# Public International Law/Human Rights Law/Critique of Human Rights

Authors: Thamil Venthan Ananthavinayagan and Jens T. Theilen
   Required knowledge: International Human Rights Law
   Learning objectives: to understand how to question the progress narrative of human rights as always already pointing towards a better world; different strands of human rights critique.

## A. Why critique human rights?

In the popular imaginary and in large parts of legal scholarship, human rights are thought of as an unquestioned social good: they have persisted as humanity’s ‘last utopia’ and are believed to express our ‘highest moral precepts and political ideals’. Many of those who work within human rights institutions assume that human rights are inherently benign. Critique aims to disrupt that assumption. It thus performs a killjoy function – it aims to disenchant human rights, to present them not as part of a progress narrative in which they are always already pointing towards a better world, but rather as one of many discursive spaces in which different visions of a just society may clash and be fought out.
Critique in this sense takes a very different perspective from criticism of individual human rights decisions on the basis of legal doctrine. The latter accepts the system of human rights law as given and merely aims to make minor adjustments on its own terms. By contrast, critique works to uncover the structure of human rights and their connection to other social phenomena, notably to relations of marginalisation, oppression, and exploitation. Most critics of human rights share a commitment to radical social transformation in the face of a status quo that is perceived as fundamentally unjust. Beyond this, however, there are myriads of complex and diverse traditions of critique, with plenty of internal contradictions. We cannot do justice to all of these here, but merely aim to sketch some broad lines of thought building in particular on feminist, decolonial and Marxist critiques.

## B. Some critical lines of thought
### I. Human rights are not neutral or apolitical

Human rights are commonly understood as innate and inalienable. With this understanding comes a self-image of human rights as apolitical – they are said to be simply inherent in every human being, rather than being politically constructed. Contesting this self-image is a common starting point for critiques of human rights. Understanding human rights as political opens up space to question the notion of the ‘human’ which is otherwise naturalised as self-evident, and to analyse the ways in which it is entangled with various structures of oppression.
   Example for struggles around the notion of the 'human': Feminists have pointed to the ways in which the ostensibly gender-neutral notion of the ‘human’ in fact privileges the male subject of human rights, for example by focusing on ‘public’ violations while women’s issues are consigned to the ‘private’ sphere. Colonised peoples were often construed as outside of the notion of humanity altogether, a mind-set that continues to resonate in the disregard for the lives of the ‘Wretched of the Earth’ in the Global South and the treatment of migrants of colour.
In the context of international human rights law, the idea that human rights are apolitical carries particular weight since the legal form, too, is commonly construed as an antithesis to politics. Critiques of human rights in the legal context thus share ground with critical international legal theory more generally, insisting on the indeterminacy of (human rights) law and thus on the decisional, political aspect involved in any specification of its meaning: the content of human rights is not predetermined by law itself, but rather actively constructed by the actors involved in its formulation and interpretation.

### II. Human rights as colonial

Once politics are admitted onto the scene, it also becomes possible to question the claims to universality commonly invoked in the discourse on human rights. Refusing to take universality as an apolitical given allows us to analyse the particular interests which are embedded within it. An especially stark instance of this is how claims to universality cover up the Eurocentric origins of human rights and their historical and ongoing use to legitimise (neo-)colonial domination by industrialised Western states. The Third World Approaches to International Law (TWAIL) perspective, in particular, ‘helps one to be conscious of the oppressive potential of universality’ and to ‘scrutinise which aspects of human rights may be made universal and which aspects need to be re-examined’.
Makau Mutua, to this end, sketches the savages-victims-saviours metaphor. This three-dimensional metaphor aims to capture a dynamic central to human rights discourse, in which the victim – a ‘powerless, helpless innocent’ – has her dignity and worth violated by the barbaric savage, necessitating intervention by the saviour or ‘the good angel who protects, vindicates, civilizes, restrains, and safeguards’ and who finds expression in the human rights corpus and its institutions. The metaphor builds on colonial notions of civilisation and barbarism and in turn further solidifies ‘the international hierarchy of race and color’. It is also profoundly gendered: the ‘Third World woman’ is constructed as the paradigmatic victim subject that human rights law is thought to respond to. Rights-based justifications for military interventions in the Middle East are an unsurprising continuation of these dynamics.
However, the coloniality of human rights is not limited to the context of military interventions – rather, it is built into the manifold everyday contexts in which human rights are invoked, covering a wide range of subject-matters and many international institutions. International financial institutions such as the International Monetary Fund and the World Bank, in particular, make use of human rights and the language of ‘good governance’ to justify interventions in the political, social, and economic structures of Third World states. Human rights thus remain entangled with (neo-)colonial forms of governance, and notably cannot be separated from the neoliberal economic regimes imposed on the Global South by international institutions. At the same time, human rights have been used both by Third World states in attempts to emphasise political and economic self-deterimination vis-à-vis the Global North, and by academics, activists, and social movements seeking to contest authoritative regimes and abuses of power by Third World states themselves. Despite the coloniality of human rights, then, their liberatory promise – albeit so far unfulfilled and perhaps based, in the end, only on ‘illusions of love or at least mutual interest’ – remains a recurring theme. We will return to this ambivalence in the concluding section below.

