Ian Balfour and Eduardo Cadava The Claims of Human Rights: An Introduction

Human rights have become one of the most

pressing and intractable matters of political life, and perhaps even of life as such. We might even say that there could be no life without human rights, without, at the very least, the right to live. This is why, from their very beginnings, human rights have always beenwith and beyond all the praxes that seek to secure thema way to think about what it means to be human, and what it means to have the right both to live and to be human. If, from the earliest declarations of the French Revolution (the generally accepted origin of human rights discourse) to the Declaration of Universal Human Rights that followed World War II, human rights have been continually broadened, elaborated, claried, and dened, it is because they repeatedly have sought to include and addressoften in response to the suering, dispossession, and displacement that accompany the injustices and violence that constitute so much of the worlds historynew rights. These rights include, among many others, womens rights, minority rights, childrens rights, gay and lesbian rights, human rights beyond citizens rights, the right to education, the right to work, the right to political participation, the right to
The South Atlantic Quarterly 103:2/3, Spring/Summer 2004. Copyright 2004 by Duke University Press.

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resistance, the right to development, and a wide spectrum of economic and cultural rights. If human rights arrived relatively late on the scene of history, howeverjust over two hundred years agothey not only have sought to formalize and expand civic and political rights that, even if understood within dierent contexts and under dierent names, already were partially in existence, but also have redened the relation between human and political rights within a complex and shifting history that has not always been marked by linear progress. Nevertheless, there can be no denying that the idea and the facts of human rightswith their insistence on a rethinking of the relations and conicts among rights, democracy, citizenship, sovereignty, statelessness, international law, violence, and humanitarian and military interventionnow inform the political agendas of countless nations and increasingly inuential transnational institutions, from the United Nations to the mushrooming nongovernmental organizations (NGOs), among which Human Rights Watch and Amnesty International are only the most well-known. The essays gathered in And Justice for All? The Claims of Human Rights seek to interrogate, measure, challenge, and encourage the ecacy of human rights and human rights discourses with a majority of the contributors addressing theoretical and historical questions, and training at least one eye on the present, sometimes two. To the extent that these essays tend toward the theoretical or even the philosophical, they ask fundamental questions about human rights, questions that sometimes leave the foundations of human rights discourses trembling, and this even if they were already tremulous from the very start. This inquiry is conceived largely in the spirit of human rights and its discourses in an eort to open the possibility for human rights that would ask us to broaden our understanding of both rights and the human, even while acknowledging that these discourses are not simply all of a piece. In an interview conducted shortly after 9/11, Jacques Derrida insists on the necessity of human rights and their accompanying discourses at the same time that he argues for a vigilant interrogation of the terms of these discourses: We must (il faut) more than ever stand on the side of human rights. We need (il faut) human rights. We are in need of them and they are in need, for there is always a lack, a shortfall, a falling short, an insufciency; human rights are never sucient. Which alone suces to remind us that they are not natural. They have a historyone that is

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recent, complex, and unnished. . . . To take this historicity and this perfectibility into account in an armative way we must never prohibit the most radical questioning possible of all the concepts at work here: the humanity of man (the proper of man or of the human), which raises the whole question of nonhuman living beings, as well as the question of the history of recent juridical concepts or performatives such as a crime against humanity, and then the very concept of rights or of law (droit), and even the concept of history.1 The political and philosophical tasks associated with human rights, in Derridas view, and in the view of numerous authors featured in this special issue, are both necessary and innite, and all the more necessary for their changinginnitude. If the challenge of human rights is innite, it is because we have yet to enact a politics that can ensure absolute justice and dignity throughout the world.We might conjure some of the sites that, in recent memory, have generated the most pressing debates and intense questioning of human rights with a list of proper names, presented in no particular order, and certainly not in order to preclude other names: Biafra, Tibet, El Salvador, Nicaragua, Bangladesh, Chechnya, Somalia, Bosnia, Sarajevo, Kosovo, Cambodia, Israel, Rwanda, Argentina, Chile, Brazil, Iraq, Haiti, Sierra Leone, Palestine, Algeria, Burundi, Afghanistan, Kenya, Burma, Armenia, Indonesia, Zimbabwe, Sudan, China, and the United States. It would be impossible to name all the places in which the bloody conicts of economic wars, civil wars, ethnic conicts, wars of culture and religion, and the proliferation of racisms and xenophobias have threatened human rights, but also in which these wars and conicts, for good or ill, have helped shape and dene the shifting grounds both of rights and of what it means to be human. What is clear, however, is that the world is not a place where humanity or rights are sharedand this despite their respective and repeated claims to universality. Instead, it is a place of inequality and injustice, a place of loss and death, a place where every day there are more refugees, more people who are displaced and dispossessed, who starve, who are mutilated and raped, who are exiled and marginalized, and who live without the full exercise of political and civic rights. It is a place where, because of the inequality and injustice often written into the very formulations and denitions of humanity and rights, or at least into their mobilization within what Noam Chomsky has called the new military humanism 2 (evident, for example, in the current

