“The Death of Human Rights,” screamed the March 1, 2010 cover of Newsweek magazine. The article by Joshua Kulantzick, which confined its title to this mission’s downfall, shows a primary concern with the declining importance of human rights on the agendas of major state actors, international civil society, and the public at large. That lack of interest is not related to controversy over which rights ought to be enjoyed by all, but rather the obvious structural failure of the mechanisms that were meant to bring about the realization of those rights. In many instances, even where the rights have been successfully incorporated into national legal instruments, they remain rights only on paper because of inadequate public enforcement and implementation systems in both the international and national contexts (Hagen & Boutros 2010).

Responses to the Crisis in Human Rights

This “crisis in human rights” has invited a bulk of academic literature proposing various solutions to compensate for the failure of the human rights project to deliver results for billions of the world’s most vulnerable people. These proposals tend to focus on the development and refinement of international legal standards and mechanisms or the definition and legitimization of human rights from a theoretical perspective, articulating their intellectual and spiritual foundations. One example of the latter is Upendra Baxi’s book, Human Rights in a Posthuman World (2007), which is emblematic of the kind of academic, poststructuralist fretting about the human rights project and its theoretical underpinnings that is so abstract as to be irrelevant to its subject: the victims of human rights abuses.

James Griffin, to mention another theoretician, seems unconvinced that we can go forward with human rights without a more solid ethical ground upon which to base those rights (Griffin 2008). While the philosophical search for such a ground is intellectually stimulating, it rather misses the point. A solid moral-political basis for human rights already exists in the Preamble to the UN Charter of 1945, in which the “Peoples of the United Nations … reaffirm faith in fundamental rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” (emphasis added). The Universal Declaration of Human rights (UDHR or “the Declaration”) of 1948 similarly affirms its “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” as the “foundation of freedom, justice, and peace in the world.” This reaffirmation of global faith in human dignity, then, however philosophically, politically, and socio-culturally supported in diverse national settings – an important and ongoing project – is, indeed, the starting point of the human rights mission as a serious global endeavor.

The perceived difficulties in the interpretations of human rights that Griffin refers to (2008: 16) are addressed from the basic starting-point that human rights are founded on the protection of human dignity against abuse of power. Actions that violate human dignity, as related to people’s fundamental freedoms and entitlements, violate human rights. Certainly, the definition of more and more specific human rights within the context of the UN covenants and conventions is not meant to be an exhaustive list, but it is a substantial and more than adequate basis for moving the whole mission closer to reality. While a more specific, ethically based definition of what constitutes human rights is no doubt of intellectual interest, it is certainly not necessary for action – based on the already-declared rights – to move forward.

Others are closer to the mark. Paulina Tambakaki’s critique of the limitations of human rights as legal instruments (2010: 7) is largely accurate. However, her dismissal of human rights in favor of citizenship rights as an alternative approach to human dignity protection fails to consider the potential of the human rights discourse in that mission. Citizenship rights as such are fine for countries in which the state is functioning effectively and the rule of law recognized. But for billions of the world’s people who live without the protection of the law, citizenship rights – which imply the legal recognition of not only negative freedoms but also certain positive entitlements – mean little where human security and a socio-economic perspective are lacking. The question posed in this essay is what human rights can still mean for people living in such adverse environments.

In his treatise, Whose Universal Values? The Crisis in Human Rights (1999), Michael Ignatieff discerns three sources at the basis of the crisis in human rights: (1) A political crisis, manifesting itself particularly in regard to state sovereignty, humanitarian intervention, and the double standards that tend to persist in the use of internationally mobilized power; (2) A cultural crisis, displayed in the discourses of fundamentalism and postmodernism; And (3) a spiritual crisis apparent in a lack of human rights-sustaining convictions and a surrender to relativism. Yet, he concludes that “[h]uman rights is the only globally available moral vernacular which validates” the claims of the oppressed (1999: 37). This is undoubtedly true, but the challenge remains to enhance their relevance in the lives of people, which has already been seriously put in doubt by Abdullahi An-Na’im:

The international human rights movement is facing growing problems of irrelevance to people’s daily concerns, marginalization in local and global politics, and cooptation by ruling elites, privileged classes and global economic forces in local as well as global politics. In order to resolve these problems, the movement needs to critically re-examine some of its assumptions and policies in order to recapture its original mandate, revise its concepts and methods.
(1998: 3)

A critical re-examination in order to enhance the relevance of human rights in our world today: That is precisely the aim of a political economy approach.

