David Kennedy and Peter Rosenblum have introduced an alternative way of thinking about human rights by applying critical methods to underline some debatable questions about international human rights. Both of them are prominent scholars in the field of critical legal studies. Throughout history, the human rights movement has achieved remarkable achievements for the sake of humanity and victims all over the world. However, the two scholars have referred to numerous shortcomings that need to be critically addressed. In this article, I argue that the international political community has played the most critical role in distorting the international human rights system by weakening the international enforcement of human rights, adopting inconsistent and selective polices towards human rights, and employing human rights slogans in international politics. Moreover, human rights movement is responsible for overemphasizing on rights more than other concepts like duties and responsibility, and underestimating the local socio cultural contexts of the application of international human rights norms. On the other hand, it is not persuasive for me what has been stated by Kennedy that human right has "occupie[d] the field of emnacipatory possibility."
To begin with, I don't think that the human rights' movement has crowded out other emancipatory possibilities. Human rights is not a closed ideology or political doctrine that can compete or degrade other visions, but they are a set of values and principles that speak out on behalf of the human beings everywhere and any time. Human rights pave the way for social movements from different spectrum of fields to grow up freely without being persecuted or intimidated.
It is also unfair to believe that human right is the main instrument for human emancipation. The current critical debate on modernity and its products is very complicated and related to the whole modern economic, political and social life. The critique of post modernists transcends the human rights project as I think human rights have very specific roles in our globe which are protecting individuals from the gigantic powers of the states, freeing individuals from fear, and meeting their needs, whereas the human emancipation may be constrained by the structures of the modern nation state as suggested by the post modern philosopher Michelle Foucault, or the distortion of the human communicative action as articulated by the German philosopher Jurgen Habermas.
However, we can admit that the international legal order is still imbalanced between political and civil rights, and economic and social rights. However, the moral philosophy of human rights has significantly developed its reasoning on human rights to explain the inevitable interdependence between freedom and social justice as successfully illustrated in the works of the American Philosopher John Rawls. This moral justification of economic and social rights is not reflected yet in international or regional protective mechanisms compared to the international system of political and civil rights.
I also disagree with the assumption that human rights reflects “[a] one-size-fits-all emancipatory practice under recognizes and reduces the instance and possibility for particularity and variation," or that, " . . . [a] person with rights-exacts, a cost, a loss of awareness of the unprecedented and plastic nature of experience, or a loss of a capacity to imagine and desire alternative futures." Kennedy describes this situation as “alienation." Once again, I assert that human rights do not represent an end to the human history or a dogmatic political doctrine that negates any other political, social or religious beliefs. The moral rationale of human rights can be regarded as a set of principles that peacefully organize the differences among people or as a way of overlapping consensus based on a certain rules. In such context, individuals can develop their emanicpatory doctrines or even stick themselves with the religious faith but the only limitation will be when they use their religious faith to violate other rights.
However, I agree with Kennedy that human rights' movement may have more emphasized on rights than "[o]ther lost vocabularies that are equally global—vocabularies of duty, of responsibility, of collective commitment.” It obvious that some issues are not solved merely by obliging states to adopt some legal measures, but it further needs a strong sense of responsibility among citizens all over the globe such as environmental issues, combating xenophobia, or hatred speech. In this direction, Cass Sunstein wrote that, "The emphasis on rights tends to crowd out the issue of responsibility . . . it is too rare to find the idea that people owe duties to each other, or that civic virtue is to be cultivated, prized, and lived. Rights . . . Since 1960s, are said to be a major problem".
As a reaction to this debate on rights and responsibilities the interaction council proposed in 1997 a Universal Declaration of Human Responsibilities which was developed by a group of prominent international leaders to promote the vocabularies of human responsibilities to the global debate on human rights.
Human rights universality is another point that has stirred discussion among scholars and practitioners. I believe that although human rights were historically produced in the context of the Western liberal societies, they reflect a kind of human progress that was accumulated across history by all cultures and civilizations. Kennedy argued that overestimating the universality of human rights can be part of the problem ". . . [w]hen the global expression of emancipatory objectives in human rights terms narrows humanity’s appreciation of these objectives to the forms they have taken in the nineteenth- and twentieth-century Western political tradition." He thinks that it might be useful to "look for parallel developments in other cultural traditions." I think that acknowledging the universality of human rights principles doesn't mean ignoring the historical traditions of other cultures. For instance, in the Arab region, human rights will not be accepted by the public unless human rights practitioners and scholars find innovative ways to solve the persistent tension between the traditional culture and the universal principles, and this process was regarded by the Muslim scholar Abdullah An- Na'im as "cultural legitimacy for human rights."
