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Otto, Diane --- "Rethinking Universals: Opening Transformative Possibilites in International Human Rights Law" [1997] AUYrBkIntLaw 1; (1997) 18 Australian Year Book of International Law 1

Rethinking Universals:
Opening Transformative Possibilities in International Human Rights Law

Dianne Otto[*]

The Charter of the United Nations (UN Charter) marked the first formal global agreement by States that a core of human rights and fundamental freedoms applied universally.[1] An earlier attempt to include a more limited reference to human rights in the 1919 Covenant of the League of Nations had failed.[2] However, there were important customary and treaty-based antecedents including humanitarian law, humanitarian intervention, guarantees of natural justice for foreign nationals, the outlawing of piracy and slavery, and European treaties following World War I which protected the rights of minorities.[3] In Professor Louis Henkin’s view, the motivation for these early developments was “largely political” while the 1945 approach was expressed differently, in terms of “humanitarian” goals.[4] In making an assessment of the post World War II commitment to universal human rights, I will argue that the humanitarianism of 1945 was not the expression of a “pure” ideal, but was also allied with political and economic power — that of the post-war global configuration dominated by the Great Powers,[5] particularly the United States of America (US).

In assessing the UN Charter approach, it is instructive to consider President Roosevelt’s 1941 speech to Congress in which he described the aim of the war as achieving a global world order based on “four essential freedoms”:

The first is freedom of speech and expression everywhere in the world. The second is freedom of every person to worship God in his [or her] own way everywhere in the world. The third is freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants — everywhere in the world. The fourth is freedom from fear, which, translated into world terms, means a world-wide reduction of armaments ... [and] that no nation will be in a position to commit an act of physical aggression against any neighbour — anywhere in the world.[6]

The UN Charter clearly reflects Roosevelt’s vision and marks an extraordinary shift in the boundaries of the international legal arena to encompass, for the first time, the peace-time regulation of social and economic development. The new boundaries included the recognition, albeit limited, of individuals as subjects of international law to whom international legal obligations are owed directly. This shift opened vast new possibilities for both dominating and transformative[7] outcomes by way of the articulation of universal human values, applicable to daily lives — “everywhere in the world”.

The liberal-humanitarian categories of modernity[8] in the context of 1945, and again in the wake of the Cold War, have continued to promise the egalitarian goals of modern Europe: liberty, equality, democracy, self-determination and fraternity. However, I will argue that these modern ideals, despite claiming universal applicability, carry with them certain political baggage and allegiances which legitimate notions of European, masculinist, heterosexual supremacy. At the same time, modern ideals also have the potential to open the transformative possibility of a world without domination. Understanding this paradox in international human rights law, with a view to strengthening its transformative potential, requires a reexamination of its foundational knowledges in order to reveal their loyalties to Europe and to problematise the relations of power that they support.

With the goal of rethinking modern ideals and their claim to universal Truth in mind, I engage poststructural[9] theoretical tools to trace the “genealogy”[10] of the UN discourse of human rights in order to uncover its specific allegiances to economic and political power. Drawing on the work of French philosopher Michel Foucault, and on theoretical perspectives from the margins of modernity developed by feminists, post-colonial scholars, indigenous peoples, queer and critical race theorists, I examine the local and global productivity of human rights discourse. I look for its dominating effects as well as its transformative potential, rather than for its intrinsic Truth or its authority as law. I argue that international human rights are not a timeless universal ideal, but a discursive production that can be both “dangerous”[11] and liberating.

I begin, in part I, with an examination of the foundational universal Truth claims of human rights law which rest on the ontological notion of human “dignity”. By examining the specificities of the dignity produced by human rights discourse, and the relationship it posits between the individual and society, I suggest that its apparent coherence is produced by modern European, masculinist knowledges. I argue that far from being “universal”, the dominant paradigm of human rights erases or compromises human traditions and experience that are not commensurate with Europe’s androcentric standards of human dignity. In part II, I examine how the modern techniques of dualising and hierarchising non-standard “difference” have produced and legitimated the generational development of human rights law and the exclusionary application of the notion of equality. Finally, in part III, I draw on Foucault’s notion of “governmentality” to examine the role of the Nation-State in universalising modernity and show how modernity’s amalgam of discipline and law operates in international human rights discourse. I suggest that the possibility of transformative human rights strategies depends on rejecting the hierarchies and discipline of the dominant discourse and learning how to converse across difference, and understand human dignity, without domination. Such a rethinking of the human rights paradigm relies on a deeper analysis of the relationship between dispersed local knowledges and global regimes of power.

I. Foundational Power/Knowledge

The preamble and Article 1 of the Universal Declaration of Human Rights (UDHR)[12] follow the lead of the UN Charter and use the language of dignity to express human value.[13] Since then, human rights instruments have repeatedly asserted a link between dignity and human rights.[14] The preambles of both the International Covenant on Civil and Political Rights (ICCPR)[15] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[16] declare that human rights derive from “the inherent dignity of the human person”. The value of human dignity is presented as the self-evident foundation of “freedom, justice and peace in the world”.[17] Implicit in this approach is the assumption that dignity has content as a universal Truth that precedes cultural diversity and transcends the contingency and allegiances of politics and economics. This assumption reflects what feminist theorist Jane Flax fittingly calls the “innocent knowledge” foundations of Western philosophy, by which she means the belief that it is possible to discover “some sort of truth which can tell us how to act in the world in ways that benefit or are for the (at least ultimate) good of all”.[18] While this is a critically important aspiration, my concern is to expose the dominating dimensions of its application in order to further open its transformative possibilities.

In this part I will explore the effects of the innocent ideal of universal human dignity as it is presently constituted by the economy of Truth of human rights discourse and argue that the coherence and determinacy attributed to dignity is distinctly modern. To illustrate this point I contrast modernity’s construction of dignity with the understanding of dignity in some non-European traditions. I then highlight the relationship between the individual and her/his society that is assumed by the human rights paradigm and argue that it erases many women’s experiences and is anathema to non-European communitarian traditions. I conclude that the claim of human rights law to innocent universal foundations must be rejected.

(i) The foundation of dignity

Neither the UN Charter, nor the human rights instruments that have followed it, formally invoke a philosophical basis for human rights beyond their references to the “dignity”, “dignity and worth” or “inherent dignity” of the human person. At face value, the terms are merely suggestive of an ethical or natural law foundation. According to international human rights lawyer Oscar Schachter, the meaning of dignity “has been left to intuitive understanding, conditioned in large measure by cultural factors”.[19] Mainstream commentators generally agree that the reason for the absence of an articulated definition is that consensus between diverse cultural, political and economic traditions would never have been reached.[20] This open-endedness is a promising starting point for the acknowledgment of human diversities in human rights law. But the critical issue is how a global discourse of human rights can be constructed which remains true to these beginnings. Many human rights theorists have attempted to address this question.

Henkin, whose work I use as a mainstream liberal-humanitarian reference point in this discussion, takes a positive view of the lack of philosophical exposition of human dignity as the foundation of human rights law. In his assessment it is a means of avoiding the endorsement of any particular account of the relationship between the individual and society.[21] Henkin’s argument is that this approach has enabled a combination of liberal and socialist ideas to shape international human rights which has resulted in a core of fundamental rights that are applicable across a range of different systems of government and economics.[22] As evidence, he points to the wide acceptance of the concept of human rights in agreements between States and suggests this indicates its “contemporary philosophical respectability”.[23] The existence of inherent universal human rights is, in Henkin’s view, an article of faith[24] and from this belief flows his innocent contention that human rights law, unlike other international law, serves no apparent national or political interest. Rather “its true and deep purpose is to improve the lot of individual men and women everywhere”.[25]

In contrast, Schachter takes the view that the lack of definition of dignity is not entirely satisfactory because, as he asks, how then are implications to be drawn from it?[26] He suggests that cross-cultural ontological commonality does exist and it is this which provides the justification for universal human rights. He proposes that a general definition is supplied by Immanuel Kant’s moral imperative that we consider ourselves and others as ends and never merely as means.[27] Schachter goes on to suggest that certain implications flow from this injunction which determine the substantive content of human rights law. These implications include according individual choice a high priority, guaranteeing protections from demeaning treatment, ensuring respect for individual responsibility, acknowledging that the dignity of groups must also be protected and, more tentatively, instituting a minimum concept of distributive justice and securing some idea of substantive equality.[28]

Ultimately, both Henkin and Schachter rely on the innocent knowledge claims of modern philosophy: that the post World War II formulation of fundamental human rights based on human dignity expresses no allegiance to any particular tradition and therefore has legitimate, neutral and universal applicability. In Henkin’s paradigm universality lies within limits set by liberalism and socialism and emerges in the practical negotiation of the content of human rights instruments, while Schachter posits a Kantian philosophical agreement that precedes the determination of normative content. Either way, both theorists thwart the realisation of a global human rights discourse that is attentive to the differences of disparate cultural and economic traditions, and to the diversity of human experience that results from hierarchies of gender, race, sexuality and class. Both theorists uncritically embrace the modern philosophical assumption that a coherent universal essence to human dignity can be identified which constitutes the foundation for human rights law.

The content of human dignity, as understood in the paradigm of modernity, is determinable through “scientific”, “objective” reasoning processes. Kant’s work illustrates this well. He arrives at his universal moral imperatives, through “practical reasoning”.[29] Universal respect for human dignity becomes self-evident in Kant’s second formulation of the categorical imperative, as contemporary Kantian Ferdinand Teson explains:

because rationality defines the moral agent and because the categorical imperative requires universalization, we must presuppose rationality in all the persons on whom the agent’s behaviour impinges ... this rationality makes persons objects that are worthy of respect, ends in themselves.[30]

The Kantian legacy is readily apparent in human rights texts.[31] Without wanting to suggest that individuals are anything other than ends in themselves, my point is that the belief that dignity and human rights are inherent and self-evident by way of reason, which is able to transcend the multiplicity of human traditions and cultures, is a distinctly European philosophical production. The dangers of this approach lie in its vast potential to enforce a hegemonic world view, obscured by its immense abstractions and reliance on a particularised form of reason that nevertheless claims universality.

As queer theorist Judith Butler warns,

to assume from the start a procedural or substantive notion of the universal is of necessity to impose a culturally hegemonic notion on the social field. To herald that notion then as the philosophical instrument that will negotiate between conflicts of power is precisely to safeguard and reproduce a position of hegemonic power by installing it in the metapolitical site of ultimate normativity.[32]

From a poststructural perspective, the question is not how to determine an overarching universal unity but, rather, how the formulation and practice of human rights law could recognise that human dignity has different and contested meanings in diverse social and political contexts. The poststructural question is not designed to serve the ends of torturers, authoritarian governments and rapists, although it is often dangerously misunderstood in this way. Rather, the question arises from the imperative to give voice to those non-elite groups who are marginalised, even erased, by the European and masculinist knowledge base of human rights discourse in its present form.

It is possible to mount a realist defence of the modern foundations of human rights law as, for example, do legal theorists Rhoda Howard and Robert Cover. Howard argues that human rights are universally relevant because of the now globally instituted form of the centralised Nation-State,[33] and Cover argues in a similar vein that human rights provide a critical defence against the appalling levels of violence that the modern State has proved capable of.[34] But these arguments merely relocate the universality debate in the question of the universal applicability of the modern Nation-State rather than of human rights,[35] which is a question I will return to later in this article.[36] Nevertheless, the arguments of Cover and Howard are different than those which elevate modernity to the position of expressing some underlying universal Truth about dignity and social relationships.

