36 Va. J. Int'l L. 589 Virginia Journal of International Law

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36 VAJIL 589


36 Va. J. Int'l L. 589

Virginia Journal of International Law

Spring 1996
Makau Wa Mutua [FNa]
Copyright (c) 1996 Virginia Journal of International Law Association; Makau Wa Mutua
      Over the last fifty years the international law of human rights has steadily achieved a moral plateau rarely associated with the law of nations. [FN1] A diverse and eclectic assortment of individuals and entities*590 now invoke human rights norms and the attendant phraseology with the intent of cloaking themselves and their causes in the paradigm's perceived power and righteousness. [FN2] What is interesting is the failure of this universal reliance on the language of human rights to create agreement on the scope, content, and philosophical bases of the human rights corpus. Intellectual and policy battles have focused on its cultural relevance, ideological and political orientation, and thematic incompleteness. [FN3] Notwithstanding these *591 questions, the seduction of human rights discourse has been so great that it has, in fact, delayed the development of a critique of rights. [FN4]
      This Article focuses upon what these polar impulses and positions--the fight over the content of human rights, on the one hand, and their captivating allure, on the other--have obscured: that although it seems implausible to openly deny that the human rights corpus is the construction of a political ideology, the discourse's major authors present it as non-ideological. They use a vocabulary that paints the movement as both impartial and the quintessence of human goodness. They portray it as divorced from base materialism, self-interest, and “ideology.” Perhaps they do so because “ideology” has a negative connotation: it is the instrument that the “other,” the adversary, the opponent, uses to challenge and seek the marginalization of the forces of “good.” In reality, however, the human rights corpus is not a creed or a set of normative principles suspended in outer space; the matters that it affects are earthly and concern immediate routine politics. [FN5] The larger political agenda of the human rights regime has, however, been blurred by its veneration and by attempts to clean it of the taint of partisanship.
       *592 This Article examines the theoretical and practical work of the major authors [FN6] of human rights discourse and develops the proposition that human rights and Western liberal democracy are virtually tautological. Although the two concepts seem different from a distance, one is in fact the universalized version of the other; human rights represent the attempted diffusion and further development at the international level of the liberal political tradition. These processes have contributed to the reexamination and reconstruction of liberalism, and have in some respects refined and added to the liberal tradition. It seems to be true historically that for political movements and ideologies, from nationalism to free enterprise and beyond, totems or myths are necessary to remove them from their earthly moorings. [FN7] For liberal democracy that totem appears today to be the human rights corpus, the moralized expression of a political ideology. Although the concept of human rights is not unique to European societies, I argue here that the specific philosophy on which the current “universal” and “official” [FN8] *593 human rights corpus is based is essentially European. [FN9] This exclusivity and cultural specificity necessarily deny the concept universality. The fact that human rights are violated in liberal democracies is of little consequence to my argument and does not distinguish the human rights corpus from the ideology of Western liberalism; rather, it emphasizes the contradictions and imperfections of liberalism. In other words, the elusive state of perfection in which human rights are fully respected and realized tells us, among other things, that both human rights and democracy are works in progress. They are projects that are essentially infinite, open-ended, and highly experimental in nature.
      Since World War II, the United Nations, non-governmental organizations, and scholarly writers have created a thicket of norms, processes, and institutions that purport to promote and protect human rights.  Working with the so-called International Bill of Rights as their basis, [FN10] the key but diverse collection of organizations and scholars has tended to agree on an irreducible human rights core. [FN11] This core, although stated in human rights terms, is now being formulated into the emergent norm of democratic governance*594 in international law. [FN12] The routes different authors of human rights have taken to arrive at these conclusions are, of course, varied. Nevertheless, I have identified the four defining approaches or schools of thought into which I believe all the paramount voices writing and acting in the human rights discourse fall. [FN13] I believe that these voices express the synonymity and close fit of the human rights corpus with its parent, Western liberalism.