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U.S. administrations claim that the War on Terrorism is conducted in the name of human rights), the task of dening and realizing human rights is innite, and therefore permanently urgent and necessary. If these tasks are inniteas seemingly endless as the ever-increasing sites of suering and deaththere are nevertheless several nodal points around which historical and contemporary debates about such rights have been organized. To begin with, on both a theoretical and a practical level, human rights invariably entail a tension between the universal and the particular. The revolutionary declarations of rights that founded the modern institution of citizenship and articulated the original contours of contemporary human rights discourseand especially within the contexts of democratic nation-states organized around the promises of universal suffrage and representative governmentsjoined the idea of the unity of man, the rights to be conferred on all its members, and the claim for equal liberty. This claim asserts not only the unity of the human race and the equality of all the individuals who compose it, but also that political institutions exist to guarantee the rights of every one of its citizens. If, in principle, human rights therefore would seem to pertain to all humans, the earliest declarations articulated a tension between man and citizen that continues to haunt discussions of who has the right to be protected and who does not. As several of the essays in this issue suggest, this tension already was legible in the era of the French Revolution, but it receives its most elaborate and inuential treatment in Hannah Arendts famous discussion of the paradoxical and aporetic character of human rights in The Origins of Totalitarianism. In a chapter entitled The Decline of the Nation-State and the End of the Rights of Man, Arendt presents a genealogy of the modern mass phenomenon of the refugee, of the numerous stateless populations that emerged, in the aftermath of the two world wars, and with the rise of imperialism and totalitarianism. Exiled or deported, deprived of all civil and civic rights, excluded from any form of political participation, the refugee, in Arendts formulation, introduces a kind of breakdown into the contemporary understanding of human rights. The conception of human rights, she explains, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the rst time confronted with people who had indeed lost all other qualities and specic relationshipsexcept that they were still human. 3 The crisis within human rights is that, with the appearance of the refugee, the presumably sacred and inalienable rights of man are shown to be

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entirely alienable, to lack any protection or reality at the very moment in which they can no longer be understood as rights belonging to citizens of a state, or to members of a particular political community. In other words, it is precisely when the noncitizen appears, when the human is divorced from citizenship (even if it is citizenship itself that often denes the human), that rights are lost. The consequences of this loss suggest that human rights do not precede political ones; instead, political rightswithout which there could be no concept or conrmation of citizenshipare what determine the recognition and denition of human rights, even beginning with the most elementary onesthose of survival, or of what Giorgio Agamben, following Walter Benjamin, has called bare life. 4 At the very moment when the continuity between the human and the citizen is broken down, refugees in Arendts words, citizens of nowhere in the worldcan no longer be recognized or treated as humans, and this even when, as Arendt notes, the refugee can only keep a relation to his very human body, when he is still human. As tienne Balibar explains, When the positive institutional rights of the citizen are destroyedwhen, for example, in a given historical context where citizenship and nationhood are closely associated, individuals and groups are chased out of their national belonging or simply put in the situation of an oppressed national minoritythe basic rights that are supposed to be natural or universally human [also] are threatened and destroyed. 5 The refugeeprecariously positioned at the edge of the distinction between the human and the nonhumanbecomes human, merely human (or, as Nietzsche would have it, all too human), only when, no longer human, he is no longer capable of having rights. This is why, in Arendts words, the paradox involved in the loss of human rights is that such loss coincides with the instant when a person becomes a human being in generalwithout a profession, without a citizenship, without an opinion, without a deed by which to identify and specify himself. 6 This reversal of the priority of human rights over political rights belies the contradictions at the heart of the rights of man: if they are supposed to be inalienable and universal, free from the determinations of any particular nation or state, they are also dependent on the sovereignty of that nation or state for their denition, protection, and realization. As Werner Hamacher reminds us in his contribution to this issue, it is this fundamental and unresolvable paradox that allows Arendt to speak of the perplexities of the rights of man. This tension between the universalism and the particularism of human

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rightsforcefully explored in this special issue by Gayatri Chakravorty Spivak among othershelps explain why the universalization of rights and liberties often coincides with their destruction, and with a historical and political process of dispossession and violence that leaves several dierent populations without rights. In response to this tensionand these perplexitiesand in order to maximize the number of persons and peoples in the world that have legal and juridical rights, nation-states might be encouraged to expand and generalize the conditions of citizenship, and therefore of rights and political participation, even if this also would require a reconceptualization of both the nation and the state. In many respects, this call for an expansion of citizenship and rights also already belongs to the beginnings of human rights discourse and, indeed, it is no accident that most genealogies of human rights trace their origins back to the (European) Enlightenment, with its promotion of a commonly shared power of reason and a nascent cosmopolitanism.7 Yet the notion of the free and autonomous individual, often construed, within these genealogies, as a world citizen, coincided uneasily with the contemporaneous emergence and consolidation of the nation-state, founded on the principle of national sovereignty. As Agamben argues, Declarations of rights must be viewed as the place in which the passage from divinely authorized royal sovereignty to national sovereignty is accomplished. 8 Following Arendts suggestion that the fate of human rights is intimately linked with that of the nationstate, Agamben notes that human rights are often formulated and mobilized within the nation-state in order to reinforce its sovereignty. Bruce Robbins and Elsa Stamatopoulou address this relationship among rights, sovereignty, and the state and its minoritized populations in this issue. Even if there are any number of pregurations of the language of human rights in older Eastern and Western, and Southern and Northern sources religious, philosophical, political, and legalthe consensus is that, for better or worse, human rights discourse takes its most recognizable shape in the early days of the French Revolution. The very fact of this genealogy or that there is a genealogy at allreinforces this aspect of the Arendtian perplexities of human rights: that the discourses of human rightsby denition, an aair of universalsare nothing if not time-bound in their articulations, their codications, and their applications.9 Circumscribed by the time and place and, not least, the given language in which its very terms are formulated, human rights discourse speaks of the universal in a mode that is always less and other than universal.10 Perplexity may be too soft a word to characterize the contradictions within