The failure of both Henkin and Schachter to acknowledge the European specificity of their constructions of dignity positions them among those “empowered to know” by modernity’s rational discourses.[37] As postcolonial theorist Raimundo Pannikar observes, “human rights are universal from the vantage point of modern Western culture, but not universal from the outside looking in”.[38] Further, feminists from around the world have revealed the masculinist specificity of human rights law.[39] The uncritical assertion of modernity’s neutrality and transcendence universalises the Truth and power of the elites of Europe rather than, as many human rights lawyers and activists believe, advancing the interests of all individuals without favour or exception.

One way in which the European specificities of human rights discourse can be illustrated is by contrasting the conception of dignity in Islamic traditions,[40] where it derives from humanity’s privileged status of fulfilling God’s purpose on earth.[41] According to postcolonial feminist Marnia Lazreg, Saudi Arabia’s abstinence from voting for the adoption of the UDHR in 1948 was because the document lacked the unifying framework of a belief in God.[42] Islam does not conceive of human rights as inherent in being human.[43] Rather divine commands, expressed in the holy writings of the Qur`an and Sunna[44] and interpreted by religious and legal scholars in the Shari`a, set out the duties of rulers and individuals. Although social classifications built around religion and gender are central to the tradition,[45] human rights advocate Abdullahi An-Na`im argues that the Qur`an as the word of God emphasises the honour and dignity of all, without distinction.[46] In a similar vein, human rights activists Mahnaz Afkhami and Haleh Vaziri argue that the Qur`an expresses the moral imperative to achieve equality for all, and that interpretations indicating otherwise reflect the social realities of a particular age, not the word of God.[47] Today, Islamic law is confined to “personal” matters of family and inheritance in many States, but Islamic philosophy continues to shape the world view of a significant proportion of the world’s population.[48]

Many Islamic advocates of human rights have adopted the strategy of reading human rights protections into Islam’s doctrines through radical reinterpretation, in an attempt to achieve consistency with universal human rights standards and ensure their cultural legitimacy within Islam.[49] One outcome of these efforts is the 1981 Universal Islamic Declaration of Human Rights which states that human rights have always been guaranteed by Islam.[50] Even so, the notion that human reason, as distinct from God’s word, might underlie the notion of human dignity is specifically rejected in the Declaration as fundamentally anathema to the tradition.[51]

The strategy of synthesising dissimilar traditions has been adopted by human rights proponents in other non-European traditions[52] and is a important pragmatic attempt to legitimate local human rights struggles against various authoritarian, fundamentalist, patriarchal and otherwise repressive States. But the problem with this strategy is that it also assumes that neutral universal knowledge is possible and that it can be realised as a result of bringing disparate knowledges into commensurability with modernity. The dangers of this process are that the universal claims of modernity are confirmed and the specificities of human diversity which are inconsistent with modernity continue to be erased. As Pannikar has said, “[t]here are no trans-cultural values, for the simple reason that a value exists as such only in a given cultural context”.[53] However, as he goes on to say, “there may be cross-cultural values, and cross-cultural critique is indeed possible”.[54] It follows that human rights law would be more appropriately imagined as a perpetually developing conversation across different traditions and viewpoints, rather than as a universal, trans-cultural Truth.

(ii) The relationship between individual and society

Flowing from its foundational assumptions about human dignity, international human rights law makes further European and masculinist presumptions about the relationship between the individual and her/his society. I will highlight three of these presumptions: the theorisation of the subject of human rights as an autonomous and masculine individual; the notion that rights are distinct from and prioritised over obligations; and that civil and political rights are paramount.

First, the UDHR is premised on modernity’s assumption that the pre-constituted, autonomous, self-interested individual is the fundamental unit of society and the sole subject of international human rights law,[55] despite the communitarian orientation of most, if not all, philosophical traditions outside modernity.[56] The provisions of the UDHR make no mention of group or collective rights and the single reference to cultural rights is expressed in individual terms.[57] Further, although the UDHR’s anti-discrimination provisions prohibit distinctions of any kind, making explicit reference to “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”, these distinctions are conceived as affecting individuals, not groups.[58] Even the prohibition of discrimination on the basis of the international standing of a person’s country is articulated in individual terms.[59]

In contrast, subjectivity and identity in the communal traditions of indigenous African societies rely on relational concepts,[60] while in the ancient tradition of Confucianism being human is understood as only one aspect of an interdependent cosmos.[61] In these traditions, the individual has no privileged status. Instead, identities are understood in terms of reciprocal social and legal obligations involving family, community, tribe, and may even include non-sentient things and the physical and spiritual universe. In a context where individuals understand themselves as fundamentally connected with others, extending perhaps to aspects of their environment, the concept of the individual having autonomous pre-emptive human rights is, as Cover says in relation to the tradition of Judaism, simply the “wrong” category.[62] It casts non-individualist traditions as subordinate, outside or Other to the universal claims of modern Europe. The Kantian injunction to treat others as we would wish to be treated becomes coercive when it results in the imposition of the values of one tradition trans-culturally.[63]

It is also clear that the trans-national individual of human rights law is constructed on a masculinist model. In fact, male domination appears to be coextensive with modernity. The UDHR refers throughout to the beneficiary of universal human rights as “he”, which is not simply an outmoded generic language convention which can be updated by the substitution of gender-inclusive terminology, as illustrated by the 1989 Convention on the Rights of the Child.[64] The gendered orientation of the UDHR goes to its very core. Its subject is assumed to be the breadwinner for “his family”[65] which presumes heterosexuality as well as masculinity; the rights outlined are focussed on protecting violations in the public sphere of human activity where men predominate and ignore violations in private where women are mainly harmed;[66] and the protective arrangements which entitle mothers to “special care and assistance”[67] indicate that a person who mothers falls outside the masculinist Standard. Feminist critiques of the paternalism of human rights instruments towards women as mothers[68] raise, from a different perspective, the same absence of relational values as do the critiques from the stand-point of communitarian traditions. Together these critiques present a fundamental challenge to the universal Truth claims of human rights law.

A second constitutive assumption that human rights law makes about the relationship between the individual and her/his society is implicit in the concept of rights as distinct from obligations. Rights discourse is deeply rooted in the liberal tradition of modernity and is concomitant with the prioritisation of individual liberty over collective interests.[69] Modern democratic society is conceived as a contractual association between sovereign individuals and the State. As Howard observes, this paradigm marks a “radical rupture” with most human traditions which are organised according to communal obligations[70] and reliant on principles of solidarity and interdependence to express dignity with no separation of public and private realms — for example dharma (social custom regarded as duty) in the “Indian” tradition[71] and mitzvoth (“incumbent obligation”) in the Jewish tradition.[72] Rights, if their equivalence exists at all, are not understood in many societies as abstracted from duties or other relational obligations necessary to ensure cohesiveness, survival, maintenance of a specific moral or spiritual order, or harmony of the cosmos.

The UDHR is clear in its prioritisation of rights over duties or responsibilities. The one reference to duties, in Article 29(1), states that “[e]veryone has duties to the community in which alone the full and free development of his [or her] personality is possible”. In this formulation, duties are understood as correlative to individual rights rather than as owed relationally. The former Soviet Union, as well as Saudi Arabia, protested the absence of social obligations in the UDHR in 1948.[73] What results, as critical legal theorist Nigel Purvis observes about liberalism’s shaping of international law generally, is that the only substantive commitment made is to the modern value of the liberty of preconstituted sovereign individuals[74] which is promoted as a neutral universal value. This outcome is anathema to many human traditions.

A third constitutive assumption of the primacy of civil and political rights is illustrated by the prioritising of these rights in the UDHR. While the UDHR does include so-called positive[75] economic, social and cultural rights as well as negative civil and political rights, this was an outcome due to the influence of Latin American States and the Eastern bloc during the drafting process.[76] Articles 22–27 enumerate the right to social security, to work and equal pay, to rest and leisure, to an adequate standard of living, to education and to the right to participate in the cultural life of the community. Human rights lawyer Virginia Leary has argued, like Henkin, that the inclusion of economic, social and cultural rights saves the UDHR from being an exclusively Western production.[77] But the Declaration is clear in the preference it gives to civil and political rights as evidenced by their numerical majority and their positioning in the preceding Articles 3–21. This emphasis was one reason that the communist States abstained from voting for the adoption of the UDHR in 1948.[78]

The argument that the inclusion of social and economic rights indicates the broad applicability of the UDHR overlooks several things: its individualist approach to those rights; that socialism as well as liberalism was a modern European production; and that both types of rights were consistent with the social democratic camp within liberalism which was well established by 1948.[79] In any event, the later production of the separate ICCPR and ICESCR confirmed both the split and hierarchy between these two categories of rights in human rights discourse.

(iii) Rejecting universal “innocence”

From a poststructural perspective, all knowledge is understood as shaped by the historical, political and economic particularities of its context.[80] Therefore human dignity, while it can be accepted as a universal aspiration, can have no innocent universal philosophical content. Furthermore, the idea that a universally applicable formulation of the relationship between an individual and her/his society can be rationally and neutrally determined is rejected. That human rights law is able to envisage both liberal and socialist systems of governance, as Henkin argues, does not make it universally applicable. Humankind is a plurality of “universes” outside Europe, as well as within it, and cannot be understood, without domination, as a single essence or a rational and coherent whole.

Yet the way in which international human rights normativity is currently understood depends on the foundational belief that absolute, value-free universal knowledge is possible. The result is that European rationality masquerades as universal knowledge in the form of human rights law, erasing context and specificity, and privileging heterosexual European male likeness in a world of enormous diversity. The erasure of human connectedness, contingency and diversity by human rights law is not an empirical oversight, but is deeply embedded in the structures of European thought. Acknowledging the European positionality of human rights law is an essential step towards reconceiving it. Once the camouflage of universal innocence is exposed and the present human rights regime is understood as a specific and contested way of giving meaning to human dignity, the potential for transformative rethinking of human rights law opens.

This analysis of the specificity of the UDHR does not invalidate it within the context of the 1948 configuration of world power from which it emerged. Nor do I want to suggest that the world can be understood without foundational assumptions. As Butler puts it, “theory posits foundations incessantly, and forms implicit metaphysical commitments as a matter of course, even when it seeks to guard against it”.[81] The task is to bring transparency to foundational claims, “to interrogate what the theoretical move that establishes foundations authorizes, and what precisely it excludes or forecloses”.[82] Further, it is important to understand how one tradition comes to predominate in a world of immense diversity. Such an understanding can only emerge from continually questioning the claims to Truth of foundational knowledges and exposing the political purposes they serve. In particular, it requires rejection of the modern project of decontextualising the individual in order to make innocent universal assessments.

Thus a transformative framework for the realisation of human dignity, which is concerned to recognise difference and promote diversity, is a context-dependent, discursively negotiated project. While human diversity and contingency remain concealed and disciplined in the modern human rights production of dignity as a preconstituted universal, the egalitarian categories of Europe hold vast potential to produce homogenising and dominating outcomes. Taking account of the political and economic allegiances of the present human rights paradigm challenges us to rethink the way universality is understood in the quest to realise non-domination as a cross-cultural value, and to translate it into international legal discourse.