### III. Human rights as a legitimation of the status quo

Several interrelated lines of critique focus on how human rights tend to legitimise the status quo and thus preclude social transformation. For one thing, any demarcation of what human rights are necessitates an assessment of what they are not – and given the high moral value generally accorded to human rights, refusal to see claims that involve social transformation as an issue of human rights will often delegitimise those claims. But the status quo can also be reinforced, and perhaps even more potently so, by virtue of what is considered a human right. Once elements of the current social order are integrated into the institutionalised human rights framework, they become extremely difficult to challenge.
   Example for human rights entrenching social relations: The right to property may be considered the paradigmatic example of this, since it can transparently serve to impede claims to economic redistribution as well as hindering various other large-scale policy changes, which run counter to corporations’ established interests. Marxist critiques have long argued that the dominant understandings of human rights are constitutive of the social relations of capitalism. Human rights law also cements many other foundations of the current social order. For example, it foregrounds the nuclear family and the institution of marriage as foundational units of society. Queer critique not only takes issue with the way in which marriage is still understood in hetero- and cisnormative terms by prevailing doctrine, it also questions the prevalence of marriage as such over other forms of kinship and community. Another example is the normalization of the prison industrial complex through human rights. While certain prison conditions might be the subject of rights-based scrutiny, human rights courts simultaneously require states to criminalise an ever-increasing range of behaviours. It thus becomes more difficult to mount prison abolitionist claims, since states will point to their human rights obligations to justify a coercive approach.
A further way in which human rights law may reinforce the status quo relates to the patterns of analysis it brings with it. In particular, human rights law aims to establish whether a rights violation has taken place with little attention to underlying structures which bring about and perhaps even necessitate such violations. Even when the causes of human rights are investigated, the focus tends to be more on superficial causes, which can be ‘translated into remedial proposals, themselves capable of being translated into bullet-point conclusions at the end of reports’. Often, integration into global markets is presented as a way to empower rights holders, with insufficient attention paid to the power dynamics within markets themselves and to the impact of neoliberal globalisation, which has contributed to the deterioration of living conditions across the globe and especially in the Global South. By virtue of the way judgments, reports and other documents structure human rights law, then, root causes like the socio-economic conditions underlying human rights violations tend to remain unexamined – and thus unchallenged.

### IV. Who speaks in the name of human rights?

The proliferation of formal documents like judgments and reports within institutionalised human rights brings us to a related point: Who speaks in the name of human rights? Postcolonial feminist Gayatri Spivak famously asked whether the subaltern can speak – and answered in the negative, indicating that the impossibility of speaking constitutes the position of the subaltern subject. This provocation raises questions not only about speaking or not-speaking but also about being heard or not-heard. More generally, it draws our attention to the relationships of (knowledge) production, which prefigure discursive fields such as human rights.
In this vein, a common critique of human rights – at least in their institutionalised form – is that they have become a language of legal experts. Human rights are thus conceived of as a managerial issue, an aspect of governance: ‘normative standards to guide administrative actions and less and less the basis for justice’. This not only obscures their political character, it also establishes certain professional standards for how to think and talk about human rights and sidelines those actors who fail to live up to these expectations. While processes of public consultation on human rights issues are common, they tend to focus on ‘civil society’ in the shape of large, well-funded non-governmental organisations, usually based in (or funded by actors based in) the Global North. Differently put: while human rights institutions have much to say about how to improve the plight of those one might deem subaltern, they rarely seek to listen to them.