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which the authors and institutions proclaiming the declarations of rights inand inherited fromthe French and American Revolutions operated, and continue to operate. That the lofty discourses of inalienable rights, universal equality, and libertyterms whose conjunction is richly complicated, in theoretical and historical fashion, in tienne Balibars essay in this special issuecould be proered by slaveholders such as Jeerson and Washington is a familiar perplexity, but one not less scandalous for its familiarity. While the founding fathers were declaring all men to be created equal, more than one fth of the people in America were under the yoke of slavery. Such hypocrisy still characterizes a wide array of governments that pretend to be committed to codes of human rights while upholding those principles in grudging, half-hearted, or highly selective fashion, primarily when it suits other political agendas or does not conict with an economic bottom line. It is no accident, then, that a huge share of work on human rights is left to NGOs, institutions outside the nation-states, whose status is far more fragile or precariouseven if, at the same time, and precisely because of their position beyond the nation-state, this status also secures them a measure of authority. In an essay whose title rewrites the French Revolutions declaration as The Rights of the Man and the Rights of the Other, Emmanuel Levinas notes, that the defense of the rights of man corresponds to a vocation outside the state, disposing, in a political society, of a kind of extra-territoriality, like that of prophecy in the face of the political powers of the Old Testament, a vigilance totally dierent from political intelligence, a lucidity not limited to yielding before the formalism of universality, but upholding justice itself in its limitations. 11 One need not ascribe to the NGOs or their workers any of the authority of a biblical prophet to recognize the importance of their position as the others who testify. Indeed, any thought of human rights must seek to understand the role and place of testimony within the practice and protection of such rightsa point that is made and explored in this special issue by Thomas Keenan and Avital Ronell. A number of the authors who contributed to this collectionincluding Ronell and Jacques Rancirefollow the lead of Jean-Franois Lyotard, who not so long ago stressed the importance for human rights of a thinking of the other, and especially in the context of coming to termseven when common terms are precisely what are absentwith the permanent distance between the formalism of the law and the singularity of justice.12 This is why a commitment to the upholding of human rights must entail, as Keenan forcefully argues here, attention to the modalities of how abuses of the rights of others

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get articulated. That spectrum extends from the testimony of a solitary voice to photographs of the disappeared to photo ops and media events, in their varying degrees of being staged. But does the simple fact that the enunciation of human rights is always limited by time, place, and language undermine the claim to universality seemingly inherent to the discourses of human rights? Can and should the language of human rights adapt itself to changing historical circumstances? 13 If one thinks of the human not as some timeless, transcendental essence, but rather as something in a more or less constant process of change, in the mode of becoming rather than being, then the discourses of human rights would themselves not only not be negated by the vicissitudes of history, but they could be considered to be responsive to actual human rights only if they were themselves historical, changing as the conditions of what counts as human, however broadly construed, change.14 This goes against the earliest formulations of human rights, so often couched in terms of natural law, of what must necessarily be common and applicable to all humans, irrespective of time and place. It is partly in response to this historical dimension of human rights that Richard Rorty, among others, has suggested the irrelevance of returning to origins or foundations of a thinking of the human as a way to ground the discourses of human rights.15 He contends that, while there is much to be learned from the metaphysical lineage that stretches from Plato to Kant, there is no need foror possibility tobase a viable notion of human rights on an original or transcendental notion of the human. Rortys avowedly pragmatic position, which simply welcomes the patently desirable things that have come with what he invokes as human rights culture, happily abandons the quest to inquire into the content of the human in human rights. This position would be a more viable one if all the world were pragmatists, to say nothing of pragmatists of a certain sort, but it is hard to get around the almost metaphysical weightiness of the terms of human rights discourse, not least the words and concepts of human and right. Rorty would preferdespite his commitment to a certain ethics, to dialogue, and to the sentimental education of the worlds citizensnot to have to worry too much about the precise terms of these debates, as long as the political consequencesa strengthening of human rights were positive or encouraging. Several of the authors in this issue share something of Rortys historical sensibility, but, by contrast, they articulate a greater urgency and necessity of still struggling with all the charged

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terms of human rights discourse, whether or not they remain embedded in the legacy of the Enlightenment. For them, an analysis that is at once philological, philosophical, historical, and political constitutes the most faithful means of approaching whathistorically, but also from the very beginninghas both persisted and changed within human rights discourse, and within the eorts to realize such rights in history, and in the world. Beyond the tension between the universality and particularity of human rights, another nodal point for human rights discourse is the friction between its emphasis on the rights of the individual and its assertion of the rights of particular communities or groups. To refer to the particular as one pole in the dialectics of human rights discourse, however, is not necessarily to refer to the individual, which, by itself, is not the least crucial of the categories that have come down to us in the Enlightenment tradition of human rights. Some apologists for a certain conception of human rights argue tirelessly for the primacy of the individual in this domain; Michael Ignatie is perhaps the foremost exponent among them. Certainly human rights aim, in principle, to protect each and every human, even though any number of rights provisions now widely accepted as human rights cannot, by denition, apply to all humans. And yet countless human rights violations are visited upon groups of people or individuals as members of a group. What is gained by appealing to the primacy of individual rights? Why does there need to be a hierarchy between individual and group? And why would the individual come rst? 16 In the grossest violations of human rightsthose of genocide (Armenian, Jewish, Tutsi, to name but a few)hundreds of thousands or millions of individuals suered in the most appalling fashion, but they suered because they were members of a certain group. Ignatie (whose work is subjected, in this issue, to a probing critique by Wendy Brown), in his defense, believes in the possibility of intervention in aid of such groups, even if he persists in conceiving of those groups as aggregates of individuals. John Rawls, arguably the foremost theorist of justice in our time, takes up the question of the individual and the group in an inuential essay entitled The Law of Peoples. 17 In it, he addresses to human rights discourse the objection that it might be too circumscribed by ideas or ideologies of Western individualism to apply across the world to any number of societies, including those he calls hierarchical. Whereas a good deal of human rights discourse takes the moral philosophy of Kant as a touchstone, Rawls appeals