II. Human Rights as a Technology of Difference

Of course there have been many developments since the adoption of the UDHR in 1948, including the expansion of the constituency of the UN with the emergence of post-colonial States, and the growth of local, sometimes transnational and cross-cultural movements for women’s, sexuality, cultural, racial and indigenous peoples’ rights. At the same time as finding human rights discourse a powerful means of expressing inequalities and subjugation, these new developments have inspired attempts to address the European and masculinist specificity of the UDHR and its progeny. This activity has led to the articulation of “third” and “fourth” generation rights and the proliferation of specialised human rights Conventions and Declarations. While human rights discourse has displayed a considerable degree of flexibility and dynamism in responding to issues of diversity, I will argue that the resulting expansion of the human rights heartland has occurred on the terms of the dominant framework. In this way, radical challenges from those excluded or marginalised by human rights orthodoxy have served to entrench the foundational assumptions of modernity. Among the many discursive technologies that this consolidation has relied upon are the deployment of dualistic, hierarchical concepts of “difference” and comparative notions of “equality” which continue to reproduce, as universal, the Standards of Europe.

In this section I will explore how the trope of difference operates in human rights law to shape global and local knowledges and arrange them in hierarchical categories and relationships. I examine, first, in a general way, how political and legal boundaries are drawn between the Standard of Europe and the many versions of its Other by notions of difference and equality which purport to be neutral. I then illustrate how these boundaries have operated to produce two outcomes: the hierarchical development of generational categories of human rights and the exclusionary effects of the operation of equality discourse. I argue that the many radical contestations of human rights boundaries have been restrained by the dominant paradigm and I highlight the need for transformative strategies to find ways to reject dualistic and hierarchical constructions of meaning.

(i) The Standard of Europe

Addressing the issue of the world’s diversity is not just a question of what gets included in the catalogue of recognised universal human rights, although this is a critical practical problem in itself and a good starting point for analysis. Taking what Foucault calls a “genealogical” approach,[83] the content of human rights law can be understood as dependent on a multiplicity of micro power relations at the local level which are ordered, included/excluded and transformed through many processes of contestation to produce, eventually, the appearance of a global unity. This “ascending analysis of power”[84] inverts modern theories of power which seek to explain local phenomena by reference to universal indices and centralised forms of juridical power. An ascending analysis starts with diverse local knowledges, not with the assumption of an overarching unity. Viewed in this way, the local possibilities for contesting or resisting the dominant paradigm are immense. However, resistance requires challenging the disqualification of local knowledges within the global framework of modernity which bases inclusion on notions of similarity with Europe rather than diversity, despite liberalism’s rhetoric of pluralism and tolerance.[85]

For example, as incontrovertibly fundamental as the right to life is, its content can be understood as dependent on local histories and knowledges: as an individual political and civil right related to personal security and safety; as a social and economic right to adequate food, health care and housing; as an aspect of the collective right to a clean, unpolluted environment; as a group right to cultural and spiritual survival; as the prevention of the death of 500,000 women annually from pregnancy and labour;[86] and so on. Further, there is intense controversy about the boundaries to the right to life — whether it is infringed by capital punishment,[87] or by making available the choices of voluntary euthanasia[88] or abortion.[89] Foucault sees the State’s modern power over life lying in its disciplinary mechanisms, in “the administration of bodies and the calculated management of life”,[90] which in his view has largely superseded the pre-modern sovereign power to impose the death penalty.[91] From a Foucauldian perspective the right to life would therefore entail anti-disciplinary rights or protections from State power. These diverse views illustrate in a simple way how the content of a universal human right is, in practice, highly controversial and contingent.

As I have been arguing, the view that currently prevails as universal is consistent with the dominant regimes of European power which, in the case of the right to life, give priority to the conception of life as a civil and political right which obligates States to maximise individual liberty and security.[92] Thus, despite the multitudinous possibilities and priorities at the local level some unity emerges on the global plane, although it would be a mistake to think of this outcome as predetermined or inevitable, as Foucault’s analysis of local power reminds us. Understanding how dominant regimes of power achieve the appearance of global unity is a central focus of poststructural inquiry. It is also important to understand how the global discourse, in turn, has an effect on how the right to life is understood locally. Foucauldian Alan Hunt usefully suggests the Gramscian concept of “hegemony” is an important supplement to Foucault’s paradigm.[93] The descending, hegemonic effect is not just due to the impact of judicial determinations and domestic laws which result directly from States fulfilling their international legal obligations, to the extent that they do. The effect of global knowledges on local knowledges is also produced by the disqualification of other (False) knowledges by the discursive hegemonic assertion of the content of human rights law as universal Truth.

In its construction of True and False, human rights law erects boundaries, between what is and is not fundamental and therefore universal and, as a consequence, defines what is and is not normal or Standard or within human dignity.[94] What lies inside the boundaries of Truth not only “trumps” other interests according to law,[95] but is constitutive of universal dignity. The inside view is presented as an unquestionable, rationally self-evident “point-of-viewlessness”[96] around which legal standards, claims and arguments are then organised. Thus the claim to a clean environment is not cognisable as a right to life because it is outside the boundaries of protecting individual liberty and security. Many would claim it does not qualify as a human right at all.[97] A related example is the exclusion of groups as bearers of human rights by the assumption of the autonomous individual as the basic normative unit. This relegates group identity and interests to a form of difference which, as with other outsider characteristics, is contrasted as secondary to the individualist Standard. To argue for group rights, then, is to argue a special case, or for expansion (some would say dilution) of the heavily policed human rights heartland, unless of course the relevant group is a State, which has privileged status in international law.[98]

The boundaries of the universal rely on dualistic and hierarchised notions of difference which, as Swiss linguist Ferdinand de Saussure describes it, contrast positive and negative “signs” in the processes of creating meaning.[99] The Sausseurean insight is that a particular meaning or sign results from its binary contrast with Other signs which are its antithesis. In other words, the dualistic interplay of difference is fundamental to the way that modern knowledge is constructed. For example, the meaning of the tradition of “modernity” as universal knowledge is dependent on the contrasting meanings attributed to “underdeveloped”, “uncivilised” or “backward” traditions. Further, as the poststructural analysis of Jacques Derrida reveals, the binaries which create meaning/knowledge are invested with a hierarchical power relationship of domination and subordination.[100] Therefore an affirmative or inclusionary definition relies on the negative or repressed status of its antithetical sign(s). There is nothing self-evident about the “fact” of difference which these dualisms rely upon as feminist poststructuralist Joan Scott explains.[101] Rather, deciding what counts as sameness or difference, or determining “the differences that make a difference”, is a political act.[102] Therefore to contest the boundaries between sameness and difference which determine what qualifies as universal, is to challenge a hierarchical relationship of power. The dualities of difference locate and normalise the power of dominance with the modern Standard (insider) and the corresponding subordinate position lies with the less advanced Other (outsider).[103]

(ii) The generations of human rights

The generational development of the human rights corpus provides one example of the way that difference is utilised as a means of justifying and naturalising what is actually the highly politicised and hierarchical valuation of different epistemological viewpoints and not the outcome of neutral humanitarian principles. I have already made reference to the first generational hierarchy which prioritises civil and political rights over social, economic and cultural rights. This hierarchy was an early product of the Cold War which gave the long-running debate over the status of economic and social rights new significance.[104] Clearly, in 1941 Roosevelt was not confining his post-War vision to civil and political rights and the US did support the inclusion of social and economic rights in the UDHR.[105] Despite the prioritisation of civil and political rights in the UDHR, Henkin’s observation that it represented “a remarkable juncture of political-civil and economic-social rights”,[106] takes on a new significance in the light of the present post-Cold War experience of economic and social rights disappearing altogether from the main agendas of States, in the rush to globalise free market capitalism.[107]

Earlier, with the deepening of the Cold War, the distinctions between the two categories of rights became increasingly represented as absolute, despite the spurious nature of many of these claims[108] and the continuing statements in UN forums about their indivisibility.[109] The fundamental differences posited included, for instance, that civil and political rights are absolute and immediately realisable as against the variable and progressive obligations associated with economic and social rights; and that the negative character of the former category of rights involves non-interference by the State which distinguishes them from the rights in the latter category which require positive State action. These distinctions overstate differences in a highly politicised manner and, further, ignore the positive State action required for the realisation of many civil and political rights[110] such as, for example, the right to a fair trial. In the early years of the Cold War, Western States used such difference arguments to justify their insistence on the drafting of two human rights Covenants, rather than the single instrument that was originally envisaged.[111]

The result was not simply an affirmation that there were fundamental differences between the two sets of human rights, but the production of two opposing narratives of universality which represented the interests of two versions of Europe and gave precedence to the capitalist/liberal view as the “first” generation. This human rights production assisted in Europe’s Cold War division of the entire globe into two oppositional camps in its own dualistic image. In this context, diversity came to be understood as inclusive of both socialist and liberal perspectives, as in Henkin’s view, which confirmed the difference of non-European traditions as inferior to modernity and excluded them from the universal Occidental frame of reference for human rights.

The exclusionary effects of the Cold War formulation of rights did not go unchallenged by the newly independent decolonised States, whose influence gathered momentum during the long drafting period of the Covenants as their numerical majority in the General Assembly grew.[112] One result of their efforts, despite strong resistance from Western States, was the assertion in the first Articles of both Covenants of the collective right of all peoples to self-determination and to sovereignty over their natural wealth and resources.[113] This was the beginning of the Third World “non-aligned” movement’s (NAM)[114] exploration of the potential of human rights discourse to address their concerns and was a precursor to the emergence of the “third” generation of human rights, also known as “solidarity” or “peoples” rights.

The highly controversial grouping of the “third” generation includes the right to peace, to a clean environment, to the common heritage of mankind [sic] and, perhaps most currently significant, to development. [115] Judge Mohammed Bedjaoui of the International Court of Justice argues that the right to development should be regarded as jus cogens or a pre-emptory norm. As he explains,

[it is] a fundamental right, the precondition of liberty, progress, justice and creativity ... [its] international dimension ... is nothing other than the right to an equitable share in the economic and social well-being of the world.[116]

Debate about the veracity of this and other “third” generation human rights highlights important questions of difference left unresolved by the modern framework of the first and second generations, especially the relationship between individual and collective rights, and between human rights and issues of global redistributive justice and equity. The General Assembly’s adoption of the Declaration on the Right to Development in 1986[117] lends this particular right a measure of moral legitimacy, but its normativity and utility is hotly disputed,[118] and implacably opposed by the US.[119] It also must be noted that, in its current formulation, the right to development reads more like a right that Nation-States hold and exercise rather than a collective right of people(s) to be asserted against the Nation-State.[120]

The primary political cleavage that spawned the emergence of solidarity rights was between the NAM and the West, with Eastern European States prevaricating. The “third” generation of human rights has assumed a new importance in the post-Cold War context as a marker of difference between the North and the South, producing the most recent version of discursive difference between Europe and its Other. While raising critical issues of diversity, global economic justice and transnational responsibilities, the relegation of solidarity rights to “third” generational status attributes to them a relative or questionable universality. Despite considerable agreement that solidarity rights occupy a place within general human rights discourse, the generational trope ensures that their universal status remains in doubt, and consequently reconfirms the unquestionable universality, and superiority, of the European norms of the first generation.

