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 The Political
Sociology of
Human Rights
Kate Nash

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The political sociology of human rights / Kate Nash.
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Includes bibliographical references and index.
ISBN 978-0-521-19749-6 (hardback) - ISBN 978-0-521-14847-4 (pbk)
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Equality, in contrast to all that is involved in mere existence,
-is not given to 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 1979: 301)
 Cont.ells

Preface and acknowledgements ix

1. The social construction of human rights 1

2. (A) human rights movement(s) and other organisations 19

3. States of human rights 41

4. The United Nations: not a world state 67

5. Humanising capitalism 89

6. Women's rights are human rights 115

7. Do migrants have rights? 135

8. What works? Paradoxes in the human rights field 156

Notes 173
Further reading 189
Bibliography 193
Index 215
 Preface and . acknowledgern .~nts

This book has been more challenging to write than I expected. The first
big challenge was how to avoid Eurocentrism. By Eurocentrism I mean
the assumption that what happens in what I call the 'Northwest' - in
the European settler states of the United States, Western Europe and
Australasia - is the norm, and that other parts of the world will or
should follow their example. Eurocentrism is quite evident in some
human rights advocacy. However, critics of human rights who see gov-
ernments and corporations from the Northwest as facilitating or legit-
imating 'Western nee-liberal imperialism' do not necessarily escape it
either: when their analyses are limited to discourses that originate and
circulate in the United States, for example, they seem to assume that it
is only what happens there that is really important. In this book I have
tried to develop theory and methodology to understand how contexts,
actors and claims for human rights differ around the world as well as
what they share in common. The task is complicated because one of the
most important contexts for the realisations of respect for human rights
is the dominance of the owners of fmancial and industrial capital, state
officials, and also international non-governmental organisations that
are based in the Northwest. To get a good understanding of the range
of possibilities represented by human rights today we must take ser-
iously both the variety of local constructions of human rights people
are creating to deal with specific injustices and also the effects of glo-
bal geo-politics on what they are able to achieve using a language of
human rights.
This brings me to the second challenge of studying human rights.
I develop a version of sociology that enables us to study structures as
well as meanings; what is 'social' as well as what is 'cultural' about
constructions of human rights. Broadly speaking sociologists and
anthropologists have tended to focus on the small-scale and local: on
meanings that are created and sustained in communities and move-
ments. Most international relations (IR) scholars and political scien-
tists studying human rights focus instead on large-scale structures,
· networks and international organisations. In this book I argue that we
X Preface and acknowledgements

must do both. Studying structures (of capitalism, post-colonialism, gen-

der) and organisations (corporations, non-governmental organisations,
inter-governmental organisations, and above all states - which are not
all the same) is crucial to understanding both the possibilities and the
limitations of human rights today. Sociology is a relatively open dis-
cipline: there is very little disciplining out of fundamental questions in
social theory. We must keep the big picture in sight: the whole range
of conditions that must be transformed if respect for human rights -
civil, political, social and cultural - is to be realised. At the same time
we can be inspired to try not to lose sight of the smallest details: how
what seems possible may be shifted as a result of framing injustices as
matters of human rights. Of course, this makes for a huge task. As far
as human rights are concerned it is one which sociologists are only just
beginning to address.
You, the reader of the book, will judge how successful I have been
in meeting these challenges - and of course I hope you find the efforts
I have made worthwhile! Regardless of the outcome, however, I am
very grateful for help and encouragement from a number of people
to write this book. I want to thank especially the people who read
particular chapters and who gave me their invaluable advice on the
basis of expertise in particular areas: Alice Bloch, Kirsten Campbell,
David Hansen-Miller, Monika Krause, Fran Tonkiss, Neil Washbourne.
Thank you also to Patrick Legales who disagreed so strongly with my
approach to the state when I presented a paper on it at Sciences Po at
the beginning of the project that, no doubt inadvertently, he led me to
think about it again. For emotional and intellectual support and inter-
est in the project, thank you to Jeff Alexander, Lilie Chouliaraki, Nick
Couldry, Marie Dembour, Monica Greco, Clare Hemmings, Caroline
Knowles, Daniel Levy, Giovanna Procacci, Roberta Sassatelli, Alan
Scott, Damien Short, George Steinmetz, Paul Stenner and Bryan Turner.
and Australia). is as yet what difference international recog-
nition of the Rights of Indigenous Peoples will make to people's lives
{Morgan 2011). Nevertheless, the transnational grassroots organisation
2 The social construction of human rights

Via Campesina is following the lead ofindigenous peoples' movements

in proposing a declaration of the rights of peasants to protect rural
ways of life (see pp. 106-10).
In 2003 a campaign was organised by Amnesty International and
Human Rights Watch to put pressure on an Islamic court in Nigeria
that was hearing the appeal of a woman named Amina Lawal. She
had been convicted for adultery, solely on the word of the alleged
father of the child she had conceived, and she faced death by stoning
as punishment. Her suffering gained a good deal of media publicity
especially in North America and Europe. But a small local organisation
called Baobab asked for people outside Nigeria to stop sending protest
letters because they misrepresented the facts of the case and angered
local politicians, religious leaders and judges. The transnational cam-
paign was undermining Baobab's authority. The court reversed Lawal's
conviction (Tripp 2006: 298-9).
In 2014, as I write, there are people who have crossed European
borders without authorisation who are being detained in inadequate,
prison-like facilities. They cannot be immediately returned to the
countries of which they are citizens because ongoing human rights
violations would make it too dangerous for them to live there. Their
imprisonment would seem to be a clear violation of human rights that
are supposed to protect individuals against arbitrary detention (Article
5 of the European Convention on Human Rights, Article 9 of the
International Convention on Civil and Political Rights). Nevertheless,
what is self-evidently a violation of human rights has been legal since
the European Court of Human Rights decided in 2008 (Saadiv. UK) that
states can detain 'asylum-seekers' for up to eighteen months without
guaranteed legal representation and with only a very tenuous right to
appeal (Webber 2012: 136).
These stories, complex as they are, do no more than hint at the
immense diversity and scope of human rights today. Human rights
demands are supported by a range of different actors: grassroots
movements as well as huge international non-governmental organisa-
tions (INGOs); politicians, lawyers and judges in national states; experts
and bureaucrats in inter-governmental organisations (IGOs). These
actors are often at odds with each other in defining and defending par-
ticular justifications of what human rights are and should be. Human
rights mobilise millions of supporters across borders, inspiring passion
and hope. And they operate at and between all the different scales
 What are human rights? 3

involved in globalisation: local, national, international, transnational.

These scales are not 'nested', rising in a hierarchy from 'local' to a more
inclusive and progressive 'global'. The scales of human rights have dif-
ferent significance for different actors. For some the corridors of the
UN are 'local'; for some the 'national' is represented in a capital city
that is several days' journey away; for some 'international' is a source
of hope; for others, of fear. The stories also give some indication of
the complexities of trying to achieve human rights in different con-
texts. Whilst in the Amina Lawal case transnational support for uphold-
ing her human rights appears to have been a liability, it was essential
to winning international recognition of human rights to end torture
and to respect for indigenous peoples' rights. At the same time, these
examples also lead us to question the value of international human
rights law as such. Is torture ended? Are indigenous peoples living in
peace on their ancestral lands? The European system of human rights,
for example, is highly developed, but it apparently allows violations of
the right to freedom from arbitrary detention - a right that is generally
fundamental at the UN.

What are human rights?

To study human rights we must try to take account of all these com-
plexities. There is no doubt that this is very difficult, and much of
the literature on human rights is polarised in ways that over-simplify.
Much has been written, generally by political theorists, that is vehe-
mently critical of human rights. Critics argue that human rights are
depoliticising, individualising: they are enabling the world to be made
secure for nee-liberal global elites rather than ending the suffering
of ordinary people.1 But human rights are not only used in justifica-
tions of military adventures on the part of the US-led 'coalition of the
willing', and nor does using the language of human rights necessarily
involve submission to nee-liberalism. Human rights also represent a
language within which a variety of claims for justice are articulated
against imperialism and nee-liberalism. In this respect human rights
seem to offer a language to enable the taming of globalisation, to make
the world more people-centred and peaceful, enhancing rather than
. restricting freedom, equality and trans-border solidarity.2 But then it
would equally be a mistake to focus only on these possibilities. The
 4 The social construction of human rights

tendency (which no doubt comes to us as a legacy of the Enlightenment)

to treat human rights as future-oriented, as if they are tending, even-
tually but inevitably, towards a progressive end is just as inadequate
as over-generalising critique. We need a research programme that is
able to address both the progressive and the problematic dimensions of
human rights.
Similarly over-simplified are analyses that oppose good uses of
human rights 'from below' (claimed by popular movements, in civil
society), from bad uses of human rights 'from above' (made by inter-
national elites, in formal organisations)." 'Bottom up' and 'top down'
can be useful as a rough and ready way of distinguishing where human
rights claims are coming from, and defining human rights at the grass-
roots level is crucial to realising rights (as we shall see in this book).
But there is no sense in claiming a right unless there is a corresponding
duty to uphold that right. Claiming a right almost invariably involves
altering what elites do - as well as, very often, re-ordering 'common
sense' in everyday life. It is, therefore, impossible in practice to separ-
ate out 'pure' ethical uses of human rights from the power plays and
structured inequalities that exist at every scale at which those claims
are addressed.
Finally, if over-simplification is a risk in studying human rights, so
too is analysis that is too complex and too vague with respect to the
significance of particular actors, organisations and structures. It is IR
scholars who have developed the term 'global governance'. Thomas
Weiss defines it very generally as 'the sum of the informal and formal
values, norms, procedures and institutions that help all actors - states,
IGOs, civil society, transnational corporations (TNCs), and individuals -
to identify, understand, and address trans-boundary problems' (Weiss
2013: 2). From a more Foucauldian perspective, Janet Halley argues
that 'global governance' enables analyses of power as fragmented and
dispersed, alerts us to the way in which uses of human rights continu-
. ally call the distinction between politics and law into question, and
calls attention to how human rights demands address both state and
non-state forms of authority (Halley 2006: 341). These are valuable
insights. But what Foucauldian approaches to 'global governance' tend
to neglect is the wide range of human rights claims, and the detail of
the variable outcomes for those who claim them. Human rights claims
do not only involve expert forms of knowledge and the unfolding of
ever-wider and ever-tighter rational-legal administration. Although
What are human rights? 5

realising ideals of human rights does generally mean greater (or at least
different) regulation of how (at least some) people act, peoples' think-
ing and behaviour is always regulated by norms - informally through
social interaction if not through law. In practice, although uses of
human rights may, on occasion, be undemocratic or unjust, they do not
always and necessarily work to close down freedom and the possibility
of more radical alternatives.
Human rights are moral claims to justice. They are not the same as
legal rights. This is easily overlooked because it is so often codifica-
tions in international law that frame how human rights are understood.
Human rights are almost always associated with law, at least symbol-
ically. As we see from the stories with which I opened this chapter,
however, law can be an obstacle to achieving human rights. To claim a
right is to make a moral claim: when a person has rights they should be
treated more fairly, more kindly, with more respect. It is the universality
of rights - the moral conviction that just because we are human beings
you and I have certain rights - that enables them to be claimed in such
a wide range of ways by different actors, and in different parts of the
world. It is because there is an irreducibly moral component of human
rights that they can be claimed where no legal rights are codified - even
if changes in the law are almost invariably called for as part of human
rights advocacy (Sen 2007).
Being open-minded about the possibilities of human rights need not,
however, mean being blindly or stupidly idealistic. It is possible to
work against the moralising tendency within which some studies of
human rights are framed - the tendency to see them as inherently valu-
able because they are beyond politics (Ignatieff 2003). Human rights
are irreducibly moral, but they are also irreducibly political. What is
politics? We can distinguish between 'politics' and 'the political' - or,
as Monika Krause suggests, between politics with a small 'p' and pol-
itics with a capital 'P' (Krause 2014: 77). 'Politics' with a capital 'P' is
the lobbying, debating, party politics and policy-making that takes
place in and around official government organisations situated in the
capitals of the world: the politics of legislatures, bureaucrats, adminis-
trators and diplomats. It is concerned above all with the regulation of
what people do by law and public policy and it always involves nego-
tiation, strategy and compromise. In contrast, politics with a small
'p' concerns much more fundamental questions about the very con-
stitution of 'the social': who and what 'we' are as a society; what is
6 The social construction of human rights

known and how; what is valued; who is to be included or excluded

from consideration. Human rights are political in both senses. Human
rights claims are made in 'Politics': they are claims for justice that aim
to rearrange what is already accepted and normal through organisa-
tions that formally regulate how we live. But human rights claims also
engage 'politics', disrupting and re-ordering taken-for-granted com-
mon sense, transforming what is accepted as normal, what counts as
fair and good. In fact, studying human rights makes it clear that, at
least in this case, there is no absolute separation between politics and
Politics: lobbying, debating in governments and bureaucracies, and
making public policy also involve the 'big questions' about who 'we'
are and what we understand to be the boundaries and the ultimate
values of our society.
In this book, then, I develop the political sociology of human rights
to analyse the range of actors involved in making human rights claims,
the types of action in which they are engaged, and the organisations
through which claims are addressed. I introduce a framework for study-
ing human rights as they are embedded in structures that give us some
idea of the difficulties of successfully making claims for human rights,
as well as the promise they seem to hold for a fairer and more peace-
ful world. This enables us to avoid pre-judging human rights as either
the tools of the powerful or of the powerless; or as necessarily creat-
ing new forms of power and inequality that are as just as bad as those
that already existed. As ideas human rights are indeterminate. Human
rights claims are made in ways that are quite contradictory. One group's
rights may clash with those of another group - and groups themselves
are fluid and only contingently unified in alliances and in relation to
'outsiders' or enemies. And human rights are always open to being
re-articulated in different ways. It is only in practice, in the ways in
which they are put to use, that human rights take on definite, relatively
fixed, forms. It is the inherently indeterminate and contestable nature
of human rights that makes them so interesting and so challenging
to study.

Human rights are socially constructed

Given their complexity, it is not surprising that human rights are of
interest to people working in different academic disciplines. In the
Human rights are socially constructed 7

social sciences, each discipline, with its own history, concepts, debates
and methodologies, brings distinctive tools to the study of human
rights. Despite the differences, however, there is consensus on one point
amongst those who study them: human rights are socially constructed.
In IR, 'social constructivism' is opposed to 'realism', the dominant
perspective in the discipline. For realists, states only comply with inter-
national norms where it is in their rational self-interest to do so - to
enhance their security or wealth - or where they are forced to comply
by stronger states. Social constructivists in IR have shown how the pro-
cesses by which human rights are constructed involve persuasion, and
not just reason or force. In IR, 'social constructivists' have been espe-
cially important in bringing the work of NGOs into focus. Under the
right conditions, they argue, persuasion by NGOs can shame elites into
working to end torture and murder in which they are involved - either
by giving orders or by their active participation. Once valuing human
rights becomes part of the identity of elites, they will work actively to
prevent human rights abuses.4 According to social constructivists in IR,
respect for human rights can become routinised as normal in ways that
constrain and guide behaviour, putting an end to abuses even in the
worst cases.
There is crossover of social constructivist theories from IR to inter-
national legal studies. 5 In international legal studies it is common to make
a distinction between 'soft' and 'hard' law. 'Hard' or 'black letter' law
involves specific and precise rules, and their interpretation and imple-
mentation is delegated to a court. 'Soft' law is non-binding: although
it may on occasion be referred to in courts (on its way to becom-
ing 'hard' law), it involves norms, accepted ways of doing things that
have an influence on behaviour but that are not (yet) considered as
law (Abbot and Snidal 2001). For social constructivists in legal stud-
ies, 'soft' and 'hard law' is not different in kind, but only in degree.
Both are developed and maintained by becoming norms of accepted
behaviour. Harold Koh - an international lawyer who was an advisor to
the Clinton administration - suggests that even 'soft' law can become
effective where norms are debated, interpreted and eventually internal-
ised: not violating human rights can become as taken for granted as
observing the law that requires us to do up our seat belts when we get
into a car. In his words, when it works, observing the law becomes an
'internalized normative form of behavior': part of a person's disposi-
tions, their identity (Koh 1999). For international legal scholars, then,
8 The social construction of human rights

as for 'social constructivists' in IR, norms influence behaviour even

when they are not backed by force. Members of elites can be persuaded
to observe human rights because they like to think of themselves as
decent people. We may doubtthat law ever works so well: don't people
disregard it if they think they can get away with it? And we may be
sceptical about Koh's confidence in the progress of human rights law in
particular. Indeed, Koh himself admits that the failures of international
human rights law are far more spectacular than its successes. But for
him what is important is that international law can be effective because
it is socially constructed: human rights circulate in international and
domestic legal systems in ways that can come to be taken-for-granted
as 'how things are' because law itself is only successful when it is part
of routinised social practices.
The study of human rights is now quite well established in anthropol-
ogy. This is quite a turnaround. In 1999 the American Anthropological
Association confirmed its suspicion of human rights, declaring that
'[it] founds its approach on anthropological principles of respect for
concrete human differences, both collective and individual, rather
than the abstract legal uniformity of Western tradition'. The focus
of anthropologists was on the diversity of cultures. Since then, both
'culture' and 'human rights' have come to be understood as pluralist
and dynamic, opening up a rich field of study.6 For anthropologists
today, human rights are not timeless, grounded in self-evident reason,
nor bounded by 'culture', inherently 'Western'. Sally Engle Merry's
concept of 'vernacularization', developed through her fieldwork on
women's organisations resisting domestic violence, is an influential
example of how anthropologists study human rights as constructed.
Merry shows how human rights can be adapted to specific, local
demands for justice, and at the same time - where they refer to inter-
national law that specifies rights as individual freedoms and to bodily
integrity and equality - they can retain their critical force within local
communities. Human rights can be local, specific and global, univer-
sal. They can be constructed so that they are valued in very different
local contexts, whilst they enable criticisms of other local understand-
ings that sanction and support inequality and violence (Merry 2006;
see pp. 125-31).
It is often noted that the discipline of sociology came late to the study
of human rights. Interestingly, the debate over social construction
between Bryan Turner and Malcolm Waters in the journal Sociology
Social constructions of human rights 9

in the mid-1990s is very commonly referred to as the beginning of

the study of human rights in contemporary sociology.' Turner argued
that human rights need to be grounded, they must be treated as more
than social constructions otherwise sociologists will continue to study
them only as instruments of power, as positive law, or as particular to
Western culture. For Turner, understanding human rights as socially
constructed is. one of the reasons they have been neglected in clas-
sical sociology (Turner 1993). Turner argues that as embodied creatures,
we are inherently fragile and we need each other, but the institutions
we create to reduce our vulnerability and attain security are always
flawed. We should therefore understand rights · as necessary: they are
what people call on to protect them from institutions and from each
other. In response to Turner, Waters argues that human rights cannot
be seen as universal because they vary so much at different times and
places. Human rights can only, therefore, be studied as social construc-
tions (Waters 1996). Turner is correct that it is the rights of vulnerable
people - the marginalised and impoverished - that are most likely to be
abused. But in general it is Waters' argument that has won favour with
contemporary sociologists (even if Waters actually smuggles in a real-
ist notion of 'interests' that is not much remarked on today). We tend
to be in agreement with our colleagues in other disciplines that human
rights are socially constructed. Sociologists today, however, are at the
same time willing to understand human rights as having effects as if
they were moral universals; as if we must respect rights because it is
the right thing to do - at least in some cases. The explosion of human
rights talk since the end of the Cold War suggests that people do not
need human rights to be grounded in something that is 'extra-social' in
order to experience their appeal. And as sociologists we can study how
human rights are socially constructed without reducing them to instru-
ments of power or the determinants of sectional interests.

Social constructions of human rights:

the constraints of structures

All these variants of social constructionism share a key insight. To

show that something is 'socially constructed' is to show that it is not
inevitable or natural but that it has effects that make it seem as if it
is. What is common to the study of human rights across disciplines
10 The social construction of human rights

is the understanding that human rights do not rest on firm foun-

dations, on God-given reason, 'Western' culture or human nature.
What human rights are at any given time and place is contingent,
historical - but they can be established to regulate what we under-
stand and what we do.
If it is clear what 'construction' brings to the study of human rights,
what is not so clear is what 'social' adds to 'construction'. How are
constructions 'social'? And does the fact that we talk about 'social con-
struction' mean that sociologists have a special contribution to make to
the study of human rights?
Sociologists are now beginning to study human rights - though to
date we have not made as much impact as those working in IR, inter-
national legal studies and anthropology. It seems to me that because
'social' is our business, sociology does have a special contribution to
make to understanding human rights. It is true that use of 'social' is
everywhere in the social (!) sciences, to the point of becoming almost
meaningless. As William Sewell notes, it is practically impossible for
sociologists to answer the question 'What is "the social"?' without tau-
tology; without using 'social' in the answer (Sewell 2005: 319). But what
'the social' conveys in all versions of 'social construction' is the idea
of stability (Latour 2005: 1). Everything may be constructed, but only
some constructions become established, enduring across time and space ..
Constructions become 'social' when they become taken-for-granted
context, the 'built environment' in Sewell's apt phrase, into which we
are all born and in which we live (Sewell 2005: 362). It is one of the
main tasks of sociologists to bring into view the unremarked back-
ground, the enduring 'social' of the 'social construction' of human
rights, as well as the foreground, the possibilities of exciting new ways
of doing human rights that we read and hear about now almost on a
daily basis.
'Structure' is another necessary (and over-used) concept in the social
sciences. It is a way of differentiating 'the social'. Constructions are
frames (or 'meanings'): ways of categorising reality through which
people learn to understand events, situations, processes, persons in
certain ways. 8 Structures are sequences of frames that shape how we
think and what we do through repetition. Sociologists talk about struc-
tures of capitalism, gender and sexuality, colonialism, racism - when
we analyse regular patterns in the frames that guide action. But as these
examples suggest, structures are more than just ideas: they organise
Social constructions of human rights 11

resources, moral and material. In terms of moral resources, authority -

the ability to persuade people to think and act in certain ways - is
what is most important to the realisation of human rights. Authority is
supported by professional training and credentials and the articulation
of principles that should be respected. In some cases, when people are
'in authority' as well as 'an authority', it may be backed by force: the
organisation of military and police. Material resources include those
we humans must have to meet our basic needs, like food and shelter.
They also include raw materials and ownership of machinery, build-
ings and land that are sources of inequalities in wealth. As humans we
are ourselves material. We are not just creatures of ideas and words;
we are embodied, sensory beings, feeling emotions and pain as well as
thinking, planning and dreaming. Things as well as more abstract ide-
als like 'freedom', 'equality' and 'dignity' are organised by the frames
through which we make sense of our world.
It is critics who most commonly introduce the concept of 'struc-
tures' into discussions of human rights. It is on the grounds that human
rights are 'idealist', that they do not address how 'reality' is structured
to perpetuate inequalities that human rights are criticised by Marxists,
feminists and post-colonial critics. Are not structures of capitalism,
imperialism, sexism, racism too deeply rooted, too systematic, too com-
plex, to be undone by constructions of human rights?9
In part the answer to this question depends on how human rights
are defined. As the stories with which I opened this chapter suggest,
Upendra Baxi's description of human rights as 'carnivalistic' is a good
one because of the variety of claims for human rights that are now being
made around the world (Baxi 2008: 46).10 The Universal Declaration of
Human Rights itself is extensive, including social, economic and cul-
tural rights to the redistribution of resources as well as civil rights to
protection from state violence. Today it is supplemented by a range
of conventions and declarations that are more detailed and specific,
as well as definitions on the part of NGOs and social movements that
have not (yet) been included in the UN regime of human rights. In
many cases human rights demands do aim to transform structures of
wealth distribution, and of respect for people who are marginalised and
mistreated. As we will see in the following chapters, they include indi-
genous people, small farmers, women and migrants.
The response to the question of whether human rights can alter struc-
tures also depends in part on social theory: on how we conceptualise
12 The social construction of human rights

and study the structures that underpin injustices. The sociological per-
spective I am developing here takes the approach of sociologists of
practice. 11 Rather than thinking of structures as necessarily reinforcing
each other, systematically tending towards total domination and ideo-
logical closure, I take it that structures are inherently open to change.
Structures are sequences of frames that are repeated in ways that con-
strain thought and action. They are maintained over long distances
in impersonal mediated sequences that make them difficult to change
even where there is the political will to do so. And political will is often
lacking. Since structures organise access to and control over moral and
material resources, it is in the interests of those who gain advantages
from the way things are that they should be maintained. Interests them-
selves are socially constructed. But this does not make them any less
deeply felt or less strenuously defended. Nevertheless, because struc-
tures are reproduced by active interpretations in specific contexts,
they are open both to gradual alteration in everyday life and to radical
transformation by collective action. Because they are maintained by the
'social construction of reality' structures are always, in principle, open
to being reconstructed.
Finally, a response to the question of whether human rights can
really alter social structures depends on empirical study. It may be the-
oretically possible to transform social structures through constructions
of human rights, but is it actually happening in reality? The complex-
ity of social life makes it impossible to give a definitive answer to this
question. This does not, however, make it irrelevant or unnecessary. It is
precisely the value of sociology to enable us to pose such far-reaching
questions, and to prompt thinking about the conceptual frameworks,
arguments and evidence through which they are addressed.

Constructions: cultural politics

Making constructions 'stick', getting them accepted and making them
effective, is a matter of 'cultural politics: 'Culture' is a way of nam-
ing the complexity of flows of meanings we experience all the time in
everyday life: sometimes taken for granted as 'reality'; at other times
confusing and uncertain, often with more than one possibility of inter-
pretation." The cultural politics of human rights involves challenging
and remaking common-sense understandings: of what people assume
 Constructions. cultural politics 13

to be true, useful and valuable; how we feel about contradictory facts

and competing values; and how we act as a result.
The cultural politics of human rights involves the contestation and
reframing of some people who are seen as 'other', the widening of the
frame to include people who do not count as fully 'human'. Today this
rarely means actually challenging what it is to be human as such: it is
not usual today to categorise people we do not know well (as Christians
tended to categorise non-Christians in the nineteenth century, for
example) as simply not human at all. Nevertheless, it does mean challen-
ging representations of people that allow them to be treated as less than
'one of us': as exceptionally brutal and dangerous, as less susceptible
to persuasion, or as unable to adapt to what is reasonably demanded of
them in our modernising, globalising age. As 'less-than-human', where
we assess 'human' as 'like us', those who are different may legitimately
be treated in ways that we would otherwise consider cruel, violent, or
destructive of homes and livelihoods. Who counts as 'human'? It is
one of the aims of the cultural politics of human rights to open up this
question in particular cases, and to widen the frame of reference to
include those who are currently ignored or marginalised.
The cultural politics of human rights also involves framing situations
and events as 'human rights wrongs'. Who has rights, and to what, that
really make a difference to how they are treated, what they are due, the
conditions in which they live? Other people are often seen as obsta-
cles or as instruments by people with plans and power. When treating
people fairly and well is inconvenient, it is through the reframing of
that difficulty as a matter of right and wrong that the cultural politics
of human rights can shape and alter thought and action. People who
are 'in the way' or who resist being the instruments of other peoples'
purposes should not be murdered, tortured, imprisoned, raped, pushed
out of their homes.
The cultural politics of human rights is a kind of 'politics' with
a small 'p'. It involves the big picture: who is included and who is
excluded as 'one of us'; how can actions that are violent, cruel, and
that deprive people of what is necessary for them to live with dignity
be stopped? The media is especially important to the cultural politics
of human rights. Challenging and remaking common sense is rarely, if
ever, achieved only by rational argument. The transformation of what
is already accepted as normal is far more likely to emerge as a result
of striking images, shocking facts that disturb what was previously
14 The social construction of human rights

'known', new stories about what seemed familiar. In advanced capitalist

societies, as well as the influence of people around us, the media play
an important role in the disruption and recreation of taken-for-granted
common sense concerning what is true, useful and valuable.
The cultural politics of human rights is also relevant in the formal
settings of states and IGOs where Politics with a capital 'P' goes on,
in the policy-making of legislatures, bureaucrats, administrators and
diplomats. Definitions of 'otherness' matter when people are vulnerable
to mistreatment by state officials: to imprisonment, torture, summary
execution, deprivation of shelter, food, the necessities of life. In the
committee rooms and corridors of the UN and in national states, it is
not just the details of policy that are at stake in defining rights. The
cultural politics of human rights involves challenges to assumptions
about the priority of 'national interests' where security, foreign policy
and economic growth are concerned. What are citizens due? Do citizens
always have priority over non-citizens? What difference does it make
to take human rights into account in bureaucracies, governments and
courts of national states? These are questions that are raised in the cul-
tural politics of human rights inside the formal settings of Politics, as
well as outside, in the media and in everyday life.

Duty-bearers, responsibility and authority

As well as meanings and structures, organisations have a crucial role

to play in realising human rights in practice. Human rights advocates
invariably engage with 'duty-bearers', people who work in organisa-
tions that are recognised as having responsibilities to realise human
rights. Authority is needed to successfully frame suffering as a human
rights issue. Authority is itself a social construction - it does not exist
without a degree of consent from other actors. Authority does not result
automatically in obedience; it is not the same as force. It works only
through persuasion. Who is able to claim authority to define human
rights and how is a matter of cultural politics. Nevertheless, as Michael
Barnett and Martha Finnemore emphasise in their study of IGOs, what
it is to be 'an authority' - a person who should be respected because
of their training, knowledge and principles - very often overlaps with
what it is to be 'in authority' - to be a person who should be respected
because of their official position. A professional who is an expert, a
 Duty-bearers, responsibility and authority 15

bureaucrat or a lawyer at the UN, someone who holds the office of an

elected politician or a judge appointed in a national or international
court, a fieldworker who reports on human rights abuses for an INGO -
all these people may be both 'an authority' and 'in authority."
Authority is not always respected. In fact, it is often criticised as
'false'. Because human rights are often represented as transcending pol-
itics, the authority to define human rights is challenged when it is
argued that an organisation or a person is acting out of an interest
in their own status or wealth, or because they are promoting a par-
ticular perspective or ideology. In addition, there is a variety of types
of authority. Not only can human rights be claimed in ways that are
quite contradictory, but types of authority that frame human rights
themselves vary. In fact, different kinds of authority may co-exist even
within the same organisation. As a result, what counts as authority -
what kind of argument should be persuasive - is often itself _in question.
'Moral authority' is one important way of justifying human rights
claims. It rests on the construction of the duty-bearer as above pol-
itics and personal interests, as concerned only with impartial justice,
with getting better treatment for people who are currently being treated
unfairly. Moral authority is achieved when a duty-bearer is seen as
above politics: they have no particular stake in the outcome of their
actions except to see that justice is being done. Moral authority is
especially important in NGOs and IGOs. In contrast, there is a type
of authority that we might call 'popular' ('of the people'), which is
based on the view that advocates of a particular construction of human
rights are themselves suffering the indignities, cruelties and insecurity
of injustice. 'Popular authority'. rests not on transcending politics, but
on representing the voice of the people. It is especially important to the
leaders of grassroots organisations, but also to state officials in inter-
national settings. A third type of authority is constructed by 'experts:
'Expert' authority is also represented as above self-interest, because it
rests on the rigorous training of the professional, the neutral method-
ology of science, and the impartial knowledge of complex affairs to
which specialists have access. Legal expertise is especially important in
framing human rights - though knowledge of development econom-
ics, country-specific knowledge, sociological knowledge about how
social change is achieved can all be relevant. Legal expertise is linked
to a fourth type, rational-legal authority, which is founded on proce-
dures, on adherence to the letter of the law and the administration of
 16 The social construction of human rights

knowledge that is only possible where bureaucracy is highly developed.

Rational-legal authority is claimed on the basis that an organisation
is run by people who are neutral and impartial, in service only to the
values that have been decided on elsewhere. Very often when we are
studying human rights, the values in question have already been estab-
lished in international law. Finally, there is 'delegated authority'. This is
authority that is 'lent' to organisations. It is very important as the basis
of authority of IG0s, which largely depends on the moral resources of
legitimacy as well as the material resources they are lent by states.
'Duty-bearers' are not passive recipients and intermediaries of human
rights claims. Co-operating and competing within and across organisa-
tional boundaries, 'duty-bearers' act in a human rights field in which
what is shared is the value of being able to define what it is that human
rights really mean. Successfully claiming authority enables actors to
shape what is important for human rights advocates and claimants,
as well as what counts as the 'facts of the matter' concerning 'human
rights wrongs' and how to put a stop to them.

Towards a political sociology of human rights

................... , .

Sociology has a special contribution to make to the study of human rights. In

the following pages I will develop the sociological perspective I have outlined
in this chapter to study human rights as constructions that are created through
the cultural politics of 'human' and 'rights', and how they impact on the social,
the enduring structures that create and sustain the suffering and injustices
addressed by human rights advocates.
In Chapters 2, 3 and 4 we look at duty-bearers in different types of
organisations. The main theme in this part of the book is the difficulty
of claiming human rights through organisations structured around
elite forms of authority. We begin in Chapter 2 by discussing forms of
organising through which human rights demands are made. Differences
in the variety of organisations are ignored when they are all described
as 'a human rights movement' or 'the NGO sector'. Grassroots organisa-
tions and INGOs are very different in terms of the types of authority
those who work in them can plausibly claim. Looking at a successful
campaign for human rights, the Treatment Action Campaign based in
South Africa, we consider the importance of cultural politics in the
settings of peoples' everyday lives, as well as in the formal settings of.
 Political sociology of human rights 17

In Chapter 3, we look at the most important organisations for realis-

ing human rights in practice: states. States have received remarkably
little attention in social constructionist studies of human rights in any
discipline - especially when we consider that it is people employed in
official positions in states who are the principal duty-bearers to which
human rights claims are addressed. In part this neglect is no doubt due
to the difficulties of conceptualising states from a social construction-
ist perspective. In this chapter we consider how states are guarantors
and at the same time violators of human rights in international human
rights law. When state officials sign and ratify international human
rights treaties, it is assumed that they are embedded in a type of state
that is 'juridical', with capacities and procedures to realise in practice
what officials promise on paper. From a sociological perspective, how-
ever, what is far more important is the way states are situated in very
different structures: in large part as a result of histories of colonialism.
To ignore differences between states is to limit our understanding of
what is necessary if human rights are to be claimed successfully. It is
clear that if human rights are to be realised, states will have to be sig-
nificantly restructured in projects with aims that go far beyond the legal
and bureaucratic reforms commonly envisaged by experts at the UN.
In Chapter 4 we look at the UN, the principal organisation to which
human rights claims are addressed at the international level. It is not
that the UN is the only IGO concerned with human rights, or even
the most effective. 14 But it was in the UN that human rights were first
constructed as global, and it continues to be the only organisation
within which authority to set standards and to monitor adherence to
human rights norms for the whole world is claimed. The moral, expert
and rational-legal authority of professionals at the UN is, however, in
chronic tension with the delegated authority on which it was founded
by the 'Great Powers' at the end of the Second World War. Without a
transformation of UN structures it is hard to see how the conditions
for genuinely universal human rights might be established in practice.
Building on our understanding of the difficulties of claiming human
rights through the elite authority of 'duty-bearers' developed in the first
part of the book, in Chapters 5, 6 and 7 we tum our attention to themes
of human rights campaigns that specifically address structures of injustice.
In Chapter 5 we consider campaigns that address gross inequalities, inse-
curities and situations of absolute poverty produced by structures of glo-
balisinz canitalism WP loolc ,:it ,:, l"CITin°P nf' rl11n,_hoovov~ orlrl-=~~-rl :- +1----
18 The social construction of human rights

corporations and state officials. We assess the possibilities and limitations

of 'human rights' as a frame through which the injustices of contemporary
capitalism are being challenged. In Chapter 6 we look at violence against
women. Constructing violence against women as a 'human rights wrong'
challenges structures of sex, gender and sexuality that normalise women's
subordination, especially in the family. Campaigns that frame violence
against women as a 'human rights wrong' are notable because they cannot
succeed solely by addressing duty-bearers in organisations. Constructions
of human rights must also impact on everyday understandings of what
women are worth and what they are due if they are to alter the structures
in which many forms of violence against women are seen as justified. In
Chapter 7, we consider structures of nationality and citizenship that support
abuse suffered by migrants who cross borders to escape hopelessness and
violence in their own countries. Very serious violations of human rights are
tolerated because of the acceptance of the 'rightness' of securing borders
and prioritising citizens - even though discriminating against non-citizens
goes against the letter and the spirit of international human rights law.
Here too, then, remaking constructions of everyday common .sense is as
important as advocacy for human rights in forms of elite authority.
In conclusion, in Chapter 8 we tum to the question of how successful
human rights advocacy has been, and how likely it is that contempor-
ary forms of activism will be successful in the future. We look first at
work that has been done on the effectiveness of international human
rights law by quantitative analysts in political science, IR and inter-
national legal studies. This represents the most focused and coherent
attempt in the social sciences to answer the question. Although sta-
tistics appear to represent objective, unbiased certainty we look at the
very shaky foundations on which these analyses are based. Given these
differences I argue that the sociological contribution to understand-
ing human rights is not best understood as a definitive answer to the
question 'do they work?'. It lies rather in showing the range and the
complexities of cultural politics of human rights in which advocates
are engaged, and the paradoxes that are intrinsic to framing 'human
rights wrongs' as such. The value of sociology lies in mapping the para-
doxes of the global human rights field, to avoid over-simplifying the
study of what is today - for better or for worse - the most significant
'people-centred' language of global politics.
 ::f : : J!\i!{t:J{}jJ

~ht, is to b,::Ey real

ffering, they must be organised. In
of~rganisation to achiev~ the
1
. ·.. · •·•···•••• • /• iodal movement ?~movements. Soda! move-
ti.B¢t!Y!;l fprms of organisatlon for social change that are
JBijfl~xible, popular and innovative, engaging people in
. . ... ~ d~y life decisions as well as trying to change elite power struc-
tur~;.i soc1al movements are made up of loosely connected netw.pr~$.Pf
individuals, groups and what are often called non~governmental,f§~h-
.. J~ations (NGOs), 'NGO' is a useful category insofar as it puts together
·.·. } ;rganisations that are independent of governments and that pursue
< ;not-for-profit' aims. NGOs are a 'third sector' in relation to govern-
·.• tfients and corpora~ions.3 The category is misleading, however, if it leads
us to neglect the ~normous differences between organisations that are
included within ff ln general NGOs have a similar structure to corpo-
rations and to political parties: they are bureaucratic and hierarchical,
and they employ professionals and experts. They can be very large, like
Amnesty and Human Rights Watch, called international NGOs {INGOs)
because they have branches in more than one state. NGOs can also be
 20 (A) human rights movement(s)

very small: some human rights NGOs consist of no more than a couple of
people with some form of relevant expertise, a computer and an office.4
Social movements invariably contain NGOs, but they always also con-
tain grassroots organisations (GROs). In general GROs are different from
NGOs in that they are less formally organised, less bureaucratic and they
do not employ professionals. GROs can be support and self-help groups,
they may involve members of communities who are directly affected by .
certain issues, and sometimes they include people who have chosen to
live and work in solidarity with people suffering 'human rights wrongs'.5
INGOs, NGOs and GROs are all involved in the cultural politics of
human rights, but in different ways. GROs are crucial to making the
issues visible that really concern people directly suffering human
rights abuses; NGOs may then take up those issues, putting their
own spin on what is important in the process. GROs and NGOs try to
change common sense, especially through the media. But NGOs also
engage strategically with states and IGOs, providing expert know-
ledge to influence the frames through which professionals under-
stand the world and lobbying to influence and alter law-making
and public policy. As we shall see, it is especially through IGOs that
INGOs are important to altering elite actions that lead to violations
of human rights. In contrast, GROs are associated more with disrup-
tive action, civil disobedience on the streets, and with more creative
approaches to the cultural politics of human rights. Because they are
attractive as genuinely representing 'the people' they are often taken
up by intellectuals and artists who publish and broadcast in main-
stream and alternative media, and produce novels, music, painting,
theatre and film that explore ways of thinking against the grain of
'taken-for-granted 'common sense'.

A global human rights movement?

In the fourth edition of their authoritative textbook on international

human rights, Alston and Goodman state: 'In today's world, human
rights is characteristically imagined as a movement involving inter-
national law and institutions, as well as a movement involving the
spread of liberal constitutions among states' (Alston and Goodman
2013: 59). Similarly, Aryeh Neier, former Executive Director of Human
Rights Watch, says: 'The international human rights movement is made
A global human rights movement? 21

up of men and women ... who are united by their commitment to pro-
mote human rights for all, everywhere'. He goes on to list civil liberties
as 'the fundamental rights to which they are committed' (Neier 2012: 2).
What do these writers mean by 'movement'? They do not discuss it.
They use 'movement' more to claim popular authority for INGOs than
as an analytic term to raise questions and encourage research on the
organisational. forms through which human rights may successfully be
claimed. 'Human rights movement' suggests that INGOs are channel-
ling popular demands for human rights 'from below'. This may be espe-
cially relevant given that the largest and most influential human rights
organisations like Amnesty and Human Rights Watch are based in the
Northwest (Amnesty in London, Human Rights Watch in New York)
while the injustices they address generally take place elsewhere.6
It is on the basis that 'the human rights movement' only involves
elite groups that INGO claims to popular authority have been chal-
lenged. The legal scholar David Kennedy is an especially eloquent and
influential critic of human rights. He argues that 'the human rights
movement' is caught in a series of traps that limit political imagin-
ation and action through an overestimation of the value and power of
international law. The human rights movement puts too much faith in
lawyers and procedures rather than challenging grossly unequal rela-
tions of power and voice through struggles to articulate more utopian
visions. It moves power upward, to professionals working at the inter-
national level, disempowering ordinary people at the local and national
level (Kennedy 2002).

Transnational advocacy networks: naming and

shaming elites
From an analytic point of view, the most influential research on the
organisational form of human rights claims comes from 'social con-
structivist' IR scholars. It is perhaps this work that has helped generate
the idea that there is a 'human rights movement'. Transnational advocacy
networks do resemble social movements in some ways. Most obviously,
like social movements, they are networks rather than a single organ-
isation. According to Margaret Keck and Kathryn Sikkink, who devel-
oped the concept, a transnational advocacy network 'includes those
relevant actors working internationally on an issue, who are bound
together by shared values, a common discourse, and dense exchanges
22 (A) human rights movement(s)

of information and services' (Keck and Sikkink 1998: 3). Transnational

advocacy networks link at least some - usually not all - the follow-
ing major actors: (1) international and domestic NGOs; (2) local social
movements; (3) philanthropic foundations; (4) the media; (5) churches,
trade unions, consumer organisations and intellectuals; (6) parts of
regional and international IGOs; (7) parts of the executive and/or par-
liamentary branches of government (Keck and Sikkink 1998: 9). When
they are effective, transnational advocacy networks achieve a 'boomer-
ang effect'. In the first place, where possible (and in extremely repres-
sive states, it may not be possible) NGOs and local movements make
human rights claims that put pressure on their home states. At the same
time or instead of mobilising openly against their own states they make
links to international partners - including INGOs, donors, other states
and IG0s - to put pressure on the state from the outside. Where suc-
cessful, external actors facilitate the demands of domestic NGOs, which
put effective pressure on the state from the inside (Keck and Sikkink
1998: 12-13).
Keck and Sikkink's analysis of 'transnational advocacy networks'
is based on campaigns for human rights in Latin America from the
1970s onwards (Sikkink 2011). An excellent example of the 'boomerang
effect' is the campaign to find out what happened to the 'disappeared'
in Argentina that followed the military coup of 1976, and to stop the
kidnapping, torture and murder that was still going on years after-
wards. Inside Argentina, the Madres de la Plaza de Mayo, who protested
the loss of their children weekly in Buenos Aires, and an NGO that
was set up explicitly to deal with these issues, the Center for Legal and
Social Studies, worked with Amnesty International to publicise torture,
murders and 'disappearances' that the Argentinian government at first
denied. At the international level, Amnesty worked with sympathetic
states, foundations and churches in the Northwest to support protestors
against human rights violations inside Argentina, and to put pressure
on Argentinian leaders to acknowledge the murders and torture for
which it was responsible. A special committee, the Working Group on
Enforced or Involuntary Disappearances, was set up at the UN. The
US government, headed by President Jimmy Carter, was crucial to the
campaign, cutting military aid and assistance to Argentina because the
government refused to acknowledge what it had done. Eventually, in
1978, the Argentinian government, trying to restore its international
image and to regain US aid, invited the Inter-American Commission
 A global human rights movement? 23

on Human Rights to visit the country. From that point onwards the
human rights situation improved - though work to find out what really
happened to each of the 'disappeared' still continues today, and phys-
ical attacks by the government on its enemies did not end until after
democracy was restored in 1985 (Keck and Sikkink 1998: 103-110;
Sikkink 2011).
The international campaign against disappearances in Argentina
shows how strategic framing by an INGO can be successful. Framing
'disappearances' in Argentina and elsewhere in Latin America in the
1970s involved creating new interpretations of international human
rights law whilst building on what was already, at least nominally,
accepted. It seems that 'disappearances' were a tactic that was used by
the Argentinian dictators at this time precisely to avoid imprisoning
and then executing their political enemies. They avoided locking up
'prisoners of conscience' and executions, which would attract Amnesty
campaigns and bad publicity - which is apparently what happened in
Chile following General Pinochet's military coup in 1973. Instead in
Argentina the government had its political enemies secretly kidnapped
and murdered. Amnesty worked with legal experts at the UN to have
'disappearances' recognised as a serious violation of human rights,
similar to, and often including, torture, murder and arbitrary detention
(Keck and Sikkink 1998: 103-4; Clark 2001).
Although 'disappearances' meant new interpretations of inter-
national human rights law, they were framed as wrongs according to
human rights norms that were already agreed. Framing 'disappear-
ances' in human rights terms resonated with Argentinian elites. This
may seem strange: how can state officials be committed to princi-
ples which they are at the same time violating on a routine basis? As
Sophie Cardenas points out, there is a strong tradition of commitment
to human rights in Latin America that is often overlooked. Historically,
the American Declaration of Human Rights was actually drawn up
before the Universal Declaration of Human Rights (UDHR), and Latin
Americans made important contributions to the conditions and the text
of the UDHR (Cardenas 2010). Commitment to human rights principles
remained strong in Latin America, even as gross violations of human
rights were carried out by military dictatorships in practice.
To what extent are transnational advocacy networks elitist? They are
certainly aimed at changing elite behaviour. According to Keck and
· Sikk1nk, transnational advocacy networks are effective when they are
24 (A) human rights movement(s)

able to shame political elites into changing how they construct their
state's interests, and - eventually - the policies and practices that lead
to human rights abuses. They are able to do so where elites are not
opposed to human rights in principle. In Argentina this was the case;
it is why state officials initially denied that violations had happened at
all: they covered up what they had done because they were ashamed
of their actions. According to Keck and Sikkink's analysis, even where
violating human rights has become routine, elites can nevertheless
be shamed into stopping arbitrary imprisonment, torture and murder
because they do not want to see themselves, and they certainly do not
want others to see them, as responsible for such practices (Keck and
Sikkink 1998: 29).
In fact, relatively little is known about connections between INGOs,
NGOs and GROs in transnational advocacy networks. We know that at
least in some cases transnational advocacy networks link INGOs and
officials acting for IG0s with people who are directly suffering as a
result of human rights violations. This was the case in the campaign
for the human rights of the Argentinian 'disappeared', which directly
involved their families and friends. But the focus of IR analyses is on
the transformation of international elites. 'Social constructivists' in IR
have not raised questions about how definitions of human rights at the
grassroots might differ from those of elites. Nor have they considered
how claims for human rights might alter structures and organisations
beyond achieving respect for civil rights not to be physically harmed by
officials representing the state (see Risse et al. 1999: 2-3).
IR analysts of transnational advocacy networks have not concerned
themselves with differences between organisations. It is clear from the .
example we have looked at here that Amnesty International played
a crucial role in negotiating how 'disappearances' were to be under-
stood as violating basic human rights, and in persuading international
elites to take the suffering of families and friends of the 'disappeared'
seriously. Human rights INGOs are now enormous organisations, with
huge budgets, employing professionals and experts. In the analysis of
transnational advocacy networks, however, they are treated simply as
one kind of organisation amongst others, as nodes in networks that
are presumed to be much the same as NGOs and local social move-
ments. This is clearly misleading. Before we tum to further discussion
of human rights and social movements, therefore, we will look at INGOs
in a bit more detail.
 A global human rights movement? 25

International non-governmental organisations

The largest and most influential human rights INGOs are based in,
and receive funding and support from, the Northwest. Amnesty
International is by far the most important; it was the first, and it is still
the largest. In 2012 Amnesty had an estimated budget of £200 million
(Stroup 2012: 145). In 2010, although it had offices in eighty coun-
tries, 84 per cent of staff and 87 per cent of members and supporters
in Amnesty came from the 'Global North' (including Japan) (Hopgood
2011). Amnesty gets its funding exclusively from membership (except
the US office, which does accept donations from foundations) and indi-
vidual bequests. Human Rights Watch is smaller, and it was always
more professional and centralised than Amnesty. It relies on philan-
thropic foundations, primarily now the George Soros Foundation, as
well as on corporate sponsorship and fund-raising from individuals
(Stroup 2012: 145-8).7
In addition, since the 1990s, large development INGOs, including
Oxfam, CARE, Save the Children and Action Aid, have begun to com-
bine humanitarian relief, development work and rights-based advo-
cacy. Unlike Amnesty or Human Rights Watch, these organisations
are funded by governments as well as through private donations: To
get an idea of the scale of their operations we can note that CARE
received over $700 million dollars from the US government in 2009 -
and smaller sums from other governments in Europe (Stroup 2012: 81).
When Amnesty was originally set up in in 1961 the organisation claimed
moral authority. The largely volunteer membership worked to 'shine a light
in the darkness: Amnesty was founded originally to free political activists
imprisoned for their beliefs (prisoners of conscience) and its work was rigor-
ously neutral. Members of Amnesty wrote letters to prisoners in 'Threes' to
avoid Cold War politics - to one person imprisoned in a communist state,
another under a right-wing dictatorship, and to a third in a non-aligned
state. And until the 1990s Amnesty did not allow its members to report or
campaign on violations in their own countries in order to avoid political
bias. In other words, in its early days Amnesty was self-consciously apol-
itical, working only on injustices that were seen as self-evidently morally
wrong, that must be condemned by anyone with a conscience, regardless
of their political beliefs (Hopgood 2006).
In addition to moral authority, all human rights and humanitar-
ian organisations construct themselves as having expert authority.
26 (A) human rights movement(s)

The reports produced by Amnesty and Human Rights Watch are very
well known and respected outside the organisations. INGOs have greater
capacities to collect information 'on the ground' on human rights abuses
than governments, using a range of informants, amateur and profes-
sional, and their reports are widely read and used by journalists, politi-
cians, lawyers and diplomats. Reports published by human rights INGOs
have been criticised by social theorists for their tone. They are 'objective'
in style, concentrating on putting forward facts of human rights abuses,
most commonly with reference to international human rights law. The
style of these reports is to 'let the facts speak for themselves'. Though
direct testimonials from eyewitnesses or victims of human rights abuses
are invariably included, critics argue that they are still too dry, lacking
in the ability to move people to action to end human rights abuses. INGO
reports are also criticised as problematic because they do not represent
the structural conditions of systematic violations (Dudai 2009; Moon
2012). On the other hand, INGOs have won a good deal of credibility
for their expert authority using this 'objective' style of report on human .
rights. According to Theo van Boven, a director of the UN Centre for
Human Rights in the 1970s, '85 percent of our information came from
NGOs', and INGO reports are still crucial to UN monitoring of human
rights (Keck and Sikkink 1998: 96).
Although the expert authority of Amnesty and Human Rights Watch
has been consolidated since Amnesty was set up in the 1960s, in other
respects the work human rights INGOs do now is very different; it is far
more complex and diverse. As the numbers and types of organisations
that work on human rights have expanded and become more profes-
sional, it becomes obvious that INGOs do not rely solely on moral and
expert authority for their effectiveness.
INGOs are involved in politics: in the framing of facts and values that
constitute 'common sense'. This has become more evident as they work
on a far greater range of human rights issues than Amnesty did in the
beginning, focusing less on individuals and more on themes and on
regions. And although the work they do is still primarily in the area of
civil rights, both Amnesty and Human Rights Watch are now involved
in confronting abuses of human rights by corporations, in claims for
economic, social and cultural rights, and in the human rights of women,
sexual minorities and refugees." Human Rights Watch is also - unlike
Amnesty - involved in monitoring human rights violations in armed
conflicts, including the abuses of non-government actors. The range
 A global human rights movement? 27

of rights for which INGOs stand makes it impossible for them to avoid
becoming entangled in fundamental questions over how people should
live: over the respective value of state intervention and markets with
respect to social and economic rights; what is acceptable and permis-
sible in intimate relationships and the role of women in society with
regard to women's and LGBT rights; whose culture and ways of life
should be valued and defended where there is conflict between indigen-
ous and rural groups and state-sponsored· development projects.
INGOs are also engaged in Politics. Human rights INGOs are opposed
to states in that they are on the side of those whose human rights are
being violated. But they also work with governments to restructure
states that have been involved in human rights violations. Collaboration
with the US government has been especially important to INGO influ-
ence. Human Rights Watch was set up as Helsinki Watch in 1978 to
monitor civil rights violations against political dissidents in the Soviet
bloc. Making use of the power of the US government was an expli-
cit part of its strategy from the beginning (Neier 2012). In contrast,
Amnesty has tried to keep its distance from collaboration with the
United States, and it has been much more overtly opposed to US pol-
icies (Stroup 2012: 197-8). Nevertheless, Amnesty has also collaborated
closely with US state officials, as well as with European governments,
as we saw from the example of the campaign in Argentina in which it
was involved in the 1970s.
Engaging in Politics makes it difficult for INGOs to claim moral authority.
An example of the complications and compromises that result from col-
laboration with states that has proved especially difficult for both Human
Rights Watch and Amnesty is their relationship with the United States dur-
ing the 'Global War on Terror: Human rights INGOs have found themselves
in the difficult situation of trying to oppose violations of human rights by
states that are enemies of the United States, at the same time opposing US
violations of human rights, and justifications of military intervention by
US elites in the name of ending human rights violations. In 2003 Human
Rights Watch was heavily criticised for not opposing the invasion of Iraq,
which the Bush administration was partly justifying as humanitarian, a
response to human rights violations committed by the Saddam regime.
Human Rights Watch appeared to give credibility to these claims because
it published reports on the gross violations of human rights for which
. Saddam Hussein had been responsible a decade earlier in the run up to
the invasion. They included the summary execution and disappearances of
28 (A) human rights movement(s)

tens of thousands of Kurdish villagers, young men, women, children and

elderly people. In 2004 Kenneth Roth, director of Human Rights Watch,
tried to distance his organisation from the Bush administration, arguing
very dearly that the invasion of Iraq was definitely not a 'humanitarian
intervention' - but by then the damage to the organisation's reputation
had been done (Roth 2005; Stroup 2012: 195-'201). From its beginning
Amnesty has had a policy of neutrality with regard to armed conflict. For
this reason the organisation did not take a position on the invasion of
Afghanistan in 2001, even though US officials justified it on the grounds of
human rights abuses to which women especially were being subjected by
the Taliban. Employees of Amnesty were not permitted to use the Amnesty
logo in demonstrations against it. Later Amnesty did reinterpret its policy
to oppose the invasion of Iraq on the grounds that war should only be
used as a last resort (Hopgood 2006: 198-200). In 2012, however, Amnesty
USA was campaigning for a law to be passed in the UN Congress to ensure
that the Department of Defense reported regularly on its efforts to ensure
the protection of women's rights in Afghanistan as UN-led security forces
were preparing to formally withdraw from the country in 2014 (Amnesty
International USA 2013). INGOs find it difficult to distance themselves
from US interests, to gain moral authority as neutral and above politics,
because 'naming and shaming' depends in large part on persuading US
elites to put pressure on the elites of other states. This is of course especially
controversial where military intervention is involved - a topic we explore
further in Chapter 4.
As well as becoming implicated in 'Politics', human rights INGOs also
have economic interests. They must 'do well to do good'. They must
cultivate sources of funding in order be able to do their work. As we
have already noted, human rights INGOs vary in how they are funded.
Amnesty is funded exclusively by its members - except Amnesty USA,
which, like Human Rights Watch, accepts money from foundations too.
Many of the humanitarian organisations, like CARE and Oxfam, receive
a significant portion of their funding from governments. But insofar as
human rights INGOs are based in the Northwest and gain most of their
funding and public support in these countries, economic considerations
put similar constraints on all of them with regard to how they select the
campaigns on which they work.
In a very interesting study of the work of INGOs, Clifford Bob argues
that INGOs are not only concerned with justice when they choose which
campaigns they will take up of the many that they could in principle
 A global human rights movement? 29

support. The selection of campaigns is also intended to enhance the

brand name and the success of the INGO itself. Bob argues that 'mar-
keting rebellion' is especially problematic when it affects how human
rights are claimed. He argues that how 'causes' are chosen and pack-
aged may distort or leave out aspects of people's experience that they
find vital, but which are simply too complex or too controversial for
mainstream audiences in Northwestern states. In fact, in some cases, .
Bob suggests, the way INGO support is offered may even make people's
situation worse. The main example Bob gives to support his argu-
ment is that of the Movement for the Survival of the Ogoni People.
This was a movement that was established and led by the articulate
and charismatic journalist and TV presenter, Ken Saro-Wiwa. INGOs,
including Amnesty, were at first reluctant to take up the cause ~f the
Ogoni people, which was presented in the same terms in which it was
debated in Nigeria, as a movement for regional autonomy. It was only
after Saro-Wiwa decided to risk escalating nonviolent confrontation
with the Nigerian state that the media, INGOs and Northwestern states
become involved. Saro-Wiwa's strategy for gaining international atten-
tion was successful in large part because the conflict involved Shell, a
brand name that drew the attention of Northwestern audiences to learn
more about human rights violations of the Nigerian state from which
the corporation was clearly benefitting. Saro-Wiwa paid for the success
of his strategy with his life when he was summarily hanged along with
nine other members of the movement after a hasty military tribunal in
1995. What is more, Bob argues that violent repression of the move-
ment by the Nigerian state increased at the same time as support in
Northwest states for their environmental and human rights. According
to Bob, Saro-Wiwa's campaign did change how people think about links
between environmental and human rights issues. But Bob argues that
it is doubtful that it led to any long-term gains for the Ogoni people, in
part because their demands for regional autonomy were too complex
to find adequate representation in transnational campaigns (Bob 2005).
INGOs are still able to persuade many that they have moral and expert
authority: they are still trusted and respected.9 And they still attract ideal-
istic supporters. It may be distasteful to think of INGO images as 'brand
names' rather than in the more noble and disinterested terms of 'reputa-
tion', but however we think about them it is dear that INGOs can never
.be governed solely by concerns of the market and competition. Indeed,
concern for their market share in terms of donations and funding is one of
30 (A) human rights movement(s)

the considerations that makes INGOs careful to protect their reputations/

brands. This is nowhere more evident than in the care that is taken to make
sure that research reports into human rights violations are accurate and
reliable. Indeed, it is an indication of their continuing moral authority that
even people who. are suspicious and critical of INGOs make use of reports
by Amnesty and Human Rights Watch.10
Moreover, it is also important to note that those who oppose INGOs
on the grounds that they are not simply concerned with ideals are
also engaging in 'politics', and very often in 'Politics' too. In 2012 the
Russian government passed a law requiring NGOs that receive foreign
funding and are engaged in political activities to name themselves as
'foreign agents'. In making this law, the Russian government drew on
xenophobia and nationalism to demonise and restrict the activities
of organisations it feared as critical of the government (see Human
Rights Watch 2013a). A similar law has existed in India since the 1975
Emergency, requiring all organisations seeking foreign funding to apply
for permission from the Union Home Ministry. According to Ravi Nair,
it has resulted in self-censorship on the part of organisations, which
avoid working on rights that implicate the government for fear of being
refused permission to apply for funding from abroad (Nair 2013).
Their moral and expert authority may be in reasonably good shape,
then, but the leaders of INGOs are still concerned about 'pollution' -
about appearing to compromise too much in order to succeed pol-
itically. They have to negotiate how their moral commitments are
inevitably tangled up with money and power, and how they appear
to other actors in the human rights field (Krause 2014: chapter 4). It is
surely in part such concerns that lead to INGO claims in terms ofpopu-
lar authority: the suggestion that they are channelling demands for
human rights from below. In this respect, however, INGOs are in real
difficulties. INGOs demand accountability of elites for human rights
violations, but as they are currently set up they are accountable only
to funders and to their members (where they have them). Humanitarian
organisations have developed ways of monitoring and evaluating pro-
jects (see Jordan and van Tuijl 2006). But they fall far short of enabling
people to represent their needs to INGOs. Primarily accountable to gov-
ernments, foundations and members in the Northwest, popular author-
ity is clearly a problem where INGOs are engaged in controversial and
complex campaigns in countries of which few of their supporters have
had any direct experience.
 Grassroots movements for human rights 31

Both Amnesty and Human Rights Watch are restructuring to try to

put down roots in the Global South. Amnesty is currently in the process
of setting up 'hubs' in African, Asian and Latin American cities as part
of a strategy called 'moving closer to the ground'. Amnesty has tried
before to establish offices outside the Northwest without much suc-
cess. The aim now is to build up regional centres that will co-ordinate
research and campaigning, that will be able to respond more quickly
to violations, and that will be able to claim popular authority because
they have more grassroots support in states that are being targeted. In
addition, with growing prosperity in Latin America and Asia, and the
decline of Northwestern economies, they are seen as potentially offering
new sources of funding (Hopgood 2011). Human Rights Watch is also
trying to build up its international capacities in research and campaign-
ing by establishing offices in the Global South (Stroup 2012: 143-4).
It remains to be seen ,how successful these efforts will be. Will 'mov-
Ing closer to the ground' increase Amnesty's authority in the Global
South? Will globalising enable Human Rights Watch to put pressure on
elites involved in human rights violations through governments there
rather than relying so · heavily on the United States? Or given their
histories, and their close association with support and funding in the
Northwest, will it prove too difficult for human rights INGOs to estab-
lish themselves. elsewhere? If so, does this mean that they will not have
the remarkable influence in international affairs they have managed to
achieve in recent decades? Will we see the rise of other, Southern-based
INGOs that will take their place?