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here to Hegels thought as a model, central within Western philosophy, in which rights are primarily conceived in terms of groups: communities, associations, or corporations 18precisely the sort of conception thought to be more typical of non-Western societies.19 Thus Hegelwhose thinking of rights Rebecca Comay analyzes in this issue precisely in the historical conjuncture, the French Revolution, in which the Declaration of the Rights of Man and the exercise of the Terror coexistedstands as one more or less shining example of the necessity to think of rights beyond the concept and fact of the individualand that from within the heart of the West. This is not to say that there is not an ongoing need to question the imposition of certain universalisms, whatever their source, but to suggest that such negotiation need not have recourse to clichs about Asian values or Western individualism, as if these vast regions of the worldand where exactly is the dividing line?were, against all odds, homogeneous totalities. No doubt a good deal of this emphasis on the individual as the focus of human rights goes back to Enlightenment thinking, with its promotion of the autonomous reasoning, acting, andas Susan Maslan underscores in her essay in this collectionfeeling individual. Human rights, as encoded in the incipient documents, such as the Declaration of the Rights of Man and of the Citizen, always rely on a certain conception of the human, and it seems that not all humans share the same conceptions of the human. Maslans essay, in particular, charts an interesting prehistory of the terms that would become crucial in the French Revolutions various declarations. The struggle over such terms seems never-ending and is related to the vexed problem of human rights discourse needing to be minimalto maintain its claims to universalityand wanting to be as inclusive as possible of all particularities, a problem to which we shall have to return. From the moment of its classical formulation in the era of the French Revolution, which is the focus or starting point for a number of the essays gathered here (Maslan, Comay, and Rancire), it is hard to overestimate how much has been at stake in the disjunction between the universal claims of the promulgations of human rights and the less- and other-than-universal character of their circumscribed language, their authors, and, above all, their intended beneciaries. Maslan recalls in her essay the immediate feminist response to the exclusion of women from the discourse of man, as witnessed in the principled response of Olympe de Gouges.20 (Here one could invoke Mary Wollstonecraft as well: she followed up de Gouges swift response to Edmund Burkes A Vindication of the Rights of Man with its nec-

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essary supplement, A Vindication of the Rights of Woman.) A host of critics have drawn attention to the ruses of a masked discrimination that hides behind a theoretical universality lacking any meaningful correlative in actuality. The list of excluded groups subordinated by the machinations and ruses of what Derrida has called white mythologyso often patriarchal, racist, or classist, if not all three at oncecan go on and on, though their piecemeal and tful inclusion in human rights discourse in the two centuries since the French Revolution was partly made possible by their at least theoretical inclusion from the outset. History has, slowly and unsurely, caught up with theory, and better late than never. Even though not all humans are women (or children or members of a minority group, etc.), all womens rights can nonetheless fully be considered human rights. It would be an ungenerous literalism to insist that human rights be applicable to all human beings whatsoever. Yet it does beg the question. When do the rights of a group of humans who are not representative of all humanity become human rights? There is certainly a danger, in the throes of, or in the wake of, what Ignatie calls the rights revolution, in having any number of possibly desirable political goals labeled as human rights.21 It is not impossible, that is, that the expansion or globalization of rightssomething that, in certain contexts, is both essential and desirablecan at times reinforce the discrimination and violence that such rights are meant to redress. As many human rights theorists and activists already have noted, the porous, constantly transforming phenomenon now commonly called globalization is having a profound impact on the discourse and implementation of human rights and its protections.22 Though any number of historians have pointed out that something with a legitimate claim to be called globalization has been going on for centuries now, there is no doubt that the pace of globalization in its various modalities has sped up to the point that the quantitative shifts have accounted for qualitative changes in how nations, and not only nations, of the world operate and perceive themselves to be operating. The increasingly swift movement of words, human beings, goods, and objects across boundaries of all kinds has contributed to a new currency of human rights discourse and its various implementationseven if that currency trades unequally on the world market and is not everywhere fungible. It was not so long ago that Claude Lefort could write, No one can be unaware of the fact that over the great part of our planet, the idea of human rights is either unknownbecause it is incompatible with the com-

