The dominant contemporary definition of human rights describes human rights as “rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Human rights include the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more. Everyone is entitled to these rights, without discrimination.” (United Nations, n.d.) According to this interpretation, human rights are rights, universal, apolitical, asocial and ahistorical values inherent in all human beings (because we are human) and are enforceable through international and regional human rights bodies.
Advancing this concept of human rights, a vast number of treaties, covenants and agreements have been promulgated and large number of bodies charged with the promotion and protection of those rights were established. At the United Nations level alone, there are five charter-based bodies, ten UN treaty bodies and almost twenty core conventions on human rights ranging from civil and political rights to economic, social and cultural rights and include covenants on the rights of the child, women’s rights, rights of persons with disabilities among others. At the regional level, there are several human rights systems (i.e. Inter-American System, European System, African Union) charged with promoting and protecting human rights in their respective regions. International Non-Governmental-Organizations as well as National Non-Governmental-Organizations have multiplied globally and some (particularly from the Global-North), together with the UN treaty bodies, are recognized as the ones defining what constitute/counts as human rights violations.
This notion of human rights has become the hegemonic concept of human rights (Santos, 2014b). Never before have there been more laws, covenants and treaties nor have there been more organizations dedicated to the promotion and protection of human rights. However, this hegemony has not translated into a more equal and fair world. Actually, inequality is at its highest with the richest 1% having more wealth than the rest of the world combined. As of this writing, the world is witnessing the largest humanitarian crisis since the II World War with more than twenty million people facing starvation, the most severe refugee crisis with almost five million Syrian refugees and the deadliest civil war of the century with half a million people dead. In many of these instances, the atrocities are carried out in the name of human rights or in spite of human rights.
In this context, it can be said that, at the very minimum, human rights have been used in contradictory ways, at times they have been put for hegemonic uses and at times for counter-hegemonic ones; at times they have been used to conceal and affirm the dominant structure, and at times to reveal oppression and be a source for resistance and change. At times they have been provided as the reasons to invade countries and “liberate the people”, and at times they have been used by subalternized groups to advance their struggles and produce change.
In order to understand this contradiction, we must take a critical view of human rights, analyzing its origins as well as some of its flaws. A brief review the history of human rights, present us with different understandings of its origins. The predominant history of human rights recognizes the Universal Declaration of Human Rights (UDHR) signed in December 1948 as the most emblematic moment for the recognition of human rights and the starting point for this movement. Other scholars place the beginnings of human rights back to the nineteenth and twentieth centuries’ movements with the rebellions of women and revolt of slaves, and the anticolonial movements, and others go further, and place the conception of human rights in the eighteenth century with French Revolution or in the thirteenth century with the Magna Carta. There are many variants of the genesis of human rights, but one communality through all these versions; regardless of when is placed its origin, whether it be in the Magna Carta whether it be in the UDHR, the contradictions are present, i.e. the Magna Carta was intended as a peace treaty between the King and the barons and offered special benefits to a small elite from legal protection for the Catholic Church and the aristocracy, to tax benefits for the wealthiest; and the UDHR was a document drafted after World War II primarily by Western countries some of which still had colonies.
In a further analysis, scholars have sought to understand the contradictory use of human rights by reflecting on its nature and development. For some, the very essence of human rights is flawed because it only started after holocaust. In other words, “[i]t took the genocidal extermination of Jews in Europe – a white people – to start the process of the codification and universalization of human rights norms” (Mutua, 2001: 211), whereas all the atrocities committed by the West, whether it be the colonization of Asians, African and Latin Americans by Europeans or the enslavement of Africans, were insufficient to mobilize the West to create human rights norms and standards. Others do not refer to the essence of human rights but point to the failure of the conventional human rights system to address colonialism and capitalism. And others go further and argue that the mainstream human rights doctrine has been used to maintain the divide between the colonial and metropolitan societies (Santos, 2014b).