Political Economy of Human Rights

When the Review of Political Economy started that journal, its mission statement defined the approach as follows:

Political economy is best defined as an approach to economics, which puts first priority on practical, and policy issues, and tailors theoretical and empirical work accordingly. The economy is regarded as being located in historical time, interacting with a political, social, and natural environment. Within the system the agents change and interact in a manner, which cannot be described adequately by the assumptions of neoclassical theory.
(Quoted in Dow 1990: 351)

It is particularly in adverse conditions, such as those pertaining to situations of extreme pressure on scarce resources, that such an analysis may be enlightening. It implies a meta-juridical approach that looks beyond disciplinary boundaries. Empirically, the triangle economy-polity-law is of central importance. The analysis of economic, political, and legal aspects of problems and policies at their interface and in their interaction is crucial.

The political economy of human rights, then, is a way of looking behind systemic violations and structural non-implementation. Naturally, its primary contribution lies in the field of socioeconomic rights. Here the core focus is acquirement: why and how people succeed or fail in acquiring what they need for sustainable livelihoods. Yet, its significance is not restricted to economic and social rights. Lack of implementation of civil, political, and cultural rights also has to be assessed in a politico-economic context. Often non-implementation of human rights is structural, related to what might be called a “justice gap” (Lederach 1999).

Human Rights as Battleground

Notably, human rights realization is not just a matter of ordinary dispute settlement involving subjective claims based on personal interests protected by law. Human rights protect freedoms and needs so basic that their denial puts human dignity itself at risk. What may seem from the outside to be a simple conflict of distinct interests protected by diverse power positions is thus placed in a normative context, confronting both interests and the use of power with values attached to human dignity. Where positive law does not yet acknowledge fundamental freedoms and basic human needs, human rights are most crucial for their strength as principles of legitimacy.

At the roots of systemic denial of people’s dignity-related freedoms and entitlements lie gross injustices in the formation, distribution, and use of economic and political power. Hence, rather than a mere moral discourse, human rights is best conceptualized as an arena of struggle. In that light, the real question to be tackled is strategy: ends and means tuned to overcoming constraints to realization. It is, indeed, not the core of the human rights mission, universal human dignity, which must be seen as problematic. As David Kennedy noted in an article, which deserved a much more serious response from within “the human rights world” itself, “there is no question that the international human rights movement has done a great deal of good….” He identifies that good as,

Freeing individuals from great harm, providing an emancipatory vocabulary and institutional machinery for people across the globe, raising the standards by which governments judge one another, and by which they are judged, both by their own people, and by … the ‘international community.’
(2002: 101)

Yet, Kennedy ponders whether the “international human rights movement” must now be seen as “part of the problem:” “The strong attachment of the human rights movement to the legal formalization of rights and the establishment of legal machinery for their implementation makes the achievement of these forms an end in itself” (2002: 110). The setbacks he mentions are serious: A mission that became legalized, bureaucratized, secluded in pretensions and promises it cannot deliver, and isolated from the world of politics and economics in which the most vital battles for justice are fought.  Indeed, these flaws all have to do with the ways and means in which the mission has been conceived, institutionalized, and de-contextualized.

Markedly, the international human rights venture was conceived without due regard for its foundational faith in universal human dignity, nor for the essentially political nature of a mission grounded in declared rather than conclusive rights. It was also confusingly institutionalized through a pretentious quasi-legal system subservient to international politics. And in its doctrinal implementation of standardized strategies all over the world it became de-contextualized, without due regard for the specificity of concrete socio-cultural and politico-economic environments.

Based on a review of ten specific flaws, Kennedy advocates “a pragmatic reassessment of our most sacred humanitarian commitments, tactics, and tools” (2002: 115). This would imply a primary focus on adverse environments confronting people in distress: The poor and displaced, the vulnerable, and the victims of violent conflict, all those living in conditions of grim hardship, in short. In that light, let us focus this reassessment of commitments, tactics, and tools on three ways in which the global human rights mission affects daily efforts to have fundamental freedoms and entitlements respected and protected, namely deepening, widening, and uplifting such struggles. These correspond, as we shall see, with a strategic focus on re-conceptualization and contextualization, and a quest for innovative ways of institutionalizing the human rights mission.

Reassessing Our Commitments

Human rights deepen struggles for the protection of fundamental human interests by putting these in a normative (moral-political) setting: The quest for respect and protection of human dignity as a matter of public justice, implying the confrontation of power with basic rights of human beings and fundamental principles of legitimacy. Indeed, people fighting for access to safe water are not just involved in a struggle for economic power that will give them better access to goods and services. The denial of their basic needs for clean water must confront society with its own values when their efforts are framed within the context of human rights. This has immediate political implications for public policies and their execution as well as for business decisions. Think, for example, of that disagreeable phenomenon of development-induced displacement of people, as in the construction of giant dams for electricity generation. The essential critique of purely development-oriented approaches to human deprivation and destitution is that the primary basis for public and private decision-making should not be development per se, but human dignity as the foundation of people’s basic entitlements.