The characterisation of the rights of indigenous peoples as constituting a “fourth” generation of human rights confirms a further difference which has enormous political and legal significance: the distinction between “colonised” peoples who have a right to self-determination and indigenous peoples who do not. The effect of this classification repeats, in the egalitarian form of human rights discourse, the colonial narrative of indigenous peoples as “too low in the scale of social organisation to be acknowledged as possessing [sovereign] rights and interests in land”.[121] This denial reveals the deeply exclusionary paradigm of human rights discourse and has led to the sleight of hand whereby self-determination as it applies to indigenous peoples has come to mean internal self-determination.[122] International lawyer Benedict Kingsbury aptly describes this as the dominant norms shifting just as indigenous peoples think they are gaining access to them.[123]

At the same time, the international discourse on indigenous peoples has, at least, moved on from its earlier assimilationism[124] to a rights approach,[125] and some openings have been created for dialogue between the local knowledges of indigenous peoples and international human rights discourse.[126] While Foucault has observed that one function of the discourse of rights is to mask domination,[127] it also provides a language[128] and a legal framework for challenging dominating power. As indigenous peoples have shown in the negotiation of a draft Declaration on the Rights of Indigenous Peoples, dominating global discourses can be influenced by coalitions and alliances of local networks of power.[129] However on the other hand, the cost is the acceptance of the terms of the dominant discourse which, ultimately, reconfirm the interests of the modern Nation-State which is premised on the denial of indigenous sovereignty. As feminist Carol Smart expresses this dilemma in the domestic context of UK law, it is “the problem of challenging a form of power without accepting its own terms of reference and hence losing the battle before it has begun”.[130]

Thus the normative content of human rights, and the current hierarchical divisions and classifications, reflect and reproduce dominant regimes of global power. As international lawyer Martti Koskenniemi observes:

much of rights discourse is no more than the transformation of substantive political goals into human rights language, perhaps most evident in the perennial argument about whether economic and social rights and, a fortiori, the so-called third generation or solidarity rights are ‘real’ human rights.[131]

At the centre of this argument is the technology of difference which assists the naturalisation of politically determined distinctions by reproducing the superiority of European Standards as a progressivist inevitability, in contradistinction to the secondary status of the many forms that Europe’s Other can take. The struggles over diversity are disciplined and contained in the interests of the elites of Nation-States through international human rights discourse, which is one way of accounting for the wide State acceptance of human rights instruments. Expressions of commitment to diversity, understood in this context, are minimalist concessions to a pluralism that is ordered hierarchically so as to protect the global status quo of modernity.

(iii) The exclusions of equality

The exclusionary operation of the human right to equality provides a second example of how modernity’s dualistic construction of difference shapes the substantive content of human rights. Equality is one of the foundational Truths of modernity and, as such, of international human rights law. The UDHR emphasises that human rights apply without distinction across all differences, yet even in its drafting processes double-standards were apparent. For example, a draft article suggested by India, making specific reference to the prevention of discrimination against minorities, was rejected with most participants expressing assimilationist views.[132] Indeed the preceding century of the European practice of equality had been fraught with contradictions. Within Europe the exclusion of women from the political realm was justified[133] and beyond Europe the practices of slavery and colonialism were endorsed as hallmarks of modernity,[134] unimpeded by the rhetoric of inherent human dignity and equality.

It is the hierarchisation of difference that makes such blatant inconsistencies appear natural, defensible and incontestable. The equality of modernity is a formal standard which, as Henkin observes, makes “no direct injunction towards equality in fact”.[135] Rather, equality is constructed as a comparative standard which has no autonomous substantive content.[136] Equality, meaning equal treatment or equality of opportunity, is mandated only when compared subjects are assessed as “the same”. Difference, then, is a technique for justifying unequal treatment and naturalising discriminatory actions on the basis that subjects are not the same. The Standard against which sameness and difference are assessed is, as I have argued, not a neutral disembodied abstraction but the privileged figure of Europe’s masculinist heterosexual elites.

In practice, then, a claim to equality (inclusion), which brings with it human rights protections, relies on satisfying the criterion of sameness with the Standard. For example, women’s experiences of violation and injury are included only to the extent that they are commensurable with men’s. As feminists have shown, dominant understandings of human rights abuses like “torture” and “persecution” largely exclude women’s gendered experience[137] and the individualism of the framework denies the web of relationships that constitute the realities of many women’s daily lives.[138] The paradigm of sameness/difference has the effect of excluding rights violations associated with women’s corporeality from the universal category of human rights. It also perpetuates subordinating and essentialist ideas about women[139] and presumes that the Woman[140] of international human rights discourse, to the extent that she does appear, is European[141] and heterosexual.[142]

If the test of sameness is not satisfied, the alternative made available in human rights discourse is to argue that “difference” justifies special treatment. There is a crucial distinction between special treatment and the recognition of additional universal human rights, as the specialised Conventions outlawing discrimination on the basis of race and gender illustrate.[143]

These Conventions do not expand the human rights heartland. They do not achieve a more inclusive Standard by identifying gender or race-specific rights violations, such as domestic violence, racial harassment, or the denial of indigenous relationships with land, as human rights abuses. They merely prohibit the denial of equal (the same) treatment on the basis of racial or gender difference.

Further, although both Conventions envisage that special measures (unequal treatment) may be necessary, for “securing the adequate advancement of certain racial or ethnic groups or individuals”[144] or for “accelerating de facto equality between men and women”,[145] the need is assumed to be temporary. That is, ultimately, it is presumed that equality will be satisfied by treating everyone the same despite huge disparities in wealth and power, and enormous diversities in cultural, sexuality, racial, gender and other identities. In the few instances where different treatment is authorised by human rights instruments, such as protective workplace measures for pregnant women and mothers,[146] the effects are paternalistic and demeaning rather than consistent with substantive equality.[147]

Both the strategies of basing equality claims on sameness or difference leave the masculine, heterosexual, European Standard unquestioned and therefore confirmed. This is the conundrum that feminist Martha Minow calls the “dilemma of difference”[148] and Scott refers to as “structur[ing] an impossible choice”,[149]

because both options of either highlighting difference or ignoring it tend to reconfirm difference as a secondary, non-universal characteristic which justifies inequality. This interdependence of sameness and difference, of the Standard and its Other as in the Derridean analysis, explains how radical challenges have been contained by the dominant human rights discourse and coopted to the service of its consolidation, rather than to its reinvention. This insight, as Scott observes, is

[t]he brilliance of so much of Foucault’s work ... to illuminate the shared assumptions of what seemed to be sharply differing arguments, thus exposing the limits of radical criticism and the extent of power of dominant ideologies or epistemologies.[150]

The various local and global human rights movements, which have sought inclusion in the human rights paradigm on the basis of sameness or difference are thus limited and disciplined by modernity’s dichotomies of True and False.

In this way, human rights arguments about equality in terms of sameness and difference function as a technology of power. The allegiance of equality discourse to dominating regimes of power is disguised by the characterisation of inequality as an issue of non-discrimination rather than empowerment.[151] The language of anti-discrimination obscures relations of power by normalising privilege as “the way things are”[152] and awards remedies for discrimination only in relation to a highly politicised and closely monitored set of differences. It does not lead to the recognition of new human rights, nor to a reassessment of the underlying Standards, nor to a recognition of the multiplicity of difference.

In sum, dualistic and hierarchised conceptions of difference are a central technique of European domination through the egalitarian narratives of modernity. Human rights law engages these technologies of difference as illustrated by its generational development and its understanding of inequality in terms of comparative sameness and difference with the Standards of modernity. Of critical importance to transformative change is understanding how the multiplicity of global difference might replace the dualistic hierarchies of modernity. This involves, among other things, a deeper understanding of the relationship between local and global knowledges and how local knowledges might organise to resist the hegemony of European modernity. Some insights are offered by Foucault’s notion of “governmentality” which I will explore in the following section.

III. Governmentality and the Cooperation Between
Legal and Disciplinary Power

The extension of international law by the UN Charter to include the promotion and protection of universal human rights was championed by the Great Powers in the context of the 1945 balance of world power. This expanded role was indeed a “unique and revolutionary purpose”[153] for international law, despite lacking the innocent humanitarian motivations attributed to it by Henkin. By including the advancement and regulation of economic and social development in the UN’s mandate, the way was opened for unprecedented levels of international intervention in the domestic affairs of States.[154] It fostered the emergence of an institutional framework for global governance which would promote “social progress and better standards of life”.[155] I will argue that, in this endeavour, both law and the social sciences have assumed key and complementary roles in promoting the universal reach of disciplinary European knowledges. This promotion is evident in the governmental activities of Nation-States which are fostered by the UN Charter.

In this section, I will explore the interplay between law and the discipline of the social sciences in the promotion of international human rights and build on Foucault’s genealogical analysis of the relationship between local micro knowledges and global regimes of power. First, I critically examine the emergence of the modern Nation-State as a universally legitimate entity using Foucault’s notion of “governmentality”. I show how modern disciplinary knowledges, like law, dualise and hierarchise difference in the production of a discourse of governmental Truth that is globalised through UN institution-building. Second, I examine the cooperative links between human rights law and the science of governmentality in order to argue that, while law remains an important site for transformative struggle, human rights strategies need to take account of the interpenetration of law by discipline. Finally, I suggest that Foucault’s typology of ascending power, augmented by a parallel and interconnected descending analysis of power, suggests new possibilities for transformative, grass roots human rights strategies.

(i) Universalising the Nation-State and governmentality

Human rights law, like all international law, assumes that the social, political and legal form of the modern Nation-State has global legitimacy. The institution of the Nation-State envisages a relatively homogeneous citizenry,[156] relies on centralised government and asserts the primacy of imagined national identification and loyalty. [157] The focus of human rights law is on preserving the rights of the individual as against this type of State. In assuming Nation-Statehood as universal, human rights instruments assist the erasure of diverse associations and multiplicitous identities, repeating the earlier “civilising mission” of colonialist Europe — this time by the global imposition of a modern State-based governmental framework, in the name of progress, order and freedom. The Kantian view takes this mission a step further by asserting that the only legitimate States are liberal-democracies because they are the only States that respect human rights.[158]

In reality, the postcolonial Nation-State has violently disrupted and displaced earlier political arrangements.[159] The universalisation of Statehood has enforced the transfer of locally negotiated obligations and power, formerly residing in communal groupings, to central State institutions making the “radical rupture” with communitarian traditions referred to by Howard.[160] This transfer of power serves the interests of post-colonial elites and not, as promised in the anti-colonial self-determination struggles, the democratic interests of the people themselves.[161] The African Charter on Human and People’s Rights,[162] often cited as a paradigm example of the flexibility and cross-cultural legitimacy of human rights discourse, illustrates this well in its neo-colonial emphasis on protecting the imperialist-designed territorial entities that became postcolonial Nation-States. As Tanzanian law professor Issa Shivji argues, the African Charter asserts the principles of non-interference and territorial integrity over the self-determination of peoples.[163] By presupposing the Nation-State as the primary locus of identification for all humanity, the discourse of human rights functions as a strategy of recolonisation wherein the importance of local or transnational identities is denied,[164] as is the possibility of multiple identities.

The UN Charter promotes a world-wide system of governance by Nation-States in its fostering of global economic and social development. This system sets out to strengthen the power of the Nation-State by advancing the development of modern institutions and practices of government within States. The UN’s sponsoring of State-centred modern government promotes globally what Foucault calls “government rationality” or “governmentality”.[165] He locates the origins of governmentality in the early modern recognition that a State’s power and wealth lies with its population rather than its territory.[166] Therefore, establishing a government requires

set[ting] up an economy at the level of the entire state, which means exercising towards its inhabitants, and the wealth and behaviour of each and all, a form of surveillance and control as attentive as that of the head of a family over his [sic] household and his goods.[167]

In Foucault’s view, the aim of modern government is to develop and harness the individual capacities of a State’s citizens so that they ultimately foster the strength of the Nation-State.[168]

Foucault identifies “discipline” as a new form of modern power, which first emerged during the seventeenth and eighteenth centuries and came to represent the interests of Europe’s elites.[169] His work traces the development and exercise of disciplinary power in prisons, schools, factories and other newly emerging modern institutions. He describes discipline as becoming embedded in daily life, resulting in an extensive “carceral network”[170] which operates to exclude subversive or resistant knowledges and anatomies. Foucault emphasised the multiple origins and localised operation of the social sciences and their productivity in creating detailed knowledges designed to respond to an endless variety of circumstances.[171]

In response to criticism that his analysis was too localised and failed to address macro issues of global power and politics, Foucault argued that the methods he had developed to examine the local operation of disciplinary power could also be applied to the study of governmental practices involved in the political management of populations.[172] According to Foucault, in the realm of politics,[173] the science of governmentality developed in response to the tension in the democratic idea of simultaneously governing for the good of all and governing in a way that is responsive to each individual.[174] Thus liberal ideas grew from the necessity to forge new relations of power between the divergent interests of the emerging Nation-State and the autonomous individual of the Enlightenment. What ensued was the modern disciplinary relationship between the government and the governed.

