I gave this talk to about 60-70 second year students in the OSU Mount Scholars program yesterday, 3/2/11.
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Imagine:
Major world events beyond individual and small group control prompts an exodus of a minority population from one geographical location into continental Europe. This group is met with hostility – they are asked to give up their religion and culture. When they don’t respond by enthusiastically changing the things that make them a distinct people, small bands of organized thugs begin burning their homes and destroying their businesses. When things get really bad, the minority group engages in small-scale rioting, further fueling the image of them as a criminal, outcast people infecting the social body. Eventually, they are rounded up and put in detention camps, some are deported, and others are imprisoned.
[Show of hands] How many of you might agree that I am describing Nazi Germany in the 1930s and 1940s?
You are all correct. How many of you know that I am also describing France in 2010, or with the change of a few details, the United States or Australia? Clearly, there are differences between the way modern Western countries deal with problems of citizenship, immigration, and deportation and the Nazis. But the formal similarities are hard to ignore, and immediately bring us into the realm of ethics. What is the proper justification for imprisonment and deportation? Is it moral to single out an ethnic or cultural minority for such policies? When do national interests win out over concerns of human dignity, and when do questions of human rights triumph over national (or international) interests?
The fundamental problem that confronts us when discussing human rights is that it has become so ingrained in the way that we think that we often cannot imagine that Western countries are guilty of violating them all the time. It is something we tend to think happens “out there,” in places like Darfur, Burma, China, or Afghanistan. But our tendency to “Other” the violation of human rights is precisely what the very notion of human rights was designed to combat.
But I’m getting ahead of myself, however, so let me back up.
I’ll start with a story. Well, I’ll get to the story, but I should start instead with some history:
Around the year 1000, a group of people left an area of Northwest India and began to move Westward. By the middle of the millenium, this group was firmly established in what we know of today as the European Union – notably, the countries of Germany, France, Spain, and a little later, England. Due to their darker skin and strange cultural customs, they did not fit in well in Europe. Eventually a name developed for these people that we are all familiar with today: Gypsies. This title, a shortened version of an older mis-identification, a catch-all term for the entire Orient, comes from “Egyptian.” Some of this minority group self-identified as Gypsy, others called themselves Travelers, others didn’t have a term to describe themselves at all. Today we call Gypsies by their ethnic identifications – typically Roma or Romani, one distinct ethnic group, or another, the Sinti.
This group lived a tenuous existence in Europe for a very long time. England, for example, had laws against consorting with Gypsies and frequently deported anyone suspected of being a Gypsy – in the 1600s. [Mind you, this is a significant fact, since the notion of deportation didn’t really exist as such, because the notion of a stable territorial state was only just beginning to develop.] Gypsies lived on the margins of European life for centuries: they lived in mobile caravans, not necessarily by choice but because they were usually run out of wherever they tried to settle. [Interestingly, several cultural forms we tend to associate today with European cultures had their origins in Gypsy culture - most notably is flamenco, a dance we usually associate with Spain.]
Gypsies were seen as the first immigrants in Europe, and I use the term “immigrant” very consciously. “Immigrants” did not really exist the way we know them today until the beginnings of industrialized society, where mass exodus from one place to another began to be seen as unnatural, or driven by something other than fleeing war or famine (as a rule). With industrialization rose another phenomenon, the solidification of borders and the development of systems of border control. Only then did we get “immigrants.” Gypsies, however, were always seen as outsiders who had no permission to be, well, just about everywhere.
Gypsies were blamed for all sorts of social ills, and were the sources of many legends. Gypsies were at times associated with the onset of plague or other epidemics. They were associated with criminality; worse, they were deemed incurable criminals, the very worst of the worst. These stereotypes persisted for centuries, culminating in the 1940s.
Everyone knows about the Holocaust, I assume, and the 6 million Jews killed in camps like Auschwitz-Birkenau, Dachau, and many other places. I wonder if you know that Gypsies were also the target of a genocidal campaign as well during the Final Solution. While it has been harder to document the disappearance of Gypsies during the Third Reich, it is estimated that at least 250,000 were killed. As a proportion of the population this was higher than any other targeted social or ethnic group in Europe except the Jews.