Grassroots movements for human rights

Alternatively, there is quite a different way in which social movements

are thought of as contributing to claims for human rights. Post-colonial
social theorists suggest that there are many movements addressing
grievances 'from below' rather than a single 'human rights movement'
led by INGOs. These movements claim popular authority because they
are made up of people who live at the very edges of global markets that
threaten their ways of life. They are movements of indigenous people,
landless peasants and urban squatters that have been especially prom-
. inent in Latin America, and who have also been involved in particular
campaigns in Asia and Africa.
32 (A) human rights movement(s)

Emancipatory movements
The most interesting theorist of grassroots movements for human rights
is Boaventura De Sousa Santos. For Santos, it is only grassroots social
movements that represent real possibilities of transformation using
human rights. In his view this is . because they have quite a different
relationship to law than INGOs and transnational advocacy networks,
and therefore to states and to 'Politics' (Santos 2002a, 2002b).
Santos works in the tradition of legal pluralism. Broadly speaking,
'legal pluralism' simply means that there is 'a multiplicity of legal orders'
within a single social field or political unit (Tamanaha 2008: 37 5). Legal
pluralism has become topical in relation to globalisation, where it is
thought of as transnational. Transnational legal pluralism includes
the range of forms of legal regulation emerging at different scales,
from local, informal mechanisms of dispute resolution at the local
level, through national and international law. But legal pluralism has
long been understood as important within post-colonial societies in
the Global South. It is a product of the way Europeans governed col-
onies through existing forms of authority, including so-called 'native
courts' that enforced customary or religious laws. In many places the
result was a dual legal system: legal norms were applied to economic
and government affairs through state courts, while officially recog-
nised customary and religious courts and authorities dealt with family
and 'local' matters. Legal pluralism continued following decolonisa-
tion, so that it is a feature of many countries today. A recent report for
the International Council on Human Rights Policy gives the following
example: '[l]f a member of a peasant community in the Department of
Ayacucho, Peru, is involved in a dispute, · she can resort to the author-
ities of her own peasant comunidad, to the local Justice of the Peace, to
an NGO-based Rural Centre for the Administration of Justice, or to the
state courts' (International Council on Human Rights Policy 2009: 2).11
For Santos, legal pluralism opens up the possibility of progressive forms
of law developed by marginalised and oppressed peoples. He sees national
state law (which is what is ordinarily thought of as law in Northwestern
societies) as problematic because it turns law into a science that is inaccess-
ible to the majority of the people. It intimidates people, suppresses dissent,
and helps elites to maintain their power. According to Santos, engaging in
Politics is counter-productive because people will never be able to defend
ways of life they value through state law. Emancipatory law, on the other
 Grassroots movements for human rights 33

hand, does not separate state and society. It emerges from the lived experi-
ence of marginalised, oppressed and impoverished people. Emancipatory
law must be developed by communities according to their own norms
of justice. But to be emancipatory, local law must be political. It must be
developed in ways that enable people to determine the conditions of their
own lives, resisting multinational corporations, capitalist commodifrcation
and the domination of elites, as well as dealing with power relations based
on inequalities of wealth and status within communities (Santos 2002a).12
According to Santos, where they contribute to emancipatory law
international human rights can be progressive. Human rights may
encourage progressive interpretations of existing traditions, where they
are 'translated' into local cultures and become relevant to legal prac-
tice. Santos gives the example of women's status in sharia law (Santos
2002b: 50-2). But it works the other way too. Local understandings
usefully contribute to the development of progressive, multicultural
human rights as a result of cross-cultural dialogue between oppressed
peoples (Santos 2002b). In both respects, Santos sees creative uses of
international human rights as having a progressive part to play as long
as they are developed 'from below', by grassroots social movements. 13
The social movement that comes closest to Santos' understanding
of the potential of human rights is the Zapatistas. The Zapatistas
came to international prominence in 1994 with an armed insurrection
against the Mexican government. At that time they made demands
on the Mexican state, including for self-rule for the Chiapas region
where they are based. But the Zapatistas quickly developed quite dif-
ferently, creating autonomous forms of participatory governance in
which they gave rights to themselves, rather than conceiving of rights
as being granted by states or international agencies (Speed 2008).
For Santos, at this time the Zapatistas were exemplary because their
conception of rights was radically inclusive of all forms of inequal-
ity (social and economic as well as civil and political); and because
they tried to take all forms of oppression into account (of workers
but also of women, lesbians and gay men, and indigenous peoples).14
In addition, unlike previous revolutionary movements, they did not
seek to 'take power' (through the state) but aimed rather to create a
fundamentally new world beginning from 'where we are' by contest-
ing relations of power in everyday practices (Santos 2002a: 459-65).
The Zapatistas are exemplary of Santos' ideas about emancipatory
human rights. They developed local forms of governance outside
34 (A) human rights movement(s)

state-centred law, close to lived experience and progressive in rela-

tion to diverse forms of inequality and domination.
The Zapatistas are clearly an extraordinary movement. They have
captured the imagination of people all over the world. The Zapatistas
are autonomous of INGOs as well as of the Mexican state - and at
the same time they have become famous worldwide through their .
creative use of spectacle and poetry. Subcomandante Marcos has
become a radical icon, a postmodern Che Guevara of our times.
'Revolutionary tourism' to the remote parts of Mexico in which the
Zapatistas are based was already well established by 1995, and celeb-
rities and activists flocked to the region. The Internet has proved
especially important to mobilising support for the Zapatistas, inspir-
ing intellectuals and activists like 'Ya Basta!' in Italy, and the 'hori-
zontals' who became Occupy Wall Street in the United States (Castells
1997: 79-83).
But the fact that the Zapatistas are so extraordinary might give
us pause. Are they actually unique, quite exceptional in their use of
human rights? Unlike most organisations involved in claiming human
rights they avoid formal politics altogether. It is telling in this respect
that Santos - with Cesar Rodriguez-Garavito, the director of the Latin
American Human Rights Centre based in Colombia - has compiled an
edited collection of case studies concerning emancipatory law in which
there is no case of autonomous organising for human rights that is
anything like the Zapatistas (Santos and Rodriguez-Garavito 2005). It
is surely far more common for movements to engage in Politics as well
as politics?

Using law, not depending on it

An example of a grassroots movement that engages in the cultural politics
of human rights both inside and outside formal governmental organisa-
tions is the Treatment Action Campaign in South Africa. The Treatment
Action Campaign is an NGO and a nation-wide movement for people with
HIV/AIDS who could not get treatment in the 1990s and who were often
shunned by their families and communities because of their illness. The
Treatment Action Campaign has engaged Politics, making use of state and
international human rights law and INGOs to engage elites in the South
African state and transnational corporations. At the same time.it has also
engaged in politics at the grassroots: transforming how people value the
 Grassroots movements for human rights 35

lives of HIV/Aills sufferers, and empowering people to see themselves as

having a 'right to rights'.
The Treatment Action Campaign is largely made up of young,
urban South Africans who are themselves HIV-positive. The NGO
also formed alliances with the Congress of South African Trade
Unions and the South African Council of Churches, which helped
put pressure O!l the state at local, national and international lev-
els. Activists used many of the techniques of protest that had been
learned in the anti-apartheid movement, including civil disobedi-
ence. Demonstrations kept the issue in the media as activists staged
illegal sit-ins at which they were arrested. The Treatment Action
Campaign also successfully took the South African government to
court on a couple of occasions. It was able to do so because the
South African constitution requires the government to respect social
and economic rights. The South African Constitutional Court may
require that the state take reasonable steps to realise social and eoc-
nomic rights 'progressively' and 'within available resources'. In the
case of AIDS medication, the Court found that the government was
not reasonable in withholding affordable drugs to prevent and treat
HIV/AIDS. President Thabo Mbeki had resisted buying and adminis-
tering the necessary drugs on the grounds that AIDS was caused by
poverty, not HIV infection, and that 'Western' medicine was not the
best treatment for illness in Africa. But the Court's judgement did not
immediately lead to government action. At this point, the Treatment
Action Campaign made links with INGOs, including Oxfam, to put
pressure on transnational pharmaceutical companies to allow drugs
to be distributed more cheaply. And later, when the government was
still reluctant to abide by Court rulings, it called for international
demonstrations against the South African government, which took
place across Europe and the United States and Asia (Forbath et al.
2011; see also Friedman and Mottiar 2005; Heywood 2009).
The Treatment Action Campaign was successful in its aims: the price
of drugs for HIV/AIDS was reduced, and the South African government
committed resources to a national programme of treatment. As a result,
Mark Heywood, who was one of the leaders of the campaign, estimates
that at least 350,000 people are alive who would have died (Heywood
2008); In addition, however, the Treatment Action Campaign may have
.been successful in that it is empowering ordinary people to claim social
and economic rights for themselves.
36 (A) human rights movement(s)

Lucie White and Jeremy Perelman, the editors of a collection on

human rights activism, Stones of Hope, stress that what is most signifi-
cant about grassroots mobilisations in general, including the Treatment
Action Campaign, is the way campaigns use but do not depend on,
human rights law. As well as legal strategies, they involve people mobi-
lising where they find themselves to make human-rights claims on their
own behalf. As a result, these campaigns are empowering. They enable
people not only to learn that they have rights, and what those rights
are; they also learn and develop tactics that will serve them well in
actually getting and defending what they need (White and Perelman
2011). Through these mobilisations people develop a sense of their
'right to rights' that they had not previously experienced. According to
William Forbath and his colleagues who studied the Treatment Action
Campaign, this may be what was most important about it: it not only
empowered poor South Africans to demand the treatment they needed;
at the same time they also gained detailed knowledge of how to claim
social rights from the government more generally (Forbath et al. 2011).
Certainly the accounts of these campaigns demonstrate that human
rights do not necessarily disempower the poor. A prominent criticism
of human rights campaigns is that they invest the law with too much
power. Making human-rights claims using law can represent a huge
obstacle for poor people. It requires legal expertise - whether to take a
case to court, or to lobby governments or IGOs. 'Translators' are invari-
ably necessary to mediate between legal definitions and local under-
standings of human rights in order to develop effective campaigns for
justice [Merry 2006: 193-4). There is a danger then that people lose
control of the issues that concern them: lawyers become the only ones
who can direct campaigns because they are confident in a language
that is inaccessible to anyone else.
One aspect of the Treatment Action Campaign that has been neglected
in this respect is how the language of human rights united and inspired
people to action. How did lawyers 'translate' human rights law into
frames that were relevant to and that resonated with ordinary people's
concerns? According to Forbath et al. human rights education in the
South African townships involved:
[A]n untidy, uneven, many-layered process of new rights-bearing
identities in the making. Religious structures of thought and feeling and
customary local knowledge, witchcraft, and spirit worlds merge and
 Grassroots movements for human rights 37

jostle with medico-scientific 'enlightenment' and liberal and social rights

consciousness.
(Forbath et al. 2011 : 81)

People in South Africa make use of 'folk medicine' as well as Western

medicine (Decoteau 2013). An important dimension of the Treatment
Action Campaign was a 'treatment literacy programme'. It was designed
to help people with the complicated routines of drug taking that treat-
ing HIV/AIDs involves: knowing when: to take drugs regularly through-
out the day and when it is necessary to alert medical staff to changing
symptoms which require different drugs. In accounts of the Treatment
Action Campaign, however, we learn neither about how local medical
knowledges were negotiated in relation to the treatment literacy pro-
gramme, nor how they were combined with human-rights claims in the
Treatment Action Campaign. Grassroots mobilisations are inherently
difficult to study, and what we have are accounts from those involved
in leading the campaigns, not ethnographic research on how the mean-
ings of human rights were contested and negotiated in order to create
new possibilities. It seems likely, as Forbath et al. seem to suggest, that
human rights would not always be understood in the same way, that
there would be different interpretations, even within the same group.
What is the effect on peoples' identities, their understanding of who they
are in relationship to others, of grafting an understanding of oneself as a
claimant of human rights on to local understandings of who 'I' am and
who 'we' are?15
What can be learned from the Treatment Action Campaign is the way in
which the NGO put pressure on international elites. Friedman and Mottiar,
who have made an in-depth study of Treatment Action Campaign's organ-
isation and strategies, argue that the leadership of the movement took
care that the international links they made with INGOs like Oxfam to
put pressure on the South African state did not influence their campaign
(Friedman and Mottiar 2005). This was surely relatively easy for Treatment
Action Campaign organisers. It is clear from the range of organisations
that funded the campaign, including INGOs, foundations, governments,
the EU and the UN as well as individuals, that they had no difficulty in
attracting international attention.16 Clearly, the organisers of the Treatment
Action Campaign were n9t in the same position as the ill-fated movement
of the Ogoni people led by Ken Saro-Wiwa. They were much more able to
deal with INGOs on their own terms.
 38 (A) human rights movement(s)

If the Zapatista movement is emancipatory by Santos' standards,

what about the Treatment Action Campaign? In many ways they are
not really comparable. The Zapatista movement is revolutionary: it
aims to fundamentally restructure society 'from the bottom up' by
people taking control of the social and economic conditions of their
own lives. In contrast, the aims of the Treatment Action Campaign
were far more limited: the objective is to change how people are posi-
tioned in relation to markets (in this case, the market in drugs), and to
claim rights from the state of which they are citizens. Nevertheless, the
accounts we have of the Treatment Action Campaign suggest that this
type of campaign has been empowering for people who have been able
to bring about changes in economic and political structures; and who
have gained a sense of themselves as having a 'right to rights'. In this
respect, the Treatment Action Campaign has been emancipatory: it has
enabled people to take a greater degree of control over the conditions of
their own lives not by disengaging from transnational markets, INGOs
and national states but by engaging with elites to transform how they
are structured. At the very least, unless the accounts we have - limited
though they surely are - are wildly optimistic, what we know about the
Treatment Action Campaign suggests that campaigns for human rights
that address international and national elites and that link grassroots
networks and INGOs are not necessarily disempowering for the poorest
and most disenfranchised, even when they do call on the authority of
lawyers and other professionals.

Claiming rights effectively

·························································································································
In his book on human rights and poor people in Africa, Harri Englund
recounts a very moving story that shows how people can be cheated out
of what they are due even when they already clearly have legal rights.
The story is of a man called Chikondi who worked for a wealthy hardware
merchant in Malawi. He was regularly sent away on long-distance trips for
several weeks at a time as a 'lorry boy', guarding the lorry and its goods,
sleeping sometimes in the lorry and sometimes alongside it on the ground,
even when it was raining. He was never told when he would have to leave,
so he had no time to prepare. He did not even have time to tell his wife
and family he was leaving, nor to gather clothes and food for the journey.
Things came to a head one day when his employer accused Chikondi of
 Claiming rights effectively 39

conspiring with others to steal from his shop - though he was miles away
at the time - and then refused to pay him the month's salary he was owed.
The suspected thieves were not only dismissed; they were also beaten up by
the employer's sons. Englund recounts how Chikondi then tried to get help
from the Centre for Human Rights and Rehabilitation, an NGO specialising
in legal advice, to force his employer to pay him for the work he had done.
There is a legal minimum wage in Malawi, but Chikondi was not asking
for that - his employer had only ever agreed to pay him below the min-
imum wage, with vague promises that he would increase it later. He was
also due a daily allowance for living and working away from home, which
his employer had never told him about. The man who dealt with his case
at the Centre did not tell Chikondi about his legal rights to the minimum
wage and to a daily allowance. Eventually Chikondi managed to get just a
fraction of what he was due from the employer (Englund 2006).
The point of Englund's story is not just that Chikondi was cheated out
of what he was legally owed by his employer, and also then by the man
working for the Centre for Human Rights and Rehabilitation. It is also
that the way in which Chikondi was treated was systematically dehu-
manising. His employer showed no respect for Chikondi's well-being
or his dignity as a person. He treated him as nothing but a nuisance
when he was not making use of him. But Chikondi was also treated as
a problem when he tried to claim just some of what he was legally due.
Effectively the officer at the Centre identified with the employer, 'as
two gentlemen clearly above the client, whose fate they had the power
to decide' (Englund 2006: 162). It was not so much that Chikondi was
intimidated by the status and wealth of those he had to deal with, or
even the very real threat of violence he faced in pursuing his claim. It
was more that as members of the local elite the men who should have
dealt with him according to his rights were so sure that he was beneath
their consideration: very far from a human being with entitlements to
be treated with dignity and fairness.
There is no doubt that elites cause suffering when they abuse human
rights. But 'elite' is better seen as naming a relationship to relatively less
powerful people, rather than a fixed structural position or an identity.
In the case Englund recounts, it was an official of an NGO, the Centre
for Human Rights and Rehabilitation, as well as a wealthy employer,
who treated a poor man as less than human. It was local elites that
caused the problems for Chikondi. For the Treatment Action Campaign
the problem was the national government headed by President Mbeki
40 (A) human rights movement(s)

that refused to acknowledge the real needs of the very large num-
bers of people in South Africa who have RN/AIDS as well as large
pharmaceutical companies that could clearly cut the prices and still
make a profit (as they eventually did). The targets of the campaigns
for the Argentinian 'disappeared' were national military and political
elites who tortured and killed their enemies. And, , by extension, the
campaigns also targeted people with international influence in wealthy
and powerful states who turned a blind eye t9 the torture and murder
that was going on there, treating the Argentinian military dictatorship
as the leaders of a sovereign state like any other.
Grassroots campaigns are necessary to frame 'human rights wrongs'
effectively. Without collective mobilisation, people will generally find
themselves at a disadvantage faced with those who have more informa-
tion, higher status, more education, more money - however small those
differences may be in the greater scheme of things. Individuals like
Chikondi cannot be expected to alter definitions of what is right and
wrong on their own, however hard they may try. Clearly, as Englund
shows so well, in many cases they cannot even count on people work-
ing for human rights NGOs to help them. People have to develop under-
standing of their 'right to rights' as well as to learn how to claim them.
It is also clear, however, that to be effective, human rights claims
must generally travel beyond the localities in which grassroots move-
ments are formed. If local elites can be a problem, so too can national
and international elites. Transnational advocacy networks also, there-
fore, have an important role to play in creating the conditions for the
realisation of human rights in practice. In this respect, although we
have been discussing the difficulties of linking INGOs, NGOs and GROs
in this chapter, the authority of INGOs. and the pressure they can bring
to bear on states and IGOs is an important aspect of the cultural politics
of human· rights. Emancipation, achieving a greater degree of control
over the conditions of our lives, is achieved by remaking structures,
making markets and states more people-centred. The important ques-
tion is surely, then, how grassroots movements connect to INGOs in
transnational advocacy networks. How can INGOs collaborate with
grassroots movements to advance human rights claims in ways that
actually meet people's needs? And under what conditions can grass-
roots movements collaborate with INGOs to mediate claims to elites
without losing control of their own aims?
 same
yrfe ~t,Jrsationof human rights ifl pr~ctjce: .they
to ij,x~rpi~~ authodtynationa!ly and internationally that
how people live within thelrterrltories
tni'LStates are at the same time the violators and
rights.
It may seern odd to think of states as the guarantors of human rights.
Where states have been considered from a social constructionist perspec-
tive in studies of human. rights, they tend to be seen as obstacles to the
realisation of humanrights in practice. State sovereignty,the principle that
 42 States of human rights

there should be no outside interference in the affairs of states or in what

goes on inside their territories, is seen as a problem for the realisation of
human rights: it must be contradicted or transformed so that everyone,
no matter where they are born or where they are living, can enjoy rights
(see Levy and Sznaider 2006). But states are not just violators of human
rights. International law does support state sovereignty (though precisely
what this means is now changing, as we shall see in Chapter 4). But inter- .
national law also makes states responsible for guaranteeing human rights.
There is a paradox at the heart of international human rights law that we
will be exploring in the following chapters: states are supposed to ensure
the human rights of individuals within their territories against their own
violations.1 It is in the name of states, and only states, that international
human rights law is made. It is only officials representing states who sign
and ratify treaties and conventions, and who agree that compliance with
human rights should be monitored by the UN and judged in national and
international courts. It is also through states that resources are organised
to set up inter-governmental organisations IGOs, international courts and
commissions. In addition states today are overwhelmingly constitutional
states: the rights of individuals and groups - including both citizens and
non-citizens - inside virtually all state territories are guaranteed, in prin-
ciple, to at least the standards of international law. In fact, many national
constitutions today go beyond international human rights standards. In
Latin America constitutions that were made after military dictatorships
are explicitly multicultural, specifying that the customs of indigenous
peoples should be treated with respect (Go 2003; Cardenas 2010). And in
South Africa the post-apartheid constitution provides for people to claim
social and economic rights in the Supreme Court (Gauri and Brinks 2008).
Of course, signing and ratifying international treaties and conventions,
even creating national constitutions, do not turn violating states into
human rights guarantors. Far more important than international law to
whether states are violators or guarantors of human rights is the form
they take, and the political strategies through which they are reproduced,
challenged or transformed.

What are states?

·····························································································································
In the language of international human rights documents - as in the
preamble to the International Convention on Civil and Political Rights
 What are states? 43

extracted above - 'State Parties' 'consider', 'recognise' and 'realise' their

human rights obligations. In such texts states are treated as if they were
people: individuals with awareness, feelings and agency. Treating states
as unified actors is common too in IR, political science and political
sociology.
It is notoriously difficult to study states from a social construct-
ivist perspecti"."e (see Abrams 2006). Given that in reality there is no
clear-cut distinction between 'state' and 'civil society', how can we
study something that is so sprawling and heterogeneous without reify-
ing 'the state'? What is most tempting from a social constructionist
perspective is to treat 'the state' as no more than a construction of lan-
guage, an illusion that traps us into thinking 'it' exists. 2 This approach
does not, however, help us to understand what it is that is so exceptional
about states - how they concentrate and control resources, material
and moral. Nor does it help us to understand the specificity of actions
authorised and carried out 'in the name of the state:
What makes states distinctive as organisations? Charles Tilly's defin-
ition is often cited as covering much of what we intuitively understand
as relevant and specific about states. According to Tilly a state is:
I~: An organization which controls the population occupying a definite

I
,,
territory ... insofar as 1) it is differentiated from other organizations
operating in the same territory; 2) it is autonomous; 3) it is centralized;

I and 4) its divisions are formally coordinated with one another.

(Tilly quoted in Poggi 1990: 19)
I
II
States distinguish themselves and they are distinguished from other
organisations in the same territory: we have only to think of how
government buildings are marked out with national flags and special

I names: 'State Department', 'Department of Defence', 'Department of

Social Security', and so on. States are centralised: their offices are

I
invariably to be found in the capital cities of the countries in which
they have jurisdiction. And states are formally co-ordinated: all
officials who are employed in states are in hierarchies of bureau-
cracy and management, answerable to higher officials within the
same department; the highest officials within each department are
in turn answerable to a still higher rank of officials brought together
across departments, and so on. Eventually ultimate responsibility
. lies with the head of state (most commonly a president, sometimes
a monarch).
44 States of human rights

The question of state 'autonomy' is, however, far more complex than
Tilly's definition suggests. States are only ever relatively autonomous.
The effectiveness of those who carry out actions 'in the name of the
state' depend on the organisation of moral and material resources that
officials never fully control. States are never unified, nor 'complete'.
Except perhaps in conditions of extreme authoritarianism, and despite
their hierarchical, bureaucratic form, there is inevitably political con~
flict within states and across state boundaries. There is competition over
resources between politicians, bureaucrats and experts within states,
and between these officials and managers of corporations, organised
workers, members of dissenting political parties, social movements.
There is also competition for resources between state officials and the
officials of other states, and with experts, diplomats and bureaucrats in
IGOs.3 State officials try to influence how resources are collected and
concentrated 'in the name of the state' and how they are used; and they
try to block the ambitions and projects of others with designs on the
same resources. Ultimately these are cultural political struggles over the
form of the state itself.
One type of resource on which states depend is economic. The rela-
tive autonomy of states from the owners and managers of capitalist
production is the focus of the extensive Marxist literature on the state.4
Irrespective of politicians' ideological preferences, or their personal
ambitions, states depend on the collection and distribution of money.
Through law and regulation - sometimes involving force - money is
made and collected by officials acting 'in the name of the state' as tax-
ation, and then distributed according to political programmes and pro-
jects decided on by state officials. As a result, the leaders of businesses
that promise to contribute to national economic growth will generally
be listened to very carefully. But this does not mean that shareholders
and the managers of corporations control states. The dependence of
states on capital investment for economic growth is not one-way. Even
transnational corporations (TNCs) must go through states to be able to
achieve their aims: states provide (or do not provide) many of the con-
ditions that make business profitable, including infrastructure, relative
peace and security, monetary stability, guarantees for legal contracts.
And corporations must adapt to conditions set by state officials: they
must observe laws and pay taxes, or avoid them by complex account-
ing that appears legally valid, or threaten and bribe officials. This gives
state officials a degree of bargaining power even in globalising markets.
 What are states? 45

In addition, state officials have other sources of income besides tax-

ation. They may negotiate loans from other states and international
banks, and they may have access to international aid. In some states,
sources of income from other states and IG0s are very significant, and
this gives lenders and donors bargaining power. Again, however, even
the officials of small states are not completely controlled by politi-
cians, experts and bureaucrats in wealthy states, IGOs and international
banks. The fact that in recent times the officials of some states have
withdrawn from these sources of income (defaulting on loans, refusing
to agree to what they see as unfair terms of international trade) is an
indication that states have relative autonomy even in these situations.
We discuss international regulation and banking, TNCs, and national
economic policies with respect to demands for social, economic and
cultural rights in Chapter 5.
State officials also depend on military resources that they do not fully
control. The history of state formation is in large part the history of suc-
cessful armed gangs that have consolidated their ability to continue war-
ring by extracting money and labour from settled populations. As Tilly
puts it, the history of state formation is the history of organised crime (Tilly
1985; see also Giddens 1985). However, no state has ever had an army and
military that fully monopolised the means of violence within its territory.
Forms of violence that support or threaten the projects of state officials
vary a good deal in different states. There are organised and violent crimi-
nals in all countries; armedmilitias more or less control parts of some state
territories; and some areas are more vulnerable than others to bombing
and invasion by the armies of other states. How state officials create and
make use of military resources to realise their projects, how they respond to
armies and armed militias that appear to threaten their position, and how
their decisions are encouraged or constrained by other actors nationally
and internationally: these are all crucial to how states guarantee or violate
human rights.
In addition to material resources, state officials also rely on moral
resources to carry out their projects. They rely - to a greater extent in
different cases - on authority to act 'in the name of the state'. State
officials mobilise a mixture of types of authority both nationally and
internationally to justify laws, public policies and foreign policy. As we
shall see, the mix and the balance of claims to authority is quite dif-
ferent in different types of state. In each case, however, the authority
that is claimed is open to challenge on precisely the grounds on which
 46 States of human rights

projects are justified. Professionals employed in non-governmental

organisations (NGOs), IGOs and other states, sometimes in association
with people involved in grassroots movements, challenge state offi-
cials' claims to rational-legal authority on the grounds that the law has
not been observed, that the content of national law is not compatible
with international human rights law, or that proper procedures have
not been followed. They challenge expert authority as mistaken and
ill founded, or as biased and self-interested. They challenge popular
authority on the grounds that the government has betrayed its promises
to the people, or that it is not acting in the national interests. To vary-
ing degrees in different states, officials are responsive to these chal-
lenges. Officials are likely to be especially responsive where challenges
are backed up by the possibility that they may lose their positions -
whether through elections, prosecution, revolution or military coup.
The actions of state officials are only ever relatively autonomous,
then, with respect to the structures of material and moral resources
on which they depend. The control states exercise over populations
within their territories varies in different cases and at different times.
'Actually existing' states are the product of previous political strug-
gles over resources. State formation privileges the strategies of cer-
tain individuals and groups to pursue projects that they see as in
their interests or as of value. This aspect of states is sometimes called
'path-dependence': what seems reasonable to solve problems that arise
today is constrained by decisions that were taken in the past. In some
states 'path dependence' is more hospitable to respecting human rights
than in others. There are no states, however, that respect human rights
completely. In every state, the structures through which resources are
collected and used in political projects must be transformed if human
rights are to be realised in practice.

Differences of 'stateness' and states

·························································································································
How resources are collected, concentrated and used in different states
varies enormously. States have been formed through different histories,
and state officials reproduce and sometimes alter the structures they
inherit to pursue their own projects. To make states into guarantors
rather than violators of human rights in practice, then, different strat-
egies are needed in different states. In the rest of this chapter I will
 Differences of 'stateness' and states 47

outline brief sketches of different types of states in order to emphasise

these differences. I draw on concrete examples, but the aim is not to
build an exhaustive typology of states. It is rather to make general
points about the differences between states by emphasising particular
aspects of some. All states have characteristics of more than one of the
types outlined here. These sketches are intended as sensitising devices,
to open up questions for analysis concerning what is needed to realise
human rights beyond the making of international human rights law.

Juridical state
I begin with the juridical state because it is presupposed in international
human rights law. When a politician ratifies a human rights treaty or con-
vention (at least as far as it is assumed to be made in sincerity), what is
presupposed is that he or she is embedded in structures that will ensure that
what has been agreed will be respected in the future. All states are assumed
to be juridical states in international human rights law.
In fact, however, the juridical state is only ever approximated: it does
not really exist. In ideal terms, the juridical state is characterised by the
legal organisation and constraint of officials who act 'in the name of
the state'. International human rights law and constitutions determine
the 'checks and balances' of state power and limit its reach in relation
to those under its jurisdiction, citizens and non-citizens. This requires
further conditions. First, that public policies are codified as legal dir-
ectives and subject to review by judges and courts. Second, that law is
created by proper procedures. In addition to extending the functions
of law, juridical states are marked by the growth of bureaucracy. Even
if they are not eliminated completely in practice, any actions based
on personal interest, sentiment or belief can be seen as corrupt when
they are carried out by individuals who occupy official positions in the
state. Rational-legal authority that comes from strictly following pro-
cedures 'according to the book' is what justifies actions by officials of
the juridical state. State officials are expected to deal with the resources
for which they are responsible only according to the instructions of
their superiors in the bureaucratic hierarchy, and to use their skills and
knowledge only in the public interest, by fulfilling the criteria of their
appointments strictly according to the letter.
Sociologists see Northwestern states as quite closely resembling the
juridical (sometimes called 'constitutional') type as a result of the long
48 States of human rights

history of their development. In fact, the very idea of the juridical state
is based on a rather idealised history of Northwestern states.5 It follows,
then, that Northwestern states should be best placed to ensure respect
for human rights in practice. Let us look a little more closely at this
assumption.
Let us first consider how the juridical state is structured in relation
to civil rights inside national territory. In the Northwest these are often
supposed to be the most fundamental human rights. It is fundamental
to the juridical state and to respect for civil rights in practice that the
actions of officials must stay within the law. But what if the content
of the law does not respect civil rights? A very mundane and rou-
tine difficulty of ensuring civil rights in Northwestern states is what
David Kennedy calls 'background laws' that enable state actors legally
to violate human rights (Kennedy 2002). Summary executions by the
police, torture at the hands of police and military officers, kidnap and
murder by prison guards - these are all violations of human rights
that are very clear, even if identifying and punishing those responsible
may not be easy or politically expedient for governments. Similarly, so
too are violations of political rights: election fraud, the corruption of
elected politicians, misuse of party political funds and so on. What are
far less obvious, but equally important, are laws that enable the police
to break up or harass peaceful protestors on the grounds· that they are
violating obscure bye-laws: 'obstructing the highway', 'causing a pub-
lic nuisance', 'disturbing the peace'. The legal powers enjoyed by police
forces to prevent peaceful political protest in Northwestern states are
extensive, and they can easily be used in ways that violate the spirit
of human rights, to intimidate and contain the organised expression of
dissent.
A far more dramatic difficulty for civil rights in Northwestern states
is that all states allow themselves the legal possibility of making excep-
tions when faced with dangers to national security. They all have
built-in exceptions to observing civil rights when faced with secur-
ity risks. Infringements on civil rights in Northwestern states within
national territories have been very -well-documented in recent years,
with laws in the United States and Europe enabling racial profiling,
detention without charge, and extensive surveillance over citizens and
non-citizens. It is important to be clear: exceptions are not outside the
law in these states. Security laws adopted in national emergencies are
subject to legal review, and they very often have limitations put on
 Differences of 'stateness' and states 49

them, such as 'sunset clauses', intended to constrain the period in which

they are active (Alston and Goodman 2013: 394-7). However, it is in the
climate created by security fears that the US and European governments
have been involved in collecting and analysing the email exchanges of
every single person to which their programmes have access. It is only
due to the whistle-blower Edward Snowden that we even know this
is going on. Although there has been widespread outrage about the
surveillance activities of the United States and its European allies as
contravening fundamental rights to privacy, the initial response on the
part of governments was that the surveillance was not against the law
(though, as a result of intense legal and political pressure, President
Obama subsequently stated publicly that the programme will be ended)
(New York Times 2013; Guardian 2014). Finally, it is in the context of
'national emergencies' and the securitisation of borders that the civil
rights of unauthorised migrants into Northwestern states are violated
when they are incarcerated in prison-like facilities without due process
of law. Supported by the popular media, what are generally considered
fundamental human rights to freedom from arbitrary detention and to
a fair trial are routinely violated for non-citizens in Northwestern states
(as we shall see in more detail in Chapter 7).
In terms of social and economic rights, the juridical state is not
necessarily a minimal state. In Scandinavia and Western Europe the
welfare state was formed in the twentieth century, redistributing
wealth through taxation in the form of public provision of education,
housing and health-care as well as through direct transfers to fam-
ilies and to those unable to work in the labour market (Marshall 1987;
Esping-Andersen 1990). In large part the formation of the welfare state
represented a shift in the authority claimed by state officials as a result
of democratisation: 'popular authority' became more important with
the rise of social democratic parties. However, welfare states were also
possible because of the relationship between rational-legal bureau-
cracy and economic resources that had already been established: taxes
are set, collected and administered bureaucratically, and the routinised
means by which they are collected and administered is necessary for
bureaucracies to function as such. But whilst an approximation of the
juridical state may be necessary to the administration of social and
economic rights, it is not sufficient to ensure that they are universally
enjoyed. A good deal has been written on how social and economic
rights are being eroded in Europe with the extension and deepening
so States of human rights

of neo-liberal public policies and growing inequalities.6 Neo-liberal

public policies clearly show that the enjoyment of social and economic
rights depends on structures that go far beyond the ideal of the jurid-
ical state and the rule oflaw. It depends on how governments deal with
global capitalist elites in national economic policies, how TNCs are
treated, and how markets, including financial markets, are created and
regulated nationally and internationally (as we shall see in Chapter 5).
The growth of public-private partnerships to deliver services that are
the responsibility of states, the promotion of markets in health-care,
education and housing and cuts to welfare budgets to reduce public
spending are undermining social and economic rights. This is the case
even when elites observe law and regulation - though we also know
that neo-liberalism offers numerous opportunities for corporations to
illegally (as well as legally) avoid paying taxes, and for investors to
lend money regardless of regulations designed to protect borrowers, to
make use of differences between national legal regimes and so on. In
addition, as Foucauldians have persuasively argued, social and eco-
nomic rights also depend on how professional and technical know-
ledge is incorporated into policy-making and the administration of
what are necessarily limited resources. Where expert authority is suc-
cessfully claimed to allocate resources and fix identities from within
the bureaucratic structures of the state, the effect can be less equalis-
ing and liberating, more limiting and deadening of alternative ways
of life.'
Ensuring human rights does not depend on the rule of law alone.
Limiting the actions of state officials by the rule of law is import-
ant, but so too is the content of that law. In the case of civil rights,
'cause lawyers' are vital to ensuring that state officials do not just stick
to the letter of the law of human rights but also abide by its spirit.
'Cause lawyers' are employed in NGOs and across different branches
of the state (Scheingold 2004). Whistle-blowers who have access to
inside information, and journalists willing and able to put pressure
on governments through the media are also necessary if states are to
observe civil and political rights in practice to which they are commit-
ted in principle. In the case of social and economic rights, in addition
to lawyers and experts, popular movements, social democratic parties
and trades unions have been necessary in the past, and will continue
to be necessary in the future. These are rights that are won by political
organising and lobbying inside and outside government. It is only once
 Differences of 'stateness' and states 51

they are established in legislation and policy that social and economic
rights become relevant in law.
Finally, law is limited as a means of ensuring human rights where
states are involved in violations outside their territories, but for differ-
ent reasons. Where violations are committed as a part of foreign pol-
icy, they are often permitted in national law as the prerogative of the
executive, the defender of state security. At any rate it is rare that they
are considered by constitutional courts within states.8 To some extent
this is now changing with the development of international human
rights and humanitarian law. Even heads of state can now be pros-
ecuted for torture, disappearances, summary executions and war crimes
in international courts where domestic courts do not deal with them
(see pp. 77-8). On the other hand, the administration of law in inter-
national courts is extremely uneven. We have only to consider, for
example, that since the International Criminal Court was established in
2002, it is only African leaders who have been prosecuted there. There
is clearly no question of prosecuting either George Bush or Tony Blair
for the part they played in the illegal invasion of Iraq. The application
of national law is, of course, uneven too. But if law is supposed to be
routine and predictable, to provide a framework within which actions
are clearly legal or illegal, international law is so uneven that it is
doubtful whether it can be considered law at all. When the adminis-
tration of human rights in international courts is so uneven, it looks
more like another way of doing geo-politics than law administered by
rational-legal institutions.

Post-colonial states
Up until decolonisation in the second half of the twentieth century,
European states - although they were already being talked about and
analysed as juridical states - wereformaUy imperial states, ruling directly
over the peoples of other countries. During the revolutionary periods of
the great declarations of human rights in the eighteenth century, state
officials had no interest in extending citizenship rights to the subjects
of empires, nor to slaves. Across the world structures of empire gov-
erned from London, Paris, Berlin and Brussels were extended throughout
the nineteenth century. Post-colonial states have their origins in this
period as structures of rule were grafted onto existing arrangements
within colonised territories, dividing up continents and populations
52 States of human rights

quite arbitrarily and often relying pragmatically on existing forms of

rule, so entrenching ethnic divisions within territories. There was little
concern to develop the intensity and uniformity of rule of states in the
Northwest, and as subject peoples were not citizens there was no pos-
sibility at all of democratising the state. There was also little attempt
to develop the industrial capacities of these societies. On the contrary,
the development of cash crops for export and the exploitation of min-
eral resources were undertaken only to benefit metropolitan owners and
local elites who assisted with colonial rule. As Hansen and Stepputat
put it, 'The emphasis was rarely on forging consent and the creation of
a nation-people, and almost exclusively on securing subjection, order,
and obedience through performance of paramount sovereign power and
suppression of competing authorities' (Hansen and Stepputat 2005: 4).
The historical formation of states that were imported into colonial
societies means that they are structured quite differently from jurid-
ical states. In the first place, rational-legal authority has been much
more tenuous as a means of gaining consent to administer public pol-
icies. According to Partha Chatterjee, post-colonial states were grafted
on to 'cellular societies': extended networks of reciprocal obligations
based on 'moral communities' of kinship, caste or religion (Chatterjee
2004). Consequently, in states of this type, to varying degrees, it is
expected that the resources to which officials have access are to be
shared with those who have claims on them as part of the extended
network to which they belong. Although decolonisation was generally
linked - to a greater or lesser degree in different states - with national
movements for liberation and democratisation, 'popular authority' in
post-colonial states is often associated with direct rewards to sup-
porters, kin and neighbours of politicians, bureaucrats and judges.
'Micro-strategies' necessary for survival as well as for enriching oneself
(what appear as corruption and clientelism where they are considered
in terms of rational-legal authority) are built into the very structures of
the post-colonial state. The everyday acceptance of 'micro-strategies'
that reinforce cellular structures makes claiming rights difficult, even
when they exist in law and public policy.
Second, as they are built on historical structures in which consent
to rule was far less important than force, and often set in contexts in
which national identity is especially hard to achieve because of politi-
cised ethnic differences, states that approximate this type tend to be
authoritarian. This is true of India, for example, which is Chatterjee's
 Differences of 'stateness' and states 53

focus. In India the Indian Armed Forces (Special Powers) Act has legally
permitted the police and military to use a range of methods, including
lethal force, against gatherings of more than five people in 'disturbed
areas' like Kashmir since 1958. According to Balakrishnan Rajagopal,
so-called emergency legislation of this type comes directly from
anti-colonial wars euphemistically called 'emergencies' in the British
Empire (Rajagopal ?003: 176-82). Authoritarianism has also been
marked in Latin American states, where claims to 'popular authority'
have often been made by military officers claiming that their particular
skills in the use of force are needed to keep order and ensure progress.
The role of the military in Latin America has declined since the end of
the Cold War and the discrediting of the Chilean and Argentinian dic-
tatorships, and constitutions have been rewritten to consolidate human
rights oriented democracies. According to the constitutional lawyer
Roberto Gargarella, however, what has been left largely untouched is
the scope of presidential power that was established in the nineteenth
century. Gargarella argues that this explains how it is that constitutions
that now include expanded sets of rights, including social, economic
and cultural rights, are relatively ineffective in curbing the violent
treatment of political protests when people mobilise to secure those
rights in practice (Gargarella 2013; see also Mendez et al. 1999).
In India and Latin America, grassroots movements and NGOs are
trying to create mechanisms to bring state officials to account for
violations of human rights. They involve strategies that are quite dif-
ferent from those employed in Northwestern states. In juridical-type
states what is most important is to change the content of the law and
public policy, to expose how it contravenes human rights in spirit. In
post-colonial-type states, it is not only the content of the law that is at
issue; it is also how law and public policy are administered.
Can the structures of the post-colonial state be transformed through
the cultural politics of human rights? Chatterjee himself is sceptical
about this possibility in · India: he argues that so many of the poor-
est people are only able to gain any kind of stability and well-being
through 'fixers' - well-connected, influential people linked to political
parties who co-ordinate with state officials - that a strict line between
legality and illegality would actually work to the detriment of those
most vulnerable to violence and exploitation (Chatterjee 2004). In con-
trast .Jean Dreze and Armartya Sen argue that transformation of the
administrative structures of the Indian state is not only possible, it is
54 States of human rights

happening. Dreze and Sen see the Right to Information Act 2005, which
allows ordinary people to have access to government records, combined
with media 'naming and shaming' of corrupt officials, as an important
advance in reforming state administration. They also see the decentral-
isation of decision-making in the Panchayats, or village councils, as
enabling people to bring local public officials to account where provi-
sion of services is inadequate (Dreze and Sen 2013: 99-102). In add-
ition, grassroots movements have been involved in carrying out 'social
audits', surveys of villages and poor urban areas to ensure that people
know what they are due from the state, holding people's courts to make
local officials accountable, large-scale marches and demonstrations
(Jenkins and Goetz 1999; Madhok and Rai 2012). Like Chatterjee, Dreze
and Sen are concerned with the everyday norms and expectations in
which state officials and ordinary people operate in the Indian state.
They argue that it is necessary to alter how administrators themselves
see corruption, as well as how ordinary members of public approach
administrators. Dreze and Sen look forward to the day when 'one day,
a bureaucrat who asks for a bribe will ... be ridiculed, admonished or
reported, because it just will not be "the done thing" by then, as it is
today' (Dreze and Sen 2013: 102).

Predatory states
The predatory state is associated with gross violations of human rights,
including genocide, murder, disappearance, rape and enslavement, as
well as mass migrations, loss of livelihood, and consequent malnu-
trition and starvation. In this type of state, officials control resources
'in the name of the state' to further their own status and to amass
wealth for themselves and their supporters by means of violence and
criminal activity. Internally, they operate through force, achieving
domination by inspiring fear rather than by winning consent to rule.
Internationally, however, they make use of rational-legal and popular
authority to secure official positions that enable them to access mater-
ial resources.
The Democratic Republic of Congo (DRC) has been, and probably still
resembles the predatory type of state. When the country was called
Zaire, General Mobutu, supported by the United States and European
allies, systematically stripped the country of wealth from natural
resources, putting millions of dollars into foreign bank accounts, and
 Differences of 'stateness' and states 55

encouraging violent confrontations between different sectors of the

military and police which he organised along ethnic lines. Mobutu's
regime was finally ended in 1997 when it became clear that there was
no central control over provincial governments, which were them-
selves involved in systematic pillaging, and it was overturned by forces
from neighbouring territories in the Great Lakes region of Africa led
by Laurent Kabila. The coup was uncontested by representatives of the
United States and European states that, with the end of the Cold War,
no longer saw a strategic interest in the region. Predatory states invari-
ably involve bloody conflict, and in the DRC and neighbouring states
fighting is still going on today. The African wars have been described as
the most devastating since the Second World War, with gross violations
of human rights and estimates of over five million civilian deaths as a
result (Castells 1998; Reyntjens 2009).
Political sociologists have put forward a variety of explanations
for the structures of predatory state formation. Jean-Francois Bayart
understands predatory states as the product of elite strategies which
have historically relied on what he calls 'extraversion', profiting from
dependence on external sources of wealth to secure power (Bayart 2009;
see also Mbembe 2001). Bayart argues that 'extraversion' is historic-
ally continuous as 'normal politics' in sub-Saharan Africa. Bertrand
Badie, on the other hand, links 'extraversion' to decolonisation, argu-
ing that as colonial powers withdrew, leaving behind states that lacked
the capacity or the means to raise taxes from largely agricultural soci-
eties, ruling elites turned to international aid and business contacts
to strengthen their official position. What Badie calls 'imported states'
relied less on an established tax base, generating wealth within their
territories, than on the wealth they could attract from international
agencies, other states, and sometimes investment in large-scale projects
(Badie 2000). In contrast, Lothar Brock and his colleagues argue that
local autonomy can be the principal aim of those who capture official
positions in states that are predatory, rather than power and wealth
being ends in themselves. They analyse Afghanistan and Haiti as shar-
ing the characteristics of predatory states (Brock et al. 2012; see also
Castells 1998).9
Predatory-type states depend on structures that are maintained by
armed force, looting and violence, rather than by winning consent
to. rule. Ruling elites control access to wealth to pay their political
and military allies and they use violence to prevent rival 'warlords'
56 States of human rights

from seizing the state. Internally, to reward their allies and to stir
up violence against their enemies, they make use of ethnic, religious
and political divisions. It is largely to external actors that they claim
rational-legal and popular authority. 'Sovereignty', international rec-
ognition of state independence, enables governments to get control
of international aid and loans, and to establish business contracts for
their own purposes. They present what Bayart calls a 'virtual state' to
the world - with evidence of rational-legal procedures for ensuring
governmental accountability and democratic participation to bolster
claims to popular authority. At the same time, Bayart argues, the 'real
state' is at work behind the scenes to maintain the wealth of the ruling
elite (Bayart 2009).
What are the possibilities of realising human rights in practice in
predatory-type states? The DRC has signed and ratified all the major
international human rights treaties and conventions, including the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights
(ICESCR). But what does this mean where the very form of the state
involves people being systematically deprived of their homes, liveli-
hoods and, frequently, their lives? Clearly more is required than reform
of the content oflaw and public policies (as in the juridical-type state) or
the transformation of administration (as in the post-colonial-type state).
When a state is structured in ways that systematically violate human
rights, citizens of a state are not in a position to influence how offi-
cials make use of resources. Today responses to human rights violations
often involve supplementing states with resources that are organised
internationally. In predatory-type states ruling elites concentrate their
efforts on particular regions within their territories, effectively leaving
much of the country stateless. They maintain control over the offices of
state in the capital, in order to be officially recognised by international
agencies. They also try to retain control over the regions where valu-
able resources (precious minerals or crops) are to be found. The conflict
they incite to divide and rule further undermines possibilities of main-
taining state control outside the areas in which they have an interest, as
violence breeds violence. Supplementing a predatory-type state, then,
effectively amounts to replacing it in at least parts of its territory: UN
peacekeeping forces and humanitarian NGOs take over the roles and
services that are normally understood to be the prerogative, and the
duty, of a sovereign state.
 Differences of 'stateness' and states 57

A range of international solutions to human rights violations that

supplement the state have been developed in the case of the DRC. First,
since 1999 there have been various UN peacekeeping operations in
the DRC which have aimed to protect civilians and ensure civil rights
(Brock et al. 2012: 123). Since March 2013, UN peacekeeping forces
have been deployed to stabilise the region and build up the capacities of
the police and military. The mandate for these troops replaces the previ-
ous mission, authorised in 2010, to protect the human rights of civilians
(especially women, children and 'vulnerable people') in the Eastern area
(of a country which is in total the size of Western Europe). Troops were
mandated to 'use all means necessary' to demobilise and disarm rebel
forces and militias, some of which originated in neighbouring states
(especially Rwanda, Uganda and Burundi) and over which no govern-
ment has complete control. They were also there to curb the excesses of
the Congolese Army itself, which has been accused of looting and rape
(UN 2013). The area is not stable, and there does not seem to be an end
in sight to UN peacekeeping operations in and around the DRC. Second,
humanitarian NGOs have been providing food and shelter to some of
the millions of people who have had to flee their homes as a result of
the conflict, and attempting to establish facilities for basic education
and health-care. In effect the United Nations High Commissioner for
Refugees (UNHCR) and NGOs have replaced the state to ensure that
people are not starving and homeless. Third, since 2004 the International
Criminal Court has been proceeding with the prosecution of some of the
warlords responsible for killing, raping and kidnapping in the region on
the grounds that the DRC does not have the capacities within its judicial
system to bring them to account (despite the fact that the EU has spent
more than forty million US dollars reforming the Congolese judiciary)
(Clark 2007). In this respect international law supplements the national
judiciary, which does not have the code, the infrastructure or the per-
sonnel to deal with war crimes and crimes against humanity. There
have been a couple of convictions at the ICC, but the UN has reported
that just in the period between January 2012 and August 2013 nearly
1,000 child soldiers were recruited in the DRC.
Supplementing the state is controversial for a number of reasons.
One of the charges against Northwestern states, especially the United
States, involved in UN peacekeeping is that they are nee-imperialist,
supporting missions only where it suits their interests (though in the
case of the DRC, as elsewhere in Africa, they might equally be' criticised
58 States of human rights

for indifference). There is some justice in this argument given that there
is no possibility of military intervention and state-building without
US permission, even when it is decided in the UN Security Council
(see pp. 78-83). A further area of controversy that is now emerging
is the lack of accountability of the UN for human rights violations
committed by troops and personnel employed in its peacekeeping mis-
sions. Guglielmo Verdirame argues that until relatively recently it was
assumed at the UN that human rights abuses were only committed by
others: UN troops and experts on peacekeeping missions arrived to end
human rights violations. This assumption has been shaken by accusa-
tions that in the DRC'blue-helmeted' soldiers employed by the UN were
involved in sexual violence and abuse, including of very young chil-
dren. The accusations have been investigated and they were apparently
well-founded. It seems, however, that legally those who were respon-
sible can only be prosecuted in the countries that 'lent' them as troops
to the UN - and this has happened only in. very few cases. There are no
means of bringing people who violate human rights to court as agents
employed by the UN itself: the 'sending' state is obliged to co-operate
with the UN, but there are no sanctions if it does not. In addition to the
lack of accountability of troops and personnel engaged in UN peace-
keeping missions, the way the UNHCR is involved in setting up refugee
camps has also been criticised as leading to routine violations of human
rights - people's freedom of movement is restricted, and they are not
protected from violence either by people inside or outside the camp (see
pp. 146-53). UN peacekeeping missions and refugee camps supplement
states by providing security and other basic services, but unlike states,
the UN apparently has no legal responsibility in international human
rights law to redress violations that may be committed by people acting
'in the name of the UN'. In the activities that supplement states UN per-
sonnel effectively have the power of state agents, but they apparently
do not have the same responsibility to prevent human rights violations
(Verdirame 2013; Verdirame and Harrell-Bond 2005).
Finally, deploying peacekeeping forces is controversial where it
appears to be making the situation safer, not only - or sometimes not
at all - for the people of the region, but for foreign investment that
has historically been part of the problem in predatory state formation.
In the case of the DRC, for example, the processes by which public/
private contracts for mining its enormous reserves of cobalt (necessary
for the manufacture of microchip technology) and copper have been
 Differences of 'stateness' and states 59

administered have lacked transparency, and do not seem to be advancing

the economic development of the DRC. The !NGO Global Witness has
documented secret deals granting contracts to mine resources involving
offshore companies and the funding of armed conflict through trade
in minerals. It has been involved in lobbying governments around the
world to produce effective policies to prevent the exploitation of these
resources in way~ that harm people a:nd the environment. If the eco-
nomic structures of a predatory-type state are not altered, UN forces
effectively become part of a strategy of 'extraversion', to strengthen
the ruling elite and to help them achieve domination over their rivals
rather than preparing the ground for a new form of state. In this case
supplementing a predatory state prolongs rather than transforms it.
Attempts to realise human rights in predatory-type states are quite
different from those employed in states that resemble juridical and
post-colonial types. Despite all the human rights provisions that are now
in place in the DRC, the people who suffer violence, hunger and depriv-
ation there are as far from being able to claim rights as ever. Human
rights in the DRC overlap with humanitarianism, with helping people
to meet their . immediate needs in situations of emergency - however
long-term the emergency may tum out to be. When humanitarian aid is
given, it is professionals employed in IGOs arid NGOs who decide what
is feasible, permissible and advisable. Where states are supplemented,
people have rights to what IGOs and NGOs provide. In fact, Hilhorst and
Jansen suggest that in such situations, humanitarianism itself produces
claims for human rights that are highly problematic: people in need
learn to tell aid workers want they want to hear (Hilhorst and Jansen
2012). In this respect supplementing predatory-type states leads to a
distortion of the language. of human rights rather than to the remaking
of structures through which rights can effectively be claimed.