Further, the disciplines of modernity mapped human behaviour in universal humanist categories which were utilised in the processes of colonisation and of normalising other forms of domination. The concrete arrangements of government relied on knowledges which regulated the social body of a population,[175] such as demography, statistics, birth control regulation and the psychiatrisation of sexual activity which resisted discipline.[176] In Foucault’s view, disciplinary regulation was indispensable to the development of capitalism which required “methods of power capable of optimizing forces, aptitudes, and life in general without at the same time making them more difficult to govern”.[177] Although Foucault is sceptical of meta-theory, his notion of governmental macro-management of the population comes close to suggesting how one discursive formation comes to be dominant. As he says, social science knowledges “acted as factors of segregation and social hierarchization ... guaranteeing relations of domination and effects of hegemony”.[178] That is, the dualisms and hierarchies of modernity became central techniques of domination in political as well as legal discourse.

One example of the new technologies of rational government was the collection of statistics.[179] The development of modern institutions, laws, policies and representative forms of government all rely on statistics, which utilise social science categories to quantify, but also to produce, contain, erase and hierarchise, various aspects or phenomena of population.[180] Subaltern Studies[181] scholar Dipesh Chakrabarty illustrates the constitutive power of statistics in the colonial context of India, with reference to the categories of Religion and Caste which were introduced in the regular census undertaken by the British.[182] These categories sorted and ordered people into absolute and hierarchical classifications which made the population “knowable” to the colonisers by bringing them into a relationship of commensurability with Europe. The colonial categories eventually predominated as “factual” Truth, denying the previous multi-layered and contingent understandings of difference and identity.[183]

Chakrabarty’s analysis makes the connection between the local processes which colonised India and the hierarchising techniques promoted by the UN Charter system as follows:

My point is that the social assumptions on which the classification and organization of census figures rested were fundamentally modern: they showed India to be a collection of ‘communities’ whose ‘progress’ or ‘backwardness’ could be measured by the application of some supposedly ‘universal’ indices. This is exactly how the modern world of nation states is structured — it is a united but internally hierarchized world where some countries are described as measurably — or should I say immeasurably — more ‘advanced’ than others ... [184]

Implicit in the way in which the UN Charter promotes social and economic development is the idea that non-European peoples need to go through a kind of re-education process whereby governmentality is embraced, before they can emerge from “underdevelopment” and legitimately claim sovereign equality with the Nation-State members of the UN. [185]

Foucault stresses the point that governmentality is reliant more on Truth than pure violence and posits an interdependence between the power to govern and the control over Truth.[186] The science of modern government produces a discourse of Truth in much the same way as law, by dualising and hierarchising difference and by disqualifying incommensurable knowledges. The disciplinary distinction between “normal” (civilised) and “abnormal” (uncivilised) is a social sciences version of the boundaries of inclusion and exclusion propounded by human rights law. The trope of difference thus operates as a disciplinary, as well as legal, technique of domination. As in the legal paradigm of equality where inclusion can be negotiated or attained on the basis of sameness in the name of justice, so too in the governmental paradigm is inclusion available on the condition that normalisation (civilisation) is embraced in the name of progress.

(ii) Human rights law and governmentality

Foucault draws a distinction between legal and disciplinary power. He characterises law as a monolithic and menacing form of power reliant on “the sword”[187] that contrasts with the local and dispersed operation of disciplinary power, especially in his earlier work. He saw the rise of discipline as gradually colonising or absorbing the premodern sovereign power of law, forcing law to operate increasingly as a normalising discourse. In his view law is not capable of encoding the continuous surveillance that governmentality requires:

it is a question not of imposing law on men, but of ... employing tactics rather than laws, and even of using laws themselves as tactics ... the instruments of government, instead of being laws, now come to be a range of multiform tactics.[188]

Yet Foucault also said that when confronted with disciplinary power, law attempts to recode it in legal form.[189] Therefore his proposition about law’s absorption by discipline was not unequivocal.

In fact, in Foucault’s conception of governmentality, both legal and disciplinary discourses play a role in the production of dominating, universal knowledges. He refers to the triangle of sovereignty-discipline-government, [190] in which the interests of government are clearly linked with both sovereign legal rights and disciplinary regulation. Further, Foucault identifies the expansion and increasing influence of rights discourses as contributing to the management and normalisation of populations.[191] For example, he suggests that the constitutions of modernity, framed in the egalitarian terms of the French Revolution, were the legal forms that made an essentially disciplinary State palatable.[192] Although Foucault uses this as an illustration of how law comes to operate more as a form of discipline, it is more usefully understood as a cooperative enterprise between law and discipline.[193] Rights come to be accepted as an essential element of “good government” in their own right as law, rather than in the service of discipline. This cooperation can be seen in the way that the right to liberty becomes an idea that is critical to effective government; “disrespect of liberty is not simply an illegitimate violation of rights, but an ignorance of how to govern”.[194]

The UN Charter’s promotion of universal human rights, as a component of economic and social development, is unequivocal. In empowering the Economic and Social Council to set up mechanisms to assist in the performance of its functions, the only explicit direction given is to establish a human rights commission.[195] The snowballing of universal human rights law since its inauguration in the UN Charter, and the proliferation of claimants, has been breathtaking.[196] In the universal production of dignity, of the relationship between the individual and her/his society, and of the hierarchies of equality discourse and human rights generations, human rights law is both supportive of and supported by the disciplinary discourse of the social sciences. Both systems of power/knowledge affirm and normalise the subordinating universal indices of a masculinist, civilising Europe.

The complementarity of legal and disciplinary power is perhaps most evident in the categories of human rights claimants. The disciplines have produced groupings for the purposes of social regulation, like the categories of homosexuals, prisoners, mothers and indigenous peoples, and hierarchies like those of Race, Gender, Caste, Sexuality and Religion. These categories have been embraced by human rights law and used to extend its own “protective” powers in the form of rights. The attendant cost of the attainment of more rights, as Smart has astutely observed, is the increased information that claimants must provide to the State in establishing their entitlements, which enlarges the potential for surveillance, regulation and the enforcement of conformity.[197]

Legal categories utilise disciplinary knowledges in setting the identities of claimants and determining which injuries qualify for redress. Pheng Cheah points to aboriginal tribes in South-East Asia who are compelled by the universal human rights paradigm to “go ethnic” to defend their rights by “staging a collective identity and demanding rights in the name of that identity”.[198] Likewise, feminist and sexuality claims tend to reproduce the gender and sexual difference they seek to do away with, as a condition of their inclusion in the dominant discourse.[199] Although, in Foucault’s view, the new discourse of rights[200] was a political response to the demands of governmental power which he thought the juridical system incapable of comprehending,[201] it is significant that this response nevertheless took the form of law because it attests to the ongoing efficacy of legal discourse. Thus law remains an important site of transformative struggle, contrary to Foucault’s predictions of its demise. Further, it is important to understand that human rights law, despite its disciplinary and protective dimensions, also generates and shapes possibilities for resistance[202] which I will now explore.

(iii) Power in ascending and descending analyses

The importance of Foucault’s ascending analysis of power is its insistence that local knowledges are forms of power which are able to contest dominating knowledges despite, or perhaps because of, being subjugated or disqualified by them. Although Foucault emphasises the local operation of discipline on individual bodies and identities, disciplinary power clearly comes to produce global effects through the universal knowledges of the social sciences and the practices of governmentality. In order to understand better how local knowledges come to be reorganised, coordinated, condensed and coded into global, dominating discourses, it is crucial also to acknowledge the reverse effect that global knowledges have on the local, which I have called a descending analysis of power. As I have outlined, the content of the global discourses of dignity and of the relationship between the individual and her/his society have had constitutive, subjugating effects on local meanings. Also as Chakrabarty observes, the European categories of Caste and Religion came eventually to predominate locally in India, with terrible consequences in India’s enduring problems of racial and ethnic conflict.[203]

A descending analysis of power is not to be mistaken for a reassertion of modern theories of monolithic, unified power but rather as the addition of a further dimension to Foucault’s paradigm which maintains his emphasis on the importance of the local. A descending analysis seeks to understand how global knowledges come to influence, reorganise and shape local knowledges and, alternatively, how global knowledges are themselves disqualified or brought into a relationship of commensurability with the local. How, for example, does the denial of a group’s spiritual and cultural associations with land become experienced locally as a violation of the universal rights of indigenous peoples? It is necessary to understand the hegemonic effects of global knowledges in order to realise the potential of local knowledges to resist and reshape them.

A further important point is that neither law nor the disciplines are unitary discourses.[204] While they interact with each other in multiple ways locally and globally, they also intersect with other discourses and practices. This produces multiple sites of power and therefore also of resistance. So, before rushing to forecast a superdisciplinary, carceral global society, we need to recognise, as Hunt suggests, that the interaction between different regulatory discourses and practices is seldom, if ever, complete.[205] This recognition opens many possibilities for local resistance which, if we can better understand how they might be linked and coordinated, could mount powerful challenges to the prevailing dominating discourses of universality and difference.

This returns to Pannikar’s point that, while there can be no transcultural values “there may be cross-cultural values, and cross-cultural critique is indeed possible”.[206] To explore these possibilities we need to learn to engage in critical conversations in which differences in power are acknowledged and addressed, difference itself is understood as politically determined, and the modern Nation-State is reconstructed. We need to learn to speak in multiplicities rather than dualities and to continually engage diverse local knowledges in our efforts to understand and resist the hegemonic effects of all global discourses. At the same time, we must learn how to speak about and defend human value across differences and not allow our diversities to muffle or silence common pursuit of a world in which non-domination is the principle value.

In sum, the UN Charter promotes a global regime of governmentality by its privileging of the modern Nation-State as universal and its measurement of social and economic development according to European indices. In this endeavour, legal and disciplinary power operate in tandem rather than, as Foucault suggests, discipline increasingly colonising law. The cooperative enterprise of producing universal Truths is highly effective in shaping local and global knowledges and in restraining and recoding resistance. However, its hegemonic effects are rarely complete and, with a better understanding of the operations of power in modernity, in both its ascending and descending movements, the hegemony of modern forms of power can be more effectively challenged.

Transformative human rights strategies need to forge alliances and coalitions between local and global knowledges, across the many divisions and hierarchies produced by the dualistic arrangements of difference of the dominant discourse. Such strategies need to reimagine the classic European ideals of liberty, democracy, equality, fraternity and self-determination so that they disrupt global regimes of dominating power rather than reinforce them. This task has a new imperative in the context of the balance of global power precipitated by the conclusion of the Cold War, in which the UN is championing, with renewed vigour, the universal cause of human rights.

IV. Conclusions

Examination of the constitutive assumptions of human rights law reveals that it is not based on innocent humanitarian, timeless and universal Truth. Rather, it is a situated, contingent and contested knowledge that is discursively produced by multiple dominating and resistant discourses. In its current form, human rights law naturalises and legitimises the subjugating and disciplinary effects of European, masculinist, heterosexual and capitalist regimes of power.