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munal traditions which in some cases date from time immemorialor is furiously denied. 23 One would like to have recourse to a story of constant progress for human rights and its discursive codications, but the globalization and mediatization of the phenomenon can even have the opposite eect, as charted expertly in Keenans chilling analysis of Serbian soldiers doing what they did often in full knowledge of having the worlds cameras trained on them. If the mediatic exposure of human rights violations can no longer guarantee their prevention or cessation, however, it is also because the line of complicity between those who commit and enable such violence and those who claim to intervene against it increasingly has been eaced (a point reinforced, even if made dierently, by Rony Brauman,Wendy Brown, Paul Downes, Gayatri Spivak, and Slavoj iek in this collection). As we know, so-called democratic nation-states gradually have presented themselves as guardians of humanity, endowed with the right to war in instances when, in their view, humanity and human rights are threatened and need to be defended.24 From this perspective, a presumably neutral country can, in the words of Jean-Luc Nancy, decide to take leave of its neutrality in the name of human rights and explicitly designate as its enemy, not a people or a nation, but governments judged to be dangerous to the good of all peoples. But, in so doing, it simultaneously reveals a tension between respect for a nation-states sovereignty within its own borders and an armation by the international community of a right to interfere in the matters of certain countries. In order for the decision to go to war . . . in the name of human rights to become a decision (and not a wish), he goes on to explain, it [is] necessary that this decision take form and force in and by way of the sovereignty of a Stateand/or an alliance of States. When one or several States speak in the name of the rights of man, and under this name, put to use the prerogatives of the jus belli, this continues to operate as a sovereign decision (or an alliance of such decisions) . . . this sovereign, in turn, need[s] the legitimacy of human rights in order to establish its decisions and pretensions, which could only be of global dimensions. 25 If the United Nations has been empowered to use force to end serious breaches of international and humanitarian law, this power includes the right to intervene in a states territoryand thereby to violate its sovereignty in the name, and under the authority, of the United Nations Security Councilin order to pursue humanitarian aims. While the idea of humanitarian intervention may be understood in terms of both the desire to enforce human rights law and the desire for compassion to overcome political obstacles such as sovereignty, in practice it has generated its own set of ethico-

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political questions, especially when such an intervention is taken on by a particular nation-state, or an alliance of states, without a mandate from the United Nations Security Council.26 One of the diculties, of course, is that even if we believe that a particular nation-state is labeling its military intervention a humanitarian one as an alibi in order to neglect or ignore international law in the name of national interests, or in response to what it wishes to declare an imminent threat or a dangerous, regional instability, as Michel Feher has reminded us, chances are that the violations of human rights that a Western coalition will use as a pretext for resorting to force will be real enough. 27 This makes it all the more dicult to measure the human rights violations that take place in the name of human rights. The discrepancy between human rights law and humanitarian principles can be seen in the case of sanctions.28 When the United Nations, following the desires and interests of the United States, has imposed economic sanctions on particular countriesIraq, Iran, Cuba, Haiti, South Africa, and Serbia, to name only a fewhumanitarian concern often has been surrendered to strategic political and economic aims, whether it be the overthrowing of a government or the forced resolution of its conicts. The logic of sanctions, Alex de Waal explainsa logic in which inicting human suering is a legitimate way of bringing about desired political changeworks against the neutrality and ethical concerns that are supposed to govern humanitarian activities during conict or wartime. If United Nations Security Council resolutions have insisted that the Iraqi government comply with military, political, and economic demands, for example, they often have done so at the expense of insisting that it also keep its humanitarian obligations. Since its creation in 1992, de Waal notes, the Department of Humanitarian Aairs has not been able to change this set of priorities. This is an indication that the power of the humanitarian international stems from its unwillingness to mount any serious challenge to the EuroAmerican political order. Actually existing humanitarianism is not universalist: it is a servantalbeit an unevenly supervised oneof that same political order. 29 Pointing to the complicity that sometimes exists between humanitarianism and human rights violations, de Waal suggests the ways in which the United Nations Security Council, in the name of redressing what it perceives to be the transgressions of an outlaw or rogue state, can authorize actions that, in turn, can result in violations of international humanitarian law, if not in their reinforcement. This complicity between rogue states and the states that would act to bring them in line with international

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law is at the heart of Derridas recent book, Voyous (Rogues), an excerpt of which is included in this issue. It can be registered by understanding the way in which humanitarian interventions often have become immune to international lawimmune from accusations of human rights violations or war crimes committed in the name of the humanitarian actionand therefore, at times, a euphemism for military intervention, and even when such intervention is questioned and challenged by this same legal system. It also is legible when the international community, on the one hand, declares its commitment to democracy and to the protection of human rights and, on the other hand, as Feher has noted, fails to stop the genocide of the Tutsis in Rwanda and the ethnic cleansing campaigns launched by the Serbian regime in the former Yugoslavia . . . the systematic slaughter of civilians in Algeria, Russias brutal reaction to Chechnyas declaration of independence, the civil wars that devastated Liberia, Somalia, and Burundi, and the reigns of terror imposed by the rebels in Sierra Leone and the Taliban in Afghanistan. 30 These are only a few of the most devastating episodes of the last ten to twenty years. What this complicity suggests is that we still have not overcome the perplexities of human rights and human rights discourse. The defense of human rights and international justice is inevitably entangled with their transgression, and perhaps especially because there can be no single denition of human rights, and this despite their having thrived by virtue of what Ignatie calls their minimalism. One major diculty in negotiating the claims of human rights lies in respecting the minimalism of what can truly count as human rights (and not just any list of desirable things) and in having at the same time an expansive enough conception of those rights so as to come closer to the dream of justice for all. In this respect, it is instructive to look at what the United Nations Commission on Human Rights has identied as particular kinds of human rights and abuses of rights well beyondbut related to or arguably contained withinthe general and more abstract categories of life, liberty, and their protection. Here, given in the order each mandate was established, is a partial list of more specic, targeted concerns: Disappearances (1980), Arbitrary Executions (1982), Arbitrary Detentions (1985), Torture (1985), Religious Intolerance (1985), Freedom of Opinion (1987), Mercenaries (1987), Sale of Children (1990), Internally Displaced Persons (1992), Extreme Poverty (1992), Right to Development (1993), Racism (1994), Independence of Judges and Lawyers (1994), Foreign Debt and Economic, Social and Cultural Rights (1994), Toxic Wastes (1995), Structural Adjustments and Economic, Social, and Cultural Rights (1996),