      The proponents of and adherents to the four dominant schools of thought may be classified as (i) conventional doctrinalists, (ii) constitutionalists or conceptualizers, (iii) cultural agnostics or multiculturalists, and (iv) political strategists or instrumentalists.  Although most of these voices differ--in some instances radically--on the content of the human rights corpus and whether or how the contents should be ranked, they are nevertheless united by the belief that there are basic human rights.  They also believe that these human rights should be promoted and where possible protected by the state, the basic obligor [FN14] of human rights law. These *595 different schools disagree, however, on the political orientation of human rights, the weight accorded to certain rights, and strategies and tactics for the enforcement of the human rights movement's norms. These disagreements reflect the different visions and trajectories of liberalism, the types of societies intended by advocates of human rights, and the purposes to which they feel the human rights discourse should be directed.
      This Article argues that the human rights corpus, taken as a whole, as a document of ideals and values, particularly the positive law of human rights, requires the reconstruction of states to reflect the structures and values of governance that derive from Western liberalism, especially the contemporary variations of liberal democracy practiced in Western democracies.  While these democracies differ in the content of the rights they guarantee and the organizational structures they take, they are nevertheless based on the idea of constitutionalism.
      Viewed from this perspective, the human rights regime has serious and dramatic implications for questions of cultural diversity, the sovereignty of states, and ultimately the “universality” of human rights. The purpose here, however, is not to mediate these conflicts, but rather to expose them and to allow diverse stakeholders to reflect on their meaning and the policy issues they raise. The four schools of thought serve as a starting point to explore the divergent pathways that each school's proponents take to converge on the concept of human rights in international law.
      The first two approaches, which are espoused by conventional doctrinalists and conceptualizers or constitutionalists, are closest in ideological orientation and share an unequivocal belief in the redemptive [FN15] quality and power of human rights law. Admittedly, there is a wide and contrasting diversity of attitudes towards the human rights corpus within the two schools. While the doctrinalists tend to be statisticians of violence, conceptualizers are at their core systematizers of the human rights corpus. For the latter, human rights norms arise out of the liberal tradition, and their application should achieve a type of a constitutional system broadly referred to as constitutionalism. Such a system generally has the following characteristics, although the weight accorded to *596 each differs from one state to the next: (i) political society is based on the concept of popular sovereignty; (ii) the government of the state is constitutionally required to be accountable to the populace through various processes such as periodic, genuine, multi-party elections; (iii) government is limited in its powers through checks and balances and the separation of powers, a central tenet of the liberal tradition; (iv) the judiciary is independent and safeguards legality and the rule of law; and (v) the formal declaration of individual civil and political rights is an indispensable facet of the state. [FN16]
      While conceptualizers are more critical of the corpus, many of the conventional doctrinalists see it in almost religious dimensions.  Nevertheless, many of the voices in the two schools see themselves in a variety of guises:  as inheritors of the Western historical tradition pitting individual rights against the state, as guardians of human rights law, or as founders, conceptualizers, and elaborators of the human rights corpus.  The two schools constitute what I call the human rights “orchestra” in which their proponents are the composers and conductors of the discourse; they “control” the content and map the margins of the discourse. Conventional doctrinalists are marked by their heavy and virtually exclusive reliance on positive law in treaties, custom, and other sources of international law as the basis for their activist advocacy or scholarly inquiry. The vast majority of doctrinalists “who matter” operate in the context of human rights non-governmental organizations (NGOs) in the West, although a number of academics also write in this mold. [FN17] In contrast, constitutionalists are usually found in the realm of theory.
       *597 Both schools enjoy a spirited supporting cast in the non-Western world. In the last several decades, the number of national human rights NGOs and human rights academics has mushroomed in the South. In virtually all cases, they reproduce intellectual patterns and strategies of advocacy similar to those in the West. Although there are some significant differences on the emphasis placed on certain rights, there has been little originality as the corpus has conquered new territory outside the West.
      Substantively, doctrinalists stress the primacy of civil and political rights [FN18] over all other classes of rights. Thus, only a small number of “traditional” civil and political rights comprise the heart of the human rights regime. In addition, doctrinalists seek immediate and “blind” application of these rights without regard to historical, cultural, or developmental differences among states and societies. Many constitutionalists, on the other hand, recognize the supremacy of these “core” rights but point out that the list could or should be expanded. They see the difficulties of “immediate” implementation and prefer a more nuanced approach, staggered to take into account variables of culture, history, and other cleavages. Although many who adopt this approach are positivist, some are critical thinkers who subject the human rights regime to a probing critique. I call them constitutionalists because they believe that, as a whole, human rights law is or should be a constitutional regime and a philosophy that is constitutive of a liberal democratic society, along a spectrum that stretches from a bare republican state to the social democratic state. In the republican “minimum” state, the archetypal nineteenth century liberal state, the government protects the privileges of the few against the poor masses, as well as ethnic, racial, religious, and sexual minorities. In the twentieth century, however, the liberal tradition is developed and constructs *598 the social welfare state in which the government progressively and affirmatively seeks to give substance to formal equality.