Notably then, the struggle for universal human dignity is a matter of principles, to be upheld prospectively, not just to be seen in judicial hindsight. These are values of primary importance – principium, after all, means beginning – in determining policies and actions. The juxtaposition is with interests. Power is the means by which people realize their interests, and principles, grounded in universality and human dignity, are meant to guide both the use of power in endeavors to realize interests and the resolution of disputes arising out of conflicting interests. The public interest is a category on its own: It represents concrete reflections of public justice, public justice incognito in other words.

Justice as a Human Need

In his grassroots work for peace-building, John Paul Lederach of the Conflict Transformation Program in the United States touched upon the “justice gap” (1999). This is the consequence of inadequate efforts to develop a peace-building framework that not only reduces direct violence but also produces public justice. The point is that in all situations of violent conflict, there are original injustices that lie at its roots. The reason hostilities can come to an end is generally that those involved realize that the violence of war is even worse than the original injustices. But, at the time they cease active hostilities, they will also expect these original injustices to be dealt with. Expectations are raised that life will not continue to be as before, but that there will be an improvement, a public path toward justice. Notably, justice has very much to do with the outcome of the use of power, and hence with daily freedoms and livelihoods, with people’s needs and the recognition of these. The root conflict in Johan Galtung’s terminology (1998) has to be addressed in order to prevent future conflict. Its essence is injustice.

Justice is both normative and compelling: it refers to what is right from such a perspective and to such an extent that it ought to be enforced. It is often seen as an ideal, a set of values that provide direction for public policies, for example. But, in the context of our focus on strategies for the realization of fundamental rights, what matters is justice not merely as an ideal of lawmaking, but as a human need: A functional necessity in any viable social contract, including the (virtual) global compact. Our attention is drawn here to Durkheim’s The Division of Labour in Society (1893) as interpreted by Anne Rawls (2003). Indeed, rather than just advocating socio-political consensus as opposed to the Marxian focus on conflict arising from inner contradictions in society, Durkheim appears to emphasize conflict as a foundation for consensus. Thus, justice is the foundation of what keeps the public-political community together. In the setting of our search for innovative strategies, this view is very much on point:

Persons in a division of labour society have the right not only to conflict, but to combat, in order to preserve their interests . . . If the right of combat is restricted in the interests of consensus, and conflict eliminated through force, then, according to Durkheim, the society will fall into a state of constraint that violates the prerequisites for solidarity in the division of labor, creating a deep internal contradiction and endangering its survival. What is necessary is that through exercise of the right to conflict, and participation in self-regulated practice, members of society achieve, from moment to moment, the consensus that they need to go on.
(emphasis added, Rawls 2003: 298)

That right to conflict might be conceived as an abstract acknowledgement of the legitimacy of fighting for the realization of one’s essential interests, that is, for justice. Recognition and protection of fundamental interests or, in modern words, human rights are the key terms. Hence, where an environment conducive to the realization of human rights has not been established – where conflict has been eliminated through force rather than negotiation and consensus – people’s right of combat would be activated. Naturally, this is quite distinct from a right to violence. The latter right cannot exist since the cause of protecting human dignity excludes any entitlement to the use of force. Indeed, the distinction between conflict and violence is fundamental.

In Amartya Sen’s comparative study on famines (1981) the right to conflict is triggered in case of a below-minimal acquirement of food. An entitlement failure is said to occur when the actual obtainable food bundle falls below this minimal norm. His analysis aims at explaining the phenomenon of famine rather than some type of conduct that might stem from it, hence people are assumed to remain passive under the entitlement failure a famine signifies. Indeed, in the cases that Sen analyzed people did endure starvation without attempting to change the prevailing formal set of entitlement rules. In conflict analysis, however, such a set of entitlement rules is no longer treated as given and unchanging. In particular, the social repercussions that might well follow from a case of entitlement failure should also be considered, especially as they might develop over time. As Keynes has warned:

Men will not always die quietly. For starvation, which brings to some lethargy and helpless despair, drives other temperaments to the nervous instability of hysteria and to a mad despair.
(1920: 213)

The obvious lesson is that while existing entitlement positions and the power relations on which these are based must be thoroughly analyzed, they cannot be taken for granted. Beyond the legal protection of interests, human rights have transformative power, too. In disabling environments more than anywhere else, that emancipatory function becomes activated. Evidently, rather than as a product of international initiatives, human rights emerge from local realities as inclusive human dignity asserted by victims of violation. It is, indeed, precisely in adverse realities that human rights may develop into a motivating and inspiring force of great weight.

