Are human rights history?
Not so long ago, human rights were seen as a way out of the crises of a divided world. From the late 1970s, almost all political actors began invoking this idiom and linking it morally with their own, often conflicting imperatives. In a crumbling socialist Poland, for instance, independent trade unionists called on the right to strike as a human right. At the same time, neoconservative US government advisors and neoliberal economists situated freedom rights of markets and movement — including migration — against social and economic rights that had been achieved by postwar welfare states. By contrast, postcolonial states continued to push for an expansion of collective social and economic human rights on a global scale. In 1986, the UN declared a “right to development,” formulated by the Senegalese constitutional judge Kéba Mbaye, at a moment when the forced modernization of the so-called Third World had run its course.
Human rights belong to these global transformations as much as Chernobyl or the Live Aid concerts. Precisely because this language was so elastic and intangible, it could wash round the ideological ruins of the 20th century, enfolding and eroding state socialism as well as apartheid, but also anticommunism. In South America, the global shift from authoritarian dictatorship to liberal democracy began first, cushioned by the soundtrack of human rights.
If human rights were a global leitmotif they remained elusive. In Argentina, the mothers of the “disappeared” demonstrated for the right to know exactly what had happened to their murdered daughters and sons (mostly leftist opposition). Elsewhere in Latin America, socially engaged Catholics invoked human rights — but so did Pope John Paul II, an opponent of supposedly Marxist liberation theology. At East Berlin’s State Academy of Sciences, philosophers were reconciling Marxism with human rights, while in West Germany the anticommunist Society for Human Rights supported the apartheid regime in South Africa. Nelson Mandela, the imprisoned chairman of the African National Congress, appeared in 1988 as a “terrorist” on Ronald Reagan’s US immigration watchdog list. Amnesty International rose to fame as the advocate of all political prisoners outside of the West, as long as these prisoners did not advocate militant change of their societies — this is why Mandela, the global human rights icon of the 1990s, did not receive the support of AI while he was imprisoned. But new human rights NGOs founded by small groups of activist lawyers and doctors were flourishing in the 1980s. Helsinki Watch (starting in 1988, now part of Human Rights Watch), based in New York, supported the dissidents in Eastern Europe; Médecins Sans Frontières campaigned for direct humanitarian aid, especially in Africa.
Still, the large late 20th-century social movements in the West coalesced around other issues, loosely connected to human rights: peace, the protection of the environment, and opposition to nuclear power. On June 12, 1982, one million people demonstrated in New York’s Central Park against nuclear weapons and for an end to the Cold War arms race. Advocates of a human right to peace aimed to prevent global conflict from turning into a nuclear apocalypse. Meanwhile, the Soviet Union joined the civil war in Afghanistan, while the United States did the same openly and covertly in Central America and elsewhere. Wherever one superpower sent their military advisors, the other was already there. In the Middle East or Africa, the global hegemons armed the different conflicting parties and enflamed entire regions. The civil wars and refugee movements of our time began in the late Cold War.
At the end of the 20th century, human rights seemed new and full of promise. They may not have caused the collapse of the old or the emergence of a new world order, yet the idea that all humans had inalienable rights seemed an intuitive response to the 20th century’s defunct ideologies. In this sense, human rights became universal only in the twilight years of the Cold War, when virtually everyone used the idiom to grab for moral authority in an uncertain, transforming world.
This essential ambiguity became lost after the end of the Cold War as human rights were portrayed as a project of the West, understood as liberal, individual rights that need to be asserted globally. In 1992, for example, the European Union made human rights the basis of its foreign and security policy and of its allocation of development aid. Now a class of experts in “global governance” — Western foreign policy-makers, international lawyers, social scientists, new NGOs, the “transnational civil society” — appropriated human rights for themselves. For them, human rights were the new moral idiom for the post–Cold War world of “globalization.” The abstract Kantian idea formulated two hundred years earlier now seemed to become a reality: that a transgression of rights in one place on earth should be felt everywhere.
A glance backward at the cataclysmic 20th century — the Holocaust, but also the crimes of communist and postcolonial state powers from Kolyma to Biafra — provided human rights with moral legitimacy. A new time demanded a new past, and this new past turned out to be a succession of catastrophic and violent events that gave birth to the new time of human rights, imagined not as a new utopia but as an endless present. Therefore, the decisive innovations in international human rights law, above all the founding of the International Criminal Court in 2002, aimed at a moral reckoning with a violent past. A linear conception of history — understood as modernizing social progress — gave way to memories and feelings of the suffering individual. Trauma, victimhood, and testimony became keywords to this new way of dealing with the past. The genocides in Rwanda and Bosnia were so shocking because they seemed to reprise the catastrophes of the past, and the failure of international institutions to end them gave urgency to the idea of a new global human rights regime. Holocaust memory and charges of genocide were crucial, as they made Srebrenica a second Auschwitz. It was the pictures of the civil war in Bosnia — that is, in the heart of Europe, and not in Rwanda or in the Congo, where a bloody civil war had been going on for decades (with more than five million victims) — that brought about a change in Western interventionism.