Developmental states
The term 'developmental state' was originally coined for Japan, and
more recently it has been applied to 'Asian Tigers' (such as Taiwan,
South Korea, Vietnam) and now to China, which has based its project
of building market capitalism on the success of Singapore. According
to Manuel Castells' definition, 'A state is developmental when it estab-
lishes as its principle of legitimacy its ability to promote and sustain
development, understanding development as combining steady high
60 States of human rights

rates of economic growth and structural change in the productive sys-

tem, both domestically and in relation to the international economy'
(Castells 1998: 276). The authority that is claimed by governments in
development-type states is a mixture of expert and popular: technol-
ogy and development is to be achieved to serve the people's needs, even
if the means by which people outside government might contribute
to influencing the agenda or setting goals are limited or non-existent
as a result of repression, censorship and - very often - a lack of free
and fair elections. In this type of state, Castells, argues, development
is less a goal than it is a means: achieving capitalist development
builds and protects the state, domestically and internationally, and
this in turn enables governments to claim the authority to follow their
chosen path on behalf of society. Developmental states involve a kind
of 'enlightened despotism': officials gain and secure influence, status
and wealth through acceptance of their aims to improve living stand-
ards, rebuild the nation, and safeguard patriarchal families (Castells
1998: 223-5).
China is the most important example of a developmental-type state
today. Its size and rapid economic growth make it a rival to the United
States as a global superpower. Chinese officials represent China as
demonstrating an alternative model of human rights to those of the
West. Although still run by the Communist Party, China is now a sig-
natory to all the major UN human rights treaties, including the ICCPR.
Chinese officials have not yet, however, ratified the ICCPR, and they
have put a reservation on the ICESCR banning independent trades
unions. In the White Papers that are published each year, officials
insist that China will set its own human rights standards, defending
the developmental model that privileges social and economic benefits
over abstract freedoms whilst attacking Western states for hypoc-
risy, racism and imperialist intentions against China. They also link
human rights to 'Asian values', suggesting that high rates of crime and
unhappiness in the West demonstrate that the individualism celebrated
in liberal democracies make a stable and harmonious society impos-
sible." In terms of foreign policy, Chinese officials insist on the value
of state sovereignty and not interfering in the affairs of other peoples.
The Chinese government has made important links with leaders across
Africa over the last decade to secure supplies of oil, to create invest-
ment opportunities, and to open up African markets for manufactured
goods. State officials justify the fact that they put no conditions on
 Differences of 'stateness' and states 61

aid or investment in development projects on the grounds that they

respect sovereignty, are against imperialism, and hold that domestic
conflicts are better settled by those directly involved (Rotberg 2008).
Both internally and externally, then, Chinese state officials promote
social and economic rights over civil and political rights in ways that
exemplify the developmental state.
Violations of civil and political rights by officials of the Chinese
state are well known outside China. There have been legal reforms in
China, but they are more concerned with regulating business contracts
than with human rights. In terms of civil rights, what is especially
well known is the repression ofhuman rights activists. Whilst 'counter-
revolutionary' activities are no longer a crime in China, 'endangering
state security' has replaced it as the main way of dealing with dis-
sent. Punishments include indefinite detention without trial in 'compli-
cated cases', imprisonment in harsh 're-education camps' where hard
labour is part of the regime, torture and immediate execution (often
on the same day that the defendant is found guilty). Moreover, it is
not just political crimes that are dealt with harshly. In general, despite
legal reforms, ordinary criminal procedures do not seem to be based on
rational-legal procedures. The principle that defendants are innocent
until proven guilty was only recently introduced in China, torture to
extract confessions is routine, conviction rates in the courts may be as
high as 99 per cent, and the numbers of those executed each year is
in the tens of thousands (though the actual number is a state secret).
In addition, the political system in China fundamentally violates inter-
national standards of political rights because it remains a single-party
state, not a democracy. State restrictions on freedom of speech and reli-
gion, censorship of the media, the persecution of members of the Falun
Gong movement - these have all led to international condemnation of
China for human rights abuses over the last couple of decades. 11
Economic and social rights are also being violated in China. Whilst
there has been massive economic growth over the last decade, mak-
ing China the world's second biggest economy after the United States
in 2013 according to International Monetary Fund (IMF) calcula-
tions, in terms of per capita income it remains a very poor country.
Industrialisation is concentrated in the special economic zones of the
coastal cities, where working conditions are harsh, and there is massive
discrimination against rural workers - called migrants - who have only
temporary permits to live and work in factories and in construction in
62 States of human rights

cities. They are denied rights to housing, education and health-care,

and they are not permitted to bring their families to live with them. At
the same time, the construction boom has created displacement, loss of
livelihood and unemployment for many. In terms of health-care, state
secrecy has been a problem in controlling infections (such as HIV), and
epidemics (like SARS and avian flu) have endangered massive numbers
of people in China and beyond (Ching 2008; Hsing 2010). In fact, the
premise of the developmental state, that social and economic rights
take precedence over civil and political rights, is fundamentally flawed.
As Amartya Sen has argued, in the absence of civil rights to share
information and to protest against inequalities, economic growth will
damage people's health and welfare, and benefits will be very unevenly
distributed (Sen 1999). Without media that is free from censorship,
enabling injustices and corruption to be brought to light, and without
the freedom to mount sustained campaigns to achieve social and eco-
nomic rights, it is not clear that the Party itself can even know about,
let alone manage, the various inequalities that are being produced by
the rapid marketisation of China's economy (Shirk 2011).
What are the possibilities for institutionalising international human
rights norms in the developmental state? Inside China, civil and pol-
Itical rights do not seem to be a high priority. Although every day
there are protests over corruption, working and housing conditions and
also environmental damage, there is no popular movement for human
rights. In addition, there is widespread suspicion amongst Chinese
intellectuals that the championing of human rights masks imperialist
interests. 12 Chinese development has resulted in real benefits for many
people, and the state is far less intrusive into personal life than it was
during communism. Though inequalities and crime have increased, it
seems there is widespread optimism in China that the state will deliver
benefits for everyone. Of course, this makes the Party vulnerable if eco-
nomic development should slow down, but it seems very unlikely that
an authoritarian Party under threat would become less repressive. In
this respect it is notable that the People's Liberation Army, on which
the capacity of the Party to retain control of resources concentrated in
the state ultimately relies, continues to be well funded and to retain its
status and authority (Dreyer 2010).
The Chinese state in the twenty-first century is continually reform-
ing, politically and legally as well as economically. It is extremely diffi-
cult to predict what these reforms will create (as indicated by the huge
 Transforming states 63

numbers of books that have been written on this topic over the last few
decades) in part because of state secrecy and repression. Certainly pres-
sure from outside is muted. Although critical of China's human rights
abuses, Northwestern states are reluctant to deal strictly with Chinese
elites. Not only is China a huge market for their manufactured goods,
the Chinese state is also prominent in the UN - with veto power on the
Security Council -; and growing in influence in IG0s like the G20 and
the World Trade Organization (WTO) (China has not yet been accepted
into the G8). In fact it is quite surprising when there is any discussion
at all of China's human rights record in diplomatic circles and IGOs.

Transforming states

International human rights law is the focus of so much of the

inter-disciplinary study of human rights that anyone approaching the
study of human rights for the first time could be forgiven for think-
ing that establishing the rule of law is what is most important. It is in
this respect that the juridical state is presupposed; not just in making
international human rights agreements but also in the scholarship on
human rights. The juridical state is presupposed as existing or as a
necessity that must be achieved if human rights are to be realised in
practice.
From the perspective of political sociology, there are a number of
problems with this assumption. First, the juridical state that is pre-
supposed in international human rights law does not exist. And even
when it is approximated, as it is in Northwestern states, and when
they are bound to all the relevant treaties and conventions, human
rights are not guaranteed. Even the civil rights of national citizens can
legally and routinely be breached within the territories of Northwestern
states, and social and economic rights are even more precarious; while
the rights of non-citizens both inside and outside state territories are
more likely to be honoured in the breach than in the observance by
officials of these states. 'Cause lawyers', whistle-blowers, broad-based
social movements, NGOs, unions - networks of organisations and indi-
viduals that cross boundaries between the 'inside' and the 'outside' of
states: these are all vitally important to the realisation of human rights
by Northwestern states at home and abroad. The demands they make go
far beyond limiting the state by the rule of law.
64 States of human rights

Second, the assumption that it is only through juridical states that

human rights can be realised is linked to international attempts to
rebuild states organised through the UN, to create the conditions for
the rule oflaw and bureaucracy. This is problematic because it seems
to suggest that technocratic solutions to systematic violations of
human rights are possible and desirable. Rebuilding what are com-
monly thought of as 'failed' states has been a significant commitment
at the UN in the last two decades. 13 It seems that attempts to do so
led by experts, lawyers and bureaucrats and supported by UN peace-
keeping forces have been relatively successful in Kosovo, Bosnia
and East Timor - though there have also been continuing problems
of human rights violations during the process of rebuilding, and
we do not know how long peace will last in these states. Making a
juridical state by technocratic means is, however, extremely expen-
sive, and it has only been relatively successful in these very small
territories. Generally UN 'peacekeeping operations' are more piece-
meal: they are more like the measures that supplement the state
in the DRC we have looked at here. Other international attempts
at state-building that have been less comprehensive than those in
Kosovo, Bosnia and East Timor, but still very intensive, have failed
spectacularly - most notably in Afghanistan and Iraq. We look in
more detail at all these examples in Chapter 4. What seems to be
clear is that technocratic approaches to state-building that focus on
legal code and bureaucratic procedures without transforming the
structures in which states are embedded will not succeed in making
violators into guarantors of human rights.
Third, most states in the world today have been formed historically
through colonialisation that ended only in the mid-twentieth century.
It is not clear whether they can be transformed to more closely resem-
ble the juridical state. In fact, it can be argued that it is more likely that
Northwestern states will come to resemble post-colonial states. This
is the case that is made by Jean and John Comaroff in 'their provoca-
tive book, Theory from the South. They argue that fragmentation and
impoverishment growing in the Northwest as a result of nee-liberalism
and the shift of capitalist economic growth to Latin America, Asia and
Africa will mean more people in North America and Europe living in
conditions that resemble those of the Global South. If increased repres-
sion, authoritarian policing of dissent, and limited economic oppor-
tunities converge so that people become more dependent on informal
 Transforming states 65

networks rather than on the relative peace and prosperity that were
organised for citizens through Northwestern states for a relatively
brief period in the second half of the twentieth century, the Comaroffs
suggest that the world will be turned upside down (see Comaroff and
Comaroff2012). Margaret Somers argues that some people in the United
States who have never enjoyed the benefits of full citizenship already
experience the state, as 'post-colonial'. Faced with a state that barely
meets the basic needs of the poor (as exemplified in the response to
Hurricane Katrina), and that presents especially racialised minorities
almost exclusively with its repressive face, one response is to organ-
ise locally and to demand human rights internationally to try to make
national officials more responsive (Somers 2008). Finding it impossible
to gain any purchase with US state officials through national channels
alone, people are trying to bring them to account through international
human rights commitments, especially with regard to social and eco-
nomic rights.
Campaigns for human rights are innovative and creative in India
and Latin America. Movements like those studied by Dreze and Sen
in India, as well as the women's movement there (see pp. 128-31), ·
the Treatment Action Campaign in South Africa (pp. 34-8), and Via
Campesina in Latin America (pp. 108-10) offer creative approaches to
achieving human rights in practice. They involve making changes to
the content of the law and also to administrative norms by making bur-
eaucracies more transparent and accountable. In addition they involve
decentralisation, to enable people to participate more directly in what
concerns them at the local level whilst at the same time addressing how
the conditions of their lives are entangled in national and international
structures.
We have seen in this chapter how states are situated in structures
that organise resources over which state officials have some, but not
complete, control. It is extraordinarily difficult to transform states from
violators to guarantors of human rights because structures are rooted
in everyday life and supported by people whose deeply felt interests
are tied up with the status quo. I have argued in this chapter that too
much of the attention of human rights scholarship has been given to
international human rights law at the expense of studying the polit-
ics through which state officials try to manage the material and moral
resources on which states depend. This is not to say, however, that real-
ising human rights in practice depends only on states, as if they existed
66 States of human rights

in isolation. Given that the structures in which states are embedded are
international and transnational, international duty-bearers of human
rights are also crucial to realising human rights in practice. It is to the
UN as the principal international duty-bearer of human rights that we
now turn.
 In principle,
We have rights te,

equalin dignity and rights' (Article 1 ). The dedaration is not, ~~1¢tly

speaking, a legal document. It is more in the nature of a pronji~ilir~e
Universal Declaration of Human Rights {UDHR) is the promis~ th;;;t the
i ijtrodties committed by the Nazis - the 'barbarous acts which have out-
. \taged the conscience ofmankind' in the words of the preamble to the
.· \tjedatation - would not be allowed to happen to anyone ever again.
The preamble go~ on to herald 'the advent of a world in which human
beings shall enjoy freedom of speech and belief and freedom from
fear and want ... as the highest aspiration of the common people'.
No longer should individuals be killed, tortured, maimed, or allowed
to suffer hunger and despair simply because they happen to live in an
oppressive state, or because their neighbours believe they should not
be there. 'Everyone is entitled to all the rights and freedoms set forth
 68 The United Nations

in this Declaration, without distinction of any kind, such as race, colour,

sex, language, religion, political or other opinion, national or social ori-
gin, property, birth or other status' (Article 2).
It was in the UN, then, that the contemporary social construction of
human rights was inaugurated. And within the UN there are continu-
ing efforts to construct human rights in ways that will make good on
the promises of the UDHR and the conventions and treaties that have
built on it. The UN remains the only organisation with responsibility for
ensuring human rights globally. It is a complex, sprawling and amorphous
organisation with a multitude of branches, committees and offices. Some
of these are known as 'the human rights machinery'. They include the
Human Rights Council, the treaty bodies, the Special Rapporteurs, and
the Office of the High Commissioner for Human Rights. State-led forums
concerned with security (the Security Council), and with the building of
international consensus (the General Assembly), and the staff who work
directly for the Secretary General are also concerned with standard-set-
ting, monitoring - and even on occasion trying to protect human rights
in practice. In addition there are branches of the UN that are more or less
distinct organisations dedicated to health (World Health Organization,
WHO), education and culture (United Nations Educational, Scientific
and Cultural Organization, UNESCO), children (United Nations Children's
Fund, UNICEF), refugees (especially United Nations High Commission for
Refugess, UNHCR, which we will discuss more fully in Chapter 7), women
(United Nations Development Fund for Women, UNIFEM), labour organi-
sations (the International Labour Organization, ILO), development (the
United Nations Development Programme, UNDP), food and agriculture
(the Food and Agriculture Organization, FAQ) and many, many more.
There are ongoing projects within the UN to 'mainstream' human rights
so that, in principle all these branches are supposed to be involved in try-
ing to construct human rights in ways that will make them really effective
in the not-too-distant future. In this chapter we will focus on the 'human
rights machinery' and the state-led so-called 'political' bodies of the UN.

Structures of 'sovereign inequalities'

·······················································································································
The UN was never intended to be anything like a world state. From its
beginnings, it was structured to face in several different directions at
the same time with regard to human rights. The UDHR and subsequent
 Structures of 'sovereign inequalities' 69

international human rights law that builds on it offer individuals and

groups extensive protection against repression within states and make
states responsible for ensuring that everyone has the basic necessities
of life. In the 1970s, most states signed and ratified the International
Covenant on Civil and Political Rights (IC CPR), the International Covenant
on Economic, Social and Cultural Rights (ICESCR), the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW),
the Convention on the Elimination of All Forms of Racial Discrimination
(ICERD) and the Convention on Torture (CAT). The Convention on the
Rights of the Child (CRC) came into force in 1990. In each case these con-
ventions go beyond the UDHR, which was never intended to have bind-
ing force, creating mechanisms to monitor and to put pressure on states
to conform to the emerging body of international human rights law.
On the other hand, the UN is structured to safeguard respect for state
sovereignty. The UN Charter is above all a legal agreement between sov-
ereign states not to interfere in each other's affairs. In international law,
'sovereignty' means that it is illegal to infringe on the independence of a
state, its right and power to govern itself. The UN, like other IGOs, has what
Barnett and Finnemore call 'delegated authority: Offices and branches
of the UN are · given tasks (known as 'mandates') by UN member states
and allowed specific ways of collecting and combining the resources with
which t9 deal with them. The delegated authority of the UN is dependent
on what is required and what is allowed by states (Barnett and Finnemore
2004). In addition, the UN was structured in such a way as to accommo-
date what were called the 'Great Powers' at the end of the Second World
War - the United States, Russia, China, the UK and France. It would not
have been possible to create the UN at all without the co-operation of
the leaders of the 'Great Powers', and it was built in a particular way in
order to secure that co-operation (Mazower 2004, 2012). The legal equal-
ity of state sovereignty was never intended to be equivalent to equality of
geo-political influence. In fact the UN is structured around the principle of
what Jack Donnelly calls 'sovereign inequalities' (Donnelly 2006).
Different branches of the UN are more or less formally structured
by 'sovereign inequalities: Sovereign inequalities are most evident in
the UN Security Council. In the General Assembly all member states
have one vote each - a structure that formally recognises their equal-
ity as sovereigns. In contrast only some states are represented in the
Security Council - the only authority that can legally sanction military
intervention in a member state. Nothing in the UN Charter authorises
70 The United Nations

interference in the domestic affairs of states except where the Security

Council unanimously decides that they represent a threat to inter-
national peace and security. The Security Council has five permanent
members, the United States, Russia, China, the UK and France, who are
now joined by ten other states (always including representatives from
Africa, Asia and Latin America) elected by the General Assembly and
rotating on a two-year cycle. A decision to intervene in the affairs of
a member state, whether by sanctions or by military means, requires
'yes' votes from all ten states, and no veto from any of the permanent
members. In part the 'Great Power' status of members of the Security
Council is a matter of ongoing mutual and self-recognition as well as
historically structured position. The UK and France have not used their
veto power since 1989: they are no longer world powers as they were
fifty years ago. On the other hand, there is no real prospect of Brazil,
South Africa or India, rising powers in their regions, becoming perman-
ent members of the Security Council.
Beyond the Security Council representatives of the United States,
Russia and China try to shape the international human rights agenda
across UN committees and offices. They do so by making alliances
with the representatives of other states. Officials from both Russia and
China lead bloc voting of states based in their geographical regions,
with additional allies in Latin America, the Middle East and (especially
now in the case of China) in Africa too. Russian and Chinese officials
evade accountability for human rights violations for themselves and
their allies by framing their positions as resistance to US imperialism.
Representatives from the United States are most commonly allied with
those from European member states, and with some from states in the
Middle East (Israel, and also Eygpt) and Asia (notably Pakistan). US
officials do exert exceptional influence over human rights at the UN
in comparison with those from China and Russia. What is especially
important is that many of the professionals who work at the UN were
educated in the United States: this gives representatives of the United
States an advantage in networking and in understanding the lan-
guage of human rights reports and the nuances of rules and procedures
through which international human rights law is monitored. It is also
notable that the UN headquarters is in New York (with smaller offices
in Geneva, Vienna and Nairobi), and the United States is the biggest
single contributor to the UN budget Planning for the UDHR was over-
seen by Eleanor Roosevelt, wife of the US president, in the 1940s, and it
 Standard-setting and monitoring 71

is not difficult to argue that human rights are a US export with little or
no resonance in other 'cultures'. This was a common theme of debates
over 'Asian values' in the 1990s. Accusations of cultural relativism have
become less prominent in recent years at the UN ( except with regard
to gender, as we shall see in Chapter 6) as even Chinese officials now
accept the main principles of human rights, at least in principle (see
pp. 59-63). What replaced 'cultural relativism' during the US-led 'War
on Terror' were accusations of US imperialism - which we will look at
later in this chapter with respect to 'humanitarian intervention'. But it
is interesting that the United States is notorious for not signing and/or
ratifying international human rights agreements. It is one of the very
few states that has not ratified the ICESCR or CEDAW, and nor has it
signed the optional protocol to the ICCPR (which enables individuals to
bring complaints against states to the Human Rights Council) (Mertus
2004; Ignatieff 2005). The fact that the 'Great Powers' dominate the
UN, and that they do not support, recognise or, very often, even come
close to complying with major international human rights treaties is
a serious obstacle to the realisation of human rights through the UN
(Freedman 2014).

Standard-setting and monitoring

······················································································································
The way the UN is structured does not mean that what happens there
is completely under the control of the officials of the 'Great Powers' or
determined by how they represent their interests. In fact the purpose
of delegating authority to the UN is often to solve problems about
which relatively little is known, it is unclear what can be done, and
international co-operation is seen as necessary. Mandates change over
time - and in general they have been expanded at the UN. Professionals
at the UN create their own aims and means for dealing with the prob-
lems they have been set, establishing their authority in relation to the
bureaucrats, diplomats and politicians who represent states. As Barnett
and Finnemore have shown, through politics within the bureaucratic
structures of the UN, officials and experts have gained a degree of
relative autonomy, a certain freedom of thought and action, even from
representatives of the 'Great Powers' (Barnett and Finnemore 2004).
Apart from their delegated authority, professionals in the UN are
able to construct themselves as having moral, expert and rational-legal
72 The United Nations

authority. They claim moral authority on the grounds that they are
concerned with the values and interests of humanity, beyond the lim-
ited national framings represented by member states. They claim expert
authority on the basis of their educational training and credentials,
the detailed reports they produce and their policy recommendations.
They also claim rational-legal authority, According to Barnett and
Finnemore it is above all bureaucracy that enables the relative auton-
omy of the UN as an organisation. In terms of everyday practice, all the
branches of the UN are hierarchically structured by offices and proce-
dures, reports and forms that must be filled out, protocols concerning
who speaks when, who makes decisions and on what basis. People who
work there learn the rules and the professional terminology, and they
thereby gain the authority to guide others through procedures, pro-
tocols, reports and decision-making. It is for this reason, Barnett and
Finnemore argue, that what comes out of UN procedures and reports
are technocratic solutions to the problems set by mandates. What is
most important is how things are done, not the results of what is done.
In fact, 'action' largely involves putting in place more procedures and
more reports. Within what are supposed to be neutral and impartial
administrative procedures, however, there is politics. The language that
is used in reports is highly selective: it frames problems in certain ways
precisely in order to produce or to prevent very specific ways of see-
ing the world, which in tum have concrete consequences in practice
(Barnett and Finnemore 2004).
The cultural politics of human rights are embedded in bureaucracy at
the UN. International declarations, treaties and conventions are based
on consensus: they are drawn up in lengthy meetings in which what
matters is attention to the detail of language. International human
rights law is all about words - what must be put in and what must be
left out in order to get agreement that is as broad as possible between
representatives of member states. It is words that frame human rights
'wrongs' and the consequences for action that are to be expected from
states as a result of making international agreements. Accounts of the
committee sessions in which human-rights documents are made empha-
sise the detailed scrutiny that each and every word is given. What they
also show is that in the end what is most important in these committee
meetings is getting agreement from all the participants. Without agree-
ment there will be nothing to show for all the work - there will be no
final document (Merry 2006). Very often, then, what comes out of the
 Standard-setting and monitoring 73

extremely lengthy processes of creating human rights agreements are

documents that have been carefully and precisely crafted with wording
that allows states to avoid taking action to end human rights abuses.
CEDAW is a notorious example. Although there is no doubt that it
was an achievement to have women's rights recognised when it was
adopted at the General Assembly in 1979, CEDAW was accepted with
very serious limitations. States are permitted to make reservations on a
convention - opting out of certain provisions - provided that they con-
tinue to observe its object and purpose. The reservations on CEDAW are
numerous, and in many countries they make attempts to end discrim-
ination against women impossible. A number of states signed and rati-
fied CEDAW only on the basis of excluding family and religious law for
consideration. Eygpt, for example, signed and ratified CEDAW with the
reservation that where equality between men and women clashes with
Sharia law, it will not be considered relevant. In Eygpt at the time of
ratification in 1981, this was understood to 'restrict[s] the wife's rights
to divorce by making it contingent on a judge's ruling, whereas no such
restriction is laid down in the case of the husband'. Although CEDAW
has been signed and ratified by most states, ruling the family out of the
remit of rights draws a sharp distinction between public and private life
that is one of the main ways in which discrimination against women
is naturalised. As a result, until NGOs working with the UN revived the
issue of women's rights in the 1990s, CEDAW was seen as making very
little difference to women's lives in practice (see Chapter 6).
How are human rights agreements supposed to make a difference
to people's lives? The UN has no means of enforcing human rights in
practice. Creating bureaucratic procedures is in part a solution to the
problem of what UN officials can realistically hope to do. Once a con-
vention has been agreed, a system for monitoring it is put in place.
The main arenas for monitoring human rights on a regular basis at the
UN are the Human Rights Council and the treaty bodies.1 In these for-
ums representatives of states present 'country reports' that detail what
has been done to fulfil obligations according to international human
rights law, how well they have succeeded or failed, and what officials
plan to do in the future in order to end torture, raise women's literacy
rates, ensure that migrants are treated fairly according to due process
and so on. In most cases 'country reports' presented on behalf of states
are supplemented by NGO reports too. States vary immensely in how
respectfully and conscientiously their officials address these various
74 The United Nations

committees, none of which has any means of enforcing compliance

with their recommendations. It is on the basis of monitoring procedures
like those of the treaty bodies that the UN has been called 'a paper para-
dise for its advocates and bureaucrats. that fails to touch the world's
victims' (Harry Steiner quoted in Oberleitner 2007: 17).
If UN procedures for monitoring human rights are a paper paradise,
why is so much effort put into getting international agreements in the
first place, and then into assessing how well they are working? There
is a cynical answer: generally those involved are paid to be there and
they also gain a good deal of respect and status because they work at
the UN. On the other hand, setting standards of human rights does at
least make 'wrongs' visible: it affirms fundamental values on which 'the
world' agrees and so gives NGOs and grassroots movements support in
terms of validating ideals of justice and well-being. If human rights did
not exist, perhaps it would be necessary to invent them as standards
to which the world should aspire? It is because human rights conven-
tions can be effective at least in making violations visible that NGOs
and their supporters within the UN campaign work so long and hard to
create them. And it is also for this reason, and because of the symbolic
weight they carry as representing a kind of 'world conscience', that
those who do not find them acceptable or who are unwilling to be held
to standards of fair treatment fight so hard to prevent them becoming
international human rights law.
In Chapter 2 we looked at Amnesty's campaign to have the Argentinian
government acknowledge the torture and disappearances of its polit-
ical opponents and to change state practices that had resulted in such
serious human rights violations (pp. 22-4). What this example shows is
that monitoring human rights in the treaty bodies of the UN is just part
of any successful campaign to win respect for human rights. Human
rights can only be realised in practice far beyond the committee rooms
of the UN. As Julie Mertus puts it: 'At its best, the process creates
opportunities for governments, NGOs and other members of civil soci-
ety, including, for example the media, to have a constructive dialogue
regarding national priorities, successes, best practices, and challenges
in meeting convention obligations' (Mertus 2005: 86).
In practice, however, many representatives of states in UN monitor-
ing systems treat them rather as an opportunity to evade scrutiny of
human rights violations for which they are responsible, even when they
have signed and ratified international agreements. They are able to do
 Standard-settinq and monitoring 75

so by failing to submit proper reports and treating the procedures with

disdain, indifference or hostility. It is an irony of the UN system that the
states involved in the most systematic and routine violations of human
rights are also the most likely to be secretive, to practice censorship and
to resist investigation by NGOs and UN special rapporteurs. According
to Rosa Freedman, however, at least a quarter of the world's states have
been complicit in torture and disappearances since the beginning of the
US-led 'War on Terror: They include not just the United States and UK
but also - much more surprisingly - Sweden and Denmark (Freedman
2014: 2). What this suggests is that human rights monitoring does not
work to prevent the violation of human rights in any state - even those
that strongly support the UN, and even where what are often consid-
ered the most fundamental rights are concerned. In effect, the system is
set up to make human rights effective only through the action of state
officials when they care about how they appear at committee meetings
at the UN. In practice, rather than resulting in universal adherence to
human rights principles and genuine attempts to make them effective,
human rights monitoring results in a patchy, 'layered' commitment to.
human rights norms as state officials pick and choose what, how and
when they will observe them (Oberleitner 2007: 102).
Bureaucracy is not only limited and ineffectual as a way of produ-
cing commitment to human rights; critics of the UN also argue that it
is alienating: deadening emotion and sensitivity to the suffering that
is actually supposed to be addressed by documents, reports and proce-
dures. Probably the most celebrated aspect of UN human rights moni-
toring, and a feature that has been hard-fought by advocates, is that in
many cases it actually does enable the voices of individuals suffering
violations to be heard. Individuals may make their case to the UN as a
representative or a guest of an NGO that has consultative status; they
may also do so through what are called 'optional protocols', agreed on
as part of the monitoring system of most of the major human rights
conventions. An optional protocol allows an individual to bring a dir-
ect complaint against a state on the basis that his or her human rights
are being violated. In the opening pages of her book, Failing to Protect,
Rosa Freedman gives an account of a scene she saw at the UN: Mr
Gibril Hamid..a refugee from Darfur, was addressing the Human Rights
Council, describing what he had seen of attacks on villagers by gov-
ernment soldiers, raping, murdering and setting fire to houses. While
he was talking, '[pjeople wandered around the Chamber, talking on
 76 The United Nations

mobile phones, rustling papers or gathering up their belongings. The

webcast of his statement shows people walking into and out of the
row directly behind the speaker: the hum of voices accompanying Mr
Hamid's words' (Freedman 2014: xiv). There is a sense in which, when
suffering is framed as a matter of human rights 'wrongs' which are then
dealt with at great length in meetings, reports, more meetings and more
reports, it can seem to everyone involved as if some good is being done
when actually - even when they are physically there - all connection
with those who are actually suffering has been lost. At these moments,
it is hard to avoid the conclusion that bureaucracy itself is dehumanis-
ing, stripping individuals who work in it of any real moral sense, redu-
cing them to 'cogs in an administrative machinery' (Barnett 2003: 8).
In UN human rights monitoring the risk is that bureaucratic procedures
and processes not only become equivalent to action, they completely
displace any real sense of connection with the people whose suffering
they are supposed to bring to an end.

From headquarters to the field

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It is difficult now to imagine the euphoria of the end of the Cold War
and the new possibilities of genuinely realising human rights it seemed
to open up at the UN (see Barnett 2003). There seemed to be a real pos-
sibility of constituting a new international order guided by principles
of human rights and of going beyond talk, beyond the rational-legal
procedures of bureaucracy, to actually alter practices within states
to end human rights violations. Throughout the 1990s and into the
twenty-first century there was hope that the UN could become some-
thing more like a world state with resources of authority, money, even
military force where it was felt to be absolutely necessary, to make a
difference to the conditions in which people suffer from human rights
abuses.
In part these changes involved a challenge to the ideal of 'sover-
eignty' encoded in the UN Charter. Rather than control over territory by
an independent nation-state, in the 1990s 'sovereignty' was redefined
across a range of settings as a responsibility to protect populations from
human rights violations.2 The new definition of sovereignty as respon-
sibility was recognised in a speech by Secretary General Kofi Annan
in 1999:
 From headquarters to the field 77

Sovereignty ... is being redefined - not least by the forces of

globalization and international co-operation. States are now widely
understood to be instruments at the service of their peoples, and not
vice versa. At the same time individual sovereignty- by which I mean
the fundamental freedom of each individual, enshrined in the Charter of
the UN and subsequent international treaties - has been enhanced by
a renewed and. spreading consciousness of individual rights. When we
read the Charter today we are more than ever conscious that its aim is to
protect individual human beings, not to protect those who abuse them.
(Quoted in Weiss 2007: 96-7)

One of the most important challenges to state sovereignty as the right

to govern without interference from other states was the setting up of
international courts. In the 1990s the Security Council set up inter-
national tribunals to try military commanders and politicians accused
of war crimes and genocide in the former Yugoslavia (the International
Criminal Tribunal for the Former Yugoslavia, the ICTY) and Rwanda
(the International Criminal Tribunal for Rwanda, the ICTR). It was the
first time individuals had been held to account for gross violations of
human rights under international law since the Nuremberg Trials that
were held immediately after the Second World War. These tribunals also
had the power to prosecute military commanders and political leaders
regardless of their standing within their own states. But military leaders
and politicians enjoyed diplomatic immunity during the Cold War: they
could not be prosecuted for any actions they took as the heads of sov-
ereign states.' The International Criminal Court (ICC) was set up in 2002
as a permanent court with a mandate to prosecute individuals, includ-
ing elected politicians and military commanders who are accused of
committing genocide, war crimes and crimes against humanity (see
Oberleitner 2007; Sikkink 2011). The ICC goes beyond state sovereignty
in that the states. that have joined have agreed to compel anyone the
ICC prosecutes for gross violations of human rights to stand for trial,
regardless of their standing within their own state and regardless of
national law at the time. It is, however, limited by the fact that the
United States has refused to allow its military personnel to be subject
to the court's jurisdiction, and China, India, Russia and Turkey have
refused or have not yet ratified its founding statute. In fact, the UK and
France are the only members of the Security Council that have joined
the ICC In addition, it is remarkable that from its beginnings in 2002
78 The United Nations

until the time of writing this in 2014, only African leaders have been
indicted by the ICC, a fact that does not inspire confidence in its abil-
ity to administer law impartially, or to act as a world court (Mazower
2012: 399-405).
Another challenge to the ideal of sovereignty as non-interference
has been the increased use of economic sanctions. Since the end of
the Cold War the UN Security Council has been increasingly ready to
endorse economic sanctions and arms embargoes as part of its role to
maintain international peace and security. Only Rhodesia and South
Africa were subject to economic sanctions before the 1990s. Sanctions
against South Africa, which included boycotting cultural and sporting
activities as well as trade, were widely seen as contributing to the end
of the apartheid system. As a result, 'comprehensive sanctions' (ban-
ning trade, and also international flights and transnational financial
transactions and seizing assets) were seen as a valuable way to make
authoritarian governments accountable for human rights violations in
international law. Taken against the former Yugoslavia and Iraq in the
1990s, they resulted in terrible suffering for civilians in these countries.
As a result of protests against the suffering caused by 'comprehen-
sive sanctions', 'targeted sanctions' have become more popular in the
UN. They have included arms embargoes, travel bans, and embargoes
on particular trades (diamonds in Angola, for example, oil in Libya,
Angola and Sierra Leone). These have been accompanied too by an
increasing readiness by the UN Security Council to 'name and shame'
governments that find a way round the sanctions it imposes (Bellamy
2009: 139-46).
Most controversial in terms of redefining state sovereignty through
the UN are humanitarian interventions, the use of military force to
end gross violations of human rights. Indeed, 'humanitarian interven-
tion' is so controversial that for many people it now stands for 'illegal
and unjustified war in the name of human rights'. In the UN, military
intervention that is legally permitted by the Security Council is called
'peacekeeping' - though the term 'humanitarian intervention' was used
in debates over whether it was justified to stop genocide and ethnic
cleansing in the 1990s. In 1999, for example, Kofi Annan challenged
opponents:
If humanitarian intervention is indeed an unacceptable assault on
sovereignty, how do we respond to a Rwanda, to a Srebenica - to gross
 From headquarters to the field 79

and systematic violations of human rights that offend every precept of

our common humanity?
(Quoted in Mertus 2005: 125)

During the 1990s and into the twenty-first century, in many cases
'peacekeeping' became indistinguishable from 'humanitarian interven-
tion'. Traditional UN peacekeeping operations were rare. In the 1970s
just three new peacekeeping operations were authorised, and there were
no more until 1988 - compared to thirty-eight in the 1990s (Mazower
2012: 382). Traditional peacekeeping operations were almost always
carried out at the invitation of a member state, after an initial agree-
ment had been signed, and with the aim of using minimum force in
order to allow peace to be established. They remained clearly within
the remit of the UN to safeguard state sovereignty. Since the end of
the Cold War, however, there has been a far greater willingness to 'put
boots on the ground' without a state's consent and when peace agree-
ments are known to be precarious and reversible or when they have
not been agreed by all parties to the conflict. In human rights terms,
where a state is in breach of what are known legally as 'peremptory
norms', or fundamental human rights to freedom from state violence,
it is increasingly understood that military intervention without the per-
mission of that state is justified to protect civilians. Charges of geno-
cide, war crimes and crimes against humanity may now justify military
intervention without the permission of the states that are held to be
responsible, either because political and military leaders are implicated
in gross violations of human rights or because they cannot prevent
atrocities.4
At the UN it is now understood that successful 'comprehensive
peacekeeping operations' must end with free and fair elections.
For this to be possible, states must be rebuilt. In many cases this
is a consequence of bombing from the air, which destroys a coun-
try's infrastructure and communications systems and which is the
favoured military strategy for humanitarian interventions because it
minimises troop casualties. State-building is also seen as necessary
because where state officials were implicated in or unable to pre-
vent gross violations of human rights, politicians and judges must be
replaced, or at least closely monitored, and the failures of legislation
and administration must be addressed. In Bosnia, Kosovo and East
Timor, 'transitional administrations' involved complete control of a
80 The United Nations

territory. In 'transitional .administratlons' international experts take

over completely, remaking governmental and juridical branches of
the state, as well as creating and overseeing national security forces.
UN Security Council resolutions granted extensive, and controver-
sial, control over the appointment of state officials and the making
of new laws in Kosovo and East Timor. In Bosnia it was agreement
between different groups in the country that authorised the High
Representative, supported by UN and EU experts and NATO troops,
to have oversight of rebuilding the state.5 'Transitional administra-
tions' are exceptional. They are extremely expensive; they have only
been carried out in small territories, and only where Northwestern
states have declared a strategic interest in the area. In Afghanistan
and Iraq, state-building was far more limited. It was different too
because it followed foreign invasion, not civil war. State-building
was called 'light footprint' in Afghanistan and Iraq: people living in
these states would be involved as much as possible; they would take
'ownership' for creating democracy and the rule oflaw. In both cases
interim governments were appointed under the supervision of US
military leaders and favoured national political figures: in the Iraqi
case they were mostly exiles; in Afghanistan, they were national
political figures and military allies (including militia leaders of the
Northern Alliance who had helped NATO forces defeat the Taliban).
Subsequently, interim governments drew up constitutions, and elec-
tions were held that were judged to have been reasonably free .and
fair. In both Afghanistan and Iraq 'light footprint' state-building was
dominated by military priorities. Both wars were very unpopular
in the United States and Europe. Consequently international troops
aimed to bring insurgents under control and to establish national
security forces to take over so that they would be able to go home as
soon as possible.
The principal controversy over humanitarian interventions is that
they are effectively imperialism justified in the name of respect for
human rights. Formal imperialism - the direct rule of people inside a
territory by a dominant state outside that territory - was brought to an
end with decolonisation in the 1960s. But criticisms are made of the use
of military force to realise human rights on the grounds that it furthers
informal or nee-imperialism, the indirect rule of peoples who live in
other states for the benefit of the dominant state.6
 From headquarters to the field 81

For critics of humanitarian intervention the most important question

is 'who decides?' The answer is somehow both complex and simple. The
UN has no standing army. UN peacekeeping depends on the deployment
of efficient, well-trained and well-equipped forces by its members. In
principle there is a clear legal distinction between UN peacekeeping
operations, which can only be agreed by the Security Council, and those
that are led by military alliances like NATO, 'coalitions of the willing' or
regional organisations like the European Union or the African Union.
But in terms of 'boots on the ground', the difference is a good deal
less obvious. Peacekeeping operations that are UN-authorised are often
led by particular forces: NATO led UN operations in Bosnia in 1992,
Australia led UN operations in East Timor in 1999. On other occa-
sions the Security Council has sanctioned peacekeeping operations and
state-building after the forces of other states have invaded in the name
of 'humanitarian intervention'. This was the case after NATO bombed
the Serbian militias out of Kosovo in 1999, and after the NATO inva-
sions of Afghanistan in 2001 and of Iraq in 2003.
There is no doubt that the United States was the dominant state
at the UN at the end of the Cold War - when it was often referred to
as the 'sole remaining superpower'. Building up military power that
the USSR and China could not hope to match was the US security
strategy during the Reagan administration of the 1980s. As a con-
sequence, by the 1990s the United States had unrivalled fire-power
and military technology. The United States continues to spend more
on its military than all the other countries in the world combined
(Weiss 2009: 5). The drone attacks that are still ongoing to kill
people the US authorities consider a security risk in Pakistan are just
the most spectacular instance of military technology today (Ayoob
and Zierler 2005; Bhatt 2012). Any form of military intervention,
whether sanctioned by the Security Council or not, is simply impos-
sible without the agreement of US advisors, military commanders
and politicians. It would be inconceivable to carry out peacekeep-
ing operations against what US officials consider to be the interests
of their state. In addition, the United States has led humanitarian
interventions in which the UN has become implicated after bomb-
ing and invasion in the name of human rights. In a sense, then, the
answer to the question 'who decides?' when there will be humani-
tarian intervention has been 'the US president'.
/ 82 The United Nations

It is especially around humanitarian interventions in Afghanistan in

2001 and Iraq in 2003 that the UN has been implicated in furthering
the military and geo-political aims and strategies of US state officials.
The reasons that were given for both these invasions shifted as the
occasion demanded, but human rights violations (especially of women
under the Taliban in Afghanistan and of Kurds by Saddam Hussein)
were certainly part of the reasoning proposed by the Bush administra-
tion (supported very vocally by UK Prime Minister Tony Blair). In fact,
neither the invasion of Afghanistan or of Iraq was legally sanctioned
by the UN Security Council as a humanitarian intervention. The inva-
sion of Afghanistan in 2001 was legally permitted, but on the rather
vague, and quite traditional grounds that US self-defence permitted it
as the Taliban were reportedly hiding Al-Qaeda who had just claimed
responsibility for the 9/11 attacks. The Security Council refused on sev-
eral occasions to legalise the invasion of Iraq in 2003. In 2004 Kofi
Annan, then Secretary General of the UN, denounced it as illegal in no
uncertain terms (Sands 2005: 175). Nevertheless, the UN subsequently
mandated missions to maintain security and to enable state-building
in Afghanistan and Iraq after the invasions (UNAMA in Afghanistan
from 2002 and UNAMI in Iraq from 2003). In this way the UN willingly
contributed to 'regime change', which was undoubtedly the aim of both
invasions by the United States and its allies.
Despite these ongoing controversies over humanitarian intervention
and neo-imperialism, in 2005 there was unanimous agreement on 'the
Responsibility to Protect' at a UN World Summit. It was agreed in the
Responsibility to Protect that the purpose of a state is to protect the
people within its territory, and that when it does not or cannot, people
whose lives are threatened there become a matter of concern to the
'international community'. Where civilians are in immediate danger for
their lives, military intervention is justified without a state's consent. In
other words, when a state does not accept its responsibilities in practice,
it may forfeit its sovereignty (Weiss 2007; Bellamy 2009).
It seems that agreement on the Responsibility to Protect was in part
a result of the shock of the genocide in Rwanda and the role that the
UN played in allowing it to happen. In 1994 UN peacekeeping forces
withdrew from Rwanda, leaving as many as 800,000 people to be killed
in just a few months (Barnett 2003). In part, however, it seems too
that many state representatives voted for the Responsibility to Protect
From headquarters to the field 83

because it was seen as putting an end to humanitarian interventions

except where they are agreed by the UN Security Council. It was seen
as putting an end to the idea that NATO could take it on itself to act as
the policeman of the world, legitimating its military activities in terms
of humanitarianism and human rights. In fact, the Responsibility to
Protect was seen above all as a responsibility to prevent gross violations
of human rights. In the document there are no mechanisms specified
to trigger the use of military force if a state fails to protect people in
its territory. All that has been agreed is that military force is not ruled
out where there is the threat or the actual occurrence of large-scale loss
of life and massive forced migration. Military force is still only legally
permitted where it is authorised by the UN Security Council (Bellamy
2009: 66-7). It is not clear, then, what the Responsibility to Protect
actually adds to existing international law which already permits mili-
tary action where the Security Council agrees that there is a threat to
international peace and security given that there are now precedents
for deciding that genocide, ethnic cleansing and mass human rights
atrocities constitute such a threat.
In many ways the 'Responsibility to Protect' reinforced the UN as 'an
authority' that can plan and oversee peacekeeping operations for the
protection of human rights. In practice, however, the era of 'humani-
tarian intervention' may be over, at least when the Great Powers have
an interest in a particular region or country.' In 2011 the UN Security
Council drew on the 'Responsibility to Protect' to authorise military
intervention in Libya to protect civilians from the government forces of
Colonel Gaddafi's regime. The intervention was supported by the states
of the Arab League.There has been no possibility of a large-scale inter-
vention in Syria, however, in a situation that is similar to that of Libya
(in that both involved uprisings against authoritarian governments as
part of the Arab Spring) because of Russia's continued support for the
government in Syria. There will be no Security Council resolution to
sanction a peacekeeping operation as long as the Assad regime is sup-
ported by Russia, its long-standing ally (Muir 2013). Formal agreement
at the UN on the 'Responsibility to Protect' has not defused suspicions
that 'humanitarian intervention' is an instrument of imperialist designs,
and that it will be used to undermine state sovereignty when it suits
how the politicians of the 'Great Powers' construct their security and
economic interests (Weiss 2007: 112-18).
/84 The United Nations

Tragic dilemmas
·················································································································
In this chapter we have looked at how the UN was structured around
safeguarding state sovereignty and the influence of the 'Great Powers'
at the end of the Second World War. We have also looked at how the
cultural politics of human rights at the UN has enabled professionals
there to create a domain of action that is relatively autonomous of
constructions of national interests by state bureaucrats, diplomats and
politicians. Throughout most of the history of the UN, this domain of
relative autonomy was confined to the committee rooms, offices and
corridors of the UN itself. Since the end of the Cold War, however, with
the collapse of the USSR and a reshaping of how US officials con-
structed the national interests of the sole remaining 'superpower', it has
been expanded to activities that have effectively redefined sovereignty
as responsibility.
Redefining sovereignty as responsibility opens up a role for UN experts
to put in place practices that supplement states within their own terri-
tories. Indeed, the report on which the agreement oil the 'Responsibility
to Protect' was reached in 2005 explicitly lists 'responsibility to rebuild'
as one of the duties of the 'international community' to prevent further
human rights atrocities alongside the 'responsibility to prevent' and the
'responsibility to react' (Bellamy 2009). In UN-sanctioned peacekeeping
and state-building missions, states that remain nominally sovereign are
effectively replaced over at least part of their territories in order to pro-
tect people from gross violations of human rights. In the name of the
'international community' activities that were previously understood
as the prerogative of sovereign states have been undertaken by foreign
experts and supported by military force. In effect what state-building
aims to do is to transform states that resemble predatory states into
something more like the juridical-type state we looked at in Chapter 3.
The aim is to end structures that support political and military leaders'
strategies of extracting wealth (from foreign aid and raw materials) .
to fund militias, which in tum protect their wealth-making activities.
The structures of predatory-type states should be replaced with struc-
tures that support administration by rational-legal bureaucracy. In the
post-Cold War era, experts in peacekeeping maintain that establishing
the rule of law and rational-legal administration is the best way to
secure respect for human rights within states that have been tom apart
by violence and repression.
Tragic dilemmas 85

Have these missions succeeded? This is of course a huge question,

to which clear-cut answers are hard to find in the extensive litera-
ture on peacekeeping and state-building. Transitional administrations
in Bosnia, Kosovo and East Timor (now Timor-Leste) do seem to have
been successful in that armed conflict and ethnic cleansing has been
ended. The main controversy concerning human rights in transitional
administrations conce~s political rights. In each case state-building
has been extensive and long term, with international mission succeed-
ing international mission, each having significant legal powers over the
government, the judiciary and the security forces within the territor-
ies. In all these cases the UN has now left, but Bosnia and Kosovo are
still international protectorates over a decade after peace was declared.
Today representatives of the European Union have the final authority
over elected officials in Bosnia and Kosovo, including members of gov-
ernment. In Kosovo the judiciary is mostly made up of international
judges and prosecutors who may also be removed by the EU represen-
tative there. No mechanism for the judicial review of these decisions
has been built into the new constitutions either of Bosnia or of Kosovo.
Guglielmo. Verdirame argues that these powers are incompatible with
democracy: citizens are not free to elect their legislatures, and judges
are not independent. He argues that although human rights atrocities
have ended, and humanitarian intervention was an important con-
tribution to that end, 'no autocracy can remain benign for too long'
(Verdirame 2013: 268). There is a danger that even in what appear
now to be successful cases, the 'top down' administrative solution to
state-building is superficial, it has not really engaged ordinary people,
and removal of internationally imposed limits on democracy will result
in renewed human rights abuses.
The so-called 'light footprint' state-building in Afghanistan and Iraq,
on the other hand, has been spectacularly unsuccessful. In part this is
because political settlement was always secondary to security issues
in peacekeeping missions there. The initial invasions and peacekeep-
ing were accompanied by well-documented violations of human rights
by the United States and its allies: civilian casualties have been very
high (an estimated 20,000 in Afghanistan since 2001 and as many as
500,000 in Iraq since 2003); and disappearances, torture and unlawful
detention have been extensive. In Afghanistan the interim government
appointed by US and UN experts included the leaders of militias in
the Northwestern territories who had helped NATO troops defeat the
86 The United Nations

Taliban. They were then able to win key government posts, sometimes
using them to confirm a fundamentalist Islamic agenda that was at
odds with women's rights (Amnesty International 2011). At the same
time, the Taliban continued to operate, providing welfare assistance to
Pashtun groups that the Tajik-dominated government largely ignored.
In 2013 there were reports that the war in Afghanistan was escalating,
not ending, with thousands of people killed each month and many
more fleeing their homes to escape violence. After all the casualties
and chaos, it seems that US officials now see their interests in nego-
tiating with the Taliban (Guardian 2013). The.failure of state-building
in Iraq has been even more spectacular: in 2014 the country was split
by civil war as IS (Islamic State) militias defeated the Iraqi army, which
had been trained and equipped by the United States and its allies. Toby
Dodge traces this civil war directly to the support of the United States
and UK for the Iraqi prime minister chosen to head the interim gov-
ernment and still in place after a popular vote against him in the 2010
elections. Dodge argues that the IS insurrection is a symptom of many
Iraqis' disaffection with the corruption, nepotism and authoritarianism
of the government led by Nouri Al-Maliki (Dodge 2014). The human
rights violations for which state officials under Al-Maliki's government
were responsible were documented by Amnesty in 2013: 'Thousands of
Iraqis are detained without trial or serving prison sentences imposed
after unfair trials, torture remains rife and continues to be committed
with impunity, and the new Iraq is one of the world's leading execu-
tioners' (Amnesty International 2013a).
The UN is the only organisation with oversight for the human rights
of everyone in the world. It is easy to be cynical about such an ideal,
and about the people who are supposed to make it a reality. If we allow,
however, that people who work at the UN are generally sincere in try-
ing to end suffering that is framed in terms of human rights violations,
we might think rather that they are faced with 'tragic dilemmas'. People
in official positions at the UN in which they are supposed to be able
to make a difference can, on occasion, be faced with a choice between
allowing terrible suffering - killing, .rape, people fleeing for their lives -
or trying to end it by 'borrowing' military force from willing govern-
ments. The tragic dilemma is that military intervention will itself cause
terrible suffering in the short term, and quite possibly fail to end it in
the long term.
 Tragic dilemmas 87

Another way of looking at the problem of how the world might be

responsible for human rights takes us beyond the corridors and com-
mittee rooms ofthe UN. There is a sense in which all of us who are citi-
zens of wealthy and influential states are responsible for human rights.
'Great Powers' are always already involved in the history and politics
of states that violate human rights. Legal sovereignty did not prevent
the 'Great Powers' intervening frequently in the affairs of smaller states
without UN authorisation during the Cold War, including by military
means, in what they considered to be their economic and security inter-
ests (see McMahon 2003). 'Great Powers' continue to do so by using
'proxies' or 'clients', providing arms - to governments or to rebels -
sometimes covertly, and by giving them international recognition and
delegitimating their opponents as 'dictators', 'terrorists' or 'warlords:
In fact, the permanent members of the Security Council are the top
five arms-selling countries in the world (Amnesty International 2013b).
In many ways humanitarian interventions fall squarely within this
history: they have been attempts to create states that will be friendly
to governments of the United States and Europe. It is quite remark-
able, however, that support given to dictatorships shielded by sover-
eignty is not exposed to anything like the same degree of opposition
as humanitarian interventions. There were massive protests around the
world against humanitarian interventions by the United States and its
Western European allies in Afghanistan and Iraq, and there has been
mediated public outrage at the expense and the lives of soldiers that
have been lost. In addition, there are frequent - though marginal - calls
for Bush and Blair to be tried as war criminals. In contrast, the routine
sale of weapons and the support for leaders of states that are involved
routinely in violating human rights by all the 'Great Powers' goes rela-
tively unnoticed and unopposed.
At the same time, it is important not to over-estimate the effect that
redefining sovereignty as responsibility will have on ending human
rights violations where that means intervening in the territories of
states in which officials are violating, or are failing to prevent gross
violations of human rights. International law is still overwhelmingly
made, adjudicated and enforced by states through treaties and through
national commissions, legislatures and courts. Only very rarely is there
recourse to international courts, economic sanctions and peacekeeping
operations.8 Sovereignty as the legal defence against non-interference
/ 88 The United Nations

in a state's internal affairs remains an ideal at the UN - even if it is now

in tension with the ideal of 'sovereignty as responsibility'. Sovereignty
as non-interference is supported by the structures of the UN and, for
the most part, by the ethos of bureaucrats and experts employed there.
As we have seen in this chapter, for the most part attempts to achieve
human rights in practice through the UN involve persuasion rather than
force and this will no doubt continue to be the case. It is only in very
exceptional circumstances that invading a sovereign state is ever con-
sidered to protect civilians, and when it is, the way in which the 'Great
Powers' construct their interests in the region is always an important
factor in the decision to go to war.
The UN is not a world state. It has no means of enforcing human rights
and it relies on states to provide moral resources of delegated authority
and compliance with international norms, and material resources of
money and arms. The UN was structured to accommodate the 'Great
Powers', to give weight to their formal as well as their informal influ-
ence. In this context it is. not surprising that people with national ties
to other states are concerned about guarding sovereignty as independ-
ence, especially as in many cases it was won only relatively recently
from European imperial states. How to support anti-imperialism and
at the same time avoid what amounts to indifference iri the face of
actions by state agents that are directly causing terrible suffering? This
is the difficulty for those committed to respect for human rights, both
for those who work inside the UN and for those of us who are outside.
 Rights
the world has, or
should have,
rights. In addition, most states
~~S!PJIOO .of the United States) are signatories to
the..tnterna.ticinafl~D\f~Otion on Economic, Social and Cultural Rights
(ICESCR)rwhichi;;am~d.nto force in 1976. According to Article 2 of the
ICESCR:

Each State Party to the present Covenant undertakes to take steps,

individually and thrqµgh intemational assistance and co-operation,
/90 Humanising capitalism

especially economic and technical, to the maximum of its available

resources, with a view to achieving progressively the full realization of
the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.