What, then, are the implications for our focus on human rights realization? How do human rights, marshaled in the political arena of conflict, deepen the struggle to protect human dignity? By creating a normative setting in which power may be exercised in pursuit of justice without resort to violence. Indeed, justice as a basic need and a right to conflict, activated by failures to guarantee fundamental freedoms and essential entitlements, accompanies a context of human malcontent, which has certain normative features. People should be perceived, then, as individuals with equal dignity in a normative context that triggers Durkheim’s right to conflict.

Reassessing Our Tactics

Human rights imply that the fight for recognition of fundamental interests is widened to the whole community to which they relate. When people’s fundamental freedoms and their essential needs are denied, human rights-based strategies broaden that struggle for liberty and livelihood to involve the whole surrounding environment: Agents of government, development and peace organizations, women’s and environmental groups, and businesses. Indeed, where fundamental needs meet rights, actors become duty-bearers. It means that these fundamental rights must be integrated into all activities of such institutions as principles guiding policies and activities, not just incorporated into specific human rights programs and projects. This is what the United Nations calls “mainstreaming.” The idea behind mainstreaming is that questions concerning realization of primary objectives must be taken seriously “in central, mainstream, ‘normal’ institutional activities and not simply left in a marginalized, peripheral backwater of specialist mechanisms and institutions” (Charlesworth 2005:1). In a UN setting, this concept has been first applied to gender equity. In respect of human rights, we should like to broaden it to the involvement of the whole public-political community to which those right-holders, whose fundamental freedoms and entitlements are at stake, relate.

Shifting the focus of realization strategies to not just state-based institutions, but extra-governmental activity at the local level as well, including the corporate world, requires approaches which may differ depending on the nature of the interests at stake. For those involved in struggles for actual protection of civil and political rights, the natural focus is on legal resources. Efforts for the realization of economic, social, and cultural rights, in contrast, are naturally oriented to extra-legal action. Action first, legalization later (and often as a result of action) appears to characterize successful strategies in the latter case. But in both instances a primary focus must be on the whole socio-cultural and politico-economic environment in respect of its conduciveness to human rights realization. To frame it in terms of this article’s enquiry: In an endeavor to widen the struggle for realization of human rights, contextualization is a condition sine qua non.

States should of course be confronted with their positive obligations to provide basic public services to all and to guarantee adequate living standards. Here, budgeting rights may work as an effective tool. But, economic, social, and cultural rights may as well serve as a weapon to fight concrete state interventions that result in abuse of people’s basic entitlements. Furthermore, where duty-bearers can be clearly identified, concrete violations of economic, social, and cultural rights may also be addressed in litigation as cases such as Treatment Action Campaign in South Africa (Constitutional Court of South Africa, Case No. 8/02 Judgment of 5 July, 2002) and Hussain in India (Supreme Court of India, O.P. 2741/1988, 26 February, 1990) well illustrate.

Human rights thus imply rights-based approaches to exclusion, deprivation, and displacement. Here lies the basis for transformative action and resistance against the status quo. However, in nurturing such grassroots action, civil society organizations and other actors assisting in these struggles should be aware of and sensitive to the circumstances in which people’s feelings of self-respect may be expressed in types of discourse different from human rights language. Indeed, all cultural and spiritual sources that might serve to trigger right-holders’ action must be exploited. What matters is not the wording but the effectiveness of the action elicited. Naturally, it will always be wise to communicate in a discourse close to those on whose agency the mission is dependent.

Markedly, we are still only at the beginning of efforts to develop strategies to implement economic, social, and cultural rights in particular. In terms of focus and vision, methods and strategies, multiple actors and diverse levels, the recognition of these rights requires new commitments to concerted action based on new tools and tactics. In theory, in practice and in law, these rights gradually mature. Concretely, this suggests linking practical actions against displacement and poverty with human rights concepts and issues, developing a political culture of human rights, which includes economic, social, and cultural rights. Like Amnesty International’s “mobilization of shame” with regard to violations of civil and political rights, what is intended here is to evoke a deeply felt concern for other people’s livelihoods.