      Cultural agnostics are generally outsiders who see the universality or convergence of some human rights norms with certain non-Western norms and as a result partially embrace the human rights corpus.  Many are scholars and policymakers of multicultural heritage or orientation who, though familiar and sometimes even comfortable with the West, see cross-cultural referencing as the most critical variable in the creation of a universal corpus of human rights. [FN19] They critique the existing human rights corpus as culturally exclusive in some respects and therefore view parts of it as illegitimate or, at the very least, irrelevant in non-Western societies. Some, including this author, have called for a multicultural approach to reform the human rights regime so as to make it more universal. [FN20] Many proponents of the first two schools who regard themselves as universalists have labelled many cultural agnostics “cultural relativists,” a form of type-casting or human rights name-calling that has generally had the effect of stigmatizing those who resist the Eurocentric formulation of human rights. [FN21] Were this Article confined to this dichotomous view, it would be fair to label the universalists cultural relativists, as well, because universalists operate in a specific cultural space and distinct historical tradition. The perspective reflected here is not, however, sympathetic to cynical elites who purposely manipulate cultural images to justify despotic rule. [FN22] Rather, by cultural agnostics I refer to academics and *599 policymakers who see the potential dynamism of the human rights corpus as an opportunity for the creation of a multicultural conception of human rights.
      The last school, that of political strategists or instrumentalists, abounds with governments and institutions that selectively and inconsistently deploy human rights discourse for strategic and political ends. [FN23] While all states--socialist or capitalist, developed or underdeveloped--are generally cynical in their deployment of human rights norms, my focus here is not on all states. If that were the case, I would discuss the hypocrisies of the Zairian state under Mobutu Sese Seko, those of the former Soviet Union, and of many *600 other states across the political spectrum that professed allegiance to human rights but violated them as official policy. My concern here is not with claims of states about their internal application of human rights norms. Rather, I am only interested in Western democracies and their institutions which alone rhetorically champion the universalization of human rights. Such institutions include the World Bank and the North Atlantic Treaty Organization (NATO), whose primary purposes are related to the preservation or the enhancement of liberalism and free markets. Increasingly, they have invoked human rights when dangers to these two goals have been deemed unacceptably high. Examples of such unacceptable dangers include civil war or regional conflicts that threaten “vital” Western interests, such as access to strategic resources. In the view of international financial institutions, donor agencies, and donor countries, such a risk could involve autocratic forms of governance that encourage intolerable levels of corruption and economic mismanagement and negatively affect the growth or functioning of markets and international trade. [FN24] Responses to such risks, including military ones, have in the past often been couched in human rights terminology. [FN25]
      Obviously, human rights issues cannot be, nor should they be, the only factors that determine foreign policy choices.  Other “vital” interests such as trade could trump human rights because in the calculus of geopolitics states have “many fish to fry.” Yet it is precisely this “necessity” to balance competing objectives that *601 makes states unreliable, unprincipled, and manipulative proponents of the human rights corpus.
      By grouping the authors of human rights discourse into these four schools, I do not mean to suggest that the typologies or categories delineated are finite, completely separate and irreconcilable, or that one could not understand the “creators” of the discourse differently. I also do not mean to imply that the proponents of various typologies are one-dimensional; one author could fall into several categories depending upon the circumstances. Any number of critiques--from the feminist to the post-modern--would yield interesting results. This Article, however, is concerned with correlating the recent and “lofty” mantra of human rights to liberalism, arguably the most dominant political ideology of our time.
      Part I of this Article briefly discusses the basic notions and requirements of liberal democracy and relates them to the central tenets of the human rights corpus.  Part II focuses on the first school, that of the abolitionists or doctrinal conventionalists.  Part III explores the assumptions and views of constitutionalists, while Part IV examines the dilemmas of the cultural agnostic.  Lastly, Part V looks at political strategists.