## C. What comes after critique?

The question of what comes after critique is a difficult one. Having delivered often searing critiques of human rights, many writers end on a hopeful note – they end up ‘attempting to reimagine (and in doing so, reinforce) the human rights project itself’. But perhaps such a turn to reimagination and hope is misplaced, a form of cruel optimism? After all, reimagining human rights in a more emancipatory vein cannot displace their legal, institutional and material realities and the various ways in which they help to constitute relations of marginalisation, oppression, and exploitation. But it is also true that human rights are invoked outside of institutions by a broad variety of political and social movements, asserted in resistance to market logics and forming part of a struggle to survive in the face of global capitalism.
It is from within this space of ambivalence that we suggest approaching human rights, which implies a high measure of caution as to their emancipatory potential when institutionalised within international law. For human rights to become truly international, we would need engagement with the Global South, beyond those elites who tend to play a role in the legal context. As it is written elsewhere:
   In this context it is noteworthy that many countries from the Global South compete in intensity for foreign investments and, in result, there is “[i]intensifying inequality of bargaining power.” To this end, globalisation furthers inequalities and renders human rights law at peril, as it, globalisation, uses human rights to further, perpetuate and sustain its own existence. Being manipulated for neoliberal goals, economic and political independence of the Global South is undermined by the first world and the international organisations. Within this, the elite of the Global South becomes complicit in eviscerating the substance of human rights law. Human rights engagement is just a shallow show-casing exercise for the attraction of foreign investment, trade and economic development.

## Further Readings

* Marks S, ‘Human Rights and Root Causes’ (2011) 74 MLR 57
* Mutua M, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harv Int’l LJ 201
* Baxi U, The Future of Human Rights (Oxford University Press, 3rd ed. 2008)
* Kapur R, Gender, Alterity and Human Rights. Freedom in a Fishbowl (Edward Elgar 2018)
* D’Souza R, What’s Wrong With Rights? Social Movements, Law and Liberal Imaginations (Pluto Press 2018)
* Schippers B (ed), Critical Perspectives on Human Rights (Rowman & Littlefield 2018)

## Summary

* Critique aims to disrupt the grand narrative of human rights as inherently good or just. Rather than seeing human rights as innate and inalienable, it approaches them as a political notion that may be entangled with relations of marginalisation, oppression and exploitation.
* In particular, critique takes issue with the notion of human rights’ universality. Instead, it aims to uncover the Eurocentric origins of human rights and their historical and ongoing use to legitimise (neo-)colonial domination by industrialised Western states.
* Most critics of human rights share a commitment to radical social transformation in the face of an unjust status quo. Critique often aims to highlight the role human rights play in precluding such transformation, but it remains controversial whether and how they might also play a helpful role.

## Table of Contents

Back to home page
Part I - History, Theory, and Methods
* § 1 History of International Law
** § 1.1 Founding Myths
** § 1.2 Nineteenth Century
** § 1.3 Decolonization
* § 2 Nature and Purpose of International Law
** § 2.1 International Law and Violence
** § 2.2 Consent
** § 2.3 Enforcement
* § 3 Methodology
** § 3.1 Case Analysis
** § 3.2 Interdisciplinarity
* § 4 Approaches to International Law
** § 4.1 Positivism
** § 4.2 TWAIL
** § 4.3 Feminism & Queer Theory
** § 4.4 Marxism
* § 5 Interaction
** § 5.1 Interaction within International Law
** § 5.2 International Law and Domestic Law
Part II - General International Law
* § 6 Sources of International Law
** § 6.1 Treaty Law
** § 6.2 Customary Law
** § 6.3 General Principles
** § 6.4 Other Sources
* § 7 Subjects and Actors in International Law
** § 7.1 States
** § 7.2 Indigenous Peoples
** § 7.3 International Organizations
** § 7.4 Individuals
** § 7.5 Women in International Law
** § 7.6 Non-governmental Organization
** § 7.7 Corporations
** § 7.8 Animals
** § 7.9 Cities
* § 8 Jurisdiction
* § 9 State Responsibility
* § 10 Diplomatic Relations
* § 11 Immunities
* § 12 Peaceful Settlement of Disputes
** § 12.1 Evidence
* § 13 Use of Force
Part III - Specialized Fields
* § 14 Law of Armed Conflict
* § 15 Law of the Sea
* § 16 International Environmental Law
* § 17 International Climate Change Law
* § 18 International Migration Law
* § 19 International Law in Cyberspace
* § 20 Space Law
* § 21 Human Rights Law
** § 21.1 Recurring Themes in Human Rights Doctrine
** § 21.2 Institutional Human Rights Protection
*** § 21.2.1 United Nations Human Rights System
*** § 21.2.2 African Human Rights System
*** § 21.2.3 European Human Rights System
*** § 21.2.4 Inter-American Human Rights System
*** § 21.2.5 Arab and Islamic Human Rights System
*** § 21.2.6 Asian Human Rights System
** § 21.3 Critique of Human Rights
* § 22 International Criminal Law
** § 22.1 International Crimes
** § 22.2 International Criminal Courts and Tribunals
** § 22.3 Domestic Prosecution of International Crimes
* § 23 International Economic Law
** § 23.1 Investment Law
** § 23.2 Trade Law
** § 23.3 Monetary Law