The rights recognised in the ICESCR are mostly elaborations of Article

25 of the UDHR quoted at the beginning of this chapter: to food, shel-
ter and social security. International human rights law not only specifies
in some detail what individuals are due, it also codifies the expectation
that it is the duty of states to co-operate internationally in order to
realise rights in practice for everyone. The UN Committee on Economic,
Social and Cultural Rights has repeatedly stated that, under the terms
of Article 2 of the ICESCR, states are bound to refrain from action that
might result in human rights breaches of social, economic and cultural
rights in other countries, and to help each other protect these human
rights within their own jurisdictions (Kinley 2009: 53).
Thefactthatsocial, economic and cultural rightsaresowell established
internationally may come as something of a surprise. Expectations and
duties concerning social and economic rights contradict the dominant
economic theory of our times: nee-liberalism. Nee-liberal economists
see freeing markets from state control as a fair and efficient way of
distributing goods and rewarding hard work and ingenuity. In prac-
tice projects that are designed to free markets are not necessarily
unified, coherent or well designed to meet their stated aims. In very
general terms, however, 'freeing markets' since the 1980s has involved
the de-regulation of exchanges of money for investment and specula-
tion within and across borders; the privatisation of nationally owned
industries; increased commodification - including of public services
like education, health, even the privatisation of prison security and
border control; and the imposition of free trade around the world to
enable corporations to take advantage of labour and resources that
are cheaper in some parts of the world than in others.
Capitalism is not just markets. There are many disputes amongst
classical and contemporary sociologists about what capitalism does
involve, but this is something on which all agree.1 Nee-liberal projects
to 'free markets' stimulate economic growth that is dependent on prof-
its made by investing capital. Investors make most profit where they
pay as little as possible for labour, machinery and materials. It is here
that corporations become important. Corporations plan and organise
 Humanising capitalism 91

investment, production and exchange to reduce costs and maximise

profits, Transnational corporations (TNCs) are designed to take advan-
tage of inequalities that they also produce. In terms of manufactur-
ing goods for exchange or creating services (in office work, tourism
and so on) capitalist investment creates inequalities - between work-
ers, most immediately as a result of differences in skills and education,
and also differences of nationality, ethnicity, gender, age. It also creates
inequalities between whole regions. Capitalist investment creates jobs
that are often relatively well paid compared to work in agriculture and
local businesses in an area, but when they are no longer as profitable
as opportunities elsewhere, TNCs can leave everyone there worse off
than before. This is especially the case where common land that previ-
ously maintained small-scale farming has been taken over. Today much
capitalist investment is not in manufacturing or services at all, but in
money markets. There are profits to be made by gambling on antici-
pated changes in the price of stocks and shares, currencies, derivatives,
futures and a slew of esoteric inventions that directly affect the pos-
sibilities of other exchanges of goods, services, labour and capital. In
short, where investment is driven by profits, markets are in large part
the product of corporations that successfully create the conditions of
their own success.
From within the terms of nee-liberalism markets and human rights
are understood to be linked in a very particular way. The 'invisible
hand of the market' that nee-liberals see as fair and efficient is linked
to civil rights (sometimes called 'negative freedoms') because both
are marked by the absence of the state. Human rights are under-
stood exclusively as civil rights, and we enjoy them only where the
state does not interfere with people's freedoms - especially the free-
dom to buy, own and sell property, skills and labour, but also to free-
dom of movement and of speech.2 It is especially this link between
markets and civil rights that was celebrated by nee-liberals after
the Cold War: when state communism collapsed, opposition to state
intervention was championed both on the grounds of the value of
free markets to economic development and of freedom from totali-
tarian government. In contrast, for advocates of social, economic and
cultural rights, markets must be limited for human beings to enjoy
real freedoms (sometimes known as 'positive freedoms'): states must
enable more or less equal opportunities to realise the aims we set
ourselves and-for us to develop our full capacities.
 92 Humanising capitalism

Markets are socially constructed

···················································································································
Markets are part of how we live together: they do not exist outside the
meaningful codes through which we make them. Neo-liberals assume
that human beings are motivated only by individual calculations of
self-interest. One of the important features of markets for neo-liberals
is that they 'incentivise' people to act: by the carrot of material rewards
and social status; and by the stick of insecurity, homelessness and hun-
ger. In contrast, human rights advocates do not see human beings as
solely rational, calculating creatures. Even in conditions of advanced
capitalism people value experiences, relationships and other people: we
do not live only to maximise our own advantage. Markets are valued
for certain kinds of exchanges, but they are never without limits. Once
theyare established, markets are structured: they become background,
taken-for-granted; to a greater or lesser extent they seem to us to be
objective, social constraints on how we are able to live. However, we
continue to make markets in everyday life, to frame exchanges in terms
of what we value as well as what is 'normal'. Markets are structures that
are constrained as well as constraining.
There are two basic types of limits on markets - formal and informal.
In formal terms, markets are shaped by legislation and public policy
established through states. This is one of the biggest areas of contro-
versy today. 'Rolling back the frontiers of the state' is the most import-
ant principle of neo-liberal political projects that aim to free markets.
In fact, however, it is clear that markets cannot exist without states.
Although, as we saw in Chapter 3, states are very different, where capit-
alist markets are well established it is because states provide conditions
that corporations cannot provide for themselves. It is through states
that taxes are gathered, and money collected or that has been borrowed
from the International Monetary Fund (IMF) and the World Bank or
donated by international aid is distributed. Governments and experts
employed by states are supposed to invest money 'in the national inter-
est' to make their country competitive in the global economy. There are
historic reasons why Northwestern states have been especially success-
ful in this respect that continue to be important today (as we shall see
in the next section). But state-directed economic growth has also been
achieved by the 'Asian Tigers' (Hong Kong, Singapore, South Korea and
Taiwan) since the 1980s. First, money is used to pay for publicly funded
infrastructure that is necessary to attract investment in manufacturing,
 Markets are socially constructed 93

service and extractive industries, transport and communications sys-

tems, and reliable energy supplies. Providing security for investment
by organising police and military forces is perhaps the most import-
ant part of infrastructure that states provide for investment. For the
most part violence and conflict are not good conditions in which to
organise buying and selling across any distance - at least not to do
business that is legal (with the important exception of making and sell-
ing military supplies). Second, it is through states that legal contracts
between investors, suppliers of goods and services, manufacturers and
retailers, workers and management are regulated and guaranteed. To
ensure stability and to create conditions in which corporations can plan
investment, legal contracts must be backed up by courts and tribunals
to which managers and workers can appeal to adjudicate controversies
if they break down. Third, as capitalist societies become increasingly
industrialised and profit is based on providing services and goods that
involve design, technology and marketing, corporations need educated,
well trained, flexible and healthy workforces. States that successfully
compete for investment in 'high-end' industries are those that have
national systems of education and health-care. Although 'freeing mar-
kets' in the public sector is one of the aims of neo-liberal projects,
and selective privatisation is profitable for some corporations, national
systems have to be co-ordinated. Planning and long-term investment
is needed to produce the 'human capital' that is necessary for busi-
nesses to make profits, and it is only experts who work within the
frame of 'national interests' that are in a position to project what will
be needed in terms of skills for a country to become and to remain
competitive. Fourth, although it has become much more difficult with
the deregulation of money markets, states set limits on the supply of
money to their national economies to establish a degree of stability for
investment by keeping inflation low and encouraging businesses to
borrow to support economic growth. 'Macro-economic' policies were
very evident after the fmancial crisis of 2008 when US and European
governments did not leave under-capitalised investment banks to fail.
They used trillions of dollars of public money to prevent the complete
collapse of banking, and to keep a degree of control over national econ-
omies. Finally, all states invest public money in areas of the economy
that are valued by governments. This investment has significant effects
in terms of the growth of national economies (on jobs and tax rev-
enues), and it invariably produces significant benefits for investment
. 94 Humanising capitalism

in other enterprises. The United States, for example, spends almost one
quarter of the federal budget, billions of dollars each year, on defence,
including the development of military technology. The invention of the
Internet is one of the side effects of this investment: it is unimaginable
that private business would have funded the long-term, 'blue skies'
research that led to the development of digital technology. It is diffi-
cult to imagine what capitalist investment would be today without the
digital revolution; but it was actually a by-product of state planning,
not the innovation and creativity that neo-liberals see as produced only
by markets (Castells 2001; Chang 2010a).
The ways in which markets are structured informally can be harder
to pin down, but they are no less important. Informal norms are often
contrasted as 'soft' compared to 'hard' law and regulation: while law
and regulation compel through fear of punishment, informal norms
and values compel through persuasion and consensus. In very gen-
eral terms, everyone recognises certain ethical limits on what can be
bought and sold. Legal limits are often in place as markers of these
moral limits so that even though there certainly are markets in babies,
vital organs and small arms, for the most part these are not consid-
ered 'commodities' that can be exchanged like fruit and vegetables.
A classic example of the limits of markets has been norms and values
concerning sex, gender and sexuality in the Northwest. With historical
variations, since the nineteenth century (sometimes backed by legisla-
tion and public policy), there has. been a general understanding in the
Northwest that it is women who care for young people, the sick and
elderly while male heads of household provide the conditions (hous-
ing, food) for that care by exchanging their labour for wages. There is
no market logic for this arrangement: in fact, it is to the advantage of
business to have as many people as possible compete for work in the
labour market, and to be able to sell services and goods that women
have provided in the home. What is considered appropriate for men
and women is now changing to some extent, and what was previously
done in the home is increasingly commodified. Nevertheless, care-work
remains an important limit on markets: love and intimacy have never
been outside market exchanges altogether, but nor can they ever be
completely captured in calculations of profit and loss. Raising children
to become adult workers and consumers is necessary for business to
make profits, but its value to most people goes far beyond the pro-
duction of workers for corporations. How people organise exchanges
 Markets are socially constructed 95

of time and skills for money in labour markets is still shaped by the
value of care that remains gendered in many ways - even though this
is completely illogical from the point of view of market exchanges to
maximise individual advantage.
The cultural politics of human rights by advocates for more
just and human-centred economies is part of a wide range of chal-
lenges to neo-liberal projects. The most well established opposition
to neo-liberalism in terms of social and economic rights comes from
social democrats. It is this tradition that is encoded in the Universal
Declaration of Human Rights with its long list of articles specifying
rights to freedom from state repression, democratic participation, and
social and economic rights to well-being, solidarity and the meeting
of our basic needs. The ideal of social democrats is something like the
welfare states in Scandinavia and Western Europe that are now threat-
ened by neo-liberalism.3 Social democrats today, however, are far more
sensitive to global inequalities than earlier generations. They advocate
for global social democracy, the regulation of markets to benefit people
in all countries, not just those who live within the national boundaries
of specific Northwestern states.
Global social democrats are not against markets as such. In fact, they
see the spread of markets as necessary to the realisation of social and
economic rights for everyone. They argue that it is not capital invest-
ment and transnational markets that cause the intensity of poverty in
sub-Saharan Africa. On the contrary, it is because there is too little
trade and investment in these countries that people are suffering from
the harshest deprivations. Global social democrats are not even against
TNCs, as long as they are properly regulated. They do not, however, see
the 'trickle-down' of wealth that neo-liberals argue will make the poor
better off as a result of economic growth in general as a good way of
organising markets. Nor do they suppose that each individual taking
responsibility for their own well-being is a good way to make the most
of the benefits markets can bring. What global social democrats want to
see is well-managed economic development and state-directed invest-
ment to provide well-paid jobs with good conditions of employment,
and tax revenue that is used for public goods (education, health-care)
and to supplement incomes where people can not earn enough to live
with dignity. What this means in practice is international regulation
and state protection to realise the benefits of markets whilst moderating
the inevitable insecurities, injustices and indignities they create. 4
96 Humanising capitalism

Alongside this social democratic construction of markets and

human rights there is an alternative challenge to neo-liberalism that
is constructed in terms of cultural rights: ways of life must be pro-
tected that can only survive if markets are far more closely regulated.
Where social democrats are concerned to make the most of capital
investment and markets to benefit the world's poorest, the alter-
native model of development is far more focused on safeguarding
local, and to a lesser extent, national markets. I will call this alter-
native model 'local communitarianism'. Like global social democrats
local communitarians address their concerns to inter-governmental
organisations (IGOs) and states. But they are focused especially on
non-industrialised ways of life. These are most important in Africa,
Asia and Latin America, where there are still large numbers of people
living in communities based on small-scale farming and on hunt-
ing and gathering. It also involves people in the Northwest who are
trying to live as far as possible on self-provisioning (growing food,
bartering services and so on) outside markets dominated by corpora-
tions and in environmentally sustainable ways.5 Local communitar-
ians are far more sceptical about markets than social democrats, and
they are against TNCs. They see traditional and alternative ways of
life as threatened by exchanges of money, technological know-how,
and cheap goods produced in industrial processes.
In this chapter we will look at three sets of human rights cam-
paigns that focus on altering the conditions of globalising markets
today. These campaigns are mobilised at different scales and they
address both the formal and informal regulation of markets. It is not
always possible to separate out campaigns that aim at global social
democracy from those that aim at local communitartanism. This is in
part because their aims converge in particular campaigns - around
the gross violations of human rights in which some TNCs have been
involved, for example. In addition, human rights non-governmental
organisation (IGOs) are often reacting to human rights abuses, to
forcible evictions carried out in the name of development projects,
or to the violent repression of resistance to TNCs. When they are
concerned with mitigating or resolving immediate crises rather than
with long-term projects, the fact that advocates may actually have
very different views about how society should be organised may not
be relevant.
 International Financial Institutions 97

International Financial Institutions: co-operation

and competition
···················································································································

The ICESCR requires states to co-operate internationally to realise

human rights for everyone in the world, regardless of where they
happen to be born and to be living. If the UN is the organisation
responsible for human rights in general, it has partner organisa-
tions that might be taken to have similar responsibilities specifically
for the social and economic rights listed in the UDHR. They are the
International Financial Institutions (IFis): the International Monetary
Fund (IMF), the World Bank and the World Trade Organization (WTO).
The IMF and the World Bank were set up as part of the UN in 1944 as
'Bretton Woods institutions', specifically to take responsibility for the
global economy: the IMF to make loans and regulations to stabilise
currencies; the World Bank to make loans and give advice initially
for the reconstruction of Europe after the Second World War and
later for particular development projects. The General Agreement on
Tariffs and Trade was also set up as a Bretton Woods institution: a
forum for negotiating trade rules and settling disputes. In 1995 it was
replaced by the WTO, which was intended to liberalise trade across
borders.
The Bretton Woods institutions were established according to
principles of Keynesian economics: to stabilise currencies and to
regulate international trade and investment in order to support
state-managed national economies. Since the 1980s, however, the
IFis have become notorious for promoting neo-liberal policies to
'free markets' from state controls. Officials at the IMF have attached
conditions to loans that required states to reduce public spending,
cut food subsidies and devalue currency to attract imports (which
have had the side effect of pushing up the cost of the debt). The
World Bank has made loans for large modernisation projects (like
the Narmada dam we discuss later in the chapter), irrespective of
their effects. And the international agreements brokered by offi-
cials at the WTO - with such acronyms as TRIMs and TRIPS - have
created opportunities for corporations to earn returns on invest-
ments by reducing protections for workers and 'communities in the
Global South.
98 Humanising capitalism

IFis have been the object of a variety of campaigns, some of which frame
their policies as violating human rights." It is difficult, however, to con-
struct IFis as duty-bearers of human rights in international law. Respect
for human rights is not part of the articles of agreement by which they
were set up. In fact, IFis are bound to respect state sovereignty, to avoid
interfering in the decision-making of national governments (Oberleitner
2007: po). Even if IFI policies do quite clearly limit what can be done in
national economies, IFis were not designed to consider the human rights
of the individuals and groups their policies affect. In fact, like the UN,
the IFis are structured by respect for sovereign inequalities. IFis were set
up to be dominated by the wealthiest states, especially the United States.
The IlVIF and the World Bank allocate voting and governing positions
to those who hold the most shares. The United States has always had,
and continues to have, an effective veto in the IlVIF. In the World Bank,
five executive directors are elected by the biggest shareholders and nine-
teen others are voted for by regional groups of other members. There has
also been a convention that the United States chooses the president of
the World Bank, while Europeans appoint the managing director of the
IlVIF - both positions are important to setting the policy agenda. In the
WTO decisions are reached by consensus; though there is the possibility
of making decisions by voting, with one member one vote, it has never
yet been used. Consensus building at the WTO involves a good deal of
informal pressure from states with the most to offer in terms of trading
opportunities on those with national economies in greatest need of invest-
ment (Woods 2003).
It is because of the formal and informal influence of US officials as
representatives of the largest and wealthiest economy that neo-liberal
policies have been known as 'the Washington consensus'. Nee-liberal
policies have benefitted the US economy: the dollar is the global cur-
rency, which makes for a common international interest in keeping its
value stable; the government has found it relatively easy to borrow
money (from China especially); investment in manufacturing and ser-
vice industries has been high compared to the rest of the world; and
even ordinary people have found it easy to borrow from banks (though
as wages have declined in real terms in the United States, it is also
the case that many people there have had to borrow to maintain their
standard of living)," It is not just the national economy of the United
States, however, that has benefitted from the 'Washington consen-
sus'. The vast majority of investment and trade has been, and remains
 International Financial Institutions 99

between, the highly industrialised countries of North America, Western

Europe and Japan. This is not accidental. Despite the commitments of
IFis to free global markets, the governments of the United States and
Europe continue to direct investment and to protect certain areas of
their economies from foreign competition. In the United States, research
in public universities and the military that leads directly to developing
industry and exports, including of arms and military technology, is
very important. So too are subsidies to agri-businesses - which result
in surpluses that end up being dumped as food aid in other countries.
Subsidies to agri-businesses are especially problematic for developing
countries, many of which have economies that were organised historic-
ally to grow food for export to the Northwest (coffee, sugar, peanuts). It
is difficult to develop diverse national and even local markets for food
when prices are kept low by subsidies paid elsewhere over which gov-
ernments have no control (Hoogevelt 2001; Chang 2010a; Kiely 2010).
The structural design of the IFis does not determine their pol-
icies. As highly qualified professionals who are employed to produce
knowledge-led economic policy for development and financial stabil-
ity, experts in IFis have a degree of independence from and influence
over officials employed by member states. And it is in part experts
within the IFis who have campaigned for human rights. The presi-
dent of the World Bank between 1995 and 2005, James Wolfensohn,
campaigned strongly for the organisation to become a 'duty-bearer'
of human rights. In fact, it is argued that as a result of pressure from
human rights campaigns both inside and outside, policy-making at the
World Bank and, to a lesser extent the IlVIF, is no longer driven by
'the Washington consensus'. First, poverty reduction is now seen as
requiring non-market means of redistributing wealth (rather than just
'trickle-down'), including social services such as education, health-care
and safety nets for people without income. Second, economic growth is
increasingly seen as requiring good governance, which includes trans-
parency, accountability and citizen participation in development pro-
jects. The World Bank now requires its borrowers to consult with NGOs;
and the IlVIF and World Bank require borrowers to produce Poverty
Reduction Strategy Papers that are publicly available (Oberleitner
2007: 131; see also Scholte 2011).
It is a continuing criticism of the IFis, however, that much of the
work . they do is bureaucratic, procedural and dominated by eco-
nomic expertise rather than by concern for human rights. In fact, in
100 Humanising capitalism

an interesting ethnographic study of the World Bank, Galit Sarfaty

argues that economists still dominate knowledge-production there -
despite Wolfensohn's decade-long campaign to get human rights onto
the World Bank agenda. According to Sarfaty structures of status and
incentives within the World Bank contribute to the dominance of eco-
nomic expertise. Economists treat human rights with suspicion as either
too vague (as moral principles) or too rigid (as law) to facilitate devel-
opment. Sarfaty found that what is important for the status and pro-
motion prospects of individuals working at the bank is making loans,
rather than monitoring their effectiveness. As a result, human rights
still tend to be perceived as obstacles rather than as priorities (Sarfaty
2009). In general, critics of the IFis argue that what we are now see-
ing is the 'Washington consensus augmented' rather than an end to
neo-liberal policies: economic experts are still committed to 'freeing
markets' from state regulation; it is just that now there is an additional
level of bureaucratic procedures that borrowers must negotiate before
they are able to access loans (Salomon 2007: 8-9; Chang 2010b).
It is above all global social democrats who call for the reform of
the IFis. There is a fundamental problem with this approach. Although
officials at the IFis are supposed to foster international co-operation to
create monetary stability and the conditions for investment and devel-
opment, investment actually depends on international competition.
States must compete to provide the conditions to attract foreign invest-
ment, and to borrow money to build up infrastructure and to subsidise
parts of their national economies. They must compete to gain 'com-
parative advantage', to be more attractive than other national econ-
omies in certain sectors (in manufacturing cars, producing parts for
computers, growing coffee, extracting diamonds or cobalt). The offi-
cials of Northwestern states use their structural advantages in the IFis
to enhance the 'comparative advantages' of their national economies at
the expense of those of other states.
Local communitarians are sceptical about possibilities of reforming
the IFis. They are more likely to argue that the IFis should be abolished
(see Bello 2004). And in practice, the.IFis may be declining in import-
ance as brokers of international co-operation on trade and develop-
ment. Many states have distanced themselves from the influence of
the Thi.IF and the World Bank, including the 'Asian Tigers' and Latin
American states like Argentina and Brazil (Dieter 2008). And the Doha
round of talks at the WTO ended in 2013 with very little agreement on
 Taming transnational corporations 101

international trade. In addition, Chinese officials are lending trillions

of dollars to Latin American and African states for development with-
out imposing conditions in terms of human rights. They do so to gain
access to oil and minerals, and to provide work for Chinese citizens on
large infrastructure, mining and construction projects. This undermines
the attempts of human rights campaigners to get IFis to take human
rights obligations seriously. Not only can borrowers go elsewhere for
development loans but the World Bank and the Thi.IF are now in compe-
tition with China (Guttal 2008).
The changing geo-politics of international economic policy-making
are likely to make the IFis less relevant in future. Simply taking the
IFis out of the picture is not, however, in itself enough to make respect
for human rights more easily realised. For one thing, state officials
will still use the advantages of state wealth and the size of national
markets to negotiate with other state officials. Bilateral and regional
trade agreements are not necessarily fairer than those that have been
brokered through the WTO, and unconditional loans will not neces-
sarily be used to benefit a national economy. As we discussed in
Chapter 3, how wealth is distributed by state officials depends on
many factors, including how states are structured to enable officials
to make use of moral and material resources for their own projects,
and the influence of movements, NGOs and parties. Abolishing or
marginalising the IFis will not necessarily make for more of a focus
on social and economic rights either between or inside states in the
future.

Taming transnational corporations

Global social democrats see TNCs, properly regulated, as contributing

to the realisation of social and economic rights: part of the solution
rather than part of the problem. In fact, Mary Robinson, a former UN
Human Rights Commissioner, has gone so far as to suggest that as well
as creating jobs and opportunities that would not otherwise be available
to people in developing countries, corporations should be expected to
put pressure on states to draw attention to human rights abuses and to
raise human rights standards in states that want their business (Clapham
2006: 221-2). In contrast, local communitarians see TNCs as part of the
problem: they create jobs and opportunities by destroying ways of life
102 Humanising capitalism

that are the only possibility of sustaining respect for people's human
rights in the long term.
In practice, the human rights campaigns of global social democrats
and local communitarians converge on the human rights abuses of
TNCs. In terms of civil rights, corporations can be directly complicit
with or benefit directly from human rights violations that are com-
mitted by states, more or less on their behalf. In the worst cases this
involves murder, torture and slavery. Much more common are violations
of workers' rights to decent pay and conditions, and the right to union-
ise and strike to improve collective bargaining power. Corporations also
benefit from development projects that displace traditional ways of life
and livelihood. In this respect (as in the cases we look at in following
section) they can impinge directly on the enjoyment of cultural as well
as social and economic rights.
The most obvious difficulty in making TNCs accountable for
human rights abuses is that they are not directly subjects of inter-
national human rights law. It is states that bind themselves to respect
international human rights agreements, and it is on this basis that
they are monitored at the UN. Effectively, transnational corporations
are private actors: company directors are not legally accountable for
human rights violations, which can only be committed by state offi-
cials, even if their companies benefit directly from murder, slavery
and torture.
This is not to say that TNCs operate outside law and regulation that
protect human rights altogether. Quite apart from laws against compli-
city with murder, slavery and torture, states establish regulations that
detail what counts as bribery, corruption and fraud, require corpora-
tions to conform to their contracts with sub-contractors and workers,
and set rates of taxation. There has been much discussion of the way in
which TNCs are able to undermine stateregulation: dictating terms state
officials and workers must agree to before foreign investors will set up
factories in developing countries. Legal regulation remains important,
however, because even the most 'border-hopping' corporations are nei-
ther as mobile nor as global as we tend to think. In practice TNCs almost
always do a high proportion of trade and even production in one coun-
try, which is usually also where they have their headquarters. Most top
decision-makers in corporations are from the 'home country' in which
they are based (Chang 2010a: 79-82). In addition, the vast majority of
 Taming transnational corporations 103

foreign direct investment (FDI) - investment in productive industries -

still goes into Northwestern states and Japan. The proportion of FDI that
goes to China, the Asian Tigers, Brazil and Mexico has risen in recent
years, as have the size and number of the wealthiest corporations in
these. Sub-Saharan Africa continues to attract the least FDI; though it
too has risen proportionately in recent years - especially as a result of
Chinese investment (Kinley 2009: 169-70). It is in states where there is
little FDI that corporations are most likely to be associated with human
rights abuses. These states are especially susceptible to pressure to lower
environmental and labour standards or the tax requirements they impose
on corporations. The most notorious of these agreements concern Export
Processing Zones (EPZs), specially designated areas in developing states
for processing imported goods to re-export, in which globalising corpo-
rations have been offered a range of incentives, including tax breaks,
subsidies on rents and utilities, duty-free imports and so on. Some of
these agreements restrict workers' rights to unionise whilst at the same
time imposing long hours, brutal conditions, and arbitrary rules concern-
ing who can be hired and fired. Even when workers' rights are respected
on paper, in practice they may be ignored or overruled with states' com-
plicity. We should note that this is the case outside EPZs too, where no
formal agreements are made to suspend workers' rights, but in practice
they are not respected. In fact, wages and conditions are often worse
outside EPZs. In general, developing states that see cheap labour as an
attraction to TNCs are willing to sacrifice human rights to undercut each
other in order to attract foreign investment (Nam 2006).
One legal strategy to deal with corporate abuses of human rights
is to try to bring TNCs to court in their 'home' states for violations
committed elsewhere. TNCs are always legally incorporated in one
state. In fact, human rights advocates argue that states already have
the responsibility in international human rights law to prosecute their
'home companies' where they are involved in human rights abuses (see
Ziammatto 2011). In reality, however, it is very difficult to successfully
prosecute corporations 'at home' because of the complexity of their
operations: they invariably involve long chains of exchanges with sub-
sidiaries, sub-contractors and suppliers in other countries. It is com-
mon that courts decide a case should be heard elsewhere. The most
notorious example of forum non conveniens (where a court refuses to
hear a case on the basis that it should be heard elsewhere) is that of
104 Humanising capitalism

the Bhopal disaster in 1984 when thousands of people were killed and
hundreds of thousands suffered injuries and ill-health as the result of
a gas explosion in plant belonging to the US-based company Union
Carbide. Despite the fact that Union Carbide was legally incorporated
in the United States, American courts decided that the case would
be more appropriately heard in India, where the · damages eventually
awarded were far less than adequate to compensate for the effects of
the negligence that caused the tragedy (Amnesty International 2009;
Kinley 2009: 145-8). In 2012 the Canadian Supreme Court ruled that
the case against Anvil Mining, in which members of the company were
accused of being involved in the Kilwa massacre, would be better heard
in Australia or the Democratic Republic of Congo, despite the failure
of earlier attempts to bring them to court in those countries (Amnesty
International 2012).
One of the most creative legal strategies through which activists have
addressed corporate human rights abuses is through an obscure US law,
the Alien Tort Claims Act (ATCA), which allows any company complicit
with or benefitting from human rights violations to be sued in American
courts, regardless of where and against whom they were committed
(Clapham 2006: 252-65). In Burma, for example, the government used
soldiers to protect the gas pipeline built by Unocal, and the company
was accused of complicity with murder, rape, forced labour and forced
relocation (Nash 2010: 229-30). In Nigeria, Shell was accused of com-
plicity with the Nigerian military to suppress peaceful protests of the
Ogoni people through rape, killing and detention without trial (Kinley
2009: 154; see pp. 28-9). Both oil companies settled out of -court,
Corporations now make calculations concerning 'human rights risks',
against which they can be insured, as part of their business plans. They
weigh the risks of bad publicity against the financial gains to be made
by doing business in ways that may lead to violations of human rights.
ATCA cases are a way of raising the 'risk' side of that calculation in
terms of the damage that can be done to a company's reputation if it is
found guilty of human rights abuses in a US court. On the other hand,
it is extremely difficult to bring such cases, and they have rarely been
conclusive in legal terms. ATCA can only ever be a last resort; it cannot
provide the basis for regular enforcement of international human rights
law concerning corporations (Kinley 2009: 193).8
Given the difficulties of finding legal remedies to human rights abuses
in which corporations are involved, the less formal tool of 'corporate
 Taming transnational corporations 105

social responsibility' (CSR) has become a way to make corporations more

susceptible to pressure from human rights advocates. Technically CSR
involves corporations regulating themselves; it is voluntary, and it is
popular with business and governments for this reason. In practice, how-
ever, CSR is just one element in a process by which corporations' activities
are monitored by NGOs and wrongdoing is brought to public attention
by the media. CSR can even be understood as a continuum, with cor-
porate codes of self-regulation at one end, and their incorporation into
government regulation at the other. For example, the UK now requires
pension funds to declare whether they are taking social, environmen-
tal and ethical considerations into account· in making their investments
(Gond et al. 2011). Such regulation is 'soft'; it does not make corporations
accountable in court, but it does go beyond civil society monitoring, set-
ting up procedures that may make it more difficult for governments to be
complicit with corporate abuses of human rights abroad. ·
It is on the grounds that it is 'soft', that it is a substitute for law at
the international level, that CSR has been criticised. Since 2000 the UN
has tried to make up for the lack of international human rights law
regarding corporations with its 'Global Compact', which sets out ten
principles with which public bodies, local networks and corporations
should comply, drawing on various international agreements concern-
ing human rights, labour rights, the environment and anti-corruption.
However, no monitoring or enforcement mechanisms have been put in
place to accompany these principles. To comply with the compact com-
panies have only to submit a brief 'communication of progress' report
and to enter into dialogue with the secretariat if they raise an 'integrity
matter' Critics argue that companies are effectively gaining endorse-
ment by the UN simply by declaring their allegiance to principles of
good practice, without making any real commitment to follow them
(Bruno and Karline 2000).
There is no doubt that in some cases moral pressure can be effective
in ending corporate abuses of human rights, especially where it impacts
on commercial self-interest. There have been notable successes in
shaming corporations into giving up human rights abuses, such as the
campaigns against sweatshops run by Nike and Reebok in the 1990s
(Kinley 2009: 179-86). The biggest human fights international non-
governmental organisations (INGOs), including Amnesty and Human
Rights Watch, are now very much involved in 'corporate watch', and
combined with media pressure they can make a difference. However, it
" 106 Humanising capitalism

is unsurprising that it is pressure on food and clothing manufacturing

that has been most successful, since these are sectors where 'brands' are
especially valuable. Such pressure is much less likely to be effective in
extractive industries and infrastructure projects, in part because such
companies do not rely on their brand names in the same way. These
are also, of course, projects that can only be sited in specific places,
which may be unstable or under the jurisdiction of predatory states in
which governments encourage conflict for their own purposes (Wells
and Elias 2005: 143-4). It has also been suggested that, with notable
exceptions (like Tata), the big corporations that are emerging from
China, India and Brazil will face far less international and domestic
pressure than American and European companies over human rights ·
issues (Kinley 2009: 151-2). Certainly these countries face enormous
challenges in terms of poverty and inequality, and so there may be less
inclination for civil society organisations to monitor TNCs that benefit
the domestic economy. In the case of China, of course, the develop-
ment of civil society organisations is itself very difficult. On the other
hand, transnational corporations based in these states are emerging
from historical traditions of socialism and paternalism that mix gov-
ernance and markets in ways that are unfamiliar in the Northwest. It
may be that we will see new demands made on globalising corpora-
tions, for philanthropy, or for care of workers, for example, rather than
the disappearance of CSR altogether (Prieto-Carron et al. 2006; Gond
et al. 2011).

Protecting rural ways of life

···················································································································
For local communitarians what is ultimately most important is to pro-
tect ways of life that are threatened by capitalism: by the building of
big development and infrastructure projects, mining, deforestation, and
intensive fishing and agriculture. Indigenous peoples' movements and
peasants' movements are concerned with 'cultural rights': with pre-
serving traditional ways of life in rural areas. In 2007, UN experts esti-
mated that for the first time in history more people were living in cities
than in the country, and the rural exodus is set to continue (UN 2007).
Nevertheless, this makes for a very high proportion of the world's popu-
lation that still lives in rural areas. Indigenous peoples' and peasants'
movements are trying to reverse the ongoing rural exodus, as people
 Protecting rural ways of life 107

leave or are pushed out of the countryside to escape hunger and des-
pair and to make a better life for themselves (though once they arrive
in cities, they will join the millions of people who arrived before them,
and who are barely getting by in shanty towns and slums). Local com-
munitarians support those who claim human rights to alternative, sus-
tainable development, and argue that they should be an example to the
rest of the world.
In recent years indigenous peoples have gained rights at the national
and international level. In 2007, after decades of campaigning, the UN
Declaration of Rights of Indigenous Peoples was finally ratified by most
countries in the world - with the notable exceptions of the United
States, Canada and Australia (though Australia subsequently endorsed
it). At both national and international level, by far the most important
indigenous claims concern issues of autonomy and the stewardship of
sacred lands without which it is impossible for people to sustain their
distinctive ways of life. What is most difficult for indigenous peoples
is to get claims to land recognised or respected in practice, especially
where those claims come into conflict with development priorities. The
Narmada dam project has come to symbolise these conflicts world-
wide. It involves the submersion of vast areas of land on which over
200,000 adivasis and subsistence farmers live to provide water to states
in Northwest and Central India. There has been a very high-profile
national and international human rights campaign against the pro-
ject, and several rulings by the Indian Supreme Court. There was also
a reversal of policy on the part of the World Bank in 1993, which
withdrew the loans it had been making to the Indian government to
build the Sardar Sarovar dam on the grounds that the benefits it was
supposed to produce were not clear enough to justify the environmen-
tal damage and the displacement of people it involved. Nevertheless,
the Sardar Sarovar dam is now built, funded by the Gujarat state and
the Indian government The people affected have been resettled, but in
conditions where they can no longer live communally by small-scale
farming. There are another 30 dams planned for the Narmada River,
and resistance continues.9 This situation is replicated around the world
where there are conflicts over land between indigenous peoples and
states that prioritise economic development over existing ways of life.
Dispossession of land, poverty, violence and the criminalisation of pro-
test are a continuing reality for indigenous peoples, and in the vast
majority of cases it is as yet unclear precisely how theycan use rights at
108 Humanising capitalism

the local and national level to make a difference in practice (UN 2009;
Morgan 2011).
According to Edelman and James, small farmers are following indi-
genous peoples in claiming rights to culture to preserve traditional
ways of life (Edelman and James 2011: 94-5). Small farming is threat-
ened by neo-liberal globalisation, led by corporate activities and state
policies, and co-ordinated by the WTO since the .mid-1990s, that makes
it increasingly difficult for small farmers to live off the land. The pres-
sures include increased export-oriented, chemical-intensive, contract
farming (for supermarkets, and increasingly of biofuels that replace
oil), the 'dumping' of agricultural surpluses by Northwestern states
that have been produced as a result of state subsidies, and growing
speculation on land and on food as commodities. In countries subject
to structural adjustment programmes since the 1980s, small farmers
lost state-guaranteed prices and access to low-interest loans. For those
who have to buy at least some of their food, a rural way of life is also
threatened by the volatility of global food markets, which resulted in
a food crisis in 2008, and which is tending to raise the cost of food
generally around the world. It is estimated that 80 per cent of people
who are malnourished live in rural areas (Seitz and Hite 2012: 78).10
It is on the basis that their way oflife is threatened that Via Campesina,
an INGO based in Latin America, argues for peasant-centred alternative
and sustainable development. It argues that limiting large land-holdings
and guaranteeing the rights of small farmers to own land and to make
use of unproductive state-owned land are solutions to the immediate
problems of the poorest rural people, and will contribute to stable and
sustainable food production for everyone. It proposes a UN Declaration
on the Rights of Peasants that includes rights to own and use land,
to participate in decision-making at international and national levels,
and 'to reject interventions that can destroy local agricultural values'.
Via Campesina's vision of alternative and sustainable development
is centred on what it calls 'food sovereignty'. By 'food sovereignty' it
means the development and protection of environmentally sustainable,
small-scale, local and national food .production. 'Food sovereignty' is
a militant concept, put forward to counteract the UN ideal of 'food
security'. According to the UN's Food and Agriculture Organization,
'food security exists when all people, at all times, have physical and
economic access to sufficient, safe, and nutritious food that meets
their dietary needs and food preferences' (Edelman 2012: 437). There is
 Protecting rural ways of life 1.09

nothing in this formulation about how food is to be produced, nor who

participates in deciding how land should be used to produce it. In other
words, 'food security' is compatible with the neo-liberal agriculture
that has brought about the food crisis and that, Via Campesina activists
argue, is fundamentally damaging to the ways of life of small farmers."
The model of alternative development that is put forward by Via
Campesina and by indigenous peoples is quite different from that envi-
sioned by global social.democrats. It requires a very high degree of
government control over markets, with extensive planning and control
not only over the limits of markets, overwhat is traded, but also over
how food is to be distributed according to need. For local communitar-
ians respecting the cultural rights of people to rural ways of life means
withdrawing from transnational markets in money and technology as
well as food: governments should be building national self-sufficiency
and the production and consumption of products should be devolved as
far as possible to the local level.
One of the main difficulties for local communitarians is that very few
governments around the world now see agriculture as key to develop-
ment, so that small farmers find themselves politically and socially, as well
as economically, marginalised. It is worth noting in this respect that Via
Campesina is strongly linked to the Brazilian landless workers movement,
but even here, where it is grassroots and militant and where the govern-
ment has been receptive to its demands, its gains have been limited. Sue
Brandford reports that when President Lula, who had strong links to the
Movement of the Landless in Brazil, was elected president in October 2002,
thousands of families moved into camps in the countryside and occupied
big unproductive estates, sure that they would now benefit from the mas-
sive programme of land reform that would be enacted. Eventually, some
families were settled legally on land they had occupied, but despite the
government's repeated support of land reform and of rural workers, far
fewer have legal title than they expected. In many cases, squatters are
farming these lands, in a sense realising their social and economic rights in
practice; but they do not have legal titles (Branford 2009: 163-5). In fact,
in recent years it seems that government policy in Brazil has moved much
further in the direction of promoting industrial agri-businesses to deal with
problems of chronic rural poverty and hunger and away from redistribut-
ing land to small farmers (Araujo 2010).
It is. movements in Latin America that are leading the world in claim-
ing cultural rights to preserve rural ways of life. Indeed, what I am
 11 0 Humanising capitalism

calling 'local communitarianism' is often called 'buen vivir' - living

small-scale, in harmony with nature, outside the influence of trans-
national markets of money, technology and goods. Throughout the
1990s indigenous peoples' movements met with some success: most
countries in Latin America now have multicultural constitutions that
allow a degree of autonomy to indigenous communities to manage
their own affairs. It is on this basis that Via Campesina is mobilising
its claims for small farmers. At the same time, however, governments
in Latin America that construct themselves as radically 'socialist for
the twenty first century', explicitly against capitalist development led
by TNCs, are in practice putting in place 'neo-extractivist' economic
policies that undermine the rights of indigenous peoples and small
farmers. 'Neo-extractivism' is so-called because it is continuation of
colonial economic policies: when raw materials were shipped to the
Europe to be turned into manufactured products which were then sold
for far greater profits. 12 Although mining, deforestation and mono-
culture of crops like soybeans and wood are now often carried out
by industries that are nationalised (oil in Venezuela and Bolivia, for
example), or at least controlled to a far greater extent by national
governments, neo-extractivist industries are very far from enabling
national economic self-sufficiency: they create products for sale on
international markets and, very often, they involve foreign invest-
ment, infrastructure building, and importing technology and expert-
ise too. With respect to the protection of cultural rights to rural ways
of life, 'neo-extractivism' is immensely environmentally damaging, it
destroys ways of life as people are displaced from subsistence farm-
ing and forests, and it is often associated with violence against those
. who resist it. If Latin American governments, which explicitly name
themselves as socialist and multicultural, have strategies for economic
growth that are based on such capital intensive, export-oriented and
environmentally damaging practices, there would seem to be very little
hope for indigenous and peasant farmers' rights anywhere (Gudynas
2010; Acosta 2013).

Human rights beyond neo-liberalism

·······················································································································
Organisations and movements that frame inequalities and pov-
erty in terms of social, economic and cultural rights are just part of
 Human rights beyond neo-liberalism 111

counter-movements against neo-liberal market fundamentalism -

alongside trade unions, nee-Keynesian economists, left-of-centre
political parties, environmentalists and a host of others. The logic of
capitalism may be the complete marketisation and commodification of
all aspects of social life, but it is resisted from a multitude of directions.
Whether or not a more just and human-centred global economy is pos-
sible, however, and the role that human rights advocacy may play in
bringing it about, are open questions.
Both global social democrats and liberal communitarians advocate
the strengthening of states to realise social, economic and cultural
rights. For global social democrats the aim is to strengthen states to
enable them to exercise greater control over markets in capital, labour
and goods: to provide a degree of stability for investors as well as
employees; to increase the resources at their disposal for public goods
such as education and health-care; and to enable them to provide a
reasonable standard of well-being and security for people who are not
in paid work. In terms of global trade what is needed is regulation that
is fair rather than 'free': that enables developing economies to protect
'infant.industries' (as the United States and Europe did when they were
developing their economies, and still do today) and crucial food sup-
plies, whilst the markets of highly industrialised countries are opened
up to imports in order to promote genuine competition. A fair taxation
system that would close tax havens and offshore banking, and that
would raise taxes . on wealth is necessary. And flows of money should
be slowed down (by a Robin Hood, or Tobin, Tax) to prevent it being
diverted from investment in productive industries, to discourage the
enormous inequalities in wealth being generated by financial specula-
tion, and to stabilise national currencies and banking systems. Finally,
'odious debt', which has benefitted bankers and not the people who live
in states to which it was loaned, should be dropped to enable govern-
ments to spend more on promoting economic growth and protecting
people from global mar~ets.13
Global social democrats do not believe that globalisation necessar-
ily means a 'race to the bottom'. It need not mean undercutting wages
and workers' conditions. How people fare within states depends on
national public policies. IFis and TNCs have put pressures on all
states to liberalise their economies since the 1980s, but these pres-
sures have been quite differently dealt with in different countries.
In the United States and Australia neo-liberalism has led to massive
, 112 Humanising capitalism

changes in social provision, while in Denmark and Germany state

protection for workers and citizens remains strong (Doogan 2009).
South Korea stands out as an example of a previously authoritarian
state which, now it has achieved a high level of development, has
introduced state protection and social provision, in part as a response
to pressures of globalisation and the Asian financial crisis (Scholte
2005: 198).
Historically social democracy has only ever been realised in a small
handful of states. It has been states at the metropolitan 'core' that have -
as a result of pressure from social movements, unions and political
parties - provided social rights for workers and economic support and
social security for those outside paid work. This does not necessarily
mean that social democratic states are impossible elsewhere. Sandbrook
et al. have studied the very particular conditions of what they see as
the relatively successful welfare states 'of the global periphery': Costa
Rica, Kerala, Mauritius and Chile. However, uneven capitalist devel-
opment which creates and depends on inequalities may mean that
social democracy is not possible everywhere at the same time: as some
national economies develop comparative advantages over others, there
will inevitably be movements of capital to more profitable regions. In
fact, Sandbrook et al. argue that these economies are much more vul-
nerable than larger European states to being undermined by foreign
investment today. They are similar to welfare states in Scandinavia and
Europe in that they offer the comparative advantages of peace, stabil-
ity and good infrastructure. However, their workers are not skilled and
educated enough to compete with those in the Northwest, whilst rela-
tively high wages, good working conditions and high taxation make it
difficult for them to compete with states that offer much cheaper labour
and tax breaks (Sandbrook et al. 2007: 32-4).
Local communitarians and global social democrats share the aim of
bringing national economies under democratic control through state
regulation. Ultimately, however, they have different visions of how
human rights should be realised. At times these visions clash. Whilst
for global social democrats capitalist investment can be managed to
enable democratic, human-centred economic growth, local communi-
tarians are opposed to industrialisation and foreign investment. In rural
areas investment in industrial agri-businesses and in mining to extract
natural resources displaces people who already live at the very margins
 Human rights beyond neo-liberalism 113

of their societies: indigenous peoples and small farmers. What becomes

then of their human rights to stay where they are and to continue to
live in ways they value? On the other hand, if their cultural rights are
respected, what is the effect of not allowing development projects that,
with proper regulation and state regulation, could have the effect of
improving the social and economic rights of those who cannot support
themselves and their families by living off the land?
In a sense this has been the dilemma for governments in Latin
American countries that have taken the route of 'neo-extractivism'.
Eduardo Gudynas, inventor of the term 'neo-extractivism', is highly
critical of the choices that have been made by left-wing governments
in Latin America to invest in mining and agri-business on the basis
that they are neglecting ideals of 'buen vivir' Gudynas acknowledges,
however, that unlike previous administrations that oversaw national
economies built on exports of raw materials, the governments of Brazil
under Lula, Argentina under Kirchner, and Morales in Bolivia have
used tax revenues and income from 'neo-extractivism' to build social
programmes that transfer wealth to poor families. Gudynas seems to be
opposed to these programmes on the basis that they pacify resistance
to 'neo-extractivism: But where governments are using wealth to build
education, health-care and social security, might we conclude rather
that there is an inherent conflict of values between local communitar-
ianism and social democracy? Gudynas is in favour of local communi-
tarianism, but perhaps social democrats have a point when they argue
that transnational markets, properly managed, can be to the advantage
of most people.
The 'tragic dilemma' represented by the differences between global
social democrats and local communitarians may not be quite as stark
as the choice that has to be made for or against military intervention
to prevent genocide that we looked at in Chapter 4 - though for people
who are displaced by development and neo-extractivist projects, it is
just as immediate. It is a real dilemma nevertheless. Humanising cap-
italism involves planning at international, national and local levels.
In order to plan, governments need a vision of how society should be
organised, and how markets are to be shaped and limited. Although
global social democrats and local communitarians are allies in cam-
paigns against repression and for social and economic rights up to a
point, ultimately the visions of local communitarianism and global
114 Humanising capitalism

social democracy are not compatible. The danger then is that argu-
ments for 'buen vivir' become as marginalised as the small farmers and
indigenous people local communitarians take as exemplary. Although
global social democracy is certainly more benign than neo-liberalism,
it may be just as damaging for those who do not fit mainstream ideals
of development.
 rights documents,.,~,,, , , , , , , , , , , , {, ,·, , , , , ., , ,"'··.
PqUtifilRights (l½fJR!l})a~dthe International Covenant on Econo=

-i~8~1~Sfii~
themi {Edwards 2011: 51-64). The UDHR, ICCPR and lCESCR practitally
never mention women explicitly, and they are above all com::errl~fflk .
what happens to people in the public sphere, as a resultofact!~ities
. <~hd policies carried out on behalf of the state. The priv~t~ domestic
· ~phere of the family, whkh has at least as much impact on how women
·. jfe controlled and. exploited, is constructed in foundational human
rights documents ~s a place of natural, family relations, somewhere
that is itself in n~~ of 'protection'.
It was not until the 1990s that feminists came to the question, 'Are
women's rights human rights?'. The women's movements of the 1970s
and 1980s took little interest in human rights. In the Northwest, radi-
cal and socialist-inclined movements were more concerned with raising
consciousness and finding new ways to live in egalitarian and liberated
116 Women's rights are human rights

ways outside the nuclear family than with changing laws and policies.
Women's movements in what was then called the 'Third World' also
had their own concerns, different in different national and regional
contexts. Even when the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) was signed and ratified
in the 1970s, as a result of the efforts of people involved in the UN
Commission on the Status of Women that dates back to 1946, it seemed
too limited and bureaucratic to hold much appeal (Reilly 2009).
The question 'Are women's rights human rights?' emerged along-
side the building of a new consensus amongst feminists and women's
organisations that the answer could and should be 'yes'.1 In large part
this was due to the UN decade of women, which brought thousands of
non-governmental organisations (NGOs) together at global conferences
beginning in Mexico in 1975. Initially activists clashed over priorities and
strategies. Women from the South found women from . the North pat-
.

ronising: unable and unwilling to understand the importance of global

inequalities in women's lives. Eventually it seems that a focus on violence
against women enabled agreement, and a plan of action was drawn up
at the Fourth Women's World Conference in Beijing in 1995. NGOs could
agree that violence against women was a very serious problem every-
where andthat it took many different forms around the world.2
Defining violence against women as a violation of human rights is a
way of representing women's rights as fundamental, of the same level
of importance as torture, imprisonment without trial, disappearance
and extra-judicial execution.3 Although since the Vienna Conference
that was held by the UN in 1993 human rights are supposed to be indi-
visible (all are supposed to be equally important and necessary for
the enjoyment of each other), in fact, rights to 'physical integrity' are
often treated as more fundamental than others. Rights to life, freedom
from imprisonment without trial, torture and slavery are sometimes
calledjus cogens or 'peremptory norms', meaning that they may never
be overruled or ignored, even during times of war or national emer-
gency (see Alston and Goodman 2013: 163-5). It is actions by agents
employed by the state, however, that are expressly forbidden: the right
to life is the right not to be deprived of life by the military or police,
the right to be free from torture is the right not to be subjected to
pain in processes of interrogation by soldiers, police or prison guards.
Traditionally, then, fundamental rights to physical integrity have been
developed with men in mind (Charlesworth and Chinkin 2006). The
 'Gender violence' at the UN 117

violence women suffer, which is far more likely to be carried out by

'private individuals' - family members, members of the community or
strangers - than by state agents, had been completely ignored in inter-
national human rights law.
In the twenty years since feminists asked the question 'Are women's
rights human rights?' much has changed. Women's rights have been
'mainstreamed' at the UN. As we shall see, even the resolutions of the
Security Council now show some awareness of women's rights. In this
respect the kinds of problems that are raised by constructions of human
rights that we have looked at in previous chapters are now equally
important with regard to women's rights. Women's rights raise all the
difficulties of nee-imperialism, elitism and empty bureaucratic proce-
duralism that we have considered with respect to other constructions of
human rights. Because the violence women suffer is more likely to take
place outside the state, however, in the 'private' sphere of the family
and the neighbourhood, constructing women's rights as human rights
also raises very particular difficulties. Creative constructions of human
rights in cultural politics outside the bureaucratic procedures of IGOs
and states in which women's 'Organisations are involved offer insights
into the possibilities, and the limitations, of human rights today.

'Gender violence' at the UN

····················································································································
Gender violence is violence against women because they are girls and
women.4 The term covers a wide range of abuses. Most violence against
women is not committed by agents of the state. Rape and other forms of
violence may be used as forms of torture or punishment by police, prison
guards or soldiers. But rape, murder, domestic violence, sexual assault at
work, enforced slavery and prostitution: these are most commonly com-
mitted by 'private' individuals and groups. In addition, some forms of vio-
lence are just as likely to be committed by women as they are by men. This
is the case with regard to what are often called 'harmful customary prac-
tices: Female genital mutilation (FGM) is typically carried out by women,
for example, as part of rituals that accompany girls' coming of age, their
transition to womanhood. Other gender violence, like honour-killing and
dowry murders, may also be carried out with the collusion of women who
fear that their family status or wealth has been damaged by the behaviour
of other women and that they must be punished.
118 Women's rights are human rights

As a result of pressure from transnational feminist and human rights

networks, women's rights as human rights have been 'mainstreamed' in
the UN. In the UN report on the Beijing conference mainstreaming was
called for 'so that, before decisions are taken, an analysis is made of the
effects on women and men, respectively' (Otto 2010: 100). The idea of
mainstreaming is that women's rights to freedom from violence should
become as uncontroversial as fundamental human rights that apply
more generally to men.5
In her review of how violence against women is treated in inter-
national human rights law, Alice Edwards argues that all treaty bodies
of the UN do now take it into account. Edwards argues that women's
issues are no longer sidelined in the 'Women's Committee' that moni-
tors CEDAW. All the treaty bodies now report back on states' respon-
sibilities to end gender violence against women when advising on
country reports. They also respond to individual petitions that are made
by women bringing complaints against their states for failing to pre-
vent gender violence or provide redress for victims. Even the Security
Council has been willing to consider violence against women as a threat
to international peace (Edwards 2011).
'Mainstreaming' women's rights as human rights could be seen as an
immense achievement given the complete neglect of violence against
women at the UN until recently. This is not, however, how it is seen
by most feminists involved at the UN. Edwards argues that ratherthan
challenging the perception that human rights are actually men's rights,
mainstreaming has subtly reinstated the gendered hierarchy of inter-
national law: what happens to men at the hands of state agents is still
taken to be more important than what happens to women at the hands
of family members and others. The problem is that advocates of wom-
en's rights must fit definitions of gender violence into criteria that were
developed to deal with violence by state agents. It is always a stretch
to adapt these criteria to gender violence, and Edwards argues that it
is therefore impossible for women's rights to gain the status of (men's)
fundamental human rights (Edwards 2011).
Edwards outlines two main ways treaty bodies have adapted estab-
lished human rights law to cover gender violence. The first is by showing
that states discriminate against women when they do not exercise 'due
diligence' to prevent gender violence or to provide redress for victims.
Discrimination on the basis of sex is prohibited by all UN conventions.
Treating gender violence against women as discrimination emphasises
 'Gender violence' at the UN 119

that protecting everyone is states' responsibility, even when it is not the

brutality of prison guards, soldiers or police that is at issue. It is complex
to show that there has been discrimination in the observance of a treaty.
A two-step process is necessary. Advocates have to show that violence
was carried out on women because they are women, or that it is violence
that affects women disproportionately. Then they must show that the
violence was ignored pr condoned by police, the courts, and/or in public
policy and law. It is necessary, in other words, to show that gender vio-
lence is systematic, and that it is tolerated by the state. Given that vio-
lence against women is under-reported and under-recorded, this can be
extremely difficult. In comparison it is only necessary to show that state
officials have been involved in one case of torture or murder to decide
that there has been a violation of human rights. Nevertheless, there have
been some cases in which the case for understanding gender violence
against women as· sex discrimination has been made quite successfully.
Edwards gives the example of a CEDAW report on a series of abduc-
tions, rapes and murders of young women in the Ciudad Juarez area of
Chihuahua, Mexico in 2005. The Women's Committee found that hatred
and misogyny were the root causes of the violence, and that they had
been going on for over a decade without anyone being convicted of the
crimes. The report also made it clear that the state had a responsibility to
combat discrimination against women, not only in assisting the families
of the women killed but also with 'specific policies on gender equality'
(Edwards 2011: 187-8; see also Alston and Goodman 2013: 198-201).
In addition to the practical difficulties of addressing gender vio-
lence against women as sex discrimination, Edwards argues that to do
so is symbolically more complex than a straightforward denunciation
of violations of human rights. It seems counter-intuitive, she says, to
think of the violence that women suffer as wrong because it is dis-
crimination, rather than because it violates fundamental human rights.
Discrimination is controversial in a way thatjus coqens norms are not. It
is notable that CEDAW has a large number of reservations against it. All
UN conventions allow states to put reservations against at least some of
their articles, to opt out of certain aspects of the provisions, as long as
opting out does not go against the core purposes of the convention. The
vast majority of state reservations on CEDAW concern customary, reli-
gious and family law. Effectively they are reservations that enable states
to opt out of eliminating discrimination against women - the purpose
of the convention - in matters concerning marriage, child-rearing and
 120 Women's rights are human rights

family relations. Reservations against CEDAW aim to protect the dif-

ferences in roles, and rights, of men and women that sustain structures
of gender inequality (Coomaraswamy 1994). Edwards argues that most
of these reservations are not legal, and they have been criticised by the
Women's Committee. But states have not been asked to systematically
review the reservations they placed on CEDAW when they ratified it
before it came into force in 1980 (Edwards 2011: 50). In a sense, then,
framing gender violence as discrimination adds levels of complexity and
controversy, rather than framing it as unequivocally wrong (Edwards
2011: 179-97).
The second way women's rights have been mainstreamed in treaty
bodies has been by considering gender violence against women as like
violations of human rights that are widely agreed to be fundamental.
In effect, this strategy aims to have violence against women considered
as a breach of ajus cogens norm. Considering rape as torture began in
the 1990s in relation to the tribunal that was set up to try war crimes,
genocide and crimes against humanity in the Former Yugoslavia under
international humanitarian law. 6 Subsequently, rape that is committed
outside armed conflict has also been defined as torture by the com-
mittees that monitor the ICCPR and the Convention Against Torture.
However, Edwards describes the approach to rape as torture at the UN
as inconsistent and superficial. Feminists have argued that many forms
of gender violence against women can · be likened to torture because
they are intended to control and intimidate by inflicting pain, physical
and psychological (Copelon 1994). But according to Edwards, though
the UN Human Rights Committee and the Committee Against Torture
have equated rape with torture in a few cases, they have not presented
reasoned arguments to show why rape (and not other forms of violence)
is like torture, nor under what conditions (Edwards 2011: 216-62). They
have treated rape as exceptional, as 'special', without trying to show
what makes it so horrific. Under these circumstances, Edwards argues,
it seems unlikely that rape will come to be perceived as a violation of
human rights that is just as serious as torture.