Such processes of conscientization regarding human rights as responses to “a pronounced deprivation of well-being” (World Bank 2000) should be driven by a primary focus on basic human needs. When people in need see themselves as right-holders and those in power recognize their duties, the fight against poverty and destitution is put in a civilizational perspective in the sense of a widening of the public interest (the common good). Accordingly, in politics, economics, and society alike, it is high time to mainstream human dignity at the center of concerted agendas. The new shift in emphasis from sovereignty as freedom from external interference toward sovereignty as responsibility to protect all those whose essential interests rely on public justice as connected with the power of the state, may be seen as a significant step forward.

Reassessing Our Tools

The struggle for recognition and protection of everyone’s human dignity is uplifted to the international level, as these standards are universal and connected with recognized international responsibilities. The adjective universal in the term universal human rights points to responsibility. Indeed, we recognize today as a universal responsibility the duty to protect those whose unmet needs imply a violation of their basic dignity. The human rights mechanisms established by the United Nations are rooted in that universal human responsibility for the implementation of fundamental freedoms and basic entitlements. Yet, no matter how important this international venture for the protection of human rights may be, it will have real significance only when connected to what we have identified as the first two elements of transforming the struggle: Human rights as principles of legitimacy, and local community involvement beyond those whose basic human dignity is directly affected. The vision presented here shifts the emphasis from alleviating the consequences – of oppression, hunger, malnutrition, infant mortality, reduced life expectancy, illiteracy – towards a focus on people and their life conditions as rooted in institutions, processes, and outcomes that will have to meet fundamental standards of legitimacy.

It is the universality of human rights as internationally accepted standards of legitimacy that makes it possible to also mobilize international support in struggles against their violation. International pressure through reporting by the United Nations Special Rapporteur for Housing, for one, may well contribute to processes of acquiring actual recognition of people’s housing needs. Notably, it is often international organizations and non-governmental organizations rather than states, which fight side-by-side with those carrying out their responsibilities in UN compliance mechanisms.

It is in this connection that a shift in the allocation of scarce resources becomes inevitable. The enormous expenses involved in the existing organization of international criminal justice – the “tribunalization of violence,” (Clarke 2009) – cannot be validated by a simple reference to the saying justice has no price. Justice means righting the wrong, which is more than just bringing the suspects to trial, no matter how crucial that may be. It also involves the lives of the survivors and the bereaved, the environments in which these people have to generate new conditions for daily sustainability of their livelihoods, and the creation of a generally more conflict-safe society in which the economy functions and law rules. Public justice – the juridical principle of righteousness in the land – cannot be separated from economic effectiveness as the principle by which scarce resources must be effectively allocated to optimally satisfy human wants.

In the current era, one further observation is pertinent. Without a doubt, the 20th century was the age of modernity. An almost invincible belief in technological as well as social engineering and the constructability of society prevailed. Out of this has come the law-driven model for the protection of fundamental freedoms and the “developmental” perspective on realizing people’s basic entitlements. In the process, the deepening of daily struggles for freedom from oppression and sustainable livelihoods through human rights as universal principles of legitimacy has been lost. In fact, post-modernity, with its mistrust of principles as such, implies a further defeat: No objective standards of legitimacy are recognized any longer, and human rights come to be buried in cultural relativism.

The way out of the sterile debate between legal universalism and cultural relativism may well be found in a contextual approach which starts from the universal standards proclaimed in the Universal Declaration of Human Rights as the foundational document for the global human rights venture. Strategically, this focus acknowledges the diverse roots of human rights in different social, cultural, and religious contexts while linking local practices and languages of human dignity and rights to the international standards and mechanisms for human rights implementation: Upstream approaches seek connection with the downstream UN venture.

Human rights are often discussed as just tools that have to be taken up and mastered. If that had been the purpose of this essay, we might have focused only on the opportunities for and constraints to implementing all declared human rights. But in a real sense, that is where this analysis began. The focus on people and the realization of basic freedoms and needs in their own unique environments carried us to the core of strategies for implementing human rights: universal human dignity. It cannot be gained or lost, though of course it can be seriously hurt and violated. Universally inclusive human dignity is the global faith sustaining the struggle for realization, which finds its wellspring in deeper sources, flowing from a diversity of worldviews and religions.

Uplifting the human rights struggle to the level of global justice, then, requires more ingenuous ways of institutionalization than the current circus of councils, commissions, and committees with tedious documents deliberated in lengthy meetings. One point is clear: Coming closer to people in their daily pursuit of liberties and livelihoods is the most productive perspective for the realization of human rights in the 21st century.

Bas de Gaay Fortman is the Emeritus Chair in Political Economy of the International Institute of Social Studies at Erasmus University, Rotterdam, and Professor of Political Economy of Human Rights at the Utrecht University Law School, the Netherlands. His latest book Political Economy of Human Rights: Rights, Realities and Realization was published by Routledge in May 2011.

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