## Footnotes

* ↑ Samuel Moyn, The Last Utopia. Human Rights in History (Harvard UP 2012) 1 and 4.
* ↑ For the figure of the feminist killjoy, see Sara Ahmed, Living a Feminist Life (Duke UP 2017); in the context of human rights, see Jens T. Theilen, European Consensus between Strategy and Principle (Nomos 2021) 412.
* ↑ Ratna Kapur, ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’ (2006) 28 Sydney LR 665, 668-673.
* ↑ See for international law in general Robert Knox, ‘Strategy and Tactics’ (2010) 21 Finnish YBIL 193, 203; see also Susan Marks, The Riddle of all Constitutions (OUP 2000) ch 6.
* ↑ Other critical approaches include critical race theory, critical disability studies, and queer theory. Labels such as these should not be taken as categorical divisions, however; there are overlaps, intersections and subfields as well as tensions and disagreements. For example, see E. Tendayi Achiume and Devon W. Carbado, ‘Critical Race Theory Meets Third World Approaches to International Law’ (2021) 67 UCLA L Rev 1462.
* ↑ E.g. Balakrishnan Rajagopal, ‘International Law and Social Movements: Challenges of Theorizing Resistance’ (2003) 41 Colum J Transnat’l L 397, 420; Wendy Brown, ‘“The Most We Can Hope For…”: Human Rights and the Politics of Fatalism’ (2004) 103 SAQ 451, 453.
* ↑ Hilary Charlesworth, Christine Chinkin and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85 AJIL 613; on different figures of the ‘woman’ in human rights law, see Dianne Otto, ‘Lost in Translation: Re-scripting the Sexed Subjects of International Human Rights Law’ in Anne Orford (ed), International Law and its Others (CUP 2006) 318, and below, B.II., on the figure of the female ‘victim’.
* ↑ See e.g. P. Khalil Saucier and Tryon P. Woods, ‘Ex Aqua. The Mediterranean Basin, Africans on the Move and the Politics of Policing’ (2014) 61 Theoria 55; for the phrase ‘Wretched of the Earth’ see Frantz Fanon, The Wretched of the Earth (Penguin 1967).
* ↑ Martti Koskenniemi, ‘The Effect of Rights on Political Culture’ in The Politics of International Law (Hart 2011); Jens T. Theilen, European Consensus between Strategy and Principle (Nomos 2021).
* ↑ Davinia Gómez Sánchez, ‘Transforming Human Rights Through Decolonial Lens’ (2020) 15 The Age of Human Rights Journal 276; see generally on critiques of ostensible universality e.g. Makau Mutua, ‘What Is TWAIL?’ (2000) 94 Proc of the ASIL Ann Meeting 31.
* ↑ Opeoluwa Adetoro Badaru, ‘Examining the Utility of Third World Approaches to International Law for International Human Rights Law’ (2008) 10 ICLR 379, 384.
* ↑ Makau Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Harv Int’l LJ 201, 203-204.
* ↑ Ibid, 207.
* ↑ Ratna Kapur, ‘The Tragedy of Victimization Rhetoric: Resurrecting the “Native” Subject in International/Post-Colonial Feminist Legal Politics’ (2002) 15 Harv HRJ 1; see also Chandra Talpade Mohanty, Feminism without Borders (Duke 2003); for an analysis of similar dynamics in the context of LGBT rights, see e.g. Cynthia Weber, Queer International Relations (OUP 2016).
* ↑ See e.g. Vasuki Nesiah, ‘From Berlin to Bonn to Baghdad: A Space for Infinite Justice’ (2004) 17 Harvard HRJ 75.
* ↑ Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’ (2006) 27 TWQ 739, 749.
* ↑ See also e.g. Upendra Baxi, The Future of Human Rights (OUP, 3rd ed. 2008); Jessica Whyte, The Morals of the Market. Human Rights and the Rise of Neoliberalism (Verso 2019); Radha D’Souza, What’s Wrong With Rights? Social Movements, Law and Liberal Imaginations (Pluto Press 2018).
