The Rituals of International Human Rights

Rituals are distinguished by repetition: internal elements of a ritual often recur, and rituals themselves can only be described as such on the basis of repeat performances. They use symbolism to communicate at the level of affect, and while they often allow space for spontaneous effervescence or improvisation, rituals also contain and limit such irruptions. ^{Footnote 7} Although commonly associated with religious settings, rituals may be secular. ^{Footnote 8} Collective rituals constitute and reconstitute social norms and values and, in doing so, divert attention from alternative normative frameworks or “ways of seeing,” depriving these alternatives of legitimacy. ^{Footnote 9} While they may instigate new social relations as well as strengthen existing social ties, ^{Footnote 10} it is part of the nature of rituals to conceal the political and contested quality of communal bonds. Struggles for power and meaning, and the material interests behind them, are hidden by a performance of sociality. Participants themselves are enrolled through the power of symbolism and sensory effects and by the performative demands placed on them. ^{Footnote 11}

Through rituals employing textual reiteration, symbolic language, and ceremonial performance, the idea that justice in the world can only be achieved via human rights, and that these rights represent a politically neutral moral consensus, is established and entrenched. The belief that there exists a global community already committed to rights realization is communicated and naturalized, even in the face of pervasive rights violations. This argument may be greeted with scepticism by scholars engaged in critiquing human rights. They may point out, quite correctly, that the universality of human rights has long been debated, and that the Western genealogy of the rights now enshrined in international law is widely acknowledged. But while this historical literacy is not confined to academic circles, it does little to impede the triumph of human rights. The language and international recognition of human rights has shown a tremendous capacity to inspire and enrol people even in the context of widespread criticism.

The fact that this capacity is indebted to ritual becomes apparent if we notice how the core human rights instruments set out the basic tenets that comprise the doctrine of human rights, authorize what is said and done in their name, and invoke a community of believers—the “human family” of the international bill of rights. The preambular passages all rehearse similarly lofty phrases, reminding us that “contempt for human rights” “outrage[s] the conscience of mankind,” that human rights are “the highest aspiration of the common people,” and that “the peoples of the United Nations” “reaffirm…their faith in fundamental human rights.” ^{Footnote 12} Like music, these phrases strike a chord and appeal to emotional sensibilities; but they also function to short-circuit critique.

Universality is written into all of the core rights instruments and treaties, beginning with the Universal Declaration of Human Rights (UDHR). UN Secretary-General Ban Ki Moon claims that the UDHR “has become a yardstick by which we measure respect for what we know, or should know, as right and wrong.” ^{Footnote 13} This assertion of a moral consensus is supported by the fact that the UN General Assembly proclaimed the Declaration “a common standard of achievement for all peoples and all nations.” ^{Footnote 14} According to the Vienna Declaration, “[t]he universal nature of [human rights and fundamental freedoms] is beyond question.” ^{Footnote 15} Like these claims to universality and moral consensus, human dignity, freedom, and equality are repeatedly invoked by the instruments of international human rights. ^{Footnote 16} At the same time as international human rights law proclaims and sacralises the dignity of the human person, it affirms the sovereignty of states and the right of peoples to self-determination. ^{Footnote 17} It ignores, and thereby conceals, the tensions between these disparate commitments to individuals, states, and peoples. The presupposition of a global moral consensus concerning human rights is presented as consistent with political pluralism and divergent national and sub-national policy orientations. The fact that state sovereignty and the self-determination of peoples may be obstacles in some instances to individual rights protection and to international co-operation is not acknowledged. ^{Footnote 18} Instead, the peoples of the United Nations are described as having a “common interest” and “common ends,” ^{Footnote 19} and co-operation is supported by a form of lawfulness that, being universal, is capable of operating impartially in the interests of all. The UN Charter and the UDHR claim to establish the foundations for an international system based on justice, where justice is equated with respect for international law and recognition of human rights. ^{Footnote 20}