Neo-imperialist feminism?
·····················································································································

While feminists at the UN continue to find women's rights marginalised

in international human rights law, at the . same time there is growing
 Neo-imperialist feminism? 121

criticism of what Janet Halley calls 'governance feminism'. According to

Halley, feminists and feminist ideas are now part of global governance.
By global governance she means not just legislation and policy-making,
but also the way experts working for NGOs and IGOs have won author-
ity to influence the development of international human rights law
(Halley 2006: 341). Far from powerless and marginalised, Halley rep-
resents feminists as .influential in international non-governmental
organisations (INGOs), at the UN, and in charitable foundations and in
governments. As such, according to Halley, feminists are valid targets of
criticisms: they may be elitist, technocratic, and the way they construct
women's rights may have colluded with and furthered a specific vision
of US national interests since the end of the Cold War.
One of the main areas of criticism of governance feminism as
nee-imperialist is in relation to humanitarian intervention. Karen Engle
argues that feminists - like other 'human rights hawks' at the UN - have
contributed to the idea that humanitarian intervention is justified where
violence against women is systematic. As an example Engle discusses
an article called 'Women's September 11th' published by Catherine
MacKinnon in 2006 in which she asks why humanitarian intervention
can be justified to protect men from violence carried out by other men
(when both sides are engaged in armed conflict) when systematic vio-
lence against women in armed combat continues to be ignored. In terms
of her contribution to international law, MacKinnon made the case in
the early 1990s that rape in Bosnia should be considered genocidal
because Serbian soldiers were targeting Bosnian women to achieve their
aim of 'ethnic cleansing'. In the International Criminal Tribunal for the
Former Yugoslavia (ICTY) some soldiers were prosecuted and convicted
of rape as a crime against humanity. Engle considers MacKinnon's focus
on horrifying atrocities to be problematic because it contributes to the
kind of 'emergency thinking' that make calls for 'something to be done'
virtually irresistible. At the same time focus on whatis happening 'right
now' allows people in the Northwest to ignore longer-term structural
problems in which their states have been implicated (Engle 2007).
In fact, there is now an international legal agreement that women
should be protected from gender violence in situations of armed con-
flict. In 2000 the Security Council passed what is considered the land-
mark Resolution 1325, the first to deal with women, security and peace.
Article 10 of this resolution requires state parties that sign it to take 'spe-
cial measures to protect women and girls from gender-based violence,
122 Women's rights are human rights

particularly rape and other forms of sexual abuse, and all other forms
of violence in situations of armed conflict'. The resolution also, however,
has several articles on the importance of including women as active par-
ticipants in building peace. Historically, peace has been a central concern
of many women's organisations. As Dianne Otto points out, there is a
range of feminist voices and positions on women, war and peace that are
represented in the organisations that lobby and advise the UN Security
Council (Otto 2010; see also Cohn 2008). Given that 'humanitarian inter-
vention' is so highly contested (as we saw in Chapter 4), even after the
agreement on the Responsibility to Protect in 2005, and that getting
agreement on it is so complex, it seems very unlikely that where femi-
nists had any influence at all they would all speak with one voice. The
complexities of winning a resolution to intervene to protect any civilians
would not be reduced by considering the views of feminists concerned
with violence against women. There would surely be some feminists 'for'
and others 'against' if protecting women against sexual violence were to
be raised as a real option at the Security Council.
The second area of controversy over feminists in global governance
is the amount and the direction of funding for combatting gender vio-
lence since the 1990s. Janet Johnson notes that in Russia alone, mil-
lions of dollars funded women's organisations between 1997 and 2006.
Some came from the EU, Scandinavian countries and the UN, but the
vast majority came from the United States: from the government and
from philanthropic organisations like the Ford Foundation (Johnson
2009: 57-60). This was the period following the collapse of commun-
ism and the Soviet Union. Johnson suggests that the United States
Agency for International Development was part of the foreign policy of
the Clinton administration: a way of securing US interests in the former
rival superpower. Funding NGOs could be seen as 'soft' US imperial-
ism: as an attempt to remake Russian society from within, to 'build dem-
ocracy' to safeguard the region for US security and prosperity. Johnson
argues - in contrast to Keck's and Sikkink's analysis of US funding in
Latin America as helping to create a 'boomerang effect' - that so great
were the flows of funding and expertise into Russia during this period
that the relationship between foreign money and local organisations
was more like 'catch': '[gjlobal actors (donors, transnational activists,
and governments) tossed the ball (funds, norms, diplomacy) at Russia
(activists, policy-makers, social workers, and law enforcement officials)
and waited to see if Russia would drop it' (Johnson 2009: 155).
 Neo-imperialist feminism? 123

A number of problems have been identified with international funding

to human rights organisations that are relevant here. They reiterate the
more general problems of NGOs we looked at in Chapter 2. First, where
it is the only source of income to which organisations ~ and often also
the individuals who work for them - have access, funders can impose
priorities that are quite different to the work people see as important
locally and nationally: According to Valerie Sperling and her colleagues,
the end of communism in Russia saw a flourishing of women's organi-
sations concerned with a range of issues. Many women's activists in
Russia in the early 1990s saw crime, corruption and the collapse of the
welfare state as more pressing problems than violence against women
(Sperling et al. 2001: 1169; see also Hyrcak 2002). Second, funding can
contribute to what is sometimes called the 'NGO-isation' of politics. It
is only credible organisations that receive funding: those that are for-
mal, hierarchical and bureaucratic. This can be problematic where such
organisations displace more fluid, inclusive and responsive grassroots
activity, and political organising becomes dependent on professionalism
and expertise (Alvarez 1998; Menon 2004: 219-20).
However, NGO-isation is not a simple one-way process in which
the poorest women always lose out. In fact funding creates a situ-
ation where what counts as an NGO itself becomes a matter of pol-
itics. As Dorothea Hilhorst found in her study of NGO-isation in the
remote highlands of the Phillipines in the mid-1990s, in practice
funding can give some scope to women with informal claims on
those who are employed by NGOs, especially as funders often make
'reaching the grassroots' a condition of donating money (Hilhorst
2003). In addition, from their fieldwork in Latin America in the late
1990s, Maxine Molyneux and Sian Lazar found that NGOs tried
to select donors who shared similar values, and who would allow
them to pursue strategies for longer-term structural change not just
short-term projects. In fact, Molyneux and Lazar found that some
NGOs welcomed the new focus on gender that was being imposed
on all NGOs at this time, arguing that as a result many people who
had been resistant to thinking about women were now 'beginning to
change their way of seeing reality' (Molyneux and Lazar 2003: 97).
On the other hand, Sperling and her colleagues found that the vast
amounts of funding flowing into Russia in the 1990s had the effect
of dividing organisations from each other, creating competition and
personal jealousy (Sperling et al. 2001).
124 Women's rights are human rights

Despite the dangers of international funding, Johnson argues that

money that went to NGOs to deal with rape and domestic violence in
Russia did have some valuable results. For her, the important question is
not where funding comes from and why, but whether and how it is effect-
ive. Johnson argues that up until 2002 many NGOs were able to make
use of the funding in ways that were productive for women. Adapting
the norms and models that came from transnational feminist networks
(in which, of course, many Russian women were themselves involved) to
the local context, funding enabled women's organisations to help women
resist and escape violence in the home. In particular, the crisis centres
that were set up before 2002 were very useful to women. They followed
the 'global model' in that they provided shelters for women to leave
homes in which they were subject to violence, as well as offering legal
help and public education on domestic violence. They were also respon-
sive to the particular needs of the women they served, emphasising the
housing needs of women in Russia at this time, for example, where it
was often abusive husbands who were registered as having the only legal
entitlement to the family home. In this way, Johnson argues the crisis
centres worked on immediate problems as well as the more long-term
goals of altering gendered hierarchies (Johnson 2009: chapter 3).
On the other hand, and using the same terms of evaluation, Johnson
considers US funding following 9/11 to be much more problematic. This
funding was focused on combatting people trafficking · and enforced
prostitution. After 2001, the Bush administration was concerned above
all with the securing of borders in Eastern Europe and elsewhere against
flows of money, weapons and people associated with international ter-
rorism. States that did not comply with US standards were threatened
with economic sanctions: the termination of non-humanitarian and
non-trade related aid. In addition, US aid was denied or withdrawn
from women's organisations that were seen as supporting the legalisa-
tion of prostitution - principally as a result of pressure from religious
groups. Many of the crisis centres that had been funded by the United
States had to close down or commit themselves to campaigning against
prostitution (Johnson 2009: 60-3). Prostitution is a difficult and div-
isive issue for feminists. There are those who feel very strongly that any
form of prostitution involves violence because sex cannot be sold as a
commodity - and anyone who thinks they are choosing to· do so freely
is mistaken. In contrast there are others who think that prostitution
can be a form of work, and all workers should have rights - especially
 Vernacularisation 125

Thomas argues, many people probably take a mid-way position (pros-

titutes should have rights, even if they are mistaken in thinking that
they have freely chosen their line of work), the division amongst femi-
nists made.it particularly difficult to engage with the Bush administra-
tion, which had its own agenda in pursuing anti-trafficking (Thomas
2006: 349-58). In this instance, it seems that US funding that was
ostensibly to be used to combat gender violence actually resulted in the
harassment and imprisonment of women who may, or may not, have
been trafficked into prostitution. At any rate, as Prabha Kotiswaran
argues, the flow of US funding surely altered 'national conversations'
everywhere as positions became polarised, sex worker organisations
came under increasing pressure, and organisations pursing an aboli-
tionist line with regard to prostitution were strengthened (Kotiswaran
2006: 370-1; see also Kapur 2005). Johnson argues that Russian wom-
ens' organisations, supported by transnational feminist networks, did
make some impact on domestic legislation regarding prostitution. She
also suggests, however, that the heavy-handed approach to sex traf-
ficking resulted in a nationalist backlash in Russia against foreign
intervention (Johnson 2009: chapter 6).
Criticisms of feminist constructions of human rights are very similar
to criticisms of human rights in general: advocating human rights no
longer involves supporting those who are resisting abuses of power;
claiming human rights also comes from within powerful organisa-
tions. Claiming women's rights no longer involves just moral authority.
Where human rights advocates are making use of the moral and mater-
ial resources of institutions like the UN and states, they are engaging in
Politics with a capital 'P'. Halley surely over-states the case when she
suggests that feminists have a 'will to power' that they do not acknow-
ledge, disguising it by adopting a victim status (Halley 2004). Feminists
have certainly achieved footholds in the making of international human
rights law and public policy. But feminists do not all take the same pos-
ition, even at the UN. And although feminists have far greater influence
than ever before, they do not control the way in which women are rep-
resented in the making of international human rights law.

Vernacularisation

In this section we will look in some depth at a third criticism of advo-

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126 Women's rights are human rights

is constructed at the UN, and how it is to be understood if women

are to enjoy human rights in practice. 'Culture' is especially important
to women's rights because the violence women suffer is often closely
linked to how gender and sexuality are structured. That is to say, much
of the violence that women suffer is not really exceptional. It is on a
continuum of how women are assumed to be inferior in various ways,
and as therefore rightly, and for our own good, as in need of pro-
tection and instruction from men. This means that violence is often
normalised - even by women who have been subject to terrible bru-
tality - as a matter of punishment and control that is justified by their
own inadequacies and imperfections as women. The cultural politics of
human rights, the construction of violence against women as wrong,
must therefore go far beyond matters of governance through IG0s and
states, policy-making and law. If human rights to freedom from gen-
der violence are to be realised in practice, advocates must address how
men and women understand themselves as gendered: as human beings
who have particular relationships to others in ways that are invariably
normalised by being male or female, masculine or feminine.
There are two main ways in which 'culture' is linked to neo-imperialism
by critics of women's rights. First, framing violence against women as a
'human rights wrong' tends to be at the same time a construction of some
cultures as backward. Sally Engle Merry argues that activists and offi-
cials at the UN tend to work with outdated and unhelpful conceptions of
'culture', seeing it in essentialist terms as fixed, bounded and uniformly
repressive for women (though at the same time she found that cultural
differences and variety are, paradoxically, also considered to be valu-
able in themselves). Women are seen as 'prisoners of culture'. The Beijing
Platform for Action, for example, states that 'Violence against women ...
derives essentially from cultural patterns, in particular the harmful effects
of certain traditional or customary practices and all acts of extremism
linked to race, sex, language or religion that perpetuate the lower sta-
tus accorded to women in the family, the workplace, the community
and society'. It is common to refer to 'customary practices harmful to
women and girls' in UN documents.on gender violence (Merry 2006: 64).
'Culture' is seen either as 'traditional customs', which supposes that some
people are the inheritors of a history that is untouched by the effects of
imperialism and capitalism; or as 'national culture', which neglects the
enormous differences and range of understandings within a state's ter-
ritorial boundaries - especially between the educated representatives of
 Vernacularisation 127

nations who participate at the UN and the very many others who do not.
In either case, 'culture' is associated with 'tradition' and with violence
against women that can, and should, be eradicated through processes of
modernisation: through law, regulation and education.
The essentialist view of culture - or rather cultures - as bounded
and complete is shared both by those who advocate women's rights
and those who oppose women's rights on the grounds that traditions
must be defended. According to 'cultural relativists', ideals of human
rights are Western: they impose a set of values that women from other
cultures do not accept and do not want to live by. It is this kind of
reasoning that is embedded in reservations to CEDAW, when states opt
out of eliminating discrimination in the family on the basis that com-
munities - which of course include women - have their own religious
and customary law. Human rights advocates fmd cultural relativism
unacceptable because it justifies precisely the 'harmful customary prac-
tices' to which they are opposed. From the perspective of human rights
advocates, cultural relativism is the same as indifference to violence
that should be intolerable to anyone. The difference between cultural
relativists and women's rights advocates is that the latter do not see
human rights as 'cultural', but as universal: appropriate to all human
beings. It is the failure of human rights advocates to acknowledge
that human rights are also 'cultural' - what Marie Dembour calls the
arrogance of universalism - that enrages those who see 'culture' used
only to denote what are considered primitive, backward traditions (see
Dembour 2001; see also Cowan et al. 2001).
Merry's concept of 'vemacularisation' suggests a way to analyse con-
structions of human rights that does not begin either from the assump-
tion that values are always and necessarily either relative to cultures,
or that they of the same importance to every human being regardless
of their background. The concept of 'vemacularisation' is similar to
the way we are thinking about culture in this book in terms of polit-
ics, emphasising that social constructions are created, sustained and
transformed as they are lived in everyday practices. Merry argues that
human rights activists appropriate global norms and models to bring
about change within states, but they must also translate them into
terms that make sense to people who live in quite different situations.
At the same time, human rights will only be useful as long as they
continue to challenge existing norms. In other words, human rights
cannot become too close to local understandings, because they then
128 Women's rights are human rights

risk losing their critical force. Meny argues that what human rights
mean must stay close to the framings of international law, to individual
rights to protection of the body from violence, to choice, and to equal-
ity. Human rights can only work insofar as, drawing on international
norms that emphasise the freedom of the individual and the obligations
of states, they are able to disrupt local, established common sense. They
must displace local understandings of kinship, religion and commu-
nity whilst being intelligible in terms people understand in order to be
genuinely useful (Meny 2006).
What this means in practice is that an emphasis on womens' free-
dom to choose their relationships must be embedded in 'common sense'
assumptions about what it is to be a gendered human 'being. This is
the second way in which critics link 'culture' and women's rights to
neo-imperialism. It is precisely the emphasis on autonomy, on the free-
dom of women as individuals to choose how they will live their rela-
tionships with others, that those who are suspicious of human rights
see as most problematic. Radhika Coomaraswamy, the first UN Special
Rapporteur on Violence Against Women, names the kind of person
constructed in international human rights law as 'the Enlightenment
individual'. This is a woman who defines herself as a free; choosing
individual, rather than through her connection to family, community
or religion (Coomaraswamy 1994; see also Meny 2006: 220-1). It is an
image with which few women in the world would identify, and which
many - perhaps especially those who see religion as a source of strength
in difficult times - would reject outright (see Abu-Lughod 2013).
'Vernacularisation' suggests that the 'translation' of international
human rights norms does mean seeing oneself in some ways as an
'Enlightenment individual'. Framing violence against women as a mat-
ter of human rights is meant to raise questions that are not otherwise
considered important in everyday life. It is meant to challenge the ways
in which women are prevented - and women do not allow themselves -
to choose relationships that are not abusive. Dealing with and escaping
violence, even in the family, need not, however, mean giving up on
relationships in which women find themselves. On the contrary, 'ver-
nacularisation' means adapting strategies to combat violence against
women to particular conditions and contexts, to particular ways in
which women live - as all humans do - in relationships with others.
Women's movements in India offer a valuable example of 'vernacu-
larisation'. Indian feminists are attentive to differences in what women's
 Vernacularisation 129

society. At the same time; the women's movement in India has been work-
ing to encode the ideal of 'the Enlightenment individual' in Indian law.
A democracy since the 1940s, with a constitution that is in many
ways exemplary as encoding human rights, India also has a plural-
ist legal system in which Hindu, Muslim, Christian, Jewish and Parsi
communities have their own family laws governing marriage, divorce,
inheritance, maintenance, guardianship, succession and custody. It is
on this basis that the Indian government filed a reservation against
Article 16 of CEDAW: government officials undertook to end discrim-
ination against women as long as those measures were compatible with
'non-interference with the personal affairs of any community without
its initiative and consent' (Meny 2006: 105). The women's movement in
India had long campaigned against religious family laws, and for a uni-
form secular code to secure equal rights for women. But this changed in
the 1980s with the rise of Hindu nationalism, which has used the issue
of women's rights to attack Muslims as backward and oppressive. It is
not that feminists in India now accept that different religious commu-
nities must live by different laws. It is rather that for political reasons
they have decided to pursue less divisive strategies. Some maintain that
to focus on legal reform is misguided altogether because the law is inef-
fective at best, dangerous at worst (see Menon 2004). We will explore
some of these arguments in the final section of this chapter. But those
feminist organisations in India that do try to reform law now focus on
codes of feminine virtue that date from the British Empire in Victorian
times. One example is the law against 'outraging the modesty', which is
the only legal redress for women if they are sexually assaulted in India.
'Outraging the modesty', as it is dealt with in Indian courts encourages
judges to give attention to ideas of 'womanly propriety', 'shame', 'chas-
tity', 'decency', 'freedom from coarseness, indelicacy and decency' in
addressing the validity of a women's case. It focuses attention on wom-
en's behaviour on the assumption that any deviation from accepted
norms of femininity is unacceptable and legitimates predatory mas-
culine sexuality (Kannabiran and Kannabiran 2002: 82-3). Rajeswari
Sunder Rajan sees legal reform feminists as challenging codes that con-
struct sexuality as dangerous to women and replacing them with law
that values the 'Enlightenment individual' constructed by transnational
feminist networks: the aim is to win recognition in law of women's sex-
ual autonomy and rights to bodily integrity (Rajan 2005: 127).
At the same time, maintaining relationships is very important to
130 Women's rights are human rights

are being harmed, it seems that women in India very rarely seek divorce
(Merry 2006: 155). What women do contest is that they are 'rightfully'
under the command of husbands who treat them violently. To be able
to remain in their homes whilst escaping, or at least reducing, the vio-
lence to which they are subject, women in India try to engage organisa-
tions outside the family. They bring to bear a range of methods: from ...
reporting to what are called 'dowry' police stations (though they deal
with domestic violence more broadly than the name would suggest), to
involving 'women's courts' and 'women's councils', which are groups of
women who travel from place to place in rural areas trying to name and
shame and alter the behaviour of men who abuse their wives. Although
women's courts are unpaid and do not involve professionals, they do
use official, headed notepaper, they call on police, and they cite laws
that forbid violence against women. Ultimately their authority is not
backed by the force of the state; it is informal: they do not bring cases
to state courts, but they do cite laws to support their actions. Research
by the International Center for Research on Women found that women
who had been helped by these organisations had a sense of rights and
'were able to speak up' (Merry 2006: 156-7).
The question of whether people are ever freely choosing individuals
is a philosophical one (see Butler 2005). In reality there is no one who is
self-sufficient for the whole of their life. There are of course differences
in how people see themselves as individuals. Some. societies, and some
sectors of all societies, are more individualist while others are more com-
munitarian: more oriented towards the group, towards shared values and
activities. In all societies families tend to be seen in communitarian terms
to a greater or lesser extent. But the form that is taken by 'the family', who
it includes, what is expected of its members in terms of obligations and
its relevance, or otherwise, to public life, varies enormously at different
times and places. In Northwestern societies, the question of individual-
ism as a consequence of de-traditionalisation has been widely discussed
in sociology (Beck and Beck-Gernsheim 2001). And whether the idea of
the 'autonomous person' or individual is appealing, whether it should be
repudiated, or whether it might usefully be accommodated without either
being accepted or rejected outright - these are all ongoing debates else-
where too.' Ideals of the individual and its limits will surely continue to
be quite differently constructed around the world given the very different
contexts and histories out of which such debates emerge. The ideal that
women should be free from violence is an issue in the cultural politics of
 The gendered limits of law 131

human rights through which what it is to be a person - which is always to

be in some kind of relationship to others - is currently being constructed
and reconstructed.

The gendered limits of law

.............................................................................................................................

How human rights are effective, and what they mean to most people -
including women suffering gender violence - depends far more on
how they are taken up locally and nationally than it does on agree-
ment between state officials at the international level. Nationally
based NGOs, bureaucrats and lawyers understand gender violence, and
develop strategies for dealing with it that draw on international agree-
ments, models and resources. They may bring pressure to bear on their
states using those agreements. Ultimately, however, beyond legal and
policy changes, making violence against women unacceptable depends
on changing gendered structures in everyday life.
We have been discussing the various ways in which law and bur-
eaucratic procedures are limited as a resource for achieving human
rights throughout this book. These limitations are very evident when
we consider gendered structures that sustain violence against women.
In states that are close to the ideal type of the post-colonial state, many
people are afraid of the law and it is difficult, even dangerous, to try
to have it applied to deal with gender violence. In India, one of the
most important and long-standing campaigns of women's organisa-
tions has been against the sexual violence to which women are quite
regularly subjected by the police (Coomaraswamy 1994; Rajan 2005).
In states that approximate juridical states, women generally have rights
that are formally equal to those of men in law as a result of feminist
campaigning, but this does not necessarily make it easier for women
to make use of law to take control of their lives. Making use of state
agencies can be especially problematic for women who are seen as
belonging to racialised minorities and for those whose legal status as
migrants is unclear or who do not have rights to remain in the territory.
Even for white women who are citizens and whose formal rights are
dear, the law is not always benign. The way in which the law codifies
conflict between the innocent victim and the guilty perpetrator can
be problematic. It is an opposition that does not always sit easily with
women's own understandings of the violence they experience, however
132 Women's rights are human rights

unacceptable it may be. As a consequence women are often reluctant

to turn to the police and courts. Where domestic violence is concerned,
for example, women often say they want to end the violence and keep
the relationship. As a consequence, women whose partners have been
charged with violence towards them often decide not to press charges,
or to withdraw charges before they reach court. As Merry notes, this
does not make women ideal, rational subjects in the eyes of the police
and the judiciary who may as a consequence treat women who try to
involve them to stop violence as lacking seriousness and as unworthy
of respect (Merry 2006: 189-92; Goldfarb 2011).
Perhaps the most glaring example of the limitations of the law in
terms of the binary opposition of victim and perpetrator is female geni-
tal mutilation (FGM, or, more neutrally, 'female genital cutting'). FGM
is illegal in most countries of the world, including throughout Africa,
but it is still very widely practised and it is rare that the women who
carry it out are prosecuted. The types of cutting involved in FGM vary
from a pin prick in the clitoris to infibulation, generally carried out on
older children, which involves the cutting of the labia, allowing it to
heal through scarring, and the creation of a small hole for urine and
menstruation. Infibulation leads to problems for women's health when
they come to have sex and to give birth. Although infibulation seems
cruel to those outside the communities in which it is practised - espe-
cially as it is carried out on children - the opposition between guilty
perpetrator and innocent victim is not so clear-cut in these cases. Those
who carry out FGM, and who have it done to their children, do it for
reasons of love, not hate. The reasons people give for continuing the
practice are tied up with the belief that a girl cannot become a proper
woman without the ritual of FGM, they will not find a husband, and
their lives will be ruined as a result. Marie Dembour has traced some of
the cases that have been taken to court in France, one of the few coun-
tries in Europe in which women have been prosecuted for carrying out
FGM. The accused have accepted thatthey have broken the law - they
knew FGM was illegal - but their defence lawyers have represented
them as unable to avoid breaking it. The argument in their defence is
that people should feel sympathy for the decisions they must take in the
difficult situation in which they find themselves, rather than condemn-
ing them outright. This does not necessarily mean that there should be
no law against FGM. Making FGM as such illegal (rather than having it
covered by other offences, like assault) is surely important symbolically
 The gendered limits of law 133

as a standard to which societies aspire. It may be more appropriate,

however, to try to make rituals of transition to womanhood less dam-
aging· through education and health-care, through persuasion rather
than by criminal prosecutions that do not address the root of the prob-
lem and that punish people whose intentions are misplaced in law but
supported by the families and communities in which they live (Dembour
2001; Gunning 2002}.
Finally, law can always be enforced in conservative ways, and this is
perhaps especially likely where sexuality is, or appears to be, an issue.
Indeed, what 'progressive' and 'conservative' mean can be highly prob-
lematic when it comes to gender violence. As an example of the con-
servative interpretation of women's legal rights that appeared to be
progressive, Ratna Kapur relates a case in which the judges in the High
Court of Mumbai ruled in 1999 in favour of a victim of rape. On the
face of it the ruling looks progressive: not only was the woman's right
to redress where she had suffered sexual violence upheld, the judges
did not insist on circumstantial evidence to support the prosecution;
they took her word for it that she had not consented to sex with the
accused. Proving that a victim did not consent to sex is often a prob-
lem in rape cases because juries do not like to convict men accused
of rape where there is the slightest doubt. A good deal hangs on how
'consent' is interpreted. In many cases anything less than evidence that
a woman resisted with all her physical force is taken as indicating that
she did consent and later changed her mind, falsely accusing the man
of rape. Despite the fact that they were not conservative in this respect,
however, Kapur argues that the interpretation of the law given by the
Mumbaijudges (one of whom was a woman) was problematic for wom-
en's rights. The judges ruled that supporting evidence was not required
to prove rape in India: the woman's word was good enough because
'an Indian woman attaches the maximum importance to her chastity'
(Kapur 2005: 113-14). As Kapur points out, although the victim no
doubt received legal justice, the problem is that the case was won at the
expense of confirming constructions of gender that work against equal-
ity between the sexes: women are seen as worthy of justice only if they
are virtuous; authentic victims. In addition, sexuality is seen as espe-
cially dangerous to women. The judgment, and indeed the judges' sum-
ming up, made it quite clear that if women are not chaste (if they are like
West.em women), they cannot be believed: it is understood that because
of the value placed on women's chastity in India such women are likely
134 Women's rights are human rights

to lie if they are found in a 'compromising situation' in order to safe-

guard their reputations (Kapur 2005; see also Menon 2004: 130-1).
Women find it difficult to make use oflaw to take more control over their
lives and to gain redress for violence in all kinds of states. Reforming the
law is never enough, though it may be important symbolically - whether
it is a matter of gaining formally equal rights for women that are like those
of men, or of enforcing rights that women already have 'on paper: In add-
ition to legal redress what is necessary are agencies that support women
to confront violence: special police units, women's organisations that can
advise women about their rights and offer emotional support, accommo-
dation for those who have to flee their homes. But how genuinely willing
and able to help women are the people who work for state agencies likely
to be without changes in the gendered structures of everyday life? Where
women are not respected, where the particular difficulties of the situations
in which they find themselves are not recognised, and where families and
communities - even women themselves - are inclined to think that they
brought the violence on themselves or that it was in some way necessary
as a punishment or in order to regulate women's sexuality, it is extremely
difficult for women to try to take control of violent relationships that may
affect them very personally.
The cultural politics of defining women's rights to freedom from
violence as a human rights issue involves steering a difficult course
between cultural relativism/indifference and universalist arrogance;
between the 'horror' of some forms of violence that are truly shocking
and the fact that gendered sexuality is not only lived as violence - it is
also about pleasure, love, communication; and between the banality of
many forms of violence against women, its use as a means of regulation
and chastisement, and the fact that this ties it in to relationships that
women themselves want to preserve as intrinsically valuable. Tackling
violence against women need not be done through the language of
human rights: there are other ways of condemning violence against
women. Constructing violence against women as a violation of human
rights has some symbolic force - though, by the same token, it is also
resisted as Western imposition. It enables activists to put pressure on
states, and - at least sometimes - to make use of international resources,
of ideas and expertise as well as of money. Perhaps above all, the notion
of the autonomous, choosing individual that is encoded in international
human rights is part, if only part, of what is necessary for women to ref-
use and remake relationships of violence in which they find themselves.
 leave behind them, it is not
of human rights: people flee their homes
attacked by armed militias or of being
from their homes and livelihoods by devel-
damage; they move to find a better
way of life for themselves and their families, trying to escape poverty,
ill-health and economic insecurity; and they flee violence that is threat-
ened or that they have suffered at the hands of state agents or from
which their state has .faile>d to nmtiort th,:.m (.;iv,::,n th.:1t n""nnl .. .:,,re
136 Do migrants have rights?

suffering from poverty, lack of opportunities and violence in some parts

of the world, very often their reasons for moving to another country
are mixed. In terms of the human rights they may enjoy migrants fall
into quite different legal categories. In Europe and North America,
authorised migrants are workers who have been recruited for their
skills, people who have come legally to join other family members, or
who have been granted political asylum as refugees or who are waiting
for a decision on their application for asylum. If they are not author-
ised, migrants are 'irregular': they are living and working illegally -
they have overstayed their visas, they have not left or been deported
though their asylum claim has been rejected, or they have never been
registered as entering the country at all. Elsewhere, especially in the
states around the Persian Gulf and the 'Asian Tigers', migrants are
recruited as unskilled workers and considered to be living only tempor-
arily there - even though they very often seem to consider themselves
as settlers (Ruh 2013: 11 ). Where people find themselves in camps man-
aged by the United Nations High Commissioner for Refugees (UNHCR)
their legal status is clear - they have been classified as refugees - but
their immediate and longer-term prospects of enjoying anything more
than the most minimal human rights are very uncertain.
International law covering migrants' rights has been developing
since the UDHR. In principle, migrants should be entitled to all the
human rights covered by the major Conventions, the International
Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR). According
to these Conventions all human beings living in the territory of a state,
irrespective of their national origin and whether they are migrants or
citizens, must have the same rights.2 Migrants' rights have continued
to be neglected, however, to the point where a separate Convention
covering them was felt to be necessary at the UN. The Convention on
the Protection of the Rights of All Migrant Workers and their Families
(CPRAMW) eventually entered into force in 2003, and it now has a
Committee that explicitly addresses states' treatment of migrants
around the world. Very few states have signed the Convention, how-
ever - it is the least ratified human rights treaty in the UN - and all
those that have done so are countries from which migrants typically
move. None of the states that receive large numbers of migrants (in the
Northwest or elsewhere) have signed it (Grant 2011).
The most well-established international law with respect tom igrants'
Do migrants have rights? 137

It is far more limited than the ICCPR and the ICESCR in the range of
rights it accords to migrants. Above all, the 'Refugee Convention'
encodes the right not to be sent back to a country where a person
has a well-founded fear of persecution (often called the right of
non-refoulement). Typically asylum was conceived of as offering pro-
tection from persecution where a person was seen as an 'enemy of
the state': it was state agents they feared. In recent years NGOs have
campaigned against the conventional (male) image of the person suf-
fering persecution, and to have people who fear gender violence from
which their state does not protect them (women in some countries, and
also gay men) included as eligible for asylum (see Bhabha 1996, 2002).
These campaigns have had some success in the United States, Canada
and the UK (Musa lo et al. 2011 ). What is most striking, however, are the
difficulties that must be overcome by anyone who seeks refugee status.
In fact, although globalisation generally concerns the facilitation
of flows across borders, the regulation and securitisation of borders
against flows of human beings is more highly prized than ever. In large
part, as we shall see, the control of migration is a product of framings
of state sovereignty. However, control of migration also, at least in
part, represents attempts by public policy-makers to manage popular
sentiments concerning what people of different nationalities and eth-
nic backgrounds are due, and what they are worth. In the Northwest,
the role that is played by the mainstream mediain creating scares over
migrants as criminals, terrorists, or as simply too numerous - as 'flood-
ing' across borders and overwhelming national and local public ser-
vices and communities - cannot be over-estimated. Human rights may
be de-territorialised in principle, but in practice it is officials acting in
the name of states who decide migrants' fates. Migrants must be con-
structed as bearers of human rights in a world that continues to be
structured by state sovereignty and the priority of 'national interests'.
In this chapter we will consider first the control of state borders as
raising a number of issues of human rights. Northwestern states recog-
nise the right to seek asylum, but since the 1970s, and especially since
the numbers of people seeking asylum in these states rose sharply in the
1990s, all these states have had public policies that are designed to keep
people out (Gibney 2005). The tightening of borders has had a nega-
tive impact on peoples' possibilities of actually enjoying human rights
in practice. We then consider the rights of migrants who have legally
settled in Northwestern states. We might expect that they would enjoy
 138 Do migrants have rights?

citizenship would seem to be a logical consequence of adopting inter-

national human rights law insofar as it abolishes the distinction between
citizen and migrant. There are now some aspects of EU policy that do go
some way towards post-national citizenship - but it remains a distant
dream for many migrants. In fact, what we will mostly be concerned
with in this chapter is how the regulation of migration creates human
rights .abuses. This is nowhere more evident than in the treatment suf-
fered by refugees in camps managed by the UNHCR.

Crossing borders: regulation without rights

·············································.········································································
Migrants cross state borders. In some places borders are 'porous'. The
border between Pakistan and Afghanistan, for example, runs through
high mountains, the people on either side of it often speak the same
dialect and identify as sharing ethnic origins and customs. It is a
border they are used to crossing, and it is virtually impossible to
police (Macleod 2008). In contrast, and especially since the events
of 9/11 in the United States, there has been a tightening of bor-
ders in many states, and concerns over security and terrorism have
risen up the agenda in the Northwestern states that dominate inter-
national policy-making. The securitisation of borders has had serious
impacts on migrants' human rights. It is important not to over-state
the novelty of this development. The right to enter a country was
never included in the human rights conventions of the twentieth cen-
tury: immigration remained under the control of the state parties to
these conventions in principle as well as in practice. In recent years,
however, there has been analysis of 'Fortress Europe': as borders have
been opened within the European Union they have been tightened
around it to keep people out. 'Fortress America' is also being con-
structed - literally in the case of the 'Border Fence' along the border
with Mexico - as the United States, once famous for welcoming the
'huddled masses' of the world at Ellis Island, becomes increasingly
difficult to enter, even as a visitor. _
The increased securitisation of borders is problematic for migrants'
rights to life. Most migrants actually cross borders legally (most irregu-
lar migrants overstay visas), but there are those who are desperate
enough to try to cross them without permission. People trying to get
to Europe from North Africa are loaded onto boats that cannot carry
 Crossing borders 139

them to their hoped-for destination, especially in bad weather. People

trying to cross the border from Mexico into the United States perish in
the desert (Golash-Boza and Menjivar 2012). All the clandestine routes
across borders are made more dangerous as a result of attempts to make
borders more secure when people are desperate and determined enough
to continue trying to cross them.
The securitisation of borders is one part of the 'non-arrival' meas-
ures Northwestern states are taking to try to make borders impossible to
cross without authorisation. These measures include vetting travellers at
airports to prevent people leaving their countries if there is a suspicion
that they may be trying to emigrate, and setting up detention centres
in countries of 'transit' (Spain and Italy have established them in North
Africa, for example, the UK and the Netherlands in Turkey, the United
States in Guantanamo Bay) (Troeller 2008; Flynn and Cannon 2010).
Mathew Gibney reports that in 2003 UK immigration officials prevented
Roma boarding flights to Britain in Prague, where it was understood
that they would claim asylum (Gibney 2005: 10). Such measures are
clearly at odds with the principles of the 1951 Refugee Convention and
with international human rights law. They effectively expand the bor-
ders of Northwestern states into the territory of other countries. How
can a person seek asylum if they are prevented from fleeing a state, or
from entering another? Although the Refugee Convention stops short
of giving people the right to enter a country of which they are not a
citizen, Article 13 does require states to recognise that people fleeing
persecution may have to enter another country illegally, without a visa
or a valid passport. What would otherwise be an illegal activity is jus-
tified by the Refugee Convention because of the situation in which the
person finds themselves. And indeed, illegal actions that people have
taken to escape oppression in the past are now celebrated: we have only
to consider the runaway slaves who fled the South of the United States,
helped by people in the 'underground railway'. Non-arrival measures,
on the other hand, are intended to prevent people crossing borders, to
enable the prosecution of the smugglers who help them, and even to
bring sanctions against the transport companies that do not prevent
them from travelling.
People who are caught crossing borders without authorisation are
punished. Crossing borders without a visa or a passport now invariably
results in detention in Europe and the United States where a person
cannot be· immediately returned to the country of which they are a
140 Do migrants have rights?

citizen. The right not to be imprisoned without due process is probably

the most well-established in international law. According to a ruling of
the European Court of Human Rights (Saadi v. UK 2008), however, it
is legal to detain 'asylum-seekers' for up to eighteen months, without
guaranteed legal representation, and with only a very tenuous right to
appeal against being detained, or against being deported once it has
been decided (Webber 2012: 136). In effect, to detain someone who is
seeking asylum is to treat them as guilty until they are able to prove -
against all odds - that they are innocent. Asylum-seekers appear to be
an exception to the absolute and fundamental human right not to be
imprisoned without trial.
In order to be granted the right to stay, asylum-seekers must over-
come suspicions that they are economic migrants, criminals, even ter-
rorists. In the UK (as elsewhere) the system by which they are required
to do this falls far short of the ideal standards of the law as impartial,
as administered in the same way for everyone in the same situation. To
be granted refugee status, you must show that you would have suffered
persecution had you remained in your country. Clearly this is difficult
to do: often, unless a person has already been subjected to violence
that has left lasting marks, the only evidence available is the person's
own testimony. The evidence is heard in special immigration tribu-
nals where it is accompanied by 'country reports' that detail ongoing
human rights violations and the groups that are most at risk of being
tortured or killed for their political activities, their beliefs, their ethnic
identity, or their gender and sexuality in different parts of the world.
In the great majority of cases, the reason a judge gives for refusing an
application is that s/he simply does not believe that an applicant is tell-
ing the truth - even if there are well-documented violations of human
rights going on in the countries from which they are fleeing. Given that
assessing asylum claims is all about the credibility of the person mak-
ing the claim, the context in which 'illegals' are judged is crucial, and a
good deal rests on a judge's personal feelings, their intuition about the
evidence before them, even their sense of what might actually count
as reasonable evidence concerning, for example, persecution in Iran or
the Congo. As a consequence, judgments in asylum cases are extremely
unpredictable. In fact they are so arbitrary that Toby Kelly argues that
asylum law cannot really count as law at all. It is a system designed to
deter applicants, and it pays only lip service to ensuring human rights
(Kelly 2011).3
 Crossing borders 141

Finally, 'the shadow of the border' is also felt inside Northwestern

states (Bosniak 2011). That is to say, states increasingly police migra-
tion within their own territories, trying to catch 'illegals' to deport.
Policing migration within states impacts on the human rights of citi-
zens as well as migrants. The most glaring example here is the way in
which Arizona effectively legalised racial profiling in 2010. Arizona SB
1070 made it a crime not to carry immigration documents, and gave the
police powers to stop and search anyone they suspected of being in the
country illegally. Those who were most subject to these measures, pre-
dictably, were Hispanics - whether or not they were citizens (Archibold
2010; Howe 2012).4 More generally, the securitisation of borders is
associated with increased surveillance and control for everyone. In the
UK a range of actors are now required to report on individuals so that
state officials can check for illegal migrants: marriage registrars are
required by law to report on 'suspicious marriages' between EU and
non-EU citizens; landlords who rent out private property may be asked
about their occupants; employees must check migrants' rights to work,
and cafes, restaurants and supermarkets that serve 'ethnic' food are
subject to spot checks; even college lecturers are expected to report to
the UK Border Agency if their foreign students miss classes (the col-
lege's licence to teach non-citizen students may be removed if they do
not) (Webber 2012). Effectively, policing migration 'in the shadow of
the border' means greater surveillance and control for everyone, and
racialised minorities especially are treated with suspicion, guilty until
proved innocent.
The control of borders by Northwestern states - their concrete terri-
torial frontiers but also the more abstract 'borders' within and outside
states - clashes with both the letter of international human rights law
and its spirit. Claims to asylum by people who make it across borders
are dealt with formally, according to the letter of refugee law, but the
public policies of these states are designed to keep people out, and many
of the practices of officials involved in monitoring border crossing also
work to this end. Politicians and publics fear 'floods' of migrants, it is
widely assumed that 'asylum-seekers' are really 'bogus asylum-seekers',
and crossing borders illegally is associated with criminality, 'human
trafficking' and terrorism. As a consequence, the law is administered to
regulate and manage migration, not to uphold human rights. Officials
sort, count and control people who cross borders, and the system is
designed to demonstrate to the adventurous or desperate that they
142 Do migrants have rights?

are likely to be punished, humiliated, even to lose their lives, if they

try to enter Northwestern states without authorisation. Guaranteeing
individual human rights is not the primary purpose of states' control
of borders. Human rights are far down the list of priorities for those
who manage the 'migration-asylum industry', and the securitisation
of borders has dangerous consequences for the human rights of both
migrants and citizens.

{Some) migrants into {post-national) citizens

···········································································································
Not all migrants who are non-citizens are without rights. Skilled work-
ers who have been recruited from other countries as scientists and tech-
nicians or to work in health-care; people who been granted refugee
status - judged by immigration authorities to be in fear of persecu-
tion if they are returned to the countries of which they are citizens;
and people who have been allowed to stay on the grounds of fam-
ily reunion: all these groups of people have rights in Northwestern
states. In fact, it is sometimes argued that because discrimination on
the grounds of national origin has been abolished for at least some
migrants in at least some places, we might think of citizenship itself as
becoming post-national.
It is especially within Europe that post-national citizenship is seen as
a real possibility. In the first place this is because European citizenship
is itself post-national. Although European citizenship is only allowed
to those who are already citizens of the member states of the European
Union, it does grant people rights that go beyond those of any spe-
cific national state. Above all, European citizenship enables people
to move to work in any member state without having to apply for a
permit. European citizenship has enabled the legal migration of hun-
dreds of thousands of people from Eastern Europe to work in Western
Europe since the accession of those states to the European Union in
the early twenty-first century, and there are also significant numbers
of young French people working a~d living in London, Italians in
Amsterdam, and so on (Castles et al. 2014). Second, all individuals
under the jurisdiction of member states of the Council of Europe (not
just citizens of those states) are entitled to respect for fundamental civil
rights. This means that people who are not European citizens (as well
as those who are) may take any member state to the European Court
 Migrants into citizens 143

of Human Rights to ensure that their rights are upheld. This is a long
drawn-out process (cases have to go through national court systems
first), and the results are not always satisfactory; but it does mean that
all those within the jurisdictions of European states have access to a
court beyond the national state in which they live (see Dembour 2006).
Third, with respect to the social rights of non-citizens, Yasemin Soysal
argues that drawing on discourses of international human rights non-
governmental organisations (NGOs) have won rights to housing, edu-
cation and social security benefits that are equivalent to those enjoyed
by citizens. Increasingly, Soysal argues, rights in Europe are attached
to personhood, enacted through the law and public policies of national
states for both citizens and non-citizens alike (Soysal 1994). According
to Christian Joppke, although Soysal was somewhat premature in draw-
ing this conclusion when she was writing in the 1990s, as a result of the
rulings of the European Court of Justice, which are binding on mem-
ber states of the European Union, states are increasingly required in
European law to treat citizens and legally resident non-citizens as the
same with respect to social rights (Joppke 2010).5 In fact, in general, the
project to make Europe into a united political (as well as an economic)
community is often seen as involving integrating states into peace-
ful co-operation and respect for human rights (Held 2004; Beck and
Grande 2007). Human rights can be seen as bringing 'we the people' of
Europe together to overcome the bloodiness of our recent history.
There are, however, reasons to be sceptical about the optimistic view
that European states are moving towards 'post-national citizenship'
in terms of equalising rights between citizens and non-citizens. First,
there are continuing inequalities in legal rights. Non-citizens who are
resident in a country (even where they are European citizens) have
nowhere gained the same political rights as citizens. Although migrants
within Europe have won rights to vote in local elections (and for mem-
bers of the European Parliament if they are European citizens), only
national citizens are allowed to vote in elections for national govern-
ments. This is a serious limitation if political rights to vote and stand
for office are valued as part of what it is to live in a democracy. Lack
of political rights for non-citizens can be seen both as a sign of their
marginalisation and as contributing to it. What is surely more imme-
diately worrying for non-citizens, however, is the insecurity of their
status. If non-citizens lose their employment or are convicted of a crime
they may lose their right to remain in the country in which they have
144 , Do migrants have rights?

made their lives. In the UK, non-citizens suspected of terrorist activities

who cannot be deported (ironically because they are in danger of being
persecuted by the state of which they are citizens) may find themselves
dealt with in secret immigration courts with far lower standards of legal
process than other courts. Non-citizens who have been through these
courts have been sentenced to a forrri of house arrest for several years,
with practically no possibility of proving their innocence.6 Non-citizens
may also have fewer rights to bring family members to live with them
than citizens. In this sense they have a kind of 'quasi-citizenship' status
(Nash 2009b). And even where the rights of quasi-citizens are protected
in law, it is hard to be oblivious to anti-migrant sentiment mobilised
by the media and politicians in Europe. Given these conditions, and
especially given that many countries . now allow dual citizenship, it
is unsurprising that many 'quasi-citizens' opt to become citizens by
naturalising, taking on the nationality of the country in which they are
settled (Kivisto and Faist 2007)
In addition, those who hope we are moving towards post-national
citizenship tend not to consider the situation of irregular migrants
who have no legal right to remain in the territory in which they live.
Although of course the figures are very uncertain, it was estimated that
there were 3.8 million undocumented migrants in Europe in 2011 (far
fewer than in the United States, where there were eleven million in
2011) (Morehouse and Blomfield 2011). This is a fall in numbers relative
to the early 2000s, and it is not an enormous proportion of the popu-
lation of Europe, which is 500 million. Nevertheless, what being an
irregular migrant means is quite dramatic in terms of human rights: it
means living without any of the legal protections most of us take for
granted. If you are an irregular migrant you will not have a legally
valid contract with your employer, and you will be negotiating hours
and conditions of work with someone who may know you fear deport-
ation (though they too may face criminal proceedings if they know-
ingly employ someone illegally); similarly, renting accommodation will
probably be a precarious arrangement; you may fear calling for emer-
gency care; you will not be able to drive legally, with a driver's licence
(a serious limitation in most of the United States); and you may be
exploited by people to whom you are indebted because they helped you
enter the country. Women employed as domestic workers in the private
sphere of the home, or who work in the sex trade (whether willingly or
not) may be especially vulnerable to exploitation and violence (Koser
 Migrants into citizens 145

Nevertheless despite these difficulties and dangers there have been

mobilisations of 'irregular migrants' - often calling themselves 'sans
papiers' in Europe - that have campaigned to have their situation regu-
larised: to gain legal protection for the lives they have established for
themselves. Some irregular migrants have been able to win a degree of
understanding and sympathy in the cities in which they live that enable
them to access services like education and health-care despite their lack
of authorisation (Nyers 2008). And in both Europe and North America
there have been collective amnesties in which millions of people have
been granted legal rights (Castles et al. 2014: 218-20). There are also
'mechanisms' of regularisation, bureaucratic procedures through which
individuals can try to prove themselves worthy of being granted legal
status. In the UK, for example, individuals who can show that they have
been resident for fourteen years, or seven years if they have children
enrolled at school, are eligible to win legal rights to remain in the coun-
try. European economies depend just as much on the unskilled work of
migrants - in agriculture, catering, cleaning and care-work - as on the
knowledge and expertise of those doing skilled work, and as birth rates
fall and the relative numbers of older people increase, this will become
even more evident. Regularising the situation of migrants makes sense
if the goal is ultimately to integrate people into the state; not just to
end the legal vulnerability of migrants themselves but also the crim-
inal activities of employers and property owners who take advantage
of them. On the other hand, regularisation is often seen as encour-
aging more illegal migration, and few politicians within states or at the
EU-level endorse it today (Brick 2011).
In fact, the relationship between migration and human rights can
be interpreted in quite the opposite direction to those who argue that
we are beginning to see 'post-national citizenship' developing in
Europe: migrants and human rights may be associated with injustice
precisely because both are seen as eroding citizens' rights. This fram-
ing of both human rights and migrants as destructive is very evident
in the UK. Although UK governments tend to be 'Euro-sceptic', the
UK is bound by European law. In fact, the European Convention of
Human Rights was incorporated into British law as the Human Rights
Act in 1998, giving the UK - for the first time in history - something
like a written national constitution. Since then, however, the populist
media - sometimes in conjunction with conservative politicians and
public figures - has run any number of scare stories linking the pro-
 146 Do migrants have rights?

rights imported from Europe. An example is this fragment of a speech

from a Tory minister, Theresa May, in 2011:

We all know the stories about the Human Rights Act. The violent drug
dealer who cannot be sent home because his daughter - for whom he
pays no maintenance - lives here. The robber who cannot be removed
because he has a girlfriend. The illegal immigrant who cannot be
deported because - and I am not making this up - he had a pet cat.

May later admitted that she got her information from a newspaper
report: the pet cat had actually been mentioned briefly in a court case
as one piece of evidence of the settled and permanent nature of a rela-
tionship, which was the main reason the man in question was allowed
to stay in the UK (Curtis 2011). The fact that May was able to make
such casually researched remarks - which were widely repeated across
the media - show just how problematic human rights have become in
the UK. In fact, the Conservative government is committed to repealing )

the Human Rights Act and replacing it with a 'British Bill of Rights' if
it wins the election in 2015. Rather than gaining respect and value by
being framed as the bearers of human rights, both migrants and human
rights have come to be trivialised and associated with injustice for
British people. There is contestation of the. framing of human rights as
opposed to national interests in the UK, especially through NGOs and in
the courts (Morris 2010; Nash 2010). But human rights are certainly not
celebrated by everyone in the UK and when politicians play to popu-
list sentiments about 'national interests' it is difficult for non-citizens
to frame the difficulties they face as 'human rights wrongs' in order to
gain respect and fair treatment.

United Nations refugee camps: humanitarianism

without rights
····················································································································
Up to now we have mostly been considering whether migrants
have human rights in Northwestern states. In a sense these are crit-
ical cases: they are states in which governments, bureaucracies and
courts are committed in principle and by their treaty agreements to
upholding international human rights law; they more closely resem-
ble the juridical state supposed by international human rights law
than anywhere else; and there are NGOs and 'cause lawyers' dedicated
 United Nations refugee camps 147

to defending migrants' human rights in these countries. Non-citizens

should be able to enjoy human rights in Northwestern states, given
these conditions. It is misleading to focus on Northwestern states,
however, if that leads us to suppose that the majority of migrants are
living there. In fact, the vast majority of migrants are in the territories
of states of the Global South. In this section, in order to get an idea of
the difficulties migra~ts face in gaining respect for their human rights
in the rest of the world, we will look at the situation of people who
have been granted refugee status, a group of people whose rights, in
principle, are protected by the UN and by international human rights
and refugee law.
In 2013, it was estimated that there were 38.7 million people 'of con-
cern to' the UNHCR. This number includes internally displaced persons
(IDPs) and people who· had returned to their homes after fleeing vio-
lence.' The majority of those who had crossed borders were in countries
immediately neighbouring armed conflicts. About 1.3 million people
had fled the conflict in Syria to Jordan, Lebanon, Iraq and Turkey.
There had also been mass displacements of people in central Africa,
fleeing conflict in Sudan and the Democratic Republic of Congo, mostly
to neighbouring countries Burundi, Rwanda and Uganda. Longer-term
refugees from Somalia and Sudan remained in Kenya, Uganda and
Tanzania. In terms of overall numbers of refugees in 2013, the countries
that had received most were Pakistan (with 1.6 million) and Iran (with
862,000), most of whom had come from Afghanistan, or had been born
to Afghan parents in exile since 1979. Palestinians remain the largest
(and growing) group of refugees, and they have been in exile the long-
est; they live in Jordan, Lebanon and Syria (though many there have
now been displaced or killed) (UNHCR 2013; UNRWA 2014).8
One of the biggest problems for the safeguarding of refugees' human
rights in the Global South is forcible encampment. In setting up and
managing refugee camps, the UNHCR, assisted by international non-
governmental organisations (INGOs) like Oxfam, CARE , the Red Cross
and Medecins Sans Frontieres, effectively acts as a kirid of supplemen-
tary state. The UNHCR takes over many of the functions of the 'host'
state, with which it formally works in partnership. It appoints officials
to sort out and categorise migrants, granting them a 'letter of protec-
tion' if they qualify for refugee status (with arbitrary outcomes similar
to those we have looked at in Northwestern states as a consequence
of ill-conceived and poorly managed procedures: it is not known how
148 Do migrants have rights?

many people fleeing their homes are simply turned back at borders).
The organisation takes charge of ensuring that the refugees' basic
needs are met, working with INGOs to provide food, shelter and vary-
ing degrees of health-care and education. And professionals employed
by the UNHCR represent the interests of refugees to 'host' governments,
'donor' states who provide its funding, and at the UN. Territorially dis-
tinct from the surrounding countryside, fenced off and identified as UN
operations by flags and logos, refugee camps even take on the look of
'states within states'; Verdirame and Harrell-Bond 2005; Slaughter and
Crisp 2008).
What human rights do refugees enjoy in camps? As an agency of the
UN, and as a supplementary state, the UNHCR could be expected to be
committed to safeguarding human rights - as indeed it claims to be on
its website and in its policy documents. According to international law,
once someone is granted protection under the 'Refugee Convention',
they have extensive rights, including to freedom of movement, employ-
ment on terms that does not discriminate against them as refugees,
and to seek redress for violations of their rights in law. This is in add-
ition to the full human rights to which they are in principle entitled
as a person - refugee or not - according to the ICCPR and the ICESCR
(Verdirame and Harrell-Bond 2005; Ferris 2008).
In fact, however, it seems that human rights are violated in refugee
camps as a matter of everyday routine. In their in-depth ethnographic
study of refugee camps in Kenya and Uganda in the 1990s, Verdirame
and Harrell-Bond found that people were prevented from leaving the
camps without permission - which could be very hard to obtain and
without which they were liable to be arrested as aliens and deported. This
made it practically impossible for people to work outside camps. In some
cases they were not being paid for work they did inside camps. Families
were separated - sometimes as a result of negligence, sometimes wilfully
by spiteful officials. In many cases people were not being allowed enough
food and they were suffering from malnutrition. Even peoples' rights to
life and to bask physical safety were not being respected: they were not
protected from violence by the police and armed bandits outside the
camp; nor from murder, violence and rape by people inside it. Verdirame
and Harrell-Bond found that the UNHCR was effectively allowing the
camps to be policed by armed militias, who were administering justice
according to their own rules, and who were also forcibly recruiting young
men and boys to join them, even abducting young women to be 'army
 United Nations refugee camps 149

wives: Numbers ofreported rapes (and of course many were not reported)
were very high, and Verdirame and Harrell-Bond found that when they
were reported, rather than safeguarding the human rights of the victims
or enabling them to seek redress, UNHCR officials often allowed 'elders'
to apply 'customary law'. The judgments and punishments that resulted
fell far short of international human rights standards. In one case, for
example, a Kenyan police officer was ordered to pay a fine to the father
of a teenager he had kept imprisoned in his house and raped over sev-
eral days. Nor were UNHCR officials simply negligent, Verdirame and
Harrell-Bond suggest, in allowing violations of human rights. In some
respects, UNHCR officials were themselves actively involved in those
violations. On one occasion, food distribution was stopped to all 40,000
people in a Kenyan camp to punish a small number who had rioted,
resisting a 'headcount' by UNHCR and NGO staff. In addition, according
to Verdirame and Harrell-Bond, bringing a complaint about any aspect of
treatment people had to put up with in the camps was extremely difficult
and when it did happen it could lead to further ill-treatment in retaliation
(Verdirame and Harrell-Bond 2005; see also Lischer 2005; Kagwanja and
Juma 2008; Kaiser 2008).
Verdirame and Harrell-Bond see many of the violations of human rights
to which refugees are subject as a consequence of encampment. Camps are,
they' suggest, 'total institutions', like prisons or asylums: the 'inmates' are
completely subject to the bureaucratic defrnitions and control of the staff,
and - in part as a reaction to the immense suffering which they are tasked
with alleviating - they become overwhelmed, even callous. As one UNHCR
staff member exclaimed as they were telling her about a woman they feared
would take her own life - pregnant from a gang-rape, whose family mem-
bers had all been killed - 'You know ... There are just so many of them!'
(Verdirame and Harrell-Bond 2005: 293). As advocates of human rights,
what Verdirame and Harrell-Bond see as missing above all in camps are
checks and balances, any possible means refugees might have of making
UNHCR staff accountable. Effectively camps are supplementary states but
there is no rule oflaw and they contain no courts or National Human Rights
Institutions, no public fora or media in which breaches of human rights
might be exposed and officials called to account. Without safeguards, refu-
gees are subject to arbitrary and unjust rules, to insecurity and danger, and
they are prevented from accessing what they need at the most basic levels.9
Other scholars who have studied how the UNHCR deals with refu-
gees are more sympathetic to the problems that are faced by its staff.
150 Do migrants have rights?

