I don’t like to see other people suffering.
(Peter Tatchell, Interview with Triggernometry , 27th May 2018)
In the first chapter of this book, we saw that international humanrights law has a tendency to expand its purview in a manner which is largely unfettered. We observed that this results from a conception of humanrights law as being purposive. In Chapter 2 , we noted that law in general has a tendency to be conceived of as a teleocratic rule-book, declaratory of purposes and specifying the actions and duties necessary to
This book describes how human rights have given rise to a vision of benevolent governance that, if fully realised, would be antithetical to individual freedom. It shows that contemporary human rights practice is increasingly managerial in nature, interested above all in measuring and improving human rights performance. This has the effect of shifting the focus of human rights from the individual rights-holder to the activities of the duty-bearer: the state, international organisation, or business. The result is a preoccupation with achieving measured improvements within abstract groups such as the population or ‘stakeholders’, with the individual rights-holder being relevant only insofar as he or she is a datapoint in a larger grouping. The book then analyses this trend and its consequences. It describes human rights’ evolution into a grand but nebulous project, rooted in compassion, with the overarching aim of improving universal welfare by defining the conditions of human well-being and imposing obligations on the state and other actors to realise them. The ultimate result is the ‘governmentalisation’ of a pastoral form of global human rights governance, in which power is exercised for the general good, moulded by a complex regulatory sphere which shapes the field of action for the individual at every turn. The conclusion is that it is unsurprising that this alienating discourse has failed to capture the popular imagination – and that if the human rights movement is to succeed it may be necessary for it to do less rather than more.
must then investigate what this means in practice, so as to properly understand its effects. Here, we are drawn inevitably to the work of Michel Foucault, particularly with respect to the influential concept of governmentality which he developed later in his life. As we shall see, Foucault trod over much of the same ground as Oakeshott in theorising the history of this particular form of political rationality. And he did so in such a way that, when he is read alongside Oakeshott, it gives a very rich perspective on the way in which international humanrights law is
Numerous scholars and policymakers have highlighted the predicament of Roma as the most disadvantaged ethnic minority in Europe. This predicament has often been discussed as an unfortunate anomaly within otherwise inclusive liberal democratic states. In this book, Julija Sardelić offers a novel socio-legal enquiry into the position of Roma as marginalised citizens in Europe. Whilst acknowledging previous research on ethnic discrimination, racism and the socio-economic disadvantages Roma face in Europe, she discusses civic marginalisation from the perspective of global citizenship studies. She argues that the Romani minorities in Europe are unique, but the approaches of civic marginalisation Roma have faced are not. States around the globe have applied similar legislation and policies that have made traditionally settled minorities marginalised. These may have seemed inclusive to all citizens or have been designed to improve the position of minority citizens yet they have often actively contributed to the construction of civic marginalisation. The book looks at civic marginalisation by examining topics such as free movement and migration, statelessness and school segregation as well as how minorities respond to marginalisation. It shows how marginalised minorities can have a wide spectrum of ‘multicultural rights’ and still face racism and significant human rights violations. To understand such a paradox, Sardelić offers new theoretical concepts, such as the invisible edges of citizenship and citizenship fringes.
If you don’t count it, it won’t count … It is thanks to the indicators that we know where we stand and what we still need to do.
(Flavia Pansieri, then UN Deputy High Commissioner for HumanRights, Speech to the HumanRights Council, 28th July 2014)
In previous chapters, we saw how the purpose of the international humanrights regime can be discerned in a particular directing idea, which is to improve well-being through placing obligations on the powerful to conduct benevolent activities for the good of the powerless. This, combined
Human rights violations by ‘private’ transnational actors
pharmaceutical enterprises violated fundamental humanrights? Can AIDS
patients assert their right to life directly against transnational
corporations? Does ‘Access to medication as a human right’
exist in the private sector? 3 More generally, do fundamental rights
obligate not only states, but also private transnational actors
In October 2003, the national
In the introduction to this book, reference was made to Trilling’s observation that choosing to act morally did not settle all moral problems. It only displaced them. Orienting humanrights law towards teleocracy with the aim of improving human well-being is not without its costs. In fact, the more it is turned in that direction, the more it will interfere with the freedom of individuals properly understood. This will not manifest itself in edict or command. Rather, it will appear in much more subtle form: as the deployment of a pastoral power whose interest
to humanrights. Compassion, the unwillingness to look on while others suffer, imbues the thinking of humanrights advocates, whether in practice or the academy. This gives them a directing idea, realised through the capacity of law to span the present and future, which is that the powerful must be made responsible for improving the well-being of the powerless. The achievement of this purpose, however, cannot be done through law alone because of its inescapable “allegiance” to nomos . The result is the deployment of governmental reason, which manifests itself in
[R]ights are public goods: Taxpayer-funded and government-managed social services designed to improve collective and individual well-being. All rights are positive rights.
(Holmes and Sunstein, The Cost of Rights ) 1
Providing an explanation for the development and an account of the consequences of humanrights in its managerial mode is the project of this book. First of all, however, the phenomenon requires definition and description. In this chapter I give that definition and description, showing how it has become not only
pity, then of our wisdom, ultimately of our coercion.” 2
The subject matter of this book is how that paradox finds expression in modern international humanrights law and practice. The core of its argument is that the chief concern of the humanrights movement has become the deployment of political and economic power through the State, international organisation, and private enterprise in order to improve human well-being. This makes its character increasingly managerial, concerned above all with the technical and programmatic implementation of policies