Each of these explicit commitments appears in the instruments of international human rights as an expression of social relations and values that are both self-evident and a realization of humanity’s highest aspirations. They are articles of faith that, through reiteration, also affirm and entrench participants’ shared faith in human rights, as well as creating the community of believers that the system claims merely to recognize. ^{Footnote 21} The ritual invocation of “mankind,” “the human family,” “the common people,” ^{Footnote 22} and “we, the peoples of the united nations” ^{Footnote 23} is at odds with the material facts of the system’s founding moments and glosses over the rifts that persist within it. In her account of the post-World War II development of international law more generally, Pahuja notes the unequal influence exerted by the Great Powers and the structural significance of the fact that the UN’s political institutions—including the human rights bodies—were separated from its economic institutions. ^{Footnote 24} This has meant that political institutions can be assessed by reference to human rights while global trade and financial institutions have been immune from such scrutiny.

Drawing power from its authorizing texts, the human rights world is ritually enacted through formal events such as the marking of anniversaries, and entrenched through the adoption of further texts that clarify and amplify doctrinal matters. ^{Footnote 25} The human rights vision is ritually embodied in the operations of the UN treaty bodies and, to varying degrees, in the other human rights mechanisms, which are governed by a carefully staged and publicized calendar of annual events. Treaty body sessions are conducted in imposing surroundings—often the Palais Wilson in Geneva—and the Human Rights Council’s Universal Periodic Review gains ritual authority from its surroundings beneath the magnificent domed roof of Salle XX in Geneva’s Palais des Nations. ^{Footnote 26}

Human rights preambles are lyrical, but the substance of human rights treaties as well as the language and practice of implementation is largely technical and bureaucratic, allowing a performance of rational impartiality and lawfulness. Considerations of state reports, while less formal than many court proceedings, are solemn events that are carefully scripted and staged. ^{Footnote 27} The written products of the Committees, as well as the material provided to them, are also consistent in form, tone, and style. Like the treaties themselves, they repeat certain key phrases like incantations: the Committee “urges, encourages, invites, requests, recommends”; sometimes it is “concerned’ and occasionally “extremely concerned.” ^{Footnote 28} When the human rights bodies engage with states, material realities and power imbalances are disguised in civilized conformity to rituals that formally allow equal space to unequal participants. ^{Footnote 29} This means, for example, that the Committees allocate the same time to the review of each state party’s report regardless of the size of the country or the issues it faces.

Focusing on economic and social rights helps illustrate the achievements of these rituals. Against the universality and political neutrality exalted by the human rights vision of the world, the recognition of economic and social rights is contested. As indicated earlier, contention about the status of human rights has always simmered below the surface rituals, but while no state today openly denies the fundamental nature of civil and political rights, disputes that marked the original elaboration of economic and social rights in international law continue. During the early days of international human rights drafting, debates over how economic and social rights would be recognized were passionate and divisive, with opponents of strong recognition characterizing such rights as “leftist” and as requiring “more or less totalitarian control of the economic life of [a] country.” ^{Footnote 30} Although it now has nearly as many state parties as ICCPR, ICESCR has only recently acquired an enforcement mechanism providing an individual complaints procedure. ^{Footnote 31} This mechanism has attracted few ratifications, and its adoption was attended by similar controversy as attended the drafting of ICESCR. ^{Footnote 32} The existence of such controversies do little, however, to dent the ritual presentation of a universal moral consensus in support of human rights.

Neoliberalism and the Human Rights World View

Because it takes individuals as the primary subjects of rights and UN member states as their duty-bearers, the human rights vision of a just and peaceful world relies on the agency of states. ^{Footnote 33} It sidelines the role of non-state-based political formations in social justice arrangements. It has largely ignored—and certainly been powerless to constrain—the pervasive influence on human wellbeing of the corporate sector and transnational financial and trade institutions. ^{Footnote 34} As a result, some theorists suggest that it facilitates a neoliberal market order in which disparities in economic power are the norm. ^{Footnote 35} This argument is supported by the fact that international human rights treaties do not oppose or challenge material inequality, ^{Footnote 36} and while they trumpet the indivisibility of all rights, in practice civil and political rights are prioritized. ^{Footnote 37}