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Right to Education (1997), Children in Armed Conict (1997), Right to Highest Attainable Standard of Physical and Mental Health (2000), and Fundamental Freedoms of Indigenous People (2001). It goes without saying that the drafters of the Declaration of the Rights of Man and of the Citizen can be forgiven for not having included such categories as toxic waste among the things from which men and citizens needed to be protected. We have stressed earlier in this introduction that the proliferation of rights that we call human rightseven when they are nowhere expressly included in the original promulgations of rights need not be thought of as less than human rights because of their latter-day status. Emmanuel Levinas takes this point further in a strong and provocative defense of modern rights, which bears quotation at some length: Behind the rights to life and security, to the free disposal of ones goods and the equality of all men before the law, to freedom of thought and its expression, to education and participation in political powerthere are all the other rights that extend these, or make them, concretely possible: the right to health, happiness, work, rest, a place to live, freedom of movement, and so on. But also, beyond all that, the right to oppose exploitation by capital (the right to unionize) and even the right to social advancement (utopian or Messianic) to the renement of the human condition, the right to ideology as well as the right to ght for the full rights of man, and the right to ensure the necessary political conditions for that struggle. The modern conception of the rights of man surely extends that far! True, it is also necessary to ascertain the urgency, order and hierarchy of these various rights, and to enquire as to whether they compromise the fundamental rights, when all is required unreectively. But that is not to recognize any limitation to the defense of these rights: it is not to oppose them, but to pose a new problem in connection with an unquestionable right, and, without pessimism, to devote necessary reection to it. Thus the dynamic and ever-growing fullness of the rights of man appears inseparable from the very recognition of what are called the fundamental rights of man, from their requirement of transcendence, in a sense, of the inhuman that may be contained in pure nature, and of blind necessity in the social body. The uniqueness and irreducibility of human persons are respected and concretely armed by the diminishing of the violence to which they are exposed in the order, or disorder, of the determinism of the real.31

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Levinas expresses the general, enlightened tendency to embrace new rights thought to be consistent with, but not limited to, the fundamental rights characteristic of the original declarations proclaimed in the Enlightenment. But the passage also demonstrates the possibilities and perplexities of determining the terms of human rights. It is one thing to posit as universal the right to life but what of the right, however admirable, to oppose exploitation by capital, expressed rst as a general principle but then glossed in parentheses as the right to unionize? Is this right only implied in the desirable but perhaps not universally recognized right not to be exploited by capital, or is it the very paradigm of this right? Or does the very term exploitation itself imply universal assent? Who could possibly be in favor of exploitation, even if many might disagree what constitutes exploitation by capital? The new or modern human rights point to a paradoxical situation that besets them as well, but in a perhaps less obvious way, namely, that human rights are claimed. Some years ago, Thomas Keenan, rather in the spirit of Derridas analysis of the American Declaration of Independence, provided an economical analysis of the problematic of the strange necessity of claiming what should not, in principle, have to be claimed at all: human rights.32 Keenan recalls Foucaults analysis of how the language of modern human rights has a way of outliving itself, beyond the older paradigm of sovereignty within which the original rights were articulated. But the situation of these new rights, no longer thought to be guaranteed in epistemological terms, have to be claimed all the more, if that is possible. And in this new situation, all the factors that come into play with speech acts generally, as noted in J. L. Austins theory of speech acts, beset the language of claiming: who gets to claim rights, how, when, where, and in what conditions of enunciation and reception. This encourages us to focus our attention on matters of authority and politics in a domainhuman rightsthat ought to be, in principle, universal, and to that extent beyond politics. One index of the ux of human rights discourse is legible in the decision to award the 2003 Nobel Peace Prize to Shirin Ebadi. In the past, the Nobel Laureates for Peace have been overwhelmingly awarded to persons judged to have ameliorated large-scale conicts between nations or blocks of nations. Ebadi, however, was acknowledged primarily for having campaigned for human rights causes in her native Iran. Might this mean that the protection of human rights is a matter of peace, that there will be, in eect, no peace until human rights abuses are eliminated or contained within all the sovereign nations on the planet? Ebadis winning of the Nobel Prize for Peace points to an important conuence of globalizing and cosmopolitan