The Holocaust came to symbolize all that was wrong with the modern conceptions of rights based on citizenship or membership in a nation-state (which I will discuss a bit later). In the wake of this crisis of fantastic proportions, a series of international or supranational instruments were created to hopefully prevent the wholesale slaughter of ethnic minorities, political undesirables, or other targets of systematic marginalization and dehumanization.
I wanted to spend some time on this history because it should help us recognize the humanitarian and rights crisis that occurred last year in France.
So, finally, I get to my story:
In July of 2010 the French police shot a young Romani man to death. The French authorities claimed that the 22-year-old Luigi Duquenet did not stop his car at a police checkpoint, and in the process of running the barricade knocked over a gendarme. The gendarmes, a division of the French police services, opened fire and killed Duquenet. In response, dozens of Roma rioted in the small city of Saint Aignan, wielding hatchets and iron bars as they confronted authorities at a local police station.
The Roma who rioted in 2010 were not unjustified in their displeasure. Racial profiling by the police, draconian laws against the ability to gain lawful employment, and continued social and cultural alienation has made life hard for the Roma in Europe generally, France specifically. This shooting seemed to be the last straw. Like many Western states currently, however, the situation was not met with introspection or the affirmation of the post-war regime of human rights, economic liberalization, and multiculturalism. Instead, President Sarkozy’s government soon responded with a “crackdown on illegal camps,” claiming that the camps were “sources of illegal trafficking, of profoundly shocking living standards, of exploitation of children for begging, for prostitution and crime.” The crackdown was ostensibly aimed at all illegal encampments in France, but in practice and policy targeted the Roma specifically.
As several scholars have pointed out over a number of years, most Roma in the European Union are citizens of the countries in which they reside, including France, and live in permanent housing, not in camps or caravans; however, a minority of Roma are recent arrivals from Romania and Bulgaria who do not always appear ‘normalized.’ In the twenty years or so following the destruction of the Berlin Wall, there was an influx of Romanian and Bulgarian Roma to France, Germany, and Great Britain; after Romania and Bulgaria’s entry into the European Union in 2007, this number increased even more.
Sarkozy has argued that the expulsions were to be “voluntary repatriations,” but as numerous media and non-governmental organization accounts have shown, many Roma have been ‘agreeing’ to leave France quite literally as their makeshift homes are bulldozed to the ground or wheeled away by contracted companies . Voluntary expulsion has included a plane ticket to Romania or Bulgaria and 300 euro per adult and 100 euro per child. Part of this process included the identification of ethnic Roma by the state, their arrest, detention in camps, and for many, voluntary and involuntary deportation.
The controversy has raised numerous questions about human rights, citizenship, and immigration. The European Union is, literally, founded upon declarations of the free movement of goods, free movement and settlement of Member State citizens, and the protection of human rights at the expense of absolute sovereignty. The Roma, being citizens of a Member State and a minority ethnic group having experienced years of documented prejudice, expulsion, and genocide, were cast as immigrants in a place which, arguably, they had every right to be.
How do we understand this? What is going on between the levels of state and citizen, of international law and national law?
So, tonight, I would like to accomplish three things.
1) First, I want to briefly explore human rights through their historical development as a concept – plenty of documentation tracing the treaties, declarations, and other major developments exist,2 so it seems better to focus on the idea of human rights.
2) Second, I want to try to separate out the discourse of “rights” from the discourse of “human rights” as they appear to me to be distinct.
3) Third and finally, I want provide a view of human rights that is not based in the establishment of specific forms of government or through international human rights instruments, but instead a view of human rights as affirmed in events.
So, first, to fully understand what is going on in the illustrative story of the Roma expulsions, we need to explore the foundations of what we think of as “rights” and how “human rights” developed within, alongside, and separately from what we in America think of as “individual rights.”
The idea of human rights has roots in a legal tradition that reaches back deep into human history. A number of legal codes have granted “rights” to individuals, at least through the accepted practice of permitting what is not said to be prohibited. Early legal codes, such as the Hammurabi Code and the laws of Judaism, were largely based around the prohibition of specific actions; this kind of prohibition implied a permissiveness that can be interpreted as a positive endowment of rights as personal and collective freedoms. However, this notion of personal and collective freedom is a modern concept that we tend to place onto history, rather than being immanent to the early legal codes themselves. The Babylonians and early Jews had little conception of individual freedom, as the cultural expectations of what was permitted constrained human action through an extra-legal norm. They had even less tolerance for group deviation from such norms.