Having said this, I want to examine the relationship between neoliberalism and human rights by focusing on ICESCR. ^{Footnote 38} By referencing rights to a broad range of economic and social goods such as food, education, and housing, ICESCR appears to challenge the neoliberal disdain for non-market-based forms of redistribution. Although it does not treat material inequality as a problem in itself, and does not require immediate fulfilment of the rights it contains, the steps that states are required to take towards implementing economic and social rights must be “to the maximum of their available resources.” ^{Footnote 39} The Committee that oversees ICESCR (the “Committee”) argues on this basis that ICESCR imposes “a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the [Covenant] rights.” ^{Footnote 40} It continues: “…a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic form of education is, prima facie, failing to discharge its obligations under the Covenant.” ^{Footnote 41}

The Committee has called on states to implement wide-ranging redistributive policies to ensure their “core obligations” are met, and it has expressed support for traditional and micro credit schemes, ^{Footnote 42} as well as some modest proposals for land redistribution. ^{Footnote 43}

In all of these respects, the Committee appears to be using human rights in opposition to neoliberalism. Ultimately, however, social and economic rights in international law conform to rather than confront the neoliberal paradigm. This is because the full implementation of economic and social rights presupposes a market-based growth and development model. ICESCR includes a right “to the continuous improvement of living conditions.” ^{Footnote 44} It imposes obligations on states “to achieve steady economic, social and cultural development” in support of the right to work, ^{Footnote 45} and to “improve methods of [food] production…by making full use of technical and scientific knowledge…and by developing or reforming agrarian systems.” ^{Footnote 46} It recognizes the “right of everyone…to enjoy the benefits of scientific progress and its applications.” ^{Footnote 47}

Charlesworth argues that it has historically been “[a]n assumption of the international law of development…that underdevelopment is caused by a failure to meet the model of a capitalist economy. Development [has meant] industrialisation and westernisation.” ^{Footnote 48} While the meaning and form of development that should be pursued under the guise of human rights is contested, ^{Footnote 49} neoliberalism has powerful supporters. Through the influence of large corporations and their shareholders and government backers, as well as the major development banks, the neoliberal paradigm now dominates. ^{Footnote 50} While the rituals of human rights veil these material realities, they can be seen in how ICESCR’s “agrarian reform” provision has been implemented and in struggles for land reform more generally. Under the guise of agrarian reform, the World Bank and other international financial institutions have promoted a market-based model where privately-held land that is not under cultivation is transferred to landless rural workers. ^{Footnote 51} The land holdings in question are enormous in scale, and the history of their acquisition can usually be traced to colonial conquest or gifting from unrepresentative governments. Disregarding this history, transfers to the landless facilitated by the World Bank have often been dependent on the provision of monetary compensation to landowners disproportionate to the value of the land. Under such schemes landless workers have been provided with credit to purchase land but the inflated costs of the land have left them with crippling debts. ^{Footnote 52}

The Committee, in its oversight of ICESCR, does not simply assimilate development and the realization of economic and social rights. ^{Footnote 53} Nor does it assume that development requires market-based reform or conversion. But it does consider development in some form to be a prerequisite for realizing economic and social rights, and it takes for granted that development depends on economic growth, which presupposes the expansion of markets. ^{Footnote 54} Furthermore, although the Committee cautions that the benefits of development must be directed to the least well-off, and claims in robust terms that “development activities which do not contribute to respect for human rights, either directly or indirectly, are not worthy of the name,” ^{Footnote 55} it does not characterize redistribution as a genuine alternative to development. This is notable in light of the fact that the world currently has sufficient resources to meet the basic needs of all human beings. ^{Footnote 56} It is less remarkable when viewed from the perspective of political realities, reflecting what might be considered achievable goals in the context of the Committee’s role overseeing ICESCR. It demonstrates, however, that the apolitical moralism of human rights and the rituals through which they are entrenched operate to obscure material realities. They neutralize contestation over the redistributive role of the state and the impact of neoliberal policies on human wellbeing.