What is most obvious in this respect is that although the UNHCR acts
as a supplementary state in setting up refugee camps, it is only sup-
plementary. The UNHCR was set up to fit the state-centric structures
of the UN. It is states that retain sovereign control over their borders
and over the territories in which the UNHCR operates, and the UNHCR
is almost completely dependent on 'donor' governments for its fund-
ing. The organisation receives only a small subsidy annually from the
UN. For the work they do with refugees UNHCR staff must raise money
from 'donor' governments each year: it is the United States, the EU and
Japan that donate most money for work with refugees. Furthermore,
staff could not begin to assist all the refugees in need without the help
of INGOs, which also raise the money they need from donations. In a
sense, camps are not only the most obvious way of managing large
numbers of refugees who need immediate assistance with food, shelter
and medical care, they also make visible the human needs to which
donors are asked to respond with funding. In addition, the fact that
the UNHCR effectively depends on goodwill for its funding also means
that its officials find it difficult to be self-critical in public, or to criti-
cise the priorities or strategies of governments - whether donor or host
(Loescher 2001; Crisp 2003).
Set up within the state-centric structures of the UN, as well as being
dependent on 'donor' governments, staff at the UNHCR are constrained
by the priorities of 'host' governments. Today this means working with
refugees who are often seen in geo-political terms as a security threat
or as potential allies of the states that 'host' them. This is especially
the case 'in Africa. African countries were much more hospitable to
refugees in the 1960s and 1970s, but now refugees are associated with
armed conflict along borders that states often have difficulty in con-
trolling (Slaughter and Crisp 2008). In fact, refugee camps have become
militarised in a number of cases, often with the support of the 'host'
state. It is virtually impossible for the UNHCR to control the militarisa-
tion of camps.
The most dramatic example of refugee militarisation were the camps
in Zaire (now the Democratic Republic of the Congo) into which armed
Hutus -Tleeing the consequences of the genocide ofTutsis they had com-
mitted in Rwanda - drove refugees in 1994. The militias then used the
camps as bases from which to conduct further raids. According to Sarah
Lischer's research, officials of UNHCR and NGOs working in these camps
knew they were supporting war criminals by giving them food and allowing
 United Nations refugee camps 151

them to recruit and train new soldiers - effectively accepting them as camp
leaders in a 'don't ask, don't tell' policy. In part this fitted the humanitar-
ian framework of staff in camps who were committed to helping everyone
in need, not just 'the innocent: But the problem was also that the UNHCR
does not have the legal authority to use force on the territory of a sover-
eign state. At best the UNHCR can co-operate with the police and/or armed
forces of a 'host' state, or with UN peacekeeping forces if they are available
in sufficient numbers. In Zaire, President Mobutu more or less supported
the Hutus. According to Lischer, although Mobutu's army did make a token
gesture of disarming militias in the camps for the UN, their weapons were
returned to them shortly afterwards. Later, with the economic collapse of
his regime, and with the United States shifting its allegiance to the new
president of Rwanda, Paul Kwagame, Mobotu's army lost any possibil-
ity of controlling what happened around the borders of Zaire. Eventually,
in 1996, Rwandan-led troops dispersed the refugee camps on the borders
of Rwanda and Zaire, killing as many as 200,000 people in the process
(Lischer 2005).
For the most part, then, the UNHCR is limited to providing humani-
tarian assistance to save the lives of refugees in ways that are gen-
erally understood to be temporary at a time of 'complex emergency
situations' (Loescher et al. 2008; Calhoun 2013). In fact, many of these
temporary crises have been going on for decades now. In addition
to providing humanitarian relief to refugees, the UNHCR is also - in
principle - mandated to find what are called 'durable solutions' to the
difficulties it faces. Perhaps it is in finding solutions that refugees may
enjoy human rights?
The solution to the difficult situation in which refugees find them-
selves that is most favoured by the UNHCR is voluntary repatriation.
Many refugees have been able to go home - and have done so. For
others, however, home is still unsafe, or has changed so much that it
no longer seems like home at all. It is difficult to return when people
do not have the resources to begin their lives again. One of the major
difficulties for the UNHCR is that it is funded only for relief work, and
it has no control over decisions about development - whether by UN
agencies or by governments. At the same time, agencies that deal with
development in the UN are not directly concerned with the welfare of
refugees. In such a situation, when they have been in camps for many
years, refugees may even become dependent on the UNHCR, building
the resources it provides into their survival strategies (Crisp 2003).
152 Do migrants have rights?

The second possible durable solution to the difficulties of refugees is

integration into the 'host' state. This presents the obvious difficulty that
'host' states generally do not want refugees to stay. Those refugees who
do not live in camps are already somewhat integrated into localities in
their everyday lives, but this does not mean they are accepted, or that they
enjoy human rights. The plight of Afghans in Iran - some of whom have
been there since the Soviet invasion of Afghanistan in 1979 - is especially
telling.in this respect. Afghan refugees have been relatively integrated into
Iranian society, in part because of the government's resistance to inter-
national interference. The Iranian government has accepted very little help
from the UNHCR, and very few Afghans have been held in camps. They
have, however, been discriminated against as a group since the 1980s,
·····
allowed to work and live only where there are shortages of manual labour,
on construction sites and in agriculture (Macleod 2008). Even though
many Afghans speak Farsi, many are Shia Muslims, and they are pre-
sumably useful to Iranian businesses, the Iranian government now insists
they must leave - they cannot be naturalised as Iranian citizens even if
they were born there, and however long they have lived in the country. In
2013 Human Rights Watch reported mass deportations of Afghans from
Iran, with the aim of meeting targets that had been set by the president,
under conditions which fell far short of respect for their rights as refugees
(Human Rights Watch 2013b).
Finally, a third durable solution is resettlement in a third coun-
try, usually in the Northwest. Many of the conflicts that have forced
migrants to flee from their homes and livelihoods have either been
initiated by the foreign policies of Northwestern governments (like the
bombing of Afghanistan and Iraq), or they have been proxy wars in
which 'the Great Powers' have had a stake (as in the ongoing conflicts
in the Great Lakes region of Africa). The main difficulty here is that
Northwestern states only accept very small numbers of refugees for
resettlement. In fact, the United States is the only Northwestern state
that came in the top ten of countries receiving refugees in 2013 (tak-
ing an estimated 262,000 refugees) (UNHCR 2013). Given the very high
levels of public mistrust of migrants- in these countries and construc-
tions of asylum-seekers as 'bogus' in the populist media, it would be
very difficult for any government that was aiming to be re-elected to
accept larger numbers.
The UNHCR was created for humanitarian work: to provide 'care and
maintenance' to meet the immediate needs of refugees in 'complex
 The right not to have to migrate? 153

emergency situations', and to negotiate durable solutions with member

states of the UN. In order to fulfil their organisation's commitments, its
staff must raise money and compromise with state officials in ways that
leave little room for consideration of refugees' rights in international
law. The UNHCR and NGOs give refugees humanitarian aid, which is
charity not justice. In general the best refugees can hope for is decent
conditions in which, to live in exile, and the possibility of returning
home, sooner rather than later. In practice, in many cases even these
minimal hopes are not fulfilled.

The right not to have to migrate?

···························································································································
How people are treated when they are crossing borders without author-
isation or when they have crossed them to seek sanctuary or to create a
better life for themselves and their families is a test case for the cultural
politics of human rights. National laws generally permit non-citizens
to be treated less favourably than citizens, even though international
human rights law does not. In practice, migrants' rights are being con-
structed by NGOs and human rights lawyers in a world that continues
to be structured by state sovereignty and by increasingly determined
efforts to control and police territorial borders. As we have seen in this
chapter, it is a world in which what are framed in political rhetoric and
the media as the 'national interests' of citizens have led to the treatment
of irregular migrants and refugees as not really human at all. While
some migrants are able t6 gain the status of 'quasi-citizens' - a status
that gives them more rights than other foreigners but less than citi-
zens - many suffer the most extreme dehumanisation and violations of
rights in detention centres and camps, while others die trying to cross
borders.
It is precisely because migrants and human rights are de-territorialised
that it is so hard to construct migrants as worthy of human rights. It is
state officials that are in charge of public policies concerning how bor-
ders are patrolled and immigration managed and of ensuring that com-
mitments to international human rights law are respected. This does not
mean that states are monolithic, that state officials all think and act in
the same way. Courts in the Northwest have been far more responsive to
claims to better treatmentthat are framed in terms of migrants' human
rights than national governments (Nash 2009a; Morris 2010). And
154 Do migrants have rights?

Verdirame and Harrell-Bond found judges to be responsive to claims

for human rights in the tiny number of cases that refugees in milita-
rised camps managed to bring to 'mobile courts' in Kenya and Uganda
(Verdirame and Harrell-Bond 2005). Judges tend to frame refugee rights
differently from elected politicians who are far more likely to respond
to populist media portrayals of the dangers that migrants present to 'the
nation' and to the benefits of citizenship. There are such difficulties in
bringing cases to court, however, and (as we have noted in relation to
the unauthorised crossing of borders in particular) the administration
of law is often so arbitrary. and unpredictable in relation to migrants,
that it hardly seems to count as law at all. While some individuals
who are well represented in courts do win justice in specific cases, and
the pressure of NGOs is sometimes effective in changing public policy,
international human rights law enables the regulation, categorisation
and control of migrants rather than ensuring their human rights.
There is no easy solution to the problem of guaranteeing the human
rights of migrants given how the world is territorialised into states,
how borders are policed and fought over, and how difficult it is for
non-citizens to mobilise to protest their marginalisation. A simple solu-
tion that may seem logical is to open borders. But this is not really a
solution that will enable anyone's rights to be safeguarded. As Stephen
Castles notes, it is interesting that the ideal of open borders is shared
by nee-liberal economists, who are in favour of a free market in labour
across borders, business leaders, who are in favour of cheap labour,
and a small section of the Left, who see open borders as a way of
preventing the violation of migrants' human rights. It seems evident,
Castles argues, that markets for unskilled labour in the Northwest can-
not absorb all those who would like to enter from the South, and that
uncontrolled migration would lower wages and the standards of work-
ing conditions. There would be competition between unskilled workers
which would surely be linked to racism and violence, and probably to
right-wing gains in elections. In addition, the provision of social ser-
vices cannot be achieved without planning: of taxation, buildings and
equipment, the training of professionals in health-care and education.
Planning is only possible where the numbers of people who will need
a particular service can be reasonably accurately predicted. As Castles
puts it: 'The elegant simplicity of the open borders slogan is deceptive,
as it would create many new problems. In the current global context
it could lead to an anarchic situation in which the weakest - in both
The right notto have to migrate? 155

sending and receiving countries - would be even more disadvantaged'

(Castles 2004: 874). Open borders would undoubtedly lead to more
human rights violations, for both migrants and citizens.
It is human rights abuses, including grinding poverty and violence,
that lead people to try to make a new life for themselves in far-off
lands. In this sense, the most important human right of all could be the
right not to have to. migrate to escape human rights abuses. Although
this makes no sense in legal terms, as a political aspiration it effectively
encompasses all the issues we have been considering in this book - and
more. In previous chapters we have looked at how human rights are
being framed and mobilised to regulate states, the conduct of war, the
globalising economy, and gendered structures of power. In this chapter
we have effectively seen the difficulties non-citizens face in enjoy-
ing the same fundamental human rights as citizens. If all states were
well regulated, peaceful, fair and responsive to claims for justice; if
they managed economies for the development of the capacities and
well-being of everyone; if they policed violence against women that
is already illegal, there would be no need for people to risk their lives
crossing borders, and to risk the kinds of humiliation and dangers to
which they are likely to be subject if they do manage to cross. In a
sense, the right not to have to migrate is implied in claims for human
rights that are made on all states everywhere. In practice, of course,
given the difficulties that we have been looking at throughout this book
in framing injustices as 'human rights wrongs' and then in finding
ways to address them in practice, the right not to have to migrate is an
ideal that looks as far out of reach as ever.
 through existing
their prag1T1.atic, refo.rmlstdimension, we might(ondude that
mosf.importa1+questlon13bout human rights is: 'do they work?'
Has the explos.iog ~[Hurnan · rights claims since the end of the Cold War
made any differerit~ to human suffering?

Measuring human rights

, ' , .
' ' ' .. ' ' ' ' ' ' , '., . ~ . .:·• ·' ·,., , '',, .

Perhaps unsurprisingly the most focused and cqherent attempt to

 Measuring human rights 157

analysis of the effects of international human rights treaties is a grow-

ing area now in political science, international relations (IR) and
International Legal Studies.1 Statistical analysis of the effects of cam-
paigns is also becoming more important to non-governmental organi-
. sations (NGOs) and inter-governmental organisations (IGOs), especially
when they must justify their activities to donors. And statistics are also
growing in significance through the work of international tribunals and
courts: lawyers must demonstrate genocide, crimes against humanity
and war crimes if they are to successfully prosecute perpetrators - all
of which rely to some extent on the numbers of people killed or raped
as well as on who committed the violence. However, there are a num-
ber of problems with quantitative analyses of human rights. Although
they are represented as producing objective, unbiased certainty about
human rights violations, the numbers on which statistical analysis
build are actually very shaky foundations on which to base scientific
knowledge.
Statistical analyses of human rights can be complex, but most of us
are familiar with the underlying principles. Statistics are numbers that
count the same 'event': the number of people tortured in a country over
a certain time period; how many people were killed and who did the
killing; how many are imprisoned and for what reason. There are dif-
ferences in how information about events is collected and organised.
Events can be counted directly (the number of bodies exhumed that
show how many were killed in a particular conflict, for example), but
this is comparatively rare for statistics on human rights. Most com-
monly people are asked to report on what they know: in effect it is
categorisations people make (that person was killed or died of hunger
rather than of natural causes, that person is pregnant because she was
raped) that are being measured. There are also differences in how the
numbers are analysed. In the social sciences, complex analyses are now
made of statistical information to model causes and effects: variables
are isolated and linked to assess what factors make most difference to
respect for human rights in practice.2 But however sophisticated, ultim-
ately all quantitative analysis is based on counting events.3
There is generally very little discussion of how statistics are collected
in NGO reports and social scientific analyses of human rights. The most
cited human rights statistics, and those which have been of most inter-
est to political scientists, deal with gross violations of civil rights: to
life, and to freedom from arbitrary imprisonment and torture.4 One ·
158 Paradoxes in the human rights field

immediately obvious difficulty in collecting statistics on gross viola-

tions of civil rights is that the people carrying them out generally go
to great lengths to try to keep them secret. And even when they are
carried out in plain sight, gross violations of civil rights can be diffi-
cult to measure. The numbers of Tutsis killed by Hutus in the Rwandan
genocide are still only estimates, even though the killing was carried
out over a very short period of time in 1994, and in full view of surviv-
ing witnesses. The enormous variation in estimates of who was killed is
astonishing. Human Rights Watch reports that in one parish estimates
of the numbers of Tutsis killed range between 500 and 5,000. In part
these variations , are related to the conflict itself: some of those killed
were said to be Hutus who were mistaken for Tutsis. In part it is because
ethnic divisions do not seem to have been as clear-cut in everyday life
in Rwanda as they were made to be in the killing, whilst at the same
time it is clear that some people already feared racialised hatred: it
is said that many Hutus registered with the government as Tutsis to
avoid discrimination and mistreatment. Most importantly it seems to be
because 'untrained observers' in Rwanda were - quite understandably-
unable to take in what was happening (Human Rights Watch 1999).
With the best will in the world, then, long-term endemic abuse, con-
fusion and heightened emotions of hatred, fear and desperation do
not make for the calm rule-following that is necessary to count vio-
lent events. And the best will in the world is generally in short supply
in such situations. Statistics concerning human rights violations are
very often Political with a capital 'P'. Numbers are important to argu-
ments for the direction of resources - even if for the most part they
are the only resources of expert interest, bureaucratic monitoring and
media attention. Statistics are important, for example, to the framing
of extreme violence as 'genocide'. 'Genocide' is the destruction of a
nation or ethnic group. It depends on numbers because to be sure that a
conflict is genocide it has to be shown that those being killed are iden-
tified by those doing the killing as belonging to a. group that they are
trying to destroy. To denounce the conduct of a conflict as amounting
to 'genocide' is to demand international action - in particular, military
intervention to protect civilians. As we have already seen, numbers
are far from the only consideration when the possibilities of humani-
tarian intervention are being debated. However, 'genocide' is one of
the very few words that make UN action practically unavoidable (and
it is for precisely this reason that US and UN diplomats avoided it in
 Measuring human rights 159

of the grounds on which military leaders and politicians may be pros-

ecuted in the International Criminal Court (ICC). In 2009 the Sudanese
President Omar Bashir was accused by the ICC prosecutor, Luis Moreno
Ocampo, of genocide, crimes against humanity, and war crimes during
the conflict in Darfur. The charge of genocide has proved especially
controversial. Even judges of the ICC initially challenged Ocampo's
prosecution of Bashir as based on too little evidence. Then in 2010 they
judged that there was enough evidence to charge him with genocide.
Bashir is still president of Sudan at the time of writing, and since the
charge was made prosecutors have been prevented from interviewing
Sudanese officials to verify their claims, NGOs have been expelled from
the country, and his political opponents have been imprisoned. In add-
ition, although the African Union (AU) has co-operated with the UN on
repeated peacekeeping missions in Darfur since 2004, and it continues
to do so, in 2009, it was agreed by the majority of states in the AU
that members should not co-operate with the ICC to arrest Bashir. Part
of the objection was that it is unjust that the ICC has only prosecuted
African leaders. Although the evidence is just part of this continuing
controversy, then, debates over genocide in Darfur have not been, and
are unlikely ever to be, settled by statistics alone (Arieff et al. 2009).
The collection of statistics is also 'political' with a small 'p'. It
depends on how people interpret and report on events in which they
are involved, how they understand what has happened to them, and
what accounts they give of what they are doing. The gap between how
people involved see events and how they are categorised in survey data
is well documented by critical sociologists. A controversial example
that makes the significance of this gap very clear is the attempt by
feminists at the UN to construct trafficking women for sex work as a
very serious violation of human rights. They argue that sex traffick-
ing involves kidnapping and slavery when women and young girls
are forced to sell sex. Events of trafficking women for sex are inher-
ently difficult to count because they are hidden. They are also, however,
inherently difficult to count because sex trafficking is mixed up with
prostitution and illegal migration: women who have been forced or
tricked into sex work live and work alongside others who have chosen
it as a way of making a living - though not necessarily in circum-
stances that would make alternatives appealing. Who is counted and
who counts themselves as having been forced or having chosen to cross
borders illegally to sell sex for money is inherently tied up with feelings
 160 Paradoxes in the human rights field

individuals actively in charge of their own fate (Shamir 2006; Andreas

and Greenhill 2010).
It would surely be wrong to dismiss attempts to measure human
rights violations altogether. Statistics are a valuable part of mak-
ing standards visible, though they are always embedded in argu-
ments and interpretations. In general long-term planning and the
equitable distribution of resources in large-scale, complex societies is
unthinkable without measurement and calculation. In part we are all
familiar with the basic building blocks of statistical analysis because
we are used to states gathering and organising information about
us: planning for education, health-care, welfare, all depend on sta-
tistics. In relation to human rights violations, however, it seems there
has been a turn to measurement that is problematic. Sally Engle
Merry argues that what are only ever partial and contentious num-
bers appear as measurements of objective reality that have become
increasingly important to NGO workers and officials in IG0s as part
of a general shift towards auditing, benchmarking and 'accountabil-
ity'. Merry argues that statistics reinforce the authority of experts and
bureaucrats, as debate shifts from how to actually influence compli-
ance with international human rights treaties to how to devise good
indicators to measure violations. In fact, given the centrality of bur-
eaucratic procedures and expertise to human rights monitoring at the
UN that we looked at in Chapter 4, it might be more reasonable to
argue that the new emphasis on measurement fits in very well with
the structures that are already established in IGOs. At any rate, Merry
argues that statistical indicators are contributing to the replacement
of political debate over the possibilities, prospects and limitations of
human rights by measurement, assessment and comparisons that 'fix'
constructions of reality in ways that are very difficult for non-experts
to contest or even to understand (Merry 2011).

Mapping the human rights field

··································································-····················································
In this book I have taken a very different approach to the study of
human rights. When I first began systematically reading the vast litera-
ture on human rights to write this book, I was especially interested in
finding 'critical exemplars'. By 'critical exemplars' I had in mind case
<;t11ilif's of carrmaians that had successfully brought about social change
 Mapping the human rights field 161

in order to realise a particular set of human rights demands in practice.

There are some case studies in these pages that can be thought of in this
way. One is the Treatment Action Campaign we looked at in Chapter 2,
in which a South African NGO successfully mobilised people with HIV
at the grassroots, lobbied the government directly, brought pressure on
politicians through the national courts, and liaised with international
non-governmental organisations (INGOs) to put pressure on multi-
national corporations. I still think of this campaign as exemplary in
many ways, not least because of its multi-scalar approach and the role
it played in keeping tactics from the anti-apartheid struggle relevant in
post-apartheid South Africa. However, what we know about the cam-
paign comes largely from its leaders, who are relatively educated and
experienced activists: we know very little about how framing health
as a human rights issue moves people to action at the grassroots; and
nothing at all about how they understand themselves as having human
rights that enable them to make claims on health services, how they
combine that understanding with knowledge of 'folk medicine', and
how the campaign has shaped their assumptions about hum.an rights
more generally (see pp. 34-8).
In fact, one of the main things I have learned from writing this
book is that thinking of human rights campaigns in terms of success
is itself problematic. There are no value-free, objective criteria of suc-
cess for human rights campaigns. Over what time-frame is 'success'
to be assessed: in the short- or long-term? Who considers a particular
campaign a success? Does it have unintended negative consequences
for other groups? And how do we find out who they might be and
how they might be affected? It is surely important to hear inspiring
tales of campaigns that have worked: that have successfully mobilised
people, and that have won better treatment for people suffering injust-
ice. But because human rights campaigns are inherently political, and
very often Political too, there is no vantage point from which we can
conclude that a campaign has been clearly and definitively successful
for all those people whose lives it may have affected.
Now I am near the end of the book, what interests me is less 'crit-
ical exemplars' of successful campaigns and more the way concepts
of cultural politics, structures and duty-bearers direct our attention
to inherent tensions in the human rights field. The political sociology
of human rights I have developed here helps us understand the range
of activities and themes in which advocates are engaged, and the
162 Paradoxes in the human rights field

tensions that are intrinsic to framing suffering as a 'human rights

wrong'. Political sociology helps us to map the paradoxes of the global
human rights field.
A field is a symbolic space bounded by the limits of co-operation and
competition. What is shared, and what actors orient themselves towards
in the global human rights field, is the value of the authority to define
human rights. The human rights field is not just a space of conflict: of
strategic attempts to advance interests and to gain benefits (whether pro-
fessional or private, individual or collective). Competition in the human
rights field involves strategic, organised action between actors who aim to
win authority to interpret and decide what human rights are and should
be. But the human rights field also involves co-operation across organisa-
tional boundaries, In fact, conflict itself requires a degree of co-operation.
Coalitions across organisations can be small-scale and local: as they are
when NGOs work with grassroots movements. They can be multi-scalar,
involving NGOs, state officials and advocates at local, national and trans-
national scales - as they were in the Treatment Action Campaign. In add-
ition, co-operation can emerge more spontaneously: taken-for-granted
assumptions become established as a result of historic world-changing
events or the circulation of stories, images, understandings that become
more or less accepted as truth by everyone involved.5
This mixture of co-operation and conflict in and between the organi-
sations in which human wrongs are framed is what gives rise to the
paradoxes of the global human rights field .. According to Joan Scott,
one meaning of 'paradox' is that it is a sign of the capacity to balance
completely contrary thoughts and feelings. And in ordinary usage, a
'paradox' is an opinion that challenges but does not displace orthodoxy
(Scott 1997: 4-5). I follow Scott's classic analysis, using 'paradox' to
understand the global human rights field as constituted by inescap-
able tensions that pull in opposite directions. These paradoxes can be
evaded - they do not divide advocates and activists in each and every
campaign to make human rights effective. But ultimately, we cannot
escape the paradoxes of the global human rights field as it is consti-
tuted today. The meaning of 'human rights' is ultimately indetermin-
ate: it cannot be fixed once and for all. Today there is such a wide
variety of actors involved in trying to define human rights, and such a
range of meanings of human rights across the world that it is impos-
sible to eliminate one pole of any of these paradoxes either in thought
or in practice. 6
 Mapping the human rights field 163

Citizenship/humanity
Human rights are at the same time the rights of citizens and of human
beings. As we have often noted throughout this book, human rights are
state-centric: international human rights law is overwhelmingly concerned
with what states should and should not do. Even where movements and
NGOs address IGOs, it is generally with the longer-term aim of putting pres-
sure on states. States are the guarantors and the violators of human rights.
In a sense this is an artefact of international human rights law since only
'State Parties' are recognised as its subjects. But the importance of states
goes beyond responsibilities that are accepted as binding in international
human rights law. It is only states that have the capacities to deliver the
extensive range of rights that are already encoded in international human
rights law, as well as in demands that have not yet reached that status.
It is citizens who have priority in national states. The priority of citi-
zens who are members of the national community of a state is built-in
to international human rights law itself. Article 1 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) makes
explicit the link between the national, citizenship and human rights:

All peoples have the right of self-determination. By virtue of that right

they freely determine their political status and freely pursue their
economic, social and cultural development.

The priority of citizens with political rights to self-determination is

written into international human rights law, but it is also embedded
as a far more deeply rooted assumption in international relations as
well as in public life inside states. The ICESCR came into effect at the
UN in 1976, and Article 1 is in large part a product of decolonisation,
which was already well underway by this time. It codifies respect for
the national self-determination of citizens in all states. That state and
popular sovereignty are one and the same thing had already been stated
in the great eighteenth-century declarations of human rights - though
citizenship was not extended to all adults within Northwestern states
until the nineteenth century, and people in states that were European
colonies never had citizenship rights.' The statement of the ICESCR
was, then, both a confirmation and an extension of the priority of citi-
zens over non-citizens for all the world.
At the same time that international human rights law privileges citi-
zens, it also binds politicians, bureaucrats and judges appointed in
164 Paradoxes in the human rights field

national states to make public policies and legal judgments that do

not privilege citizens over non-citizens. Article 1 of the International
Covenant on Civil and Political Rights (ICCPR) states that:

Each State Party to the present Covenant undertakes to respect and to

ensure to all individuals within its territory and subject to its jurisdiction
the rights recognized in the present Covenant, without distinction of
any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.

Human rights are for humans: for non-citizens just as much as for
citizens. They are intended to be a resource for citizens suffering from
repression and poverty as a result of state policies. But equally they are
intended to improve the treatment of non-citizens. Migrants are subject
to the administration of states in which they do not have citizenship,
and claiming human rights is one of the few ways by which they can
hope to have any influence on those states. Another less well-known
and somewhat more complex example concerns public policies made
by state officials that directly affect the life chances of non-citizens
outside their territories and even outside their legal jurisdiction. In
Chapter 5, we looked at the demand for international co-operation to
ensure that all states have the capacities to realise social, economic and
cultural rights that are encoded in the ICESCR. According to Article 2
of the ICESCR:

Each State Party to the present Covenant undertakes to take steps,

individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of
the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.

· In principle the ICES CR binds states that have ratified it to help each
other to protect a full set of social, economic and cultural rights for
everyone, regardless of where they live in the world.
At its most acute, the tension between citizen and humanity leads to
disrespect for both citizenship and human rights. In crisis situations of war
and hunger, human rights shade into humanitarianism. In principle and
historically humanitarianism has been quite different from human rights.
In very basic terms, humanitarianism involves a compassionate response
 Mapping the human rights field 165

to people in immediate need. It is associated with relief in emergency situ-

ations: for refugees, victims of natural disasters and war. In comparison,
human rights are demands for the regulation of resources for the long-term
benefit of everyone in the world. But just as humanitarian NGOs have
increasingly taken up human rights, so human rights are increasingly
invoked in situations of desperate need. This is not such an odd develop-
ment: the overlap between human rights and humanitarianism is implied
in the protections that are promised to people in international human
rights law. Humanitarianism and human rights are on a continuum in this
respect. It is problematic, however, where the overlap results in violations
of human rights. This is very obvious in the examples we have looked
at in this book in which states that are violating or that cannot ensure
respect for human rights are supplemented using resources provided by
the 'international community': states and NGOs organised through the UN.
In part this is because in these situations there are none of the juridical
structures (like courts) citizens might demand of states that have adopted
international human rights law (as we saw in the refugee camps managed
by UN High Commissioner for Refugees (UNHCR) in Kenya in Chapter 6
(pp. 146-53 )). There is also the risk of distortions of human rights as such.
Where humanitarian aid is delivered in the name of human rights, human
rights are no longer claimed by a person who is recognised as legitimately
making demands on a political community. Humanitarian aid is more a
matter of charity than of rights. As Monika Krause puts it very neatly,
when humanitarian aid is delivered in the name of human rights: 'people's
right to relief can become the right of those who are served by the relief
agency to the services the relief agency has. to offer' (Krause 2014: 149).
The fact that ultimately fieldworkers are themselves employed and directed
by people based in offices far from disaster areas - most commonly in the
capitals of Northwestern states - who also direct the resources allocated to
them, only makes it all the more obvious that food and shelter are being
given out in these situations: they cannot easily be claimed as a matter of
universal rights.8
Ultimately there is no possible resolution of the citizenship/human-
ity paradox in the human rights field. Ideally it is citizens who would
claim rights in their own states: they would 'give the law to themselves'
through democratic participation. But what if states violate or neglect
citizens' rights? And what about the rights of non-citizens, inside and
outside state territories? Given economic and gee-political competition
between states, and the continuing importance of nationalism, people
166 Paradoxes in the human rights field

are quite likely to oppose the equal treatment of non-citizens where it is

seen as damaging the privileges they enjoy as citizens. Efforts to guar-
antee human rights for everyone, everywhere, will tend to be in tension
with the aim of empowering citizens to realise their own human rights
through their own states.

Emancipation/governance
Human rights are emancipatory in that they involve demands for
equality of freedom for all. But the global governance that is needed to
realise human rights in practice itself produces inequalities.
As the very first line of the preamble of the Universal Declaration of
Human Rights (UDHR) puts it:
[R]ecognition of the inherent dignity and the equal and inalienable rights
of all members of the human family is the foundation of freedom, justice
and peace in the world.

'Emancipation' is people being freed to create the conditions of their

own life, to take control of their own fate. Human rights can be eman-
cipatory for individuals. This is very evident when we consider, for
example, the rights of women we looked at in Chapter 6 to choose rela-
tionships that are not abusive and violent. They are rights for women
to have a far greater degree of control over their own lives than is
currently the case. Human rights can be emancipatory for groups too.
Group emancipation through human rights is demanded by indigenous
peoples and peasants. These groups are demanding rights to a greater
degree of collective control over the conditions of production and con-
sumption that make such a difference to peoples' everyday lives.
The emancipatory role of human rights depends on grassroots
organisations through which people bring definitions of human rights
into their everyday lives, becoming empowered to demand recognition
and respect from others. Even to realise their emancipatory possibil-
ity, however, it is almost always the case that people who demand
human rights must engage with global governance. By global govern-
ance I mean the technocratic and bureaucratic procedures and norms
through which cross-border organisations operate in a globalising
world - from INGOs to corporations, states and IGOs. In part this is
more or less a definitional issue. If the empowerment of individuals and
groups does not involve engaging with governance there is very little
 Mapping the human rights field 167

reason to use the language of human rights. Where politics is solely a

matter of intra-community, or even intra-national negotiation, fram-
ing suffering as a 'human rights wrong' may not have any particular
value. More substantively, however, lack of respect and poverty from
which people suffer invariably involve relationships of power with
elites. Elite power is almost always backed by law, bureaucracy and
expert authority. Elites may be local: village elders, landowners and
employers, people employed by local government or even by NGOs
(as we saw so vividly in the story of Chikondi in Chapter 2). Relevant
elites are very often national: employed by states or the managers
and shareholders of territorially based corporations. And more often
than not the frameworks of law and regulation through which national
elites operate involve international elites: people employed in IGOs
or by states in far distant territories; or the managers and sharehold-
ers of transnational corporations with headquarters in another state.
Demands for human rights most commonly address elites to persuade
(very occasionally to compel) them to alter their behaviour. Human
rights advocates engage with rational-legal and expert authority in
forms of governance at local, national and international scales to chal-
lenge justifications for the power of elites that are built into states,
corporations, INGOs and IGOs.
In addition, elites have a further, and more positive, role to play in
the realisation of human rights. If we consider social, economic and
cultural rights that are demanded to alter conditions of disrespect and
poverty permanently, long-term planning, management and adminis-
tration is needed. This means governance at all scales to foster condi-
tions of security from violence and freedom to flourish for everyone.
Even demands for local communitarianism engage with global gov-
ernance. This is very evident in the demands of Via Campesina for a
UN Declaration of Peasants' Rights: though focused on increasing the
autonomy of small-scale rural communities, it goes into some detail
about national and international regulation. Consider some of the
Articles of the Declaration of Rights of Peasants:

Article II (4): Peasants (women and men) have the right to actively
participate in policy design, decision making, implementation, and
monitoring of any project, program or policy affecting their territories.
Article Ill (15): The right of peasants (women and men) to life and
the fulfilment of their basic needs should be protected by the law and
168 Paradoxes in the human rights field

by the state, with the assistance and cooperation of others, without

discrimination of any kind.
Article VI (1 ): Peasants (women and men) have the right to obtain
funds from the State to develop agriculture.
Article VII (1 ): Peasants (women and men) have the right to obtain
impartial and balanced information about capital, market, policies, prices,
technology, etc, related to peasants'needs.

Via Campesina's demands are for emancipation through local com-

munitarianism: greater control by and for rural people over the condi-
tions of their lives by the preservation of small-scale farming. Local
communitarianism is unusual in the global human rights field - and
the Declaration of Peasants' Rights has not (yet) been established as
international human rights law signed and ratified by states. Some of
the appeal of local communitarianism - especially perhaps for those
who see it as linked to alternative lifestyles in the Northwest - is surely
that it seems to sidestep difficult questions of global governance. In
practice, however, as the Declaration of Peasants' Rights makes clear,
what human rights advocates demand is not an end to governance: it
is good governance. And demands for good governance are even more
evident in constructions of social and economic rights associated with
global social democracy. Most of the efforts of global social demo-
crats are concerned with establishing better governance: improving
international regulation of markets in goods, money and labour; state
planning and investment to develop national economies; and the redis-
tribution of wealth through public goods, including services of educa-
tion and health-care.
Human rights demands are, then, made against elites. But they are
also made through elites. There is an inherent tension here between the
aims of emancipatory human rights demands and the governance that
is necessary to realise human rights: bureaucratic and expert author-
ity also work against the realisation of human rights. Technocrats
at all levels, from 'street level bureaucrats' through the directors of
Amnesty and Human Rights Watch to Nobel-winning economists at
the World Bank can and do become caught up in proceduralism: in
technocratic solutions to problems that actually serve them as pro-
fessionals, providing them with relatively well-paid, respected jobs,
status and power over others. 'Insider politics', manoeuvring to build
a career and access to greater wealth and status: these can very easily
 Mapping the human rights field 169

become ends in themselves for professionals employed in offices that

are quite distant from those they are supposed to be helping. And
even when professionals are dedicated, hard-working and idealistic,
it is always difficult to influence technocratic structures set up and
maintained in the name of expert and rational-legal authority. It is
difficult for 'outsiders' to make themselves heard and understood
when they have to address 'experts' in the languages in which they
have been trained. And it is difficult even for high-ranking 'insiders'
to influence hierarchical, bureaucratic organisations when responsi-
bility for decision-making is diffused through rigid procedures that
constrain thought and action.
There is no possible resolution of the emancipation/governance
paradox in the global human rights field. The 'purity' of human rights
demands that is sometimes conjured up by the word 'grassroots' is illu-
sionary. Mobilisation at the grassroots is vital: very often it simply
is not possible to realise human rights unless people have a sense of
entitlement that enables them to refuse, resist and to demand better
treatment from elites at the local level as well as those who have influ-
ence from a greater distance over the conditions of their lives. This is
the emancipatory promise of human rights. But ultimately, realising
human rights always also requires regulation, expertise and planning -
at all scales from the most local to the most global.

Universalism/diversity .
The value of human rights is that they set standards for governance,
and especially the regulation of states, that are supposed to be uni-
versal. The first line of the preamble of the UDHR refers to 'the inher-
ent dignity and the equal and inalienable rights of all members of the
human family'. But human rights are increasingly diverse. There has
been a proliferation of framings of human rights in recent times - in
part a product of the appeal of human rights as a language for global
justice. And human rights must always be adapted to particular circum-
stances and groups if they are to be effective.
Human rights encode universal standards. Their universalism gives
human rights critical purchase in relation to structures of injustice
and suffering. We saw this very clearly in the discussion of women's
rights to freedom from violence in Chapter 6. Feminists at the UN argue
for women's rights to be free from gender violence regardless of how
170 Paradoxes in the human rights field

people understand the role of women in local understandings of kin-

ship obligations, religious duties and community norms. More gener-
ally, the universality of human rights enables advocates to make abuses
visible where internationally agreed standards are not being met: it is
never right to turn a blind eye to rape, whatever people may think,
regardless of the circumstances, and despite the difficulties of applying
national law in particular cases.
As we have also already noted, however, to be really effective in
practice human rights must almost always be taken up by grassroots
movements. This is because what is appropriate in terms of persuasion
depends on what people already accept as normal, true and right. The
necessity of working at the grassroots is also very evident with respect
to women's rights to freedom from gender violence. In part this is a
question of means: the arguments and the techniques of protest and
advocacy that are used to win authority to define human rights must
be appropriate to their particular circumstances. It is also, however, a
question of aims. Women's rights to freedom from violence were not
included in the UDHR or even in the Convention on the Elimination
of Violence against Women (CEDAW): developing an interpretation of
human rights that includes forms of violence from rape in armed con-
flict to domestic violence has meant altering the aims of international
human rights law as well as finding new means by which women's
suffering can be addressed internationally, nationally and locally. The
local communitarianism of indigenous move!11-ents and of demands for
the protection of peasant ways of life also represents new objectives in
the cultural politics of human rights. Building campaigns across bor-
ders to develop new forms of international human rights law is seen as
necessary to gain recognition and respect for ways of life that are quite
different from those that are dominant in industrialised and industri-
alising states.
The proliferation of frames of human rights in recent decades makes
competing defmitions of what human rights are and should be in any
given situation inevitable. There are still clashes between human rights
advocates and opponents of human rights. Debates over cultural relativ-
ism remain important, especially to questions of gender and sexuality.
As we saw in Chapter 6, the clash between advocacy for women's rights
and accusations of neo-imperialism on the grounds of the protection of
'cultures' is entrenched internationally as well as within states. What is
also far more evident, now, however, are debates over the relative value
 Are human rights the answer? 171

of different definitions of human rights. Competition over the priority

of civil and political rights or of social and economic cultural rights has
become a staple of the cultural politics of human rights at the UN. And
we have also noted that within demands for social and economic rights
there are conflicts over priorities for development that seem to benefit
city-dwellers at the expense of small farmers and indigenous peoples.
The paradox of universalism and diversity - the construction and
defence of universal standards which must at the same time be adapted
to local contexts - is irresolvable. Human rights must encode universal
values if they are to be used to draw attention to suffering that every-
one agrees, at least in principle, is always wrong for all human beings -
regardless of what anyone thinks. Human rights enable advocates to
make abuses visible and to militate for respect and redistribution in the
name of what all human beings need to flourish wherever they happen
to have been born or to be living. Recognising and agreeing on uni-
versal definitions of injustices is a long way off for most definitions of
human rights. In fact, there are still challenges even to those norms that
are considered most fundamental: government officials still defend tor-
ture and summary executions as necessary for national security.9 Even
if it were to be accepted, however, that some conditions are abhor-
rent for everyone everywhere, definitions of human rights would still
always have to be contextualised. People have to make sense of human
rights in their own ways of life, and given that these are so varied,
inevitably so too definitions of human rights have to be diverse. A pro-
liferation of definitions of human rights will inevitably lead to debates
over what counts as a violation of universal human rights as well as
over the relative weight of defmitions that are recognisably different
and their value in particular cases. In order to become effective, human
rights must become at the same time more universally accepted and
more contentious. 10

Are human rights the answer?

............. _ , .

Throughout this book we have been looking at the complexities of the

cultural politics of human rights. 'It's a human right' may sound, on
the face of it, like an answer to the question of how to represent and
address suffering and injustice. And indeed, winning acceptance for
framing. suffering as a human right and establishing it as a part of
172 Paradoxes in the human rights field

international human rights law is in itself a triumph for campaigners

where it enables them to achieve visibility for their cause. What map-
ping the paradoxes of the human rights field makes very clear, however,
is that the answer 'it's a human right' is always and only ever situated
in a wider set of questions about political action, organisations and
structures. Who are the relevant duty-bearers? What are their respon-
sibilities? How can existing structures be altered that will really make
a difference? With respect to actually achieving better treatment, more
fairness and less cruelty, 'it's a human right' isn't an answer at all: even
when it is accepted as the right kind of response, it only opens up fur-
ther questions.
Do these complexities mean that human rights can never be realised,
that they have no value in the contemporary world? Human rights are
often criticised for addressing, and in the process strengthening, elites
and expert authority at the expense of radical alternatives. However,
we never learn what those radical alternatives might be in the work of
critical theorists. In fact, what we have seen in this book is that today
the language of human rights actually includes within it a range of
possibilities, some more radical than others. Today human rights are
the dominant language of radical and reformist politics. For better or
worse, human rights seem to many different groups to be the most
appropriate way of trying to achieving a greater degree of justice in
our globalising world. As we have seen in this book, it is not just the
cosmopolitan elites and experts of the UN, Amnesty International and
Human Rights Watch that advocate human rights. The most marginal-
ised and mistreated groups of people on the planet also use this lan-
guage. As it is the contemporary language of global justice, it seems to
me to make no sense to refuse the validity of human rights as a matter
of principle. However, the cultural politics of human rights should not
be understood as a solution to the world's problems; it does not tran-
scend conflicts, and it brings its own problems and dilemmas. What
I have been outlining in this book are the conceptual tools with which
to explore the possibilities and the limitations of the ways in which
people are using human rights in practice to transform structures that
produce inequality, insecurity and violence. Political sociology helps us
develop the conceptual tools with which to carry out our enquiries with
an open, enquiring mind.
 Notes

1. The social construction of human rights

For well-argued examples of theoretical critiques of human rights, see Brown
1995a, 1995b, 2002; Kennedy 2002; Douzinas 2007.
2 See Held 1995, 2004; Benhabib 2004, 2007; Blau and Moncado 2005, 2007.
3 For accounts of human rights 'from below', see Santos 2002b, 2006 (discussed in
pp. 32-4); Rajagopal 2003; Kurasawa 2007.
4 On social constructivism in IR with respect to human rights see Donnelly 1999,
2013. With respect to the role of NGOs, see Keck and Sikkink 1998; Risse et al.
1999; Risse, Ropp and Sikkink 2013. We look at this work in more detail in
Chapter 2,
5 The overlap is very evident in the work of Kathryn Sikkink: Keck and Sikkink
1998; Lutz and Sikkink 2001; Sikkink 2011. See also Donnelly 2006.
6 There is now a huge range of work in this area. I will draw on some of it in this
book. For influential discussions of anthropological rethinking of the relation-
ship between concepts of 'culture' and 'human rights' see Wilson 1998; Cowan
et al. 2001; Merry 2006. On the relationship between the sociology and anthro-
pology of human rights, see Short 2008.
7 For specific references to this debate as the beginning of the sociology of human
rights, see Sjoberg et al. 2001: 25; Morris 2006; Somers and Roberts 2008: 386;
Hynes et al. 2012: 789;. Other accounts of the sociology of human rights also.
situate themselves explicitly as social constructionist: Stammers 1999; Morgan
2009. Still other sociologists take a more eclectic approach to the value of dif-
ferent theoretical traditions, though they are still social constructionists insofar
as they see human rights as historically specific rather than as 'natural' moral
universals: see Madsen and Verschraegen 2013.
8 The idea of'framing' originates in Erving Goffman's work, which was a founding
source of inspiration for social constructionism (Goffman 1986). The classic ref-
erence, however, is Berger's and Luckmann's The Social Construction of Reality,
first published in 1966 (Berger and Luckmann 1991). Berger and Luckmann talk
about constructions as 'meanings' instead of 'frames'. 'Frames' is a good word
here because it suggests very clearly what is excluded from what is seen as well
as what is included. 'Meanings' is better in that interpretation of what we 'see'
is not always as obvious as 'framing' suggests. In addition, 'meanings' suggests
a less instrumental, more expressive understanding that is closer to how most
174 Notes to pages 10-17

social interaction works: we communicate with each other regularly, and

only on some occasions is communication strategic. 'Meanings' is preferable
to 'framing' then in most situations - but it is far less vivid as a metaphor
than 'framing'.
9 Critics of human rights are inspired by Marxism (Brown 1995b; Zizek 2005;
Williams 2010), feminism (Brown 2002), post-colonialism (Matua 2002; Asad
2003), or a combination of all of these strands of thinking (Spivak 2002). This
book can be read, in part, as response to such critiques.
10 Upendra Baxi makes the useful distinction between modern and contemporary
human rights. Modem human rights were focused on the universality of indi-
vidual rights, where 'the individual' resembled a white, male, heterosexual citi-
zen of a nation-state. They are typified by the human rights constructed in the
eighteenth century in the constitution of the newly independent United States
and the Declaration of the Rights of Man of the French Revolution. In contrast,
contemporary human rights are far more diverse. They include social, economic
and cultural rights, and 'the individual' is much more fully characterised in a
variety of ways. A 'human' can be female, poor, indigenous, resisting imperial-
ism. Where modem rights were marked by exclusion, Baxi argues, contempor-
ary rights are marked by attempts at inclusion (Baxi 2008).
11 On the sociology of practice: see Bourdieu 1979; Giddens 1984. I follow
Sewell's influential interpretation of the sociology of practice, which stresses
that structures do not just involve cultural norms, they also organise resources
(Sewell 2005).
12 Although they differ in the details of how they theorise links between culture
(as representations, meanings), and social structures, traditions as diverse as
British cultural studies and the cultural sociology of Jeffrey Alexander as well
as recent work on human rights in anthropology are all concerned with how to
study culture as a dimension of social life (see Turner 2002; Alexander 2003;
Ortener 2006). It is these accounts that have influenced my understanding of
culture: culture and social structures are inextricably entwined in the social
construction of reality.
13 I have developed the concept of authority I use in this book drawing on Michael
Barnett's and Martha Finnemore's Rules for the World (2004). As I am con-
cerned with human rights advocacy across the whole range of organisations
involved, I have adapted and supplemented their typology - which they devel-
oped to theorise the relative autonomy of IG0s from states - to encompass the
authority that is constructed by representatives ofNGOs and states. For Weber's
classic discussion of 'authority' on which Barnett and Finnemore draw, see
Weber 1948: 294-5.
14 In fact, the European system of human rights (in which the Council of Europe
and the European Union overlap, especially since the Lisbon Treaty 2009) is
 Notes to pages 17-20 175

commonly regarded as the most effective at reforming states, incorporating as

it does legal pressure (through the European Court of Human Rights) and pol-
itical pressure (to be a member of the EU states must show that they comply
with the European Convention on Human Rights). The Inter-American system
of human rights is well established and older than the European, though less
effective. The Inter-American Commission makes country reports where there
are grounds to suspect gross violations of human rights, but only where the
state in question has granted permission, and they tend to have very little
direct impact. The Inter-American Court is limited to advising states that they
are in breach of international human rights law: it has no sanctions and very
little influence in practice. The African system is the newest and least devel-
oped regional system of human rights law, and it has had very little impact
on member states to date. However, the African Union and also the Economic
Community of West African States have been very active in organising peace-
keeping operations. For brief, up-to-date sketches of regional systems of human
rights (which are continually changing), see Alston and Goodman 2013.

2. (A) human rights movement(s) and other

organisations
1 This argument has been made very effectively by Neil Stammers 1999, 2009.
However his arguments are entirely conceptual; they are not based on empirical
research.
2 There is an enormous literature on social movements. For good general discus-
sions see Diani 1992; Della Porta and Diani 2005.
3 There has been an enormous growth worldwide of human rights NGOs since the
1970s. See Keck and Sikkink 1998: 90; Keck and Smith 2002.
4 NGOs also vary with respect to their independence from government. In
China, for example, only GONGOs (Government Organised Non-Governmental
Organisations) are legal - though there are also a number of illegal and tolerated
NGOs there too (Spires 2011).
5 The difference between NGOs and grassroots organisations is not always
clear. As Dorothea Hilhorst shows in her study The Real World of NGOs, very
small local organisations - which might be considered GROs - may name
themselves 'NGOs' in order to attract funding (Hilhorst 2003). In very general
terms, however, we can say that in GROs unpaid volunteers are likely to play
more of a leadership role than in NGOs; they are smaller and 'flatter' in terms
of their bureaucracy and decision-making than NGOs; and - above all - they
involve people in their localities who make human-rights claims on their own
behalf (Batliwala 2002; Molyneux and Lazar 2003).
176 Notes to pages 21-30

6 'Northwestern' is the term I prefer as an attempt to generalise in a way that

gets beyond West/East, North/South dichotomies that over-simplify complex
and overlapping historical, cultural and economic interconnections between
states and diversity within regions. I use 'Northwestern' to refer to Western
European and European settler states, the United States, Canada, Australia and
New Zealand. This categorisation lumps together states that share broad simi-
larities in the history of their formation with regard to citizens' rights and cap-
italist industrialisation; and with regard to twentieth-century geo-politics.
7 It is notoriously difficult to track INGO funding, less because they are not trans-
parent than because of the complexities of their budgets: it can be difficult to
know what they tum over each year because money is collected in a number of
different countries for different branches, and from different sources (member-
ship, fund-raising, individual donations, governments, foundations, etc.). The
best data-driven discussion of the funding of human rights INGOs in a global
context is James Ron's edited series on Open Democracy: 'Funding for Human
Rights': www.opendemocracy.net/openglobalrights/funding-for-human-rights
(last accessed 1 September 2014).
8 This is a change of policy that was in part based on the need to gain more
popularity in the Global South. But neither Amnesty nor Human Rights
Watch is involved in delivering humanitarian relief in emergencies, and it is
difficult for either organisation to really engage in development issues, espe-
cially as there are already huge INGOs devoted to it (Stroup 2012: 166-8).
Aryeh Neier, one of the founders of Human Rights Watch, who is currently
chair of the George Soros Foundation that funds it, has argued that it is
well suited only to campaigning for civil rights (Neier 2012). Kenneth Roth,
the current director of Human Rights Watch, has argued that the method-
ology of 'naming and shaming' only works for violations of social and eco-
nomic rights where there is clear evidence of violence or discrimination so
that specific authorities can be held accountable (Roth 2004). The focus of
campaigns in which both Human Rights Watch and Amnesty are engaged
with respect to social, economic and cultural rights tends to be on forced
evictions from housing or land, and on discrimination against particular
groups with respect to housing, education or medical care.
9 According to the Edelman Trust Barometer, a global survey produced regu-
larly, NGOs are consistently the most trusted type of organisation, far ahead
of governments and business, in every region of the world: www.edel-
man.com/insights/intellectual-property / 2012-edelman-trust-barometer/
trust-in-institutions/ngos-most-trusted-institution-globally/ (last accessed
1 September 2014).
10 A good example is Mahmood Mamdani's Saviors and Survivors. Mamdani is
critical throughout the book of the international interference in Sudan, includ-
ing challenging the statistics produced by human rights NGOs about how many
 Notes to pages 30-37 177

people were killed in Darfur. However, at the same time he draws on reports by
Human Rights Watch to support his argument (Mamdani 2009: 215, 225).
11 It is primarily anthropologists who have explored issues of legal plural-
ism: see Merry 1988. In more recent times, the discussion has become more
inter-disciplinary, especially around questions of transnational legal plural-
ism: see Michaels 2009. These discussions have become prominent with the
growth of multiculturalism in the Northwest as a reality and (to a lesser extent)
as state policy, and 'debates over religious law, especially Sharia law for Muslims
(Possamai et al. 2015).
12 In Chapter 5 I explore anti-capitalist campaigns for self-determination on the
part of movements of indigenous peoples and peasants that have been framed
in terms of human rights, as 'local communitarianism'. Like Santos, these move-
ments insist on the value of definitions of human rights 'from below'.
13 Beyond the example of Sharia law, Santos does not raise any questions about
how we should understand local meanings of human rights as emancipatory
when they are not obviously progressive, and where they clash with inter-
national human rights law. For example, there are vigilante groups in favelas
in Brazil who see lynching as an expression of their human rights, a matter of
security in areas that are neglected by state police (Goldstein 2007). Another
example is that of a pueblo in Columbia which - with permission from the
constitutional court - has imposed punishments that could well be considered
'cruel and unusual' (Jackson 2007). We return to this question in Chapter 8
where we consider universality and diversity in human rights (pp. 169-71).
14 Respect for women's rights may not have been quite as ideal in practice as
Santos supposes. Compare Belausteguigoitia 2000 on women's rights in the
Zapatista movement.
15 In their study oflocal mobilisations for equal rights in New York City, Sally Engle
Merry and her colleagues found that grassroots activists defined human rights
differently from the lawyers they worked with, stressing values of human dig-
nity over norms of governance, and linking them with ideas from the women's
movement, and national and religious ideologies (Merry et al. 2010). Although
it is not directly on human rights, Susan Watkins and Ann Swidler's fascinating
study of 'brokers' who work between NGOs addressing the spread and of treat-
ment of Aills in Malawian villages and the villagers they hoped to reach is also
important. Watkins and Swidler show how everyone involved was quite happy
despite the way they misunderstood each other because the different meanings
people gave to 'fighting stigma', 'orphans and vulnerable children' and 'vulner-
able women' did not interfere with the shared understanding that, whatever the
theme, the solution would be 'training' (Watkins and Swidler 2013).
16 The Treatment Action Campaign is committed to fmancial transparency, and
provides an unusually complete record of donations it has received each year on
its website: www.tac.org.za/community/finance (last accessed 8 August 2013).
178 Notes to pages 42-51

3. States of human rights

1 In very basic terms, human rights law has three sources: international treat-
ies and conventions, which are made between states at the UN; constitutional
law, generally made by governments, sometimes in consultation with NGOs; and
international customary law, which are legal standards on which there is con-
sensus amongst states even though this may not be reflected in existing treaty
or domestic law. Not only is it states that make international human rights law,
it is states that are subject to international human rights law. It is very rare that
non-state actors (corporations, IGOs) may be found in breach of human rights in
international law, and this is only possible where they have acted in conjunction
with states: where they have been delegated public functions by state actors, or
where they have colluded with state actors in committing human rights viola-
tions (Alston 2005; Clapham 2006).
2 This is the approach that has been taken up most recently and thoroughly by
Foucauldians: see Rose and Miller 1992; Mitchell 1999; cf. Curtis 1995.
3 On the importance of looking at the history of state formation as a matter of
international politics in the context of colonialism, rather than just as the power
struggles within a state territory, see Bhambra 2007; Go 2013; Steinmetz 2013.
4 For excellent accounts of the long history of Marxist thought on the state see
Jessop 1982, 1990.
5 The development of law and bureaucracy as a feature of the modem state has
been one of the most important topics in sociology from its origins in the work
of Weber. Poggi's account is a classical statement of the Weberian perspective
(Poggi 1990).
6 For good examples, see Crouch 2011; Therborn 2013.
7 Foucault et al.. 1991; Brown 1995a; cf. Fraser 2008.
8 Constitutional courts are almost never asked to review human rights violations
outside national territories. The case of the prisoners in Guantanamo Bay, which
was brought before the US Supreme Court, is an exception due in large part
to the ambiguity of the territory within which the prison is located (though
it is on Cuban soil, it is under US jurisdiction). In Al-Skeini and Others v. the
United Kingdom, a landmark ruling in 2011, the European Court of Human
Rights found that the UK's human rights obligations apply to its acts in Iraq,
and that the UK had violated the European Convention on Human Rights
by failing to investigate the circumstances of the killing of Iraqi civilians by
British troops. Again, however, this case is exceptional in that the judges ruled
that because the UK was actually occupying Iraq, it was responsible for the
actions of its military on that territory (Cowan 2012). Furthermore, all that
was required by the European Court was that the UK investigate the allega-
tions. In this respect it is notable that although the Council of Europe and the
Rnrnnean Parliament investlcated and condemned the role of European states
Notes to pages 51-76 179

in co-operating with the CIA to kidnap terrorist suspects ('extraordinary rendi-

tion') to take them to be interrogated (and tortured) following 9/11, they only
required that states investigate these actions, and the only country in which
legal proceedings have followed as a consequence of the investigations is Italy
(Committee on Legal Affairs and Human Rights of the Council of Europe 2006).
9 Brock et al.'s book is a very interesting study of what, using the language of US
security documents, they call 'fragile states'. From the perspective outlined here
each of the cases, they examine in detail - Afghanistan, the DRC and Haiti -
approximates the 'predatory state'. I find 'predatory state' preferable because
it emphasises the interplay of external and internal structures and actors, and
the ongoing importance of economic and social factors to the historical forma-
tion of states. It also separates sociological analysis that is necessary in order
to properly understand the difficulties of realising human rights from security
discourses that refer to 'fragile' and 'failed' states as justifications of 'humani-
tarian intervention'.
10 For a discussion of Asian values see Langlois 2001; Ching 2008.
11 On the Chinese state, repression and human rights, see Ching 2008; Dreyer
2010; Kinzelbach 2013.
12 For discussions of the impact of Chinese intellectuals on human rights activism
in China, see Hsing and Lee 2010; Wright 2010.
13 For an influential account of 'fixing failed states' written by UN advisors who
have worked on state-building in Bosnia and Afghanistan, see Ghani and
Lockhart 2009.

