived as alien or unacceptable to other cultures. That is exactly the quandary of universality and relativity: namely, how to determine universally valid and applicable human rights norms, which would naturally tend to reflect certain cultural values and institutions, without expecting one society to submit to the normative system of another.

It is difficult to substantiate a binary view of universality and relativity of human rights because that would ignore the realities of power relations in the world, and oversimplify the positions and behavior of countries on both sides of this alleged divide. For example, the criteria and process by which the present set of international human rights was established in the first place were not as inclusive as they ought to have been. As noted earlier, the vast majority of the peoples of Africa and Asia were not represented at the UN, except by the same colonial powers which had for decades violated the basic human rights of colonized peoples. Upon achieving independence, African and Asian states had no choice but to at least pretend to accept the pre-established concept, structure, and content of the human rights paradigm as a condition of membership in the international community. That is to say, the balance of global economic, milit- ary, and political power relations in the postcolonial world has enabled the developed countries to raise the human rights paradigm they have established themselves as the condition for membership in the international community. This does not mean that this paradigm can never become universally accepted and applied. Rather, the point is that efforts to promote universality should be founded on a clear understanding of the issues from different perspectives.

It is profoundly problematic, in my view, to assume that the universality of human rights is `̀ self-evident'' or has been `̀ established,'' and all that remains is to `̀ pressure'' a few ruling elites in developing countries to abandon their `̀ opportunistic'' denial of the obvious. This view, on the hand, encourages hypocrisy among the governments of developing countries who have to pay lip-service to human rights in exchange for favorable treatment by developed countries in such matters as development assistance, support for credit from international financial institutions, and/or the grant of special trade status. The nature of existing power relations, on the other hand, enables the governments of developed countries to raise the human rights paradigm selectively, in the service of their own foreign policy objectives (compare the US positions regard- ing China and Cuba), without regard to the integrity and credibility of this paradigm as a whole. The application of double standards in judging similar situations is possible because of the lack of an independent check on the alleged commitment of developed countries to the universality of human rights. Since these states dominate international relations, they are the primary judge of their

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own behavior, as well as that of developing countries. In fact, developed coun- tries have not shown consistent acceptance of the universality of human rights in their own national policies. This is reflected, for example, in the resistance of Western countries to accepting that economic, social, and cultural rights are actually human rights, as proclaimed by the Universal Declaration and numer- ous international treaties (Eide et al., 1994; Steiner and Alston, 1996, p. 256). For instance, Article 25 of the Declaration provides that everyone has a `̀ right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services.'' Thus, these economic and social rights are as much human rights as the right to life, liberty, and security of person (Article 3), protection against torture, cruel, inhuman, or degrading treatment or punishment (Article 5), and freedom of opinion and expression (Article 19). No one would suggest that torture or suppression of freedom of expression be condoned or tolerated any- where in the world today. Yet there is little objection to the denial of food, shelter, and medical care to the majority of human beings around the world, especially those living in developing countries. Western countries also find it difficult to accept the possibility of protecting any collective or group claim or entitlement as a human right within an existing state, although the first Article of both the 1966 Covenants provides for a collective human right to self-determina- tion of `̀ all peoples'' (not nations, countries, or states). Since this Article clearly envisages political independence as a means to achieving such objectives as political participation, social development, and economic well-being, denying any group of people any of the essential elements of this right is a violation of the right itself.

It is true that some economic, social, cultural, and/or collective `̀ interests'' are substantially provided for within the national jurisdictions of developed Western countries through the normal political and legal processes of each country; sometimes with special constitutional or legal protection against easy violation. But the essence of the human rights paradigm is to ensure that such interests are safeguarded against the contingencies of national politics and legal processes. In fact, the idea emerged from the experience of Western countries which sought, through constitutional protection, to place certain fundamental civil liberties beyond daily politics. That is, recognition of a specific entitlement as a human right is supposed to enhance the prospects of its practical implementation more than can be expected from the normal political and legal processes of any country. To the extent that they do in fact respect and protect economic, social, and cultural rights, or collective rights, developed countries have nothing to fear from accepting those rights as human rights. Conversely, such acceptance is necessary whenever those rights are not sufficiently respected in the manner and to the extent required by international human rights standards.

It is true that economic, social, cultural, and collective rights are presently difficult to specify and enforce in the same way one can do with civil and political rights. For example, since the right to work cannot practically mean an obligation on the state to actually provide work for every person, the question is: what should be the content of this right and how can it be implemented?

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Collective rights raise issues of human agency in determining membership and boundaries of groups, or more generally the dangers of elite appropriation of the collective voice of groups and communities. However, difficulties are only to be expected because formal recognition of these rights is much more recent, in comparison to civil and political rights. Moreover, these rights need not neces- sarily fit the model of civil and political rights to qualify as human rights. The processes of concrete definition and implementation of these rights, which require social scientific analysis as suggested here, are not likely to make sig- nificant progress unless they are taken seriously as human rights, rather than simply objectives of public policy.

The real reason for Western resistance to accepting these rights as human rights, in my view, is ideological or cultural. Subject to national and regional variations, the liberal ideology/culture of these countries tends to hold that economic, social, and cultural benefits or services should be provided for through the normal political process, instead of being given legal sanction as rights. Because of its emphasis on individual autonomy and privacy, against other social entitlements as well as the state, the liberal mind finds it difficult to conceive of collective entities or groups as bearers of rights. Liberals may see their views as obviously valid to every reasonable person, but that is exactly how ideological or cultural conditioning of human behavior works everywhere. In other words, liberal societies tend to resist accepting economic, social, and cultural rights or collective/group rights as human rights because that is the position of their own ideology or culture. If ideology or culture can exempt Western countries from accepting these rights as human rights, non-Western countries can claim the same regarding such human rights norms as equality for women or protection of freedom of expression.

Moreover, the persistence of some Western governments in asserting chauvi- nistic notions of national sovereignty can fairly be described as relativistic. For example, the United States is notorious for seeking to fashion international human rights treaties to fits its own ideological views and social institutions during the drafting process, only to fail to ratify and incorporate those treaties into its domestic law for application within the country itself. This is true from the 1948 Genocide Convention, which took the United States more than forty years to ratify, and only subject to reservations, to the 1989 Convention on the Rights of the Child, which is now ratified by every country in the world except the United States and Somalia. Since Somalia has had no government since 1992, the United States stands completely alone in refusing to ratify this Convention. It is difficult to see a significant difference between the position of the government of the United States and those of countries like China, Iran, and Saudi Arabia, as all of them are refusing to allow their own domestic practice to be judged by agreed international standards. Moreover, the position of the USA is especially damaging for the human rights paradigm, not only for its failure to live up to claims of global leadership in this field, but also because its economic and military power enables it to play a paramount role in shaping international relations, as well as influencing the domestic policies of other countries around the world.

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Instead of insisting on a sharp dichotomy between universality and relativity, it is better to perceive the issues in terms of a constant mediation between the two poles. The realities of enduring cultural diversity around the world, on the one hand, and global multifaceted interaction and interdependence, on the other, challenge both the theoretical validity and practical viability of a framework of universality and relativity as polar extremes. An example of mediation between the excesses of both extremes can be seen in the doctrine of `̀ the margin of appreciation'' in the European human rights system ± allowing states a degree of discretion in the interpretation and implementation of their human rights obli- gations (Steiner and Alston, 1996, p. 601). But

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