The ritual invocation of cooperative relations between states similarly disguises the influence of power politics, at the same time as any prospect of rights implementation is beholden to it. Because ICESCR requires parties to move towards the realization of economic and social rights not only individually but also “through international assistance and cooperation,” ^{Footnote 57} the Committee argues that the “available resources” for implementing economic and social rights must be assessed with reference to resources potentially available to a state via international assistance. Yet in implicit deference to political realities, the Committee asks no more of wealthy countries than that they dedicate 0.7% of their Gross National Income to Overseas Development Assistance. ^{Footnote 58} Instead of highlighting the dissonance between a resource- and food-wealthy world and the levels of social and economic deprivation that subsist within it, ICESCR entrenches the idea that implementing the rights it contains will miraculously produce a world free from want. In doing so, it conceals the fact that a neoliberal global order is a structural impediment to such a world. Neoliberal policies produce vast economic inequalities and facilitate the concentration of social and political power in the hands of the few—thereby also impeding the realization of civil and political rights. ^{Footnote 59} ICESCR’s capacity to constrain neoliberal policies is limited by political realities, but these realities are hidden behind rituals of universality, moral consensus, political neutrality, and international co-operation.

Vía Campesina—Political Struggles and Rights Rituals

What, then, to make of the campaign for a supposedly new suite of rights, many in the economic and social arena, pursued by Vía Campesina? Founded in 1993, largely through the initiative of Latin American peasant and landless workers organizations, ^{Footnote 60} Vía Campesina is a networked movement representing around 200 million “peasants, small and medium-size farmers, landless people, women farmers, indigenous people, migrants and agricultural workers” through roughly 164 different local and national groups. ^{Footnote 61} The movement claims to be “independent of any political, economic or other type of affiliation.” ^{Footnote 62} Rejecting the apolitical moralism characteristic of the human rights vision, however, Vía Campesina describes itself as “a political project.” ^{Footnote 63} Since its foundation, its primary political goal has been “food sovereignty.” Although this concept accords a significant role to the state, ^{Footnote 64} it is oriented towards local as well as national empowerment and challenges the international power politics that human rights rituals veil through their invocation of sovereign equality, self-determination, and political neutrality. Vía Campesina defines food sovereignty as “small scale production benefiting communities and their environment,” as well as a commitment to “giv[ing] a country the right to protect its local producers from cheap imports and to control production. It ensures that the rights to use and manage lands, territories, water, seeds, livestock and biodiversity are in the hands of those who produce food and not of the corporate sector.” ^{Footnote 65}

In the early years of the campaign, Vía Campesina distinguished the concept of food sovereignty from the much narrower idea of a human right to food. The right to food may be realized by handouts from the state or international donors but, in this form, does nothing to remedy structural problems such as the conversion of farming land for urban developments or industrial uses and consequent land evictions, or price volatility in international food markets that deprive people of the capacity to support themselves through sustainable food production. ^{Footnote 66} Vía Campesina aims to achieve food sovereignty by taking aim at “destructive neoliberal processes,” ^{Footnote 67} by popular mobilizations, “confrontation with oppressors,” “active resistance,” “and building up alternatives.” ^{Footnote 68} It has demonstrated what Martinez-Torres and Rosset describe as “deep distrust…of methods that channel and “calm” dissent,” such as “conflict resolution,” “stakeholder dialogue,” and “consultation” with entities like the World Bank and the WTO. ^{Footnote 69} When it announced in 2013 that it was cutting ties with an activist organization on the basis that the group aims to reform the WTO, Vía Campesina emphasized, “[w]e are not negotiators and we should not be limited to what we can or cannot demand within the context of…negotiations.” ^{Footnote 70}

