Post-Colonial Critique of Human Right Laws

Introduction

The idea of certain inalienable rights to protect human beings from exploitation has existed since the beginning of the crudest form of a social structure. Such rights have been held to be essential for humans to live in a society with other humans. These rights are absolute and inherent in nature and cannot be waived off.[1] Even though, they were not written or recognised as they are today, they existed in the form of ideals or morality of the society, to be followed by all, protected by a rudimentary penal system in the beginning. References can be found in the writings of the Ancient Indian scholars, such as Chanakya, on the duties of the ruler to protect the dignity of his subjects. Similarly, Plato also proposed a systematic framework to protect the people from the abuse of power by the people in power.

These rights have evolved over centuries and millennia to attain the structure of Human Rights today. This evolution of the human right laws has been made more important and further hastened in the current era, due to the exponential progress made by science and technology, which causes the concentration of power with the already-powerful. The field of Human Rights has achieved a special status in all fields, be it sociology or law, and has carved for itself a separate niche.

The importance of protecting individuals and granting them human rights has been so great that the world went through a shift from the Monarchy and / or feudalistic setups, which granted “excessive” power to the one who rules, to a democracy, that is the rule of the people through popular vote and choice, in a span of three thousand years.[2] Human rights have become an indispensable aspect of a democratic nation state, and it has been the duty of the “ruler” to protect the same.[3]

This has been further evolved into a global regime of human rights, where the global community, has come together and decided to protect the human rights and hold them to be sacrosanct in the International Law[4], evolving a completely new field of law, in the form of International Human Right Law, with special bodies and treaties to govern the same[5].

Human Right Laws and Third World Countries

As seen above, the human rights have been developed largely in Europe and Americas, mainly through French and American Revolutions.[6] This has led to the development of the criticism of the human rights regime from the Third-World countries, developing on the shoulders on the postcolonial approach of cultural relativism adopted by the postcolonial scholars to point out the fallacies and ignorance of the western scholars to the cultural experiences and values of the colonised and Third-World states. This is evinced from the fact that the Western literature is often seen depicting the modernisation as the globalisation and attainment of the Western culture and liberal ideals by the Orient, whereas the culture of the Third-World countries is seen as the orthodox and conservative way of thinking.[7]

This Euro-American-centric development and approach of the Human Rights regime is one of the first criticism levelled at the Human Rights law. The Oxford Handbook also notes that the development of international human rights regime:

“…[G]enerally ignore the violence, ruthlessness, and arrogance which accompanied the dissemination of Western rules, and the destruction of other legal cultures in which that dissemination resulted. […] even discards such extra-European experiences and forms which were discontinued as a result of domination and colonization by European powers […] irrelevant to a (continuing) history of international law.”[8]

Another criticism of the human rights regime is from the impediment it poses on the development of the Third-World countries. The strict imposition of human right laws becomes a threat to the sovereignty and territorial integrity as it opens up the possibility of state secession from these countries, which are ill-equipped to deal with such movements, due to the impoverished state of their economies and administration. This leads to a failure of the governmental mechanisms, which in turn, leads to chaos-like state, resulting in further human rights violation. Thus, it becomes a vicious cycle of enforcement of human rights in Third World countries leading to even more violation of human rights.

It also affects the workforce of the Third World countries as the human rights pertaining to environment and labour laws become a hinderance in the way of the development of the industries in the Third World.[9] It also results in unemployment among the labour force of the Third World as industries are made subject to severe penalties for violation of the environmental laws.[10]

This situation is one of the prime reasons of critique of the human rights regime by the Third World as they argue that the West achieved economic superiority and dominance by violating the basic human rights and environmental laws (which are considered a part of the human rights regime) in the past and now try and impose the same standard that is applicable on the developed countries on the under-developed and developing nations, derailing the developmental process, while they act as the “legitimate” custodians of the human rights of everyone on the planet. The measures asked of the Third World countries to protect the human rights are also disproportionate with the resources available to these nations.