Other important point that has been mentioned in Kennedy's analysis is that human rights practitioners sometimes deal with some issues from the surface by only applying the narrow technical approach of international law without considering other important social, economic, political and cultural factors. Kennedy stated that, "human rights remedies, even when successful, treat the symptoms rather than the illness". In this regard, I believe that most of the human rights violations have multi faceted reasons and answers cannot be easily found in the international conventions and declarations. For instance, it will be an oversimplification to imagine that criminal prosecution can end the phenomenon of genital mutilation as "a culturally inscribed activity viewed as necessary by some and heinous by others." In line with that, when Human Rights Watch published a report on discrimination against homosexuals in Egypt, the organization has not considered the cultural and social complications that surround this issue in an Arab and Islamic country. Of course, I am not against defending the rights of homosexuals, but raising this issue in a country like Egypt requires a very sensitive and gradual approach.
Addition to that, many universal rights contradict the common interpretation of Islamic Shari'a in the Arab region and it is not a solution to use only international law as a refrence when struggling for the respect of human rights in the region. In this case, human rights defenders are required to encourage any intellectual effort that can build a cultural legitimacy for the universal human rights values by critically examining the popular culture and introducing new interpretation of Islamic Shari'a that can be in harmony with international law.
Both Kennedy and Rosenblum implicitly or explicitly pointed out the dilemma of enforcement in international human rights law, and I think this is one of the main sources of frustration from international human right that prompted Kennedy to say that "[h]uman rights promises more than it can deliver." Victims and human rights defenders usually count on the international community to neutrally intervene to protect human rights' norms, but the international human rights system is not empowered to consistently take this responsibility. The current international order is shaped by conflicting interests and power relations that undermine the enforcement of human rights norms.
As a human rights practitioner working in the Middle East, I can understand the consequences of the political use of human rights and democracy promotion in the rhetoric of international politics. The illegal war against Iraq and the long standing silence of the international community towards the serious human rights crimes that have been committed in the Occupied Palestinian Territories (OPT) have discredited the international system of human rights and shown its inconsistency. Double standards have been flagrantly applied in the region and practiced by all actors from and outside the region. The international community has paid attention to some conflicts more than other. For example, human rights crimes in Darfur have been strongly denounced by the international community while a position is always difficult to reach to denounce the Israeli repressive measures against Palestinians. In the meantime, the Arab governments have ignored or denied the crimes that have been committed in Darfur, and have tended to shield the Sudanese government from being accountable for these crimes.
Moreover, human rights slogans are used to give a popular legitimacy for the bilateral and multi lateral frameworks between the international major actors and the Arab governments. However, the real implementation of these frameworks sometimes goes against human rights. For example, the US has invested its military and security relations with regimes like Egypt, Jordan and Tunisia to ensure their cooperation in illegal and brutal practices while combating terrorism. In addition to that, The EU has negotiated some Mediterranean government on arrangements to control the immigration flow from the south. Many of these arrangements potentially violate international human rights law.
In conclusion, the critical approach to international human rights is necessary to develop its vocabularies and institutions. The longstanding struggle for international human rights has been marred by serious setbacks. The conflicting power relations in the international community have distorted the noble message of human rights by applying inconsistent and selective standards in enforcing the international human rights law or use rights slogans to legitimize other polices that undermine human rights. On the other hand, human rights movement is responsible for overemphasizing on rights more than other concepts like duties and responsibility, and underestimating the local socio cultural contexts of the application of international human rights norms. However, it is not persuasive that human rights has crowded out other emancipatory possibilities. Human rights movement has specific roles. It has generated a set of rules aiming at freeing individuals from fear and meeting their needs, but there might be other reasons that limited the emancipatory possibilities of human beings in the modern life. Although this discussion is very important, it is, in my opinion, transcends the human rights dictionary and is related more to the post modern critical theory.
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