Despite this, Vía Campesina has invested considerable resources for more than a decade pursuing dedicated recognition for peasants in a UN rights declaration. ^{Footnote 71} In doing so, it has become entangled in the complex negotiations and ritual performances that surround the elaboration of any international human rights instrument. A number of NGOs and human rights academics are working with Vía Campesina on its campaign, ^{Footnote 72} and many are encouraging it to support a Declaration that is couched in recognisable “UN language” and that mirrors the UN Declaration on the Rights of Indigenous Peoples (“UNDRIP”). ^{Footnote 73} Yet critics of UNDRIP—which was adopted by the UN General Assembly in 2007 after more than two decades of negotiations—highlight how rights contained in earlier drafts were watered down. They emphasize that despite including some collective rights, UNDRIP ultimately entrenches state sovereignty and individualistic forms of human rights that are consistent with neoliberal development models. ^{Footnote 74}

The original text of the Declaration that Vía Campesina settled on in 2009, and which it subsequently presented to the Human Rights Council and the UN General Assembly, ^{Footnote 75} participates in textual human rights rituals. Its preamble has paragraphs invoking the community of human rights believers as well as the community’s core beliefs: “affirming,” “acknowledging,” and “emphasising” prior rights commitments such as those contained in the UDHR. But the Declaration is also idiosyncratic. Unlike most human rights organizations and advocates, whom Marks (following Klein) critiques for failing to engage with the systemic causes of exploitation and rights violations, ^{Footnote 76} Vía Campesina repeatedly references specific causes of violations and their explanatory contexts. These extracts from the Declaration’s preliminary material and preamble are indicative:

The body of the Declaration contains rights that relate closely to the wrongs articulated in the preliminary and preambular material, and that vest considerable power in the hands of peasants. It also calls on states to act in the interests of peasants and to resist the authority of international organizations such as the WTO. The Declaration includes the rights of peasants to:

In 2012, the Human Rights Council’s Advisory Committee released its own Declaration on the Rights of Peasants and Other People Working in Rural Areas, drawing heavily on Vía Campesina’s original. ^{Footnote 77} A Council Working Group, chaired by Bolivia, has now elaborated an Advanced draft to form the basis of further negotiations. ^{Footnote 78} The mandate of the Working Group was renewed by the Human Rights Council in September 2015 for two years, ^{Footnote 79} and the drafting process will likely continue beyond this, subject to further mandate renewal. Negotiations over the text take place in what are described as “informal’ consultations as well as formal sessions of the Working Group. All negotiations are, however, conducted in the majestic Palais des Nations in Geneva, with formal sessions convened beneath the imposing domed roof of Salle XX where the Universal Periodic Review is also staged.

The Advanced draft departs significantly from Vía Campesina’s original. The agents and causes of rights violations listed in the preliminary and preambular material in Vía Campesina’s original have disappeared from the Advanced draft’s preamble, which does not mention extractive industries, tourism, transnational corporations, the WTO, or FTAs. While “large scale development projects” are cited as a reason for land evictions, ^{Footnote 80} mention of agrofuels, agribusiness, speculation on food prices, trade dumping, food subsidies, and deregulation of the agricultural sector have all gone. The result is that the preamble’s references to “poverty and malnutrition,” and “the hazardous and exploitative conditions under which [peasants] have to work” ^{Footnote 81} give the impression that these phenomena come out of nowhere—as if they are, as in Marks’s articulation, “random, free-floating bad events.” ^{Footnote 82} The Advanced draft does include, however, an article calling on states (where “they are in a position to regulate”) to ensure that “private individuals and organisations, and transnational corporations and other business enterprises, do not nullify or impair the enjoyment of the rights of peasants.” ^{Footnote 83} Another article says that states will take measures to realize the purpose and objects of the Declaration “in partnership with relevant international and regional organisations and civil society, in particular organisations of peasants and other people working in rural areas.” ^{Footnote 84} It adds that such measures could include “the management of markets at the global level, including information about and coordination of global grain stocks to limit price volatility and the attractiveness of speculation.” ^{Footnote 85}