* ↑ Nikitah Okembe-Ra Imani, ‘Critical Impairments to Globalizing the Western Human Rights Discourse’ (2008) 3 Societies Without Borders 270, 271.
* ↑ Frédéric Mégret, ‘The Apology of Utopia’ (2013) 27 Temple Int’l & Comp LJ 455, 488.
* ↑ On the double-bind which this creates see Jens T. Theilen, ‘The Inflation of Human Rights: A Deconstruction’ (2021) 34 LJIL 831, 850.
* ↑ Paul O’Connell, ‘On the Human Rights Question’ (2018) 40 HRQ 962, 966-967.
* ↑ Ratna Kapur, Gender, Alterity and Human Rights. Freedom in a Fishbowl (Edward Elgar 2018) ch 2; Aeyal M. Gross, ‘Sex, Love, and Marriage: Questioning Gender and Sexuality Rights in International Law’ (2008) 21 LJIL 235, 245-249; Dean Spade, ‘Under the Cover of Gay Rights’ (2013) 37 NYU Rev of Law & Social Change 79.
* ↑ Karen Engle, ‘Anti-Impunity and the Turn to Criminal Law in Human Rights’ (2015) 100 Cornell LRev 1069; Mattia Pinto, ‘Historical Trends of Human Rights Gone Criminal’ (2020) 42 HRQ 729; Natasa Mavronicola, Torture, Inhumanity and Degradation under Article 3 of the ECHR (Hart 2021) ch 6.
* ↑ On prison abolition, see Angela Y. Davis, Are Prisons Obsolete? (Seven Stories Press 2003); Mariame Kaba, We Do This ’Til We Free Us. Abolitionist Organizing and Transforming Justice (Haymarket 2021).
* ↑ Susan Marks, ‘Human Rights and Root Causes’ (2011) 74 MLR 57, 71-72; see also Wendy Brown, ‘“The Most We Can Hope For…”: Human Rights and the Politics of Fatalism’ (2004) 103 SAQ 451, 460.
* ↑ David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2002) 15 Harvard HRJ 101, especially 109-110 and 118-119.
* ↑ Gayatri Chakravorty Spivak, ‘Can the Subaltern Speak?’ in Patrick Williams and Laura Chrisman (eds), Colonial Discourse and Post-Colonial Theory. A Reader (Columbia UP 1994) 66.
* ↑ See Sara Ahmed, Strange Encounters. Embodied Others in Post-Coloniality (Routledge 2000) 60-61.
* ↑ For a detailed exploration of expertise as a governance feature in the context of rights see Bal Sokhi-Bulley, ‘Government(ality) by Experts: Human Rights as Governance’ (2011) 22 Law & Critique 251; on expertise and managerialism in international law more broadly see Martti Koskenniemi, ‘The Politics of International Law – 20 Years Later’ (2009) 20 EJIL 7.
* ↑ Radha D’Souza, What’s Wrong With Rights? Social Movements, Law and Liberal Imaginations (Pluto Press 2018) 18.
* ↑ Upendra Baxi, The Future of Human Rights (OUP, 3rd ed. 2008) 218-219; Frédéric Mégret, ‘Where Does the Critique of International Human Rights Stand? An Exploration in 18 Vignettes’ in José María Beneyto and David Kennedy (eds), New Approaches to International Law: The European and American Experiences (Asser 2012) 3, 10-11 and 13-14.
* ↑ Ben Golder, ‘Beyond Redemption? Problematising the Critique of Human Rights in Contemporary International Legal Thought’ (2014) 2 LRIL 77, 79; for different perspectives on this issue, see e.g. Ratna Kapur, Gender, Alterity and Human Rights. Freedom in a Fishbowl (Edward Elgar 2018); Kathryn McNeilly, Human Rights and Radical Social Transformation (Routledge 2018).
* ↑ Lauren Berlant, Cruel Optimism (Duke UP 2011).
* ↑ Radha D’Souza, What’s Wrong With Rights? Social Movements, Law and Liberal Imaginations (Pluto Press 2018).
* ↑ Paul O’Connell, ‘On the Human Rights Question’ (2018) 40 HRQ 962; on social movements, see also Balakrishnan Rajagopal, International Law from Below (CUP 2003).
* ↑ Thamil Venthan Ananthavinayagan, Sri Lanka, Human Rights and the United Nations – A Scrutiny into the International Human Rights Engagement with a Third World State (Springer 2019) 247.