The West wishes to have a similar system to protect the human rights as they have, which causes a substantial strain on the resources of these states. Further, in case of a failure to adhere to these measures, the western powers often drag them to the international courts, which are unaffordable for many nations. Scholars such as Bhupendra Singh Chimni argue for the recognition of the right of development of the Third World countries to counter this disbalance between the Orient and Occident.

Rémi Bachand, a leading TWAIL scholar, has given his three-point critique of the Human Rights regime, calling into question the applicability and universality of this system. His first critique is based on the Euro-centric nature of the regime.[11] He also questions the universality of the human rights law on the basis that it is “neutral, objective and apolitical” and therefore is devoid of any relativism for the Third World countries.[12]

His second criticism is that the human rights is that they are a tool to civilise the “savage barbarians” of Third World, by imposing the European ideals and values.[13] This flows from the historical evidence of the colonial era, when the European powers colonised numerous nations “to civilise the savages” in these colonies. This idea of Europeans civilising the Third World has been named as the SVS metaphor, or the Savage, Victims, Saviours metaphor by Makau Mutua.[14] Following Rémi Bachand’s second criticism, Andrew Sunter has made an epistemological challenged the human rights regime, that it seeks to justify itself rather than emerge from the experience of the people and societies. Human rights are a priori knowledge, and not posteriori which is prescribed to by the Post-Colonial and TWAIL scholars.[15]

Rémi Bachand’s third criticism is that the human rights are used as tools for imposing the European political form and style across globe.[16] This European form of government is the liberal, representative democracy. Human rights are essentially civil and political rights such as the right to free speech, which are considered the foundation of a democratic political organisation.[17] Makau Mutua argues that these human rights do not afford any relief from the economic and social inequalities, which is the main problem faced by the Third World. [18]Rémi Bachand is of the opinion the mere fact that the human rights originate from Europe is sufficient for them to be inconsistent with the Third World ideology and therefore cannot be adequate to protect the violation of same rights in Third World. They are the reason for the dominance of the West over the Third World, terming it to be neo-colonialism and imperialism.[19]

With the criticism of the human rights by Post-colonial scholar, there exists a dichotomy. The human rights so vehemently criticised by Post-colonial academics, these rights are used by the Third World to challenge the western domination. There have been numerous instances of disputes reaching international forums, challenging the actions of western powers on the basis of violation of human rights and international law. One of the many instances is the case of ‘Nicaragua v USA’ [20]where Nicaragua successfully challenged the United States of America in the International Court of Justice, claiming on the grounds of violation of human rights, which were caused by the action of USA. Therefore, the human rights that are questioned by TWAIL, at times is the only mechanism to protect Third World countries from the interference and “invasion” of the West.

This dichotomy can be understood, or played down, by the words of Rémi Bachand:

“Nevertheless, the criticisms made by TWAIL, interpreted in the light of our own comments, reveal that a subalternist theory of international law can only take human rights as strategic tools, if not tactics from the struggle for emancipation, and that it would be a mistake to raise them to the level of the ultimate goal to be attained.”[21]

Therefore, for the post-colonial and Third World scholars, human rights exist only as a set of tools to defend them from the neo-colonial powers, which these very human rights, intentionally or unintentionally, consolidate.

Conclusion

In the light of the discussion above, it can be very clearly seen that the human rights regime cannot be universal in nature as it exists solely in the realm of European ideology and experience. Therefore, the human rights are largely created from the perspective of a coloniser and are imperialistic in nature. This severely hinders it applicability and effectiveness in the Third World, as these nations have mostly been the colonies, and thus their experience is the polar opposite of the European nations. The universality of the human rights regime is furthered questioned by the homogenising effect it has on the Third World, mutating the political and social systems in these countries to resemble the European model. And lastly, the human rights regime is seen as restricted or local by TWAIL scholars as it has become a tool, in the hands of the West, to bully the Third World to meet their needs and promote their own economic interests.