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forces that have conspired to make human rights matters in any given country (despite the hierarchy of nations in various media and governmental and NGO schemes worldwide) a matter of potentially global concern. If the good fortune, such as it is, of Ebadis winning stands as one emblem of the new status of human rights in the worlds consciousness, the lamentable fate of Brazilian Sergio Vieira de Mello could be its negative pendant. Named the United Nations High Commissioner on Human Rights in September 2002, Vieira de Mello was killedmurderedin August 2003 by a bomb in Baghdad, while he was acting as Special Representative of the secretarygeneral of the United Nations to Iraq. His death would not have occurred without the human rights violations of the Hussein regime but also perhaps not without the sometimes disingenuous manipulation of human rights discourse in the West. The U.S. government still claims to be outraged by Iraqs gassing of its Kurdish people, but aid to Iraq was doubled, late in the Reagan administration, after news of the gassings was well known to those deciding on this aid. Thus, the human by no means always counts with the same force in invocations of human rights, or in their absence. This is why the question of human rights remains at the heart of any politics or ethics that concerns itself not only with who we are, but also with what it means to live in a world in which the call for human rights and humanitarian intervention is not always made in the name of preventing the dispossession of rights that so often denes the conditions of our human existence. If Benjamin were alive today, he might remind us that there is no document of humanitarianism that is not at the same time a document of inhumanity, inequality, and violence, and that the human rights activist should therefore dissociate himself or herself from it as much as possible.33 If the projects and discourses of human rights do not wish to throw this counsel to the wind, they will have to dene themselves continuously against the inhumanity, inequality, and violence that threaten them from within as well as from without. Always and at once motivated by humanitarianism and democracybut a humanitarianism and democracy that would correspond to other, and more just, forms of humanitarianism and democracy than those we have with us todaythey would begin in an aporetic praxis, one that would take its point of departure from the perplexities of human rights. They would seek to inaugurate a world in which racisms, nationalisms, class ideologies, and economic oppressions of all kinds would no longer exist, and would ask us to imagine what the world has never oered us: absolute freedom, justice, equality, and rights.

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Notes
1 See Autoimmunity: Real and Symbolic Suicides: A Dialogue with Jacques Derrida, trans. Pascale-Anne Brault and Michael Naas, in Philosophy in a Time of Terror: Dialogues with Jrgen Habermas and Jacques Derrida, ed. Giovanna Borradori (Chicago: University of Chicago Press, 2003), 13233. 2 Cited in Michel Feher, Powerless by Design: The Age of the International Community (Durham: Duke University Press, 2000), 29. 3 Hannah Arendt, The Origins of Totalitarianism (New York: Meridian, 1958), 297. 4 See Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel HellerRoazen (Stanford: Stanford University Press, 1998). Following Arendt, Agamben discusses the problem of the refugee as a challenge to the thinking of human rights in his essay Beyond Human Rights, in Means without Ends: Notes on Politics, trans. Vincenzo Binetti and Cesare Casarino (Minneapolis: University of Minnesota Press, 2000), 1528. 5 Balibar, Outline of a Topography of Cruelty: Citizenship and Civility in the Era of Global Violence, in We, the People of Europe? Reections on Transnational Citizenship, trans. James Swenson (Princeton: Princeton University Press, 2004), 119. For an exemplary analysis of what is at stake in this articulation or disarticulation between man and citizen, see Balibars Rights of Man and Rights of the Citizen: The Modern Dialectic of Equality and Freedom, in his Masses, Classes, Ideas: Studies on Politics and Philosophy Before and After Marx, trans. James Swenson (New York: Routledge, 1994), 3959. 6 Arendt, Origins of Totalitarianism, 297. 7 To be sure, many trace the origins of rights discourse much further back. Of late, much attention has been focused on the crucial, if vexed, role of St. Paul in formulating a universalist discourse of rights or proto-rights. Slavoj ieks essay in this collection addresses this legacy and, in doing so, positions itself in relation to the urry of recent or recently translated works on St. Paul by Jacob Taubes, Daniel Boyarin, Giorgio Agamben, Antonio Negri, Alain Badiou, and others. 8 Agamben, Homo Sacer, 128. Needless to say, not quite all nations so quickly or ever left behind a sense of divine authorization, nor the form of monarchy. Agamben refers to the enormity of the paradigm shift, whose eects, as he well knows, were not total. 9 Arendt, Origins of Totalitarianism, 290. 10 On the problem of translating the terms of human rights discourse, with an eye especially on China, see Lydia H. Liu, Human Rights in the Other Tongue, in Social Insecurity, ed. Len Guenther and Cornelius Heesters, an Alphabet City Book (7) (Toronto: Anansi, 1999), 4950. For a fuller exploration of this and related issues, see her essay Legislating Universalism: The Translation and Round Trip Circulation of International Law in the Nineteenth Century, in Tokens of Exchange: The Problem of Translation in Global Circulations, ed. Lydia H. Liu (Durham: Duke University Press, 1999). 11 Emmanuel Levinas, The Rights of the Man and the Rights of the Other, in his Outside the Subject, trans. Michael B. Smith (Stanford: Stanford University Press, 1993), 123. 12 Jean-Franois Lyotard, The Others Rights, in On Human Rights, ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 13547. 13 For a valuable collection of essays on the changing constellations of human rights issues, see Historical Change and Human Rights (Oxford Amnesty Lectures, 1994), ed. Olwen Hufton (New York: Basic Books, 1995). It includes essays by Carlo Ginzburg, Eliza-