      This Article analyzes each of the four schools of thought and action to determine how they may be traced back to liberal democracy.  It attempts to respond to the challenges and questions raised for the human rights corpus by these typologies.  In particular, it revisits questions of the universality and legitimacy of the human rights corpus, and raises the possibility of a new internationality in human rights including its potential implications for the post-liberal society.
I. Liberalism, Democracy, and Human Rights: A Holy Trinity?
      Liberalism is distinguished from other traditions by its commitment to formal autonomy and abstract equality.  It is a tradition that in its contemporary expression requires a constitutional state with limited powers, a state that is moreover accountable to the broad public.  These aspirations are the basis for the development and elaboration of liberal democracy and, as this Article contends, the construction and universalization of the jurisprudence of human rights.  In the historical continuum, therefore, liberalism gave birth to democracy, which, in turn, now seeks to present itself internationally as the ideology of human rights.  This Part briefly *602 explores the relationships among liberalism, political democracy, and human rights norms.
      While many definitions of Western liberal democracy abound, the most dominant cast it in other than substantive terms.  Samuel Huntington, for example, emphasizes the Schumpeterian [FN26] tradition, defining democracy in purely procedural language. [FN27] For Huntington, the democratic method involves two basic dimensions: contestation and participation, where the “most powerful collective decision makers are selected through fair, honest, and periodic elections in which candidates freely compete for votes and in which virtually all the adult population is eligible to vote.” [FN28] Participation and contestation, according to Huntington, also imply certain civil and political freedoms which are necessary to free and fair elections, namely, the right to speak, publish, assemble, and organize. [FN29]
      Significantly, Huntington does not believe that a system is democratic to the extent that it denies “voting participation” to segments of its population on the basis, for instance, of race or gender. [FN30] Thus the United States was not a democracy until it allowed its population of African ancestry the right to vote. [FN31] Likewise, South Africa was undemocratic until it granted its black African majority *603 the right to vote in 1994. [FN32] Many European countries, such as Switzerland, were undemocratic until they granted women the right to vote, likewise the United States until 1920. [FN33] The norm of non-discrimination is here extended to political participation. The formal right to vote is clearly in itself an insufficient measure of democracy because quite often it has masked other hindrances to political participation such as institutional biases and barriers based on race, gender, religion, social status, and wealth. Nevertheless, the political scientist Robert Dahl has argued that elections are the critical element in the definition of democracy and the central device for ordinary citizens to exert a high degree of control over their leaders. [FN34]
      The minimalist definition of democracy does not betray traditional or conventional conceptions of liberalism; rather, it responds to liberalism's basic commitment to guarantee citizens  their formal autonomy and political and legal equality.  Thus, as Henry Steiner puts it, the traditional liberal understanding of the state requires that it “protect citizens in their political organizations and activities,” [FN35] guaranteeing autonomy and legal equality, but does not require that it remove impediments to actual equality which may result from lack of resources and status. Steiner says it clearly:
       Choices about types and degrees of [political] participation may depend on citizens' economic resources and social status.  But it is not the government's responsibility to alleviate that dependence, to open paths to political *604 participation which lack of funds or education or status would otherwise block. [FN36]

      In reality, of course, participation in the political process requires more than the state's permission and protection.  Increasingly, states not only provide these two services but also expend enormous resources constructing the electoral machinery for participation; legislative reforms in many democracies now attempt to address historical, socioeconomic, and ethnic, racial, and gender-related barriers to participation. [FN37] Such interpretations of political democracy have attempted to build into their frameworks notions of social or economic democracy. In human rights law, the International Covenant on Economic, Social and Cultural Rights (ICESCR) most closely resembles this aspiration. [FN38]

      The main focus of human rights law, however, has been on those rights and programs that seek to strengthen, legitimize, and export political or liberal democracy. [FN39] Inversely, most of the human rights regime is derived from bodies of domestic jurisprudence developed over several centuries in the West. [FN40] The emphasis, by academics and practitioners, in the development of human rights law has been on civil and political rights. [FN41] In fact the currency of civil and political rights has been so strong that they have become
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