The techniques of dualising and hierarchising difference assist in the global legitimation of modernity as evidenced by the generational narrative of categories of human rights and in the exclusionary operation of the concept of equality. Differences like those of gender, race, sexuality, indigeneity, culture, class and nation are defined and contained by dichotomous language structures so as to confirm and normalise the supremacy of Europe’s elites.

The global system of the UN Charter can be analysed as a means of promoting the science of governmentality that engages both legal and disciplinary power in instituting the modern form of the Nation-State as universal. Human rights law provides an example of the complementarity of these two forms of power. Foucault’s ascending analysis of power, and his genealogies of the operation of law and discipline in modernity, open space for reassessing the potential of legal strategies to promote transformative change. His analysis suggests that reexamining modern categories with a view to revealing the loyalties and relations of power they support can open transformative non-dominating and anti-disciplinary possibilities. This provides a starting point for understanding how dispersed local knowledges might be coordinated and coded into global human rights movements that are able to challenge the hegemony of Europe.

Rethinking, from the margins of human rights orthodoxy, the way in which universality and difference are conceived is a project that is potentially both dangerous and liberating. Finding ways to understand dignity in the context of differences and of contested meanings has important implications for global regimes of power. Rethinking universality may further entrench dominating forms of power at the same time as it may open transformative possibilities. In any event, human rights law remains a critical site for deepening our understanding of the relationship between local and global knowledges, for learning to converse across differences without erasure and domination, for contesting the disciplinary hegemonic Truths of modernity, and for realising a world in which non-dominating discourses are powerful.

[*] Senior Lecturer in Law, The University of Melbourne, Australia. BA Adelaide University (1973); LLB Melbourne University (1992); LLM Melbourne University (1997); currently JSD candidate Columbia Law School. I would like to thank Rosemary Hunter, Wayne Morgan and Sarah Pritchard for their thoughtful support for this project. This article is the second in a series of three interrelated articles. The other two articles are forthcoming as follows: “Everything Is Dangerous: Some Poststructural Tools for Rethinking the Universal Knowledge Claims of Human Rights Law” (1998) Australian Journal of Human Rights; “Rethinking the ‘Universality’ of Human Rights Law” (1997) 29 Columbia Human Rights Law Review 1.

[1] Charter of the United Nations (UN Charter) adopted 26 June 1945, entered into force 24 October 1945. A total of 8 references to human rights appear. See preamble 2nd para, Articles 1(3) 13(1)(b) 55(c) 56, 62(2) 68, 76.

[2] Leary VA, “The Effect of Western Perspectives on International Human Rights” in An-Na`im AA and Deng FM eds, Human Rights In Africa: Cross-Cultural Perspectives (1990) p 15 at 18–19. In Leary’s assessment, the proposal by the US to include a reference to freedom of religion was abandoned when Japan suggested that guarantees of the equal treatment of all races, including non-discriminatory treatment of aliens, should also be included. However, the Covenant of the League of Nations (1920) did establish the Mandate system (Article 22) and envisage the establishment of the International Labour Organisation (ILO) which were important antecedents to an international human rights regime.

[3] Henkin L, International Law: Politics and Values (1995) pp 169–173; Buergenthal T, International Human Rights in a Nutshell (1995) pp 2–18.

[4] Henkin L, “Introduction” in Henkin L ed, The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p 1 at 4.

[5] The United States of America, France, the United Kingdom, the Union of Soviet Socialist Republics and China.

[6] “Address of the President of the United States”, 6 January 1941, Congressional Record (1941) vol 87, pp 46–47, cited in Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 19.

[7] By “transformative” I mean something more fundamental than reform of the current system. Poststructural feminist Drucilla Cornell, Transformations: Collective Imagination and Sexual Difference (1993) p 1, describes transformative change as:

change radical enough to so dramatically restructure any system — political, legal or social — that the “identity” of the system is itself altered. The second meaning, defined as broadly as possible, turns us to the question of what kind of individuals we would have to become in order to open ourselves to new worlds.

[8] Modernity has its origins in eighteenth century Enlightenment thinking and is the dominant philosophical production of present day “Europe” which extends beyond the West to include post-colonial elites who have embraced European knowledges and institutions as their own. Modernity is described by Margaret Davies, Asking the Law Question (1994) p 221, as “the attempt to find absolute grounds for knowledge, to discover abstract, transcendent principles which would be the foundation for all philosophical questioning”.

[9] The terms “poststructuralism” and “postmodernism” are often used interchangeably and there is considerable overlap between the two projects in their fundamental challenge of the certainties of modern knowledges. Carol Smart, Law, Crime and Sexuality: Essays in Feminism (1995) pp 7–9, distinguishes poststructuralism as being more concerned with the local, embodied, situated construction of knowledge while postmodernism is a critique of the epistemological foundations of modernity. Like Smart, I use the term poststructuralism to indicate my interest in the local mechanisms of power, how concrete bodies are invested with particular meanings and subjectivities, and how these effects of power can be resisted.

[10] Foucault M, “Two Lectures” in Gordon C ed, Power/Knowledge (1980) p 78 at 81. Foucault describes genealogical investigations as “anti-sciences” rather than empirical investigations which entertain the claims to attention of local, discontinuous, disqualified, illegitimate knowledges against the claims of a unitary body of theory which would filter, hierarchise and order them in the name of some true knowledge and some arbitrary idea of what constitutes a science and its objects.

[11] Gordon C, “Governmental Rationality: An Introduction” in Burchell G, Gordon C and Miller P eds, The Foucault Effect: Studies in Governmentality (1991) p 1 at 46. Gordon explains that Foucault considers nothing to be intrinsically “evil” but that everything has the potential for evil within it and is therefore “dangerous”.

[12] Universal Declaration of Human Rights (UDHR) adopted 10 December 1948, GA Res 217 A (III) UN Doc A/810 at 71 (1948). It was adopted by 48 votes, with eight abstentions and none against. The abstaining States were Saudi Arabia, South Africa, and 6 members of the Eastern European bloc: Belarus, Czechoslovakia, Poland, Ukraine, Union of Soviet Socialist Republics (USSR) and Yugoslavia.

[13] UN Charter, n 1 above, preamble, reaffirms faith “in fundamental human rights [and] in the dignity and worth of the human person”.

[14] International Convention on the Elimination of All Forms of Racial Discrimination (CERD) adopted 21 December 1965, entered into force 4 January 1969, (GA Res 20/2106A (xx)) 660 UNTS 195, preamble, “affirms the necessity of speedily eliminating racial discrimination ... and of securing understanding of and respect for the dignity of the human person”; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted 18 December 1979, entered into force 3 September 1981, GA Res 34/180, UN Doc A/34/46 at 193, preamble, “discrimination against women violates the principles of equality of rights and respect for human dignity”; text also available (1980) 19 ILM 33; Convention on the Rights of the Child (CRC) adopted 20 November 1989, entered into force 2 September 1990, GA Res 44/25, UN Doc A/44/49 at 166, preamble, “recognition of the inherent dignity ... of all members of the human family is the foundation of freedom, justice and peace in the world”; text also available (1989) 28 ILM 1448; African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, OAU Doc CAB/LEG/67/3 Rev 5, preamble, “freedom, equality, justice and dignity are essential objectives” and Article 5, “Every individual shall have the right to the respect of the dignity inherent in a human being”; text also available (1982) 21 ILM 58; American Convention on Human Rights, signed 22 November 1969, entered into force 18 July 1978, OASTS 36, OAS Off Rec OEA/Ser.L/V/II.23, doc 21, Rev 2, Article 5, “All persons ... treated with respect for the inherent dignity of the human person”; text also available (1970) 9 ILM 673; Declaration of the Basic Duties of ASEAN Peoples and Governments (1982 Asian NGO declaration) “inspired by Asian reverence for human life and dignity which recognizes in all persons basic individual and collective rights”, cited in Leary VA, “The Asian Region and the International Human Rights Movement” in Welch CE and Leary VA eds, Asian Perspectives on Human Rights (1990) p 13 at 23.

[15] International Covenant on Civil and Political Rights (ICCPR) adopted 16 December 1966, entered into force 23 March 1976, GA Res 2200 A (XXI) UN Doc A/6316 (1966); 999 UNTS 171.

[16] International Covenant on Economic, Social and Cultural Rights (ICESCR) adopted 16 December 1966, entered into force 3 January 1976, GA Res 2200 A (XXI) UN Doc A/6316 (1966); 993 UNTS 3.

[17] UDHR, n 12 above, preamble.

[18] Flax J, “The End of Innocence” in Butler J and Scott JW eds, Feminists Theorize The Political (1992) p 445 at 447.

[19] Schachter O, “Human Dignity As A Normative Concept” (1983) 77 American Journal of International Law 848 at 849.

[20] Donnelly J, “Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights” (1982) 76 American Political Science Review 303 at 314; Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 21.

[21] Henkin, The International Bill of Rights, n 4 above, p 12. Although Henkin does concede that the concept of “rights” implies a particular relationship between the individual and society.

[22] Ibid, p 28.

[23] Ibid, pp 1–2.

[24] Ibid, p 12. In a similar vein, Rosalyn Higgins states: “I believe, profoundly, in the universality of the human spirit”, Higgins R, Problems and Process: International Law and How We Use It (1994) p 96.

[25] Henkin, The International Bill of Rights, n 4 above, p 7.

[26] Schachter, n 19 above, at 849.

[27] Ibid.

[28] Ibid, at 849–851.

[29] Kant I, Critique of Practical Reason (LW Beck translation 1956) pp 42–50.

[30] Teson F, “The Kantian Theory of International Law” (1992) 92 Columbia Law Review 53 at 64.

[31] UDHR, n 12 above, Article 1 states “All human beings ... are endowed with reason and conscience and should act towards one another in the spirit of brotherhood [sic]”.

[32] Butler J, “Contingent Foundations: Feminism and the Question of “Postmodernism” in Butler J and Scott JW eds, Feminists Theorize The Political (1992) p 3 at 7–8.

[33] Howard R, “Dignity, Community and Human Rights” in An-Na`im AA ed, Human Rights in Cross-Cultural Perspectives (1992) p 81 at 81.

[34] Cover RM, “Obligation: A Jewish Jurisprudence of the Social Order” (1988) 5 Journal of Law and Religion 65 at 69. See also Donnelly, “Human Rights and Human Dignity”, n 20 above, at 310 who argues that the universality of human rights law is justified by the severing of earlier communal ties because of westernisation which has destroyed traditional means of realising human dignity.

[35] Otto D, “Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference” (1996) 5 Social and Legal Studies 337 at 341.

[36] See below, part 3(i) Universalising the Nation-State and governmentality ”, p 2.

[37] Davies, n 8 above, p 177. “‘Neutrality’ is only the position which is culturally enabled to deny its positionality — it is the position which is empowered to know”.

[38] Pannikar R, “Is The Notion of Human Rights a Western Concept?” (1982) 120 Diogenes 76 at 94.

[39] Bunch C, “Women’s Rights As Human Rights: Toward a Re-Vision of Human Rights” (1990) 12 Human Rights Quarterly 486; Peterson VS, “Whose Rights? A Critique of the ‘Givens’ in Human Rights Discourse” (1990) 15 Alternatives 303; Charlesworth H, “What Are ‘Women’s International Human Rights’?” in Cook RJ ed, Human Rights of Women (1994) p 58; Cook RJ, “Women’s International Human Rights Law: The Way Forward” (1993) 15 Human Rights Quarterly 230; Romany C, “State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in International Human Rights Law” in Cook RJ ed, Human Rights of Women (1994) p 85; Bunting A, Theorising Women’s Cultural Diversity in Feminist International Human Rights Strategies (1993).