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14

15

16

17 18 19

20

21 22

beth Fox-Genovese, Orlando Patterson, Emmanuel Le Roy Ladurie, Robert Darnton and others. See Richard Rorty, Human Rights, Rationality, and Sentimentality, in On Human Rights (Oxford Amnesty Lectures, 1993), ed. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 11134. This discussion of the human within human rights is inseparable from the question of the inhuman (something touched on in both Rancires and Ronells contributions). In general, however, are we not altogether too casual in the way we toss around the word inhuman ? We like to call inhuman those people or those actions of people we nd morally or politically repugnant, but there is little getting around the fact that these people and their actions are human; or rather, like all of us, and perhaps more precisely, both human and inhuman at the same time. It is only a slightly better version of the discursive policing of the human and its extremely dubious exclusions that, as Hamacher points out in his contribution to this issue, have a foundation in Aristotles thoughts on the polis. For an elaboration of the relation between the human and the inhuman, see Lyotards The Inhuman: Reections on Time, trans. Geo Bennington (Stanford: Stanford University Press, 1992), 11134. For a relatively succinct articulation of Ignatie s inuential position on human rights, see the rst two essays by him in Michael Ignatie, Human Rights as Politics and Idolatry, ed. Amy Gutmann (Princeton: Princeton University Press, 2001). The volume also contains responses to Ignatie by Kwame Anthony Appiah, David A. Hollinger, Thomas A. Laquer, and Diane F. Orentlicher. For an analysis of why and how human rights need not be thought of only or primarily in terms of the individual, see Claude Lefort, Politics and Human Rights, in Lefort, The Political Forms of Modern Society, ed. John B. Thompson (Cambridge: Polity Press, 1986). In John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge: Harvard University Press, 1999), 52964. Rawls, Collected Papers, 553. See, for example, R. J. Vincent, The Idea of Rights in International Ethics, in Traditions of International Ethics, ed. Terry Nardin and David Mapel (Cambridge: Cambridge University Press, 1992), 26265. This is the source to which Rawls appeals. For a splendidly informed analysis of the position of women in France in the era of the rights of man, see Joan Wallach Scott, Only Paradoxes to Oer: French Feminists and the Rights of Man (Cambridge: Harvard University Press, 1996). Michael Ignatie, The Rights Revolution (Toronto: Anansi, 2000). On the consequences and prospects of globalization for human rights, see the often incisive collection, Globalizing Rights, ed. Matthew J. Gibney (New York: Oxford University Press, 2003). Another relevant, wide-ranging collection is Globalization and Human Rights, ed. Alison Brysk (Berkeley: University of California Press, 2002). See also the section entitled Citizenship and Civility: The Question of the Right to Have Rights in Balibars Outline of a Topography of Cruelty, 11720. For an authoritative series of analyses of the status of human rights and its attendant discourses across the various regions of the world, see The Universal Declaration of Human Rights: Fifty Years and Beyond, ed. Yael Daniele, Elsa Stamatopoulou, and Clarence J. Dias (Amityville, NY: Baywood, 1999), especially part 5, Interface between Global and Regional Protection and Promotion of

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23

24

25 26

27 28 29 30 31 32

33

Human Rights, featuring essays by M. Adama Dieng, Susanna Chiarotti Boero, Vitit Muntarbhorn, Gudmundur Alfredsson, Malgorzata Fuszara, and Vaclav Havel. See Claude Lefort, Human Rights and the Welfare State, in his Democracy and Political Theory, trans. David Macey (Minneapolis: University of Minnesota Press, 1988). The situation has improved somewhat since the writing of Leforts essay. One recent and tting emblem of the contradictions that can arise from a nations selfdescription as a guardian of humanity might be Guantnamo Bay, the o-shore human rights shelter, leased by the United States from Cuba, so that prisoners can be held by the United States, but somehow outside the legal constraintsincluding those of being able to detain suspects only after having formally declared the charges under which they are being heldthat normally would be in place within the country proper. Refusing to sign the treaty that would establish an International Criminal Courtand thereby refusing to be held to an international standard for the treatment of its prisoners (renamed enemy combatants in order to elude the protections of the Geneva Convention), the United States has transgressed international law, even while invoking it. And this from a nation that is presumed to have been attacked because, as the Bush administration repeatedly states, it stood as a beacon of freedom. For a recent analysis of the paradoxes of the Bush administrations rhetoric in relation to Guantnamo and international law, see Joan Dayan, Servile Law, in Cities Without Citizens, ed. Eduardo Cadava and Aaron Levy (Philadelphia: The Slought Foundation and the Rosenbach Museum, 2003), 87117. See Nancy, War, Right, SovereigntyTechne, in Being Singular Plural, trans. Robert D. Richardson and Anne E. OBryne (Stanford: Stanford University Press, 2000), 12324. Alex de Waal suggests that there are three important ancestors of contemporary humanitarian action: the use of international relief as an instrument of politics, famously encapsulated by Henry Kissingers 1976 remark that disaster relief is becoming increasingly a major instrument of our foreign policy . . . private charity for the relief of suering . . . and the International Committee of the Red Cross. See his book Famine Crimes: Politics and the Disaster Relief Industry in Africa (Bloomington: University of Indiana Press, 1997), 6768. For an elaboration of this ancestry, see Rony Braumans contribution to this issue. See Feher, Powerless by Design, 21. We are indebted in this paragraph to de Waals discussion of what he calls the logic of sanctions. See Famine Crimes, 153. Ibid. Feher, Powerless by Design, 32. Emmanuel Levinas, The Rights of the Man and the Rights of the Other, 12021. See Thomas Keenan, Fables of Responsibility: Aberrations and Predicaments in Ethics and Politics (Stanford: Stanford University Press, 1997), especially the section entitled Claiming Rights, 3742. We allude here to Benjamins famous declaration that there is no document of civilization that is not at the same time a document of barbarism and that this is why the historical materialist therefore dissociates himself from it as far as possible. See On the Concept of History, trans. Harry Zohn, in Selected Writings, Vol. 4, 19381940, ed. Howard Eiland and Michael W. Jennings (Cambridge: The Belknap Press of Harvard University Press, 2003), 392.