From a perspective of modern law, this duality is inherent in the production of human rights, as at the same time that it produces human rights, it produces human rightlessness. In other words, the “making of human rights norms and standards, … remains a dialectical process of inclusion and exclusion. The order of inclusion at the same time demarcates the zones of exclusion” (Baxi, 2006: 182). This is what Santos calls the manifestation of abyssal thinking represented by modern law separating the realm of law from the realm of non−law, dividing human from sub−human, and producing those on the other side of the line as nonexistent, as non-human (Santos, 2014a).
As Santos reminds us, these weaknesses in the human rights discourse do not mean, however, that human rights should be discarded; quite the opposite, “today more than ever it is essential not to waste ideas and practices of resistance” (Santos, 2014b: 104). It is only by recognizing the weaknesses of human rights, that is possible to build strong ideas and practices of resistance. Thus, the understanding of this dialectical process and limitations provides us with possibilities to reflect on how human rights can be used in social struggles, to reflect on how, and if, human rights can be emancipatory.
The epistemologies of the South offer powerful insights for this reflection by providing us with tools for strengthening the human rights discourse, so they can indeed become a source of resistance and transformation, and a means for emancipation. The epistemologies of the South remind us that there is no social justice without cognitive justice, and as such we must first start by actively resisting abyssal thinking. To that end, we must rethink human rights from the perspective of the social experience on the other side of the line. Human rights must distance themselves from the hegemonic and universalistic conception that understands human rights as some trans-human agency and not as a product of practices of power and resistance to power, rooting themselves in the political, cultural and social context in which they are inserted.
Epistemologies of the South provides us with two procedures relevant to rethinking human rights. The first is the ecology of knowledges that confronts the logic of the monoculture of scientific knowledge and identifies other knowledges and criteria that operate credibly in social practices (Santos, 2014a: 296) and develop creative interaction between them. Through the ecology of knowledges it is possible to expand the intellectual and cultural legitimacy in the struggle for human dignity. The second procedure is the intercultural translation which is understood here as the intercultural dialogue between Western and non-Western conceptions of rights in the quest for social justice. Through these two procedures it might be possible to re-think and reinvent human rights.
In conclusion, while the dominant hegemonic concept of human rights limits its capacity to serve as a source of resistance and transformation, the epistemologies of the South provide one alternative path for emancipatory human rights which includes cultural, historical, and sociological considerations, as well as the analysis of the political strategies that challenge the abyssal thinking, conception and practice of human rights towards a post-abyssal conception of human rights.
References and further readings:
Baxi, Upendra (2006), “Politics of Reading Human Rights”, in Saladin Meckled-García, Basak Çali (eds.), The legalization of Human Rights: multidisciplinary perspectives on human rights and human rights law. New York: Routlegde, 182-200.
Mutua, Makau (2001), “Savages, Victims, and Saviors: The Metaphor of Human Rights”, Harvard International Law Journal, 42(1), 201-246.
Santos, Boaventura de Sousa (2014a), Epistemologies of the South: Justice against Epistemicide. Paradigm Publishers.
Santos, Boaventura de Sousa (2014b), Se Deus Fosse Um Ativista Dos Direitos Humanos. São Paulo:Cortez. [2nd ed.]
United Nations (n.d.), “United Nations - Human Rights”. Accessed on 18.02.2019, at http://www.un.org/en/sections/issues-depth/human-rights/.
Jessica Carvalho Morris, PhD Candidate in Human Rights in Contemporary Societies (CES), earned a Juris Doctor from the University of Miami (USA) and a Bacharel in Law from the Universidade Federal do Rio Grande do Norte (Brazil). Works with human rights, feminist movements, mobilization of law and fascisms.
Como citarMorris, Jessica (2019), "Human Rights", Dicionário Alice. Consultado a 05.06.23, em https://alice.ces.uc.pt/dictionary/index.php?id=23838&pag=23918&entry=24299&id_lingua=1. ISBN: 978-989-8847-08-9