4. The United Nations: not a world state

Monitoring practices at the UN are complex and they are continually being
reformed. For reasonably up-to-date overviews and more details see Alston and
Crawford 2000; Flaherty 2002; Bayefsky 2011; Cherif Bassiouni and Schabas
2011; Keller and Ulfstein 2012; Alston and Goodman 2013. For a comprehensive
and critical account of the Human Rights Council (set up in 2006 to replace the
Human Rights Commission), see Freedman 2014; for a sympathetic view of the
special procedures it has established, see Piccone 2012.
2 The defmition of 'sovereignty' as control by a nation-state over its territory
was itself a redefinition created and sustained during decolonisation in the
mid-twentieth century, When the UN was founded in 1948 'sovereignty' was
accorded by international law to imperial states which ruled over colonies and
protectorates in most of the world. There were originally fifty-one member states
of the UN in 1946; by 1980 that number had risen to 157 members as a result
of decolonisation; and with the break-up of the USSR, to 184 members by 1992
(www.u:n.org/en/members/growth.shtml).
180 Notes to pages 77-87

3 The Pinochet case is often seen as a turning point in this respect. It was the first
time that it was decided that a head of state did not have diplomatic immun- -
ity where crimes against humanity were concerned. Although General Pinochet
managed to escape being tried for his part in the murder, 'disappearances' and
systematic torture of his political enemies, he was under house arrest for two
years in the UK waiting to hear if he would be extradited to Spain to be tried
for crimes against humanity (Nash 2007). When he returned to Chile, he was
eventually charged with crimes against humanity there despite the fact that he
had ensured an amnesty for himself when he eventually stepped down from gov-
ernment. He died before the case came to trial. The Pinochet case was a turning
point in part because he was such an epitome of the military dictator. According
to Katherine Sikkink, the symbolic effects of his arrest were felt round the world
as opening up new possibilities for dealing with heads of state with blood on
their hands (Sikkink 2011: 121-3).
4 There is a vast literature now on all aspects of humanitarian intervention, peace-
keeping operations and state-building. For surveys of the differences between
different forms of peacekeeping operations see Doyle and Sambanis 2006;
Bellamy and Williams 2010. For discussions of differences in state-building, see
Chesterman 2004; Brahimi 2007; Call and Wyeth 2008; Paris and Sisk 2009.
5 Bosnia was different from Kosovo and East Timar because it remained nomin-
ally independent: state-building was initiated by a peace agreement between the
warring parties. The success of state-building in Bosnia is also more questionable
than in the other cases in that it is often said that the Dayton Agreement was
suitable for making peace, but not for building a new country. In fact the state
of Bosnia-Herzegovina reifies ethnic divisions in its design, and communities do
not mix socially, so that conflict is a recurrent danger. On the specificities of the
'transnational administration' in Bosnia, see Chandler 2006; Belloni 2008.
6 For critiques of humanitarian intervention in general as imperialist, see Douzinas
2007; Williams 2010; Orford 2011.
7 Interestingly it may not be finished in Africa. In 2005 the African Union incorpo-
rated the Responsibility to Protect into what is known as the Ezulwini consensus,
which also involved a commitment to building up regional peacekeeping forces
and establishing a permanent African presence on the UN Security Council.
African states have been involved in numerous peacekeeping missions in Africa
since the 1990s (Bellamy and Williams 2010).
8 Not all the efforts that came out of the UN in the 1990s challenged and
displaced sovereignty as the legally - protected right and power of a state
to govern itself without interference from others. Extending human rights
monitoring and capacity-building into the field with states' permission has
also been important. This has been the focus of the expansion of monitoring
through special rapporteurs and working groups on a range of specific topics,
especially after the High Commissioner for Human Rights was established in
 Notes to pages 87-95 181

1994 (see Alston and Goodman 2013: 99-100). Capacity-building has been
undertaken with the worldwide project, in part financed and supported with
technical assistance by UN professionals, to set up national human rights
institutions (Mertus 2009). Both these initiatives are limited, however, by the
willingness and the capacities of state officials to reform practices within their
territories.

5. Humanising capitalism
1 For a very readable introduction to neo-llberalism from a social democratic
perspective, see Chang 2010a. David Harvey's neo-Marxist introductions to
neo-liberalism are very popular: Harvey 2003, 2005. There .are useful introduc-
tions that weigh up Marxist and non-Marxist accounts: Tonkiss 2006; Ingham
2008. For a collection of sociological analyses of globalising capitalism after the
financial crisis of 2008: Calhoun and Derluguian 2011.
2 In fact civil rights themselves require extensive moral and material resources
organised by states to prevent the arbitrary use of force, and so that people have
legal redress against the abuse of state offices. In addition, in the UN it has been
agreed since the Vienna Conference of 1993 that rights are indivisible. Civil and
political rights cannot be realised without social, economic and cultural rights
and vice versa. People cannot easily exercise freedoms of speech and association
if they are living in chronic fear of hunger, homelessness and poor health; in
today's complex societies literacy is necessary: we need to be able to read to be
well informed; and governments can avoid taking the needs of poor people into
account where their protests are met with violence and repression rather than
respect.
3 This ideal was shared by the US government at the end of the Second World
War - though US politicians and economic experts have been at the forefront of
neo-liberal projects since the 1980s. Cass Sunstein's The Second Bill of Rights
explains the place of social and economic rights in the United States during the
Roosevelt administration in the 1930s and 1940s (Sunstein 2006).
4 From a human rights perspective, the most detailed and comprehensive argu-
ments for social democracy are Rhoda Howard-Rassman (2010) Can Globalization
Promote Human Rights?, and David Kinley (2009) Civilising Globalisation. In
part they make the connection between capitalism and human rights on the
basis of statistical evidence: respect for human rights is statistically linked to
economic development. The argument is not that capitalism causes human rights
to be realised. It is rather that where there are the social and political conditions
that enable organised and democratic demands for rights to be effective, capital-
Ism is an excellent way to produce wealth, goods and services to enable everyone
to live in relative security and comfort. In this respect, specifically sociological
182 Notes to pages 95-109

arguments about human rights overlap with other well-known arguments for
global social democracy, like Arnartya Sen's philosophical work on capabilities
(Sen 1999), the economic theory of Joseph Stigliz, former chief economist at
the World Bank (Stiglitz 2010), and the political theory of David Held on the
possibilities of transforming global governance (Held 1995, 2004).
5 An interesting theorisation of alternatives to what they call 'capitalo-centrism' is
the work of Gibson-Graham (2006). Manuel Castells and colleagues have carried
out.preliminary research on how people in Spain are turning to self-provisioning
with the collapse of the economy (Conill et al. 2012). With respect specifically
to human rights, the work of Boaventura De Sousa Santos, Walden Bello, and
others who have been involved in the World Social Forum is directly relevant
as exemplary of what I am calling 'local communitarianism' (Santos 2006, and
see pp. 32-4; Bello 2004; Santos and Rodriguez-Garavito 2005).
6 Many campaigns that have addressed the IFis have mixed human rights concerns
with others, including for the environment: see Fox and Brown 1998; O'Brien
et al. 2000; Greatly 2004. Human rights frames were part of anti-globalisation
campaigns that were so prominent after the 'Battle of Seattle' in 1999, when
around 50,000 demonstrators protested against the WTO. This and other pro-
tests are often seen as having successfully exposed the IFis to far greater public
scrutiny than those who work for them had been used to: Della Porta 2007;
Smith 2008.
7 For discussions of how US imperialism has benefitted from 'the Washington
consensus' see Harvey 2005; Kiely 2010; Calhoun and Derluguian 2011.
8 In April 2013 the US Supreme Court seems to have further limited the scope of
the Alien Tort Claims Act. Judges hearing a case brought by Nigerians against the
Dutch company Shell concerning the violent repression of the Movement for the
Survival of the Ogoni People ruled that such cases should only be heard in US
courts where claims 'touch and concern the territory of the United States'. It is yet
to be seen how this ruling will be interpreted in future, but it looks as if it will
have a significant cooling effect on ATCA cases (European Coalition for Economic
Justice (2013); www.corporattjustice.org/-about-eccj,012-.html?lang=en).
9 There is an extensive literature on the Narmada dam campaign which takes the
perspective of those mobilising against it. For discussions see Khagram 2002;
Kothari 2002; Rajagopal 2003: 122-7; Wood 2007; Nilsen 2010.
10 On the world food crisis, see Holt-Gimenez and Patel 2009; Howard-Rassman
2010: 76-82; Paarlberg 2010.
11 There is a growing literature on Via Campesina and human rights. On Via
Campesina as a social movement see Desmarais 2007; Martinez-Torres and
Rasset 2010; Edelman 2012. More specifically on Via Campesina's approach to
the UN, see Borras and Franco 2010; Edelman and James 2011; Claeys 2012.
Situating Via Campesina in demands for social and economic rights more gen-
erally, see Patel et al. 2007.
Notes to pages 110-116 183

12 In Rethinking Imperialism, Ray Kiely reviews post-1945 theories of polit-

ical economy which argued that over-development of capitalist industrial-
isation in North America and Europe was directly related to the continued
under-development in the South because of the primacy of raw materials and
monocultures (of coffee, sugar, etc.) to these economies, whilst investment in
manufacturing was dominant in the North. Kiely argues that they over-stated
the dichotomy between (what was at that time called) 'First' and 'Third' Worlds
when, in fact, there was substantial capitalist development in Africa, Asia and
Latin America as states pursued 'import substitution' policies in the 1950s and
1960s. In Kiely's view, what these theories neglect is politics: the role of the
United States at the international level, and also the importance of national
public policies. What has become widely known as the 'resource curse' is
important, but it is only part of an explanation for capitalist under-development
in particular places (see Kiely 2010; cf. Hoogevelt 2001). Gudynas' theory of
'neo-extractivism' is better seen as an intervention in ongoing political debates
rather than as an economic explanation for the continuing reliance of Latin
American countries on the export of raw materials: it has similarities to theor-
ies of under-development, but he is far more interested in making a political
argument for local communitarianism (Gudynas 2010).
13 For more detail see Kinley 2009; Chang 2010a, 2010b; Howard-Rassman 2010.

6. Women's rights are human rights

There is some difficulty of terminology in this chapter because many women's
organisations around the world do not describe themselves as feminist, seeing
'feminism' as too closely related to Western values. This can be the case even when
they have greater gender equality as their aim, at least as far as getting women's
perspectives on the agenda is concerned. Women's organisations also work on a
range of issues that are not connected to gender inequality at all (see Basu 1995).
An example is the celebrated Madres de la Plaza de Mayo who have campaigned
for many years for truth and justice for their children, 'disappeared' by the repres-
sive regime in Argentina in the 1980s. In this chapter I am concerned only with
organisations that work to end violence against women. As they also tend to aim
at gender equality in the long term, for the purposes of the analysis in this chapter
I will refer to them as feminist and women's organisations interchangeably.
2 For histories of the development of global feminism, see Moghadam 2005; Ferree
and Tripp 2006; Merry 2006. Specifically on women's rights as human rights,
see Keck and Sikkink 1998: chapter 5; Reilly 2009. What Moghadam calls trans-
national feminist networks of organisations began to overlap with transnational
advocacy networks working on human rights once the possibility of defming
violence against women in human rights terms was being explored. According
184 Notes to pages 116-135

to Aryeh Neier, when Human Rights Watch set up a women's rights project in the
late 1980s, the Ford Foundation, its longest-term and very valuable supporter,
protested by reducing the donation it made to the organisation. Today Human
Rights Watch works on women's rights and the Ford Foundation is fully sup-
portive of its position (Neier 2012: 228). The first report Amnesty published on
women's rights, 'Women's Rights are Human Rights', was in 1995; today it too
works on women's rights.
3 The focus on violence against the individual has been criticised as too simplistic;
as ignoring more complex questions about the impact of international economic
policies and military interventions on women's lives (see Grewal 1999). Indeed,
structures of gender and sexuality are entwined with all the human rights issues
we are concerned with in this book, and more. Both women and men are peasant
farmers, work for TNCs in Export Processing Zones, are slum-dwellers, migrants,
activists, politicians and lawyers, international bureaucrats and experts employed
in the UN and by the World Bank.
4 What I am here calling 'gender violence' is sometimes called 'gender-specific
violence' or 'gender-based violence' at the UN to distinguish it from violence
that is directed at people regardless of their (assumed) sex, gender or sexuality.
An example of gender-neutral violence would be the murder and disappearance
of activists, both men and women, who were treated identically because of their
political activities. There is also 'gender violence' against men - those who are
seen as gay, or as otherwise not fitting gender norms, and in armed conflict, to
humiliate and defeat 'the enemy'.
5 On mainstreaming gender see Rai and Waylen 2008; Walby 2011.
6 There is an extensive literature on the importance of the ICTY for pioneer-
ing prosecuting crimes of sexual violence against women, most of it in legal
studies: see De Brouwer 2005. For a broader approach, see Leatherman 2011.
Despite being celebrated as a major achievement of the ICTY, Kirsten Campbell
argues that the way in which rape has been prosecuted in this forum may also
be seen as confirming rather than as challenging hierarchical gender relations
(Campbell 2007).
7 For example, Jean and John Comaroff relate in some detail debates amongst
the Tswana of Southern Africa over how 'personhood' is to be understood in a
post-colonial context (Comaroff and Comaroff 2012: chapter 2).

7. Do migrants have rights? ·

This chapter does not deal with internally displaced persons (IDPs) or people
who are called 'migrants' though they have only travelled within the borders of
the country of which they are citizens (like those who go from the country to
cities in China to work). There are far larger numbers of IDPs than there are of
 Notes to pages 135-144 185

migrants who cross borders, and they often face very difficult circumstances,
including hostility from people where they settle as well as discrimination and
repression by state agents. Their situation is not covered by any specific inter-
national human rights agreement, though there is increasingly a body of 'soft'
international human rights law that does cover it (Goodwin-Gill 2007).
2 According to Article 2 (1) of the ICCPR, each state that has ratified it has under-
taken: 'to ensure to all individuals within its territory and subject to its jurisdic-
tion the [civil and political] rights recognized in the present Covenant, without
distinction of any kind'. It is not permitted to discriminate in the rights listed
in the ICCPR on the grounds of national origin. Similarly, Article 2 (2) of the
ICESCR outlaws discrimination based on national origin in the enjoyment of
social, economic and cultural rights.
3 Frances Webber has made a list of reasons for refusing asylum that she has heard
in her years of experience as an immigration lawyer in the UK. They range from
'not being fervent enough', 'left the country too quickly' (so the risk of persecu-
tion is not clearly established) and 'didn't leave the country quickly enough' (so
the risk is not real) and even 'still alive' (threats that have not been backed up
are not real) (Webber 2012: 41-3).
4 Arizona SB 1070 was ruled unconstitutional by the Supreme Court in 2012: police
no longer have the powers to stop anyone they suspect of being an illegal immi-
grant and to ask for their papers because it is the federal government that has
control over immigration, not states (Howe 2012).
5 There is now an extensive literature discussing 'post-national citizenship': see
Sassen 2006. David Jacobson has argued that post-national citizenship also
applies in the United States (Jacobson 1997). In fact, in the United States, distinc-
tions between citizens and resident non-citizens have been drawn more sharply
in recent years. As a 'country of immigration' the United States has tended to
separate out questions of who is and can be a member of the society, which
is covered by immigration law, from questions of individual rights, which are
allowed by the status of 'resident alien'. Since 1996 'resident aliens' have been
denied access to federal welfare benefits to which they previously had access;
now it is only US citizens who have rights to federal welfare. International
human rights law is very rarely allowed in US courts so that migrants only have
recourse to national law, and their rights are, therefore, particularly vulnerable
to changes in the political regime (Baubock 2002).
6 The courts are held under the title: 'Special Immigration Appeals Commission'
(SIAC). The law under which suspected terrorists have been held without trial
(and initially without even their lawyers being allowed to know the evidence
against them) has changed a number of times. Currently, as a result of a UK
Supreme Court ruling against 'control orders' in 2005, terrorist suspects who
cannot be deported are subject to the Terrorist Prevention and Investigation
Measures (TPI1\1s) introduced in 2012. In fact, TPI1\1S differ very little from the
, 186 Notes to pages 144-157

previous regime of 'control orders': in practice those assessed as terrorist sus-

pects have no chance to prove their innocence, and they may be confmed to a
narrow range of activities (including restrictions on where a person goes and
who they speak to) for an indefmite period by SIAC (Webber 2012: chapter 11;
Liberty, www.liberty-human-rights.org.uk/human-rights/countering-terrorism/
tpims (last accessed 2 September 2014)).
7 IDPs have human rights within the states in which they live, and of which they
are citizens: they are migrants who have not crossed international borders. The
UNHCR takes responsibility for IDPs who can be just, if not more, vulnerable
than people who flee violence across borders.
8 Palestinian refugees are in a unique position. The UN body responsible for those
who have registered as refugees is the United Nations Relief and Works Agency
for Palestine Refugees in the Near East (the UNRWA, not the UNHCR), which was
set up after the Arab-Israeli war of 1948. And it is not being sent back to the
country of which they are citizens that is the problem for Palestinians: it is that
they have no right to return to the lands and houses they have lost.
9 In the refugee camps studied by Vetdirame and Harrell-Bond, mobile courts
began to be used in the late 1990s, especially for cases involving sexual violence.
Verdirame sees them as having been quite successful in prosecuting serious vio-
lations of human rights in the very few cases they were able to hear (Verdirame
2013: 273-4).

8. What works? Paradoxes in the human rights field

According to Ann Marie Clark and Kathryn Sikkink, quantitative studies of
human rights are one of the fastest growing fields in research on world politics
(Clark and Sikkink 2013: 540).
2 The beginning of the recent turn to statistical analysis of human rights viola-
tions in the social sciences seems to have been discussions of what has come to
be known as 'the compliance gap': the fact that a state signs and ratifies inter-
national human rights treaties has very little effect on actually ending human
rights violations in that country (see Hathaway 2002; Hafner-Burton and Tsutusi
2005, 2007). Now statistical analyses are concerned more broadly with causal-
ity: with what makes international human rights treaties more or less effect-
ive. The conclusion so far seems to be that domestic mobilisation is key, and it
is especially likely to be effective in transitional democracies (Simmons 2009,
2013; Dai 2013; for a discussion of this conclusion rooted in qualitative method-
ology, see Moyn 2012).
3 Clark and Sikkink show that most statistical analyses of human rights viola-
tions are based on just two sources of information: yearly reports by Amnesty
Notes to pages 157-163 187

International and by the US State Department. The information used by Amnesty

is collected by local NGOs, other observers and sometimes on-site missions. The
US State Department collects information from embassy staff, NGOs and other
observers. This information is not intended for social scientific analysis, and in
fact, the indicators that are used by social scientists - the Political Terror Scale
(PTS) and the Cingranelli-Richards Human Rights Data Set .(CIRI) - are even less
precise than the data provided by Amnesty and the US State Department. The PTS
and the CIRI are developed using indicators to organise the numbers of events in
Amnesty and US State Department reports: they order those numbers on scales
to compare countries over time. In effect, scales re-categorise events, making the
gap between what actually happened and how it is interpreted even wider than
it is in the original data sets (Clark and Sikkink 2013; see also Landman 2006).
4 For accounts of the way in which human rights indicators have been developed,
see Landman 2006; Merry 2011. For a detailed discussion of how social and eco-
nomic human rights indicators might be developed, see UN Human Development
Report 2000.
5 There is.not room here to discuss the extensive social theory of 'fields'. All field
theory is influenced by Bourdieu, but for my purposes his understanding is limited
by his emphasis on competition, on strategic action that is intended to advance
individual, and especially professional interests. For research from a Bourdieuian
perspective on the human rights field, see Madsen 2004, 2011. The other influ-
ential strand of work on fields in this area is on 'world culture' and the diffusion
of norms, which is influenced by, and has influenced, neo-institutionalism (see
Fligstetn and McAdam 2012: 28). Work by Meyer and his colleagues has been
very influential on the study of human rights, most importantly through social
constructivism in IR (Madsen and Verschraegen 2013). The problem with this
work, in contrast, is that it is too focused on co-operation: the diffusion of norms
is seen as the result of mimesis, and questions of power and interpretation are
completely neglected (see Nash 2010: 59-63).
6 My approach to the paradoxes of human rights has been influenced by Joan
Scott's classic study, Only Paradoxes to Offer (Scott 1997); and more recently by
Michael Barnett's mapping of the history of humanitarianism (Barnett 2011).
7 Human rights were synonymous with citizenship rights in the American
Declaration of Independence, the US Bill of Rights, and the French Declaration
of the Rights of Man and of the Citizen that first made the regulation of sov-
ereign states by law an ideal to live up to (see Hunt 2008). It was only as a
member of a political community within a national territory that a person could
have expected to enjoy rights until the Universal Declaration of Human Rights
in 1948. For a very interesting account of the refusal to extend rights to people
subjected in French colonies after the Revolution, and the Haitian Revolution
that. resulted, see Cesaire 1960.
188 Notes to pages 165-171

8 There has been much discussion in recent years of the overlap and the differ-
ences between humanitarianism and human rights. Though they do now over-
lap, humanitarianism and human rights have different histories and they are
contested and defmed in different fields (Krause 2014). It is in this respect that
Michael Barnett- though he outlines the range of humanitarianisms in his glo-
bal history - sees humanitarianism and. human rights as quite distinct in their
core elements (Barnett 2011: 16).
9 The.most notorious recent example is the attempt of lawyers working for the
Bush administration to redefme interrogation techniques that were considered
to amount to torture as acceptable in order to fight the 'Global War on Terror'
(see Hajjar 2013; Khalili 2012). The fact that the Bush administration adopted
a legalistic strategy in public to try to legitimate torture should not, of course,
lead us to suppose that the United States is the only state that is guilty of such
practices.
10 I have argued elsewhere that establishing a 'human rights culture' should be
understood in this way, as a cosmopolitan ethical framework within which
questions concerning 'which human rights?', 'for which subjects?' and 'how are
they to be decided?' might routinely be raised (Nash 2009a).
 Further re9f.ligg

A useful general introduction for those who know very little about human
rights is Michael Freeman, Human Rights: An Interdisciplinary Approach
(Cambridge: Polity, 2011).
Similarly, in general terms, the various editions of Jack Donnelly's Universal
Human Rights in Theory and Practice - all of which are quite different - are ve:ry well
written and cover an immense range of debates. The most recent is Jack Donnelly,
Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press,
2013). An introduction to the making of international human rights law which
is also an invaluable reference to keep by your side is Philip Alston and Ryan
Goodman (eds), International Human Rights (Oxford: Oxford University Press,
2013). For well-written and engaging essays on almost all the topics of human
rights that are covered in this book, see Cindy Holder and David Reidy (eds), Human
Rights: The Hard Questions (Cambridge: Cambridge University Press, 2013).
For the themes dealt with in Chapter 1, the debate between Turner and
Waters on 'the social construction of human rights' has become a classic in
sociology and it helps illuminate what is at stake in thinking of human rights
in this way: B:ryan Turner, 'Outline of a Theory of Human Rights', Sociology 27
1993: 489-512; Malcolm Waters, 'Human Rights and the Universalisation of
Interests', Sociology 30(3) 1996: 593-600; B:ryan Turner, 'A Neo-Hobbesian Theory
of Human Rights: A Reply to Malcolm Waters', Sociology 31(1) 1997: 565-71. Also
useful as a way into these questions is Jack Donnelly's 'The Social Construction
of Human Rights' in Tim Dunne and Nicholas Wheeler (eds), Human Rights
and Global Politics (Cambridge: Cambridge University Press, 1999). The model
of authority I outline in Chapter 1 comes from Michael Barnett and Martha
Finnemore, Rules for the World: International Organizations in Global Politics
(Ithaca: Cornell University Press, 2004). The best collection of writings on culture
and human rights is Jane Cowan, Marie-Benedicte Dembour and Richard Wilson
(eds), Culture and Rights: Anthropological Perspectives (Cambridge: Cambridge
University Press, 2001). I consider the cultural politics of human rights more fully
in Kate Nash, The Cultural Politics of Human Rights: Comparing the US and UK
(Cambridge: Cambridge University Press, 2009). A classic volume of essays on cul-
tural politics - though it is not explicitly on human rights - is Sonia Alvarez,
Evelina Dagnlno and Artur o Escobar (eds), Cultures of Politics, Politics of Cultures
(Colorado: Westview Press, 1998).
On the themes of Chapter 2, Aryeh Neier's The International Human Rights
1\,1',,..,.,,..,.,.,.,,..,.,.4-. A TT,:,...,_ (Tl_.! ..,_ T\ _...! _,.
190 Further reading

and informative - though it is also an example of how the fact that Human Rights
Watch is an INGO (not a movement) is obscured. Margaret Keck and Kathryn
Sikkink, Activists beyond Borders: Advocacy Networks in International Politics
(Ithaca: Cornell University Press, 1998) is now a classic. For interesting case stud-
ies of different forms of organisations that mobilise for human rights the follow-
ing are excellent: Clifford Bob, The Marketing of Rebellion: Insurgents, Media and
International Activism (Cambridge: Cambridge University Press, 2005); Clifford
Bob, The International Struggle for New Human Rights (Philadelphia: University of
Pennsylvania, 2009); Boaventura De Sousa Santos and Cesar Rodriguez-Garavito
(eds), Law and Globalization from Below: Towards a Cosmopolitan Legality
(Cambridge: Cambridge University Press, 2005); Sanjeev Khagram, James Riker
and Kathryn Sikkink (eds), Restructuring World Politics: Transnational Social
Movements, Networks, and Norms (Minneapolis: University of Minnesota Press,
2002); Lucy White and Jeremy Perelman (eds), Stones of Hope: How African
Activists Reclaim Human Rights to Challenge Global Poverty (Stanford: Stanford
University Press, 2002). Harri Englund's Prisoners of Freedom: Human Rights and
the African Poor (Berkeley: University of California Press, 2006) is a salutary warn-
ing against over-optimism with respect to human rights 'from below'.
In general there is a need for far more sociological work on states of human
rights, so it is difficult to recommend further reading for the ideas outlined in
Chapter 3. There has been something of a debate over sovereignty - see Daniel Levy
and Natan Sznaider, 'Sovereignty Transformed: A Sociology of Human Rights', The
British Journal of Sociology 57(4) 2006: 657-76; Kate Nash, Contemporary Political
Sociology: Globalization, Politics, and Power (Chichester: Wiley-Blackwell 2010).
International discourse on states and human rights concern UN attempts to rebuild
'failed states' above all. For a good example of an account by UN 'insiders' see
Ashraf Ghani and Clare Lockhart, Fixing Failed States: A Framework for Rebuilding
a Fractured World (Oxford: Oxford University Press, 2009). From a sociological
point of view, Manuel Castells, End of Millennium (Oxford: Blackwell, 1998) is
exemplary in its attempt to develop different models to understand different types
of states - but it is not on human rights. There is now a growing literature on the
need to understand state formation as linked to the history of colonialism that
offers some interesting leads in this area. Julian Go (ed.), Postcolonial Sociology
(Political Power and Social Theory) (Bingley: Emerald Publishing, 2013) is an excel-
lent collection of writings to this end.
In contrast, there is a very good literature on the UN to follow up on from
Chapter 4. Mark Mazower's enjoyable history of the UN illuminates the structural
limits of geo-politics today: Mark Mazower, Governing the World (London: Allen
Lane, 2012). Similarly engaging is Rosa Freedman, Failing to Protect: The UN and
the Politicisation of Human Rights (London: Hurst and Company, 2014). Sally Engle
Merry gives a very vivid account of bureaucratic processes involved in human
rights monitoring in Human Rights and Gender Violence: Translating International
 Further reading 191

Law into Local Justice (Chicago: University of Chicago Press, 2006). Michael
Barnett's Eyewitness to a Genocide: The United Nations and Rwanda (Ithaca: Cornell
University Press, 2003) is a shocking story as well as a forensic analysis of what
went wrong. For accessible and interesting accounts of debates over 'humanitarian
intervention', US imperialism and 'the Responsibility to Protect', see Anne Orford,
International Authority and the Responsibility to Protect (Cambridge: Cambridge
University Press, 2011) and Alex Bellamy, Responsibility to Protect: The Global
Effort to End Mass Atrocities (Cambridge: Polity, 2009).
There is also a lack of work on capitalism and human rights that is the theme of
Chapter 5 - though many of the case studies in the edited volumes listed as further
reading for Chapter 2 are relevant here as they address social and economic rights.
The most important books that argue for the compatibility of global capitalism and
human rights are Rhona Howard-Rassman, Can Globalization Promote Human Rights?
(Philadelphia: University of Pennsylvania Press, 2010) and David Kinley, Civilising
Globalisation: Human Rights and the Global Economy (Cambridge: Cambridge
University Press, 2009). Galit Sarfaty has written a book on her ethnographic study
of human rights at the World Bank: Values in Translation: Human Rights and the
Culture of the World Bank (Stanford: Stanford University Press, 2012). Ray Kiely's
Rethinking Imperialism (Basingstoke: Palgrave Macmillan, 2010) is good on the big
picture of global economics over the last few decades - though it is not specifically on
human rights. On 'local communitarianism' and human rights, as well as chapters in
the collections on movements listed in the paragraph above for Chapter 3, especially
interesting is Mark Edelman and Carwil Bjork-James, 'Peasants' Rights and the UN
System: Quixotic Struggle? Or Emancipatory Idea whose Time has Come?', The Journal
of Peasant Studies 38(1) 2011: 81-108.
On gender violence and women's human rights, Sally Engle, Human
Rights and Gender Violence: Translating International Law into Local Justice
(Chicago: University of Chicago Press, 2006) is the most important in-depth study.
For criticisms of 'governance feminism', including case studies, it is worth looking
at Janet· Halley, Prabha Kotiswaran, Hila Shamir and Chantal Thomas, 'From the
International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex
World, and Sex Trafficking: Four Studies in Contemporary Governance Feminism',
Harvard Journal of Law and Gender 29 2006: 335-423. On the NGO-isation of
the women's movement, it is worth comparing Sonia Alvarez, 'Latin American
Feminisms "Go Global":Trends of the 1990s and Challenges for the New Millennium'
in Sonia Alvarez, Evelina Dagnino and Arturo Escobar, Cultures of Politics, Politics
of Cultures (Colorado: Westview Press, 1998) with Maxine Molyneux and Sian
Lazar, Doing the Rights Thing: Rights-based Development and Latin American NGOs
(London: ITDG Publishing, 2003). Despite its rather old-fashioned title, Rajeswari
Sunder Rajan's chapter 'Women's Human Rights in the Third World' in N. Bamford
(ed.), Sex Rights (Oxford: Oxford University Press, 2005) is a good and reasonably
up-to-date introduction to human rights and women's mobilisations in India.
192 Further reading

Although it is just a few pages of the book, the section on human rights in Hannah
Arendt's Origins of Totalitarianism (New York: Harcourt Brace, 1979) is so often the
starting point of discussions of migrants' rights that it is well worth following up. It
is also important to remember the historical context of Arendt's writings, however;
she was writing before the legal framework and the mobilisations for migrants'
rights that we see today. Marie-Benedicte Dembour and Tobias Kelly (eds), Are
Human Rights for Migrants: Critical Reflection on the Status of Irregular Migrants
in Europe and the United States (London: Routledge, 2012) is an excellent collec-
tion. On post-national citizenship Yasemin Soysal, Limits of Citizenship: Migrants
and Postnational Membership in Europe (Chicago: University of Chicago, 1994) is
a classic. I have written an appreciative but critical appraisal of her argument in·
Kate Nash, 'Between Citizenship and Human Rights', Sociology 43(6) 2009: 1067-
83. Guglielmo Verdirame and Barbara Harrell-Bond, Rights in Exile: Janus-Faced
Humanitarianism (New York: Berghahn Books, 2005) is a detailed account of
human rights violations in refugee camps. The essays in Gil Loescher, James Milner,
Edward Newman and Gary Troeller (eds), Protracted Refugee Situations: Political,
Human Rights and Security Implications (Tokyo: United Nations University, 2008)
are also critical, but somewhat more sympathetic to the difficulties of working
within the structural limitations of the UNHCR.
For more discussion of the measurement of human rights violations, it is
worth following up Chapter 8 by reading Sally Engle Merry, 'Measuring the
World: Indicators, Human Rights, and Global Governance', Current Anthropology
52(3) 2011: 583-95 and Ann Marie Clark and Kathryn Sikkink, 'Information Effects
and Human Rights Data', Human Rights Quarterly 35(3) 2013: 539-68. I discuss
how I understand 'field' more fully in Kate Nash, The Cultural Politics of Human
Rights: Comparing the US and UK (Cambridge: Cambridge University Press, 2009).
 Bibliogr§lla}'

Abbott, K. and Snidal, D. (2001) 'Hard and Soft Law in International Governance'
in J. Goldstein, M. Kahler, R. Keohane and A.-M. Slaughter (eds)
Legalization and World Politics, Cambridge, MA: MIT Press.
Abrams, P. (2006) 'Notes on the Difficulty of Studying the State' in A. Sharma and
A. Gupta (eds) The Anthropology of the State: A Reader, Oxford: Blackwell.
Abu-Lughod, L. (2013) Do Muslim Women Need Saving, Cambridge, MA: Harvard
University Press.
Acosta, A. (2013) 'Extractivism and Neoextractivism: Two Sides of the Same
Curse' in M. Lang and D. Mokrani (eds) Beyond Development: Alternative
Visions from Latin America, Quito: Rosa Luxemburg Foundation.
Alexander, J. (2003) The Meanings of Social Life: A Cultural Sociology,
Oxford: Oxford University Press.
Alston, P. (ed.) (2005) Non-State Actors and Human Rights, Oxford: Oxford
University Press.
Alston, P. and Crawford, J. (eds) (2000) The Future of UN Human Rights Treaty
Monitoring, Cambridge: Cambridge University Press.
Alston, P. and Goodman, R. (eds) (2013) International Human Rights, 4th edition,
Oxford: Oxford University Press.
Alvarez, S. (1998) 'Latin American Feminisms "Go Global": Trends of the 1990s
and Challenges for the New Millennium' in S. Alvarez, E. Dagnino and A.
Escobar, Cultures of Politics, Politics of Cultures, Colorado: Westview Press.
Alvarez, S., Dagnino, E. and Escobar, A. (1998) Cultures of Politics, Politics of
Cultures, Colorado: Westview Press.
Amnesty International (2009) 'Dodging Responsibility: Corporations, Governments
and the Bhopal Disaster', www.amnesty.org.au/images/uploads/aus/Bophal.
pdf (last accessed 20 February 2012).
Amnesty International (2011) Don't Trade Away Women's Human Rights,
London: Amnesty International.
Amnesty International (2012) Press Release: 'Court Decision in Kilwa
Massacre Case Denies Right to Remedy for Victims of Corporate Human
Rights Abuses', www.amnesty.org/en/library/asset/AMR20/002/2012/
en/9b 197 ecf-c7 43-4f4a-809f- 3f83e96207 53/amr200022012en.html (last
accessed 17 February 2012).
Amnesty International (2013a) Iraq: A Decade of Abuses, London: Amnesty
International.
194 Bibliography

Amnesty International (2013b) 'Major Powers Fuelling Atrocities: Why the

World Needs a Robust Arms Trade', www.amnesty.org/en/library/
asset/ACT30/001/2013/en/4f9b654c-47a4-49ae-8cba-c0a02011ade8/
act300012013en.pdf (last accessed 1 December 2014).
Amnesty International USA (2013) 'Toe Afghan Women and Girls Security
Promotion Act Is Now Law', www.amnestyusa.org/our-work/
latest-victories/the-afghan-women-and-girls-security-promotion-act-is-
now-law (last accessed 20 August 2014).
Andreas, P. and Greenhill, K. (eds) (2010) Sex, Drugs and Body Counts: The
Politics of Numbers in Global Crime and Conflict, Ithaca: Cornell
University Press.
Araujo, S. (2010) 'Toe Promise and Challenges of Food Sovereignty in Latin
America', Yale Human Rights and Development Law Journal 13: 493-506.
Archibold, R. (2010) 'Arizona Enacts Stringent Law on Immigration', New York
Times, 23 April 2010.
Arendt, H. (1979) Origins of Totalitarianism, New York: Harcourt Brace.
Arieff, A., Margesson, R. and Browne, M.A. (2009) 'International Criminal Court
Cases in Africa: Status and Policy Issues', Library of Congress, Washington,
DC, Congressional Research Service.
Asad, T. (2003) Formations of the Secular: Christianity, Islam, Modernity,
Stanford: Stanford University Press.
Ayoob, M. and Zierler, M. (2005) 'The Unipolar Concert: The North-South Divide
Trumps Transatlantic Difficulties', World Policy Journal: 31-42.
Badie, B. (2000) The Imported State: The Westernization of the Political Order,
Stanford: Stanford University Press.
Barnett, M. (2003) Eyewitness to a Genocide: The United Nations and Rwanda,
Ithaca: Cornell University Press.
(2011) Empire of Humanity: A History of Humanitarianism, Ithaca: Cornell
University Press.
Barnett, M. and Finnemore, M. (2004) Rules for the World: International
Organizations in Global Politics, Ithaca: Cornell University Press.
Basu, A. (1995) The Challenge of Local Feminisms: Women's Movements in Global
Perspective, Boulder: Westview Press.
Batliwala, S. (2002) 'Grassroots Movements as Transnational Actors: Implications
for Global Civil Society', Voluntas: International Journal of Voluntary and
Nonprofit Organizations 13(4): 393-409.
Baubock, R. (2002) 'Political Community Beyond the Sovereign State,
Supranational Federalism, and Transnational Minorities' in S. Vertovec and
R. Cohen (eds) Conceiving Cosmopolitanism: Theory, Context and Practice,
Oxford: Oxford University Press.
Baxi, U. (2008) The Future of Human Rights, 3rd edition, Oxford: Oxford
University Press.
Bayart, J.-F. (2009) The State in Africa: The Politics of the Belly, 2nd edition,
Cambridue: Politv.
 Bibliography 195

Bayefsky, A. (2011) The UN Human Rights Treaty System in the 21st Century, Toe
Hague: Kluwer Law International.
Beck, U. and Beck-Gernsheim, E. (2001) Individualization: Institutionalized
Individualism and its Social and Political Consequences, London: Sage.
Beck, U. and Grande, E. (2007) Cosmopolitan Europe, Cambridge: Polity.
Belausteguigoitla, M. (2000) 'Toe Right to Rest: Women's Struggles to be Heard in
the Zapatistas' Movement', Development 43(3): 81-7.
Bellamy, A. (2009) Responsibility to Protect: The Global Effort to End Mass
Atrocities, Cambridge: Polity.
Bellamy, A. and Williams, P. (2010) Understanding Peacekeeping, Cambridge: Polity.
Bello, W. (2004) Deglobalization: Ideas for a New World Economy, London:
Zed Books.
Belloni, R. (2008) State-Building and International Intervention in Bosnia,
London: Routledge. ,
Benenson, P (1961) 'Forgotten Prisoners', Observer, www.theguardian.com/theob-
server/2001/may/27/lifel.lifemagazine5 (last accessed 9 December 2013).
Benhabib, S. (2004) The Rights of Others: Aliens, Residents and Citizens,
Cambridge: Cambridge University Press.
(2007) 'Twilight of Sovereignty or the Emergence of Cosmopolitan Norms?
Rethinking Citizenship in Volatile Times', Citizenship Studies 11(1): 19-36.
Berger, P. and Luckmann, T. (1991) The Social Construction of Reality: A Treatise
in the Sociology of Knowledge, London: Penguin.
Bhabha, J. (1996) 'Embodied Rights: Gender Persecution, State Sovereignty, and
Refugees', Public Culture 9: 3-32.
(2002) 'International Gatekeepers? Toe Tension Between Asylum Advocacy and
Human Rights', Harvard Human Rights Journal 15: 155-81.
Bhambra, G. (2007) Rethinking Modernity: Postcolonialism and the Sociological
Imagination, Houndmills: Palgrave Macmillan.
Bhatt, C. (2012) 'Human Rights and the Transformation of War', Sociology
46(5): 813-28.
Blau, J. and Moncado, A. (2005) Human Rights Beyond the Liberal Vision,
Lanham: Rowman a Littlefield.
(2007) Freedoms and Solidarities: In Pursuit of Human Rights, Lanham and
Boulder: Rowman a Littlefield.
Bloch, A. and Chimienti, M. (2011) 'Irregular Migration in a Globalising World',
Ethnic and Racial Studies 34(8): 1271-85.
Bob, C. (2005) The Marketing of Rebellion: Insurgents, Media and International
Activism, Cambridge: Cambridge University Press.
(2009) The International Struggle for New Human Rights,
Philadelphia: University of Pennsylvania.
Boltanski, L. (2011) On Critique: A Sociology of Emancipation, Cambridge: Polity.
Borras, S. and Franco, J. (2010) 'From Threat to Opportunity? Problems with the
Idea of a "Code of Conduct" for Land-Grabbing', Yale Human Rights and
Development Law Journal 13: 507-23. ·
196 Bibliography

Bosniak, L. (2006) The Citizen and the Alien: Dilemmas of Contemporary

Membership, Princeton: Princeton University Press.
(2011) 'Human Rights within One State: Dilemmas of Personhood in Liberal
Constitutional Thought', in M.-B. Dembour and T. Kelly (eds) Are Human
Rights for Migrants: Critical Reflection on the Status of Irregular Migrants
in Europe and the United States, London: Routledge.
Bourdieu, P. (1979) Outline of a Theory of Practice, Cambridge: Cambridge
University Press.
Brahimi, L. (2007) 'State-Building in Crisis and Post-Conflict Countries', presented
at the 7th Global Forum on Reinventing Government Building Trust in
Government, Vienna, Austria, http://unpanl.un.org/intradoc/groups/public/
documents/un/unpan026305.pdf (last accessed 2 March 2015).
Branford, S. (2009) 'Brazil: Has the Dream Ended?' in G. Lievesley and S. Ludlam
(eds) Reclaiming Latin America: Experiments in Radical Social Democracy,
London: Zed Books.
Brick, K. (2011) Regularizations in the European Union: The Contentious Policy
Tool, Washington, DC: Migration Policy Institute.
Brock, L., Holm, H.-H., Sorenson, G. and Stohl, M. (2012) Fragile States,
Cambridge: Polity.
Brown, W. (1995a) 'Rights and Losses' in States of Injury: Power and Freedom in
Late Modernity, Princeton: Princeton University Press.
(1995b) 'Rights and Identity in Late Modernity: Revisiting the "Jewish
Question"' in A. Sarat and T. Kearns (eds) Identities, Politics, Rights, Ann
Arbor: University of Michigan Press.
(2002) 'Suffering Rights as Paradoxes', Constellations 7(2): 208-29.
Bruno, K. and Karline, J. (2000) 'Tangled Up In Blue: Corporate Partnerships at
the United Nations', www.corpwatch.org/article.php?id=996 (last accessed 7
February 2012).
Butler, J. (2005) 'On Being Beside Oneself: On the Limits of Sexual Autonomy' in
N. Bamford (ed.) Sex Rights, Oxford: Oxford University Press.
Calhoun, C. (2013) 'The Idea of Emergency: Humanitarian Action and Global
(Dis)Order' in D. Fassin and M. Pandolfi (eds) Contemporary States of
Emergency: The Politics of Military and Humanitarian Interventions,
Cambridge, MA: Zone Books.
Calhoun, C. and Derluguian, G. (eds) (2011) Business as Usual: The Roots of the
Global Financial Meltdown, New York: New York University Press.
Call, C. and Wyeth, V. (eds) (2008) Building States to Build Peace, Boulder: Lynne
Rienner Publishers.
Campbell, K. (2007) 'The Gender of Transitional Justice: Law, Sexual Violence
and the International Criminal Tribunal for the Former Yugoslavia', The
International Journal of Transitional Justice 1: 411-32.
Cardenas, S. (2010) Human Rights in Latin America: A Politics of Terror and
Hope, Philadelphia: University of Pennsylvania.
 Bibliography 197

Castells, M. (1997) The Power of Identity, Oxford: Blackwell.

(1998) End of Millennium, Oxford: Blackwell.
(2001) Internet Galaxy: Reflections on the Internet, Business and Society,
Oxford: Oxford University Press.
Castles, S. (2004) 'The Factors That Make and Unmake Migration Policies',
International Migration Review 38(3): 852-84.
Castles, S., De Haas, H. and Miller, M. (2014) The Age of Migration: International
Population Movements in the Modern World, Basingstoke: Palgrave
Macmillan.
Cesaire, A. (1960) Toussaint Louverture: la Revolution Francaise et le probleme
colonial, Paris: le club francais du livre.
Chandler, D. (2006) Empire in Denial: The Politics of State-Building, London: Pluto.
Chang, H.-J. (2010a) 23 Things They Don't Tell You About Capitalism,
Harmondsworth: Penguin.
(2010b) 'Hamlet without the Prince of Denmark: How Development has
Disappeared from Today's "Development" Discourse' in S. Khan and J.
Christiansen (eds) Towards New Developmentalism: Markets as Means
rather than Master, London: Routledge.
Charlesworth, H. and Chinkin, C. (2006) 'The Gender of Jus Cogens' in B.
Lockwood (ed.) Women's Rights: A Human Rights Quarterly Reader,
Baltimore: Johns Hopkins University Press.
Chatterjee, P. (2004) The Politics of the Governed: Reflections on Popular Politics
in Most of the World, New York: Columbia University Press.
Cherif Bassiouni, M. and Schabas, W. (eds) {2011) New Challenges for the UN
Human Rights Machinery: What Future for the UN Treaty Body System and
the Human Rights Council Procedures, Cambridge: Intersentia.
Chesterman, S. (2004) You, The People: The United Nations, Transitional
Administration, and State-Building, Oxford: Oxford University Press.
Ching, F. (2008) China: The Truth about its Human Rights Record, London: Rider.
Claeys, P. (2012) 'The Creation of New Rights by the Sovereignty Movement: The
Challenge of Institutionalizing Subversion', Sociology 46(5): 844-60.
Clapham, A. (2006) Human Rights Obligations of Non-State Actors,
Oxford: Oxford University Press.
Clark, A. (2001) Diplomacy of Conscience: Amnesty International and Changing
Human Rights Norms, Princeton: Princeton University Press.
Clark, A. and Sikkink, K. (2013) 'Information Effects and Human Rights Data',
Human Rights Quarterly 35(3): 539-68.
Clark, P. (2007) 'In the Shadow of the Volcano: Democracy and Justice in Congo',
Dissent, www.dissentmagazine.org/article/?article=724 (last accessed 30
November 2010).
Cohn, C. (2008) 'Mainstreaming Gender in UN Security Policy' in S. Rai and G.
Waylen, Global Governance: Feminist Perspectives, Basingstoke: Palgrave
Macmillan.
198 Bibliography

Comaroff, J. and Comaroff, J. (2012) Theory From the South or How

Euro-America Is Evolving Toward Africa, Boulder: Paradigm Publishers.
Committee on Legal Affairs and Human Rights of the Council of Europe (2006)
'Alleged Secret Detentions and Unlawful Inter-State Transfers Involving
Council of Europe Member States', 7 June 2006, http://assembly.coe.int/
committeedocs/2006/20060606_ejdoc162006partii-fmal.pdf (last accessed 1
December 2014).
Conill, J., Castells, M., Cardenas, A. and Servon, L. (2012) Beyond the
Crisis: The Emergence of Alternative Economic Practices, Oxford: Oxford
University Press.
Coomaraswamy, R. (1994) 'To Bellow like a Cow: Women, Ethnicity and the
Discourse of Rights' in R. Cook (ed.) Human Rights of Women: National and
International Perspectives, Philadelphia: University of Pennsylvania Press.
Copelan, R. (1994) 'Intimate Terror: Understanding Domestic Violence as Torture'
in R. Cook (ed.) Human Rights of Women: National and International
Perspectives, Philadelphia: University of Pennsylvania Press.
Cowan, A. (2012) 'A New Watershed? Re-evaluating Bankovicin Light of
Al-Skeini', Cambridge Journal of International and Comparative Law
1(1): 213-27.
Cowan, J., Dembour, M.-B. and Wilson, R. (2001) Culture and
Rights: Anthropological Perspectives, Cambridge: Cambridge
University Press.
Crisp, J. (2003) 'New Solution in Sight: The Problem of Protracted Refugee
Situations in Africa', New Issues in Refugee Research No.75, UNHCR.
Crouch, C. (2011) The Strange Non-Death of NeoLiberalism, Cambridge: Polity.
Curtis, B. (1995) 'Taking the State Back Out: Rose and Miller on Political Power',
The British Journal of Sociology 46(4): 575-89.
Curtis, P. (2011) 'Reality Check: Can Owning a Cat be Grounds for Appeal against
Deportation?', Guardian, 4 October, www.theguardian.com/politics/reality-c
heck-with-polly-curtis/2011/oct/04/reality-check-cat-theresa-may (last
accessed 24 March 2014).
Dai, X. (2013) 'The "Compliance Gap" and the Efficacy of International
Institutions' in T. Risse, S. Ropp and K. Sikkink (eds) The Persistent Power
of Human Rights: From Commitment to Compliance, Cambridge: Cambridge
University Press.
De Brouwer, A.-M. (2005) Supranational Criminal Prosecution of Sexual
Violence: The ICC and the Practice of the ICTY and the ICTR, Intersentia nv.
Decoteau, C.L. (2013) 'Hybrid Habitus: Towards a Post-Colonial Theory of Practice'
in J. Go (ed.) Postcolonial Sociology (Political Power and Social Theory),
Bingley: Emerald Publishing.
Delanty, G. (2000) Citizenship in a Global Age, Buckingham: Open
University Press.
Della Porta, D. (ed.) (2007) The Global Justice Movement: Cross-National and
Transnational Perspectives, Colorado: Paradigm Publishers.
 Bibliography 199

Della Porta, D. and Diani, M. (2005) Social Movements: An Introduction,

Oxford: Wiley-Blackwell.
Dembour, M.-B. (2001) 'Following the Movement of the Pendulum: Between
Universalism and Relativism' in J. Cowan, M.-B. Dembour and
R. Wilson (eds) Culture and Rights: Anthropological Perspectives,
Cambridge: Cambridge University Press.
(2006) Who Believes in Human Rights? Reflections on the European Convention,
Cambridge: Cambridge University Press.
Dembour, M.-B. and Kelly, T. (eds) (2012) Are Human Rights for Migrants: Critical
Reflection on the Status of Irregular Migrants in Europe and the United
States, London: Routledge.
Desmarais, A. (2007) La Via Campesina, London: Pluto Press.
Diani, M. (1992) 'The Concept of Social Movement', Sociological Review 40: 1-25.
Dieter, H. (2008) 'The Failure of the IMF', The German Times, www.german-times.
com/index. php? option=com_contentB:task=viewEtid= 100728:Itemid= 112
(last accessed 2 March 2012).
Dodge, T. (2013) Iraq: From War to a New Authoritarianism, London: Routledge.
(2014) 'Iraq Doesn't Have to Fall Apart', Guardian, 13 June.
Donnelly, J. (1999) 'The Social Construction of Human Rights' in T. Dunne and
N. Wheeler (eds) Human Rights and Global Politics, Cambridge: Cambridge
University Press.
(2006) 'Sovereign Inequalities and Hierarchy in Anarchy: American Power
and International Society', European Journal of International Relations
12(2): 139-70.
(2013) Universal Human Rights in Theory and Practice, 3rd edition,
Ithaca: Cornell University Press.
Doogan, K. (2009) New Capitalism? The Transformation of Work,
Cambridge: Polity.
Douzinas, C. (2000) The End of Human Rights, Oxford: Hart Publishing.
(2007) Human Rights and Empire: The Political Philosophy of Cosmopolitanism,
Abingdon, Oxford and New York: Routledge-Cavendish.
Doyle, M. and Sambanis, N. (2006) Making War and Building Peace,
Princeton: Princeton University Press.
Dreyer, J. (2010) China's Political System: Modernization and Tradition, 7th edi-
tion, New York: Longman;
Dreze, J. and Sen, A. (2013) An Uncertain Glory: India and Its Contradictions,
London: Penguin.
Dudai, R. (2009) '"Can you describe this?" Human Rights Reports and What
They Tell Us About the Human Rights Movement' in R. Wilson and R.
Brown (eds) Humanitarianism and Suffering: The Mobilization of Empathy,
Cambridge: Cambridge University Press.
Edelman, M. (2012) 'Rural Social Movements' in E. Amenta, K. Nash and
A. Scott (eds) The Wiley-Blackwell Companion to Political Sociology,
Chichester: Wilev-Blackwell.
200 Bibliography

Edelman, M. and James, C. (2011) 'Peasants' Rights and the UN System: Quixotic
Struggle? Or Emancipatory Idea Whose Time has Come?', The Journal of
Peasant Studies 38(1): 81-108.
Edwards, A. (2011) Violence Against Women under International Human Rights
Law, Cambridge: Cambridge University Press.
Engle, K. (2007) '"Calling in the Troops": The Uneasy Relationship Among
Women's Rights, Human Rights, and Humanitarian Intervention', Harvard
Journal of International Law 20: 189-226.
Engle, S. (2006) Human Rights and Gender Violence: Translating International
Law into Local Justice (Chicago: University of Chicago Press).
Englund, H. (2006) Prisoners of Freedom: Human Rights and the African Poor,
Berkeley: University of California Press.
Escobar, A. (1995) Encountering Development: The Making and Unmaking of the
Third World, Princeton: Princeton University Press.
Bsping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism, Cambridge:
Polity.
European Coalition for Economic Justice (2013) 'The decision released by the US
Supreme Court in the Kiobel v. Shell case highlights the need for European
states to protect human rights against business' www.corporattjustice.org/
The-decision-released-by-the-U-S.html (last accessed 22 April 2015).
Ferree, M.M. and Tripp, A.M. (eds) (2006) Global Feminism: Transnational
Women's Activism, Organizing and Human Rights, New York: New York
University Press.
Ferris, E. (2008) 'Protracted Refugee Situations, Human Rights and Civil Society'
in G. Loescher, J. Milner, E. Newman and G. Troeller (eds) Protracted
Refugee Situations: Political, Human Rights and Security Implications,
Tokyo: United Nations University.
Flaherty, M. (2002) Human Rights and the UN: Practice Before the Treaty Bodies,
2nd edition, The Hague: Kluwer Law International.
Fligstein, N. and McAdam, D. (2012) A Theory of Fields, Oxford: Oxford
University Press.
Flynn, M. and Cannon, C. (2010) 'Detention at the Borders of Europe: Report on the
Joint Global Detention Project', www.globaldetentionproject.org/fileadmin/
publications/GDP_Workshop_Report_2010.pdf (last accessed 14 April 2014).
Forbath, W. with Achmat, Z., Budlender, G. and Heywood, M. (2011) 'Cultural
Transformation, Deep Institutional Reform and ESR Practice: South Africa's
Treatment Action Campaign' in L. White and J. Perelman (eds) Stones of
Hope: How African Activists Reclaim Human Rights to Challenge Global
Poverty, Stanford: Stanford University Press.
Foucault, M., Burchell, G., Gordon, C. and Miller, P. (eds) (1991) The Foucault
Effect: Studies in Governmentality, Chicago: University of Chicago Press.
Fox, J. and Brown, L. (1998) The Struggle for Accountability: The World Bank,
NGOs and Grassroots Movements, Cambridge, MA: MIT Press.
 Bibliography 201

Fraser, N. (2008) 'From Discipline to Flexibilisation? Rereading Foucault in the

Shadow of Globalization' in Scales of Justice, Cambridge: Polity.
Freedman, R. (2014) Failing to Protect: The UN and the Politicisation of Human
Rights, London: Hurst and Company.
Freeman, M. (2011) Human Rights: An Interdisciplinary Approach,
Cambridge: Polity.
Friedman, S. and Mottiar, S. (2005) 'A Rewarding Engagement? The Treatment
Action Campaign and the Politics ofHN/AIDS', Politics and Society 33(4):
511-65.
Fruttero, A. and Gauri, V. (2005) 'The Strategic Choices of NGOs: Location
Decisions in Rural Bangladesh', The Journal of Development Studies
41(5): 759-87.
Fuller, C.J. and Harriss, J. (eds) (2001) The Everyday State and Society in Modern
India, New Delhi: Social Science Press.
Gargarella, R. (2013) Latin American Constitutionalism 1810-2010: The Engine
Room of the Constitution, Oxford: Oxford University Press
Gauri, V. and Brinks, D. (2008) Courting Social Justice: Judicial
Enforcement of Social and Economic Rights in the Developing World,
Cambridge: Cambridge University Press.
Ghani, A. and Lockhart, C. (2009) Fixing Failed States: A Framework for
Rebuilding a Fractured World, Oxford: Oxford University Press.
Gibney, M. (2005) 'Beyond the Bounds of Responsibility: Western States
and Measures to Prevent the Arrival of Refugees', Global Migration
Perspectives, No. 22, www.refworld.org/docid/42ce4f304.html (last accessed
14 April 2014).
Gibson-Graham, J.K. (2006) A Postcapitalist Politics, Minneapolis: University of
Minnesota Press.
Giddens, A. (1984) The Constitution of Society, Cambridge: Polity.
(1985) The Nation-State and Violence, Cambridge: Polity.
Go, J. (ed.) (2003) 'A Globalizing Constitutionalism? Views from the Postcolony,
1945-2000', International Sociology 18(1): 71-95.
(2013) Postcolonial Sociology (Political Power and Social Theory),
Bingley: Emerald Publishing.
Goffman, E. (1986) Frame Analysis: An Essay on the Organization of Experience,
Boston: Northeastern University Press.
Golash-Boza, T. and Menjivar, C. (2012) 'Causes and Consequences of
International Migration: Sociological Evidence for the Right to Mobility',
The International Journal of Human Rights 16(8): 1213-27.
Goldfarb, S. (2011) 'A Clash of Cultures: Women, Domestic Violence, and Law in
the United States' in D. Hodgson (ed.) Gender and Culture at the Limit of
Rights, Philadephia: University of Pennsylvania Press.
Goldstein, D. (2007) 'Human Rights as Culprit, Human Rights as Victim: Rights
and Security in the State of Exception' in M. Goodale and S. Merry (eds)
202 Bibliography