This flaw in the human rights regime can be corrected by levelling the playing field in the international law arena. This can either be done by either taking away the powers from the West or granting the Third World powers to counter this imbalance. This bestowing of power on the Third World can be done by including their narrative and experience into the fold of human rights. This inclusion would involve the application of human rights on relative considerations, based on the cultural, social and economic conditions in these nations. Furthermore, the human rights will have to be increased in their ambit to embrace the economic, cultural and social rights into their fold. This would effectively mean that the cultural and social identities of the Third World, which are under serious threat in the current regime, will be protected. Furthermore, the inclusion of economic rights would grant them an added protection from the torment of the West, which leads to the drainage of resources of the Third World, pauperising them even further.

The framework to implement this already exists in the international law in the form of the two covenants, viz, International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). These covenants though enacted in the same year, have not achieved the same status in the International Law, with ICCPR attaining a greater importance as it aligns with the western ideology. Thus, to effectively end the hegemony of the West over human rights regime, there has to be a shift from absolute standards of the West, a culturally relativistic approach. It would require bringing the ICCPR and ICESCR to the same pedestal, granting legitimacy to the experiences of the population of the Third World.

References

[1] Burns H. Weston, Encyclopaedia Britannica, human rights, March 20 2014 Retrieved August 14, 2014

[2] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, (2nd edition) Stanford University Press, 1998

[3] Barbara Unmubig, 70 Years of Human Rights. Indivisible. Inalienable. Universal, The Green Political Foundation, 2019 Available online at https://www.boell.de/en/2019/01/09/70-years-human-rights-indivisible-inalienable-universal (last accessed on 24/05/2020).

[4] D.D. Raphael, Human Rights Old and New-Political Theory and the Rights of Man, Bloomington Indiana University Press, Page no. 57, (1967).

[5] Gordon Lauren, The Evolution of International Human Rights: Visions Seen. (2nd Edition) University of Pennsylvania Press, Philadelphia, Page no- 437-441, 2004.

[6] Richard Rorty. Human Rights, Rationality, and Sentimentality, In Truth and Progress: Philosophical Papers, Cambridge University Press, Vol 3, Pg. no- 172, 1998.

[7] J.K. Patnaik, Human, rights: The concept and perspectives: A third world view, The Indian Journal of Political Science, Vol. 65(4), pp. (499-514):512, 2004.

[8] Fass benders & Peters, Introduction: Towards A Global History of International Law, Oxford University Press. Retrieved 24 May 2020, https://www.oxfordhandbooks.com/view/10.1093/law/9780199599752.001.0001/law-9780199599752

[9] Richard Rorty. Human Rights, Rationality, and Sentimentality, In Truth and Progress: Philosophical Papers, Cambridge University Press, Vol 3, Pg. no- 172, 1998.

[10] Id.

[11]Ramina Larissa, TWAIL -Third World Approaches to International Law” and human rights: some considerations, Revista de Investigações Constitucionais, Volume 5(1), ISSN 2359-5639, Online version available at http://www.scielo.br/scielo.php?script=sci_serial&pid=2359-5639&lng=en&nrm=iso

[12] Id.

[13] Id at Page 264.

[14] Makau Mutua. Savages, Victims and Saviours. The Metaphor of Human Rights. Harvard International Law Journal, Cambridge, Vol. 42 (1) Pg. no. (201-245): 234, 2001.

[15] Andrew F. Sunter, TWAIL as Naturalized Epistemological Inquiry. Canadian Journal of Law & Jurisprudence, Cambridge, Vol. 20 (2), Pg. no. 474, 2007.

[16] Supra note 12, Pg. 265

[17] Id.

[18] Makau Mutua. The Ideology of Human Rights. Virginia Journal of International Law, Vol. 36, pg. no. (589-658):636, 1996.

[19] Supra note 12, Pg. 267.

[20] Nicaragua Vs USA, 1986 I.C.J. 14

[21]Remi Bachand, Les Third world approaches to international law: Perspectives, pour une approche subalterniste du droit international, 2013; Supra note 12, Pg. 267.

Author Details: Souranil Mondal is a student at West Bengal National University of Juridical Sciences, Kolkata.