In these respects, the Advanced draft disrupts the standard textual rituals of human rights. In other respects, though, it participates in and bolsters these rituals. The title of Vía Campesina’s original is “Declaration of the Rights of Peasants—Women and Men,” and references to peasants throughout the draft are followed by a bracketed “women and men,” emphasizing the movement’s commitment to gender equality and to a focus on the significant role of women in small-scale food production. ^{Footnote 86} The Advanced draft removes the bracketed phrase “women and men” from the title and the body of the Declaration. In its place, it calls for gender equality and recognizes “rural women’s rights” in dedicated articles. ^{Footnote 87} These articles vest states with responsibility for improving peasant women’s position and characterize the problems they face as rooted in discrimination. ^{Footnote 88} This emphasis on the role of states and identification of rights violations as caused by discrimination characterizes the Advanced draft more generally. Thus an article in the first part, dealing with “fundamental principles,” says that “peasants…have the right to be free from any kind of discrimination” and calls on states to “take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination against peasants….” ^{Footnote 89}

As noted earlier, recourse to states as duty bearers is a feature of the political paradigm that structures international human rights. Describing particular groups as being vulnerable to “discrimination” is also typical of human rights instruments and strengthens rituals of moral consensus and political neutrality, deflecting attention from systemic drivers of exploitation. Resort to the concept of discrimination in such contexts implies that the problem of exploitation is one of intolerance. ^{Footnote 90} This ignores the fact that marginalizing groups such as women or peasants makes it easier to extract their labour cheaply. A materialist analysis, by contrast, suggests that certain productive relations are exploitative and that discrimination serves to legitimate these exploitative relations. ^{Footnote 91} Seen in this light, discrimination is neither a spontaneous psychological tendency towards intolerance nor a phenomenon that states are ideally positioned to redress.

In the Advanced draft, the concept of discrimination directs attention to the “victims,” reminding the human rights “family” that peasants too “are equal…in dignity and rights,” and so entitled to freedom from discrimination. ^{Footnote 92} A different approach would be to study the beneficiaries of rights violations, given that “the conditions which create vulnerability to hunger and malnutrition…exist at least in part because they benefit some groups of people.” ^{Footnote 93} The contribution of financial investors and speculators to the global food crisis of 2008 is now widely recognized but less, if any, attention is paid to the other people who profit from speculative investments and the institutional arrangements that support them, including members of pension funds, holders of insurance policies, and customers of banks. ^{Footnote 94} Highlighting the beneficiaries of rights violations involves challenging the rituals of universality, moral consensus, and political neutrality through which international human rights are entrenched and on which they rely.

In the transition from the Vía Campesina draft to the Advisory Committee’s draft, the rights to land capable of being irrigated and “to reject all kinds of land acquisition and conversion for economic purpose” were excluded. The right to reject land acquisition and conversion was replaced with an article stating that peasants should not be “forcibly” evicted from their land and that relocation should only take place with “free, prior and informed consent.” ^{Footnote 95} This locution is used in UNDRIP and it has been restrictively interpreted in other contexts as a “consultation’ rather than a “veto” right. ^{Footnote 96} In the move from the Advisory Committee’s draft to the Working Group’s Advanced draft, the “free, prior and informed consent” clause has been included as a procedural requirement in a number of articles but has disappeared in relation to land. ^{Footnote 97} It has been replaced with an article protecting peasants from “arbitrary” displacement and calling on states to protect peasants from such displacement in a manner that is “consistent with international human rights and humanitarian law standards.” ^{Footnote 98}

Is anything lost by replacing a “right to reject” land acquisitions with protection from arbitrary displacement in accordance with human rights? Answering in the negative assumes that human rights operate impartially to advance the interests of all human beings, neither tethered to nor hindered by any particular political or economic paradigm or by material context. The fact the language of human rights beguiles, and so successfully implies universal, impartial, and apolitical protection for all human beings, points to the successful work achieved by ritual.