NATO’s first ever deployment in Kosovo in 1999 thus took place for human rights, but lacking a UN mandate, it also contravened international law. German Foreign Minister Joschka Fischer won over the pacifist majority of his Green Party by arguing that Auschwitz could not be repeated. Czech president and former dissident Václav Havel called NATO’s military campaign against former Yugoslavia an “ethical war” for the rights of individuals above those of states. In April 2000, Michael Ignatieff, at that time at Harvard the director of one of the numerous new centers for human rights, succinctly formulated the new understanding: human rights should be reduced to their bare minimum and not be misused as a language of global justice. They were “not much more than the basic intuition that what is pain and humiliation for you is bound to be pain and humiliation for me.” After 9/11, Ignatieff celebrated the new wars led by the United States and its allies in Afghanistan and Iraq. In the 21st century, the United States seemed to be an historically unprecedented “empire lite,” a benevolent global hegemon supporting free markets, human rights, and democracy based on the most powerful military that the world had ever seen — an empire of empathy.
And today? It appears as if the late 20th-century enthusiasm for human rights has become a thing of the past, and not just because of the forever wars since 2001. To be sure, the NGOs that have proliferated since 1990 continue to exist and work on the difficult task of establishing something like a global rule of law. International human rights lawyers, for example, try to bring former dictators of the Global South and their soldiers into Spanish or German courts based on the new principle of universal jurisdiction, which allows the prosecution of crimes against humanity outside of the states in which they were committed. We find echoes of the social movements of the 1980s in today’s protests, from “women’s rights are human rights” to new radical groups like Occupy and Black Lives Matter, which occasionally invoke human rights for their cause. The United Nations felt compelled to recycle its 1984 declaration of the “Right of Peoples to Peace” in a 2016 declaration of the “Right to Peace.” Global environmental protections are increasingly phrased in the idiom of human rights, as in last year’s UN deliberations over the right to clean water, air, and soil.
The juridifaction of the world through the proliferation of international legal treaties continues, although the United States rarely participates. That raises the question of why authoritarian governments in China or Russia, Iran or now Brazil should ratify international human rights treaties? Why should they support the International Criminal Tribunal at The Hague if the “empire lite” scoffs at the world court’s authority?
Even in the years before the populist backlash of our time, a feeling of human rights fatigue and disillusionment was gaining ground, especially among those born between 1968 and 1989, the so-called “human rights generation.” The more human rights morally armed the global interventionism of the West, the more human rights language was attacked by postcolonial critics. Legal scholars Antony Anghie and Makau Mutua, for example, believe that human rights are, at their core, specifically “Western,” even more so since the late 20th century, when the vision of human rights narrowed down to empathy with distant suffering in the Global South, for which the West has to assume moral responsibility. For these critics, the parallels to the humanitarian justification of colonial interventionism in the past are obvious. Ironically, human rights have become more Eurocentric in recent years compared to their original formulation in the Universal Declaration of 1948.
The late 1990s also witnessed a new leftist dismissal of human rights, for example, by Marxist star philosophers like Slavoj Žižek or Alain Badiou. After the financial crash of 2007–2008, this critique merged with the attacks on neoliberalism. Are human rights merely a moral alibi for the shock doctrine of privatization, deregulation, and dismantling of the welfare state, which began in South American dictatorships in the ’70s under the influence of neoliberal economists and spread throughout the world in the ’90s, as the left icon Naomi Klein claims? Or are human rights simply not enough to tame global capitalism, since human rights are concerned with the rights of individuals against the state, and not for rights claims within the state, for example social and economic rights? Perhaps “market fundamentalism” needs a more forceful foe, as historian and legal scholar Samuel Moyn has argued.
Is the time of human rights therefore past? Yes and no. Yes in the sense that the human rights idealism of the late 20th century has itself become historical. It is time to review and count our losses, to admit that, in light of the outsized expectations, human rights will always fall short. This explains the melancholy with which many human rights activists of the 1990s look back at what has not been achieved. Or has the era of human rights just begun, and these past international rights claims constitute an arsenal for possible futures? The foundational consensus of the 1948 declaration, for example, was that individual and collective, including social and economic rights, are indivisible. It promised to counter not just the symptoms but the causes of cataclysmic violence as well: a degree of social and political inequality that smashed an entire world into pieces in the first half of the 20th century.
The purpose of the numerous UN treaties and declarations, pushed through primarily by the postcolonial states and often ridiculed today for their flimsy mechanisms of enforcement, were meant to cocoon the world into a form of legal diplomacy that allows for conversations and possible consensus to avoid new global conflicts. A world society of equals was supposed to be a safeguard against a return of colonial interventionism after the end of European empires. Self-determination of peoples, that is sovereignty itself — only seemingly paradoxically — became a human right in 1976.
“All human beings are born free and equal in dignity and rights,” states Article 1 of the Universal Declaration of 1948. The articles that follow specify, and subsequent state constitutions or international treaties codify, the exact legal implication of this sentence. Yet what constitutes a violation of human dignity in our time remains open-ended and needs to be negotiated anew. In light of the recent backlash, it is worth rethinking the past promises of the 20th century, especially the failed attempts to balance individual and collective rights on a global scale. Human rights will continue to attract punishing criticism, and will eventually disappear from our public life, if it proves impossible to reconcile individual rights with rights claims that can only be realized in a more equal world.
A German version of this essay appeared in Die Zeit, December 13, 2018.
Stefan-Ludwig Hoffmann is professor of Late Modern European History at the University of California, Berkeley. He lives in Berkeley and Berlin.
Posted on LA Review of Books June 2019.