[TLDR (too long didn’t read): If you are reading this, chances are you care about HR. Given the importance of the concepts in this Reader, I quote excerpt verbatim from two not too distant articles in Open Global Rights]. For a quick overview, just read the bolded text]. Traducir/traduire los/les Readers; usar/utiliser deepl.com
1. Human rights have always been susceptible to multiple and sometimes conflicting interpretations. Yet something distinct is now happening, namely an array of efforts at concerted legal change in the human rights (HR) field has appeared in different parts of the world, on the basis of a supposedly ‘reformed’ characterization of HR. This reformed characterization includes a novel emphasis on particular rights, such as family rights and unborn rights, and an exclusion of others, such as gender equality and LGBTQI+ rights, plus a highly selective use of particular sources of international HR law while ignoring others.
2. These arguments and attempts are indeed misappropriations when they use HR language in the service of ends that are exclusionary, repressive, or anti-pluralist in character; that are highly retrogressive or reversing of previous commitments; and are evasive of external monitoring or accountability.
3. By invoking the discourse of HR to exclude or repress particular groups and individuals while consolidating authority and avoiding accountability, many coalitions of religious and political actors are misappropriating a HR system that, despite contestation and critiques has been developed over a long period around certain core values, including equal human dignity, inclusion, and accountability.
4. These moves seek to reverse a range of progressive achievements of the HR system around gender, religion, property, culture, and equality. The actors who appropriate HR in this way have propelled an illiberal agenda into international fora and have tried to bring their influence to bear on HR courts and national HR institutions, as well as on domestic HR laws.
5. The HR system is, for sure, a complex and dynamic one involving ongoing interaction between domestic and local cultures, institutions, actors, practices, and values on the one hand, and the global and philosophically informed framework of norms and values on the other, in shaping the corpus of the HR framework.
6. Given the open-endedness of many HR provisions, it could be thought that there are few, if any, interpretative moves, whether conservative or progressive, that can be characterized as transgressing the plausible boundaries of the field. However, having scrutinized some prominent contemporary examples, an array of non-exhaustive indicators can be proposed that help to identify the misappropriation mentioned above. The suggested indicators focus on the following set of questions, which can be posed to any particular HR interpretation or claim. For example, does the claim:
- have an exclusionary, repressive, or anti-pluralist aim or effect, as opposed to widening inclusion or recognition?
- represent a departure from the existing body and sources of international HR law, particularly from developments postdating the Universal Declaration of Human Rights, which follow-through with that instrument’s own plan for multilateral treaties to implement the declaration?
- attempt to create or assert a hierarchy of rights, wherein some rights are supposedly more fundamental, while others are treated as subordinate or of secondary importance?
- attempt to scapegoat certain groups or to identify groups or categories of persons who are said not to be entitled to claim rights?
- impose restrictions on public interest civil society, whether on funding, organization, or other activities, or utilize strategic lawsuits against public participation?
- rely on evidence of clear falsehood, subterfuge, camouflage, intentional distortion, or deliberate polarization?
- involve a reversal of previous customary or legal strategies suggesting bad faith or disingenuous purpose? and/or
- seek to evade or reject external monitoring or independent mechanisms of accountability?
7. While no single of these indicators alone is likely to definitively identify an appropriation of HR as illiberal, pretextual, or transgressing core HR values and ratified HR covenants, some of them do clearly represent red flags to warn of that possibility, and several of them combined strengthen the probability that that is the case.
8. Studies have revealed that coalitions of populist and conservative, often right-wing and sometimes authoritarian-leaning, governments, political parties, lawyers and lawyer associations, as well as religious actors and business interests often share common intellectual influences, funding, and transnational connections. These studies depict the spread and intensification of claims of HR to religious freedom, to conscience and conscientious objection, to family and parental rights and control, to culture and to property, and to the right to life of the fetus, as well as assertions that such rights sit atop a hierarchy of HR. They also demonstrate a concerted downgrading or rejection of equality-based rights to anti-discrimination, women’s rights, the rights of religious minorities, LGBTQI+ rights and those of migrants and refugees, as well as the rights of those harmed by climate change.
9. The human rights system has always encountered extensive contestation and criticism, including by those who point to their imperialist origins and their instrumental use for geopolitical and other ends. And yet despite–and also because of– this sustained critique of HR and engagement, a broad if uneven consensus has nonetheless emerged over decades around a set of basic values, norms, and institutions.
10. Today, however, under conditions of stark political polarization and the radicalization of discourses, a rather different set of claims around human rights is emerging: one that excludes, subordinates, and marginalizes rather than includes and protects, and one that creates hierarchies while avoiding any mechanisms of accountability.
11. Scholars and advocates should be encouraged to examine, illuminate, and challenge these moves, lest a new and ‘reformed’ body of ultraconservative and illiberal HR be the outcome. (Grainne de Burca, Katherine Young)
The current conservative approach(es) to human rights is an outward, vocal embrace of rights while insidiously reworking them from within
12. We call these rights doublespeak, as well as anachronistic, because they refer back to antiquated sources of rights so as to deny their modern breadth and create false rights hierarchies. The idea is to rewrite the HR canons from within to end the recognition of some rights, create rights hierarchies, and sideline the instruments and interpretive practices of the modern global rights ecosystem.
13. A common argument to validate the motive behind this move is that a redefinition effort is needed to respond to a rights ‘crisis’ through a ‘rights renewal’. Such an appropriation involves an appeal to substantive legitimacy, not only around where HR come from, but also around their content. A key tool in the appropriation toolbox is to advance a narrow understanding of the legitimate sources and interpretative rules for HR law, one that sidelines the instruments, interpretive rules, and content of the modern HR framework. For example, the tool elevates some rights –property rights and religious freedoms– over others and inaccurately frames reproductive and sexual orientation rights as ‘controversies’ rather than protected rights. It creates unduly restrictive criteria for recognizing ‘new’ rights and diminishes the role of binding treaties and the work of expert bodies. The tool also requires influencing other governments and international fora.
14. This appropriation of rights undermines decades of developments to secure the universality, interdependence, and indivisibility of HR. While claiming dedication to the renewal of rights, and under the guise of fixing a broken system, this global appropriation of rights strikes at core HR values. By making apparent the mechanisms of appropriation, as well as the options for pushing back, HR activists will have to better recognize and resist future conservative moves to appropriate rights. (Jayne Huckerby, Sarah Knuckey)
Claudio Schuftan, Ho Chi Minh City
Your comments are welcome at schuftan@gmail.com