The Practice of Human Rights: Tracking Law Between the Global and the
Local, Cambridge: Cambridge University Press.
Goud, J.-P., Kabeer, N. and Moon, J. (2011) 'The Government of
Self-Regulation: On the Dynamics of Corporate Social Responsibility',
Economy and Society 40(4): 640,--71.
Goodwin-Gill, S. (2007) The Refugee in International Law, Oxford: Oxford
University Press.
Grant, S. (2011) 'The Recognition of Migrants' Rights within the UN Human Rights
System: The First 60 Years' in M.-B. Dembour and T. Kelly (eds) Are Human
Rights for Migrants: Critical Reflection on the Status of Irregular Migrants
in Europe and the United States, London: Routledge.
Greatly, P. (2004) fighting for Human Rights, London: Routledge.
Grewal, I. (1999) '"Women's Rights as Human Rights": Feminist Practices, Global
Feminism, and Human Rights Regimes in Transnationality', Citizenship
Studies 3(3): 337-54.
Guardian (2013) 'Taliban Peace Talks: "Peace and Reconciliation" Negotiations to
take Place in Qatar', www.theguardian.com/world/2013/jun/18/us-peace-ta
lks-taliban-afghanistan (last accessed l September 2014).
Guardian (2014) 'Snowden Welcomes Obama's Plans for NSA Reform
as "Turning Point"', www.theguardian.com/world/2014/mar/25/
edward-snowden-welcomes-obama-nsa-reforms (last accessed 2 July 2014).
Gudynas, E. (2010) 'The New Extractivism of the 21st Century: Ten Urgent Theses
about Extractivism in Relation to Current South American Progressivism',
Americas Policy Program, www 10.iadb.org/intal/intalcdi/PE/2010/04 716.pdf
(last accessed 1 August 2014).
Gunning, I. (2002) 'Global Feminism at the Local Level: The Criminalization
of Female Genital Surgeries' in F. Valdes, J. Culp and A. Harris
(eds) Crossroads, Directions and a New Critical Race Theory,
Philadelphia: Temple University Press.
Guttal, S. (2008) 'Client and Competitor: China and International Financial
Institutions' in D.-G. Guerrero and F. Manji (eds) China's New Role in
Africa and the South, Cape Town: Networks for Social Justice.
Hafner-Burton, E. and Tsutusi, K. (2005) 'Human Rights Practices in a Globalizing
World: The Paradox of Empty Promises', American Journal of Sociology
110(5): 1373-411.
(2007) 'Justice Lost! The Failure of International Human Rights Law to Matter
Where Needed Most', Journal of Peace Research 44(4): 407-25.
Hajjar, L. (2013) Torture: A Sociology of Violence and Human Rights,
London: Routledge.
Halley, J. (2004) 'Take a Break from Feminism?' in K. Knop (ed.) Gender and
Human Rights, Oxford: Oxford University Press.
(2006) 'Describing Governance Feminism' in J. Halley, P. Kotiswaran, H. Shamir
and C. Thomas 'From the International to the Local in Feminist Legal
RPsnonsPs to Rane. Prostitution/Sex World. and Sex Trafficking: Four
 Bibliography 203

Studies in Contemporary Governance Feminism', Harvard Journal of Law

and Gender 29: 335-423.
Halley, J., Kotiswaran, P., Shamir, H. and Thomas, C. (2006) 'From the
International to the Local in Feminist Legal Responses to Rape, Prostitution/
Sex World, and Sex Trafficking: Four Studies in Contemporary Governance
Feminism', Harvard Journal of Law and Gender 29: 335-423.
Hansen, T. and Stepputat, F. (2005) Sovereign Bodies: Citizens, Migrants and
States in the Postcolonial World, Princeton: Princeton University Press.
Harvey, D. (2003) The New Imperialism, Oxford: Oxford University Press.
(2005) A Brief History of Neo-Liberalism, Oxford: Oxford University Press.
Hathaway, 0. (2002) 'Do Treaties Make a Difference? Human Rights Treaties and
the Problem of Compliance', Yale Law Journal 111: 1932-2042.
Held, D. (1995) Democracy and Global Order: From the Modern State to
Cosmopolitan Governance, Cambridge: Polity Press.
(2004) Global Covenant: The Social Democratic Alternative to the Washington
Consensus, Cambridge: Polity.
Heywood, M. (2008) 'Can Campaigns to Prevent and Treat HIV and AIDS Revive
and Strengthen Campaigns for the Right to Health, Access to Legal Services
and Social Justice?', www.tac.org.za/community/heywood (last accessed 8
August 2013). ·
(2009) 'South Africa's Treatment Action Campaign: Combining Law and Social
Mobilization to Realize the Right to Health', Journal of Human Rights
Practice 1: 14-36.
Hilhorst, D. (2003) The Real World of NGOs: Discourses, Diversity and
Development, London: Zed Books.
Hilhorst, D. and Jansen, B. (2012) 'Constructing Rights and Wrongs in
Humanitarian Action', Sociology 46(5): 891-905.
Holder, C. and Reidy, D. (eds) (2013) Human Rights: The Hard Questions,
Cambridge: Cambridge University Press.
Holt-Gimenez, E. and Patel, R. (2009) Food Rebellions! Crisis and the Hunger for
Justice, Cape Town: Pambazuka Press.
Hoogevelt, A. (2001) Globalization and the Postcolonial World: The New Political
Economy of Development, 2nd edition, Basingstoke: Palgrave,
Hopgood, S. (2006) Keepers of the Flame, Ithaca: Cornell University Press.
(2011) 'Amnesty International's Growth and Development since 1961' in W. de
Jonge, B. McGorrigle Leyh, A. Mihr and L. van Troost (eds) 50 Years of
Amnesty International - Reflections and Perspectives, Utrecht: SIM.
Howard-Rassman, R. (2010) Can Globalization Promote Human Rights?
Philadelphia: University of Pennsylvania Press.
Howe, A. (2012) 'SB 1070: In Plain English', www.scotusblog.com/2012/06/s-b-
1070-in-plain-english/ (last accessed 14 April 2014).
Hsing, Y. (2010) The Great Urban Transformation: Politics of Land and Property in
China, Oxford: Oxford University Press.
204 Bibliography

Hsing, Y. and Lee, C. (eds) (2010) Reclaiming Chinese Society: The New Social
Activism, London: Routledge.
Human Rights Watch (1999) 'Genocide in Rwanda', www.hrw.org/reports/1999/
rwanda/Genol-3-04.htm (last accessed 2 September 2014).
Human Rights Watch (2013a) 'Russia: Harsh Toll of "Foreign Agents" Law',
www.hrw.org/news/2013/06/25/russia-harsh-toll-foreign-agents-law (last
accessed 8 August 2013).
Human Rights Watch (2013b) 'Unwelcome Guests: Iran's Violation of Afghan
Refugee and Migrant Rights', www.hrw.org/reports/2013/l1/20/
unwelcome-guests-O (last accessed 28 April 2014).
Hunt, L. (2008) Inventing Human Rights: A History, New York: W.W. Norton Et Co.
Hynes, P:, Lamb, M., Short D. and Waites, M. (2012) 'Editorial Foreword to Special
Issue on the Sociology of Human Rights', Sociology 46/5: 787-96.
Hyrcak, A. (2002) 'From Mothers' Rights to Equal Rights: Post-Soviet Grassroots
Women's Associations' in N. Naples and M. Desai (eds) Women's Activism
and Globalization: Linking Local Struggles and Transnational Politics,
New York: Routledge.
Ignatieff, M. (2003) Human Rights as Politics and Idolatry, Princeton: Princeton
University Press.
(ed.) (2005) American Exceptionalism and Human Rights, Princeton: Princeton
University Press.
Ingham, G. (2008) Capitalism, Cambridge: Polity.
International Council on Human Rights Policy (2009) 'When Legal Worlds
Overlap: Human Rights, State and Non-State Law', Geneva: International
Council on Human Rights Policy.
Jackson, J. (2007) 'Rights to Indigenous Culture in Columbia' in M. Goodale arid
S. Merry (eds) The Practice of Human Rights: Tracking Law Between the
Global and the Local, Cambridge: Cambridge University Press.
Jacobson, D. (1997) Rights Across Borders: Immigration and the Decline of
Citizenship, Baltimore: Johns Hopkins University.
Jenkins, R. and Goetz, A.M. (1999) 'Accounts and Accountability: Theoretical
Implications of the Right-to-Information Movement in India', Third World
Quarterly 20(3): 603-22.
Jessop, B. (1982) The Capitalist State: Marxist Theories and Methods,
Oxford: Blackwell.
(1990) Putting the Capitalist State in its Place, Cambridge: Polity.
Johnson, J. (2009) Gender Violence in Russia: The Politics of Feminist
Intervention, Bloomington: University of Indiana Press.
Joppke, C. (2010) Citizenship and Immigration, Cambridge: Polity.
Jordan, L. and van Tuijl, P. (2006) NGO Accountability: Politics, Principles and
Innovations, London: Earthscan.
Judt, T. (2011) Ill Fares the Land: A Treatise on Our Present Discontents,
London: Penguin.
 Bibliography 205

Kagwanja, P. and Juma, M. (2008) 'Somali Refugees: Protracted Exile and Shifting
Security Frontiers' in G. Loescher, J. Milner, E. Newman and G. Troeller
(eds) Protracted Refugee Situations: Political, Human Rights and Security
Implications, Tokyo: United Nations University.
Kaiser, T. (2008) 'Sudanese Refugees in Uganda and Kenya' in G. Loescher,
J. Milner, E. Newman and G. Troeller (eds) Protracted Refugee
Situations: Political, Human Rights and Security Implications,
Tokyo: United Nations University.
Kannabiran, K. and Kannabiran, V. (2002) De-Eroticizing Assault: Essays on
Modesty, Honour and Power, Calcutta: STREE.
Kapur, R. (2005) Erotic Justice: Law and the New Politics of Postcolonialism,
London: Glasshouse Press.
Keck, M. and Sikkink, K. (1998) Activists beyond Borders: Advocacy Networks in
International Politics, Ithaca: Cornell University Press.
Keck, M. and Smith, J. (2002) 'Infrastructures for Change: Transnational
Organizations 1953-93' in S. Khagram, J. Riker and K. Sikkink (eds)
Restructuring World Politics: Transnational Social Movements, Networks,
and Norms, Minneapolis: University of Minnesota Press.
Keller, H. and Ulfstein, G. (eds) (2012) UN Human Rights Treaty Bodies: Law and
Legitimacy, Cambridge: Cambridge University Press.
Kelly, T. (2011) 'The Legalization of Human Rights and the Protection of Torture
Survivors: Asylum, Evidence and Disbelief in M.-B. Dembour and T. Kelly
(eds) Are Human Rights for Migrants: Critical Reflection on the Status of
Irregular Migrants in Europe and the United States, London: Routledge.
(2013) This Side of Silence: Human Rights, Torture, and the Recognition of
Cruelty, Philadelphia: University of Pennsylvania Press.
Kennedy, D. (2002) 'The International Human Rights Movement: Part of the
Problem?', Harvard Human Rights Journal 15: 101-25.
Khagram, S. (2002) 'Restructuring the Global Politics of Development: The Case of
India's Narmada Valley Dams' in S. Khagram, J. Riker and K. Sikkink (eds)
Restructuring World Politics: Transnational Social Movements, Networks,
and Norms, Minneapolis: University of Minnesota Press
Khagram, S., Riker, J. and Sikkink, K. (2002) 'From Santiago to
Seattle: Transnational Advocacy Groups Restructuring World Politics' in
Restructuring World Politics: Transnational Social Movements, Networks,
and Norms, Minneapolis: University of Minnesota Press.
(eds) (2002) Restructuring World Politics: Transnational Social Movements,
Networks, and Norms, Minneapolis: University of Minnesota Press.
Khalili, L. (2012) Time in the Shadows: Confinement in Counterinsurgencies,
Redwood City: Stanford University Press.
Kiely, R. (2010) Rethinking Imperialism, Basingstoke: Palgrave Macmillan.
Kinley, D. (2009) Civilising Globalisation: Human Rights and the Global Economy,
· Cambridge: Cambridge University Press.
206 Bibliography

Kinzelbach, K. (2013) 'Resisting the Power of Human Rights: The People's Republic
of China' in T. Risse, S. Ropp and K. Sikkink (eds) The Persistent Power of
Human Rights: From Commitment to Compliance, Cambridge: Cambridge
University Press.
Kivisto, P. and Faist, T. (2007) Citizenship: Discourse, Theory, and Transnational
Prospects, Oxford: Blackwell.
Koh, H. (1999) 'How is International Human Rights Law Enforced?', Indiana Law
Journal 74(4).
Koser, K. (2005) 'Irregular Migration, State Security and Human Security',
Geneva: Global Commission on International Migration, http://iom.int/
j ahia/webdav/ site/myjahiasite/shared/shared/mainsite/policy_andJesearch/
gcim/tp/TP5.pdf (last accessed 4 January 2014).
Kothari, S. (2002) 'Globalization, Global Alliances, and the Narmada
Movement' in S. Khagram, J. Riker and K. Sikkink (eds) Restructuring
World Politics: Transnational Social Movements, Networks, and Norms,
Minneapolis: University of Minnesota Press.
Kotiswaran, P. (2006) 'Governance Feminism and the Postcolonial Predicament' in
J. Halley, P. Kotiswaran, H. Shamir and C. Thomas, 'From the International
to the Local in Feminist Legal Responses to Rape, Prostitution/Sex World,
and Sex Trafficking: Four Studies in Contemporary Governance Feminism',
Harvard Journal of Law and Gender 29: 335-423.
Krause, M. (2014) The Good Project: Humanitarian Relief NGOs and the
Fragmentation of Reason, Chicago: University of Chicago Press.
Kurasawa, F. (2007) The Work of Global Justice: Human Rights as Practices,
Cambridge: Cambridge University Press.
Landman, T. (2006) Studying Human Rights, London: Routledge.
Langlois, A. (2001) The Politics of Justice and Human Rights: Southeast Asia and
Political Theory, Cambridge: Cambridge University Press.
Latour, B. (2005) Reassembling the Social: An Introduction to Actor-Network
Theory, Oxford: Oxford University Press.
Lazonick, W. and O'Sullivan, M. (2000) 'Maximising Shareholder
Value: A New Ideology for Corporate Governance', Economy and
Society 29(1): 13-35.
Leatherman, J. (2011) Sexual Violence and Armed Conflict, Cambridge: Polity.
Levy, D. and Sznaider, N. (2006) 'Sovereignty Transformed: A Sociology of
Human Rights', The British Journal of Sociology 57(4): 657-76.
Lischer, S. (2005) Dangerous Sanctuaries: Refugee Camps, Civil War, and the
Dilemmas of Humanitarian Aid, Ithaca: Cornell University Press.
Loescher, G. (2001) The UNHCR and World Politics: A Perilous Path,
Oxford: Oxford University Press.
Loescher, G., Milner, J., Newman E. and Troeller, G. (eds) (2008) Protracted
Refugee Situations: Political, Human Rights and Security Implications,
Tokyo: United Nations University.
 Bibliography 207

Lutz, E. and Sikkink, K. (2001) 'International Human Rights Law and Practice in
Latin America' in J. Goldstein, M. Kahler, R. Keohane and A.-M. Slaughter
(eds) Legalization and World Politics, Cambridge, MA: MIT Press.
Macleod, E. (2008) 'Afghan Refugees in Iran and Pakistan' in G. Loescher,
J. Milner, E. Newman and G. Troeller (eds) Protracted Refugee
Situations: Political, Human Rights and Security Implications,
Tokyo: United Nations University.
McMahon, R. (2003),The Cold War: A Very Short Introduction, Oxford: Oxford
University Press.
Madhok, .S. and Rai, S. (2012) 'Agency, Injury, and Transgressive Politics in
Neoliberal Times', Signs 37(3): 645-69.
Madsen, M. (2004) 'France, the UK, and the "Boomerang" of the
Internationalisation of Human Rights' in S. Halliday and P. Schmidt (eds)
Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in
the National Context, Oxford: Hart Publishing.
(2011) 'Reflexivity and the Construction of the International Object: The Case of
Human Rights', International Political Sociology 5: 259-75.
Madsen, M. and Verschraegen, G. (2013) 'Introduction' in M. Madsen and G.
Verschraegen (eds) Making Human Rights Intelligible: Towards a Sociology
of Human Rights, Oxford: Hart Publishing.
Mamdani, M. (2000) Beyond Rights Talk and Culture Talk: Comparative Essays on
the Politics of Rights and Culture, New York: St Martins Press.
(2009) Saviors and Survivors, London: Verso.
Marshall, T.H. (1987) Citizenship and Social Class, London: Pluto.
Martinez-Torres, M. and Rosset, P. (2010) 'La Via Campesina: The Birth and
Evolution of a Transnational Social Movement', The Journal of Peasant
Studies 37(1): 149-75.
Matua, M. (2002) Human Rights: A Political and Cultural Critique,
Philadelphia: University of Pennsylvania Press.
Mazower, M. (2004) 'The Strange Triumph of Human Rights, 1933-1950', The
Historical Journal 47(2): 379-98.
(2012) .Governing the World, London: Allen Lane.
Mbembe, A (2001) On the Postcolony, Berkeley: University of California Press.
Mendez, J., O'Donnell, G. and Sergio, P. (eds) (1999) The Un-Rule of Law and
the Underprivileged in Latin America, Notre Dame, IN: University of Notre
Dame Press.
Menon, N. (2004) Recovering Subversion: Feminist Politics Beyond the Law,
Champaign: Permanent Black.
Merry, S. (1988) 'Legal Pluralism', Law and Society Review 22(5): 869-96.
(2006) Human Rights and Gender Violence: Translating International Law into
Local Justice, Chicago: University of Chicago Press.
(2011) 'Measuring the World: Indicators, Human Rights, and Global
Governance', Current Anthropology 52(3): 583-95.
/ 208 Bibliography

Merry, S., Levitt, P., Rosen, M. and Yoon, D. (2010) 'Law From Below: Women's
Human Rights and Social Movements in New YorkCity', Law and Society
Review 44(1): 101-28.
Mertus, J. (2004) Bait and Switch: Human Rights and US Foreign Policy, London
and New York: Routledge.
(2005) The United Nations and Human Rights: A Guide for a New Era,
London: Routledge.
(2009).Human Rights Matters: Local Politics and National Human Rights
Institutions, Stanford: Stanford University Press.
Michaels, R. (2009) 'Global Legal Pluralism', Annual Review of Law and Social
Science 5: 243-62.
Mitchell, T. (1999) 'Society, Economy, and the State Effect' in G. Steinmetz (ed.)
State/Culture: State Formation after the Cultural Turn, Ithaca: Cornell
University Press.
Moghadam, V. (2005) Globalizing Women: Transnational Feminist Networks,
Baltimore: Johns Hopkins University Press.
Molyneux, M. and Lazar, S. (2003) Doing the Rights Thing: Rights-based
Development and Latin American NGOs, London: ITDG Publishing.
Moon, C. (2012) 'What One Sees and How One Files Seeing: Human Rights
Reporting, Representation and Action', Sociology 46(5): 876-90.
Morehouse, C. and Blomfield, M. (2011) 'Irregular Migration in Europe',
Washington DC: Migration Policy Institute.
Morgan, R. (2009) 'Introduction' in R. Morgan and B. Turner (eds)
Interpreting Human Rights: Social Science Perspectives, London and
New York: Routledge.
(2011) Transforming Law and Institution: Indigenous Peoples, the United
Nations, and Human Rights, Farnham: Ashgate.
Morris, L. (2006) 'A Foundation for Rights or Theories of Practice?' in L. Morris
(ed.) Rights: Sociological Perspectives, London: Routledge.
(2010) Asylum Welfare and the Cosmopolitan Ideal,
London: Routledge-Cavendish.
Moyn, S. (2012) 'Do Human Rights Treaties Make Enough of a Difference?' in C.
Gearty and C. Douzinas (eds) The Cambridge Companion to Human Rights
Law, Cambridge: Cambridge University Press.
Muir, J. (2013) 'Syria: Proxy War Heats Up as Endgame Moves Closer', www.bbc.
co.uk/news/world-middle-east-22123660 (last accessed 5 September 2013).
Musalo, K., Moore, J. and Boswell, R. (2011) Refugee Law and
Policy: A Comparative and International Approach, 4th edition, Durham,
NC: Carolina Academic Press.
Nair, R. (2013) 'Time to Challenge India for its Stranglehold on Funding for
Rights Organisations', Open Democracy, www.opendemocracy.net/open-
globalrights/ravi-nair/time-to-challenge-india-for-its-stranglehold-on-
funding-for-rights-organl (last accessed 9 December 2013).
 Bibliography 209

Nam, C.Y.J. (2006) 'Competing for FDI through the Creation of Export Processing
Zones: The Impact on Human Rights' in 0. De Schutter (ed.) Transnational
Corporations and Human Rights, Oxford: Hart.
Nash, K. (2007) 'The Pinochet Case: Cosmopolitanism and Intermestic Human
Rights', The British Journal of Sociology 58(2): 417-35.
(2009a) The Cultural Politics of Human Rights: Comparing the US and UK,
Cambridge: Cambridge University Press.
(2009b) 'Between Citizenship and Human Rights', Sociology 43(6): 1067-83.
(2010) Contemporary Political Sociology: Globalization, Politics, and Power,
Chichester: Wiley-Blackwell.
Neier, A. (2012) The International Human Rights Movement: A History,
Princeton: Princeton University Press.
Nelson, P. (2007) 'Between Heroic Independence and Dependent Subservience' in
P. Opoku-Mensah, D. Lewis and T. Tvedt (eds) Reconceptualising NGOs and
their Roles in Development, Aalborg: Aalborg University Press.
New York Times (2013) 'Obama Calls Surveillance Programmes Legal and Limited',
www.nytimes.com/2013 /06/08/us/national-security-agency-survei1lance.
htmlzpagewantedealltrreu (last accessed 2 July 2014).
Nilsen, A. (2010) Dispossession and Resistance in India: The River and the Rage,
London: Routledge.
Nyers, P. (2008) 'No One is Illegal between City and Nation' in E. Isin and G.
Nielson (eds) Acts of Citizenship, London: Zed Books.
Oberleitner, G. (2007) Global Human Rights Institutions, Cambridge: Polity.
O'Brien, R., Goetz, A.M., Scholte, J. and Williams, M. (2000) Contesting Global
Governance: Multilateral Economic Institutions and Global Social
Movements, Cambridge: Cambridge University Press.
Orford, A. (2011) International Authority and the Responsibility to Protect,
Cambridge: Cambridge University Press.
Ortener, S. (2006) Anthropology and Social Theory: Culture, Power and the Acting
Subject, Durham, NC: Duke University Press.
Otto, D. (2010) 'Power and Danger: Feminist Engagement with International Law
Through the UN Security Council', Australian Feminist Journal 32: 97-121.
Paarlberg, R. (2010) Food Politics: What Everyone Needs to Know, Oxford: Oxford
University Press.
Paris, R. and Sisk, T. (eds) (2009) The Dilemmas of Statebuilding: Confronting the
Contradictions of Postwar Peace Operations, London: Routledge.
Patel, R., Balakrishnan, R. and Narayan, U. (2007) 'Transgressing Rights: La Via
Campesina's Call for Food Sovereignty/Exploring Collaborations: Heterodox
Economics and an Economic Social Rights Framework/Workers in the
Informal Sector: Special Challenges for Human Rights', Feminist Economics
13(1): 87-116.
Piccone, T. (2012) Catalysts for Change: How the U.N.'s Independent Experts
Promote Human Rights, Washington, DC: Brookings Institute.
" 210 Bibliography

Poggi, G. (1990) The State: Its Nature, Development and Prospects,

Cambridge: Polity.
Possamai, A., Richardson J. and Turner, B. (2015) The Sociology of Shari'a: Case
Studies from around the World, New York: Springer.
Prieto-Carron, M., Lund-Thomsen, P., Chan, A. and Bhushan, C. (2006) 'Critical
Perspectives on CSR and Development: What We Know, What We Don't
Know, and What We Need to Know', International Affairs 82(5): 977-87.
Rai, S. and Waylen, G. (2008) Global Governance: Feminist Perspectives,
Basingstoke: Palgrave Macmillan.
Rajagopal, B. (2003) International Law from Below: Development, Social
Movements and Third World Resistance, Cambridge: Cambridge
University Press.
Rajan, R. (2005) 'Women's Human Rights in the Third World' in N. Bamford (ed.)
Sex Rights, Oxford: Oxford University Press.
Reilly, N. (2009) Women's Human Rights: Seeking Gender Justice in a Globalizing
Age, Cambridge: Polity.
Reyntjens, F. (2009) The Great African War: Congo and Regional Geopolitics,
1996-2006, Cambridge: Cambridge University Press.
Risse, T., Ropp, S. and Sikkink, K. ( 1999) The Power of Human
Rights: International Norms and Domestic Change, Cambridge: Cambridge
University Press.
Rose, N. and Miller, P. (1992) 'Political Power beyond the State: Problematics of
Government', The British Journal of Sociology 43(2): 173-205.
Roseman, M. and Miller, A. (2011) 'Normalizing Sex and Its
Discontents: Establishing Sexual Rights in International Law', Harvard
Journal of Law and Gender 34: 313-75.
Rotberg, R. (ed.) (2008) China Into Africa: Trade, Aid and Influence, Washington,
DC: Brookings Institute.
Roth, K. (2004) 'Defending Economic, Social and Cultural Rights: Practical Issues
Faced by an International Human Rights Organization', Human Rights
Quarterly 26: 63-73.
(2005) 'War in Iraq: Not a Humanitarian Intervention' in R. Wilson (ed.) Human
Rights in the 'War on Terror', Cambridge: Cambridge University Press.
Ruh, M. (2013) The Price of Rights: Regulating International Labour Migration,
Princeton: Princeton University Press.
Salomon, M. (2007) 'International Economic Governance and Human Rights
Accountability', LSE Law, Society and Economy Working Papers, www.eldis.
org/assets/Docs/34932.html (last accessed 9 January 2012).
Sandbrook, R., Edelman, M., Heller, P. and Teichman, J. (eds) (2007) Social
Democracy in the Global Periphery: Origins, Challenges and Prospects,
Cambridge: Cambridge University Press.
Sands, P. (2005) Lawless World: America and the Making and Breaking of Global
Rules, London: Allen Lane.
 Bibliography 211

Santos, B. De Sousa (2002a) Towards a New Legal Common Sense, 2nd edition,
London: Butterworths LexisNexis.
(2002b) 'Toward a Multicultural Conception of Human Rights' in B.
Hernandez-Truyol (ed.) Moral Imperialism: A Critical Anthology,
New York: New York University.
(2006) The Rise of the Global Left: The World Social Forum and Beyond,
London: Zed Books.
Santos, B. De Sousa and Rodriguez-Garavito, C. (eds) (2005) Law and
Globalization from Below: Towards a Cosmopolitan Legality,
Cambridge: Cambridge University Press.
Sarfaty, G. (2009) 'Why Culture Matters in International Institutions: The
Marginality of Human Rights at the World Bank', American Journal of
International Law 103: 647-83.
(2012) Values in Translation: Human Rights and the Culture of the World Bank,
Stanford: Stanford University Press.
Sassen, S. (2006) Territory, Authority, Rights: From Medieval to Global
Assemblages, Princeton: Princeton University Press.
Sautman, B. and Haitong, Y. (2008) 'Friend and Interests: China's
Distinctive Links with Africa' in D.-G. Guerrero and F. Manji (eds)
China's New Role in Africa and the South, Cape Town: Networks for Social
Justice.
Scheingold, S. (2004) The Politics of Rights: Lawyers, Public Policy, and Political
Change, 2nd edition, Ann Arbor: University of Michigan Press.
Scholte, J. (2005) Globalization: A Critical Introduction, Basingstoke: Palgrave
Macmillan.
(2011) Building Global Democracy: Civil Society and Accountable Global
Governance, Cambridge: Cambridge University Press.
Scott, J. (1997) Only Paradoxes to Offer: French Feminists and the Rights of Man,
Cambridge, MA: Harvard University Press.
Seitz, J. and Hite, K. (2012) Global Issues: An Introduction,
Chichester: Wiley-Blackwell.
Sen, A. (1999) Development as Freedom, Oxford: Oxford University Press.
(2007) 'Human Rights and the Limits of Law', Cardozo Law Review
26(5): 2913-27.
Sewell, W. (2005) Logics of History: Social Theory and Social Transformation,
Chicago: Chicago University Press.
Shamir, H. (2006) 'The Empirical Problem' in J. Halley, P. Kotiswaran, H. Shamir
and C. Thomas, 'From the International to the Local in Feminist Legal
Responses to Rape, Prostitution/Sex World, and Sex Trafficking: Four
Studies in Contemporary Governance Feminism', Harvard Journal of Law
and Gender 29: 335-423.
Shirk, S. (ed.) (2011) Changing Media, Changing China, Oxford: Oxford
University Press.
212 Bibliography

Short, D. (2008) 'Sociological and Anthropological Approaches' in M. Goodhart

(ed.) Human Rights: Politics and Practice, Oxford: Oxford University Press.
Sikkink, K. (2011) The Justice Cascade: How Human Rights Prosecutions are
Changing World Politics, New York: W.W. Norton and Co.
Simmons, B. (2009) Mobilizing for Human Rights: International Law in Domestic
Politics, Cambridge: Cambridge University Press.
(2013) 'From Ratification to Compliance: Quantitative Evidence on the Spiral
Model' in T. Risse, S. Ropp and K. Sikkink (eds) The Persistent Power of
Human Rights: From Commitment to Compliance, Cambridge: Cambridge
University Press.
Sjoberg, G., Gill, E. and Williams, N. (2001) 'A Sociology of Human Rights', Social
Problems 48(1): 11-47.
Slaughter, A. and Crisp, J. (2008) 'A Surrogate State? The Role of the UNHCR in
Protracted Refugee Situations' in G. Loescher, J. Milner, E. Newman and G.
Troeller (eds) Protracted Refugee Situations: Political, Human Rights and
Security Implications, Tokyo: United Nations University.
Smith, J. (2008) Social Movements for Global Democracy, Baltimore: Johns
Hopkins University.
Somers, M. (2008) Genealogies of Citizenship: Markets, Statelessness, and the
Right to Have Rights, Cambridge: Cambridge University Press.
Somers, M. and Roberts, C. (2008) 'Toward a New Sociology of
Rights: A Genealogy of "Buried Bodies'.' of Citizenship and Human Rights',
Annual Review of Law and Social Science 4: 385-425.
Soysal, Y. (1994) Limits of Citizenship: Migrants and Postnational Membership in
Europe, Chicago: University of Chicago.
Speed, S. (2008) Rights in Rebellion: Indigenous Struggle and Human Rights in
Chiapas, Stanford: Stanford University Press.
Sperling, V., Ferree, M. and Risman, B. (2001) 'Constructing Global
Feminism: Transnational Advocacy Networks and Russian Women's
Activism', Signs 26(4): 1156-86.
Spires, A.J. (2011) 'Contingent Symbiosis and Civil Society in an Authoritarian
State: Understanding the Survival of China's Grassroots NGOs', American
Journal of Sociology 117(1): 1-45.
Spivak, G. (1999) A Critique of Postcolonial Reason: Toward a History of the
Vanishing Present, Cambridge, MA: Harvard University Press.
(2002) 'Righting Wrongs' in N. Owen (ed.) Human Rights, Human Wrongs,
Oxford: Oxford University Press
Stammers, N. (1999) 'Social Movements andthe Social Construction of Human
Rights', Human Rights Quarterly 21: 980-1008.
(2009) Human Rights and Social Movements, London: Pluto; Stanford: Stanford
University Press.
Steinmetz, G. (2013) Sociology and Empire: The Imperial Entanglements of a
Discipline, Durham, NC: Duke University Press.
 Bibliography 213

Stiglitz, J. (2010) Freefall: Free Markets and the Sinking of the Global Economy,
London: Allen Lane.
Stroup, S. (2012) Borders Among Activists: International NGOs in the United
States, Britain, and France, Ithaca: Cornell University Press.
Sunstein, C. (2006) The Second Bill of Rights: FDR's Un.finished Revolution - and
Why We Need It More Than Ever, New York: Basic Books.
Tamanaha, B. (2008) 'Understanding Legal Pluralism: Past to Present, Local to
Global', Sydney Law Review 30(3): 374-411.
Therborn, G. (2003) 'Entangled Modernities', European Journal of Social Theory
6(3): 293-305.
(2013) The Killing Fields of Inequality, Cambridge: Polity.
Thomas, C. (2006) 'Governance Feminism and Sex Trafficking' in J. Halley, P.
Kotiswaran, H. Shamir and C. Thomas, 'From the International to the Local
in Feminist Legal Responses to Rape, Prostitution/Sex World, and Sex
Trafficking: Four Studies in ContemporaryGovernance Feminism', Harvard
Journal of Law and Gender 29: 335-423.
Tilly, C. (1985) 'Warmaking and Statemaking as Organized Crime' in D.
Rueschemeyer and T. Skocpol (eds) Bringing the State Back In,
Cambridge: Cambridge University Press.
Tonkiss, F. (2006) Contemporary Economic Sociology, London: Routledge.
Tripp, A. (2006) 'Challenges in Transnational Feminist Mobilization' in M.M.
Ferree and A. Tripp (eds) Global Feminism: Transnational Women's
Activism, Organizing and Human Rights, New York: New York
University Press.
Troeller, G. (2008) 'Ayslum Trends in Industrialized Countries and their, Impact on
Protracted Refugee Situations' in G. Loescher, J. Milner, E. Newman and G.
Troeller (eds) Protracted Refugee Situations: Political, Human Rights and
Security Implications, Tokyo: United Nations University.
Turner, B. (1993) 'Outline of a Theory of Human Rights', Sociology 27: 489-512.
(1997) 'A Neo-Hobbesian Theory of Human Rights: A Reply to Malcolm
Waters', Sociology 31(1): 565-71.
Turner, G. (2002) British Cultural Studies, London: Routledge.
UN (2000) 'Human Development Report 2000', http://hdr.undp.org/sites/default/
files/reports/261/hdr_2000_en.pdf (last accessed 14 August 2014).
UN (2007) 'World Urbanization Prospects', www.un.org/esa/population/meetings/
EGM_PopDist/Heilig.pdf (last accessed 22 February 2012).
UN (2009) State of the World's Indigenous Peoples, www.un.org/esa/socdev/unpfii/
documents/SOWIP_web.pdf (last accessed 22 February 2012).
UN (2013) MONUSCO Mandate, www.un.org/en/peacekeeping/missions/monusco/
mandate.shtml (last accessed 6 June 2013).
UNHCR(2013) 'Mid-Year Trends 2013', www.unhcr.org/52af08d26.html (last
accessed 28 April 2014).
214 Bibliography

UNRWA (2014) 'Who We Are', www.unrwa.org/who-we-are (last accessed 28

April 2014).
Verdirame, G. (2013) The UN and Human Rights: Who Guards the Guardians?
Cambridge: Cambridge University Press.
Verdirame, G. and Harrell-Bond, E. (2005) Rights in Exile: Janus-Faced
Humanitarianism, New York: Berghahn Books.
Walby, S. (2011) The Future of Feminism, Cambridge: Polity.
Waters, M. ( 1996) 'Human Rights and the Universalisation of Interests', Sociology
30(3): 593-600.
Watkins, S. and Swidler, A. (2013) 'Working Misunderstandings: Donors, Brokers,
and Villagers in Africa's AIDS Industry', Population and Development
Review 38: 197-218.
Webber, F. (2012) Borderline Justice: The Fight for Refugee and Migrant Rights,
London: Pluto.
Weber, M. (1948) 'The Social Psychology of the World Religions' in H.H.
Gerth and C. Wright Mills (eds) From Max Weber: Essays in Sociology,
London: Routledge and Kegan Paul.
Weiss, T. (2007) Humanitarian Intervention, Cambridge: Polity.
(2009) What's Wrong with the United Nations and How to Fix It,
Cambridge: Polity.
(2013) Global Governance: Why? What? Whither? Cambridge: Polity.
Wells, C. and Elias, J. (2005) 'Catching the Conscience of the King: Corporate
Players on the International Stage' in P. Alston (ed.) Non-State Actors and
Human Rights, Oxford: Oxford University Press.
White, L. and Perelman, J. (eds) (2011) Stones of Hope: How African Activists
Reclaim Human Rights to Challenge' Global Poverty, Stanford: Stanford
University Press.
Williams, R. (2010) The Divided World: Human Rights and Its Violence,
Minneapolis: University of Minnesota.
Wilson, R. (ed.) (1998) Human Rights, Culture and Context: Anthropological
Perspectives, London: Pluto.
Wood, J. (2007) The Politics of Water Resource Development in India: The
Narmada Dams Controversy, New Delhi: Sage.
Woods, N. (2003) 'Global Governance and the Role oflnstitutions' in D. Held and
A. McGrew (eds) Governing Globalization: Power, Authority and Global
Governance, Cambridge: Polity.
Wright, T. (2010) Accepting Authoritarianism: State-Society Relations in China's
Reform Era, Stanford: Stanford University Press.
Ziammatto, B. (2011) 'The Duty to Protect Against Human Rights Violations
Committed Abroad by Transnational Corporations and their Subsidiaries'
in D.M. Nault and S. England (eds) Globalization and Human Rights in the
Developing World, Basingstoke: Palgrave Macmillan.
Zizek, S. (2005) 'Against Human Rights', New Left Review 34.
 Index

Page numbers with 'n' are notes.

Afghanistan 64, 152 , asylum/asylum seekers 2, 137,

and humanitarian interventions 82 139, 140-1
as a predatory state 55 and detention 140
state-building 85-6 Australia, social provision 111-12
transitional administration 80 authority 11, 14-16, 30-1
Africa of the state 45-6
and China 60 authorised migrants 136
and refugees 150 autonomy, state 44-5, 46
African Union 174n. 14
and 'Responsibility to Protect' Badie, Bertrand 55
180n. 7 Baobab 2
Alien Tort Claims Act (US) 104 Barnett, Michael 14-15, 69, 71-2
Al-Maliki, Nouri 86 Bashir, Omar 159
Al-Skeini and Others v. the United 'Battle of Seattle' 182n. 6
Kingdom 178n. 8 Baxi, Upendra 1, 11
Alston, Philip 20 Bayart, Jean-Francois 55, 56
American Declaration of Human Benenson, Peter 19
Rights 23 Bhopal disaster 104
Amnesty 1, 19, 21, 25 'black letter' law, see 'hard'r'soft' law
and 'disappearances' 23, 24, 74 Blair, Tony 82, 87
and expert authority 25-6 Bob, Clifford 28-9
and funding 28 boomerang effect 22-3, 122-3
and the Global South 31 borders
and Lawal 2 controls of 137-42
and moral authority 25, 28 open 154-5
statistical data of human rights Bosnia 64
violations 186n. 3 transitional administrations 79-80, 85
and the US 27, 28 violence against women 121
and women's rights 183n. 2-4 Brandford, Sue 109
Annan, Kofi 76-7, 78-9, 82 brands, INGOs as 29-30
Anthropology 8 Brazil
Anvil Mining case 104 and FDI 103
Arendt, H. 135 and the protection of rural life 109
Argentina, and the 'disappeared' 22-3, and transnational corporations 106
24-5,40, 183n. 1 Bretton Woods institutions 97
Arizona migrant law 141 Brock, Lothar 55
/ 216 Index

'buen vivir' 110 civil rights 91-2

Burma 104 and transnational corporations 102
Bush administration Clark, A. 186n. 3
and Afghanistan 82 colonialism, and transforming
border control 124 states 64-5
interrogation techniques 188n. 9 Comaroff, Jean and John 64-5
and Iraq 27-8, 82 Commission on the Status of
on sex trafficking 125 Women 116
Bush, George W. 87 'compliance gap' 186n. 2
conflict and co-operation 162
Canada, Anvil Mining case 104 constitutional courts 51
capacity-building 180n. 8 contemporary human rights 17 4n. 10
capitalism 89-92 Convention on the Elimination of
and IFis 97-101 All Forms of Discrimination
and markets as social against Women (CEDAW), see
constructs 92-7 CEDAW
and protecting rural ways of Convention on the Elimination
life 106-10 of All Forms of Racial
and social democracy 110-14 Discrimination (ICERD), see
transnational corporations 101-6 ICERD
Cardenas, Sophie 23 Convention on the Protection of
Castells, Manuel 59-60 the Rights of All Migrant
Castles, Stephen 154-5 Workers and Their Families
CAT (Convention on Torture) 69 (CPRAMW) 136
'cause lawyers' 50 Convention on the Rights of the Child
CEDAW (Convention on the Elimination (CRC), see CRC
of All Forms of Discrimination Convention on Torture (CAT), see CAT
against Women) 69, 73, 116 Coomaraswamy, Radhika 128
and Mexico 119 co-operation 162-3
and reservations 119-20, 129 corporate social responsibility 104-6
and the US 71 corporations
Center for Legal and Social Studies 22 and capitalism 90-1
Centre for Human Rights and and the state 44-5
Rehabilitation 39 transnational 101-6
Chatterjee, Partha 52, 53 courts
Chiarotti, Susan 115 constitutional 51
Chikondi 38-40, 167 international criminal 51, 77-8
China and refugee camps 154, 186n. 9
as a developmental state 60-3 Special Immigration Appeals
and FDI 103 Commission (SIAC) 185n. 6
as a 'Great Power' 69 women's 130
and the ICC 77-8 CRC (Convention on the Rights of the
and the Security Council 70-1 Child) 69
and transnational corporations 106 cultural politics 12-14, 156, 171-2
citizenship, see nationality/citizenship and markets 95
 Index 217

and the UN 72-3 Edwards, Alice 118-20

and women's rights 134 elections 79
cultural relativism 71, 127 elites 39, 40, 167-9
and universalism/ diversity and the human rights movement 21
paradox 170-1 in predatory states 55-6
cultural rights 106 and transnational advocacy
culture 12 networks 23-4
and women's rights 125-31 email, and national security 49
customary/traditional practices 126-7 emancipation
and governance paradox 166-9
Darfur conflict 159 movements 32-4, 40
debt, and social democrats 111 Engle, Karen 121
Declaration of the Rights of Indigenous Englund, Harri 38-40
Peoples 1-2, 107 European Court of Human Rights
Declaration of the Rights of 174n. 14
Peasants 167-8 and asylum-seekers 2
defence spending, US 94 and migrants 140, 142-3
delegated authority, and the UN European Union
16, 69, 71 and Bosnia and Kosovo 85
Dembour, Marie 127, 132-3 and migrants 138-9, 142-6
Democratic Republic of Congo (DRC) exceptions, and national security 48-9
54-5, 56-7 expert authority 15, 168-9
and refugee camps 150-1 and Amnesty 25-6
Denmark 112 and developmental states 60
detention 2 and the state 50
developmental states 59-63 and the UN 71-2
'disappeared' 75 Export Processing Zones (EPZs) 103
Argentina 22-3, 24-5, 40, 74, 183n. 1 'extraversion' 55
Dodge, Toby 86
Doha talks 100-1 failed states 64
Donnelly, Jack 69 Failing to Protect (Freedman) 75-6
Dreze, Jean 53-4 farmers, small 108-10
durable solutions 151-3 female genital mutilation (FGM)
duty-bearers 14, 16, 17-18 117, 132-3
and moral authority 15 feminism 115, 183n. 1
World Bank as 99 neo-imperialist 120-5
field, human rights, defined 162
East Timor 64 Finnemore, Martha 14-15, 69, 71-2
transitional administrations 79-80, 85 food security 108-9
Economic Community of West African food sovereignty 108-9
States 174n. 14 Forbath, William 36-7
economic resources 44-5 foreign direct investment (FDI) 103
economic sanctions 78 Foucault, M. 50
Edelman, M. 108 'fragile states' 179n. 9
Edelman Trust Barometer 176n. 9 frames 10-11
/ 218 Index

France 'harmful customary practices' 117

as a 'Great Power' 69 Harrell-Bond, E. 148-9, 154
and the ICC 77-8 Heywood, Mark 35
and the Security Council 70 Hilhorst, Dorothea 59, 123, 175n. 5
Freedman, Rosa 75-6 HIV/AIDS, and Treatment Action
freeing markets 90-1, 92-4 Campaign 34-8
and IFis 97, 100 Howard-Rassman, Rhoda 181n. 4
Friedman, S. 37 'humanitarian interventions' 78-84, 87
funding and feminists 121
for combatting gender violence 122-5 humanitarianism 59
INGOs 25, 28 and citizenship 164-6
human rights, defined 3-6
Gargarella, Roberto 53 Human Rights Act (1998) (UK)
gender 145, 146
and markets 94-5 human rights field 160-2
violence 117-20 citizenship/humanity 163-6
genocide 158-9 emancipation/governance 166-9
rape as 121 universalism/diversity 169-71
Germany 112 Human Rights Watch 21, 25, 27
Gibney, Matthew 139 and Afghans in Iran 152
global governance 4-5, 166 and expert authority 26
feminism 121, 122-3 funding 28
globalisation 3 and the Global South 31
and legal pluralism 32 and Lawal 2
and social democrats 111-12 moral authority 27-8
global social democrats, see social Women's Rights Project 183n. 2-4
democrats 'human rights wrongs' 13, 16, 18, 20, 40,
Global South 31 146, 155, 156, 167
'Global Witness' 59
Goodman, Ryan 20 ICCPR (International Covenant on Civil
grassroots organisations, see GROs and Political Rights) 69
'Great Powers' 69, 70-1, 87-8 and citizenship 164
GROs (grassroots organisations) 2, 20, and migrants 136
31-8, 40, 166 and women 115
and transnational advocacy ICERD (Convention on the Elimination
networks 24 of All Forms of Racial
and universalism/diversity paradox 170 Discrimination) 69
Guantanamo Bay 178n. 8 ICESCR (International Covenant on
Gudynas, Eduardo 113 Economic, Social and
Cultural Rights) 69, 89-90, 97
Haiti, as a predatory state 55 and China 60
Halley, Janet 4, 121, 125 and citizenship 163, 164
Hamid, Gibril 75-6 and migrants 136
Hansen, T. 52 and the US 71
'hard'i'soft' law 7-8 and women 115
 Index 219

ICTR (International Criminal Tribunal for International Covenant on Economic,

Rwanda) 77 Social and Cultural Rights
ICTY (International Criminal Tribunal for (ICESCR), see ICESCR
the Former Yugoslavia) 77 International Criminal Court
IGOs (inter-governmental (ICC) 77-8
organisations) 2 Darfur conflict 159
and moral authority 15 and the DRC 57
and transnational advocacy networks International Criminal Tribunal for the
22 see also United Nations Former Yugoslavia (ICTY), see
imperialism, humanitarian ICTY
interventions as 80 International Criminal Tribunal for
India Rwanda (ICTR), see ICTR
Bhopal disaster 104 international fmancial institutions
'emergencies' 52-3 (IFis) 97-101
and the ICC 77-8 international legal studies 7 -8
Narmada dam project 107-8 International Monetary Fund (IMF) 97
and NGOs 30 international non-governmental
as post-colonial 53-4 organisations, see INGOs
and transnational corporations 106 international relations 7
and women's rights 129-30, Iran, and Afghan migrants 152
131, 133-4 Iraq 64
indigenous/peasant movements 166 and humanitarian interventions 82
individualism 130-1 and Human Rights Watch 27-8
INGOs (international sanctions against 78
non-governmental state-building 85-6
organisations) 2, 19, 20, 25-31 transitional administration 80
and corporate watch 105-6 irregular migrants 136, 144-5
and transnational advocacy networks
22, 24-5 see also individual James, C. 108
organisations Jansen, B. 59
integration of refugees 152 Johnson, Janet 122-3, 124, 125
Inter-American Commission 174n. 14 Joppke, Christian 143
Inter-American Court 174n. 14 juridical states 47-51
internally displaced persons (IDPs) 147, and transforming states 63-4
184n. 1 and women's rights 131-2
International Centre for Research on
Women 130 Kabila, Laurent 55
International Convention on Civil and Kapur, Ratna 133-4
Political Rights (ICCPR) 41 Keck, Margaret 21-3, 24
and China 60 Kennedy, David 21, 48
International Council on Human Rights Kenya, refugee camps 148-9
Policy 32 Kiely, Ray 183n. 12
International Covenant on Civil and Kilwa massacre 104
Political Rights (ICCPR), see Kinley, David 181n. 4
ICCPR Koh, Harold 7-8
220 Index

Kosovo 64 Zapatistas 33-4

transitional administrations 79-80, 85 migrants 135-8, 153-5, 164
Kotiswaran, Prabha 125 as post-national citizens 142-6
Krause, Monika 5, 165 and refugee camps 146-53
military resources 45
Latin America in Latin America 53
and human rights law 42 Mobutu, General 54-5
and 'neo-extractivism' 113 modern human rights 17 4n. 10
post-colonial states 53 Molyneux, Maxine 123
and the protection of rural life 109-10 money markets 91
law 5, 36-7 monitoring, UN 73-6
development of 178n. 5 moral authority 15, 27-8
and gender violence 131-4 and Amnesty 25
'hard' /'soft' 7-8 and the UN 71-2
juridical state 47-51 Moreno Ocampo, Luis 159
and women's rights 131-4 Mottiar, S. 37
Lawal, Amina 2, 3 movement, human rights 20-1
lawyers, 'cause' 50
Lazar, Sian 123 Nair, Ravi 30
legal pluralism 32 Narmada dam project 107-8
Libya, and 'Responsibility to Protect' 83 national interests, and cultural
Lischer, Sara 150-1 politics 14
local communitarianism 96-7, nationality/citizenship 18
106-10, 167-8 and humanity 163-6
and IFis 100-1 and post-colonial states 51-2
and transnational corporations 101-2 post-national 138, 142-6
and universalism/ diversity in the US 65
paradox 170 national security, and
exceptions 48-9
MacKinnon, Catherine 121 'negative rights' 91-2
markets Neir, Aryeh 20-1, 176n. 8
freeing 90-1 'neo-extractivism' 110, 113
as social constructs 92-7 neo-liberalism 90-2
material resources 11 and markets 92-4
May, Theresa 146 and social democrats 95
Mbeki, Thabo 35 and social provision 111-12
media and the US 98
and cultural politics 13-14 NGO-isation 123-4
and transnational advocacy networks 22 NGOs (non-governmental
Merry, Sally Engle 8, 126, 127-8, 132, organisations) '19-20
160, 177n. 15 and 'country reports' 73-4
Mertus, Julie 7 4 and CSR 105
Mexico and funding 123-4
and FDI 103 and moral authority 15
violence against women 119 and social constructivism 7
 Index 221

and transnational advocacy networks prostitution 124-5

22, 24-5 see also individual
organisations; INGOs quantitative studies 156-60
Nigeria, Ogoni People 29, 104
non-arrival migrant measures 139 Rajagopal, Balakrishnan 53
Non-Governmental Organisations, Rajan, Rajeswari Sunder 129
see NGOs rape
as genocide 121
Ogoni people 29, 104 as torture 120
optional protocols 75 rational-legal authority 15-16
'others/otherness' 13, 14 and post-colonial states 52
Otto, Diane 122 and predatory states 56
'outraging the modesty', Indian law 129 and the UN 71-2
real freedoms/positive freedoms, and
Palestinians 14 7 capitalism 91-2
paradoxes 162-3 realism 7
citizenship/humanity 163-6 reality 12
emancipation/governance 166-9 Refugee Convention (UN) 136-7,
universalism/ diversity 169- 71 139, 148
'path dependence' 46 refugees 136
peacekeeping 64, 78-9, 81 camps 146-53
DRC 56-9 Refugee Convention (UN) 136-7, 139
peasant/indigenous movements 106 UNHCR 57, 58, 136
Perelman, Jeremy 36 regularisation of migrants 145
philanthropic. foundations, and repatriation, voluntary, and refugees 151
transnational advocacy Reservations on Conventions 73
networks 22 CEDAW 119-20
Philippines 123 resettlement of migrants 152
Pinochet case 180n. 3 Resolution 1325 121-2
Politics/politics defmed 5-6 'Responsibility to Protect' 82-4, 122
and INGOs 26-8, 30 'revolutionary tourism' 34
and statistics 158-60 Right to Information Act (2005) (India) 54
popular authority 15, 30-1, 49 Robinson, Mary 101
and developmental states 60 Rodriguez-Garavito, Cesar 34
and post-colonial states 52, 53 Roosevelt, Eleanor 1, 70-1
positive freedoms/real freedoms, and Roth, Kenneth 28
capitalism 91-2 rural life 106-10
post-colonial states 51 Russia
post-national citizenship 138, 142-6 and funding for combatting gender
poverty reduction 99 violence 122
practice, sociology of 12 as a 'Great Power' 69
predatory states 54-9 and the ICC 77-8
proceduralism 168-9 and NGOs 30
prosecution, transnational prostitution 125
corporations 103-4 and the Security Council 70
222 Index

Russia (cont.) South Africa

and women's organisations 123-4 and human rights law 42
Rwanda 82 sanctions against 78
Hutu/Tutsi conflict 158 Treatment Action Campaign 34-9
ICTR (International Criminal Tribunal South Korea 112
for Rwanda) 77 sovereignty 76-9
food 108-9
sanctions, economic 78 as responsibility 84, 87-8
Sandbrook, R. 112 state 41-2, 69
Santos, Boaventura De Sousa 32-4 Soysal, Yasemin 143
Sarfaty, Galit 100 Special Immigration Appeals Commission
Saro-Wiwa, Ken 29 (SIAC) 185n. 6
Scott, Joan 162 Sperling, Valerie 123-4
security, food 108-9 Stammers, Neil 175n. 1
Security Council of the UN 69-71 state-building 79-80, 84-5
and military force 83-4 and transitional administrations
and violence against women 79-80,85
118, 121-2 states 17, 41-6, 65-6, 163
Sen, Amartya 53-4, 62 developmental 59-63
Sewell, William 10 juridical 47-51
sex discrimination, gender violence and markets 92-4
as 119-20 and migration 137-42
sex trafficking 159-60 post-colonial 51
Shell predatory 54-9
and Ogoni people 104 transforming 63-5
and Saro-Wiwa 29 statistical analyses, of human
Sikkink, Kathryn 21-3, 24, 180n. 3, rights 156-60
186n. 3 Stepputat, F. 52
small farmers 108-10 structures 9-12
Snowden, Edward 49 subsidies 99
social constructions success 161
authority 14-16 supplementing, .and predatory states 56-9
markets as 92-7 Swidler, Ann 177n. 15
social constructivism 6-9, 24 Syria, and 'Responsibility to Protect' 83-4
and the state 43
social democrats 95-6, 110-14 Taliban 86
and IFls 100 taxation 44
and transnational corporations and social democrats 111
101, 102 Terrorist Prevention and Investigation
social movements 19 Measures (TPIMs) (UK) 185n.. 6
and transnational advocacy Theory from the South (Comaroff and
networks 22 Comaroff) 64-5
sociology 8-9, 10, 12 Tilly, Charles 43, 45
'soft' /'hard' law 7-8 torture
and CSR 105 and Amnesty 1
Somers, Margaret 65 rane as 120
Index 223

trade, WTO 97-101 humanitarian interventions/

traditional/customary practices 126-7 peacekeeping 78-84
'tragic dilemmas' Refugee Convention 13 6-7,
between social democrats and local 139, 148
communitarianism 113-14 and sovereign inequalities 68-71
and United Nations 84-8 standard setting/monitoring 71-6
transforming states 63-5 and state sovereignty 76-9
transitional administrations and 'tragic dilemmas' 84-8
79-80, 85 Universal Declaration of Human Rights
transnational advocacy networks (UDHR) 67-8, 69
21-5,40 Working Group on Enforced or
and transnational feminist networks Involuntary Disappearances 22
183n. 2-4 United States of America (US)
Treatment Action Campaign 16-17, and Afghanistan and Iraq 85-6
34-8, 161 Alien Tort Claims Act 104
Turkey, and the ICC 77-8 and Amnesty 27
Turner, Bryan 8-9 and the Bhopal disaster 104
Bush administration 188n. 9
UDHR see Universal Declaration of defence spending 94
Human Rights and the 'disappeared' in
Uganda, refugee camps 148-9 Argentina 22-3
UNHCR (United Nations High funding to combat gender violence
Commissioner for Refugees) 57, 122, 124-5
58, 136, 147-53 as a 'Great Power' 69
United Kingdom and humanitarian interventions 81-2
and CSR 105 and the ICC 77-8
as a 'Great Power' 69 and IFis 98-9
and the ICC 77-8 and migrants 138, 139, 141, 152,
and migrants 139, 141, 144, 145-6 185n. 5
asylum-seekers 140 and the Security Council 70-1
and the Security Council 70 statistical data of human rights
United Nations (UN) 17, 67-8 violations 186n. 3-7
Charter Article 2, 67 Universal Declaration of Human
Commission on the Status of Rights (UDHR) 67-8, 69, 89-90,
Women 116 135, 169
Convention against Torture 1 and citizenship 166
Declaration of the Rights of Indigenous and migrants 135
Peoples 1-2, 107 and Roosevelt 70-1
Declaration of the Rights of and women 115
Peasants 167-8 universalism/diversity paradox 169-71
Department of Social and Economic
Affairs 89 Van Boven, Theo 26
andDRC 56-9 Verdirame, Guglielmo 58, 85,
and gender violence 117-20 148-9, 154
High Commission for Refugees vernacularisation 8, 127-31
fTTNHrRl r:.7 r:.R n,:; 1'17-r:.':! ,n-: a r'!lrn n'3c-in'l ') 1f\Q_ 1(\ 1 C::.7_Q
/224 Index

Waters, Malcolm 8-9 Women's Rights Project (Human Rights

Watkins, Susan 177n. 15 Watch) 183n. 2-4
Webber, Frances 185n. 3 'Women's September 11th'
Weber, Max 17_8n. 5 (MacKinnon) 121
Weiss, Thomas 4 Working Group on Enforced or
welfare states 49-50, 112 Involuntary Disappearances 22
White, Lucie 36 Worid Bank 101
Wolfensohn, James 99 World Trade Organization
women's rights 115-17, 166 (WTO) 97-101
and law 131-4
as neo-imperialist 120-31 Yugoslavia, sanctions against 78
universalism/ diversity
paradox 170-1 Zaire, see Democratic Republic of
violence against women 18, Congo (DRC)
117-20, 126-7 Zapatistas 33-4, 38