[40] This brief discussion involves a level of generality by which I do not mean to suggest that either tradition is monolithic or without diverse local variations and resistances. See Hom S, “Commentary: Re-Positioning Human Rights Discourse on ‘Asian’ Perspectives” (1996) 3 Buffalo Journal of International Law 209 at 211.

[41] Lazreg M, “Human Rights, State and Ideology: An Historical Perspective” in Pollis A and Schwab P eds, Human Rights: Cultural and Ideological Perspectives (1979) p 32 at 34.

[42] Ibid, p 35.

[43] An-Na`im AA, “Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives” (1990) 3 Harvard Human Rights Journal 13 at 22.

[44] The Qur`an is the word of God as revealed to the final Prophet Muhammad between 610 and 632 AD. The Sunna are records of the Prophet’s interpretations and applications of Islam.

[45] An-Na`im AA, “The Rights of Women and International Law in the Muslim Context” (1987) 9 Whittier Law Review 491 at 495–6.

[46] An-Na`im AA, “Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights” in An-Na`im AA ed, Human Rights in Cross-Cultural Perspective: A Quest for Consensus (1992) p 31 at 47.

[47] Afkhami M and Vaziri H, Claiming Our Rights: A Manual for Women’s Human Rights Education in Muslim Societies (1996) pp v–vi.

[48] An-Na`im, “Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives”, n 43 above, at 14.

[49] An-Na`im, “Islam, Islamic Law and the Dilemma of Cultural Legitimacy for Universal Human Rights”, n 46 above, pp 46–50, who draws on the work of the Sudanese Muslim reformer Ustadh Mahmoud Mohamed Taha; Tibi B, “The European Tradition of Human Rights and the Culture of Islam” in An-Na`im AA and Deng FM eds, Human Rights in Africa: Cross-Cultural Perspectives (1990) p 104 at 119–121; Afkhami and Vaziri, n 47 above.

[50] Tibi, ibid, p 118 quotes from the Universal Islamic Declaration of Human Rights: “Fourteen centuries ago Islam rendered human rights legal in full depth and extent. Islam attached to these rights all necessary guarantees to protect them” from the Declaration reprinted in Muhammad Salim al-`Awwa, fi al-nizam al-siyasi li al-dawla al-islamiyya, p 307. For an English translation see Weeramantry CG, Islamic Jurisprudence: An International Perspective (1988) pp 176–83.

[51] al-`Awwa, n 50 above, “human reason is incapable of finding the right path for a proper life without the guidance of God”, pp 308–9.

[52] Gangjian D and Gang S, “Relating Human Rights to Chinese Culture: The Four Paths of the Confucian Analects and the Four Principles of a New Theory of Benevolence” in Davis MC ed, Human Rights and Chinese Values (1995) p 35.

[53] Pannikar, n 38 above, at 87.

[54] Ibid, at 87–88.

[55] The right of peoples to self-determination was included in the first article of the ICCPR and the ICESCR and the “third” and “fourth” generations of human rights also encompassed collective or group rights. However, the hierarchical ordering of the categories of human rights ensures that the primary emphasis on the individual as the subject of human rights law remains by virtue of the “higher” generational status of individual rights.

[56] Howard, n 33 above, p 85.

[57] UDHR, n 12 above, Article 27(1) “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits” (my emphasis). However, it should be recognised that the ICCPR, Article 27, does expand this formulation to oblige States not to deny members of ethnic, religious or linguistic minorities the right “in community with the other members of their group, to enjoy their own culture ...” (my emphasis).

[58] Ibid, Article 2, “Everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction ...” (my emphasis).

[59] Ibid, “no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs ...” (my emphasis). The framers of this article specifically had in mind the discrimination that may attend the foreign administration of trust or non-self-governing territories.

[60] Kenyatta J, Facing Mount Kenya: The Tribal Life of the Gikuyu (1965) ch 5; Obiora LA, “Feminism, Globalisation, and Culture: After Beijing” (1997) 4 Global Legal Studies Journal 355 at 397. It should be noted that in communal traditions the dignity of individuals results from the collective welfare.

[61] Davis MC, “Chinese Perspectives on Human Rights” in Davis MC ed, Human Rights and Chinese Values (1995) p 3 at 13; Little R and Reed W, The Confucian Renaissance (1989) p 54–55.

[62] Cover, n 34 above, 65.

[63] Derrida J, “Force Of Law: The ‘Mystical Foundation of Authority’” (1990) 11 Cardozo Law Review 921 at 1003.

[64] CRC, n 14 above. Despite its gender inclusive language, the Convention does not recognise or address the gendered dimensions of children’s human rights violations. For example, it makes no reference to a minimum marriage age or to education about reproduction and family planning. Nor does the Convention acknowledge the systemic dimensions of many girls’ unequal access to such basics as food, education, leisure and, in some States, to life itself.

[65] UDHR, n 12 above, Articles 23(3) and 25(1).

[66] Charlesworth H and Chinkin C, “The Gender of Jus Cogens(1993) 15 Human Rights Quarterly 63.

[67] UDHR, n 12 above, Article 25(2).

[68] Zearfoss S, “The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?” (1991) 12 Michigan Journal of International Law 903 at 916. For further discussion of the problems associated with “special” treatment in human rights law, see nn 143147 below.

[69] Waldron J, “Nonsense Upon Stilts? A Reply” in Waldron J ed, Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (1987) p 183–190; Taylor C, “Atomism” in Taylor C, Philosophy and Human Sciences (1985) pp 29–50.

[70] Howard, n 33 above, p 84.

[71] Pannikar, n 38 above, at 95–96. By the “Indian” tradition, Pannikar means Hindu, Jain and Buddhist conceptions of reality.

[72] Cover, n 34 above, pp 69–70.

[73] Lazreg, n 41 above, pp 35–36.

[74] Purvis N, “Critical Legal Studies in Public International Law” (1991) 32 Harvard International Law Journal 81 at 94.

[75] Waldron J, “Rights In Conflict” in Waldron J, Liberal Rights: Collected Papers 1981–1991 (1993) p 203 at 214. Waldron argues that it is impossible to argue that any given right is purely positive or purely negative in character once you start to think about what duties are associated with it.

[76] Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 22.

[77] Ibid, p 21.

[78] Lazreg, n 41 above, p 37.

[79] Donnelly J, “Human Rights and Western Liberalism” in An-Na`im AA and Deng FM eds, Human Rights in Africa: Cross-Cultural Perspectives (1990) p 31 at 34. Donnelly argues that even Locke’s minimalist conception of liberalism had within it the germ of the more radical social democratic tradition which was to later emerge.

[80] Foucault M, “Truth and Power” in Gordon C ed, Power/Knowledge (1980) p 109 at 131–2; Foucault, n 10 above, p 93.

[81] Butler, n 32 above, p 7.

[82] Ibid.

[83] Foucault, n 10 above, p 83.

[84] Ibid, p 99.

[85] Morgan W, Otto D and Walker K, “Rejecting (In)Tolerance: Critical Perspectives on the United Nations Year for Tolerance” [1995] MelbULawRw 14; (1995) 20 Melbourne University Law Review 190.

[86] Cook R, WHO/DGH/93.1, Geneva 1993, quoted in Leary VA, “The Right to Health in International Human Rights Law” (1994) 1 Health and Human Rights 24 at 51.

[87] Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, adopted 15 December 1989, entered into force 11 July 1991, GA Res 44/128, preamble para 6 notes the differing views of States about whether imposing the death penalty is a human rights violation.

[88] Schneider CE, “Rights Discourse and Neonatal Euthanasia” (1988) 76 California Law Review 151 at 153.

[89] Shelton D, “Abortion and the Right to Life in the Inter-American System: The Case of ‘Baby Boy’” (1981) 2 Human Rights Law Journal 309; Cook R, “International Protection of Women’s Reproductive Rights” (1992) 24 New York University Journal of International Law and Politics 645 at 703–711.

[90] Foucault M, The History of Sexuality (1976) vol I, p 140.

[91] As Foucault explains, the rationale for capital punishment changed from one of justifiable defence of the sovereign’s power to an invocation of “the monstrosity of the criminal, his incorrigibility, and the safeguard of society”, ibid, p 138.

[92] UDHR, n 12 above, Article 3. The relevant article in the ICCPR, n 14 above, Article 6, obligates States to provide protection against arbitrary deprivation of life, restricts the circumstances in which the death penalty can be carried out and specifies that its provisions do not derogate from the provisions of the Genocide Convention.

[93] Hunt A, “Rights and Social Movements: Counter-Hegemonic Strategies” (1990) 17 Journal of Law and Society 309.

[94] Pannikar, n 38 above, at 86.

[95] Dworkin R, Taking Rights Seriously (1978) p xi. I employ Dworkin’s concept of a trump card to illustrate the apparent unbeatable winning position of knowledges that are constructed as True by dominant discourses.

[96] MacKinnon CA, “Feminism, Marxism, Method and the State: Toward Feminist Jurisprudence” (1983) 8 Signs 635 at 638–9.

[97] Alston P, “Conjuring Up New Human Rights: A Proposal for Quality Control” (1984) 78 American Journal of International Law 607 at 613; Gibson N, “The Right to a Clean Environment” (1990) 54 Saskatchewan Law Review 5 at 15. Contra, Kiss A and Shelton D, International Environmental Law (1991) pp 21–31.

[98] Kingsbury B, “Claims By Non-State Groups In International Law” (1992) 25 Cornell International Law Journal 481 at 488 notes that Article 27 of the ICCPR, which is narrow in its scope, “remains the only express and legally binding minority rights provision of general application” in international human rights law.

[99] de Saussure F, Course In General Linguistics (1959). Saussure’s concept of the “sign” consists of both the “concept” which he calls the “signified” and the “sound-image” which he calls the “signifier”. The relationship between any particular sign and signifier is the result of convention and not determined by a prior system. See also Davies, n 8 above, pp 229–240.

[100] Derrida J, Positions (1981) p 41.

[101] Scott JW, “Deconstructing Equality-Versus-Difference: or, the Uses of Poststructuralist Theory for Feminism” (1988) 14 Feminist Studies 33 at 44.

[102] Nicholson LJ, “Introduction” in Nicholson LJ ed, Feminism/Postmodernism (1990) p 4 at 10.

[103] MacKinnon CA, “Difference and Dominance: On Sex Discrimination” in MacKinnon CA, Feminism Unmodified (1987) p 32 at 36.

[104] Steiner HJ and Alston P, International Human Rights in Context: Law, Politics, Morals (1996) p 257 locate some of historical origins of this debate in the work of Enlightenment philosophers including Kant and Marx.

[105] Ibid, p 260.

[106] Henkin, The International Bill of Rights, n 4 above, p 8.

[107] Cossman B, “Reform, Revolution or Retrenchment? International Human Rights in the Post-Cold War Era” (1991) 32 Harvard International Law Journal 339 at 345.

[108] Van Hoof GJH, “The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views” in Alston P and Tomasevski K eds, The Right To Food (1984) p 97, extracted in Steiner and Alston, International Human Rights in Context, n 104 above, pp 279–283.

[109] GA Res 543, 6 GAOR Supp 20, UN Doc A/2119 at 36 (1952) which approved the development of two Covenants but emphasised their interdependence and required that they be simultaneously adopted by the General Assembly; Statement to the World Conference on Human Rights on Behalf of the Committee on Economic, Social and Cultural Rights, UN Doc E/1991/22, Annex III.

[110] Waldron, “Rights in Conflict”, n 75 above.

[111] Pechota V, “The Development of the Covenant on Civil and Political Rights” in Henkin L ed, The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p 32 at 42.

[112] Ibid, p 45.

[113] Cassese A, “The Self-Determination of Peoples” in Henkin L ed, The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p 92.

[114] The Non-Aligned Movement (NAM) also known as the Group of 77 (G77) formed in the early 1970s as a lobby group of Third World States united in their goal to challenge global European economic domination.

[115] Alston, “Conjuring Up New Human Rights”, n 97 above.

[116] Bedjaoui M, “The Right To Development” in Bedjaoui M ed, International Law: Achievements and Prospects (1991) p 1177 at 1182.

[117] Declaration on the Right to Development (DRD) GA Res 41/128, UN Doc A/Res/41/128 (4 December 1986) was adopted by 146 votes to one against, with 8 abstainers. The US cast the only vote against adoption. Abstainers were Denmark, Finland, Germany, Iceland, Israel, Japan, Sweden, UK. Both Canada and Australia voted for the resolution.

[118] Donnelly J, “In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development” (1985) 15 California Western International Law Journal 473.

[119] Alston P, “Revitalising United Nations Work on Human Rights and Development” [1991] MelbULawRw 16; (1991) 18 Melbourne University Law Review 216 at 219.

[120] DRD, n 117 above, Article 2(3): “States have the right and the duty to formulate appropriate national development policies” (my emphasis).

[121] Mabo v Queensland (No 2) (1992) 175 CLR 1 at 58 (Brennan J) referring to this view as out of step with contemporary standards of justice and human rights.

[122] Otto D, “A Question of Law or Politics? Indigenous Claims to Sovereignty in Australia” (1995) 21 Syracuse Journal of International Law and Commerce 65 at 92.

[123] Kingsbury B, “Whose International Law? Sovereignty and Non-State Groups”, Proceedings, American Society of International Law, 88th Annual Meeting (1994). The statement by Canada at the 2nd meeting of the Human Rights Commission’s Working Group on the draft Declaration on the Rights of Indigenous Peoples bears this out:

The Government of Canada accepts a right of self-determination for indigenous peoples which respects the political, constitutional and territorial integrity of democratic states.

Coles S, “UN Working Group on the Draft Declaration on the Rights of Indigenous Peoples, Second Meeting, October 21–November 1, 1996” (1996) 4 International Law News 3 at 4.

[124] International Labour Organisation Convention (No 107) “The Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (1957)” in ILO, International Labour Conventions and Recommendations 1919–1981 (1996) p 99.

[125] Dodson M, “Towards The Exercise of Indigenous Rights: Policy, Power and Self-Determination” (1994) 35 Race and Class 65; Langton M, “The United Nations and Indigenous Minorities: A Report on the United Nations Working Group on Indigenous Populations” in Hocking B ed, International Law and Aboriginal Human Rights (1988) p 83; Anaya J, Indigenous Peoples and International Law (1996).

[126] Barsh RL, “Indigenous Peoples: An Emerging Object of International Law” (1986) 80 American Journal of International Law 369; Langton, n 125 above.

[127] Foucault, “Two Lectures”, n 10 above, p 95.

[128] Williams P, The Alchemy of Race and Rights: Diary of a Law Professor (1991) p 163.

[129] Williams RA, “Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World” (1990) Duke Law Journal 660.

[130] Smart C, Feminism and the Power of Law (1989) p 5.

[131] Koskenniemi M, “The Future of Statehood” (1991) 32 Harvard International Law Journal 397 at 399.

[132] Leary, “The Effect of Western Perspectives on International Human Rights”, n 2 above, p 22.

[133] Pateman C, The Disorder of Women: Democracy, Feminism and Political Theory (1989).

[134] Locke J, Two Treatises of Government: Second Treatise (Laslett P ed, (1960) ch IV, “Of Slavery” paras 23–24.

[135] Henkin, n 3 above, p 20.

[136] Otto D, “Holding Up Half the Sky but for Whose Benefit? A Critical Analysis of the Fourth World Conference on Women” (1996) 6 Australian Feminist Law Journal 7 at 13–15.

[137] Copelon R, “Intimate Terror: Understanding Domestic Violence As Torture” in Cook RJ ed, Human Rights of Women (1994) p 116; Holt R, “Women’s Rights and International Law: The Struggle for Recognition and Enforcement” (1991) 1 Columbia Journal of Gender and the Law 117; Greatbach J, “The Gender Difference: Feminist Critique of Refugee Discourse” (1989) 1 International Journal of Refugee Law 518.

[138] Bunch, n 39 above, at 492.

[139] Peterson, n 39 above; Binion G, “Human Rights: A Feminist Perspective” (1995) 17 Human Rights Quarterly 509; Cain PA, “Feminism and the Limits of Equality” (1990) 24 Georgia Law Review 803.

[140] Smart C, “The Woman of Legal Discourse” (1992) 1 Social and Legal Studies 29.

[141] Mohanty C, “Under Western Eyes: Feminist Scholarship and Colonial Discourses” (1988) 30 Feminist Review 61; Amos V and Parmar P, “Challenging Imperial Feminism” (1984) 17 Feminist Review 4.

[142] Miller A, Rosga AJ and Satterthwaite M, “Health, Human Rights and Lesbian Existence” (1994) 1 Health and Human Rights 428; Otto D, “Questions of Solidarity and Difference: Transforming the Terms of Lesbian Interventions in International Law” in Robson R and Brownworth V eds, Seductions of Justice: Lesbian Legal Theories and Practices (forthcoming).

[143] CERD, n 14 above; CEDAW n 14 above.

[144] CERD, ibid, Article 1(4).

[145] CEDAW, n 14 above, Article 4(1).

[146] Ibid, Article 11(2).

[147] Zearfoss, n 67 above.

[148] Minow M, “Learning To Live With the Dilemma of Difference: Bilingual and Special Education” (1984) 48 Law and Contemporary Problems 157.

[149] Scott, n 101 above, at 43.

[150] Ibid, at 36.

[151] Coomaraswarmy R, “To Bellow Like A Cow: Women, Ethnicity and the Discourse of Rights” in Cook RJ ed, Human Rights of Women: National and International Perspectives (1994) p 39 at 40.

[152] Wildman SM with Davis AD, “Language and Silence: Making Systems of Privilege Visible” in Delgado R ed, Critical Race Theory: The Cutting Edge (1995) p 573 at 574.

[153] Henkin, The International Bill of Rights, n 4 above, p 7.

[154] UN Charter, n 1

above, Articles 55–72.

[155] Ibid, preamble.

[156] Belvisi F, “Rights, World-Society and the Crisis of Legal Universalism” (1996) 9 Ratio Juris 60 at 61.

[157] Anderson B, Imagined Communities: Reflections on the Origin and Spread of Nationalism (1991).

[158] Teson, n 30 above, at 82–84, referring to Immanuel Kant’s work To Perpetual Peace: A Philosophical Sketch (1795).

[159] Pollis A and Schwab P, “Human Rights: A Western Construct with Limited Applicability” in Pollis A and Schwab P eds, Human Rights: Cultural and Ideological Perspectives (1979) p 1 at 9.

[160] Howard, n 33 above, p 84.

[161] Guha R, “On Some Aspects of the Historiography of Colonial India” in Guha R and Spivak GC eds, Selected Subaltern Studies (1988) p 37 at 38.

[162] African Charter on Human and Peoples’ Rights, n 14 above.

[163] Shivji IG, The Concept of Human Rights in Africa (1989) p 99.

[164] Note “Constructing the State Extraterritorially: Jurisdictional Discourse, the National Interest, and Transnational Norms” (1990) 103 Harvard Law Review 1273 at 1287.

[165] Foucault M, “Governmentality” in Burchell G, Gordon C and Miller P eds, The Foucault Effect: Studies in Governmentality (1991) p 87 at 102–3.

[166] Ibid, p 103.

[167] Ibid, p 92.

[168] Gordon, n 11 above, p 10.

[169] Foucault, n 90 above.

[170] Ibid, p 303.

[171] Gordon, n 11 above, p 10.

[172] Ibid, p 4.

[173] Ibid, p 2. Foucault talks about “government” on a number of levels besides the political, including of one’s self, of interpersonal relationships, and of institutional and community relationships.

[174] Ibid, pp 3 and 22.

[175] Foucault, n 165 above, p 99.

[176] Foucault, n 90 above, p 147.

[177] Ibid, p 141.

[178] Ibid.

[179] Foucault, n 165 above, p 96.

[180] Hacking I, “How Should we do the History of Statistics?” in Burchell G, Gordon C and Miller P eds, The Foucault Effect: Studies in Governmentality (1991) p 181.

[181] The Subaltern Studies Collective is a group of Indian historiographers whose work is informed by critical Marxist and poststructural perspectives. The initial focus of their work was to understand how, in the formation of the independent Nation-State of India, the nationalists came to represent an Indian elite that was closely allied to the British colonialists, rather than with the mass of the Indian people. This work quickly became multidimensional, producing critiques of modernity and nationalism, and addressing complex epistemological questions. See Guha R and Spivak GC eds, Selected Subaltern Studies (1988).

[182] Chakrabarty D, “Modernity and Ethnicity in India” in Bennett D ed, Multicultural States: Rethinking Difference and Identity (forthcoming) pp 8–10.

[183] Ibid, p 19.

[184] Ibid, p 15.

[185] UN Charter, n 1 above, Article 55. See also Articles 57(1) and 61(1) which set up intergovernmental specialised agencies and the Economic and Social Council respectively. The latter “may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters”, Article 62(1).

[186] Gordon, n 11 above, p 8.

[187] Foucault, n 90 above, p 144.

[188] Foucault, n 165 above, p 95.

[189] Foucault, n 90 above, p 109.

[190] Foucault, n 165 above, p 102.

[191] Foucault, n 90 above, p 144.

[192] Ibid.

[193] Smart, Feminism and the Power of the Law, n 130 above, p 17; Hunt A, “Foucault’s Expulsion of Law: Toward a Retrieval” (1992) 17 Law and Social Inquiry 1 at 23.

[194] Gordon, n 11 above, p 20.

[195] UN Charter, n 1 above, Article 68.

[196] Alston P, “Appraising The United Nations Human Rights Regime” in Alston P ed, The United Nations and Human Rights: A Critical Appraisal (1992) p 1 at 2.

[197] Smart, Feminism and the Power of the Law, n 130 above, p 162.

[198] Cheah P, “Posit(ion)ing Human Rights in the Current Global Conjuncture” (1997) 9 Public Culture: Society for Transnational Studies 233 at 256, with reference to Anderson B, “Introduction”, Southeast Asian Tribal Groups and Ethnic Minorities (1987) p 1 at 11.

[199] Scott JW, “Universalism and the History of Feminism” (1995) 7 Differences: A Journal of Feminist Cultural Studies 1 at 7; Smart, Law, Crime and Sexuality, n 9 above, pp 105–7 discussing Judith Butler’s views.

[200] Foucault refers directly to “the ‘right’ to life, to one’s body, to health, to happiness, to the satisfaction of needs, and beyond all the oppressions or ‘alienations’, the ‘right’ to rediscover what one is and all that one can be”, n 90 above, p 145.

[201] Ibid.

[202] Hunt, “Rights and Social Movements”, n 93 above.

[203] Chakrabarty, n 182 above, p 19.

[204] Smart, Feminism and the Power of the Law, n 130 above, p 87; Hunt, “Foucault’s Expulsion of Law”, n 193 above, at 32.

[205] Hunt, ibid, at 38.

[206] Pannikar, n 38 above, at 87.

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