Early legal codes gave way to Medieval forms of governance where law granted rights upon the sovereign more than upon the individual. Natural law as derived from god served more as a normalization of hierarchy, beginning with the king and ending with some form of exclusion; this basic form did not change much, although the specifics have varied greatly over the course of the millennium. What was “natural” about these legal codes was that the king or sovereign was granted some form of unchallengeable authority; personal freedoms were “granted” largely through the sovereign’s ignorance of and indifference toward the everyday lives of his subjects.
Individual rights as we know them today have their roots in a series of events and documents developed between the signing of the Magna Carta in 1215 and the liberal revolutions in America and France in the late 1700s. Over this time period, coinciding shifts in art, philosophy, and what we would call today political science decentered the divinely inspired natural rights of the sovereign to include the rights of individuals, grounded in humanism.
Especially by the 16th Century, the Enlightenment began to change our notions of the origins of law. Law was no longer a direct line from the will of god to the actions of people, but instead an aspect of the natural order, divine only inasmuch as god created the world and man, and set a natural progression in motion culminating in Rationalism. This is not a popular history, right now in the United States; but the history of Enlightenment Rationalism that birthed the Constitution was one in which the human was elevated and projected as the highest instance of the good. So we moved from a divine natural law to a rational natural law.
Enlightenment philosophers, such as Rousseau and Locke, developed the idea of the social contract, which established a necessary relation between government and individual. The social contract of the Magna Carta was implicit, largely by simply limiting the power of the king. The social contract of the US Constitution and the French Declaration of the Rights of Man and Citizen drew a direct relation between the will of the people, or consent, and the right to govern. Consent implied dissent, and the first move to constitutionalize an enumerated set of rights natural to a people was established.
The US Constitution sets forth rights, but embeds them within the context of the new government created within the document. Indeed, the Declaration of Independence, an influential document but one largely considered to be unenforceable, went further to establish the rights of man as man. However, it is the French Declaration that serves, to this day, as the inspirational document of human rights philosophy, agreements, and enforcement. Note the differences in the preambles:
Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Notice, there is no mention of rights; rights are instead enumerated within and after the document, situating those rights as secondary to the form which guarantees them (i.e. the separation of powers, representation, then freedom of press, and so on).
French Declaration: “The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen:” Note here, the form is secondary to the notion of rights which gives rise to government. It works in the opposite direction than the US Constitution.
In practice, neither the US Constitution nor the French Declaration were immediately realized. Slavery, inequality, and war continue to afflict both countries, although the historical specificities of these may have changed.
The primary catalyst for the modern institution of what we know today as human rights was the experience of World War II. As I’ve already mentioned, Nazi Germany targeted millions of people the regime deemed undesirable. The Holocaust exposed the limits of our traditional notion of sovereignty, which limits outside interference into a country’s internal affairs. Other than a pre-emptive declaration of war, there were no institutions or mechanisms through which to intervene in Germany before 1939 when it invaded Poland. In the wake of WWII, the creation of the United Nations was meant to establish the institutions and mechanisms to balance national sovereignty with supranational norms.
The ascendant regime of human rights throws our discussion of rights so far into question. Rights, as they developed from the Magna Carta through World War II were guaranteed not by our humanity, but by our inclusion in a particular political community. Our membership in a specific nation-state guaranteed our access to rights, which is why “stateless people,” such as the pre-war Jews, the Roma and Sinti, and refugees today, so often have their human rights violated. Indeed, the perpetrators of human rights violations tend often to be nation-states themselves. Simply stated, the tradition of rights based on the social contract assumes an inside and an outside: those with access to rights, and those not protected by the rights of a specific polity.
Human rights, though, are grounded in the very fact of our being human, and as such are a universal demand. We can think about the difference between “rights” and “human rights” this way:
1) Rights discourses are circular. Circles are bordered, with a closed line forming an exterior and an interior. The constitution of the circle is not arbitrary, to be sure, and is only additive by increasing in diameter. Common sense would tell us, then, that if we just make the circle big enough then eventually it will be “big tent” enough to encompass all of humanity. But, for reasons I will return to in a moment, as the circle of rights gets ever larger, the circle gets weaker and weaker and eventually implodes upon itself. A global cosmopolitan regime of “rights” is impossible.
2) Human rights discourses are not circular, because the demand of “the human” in human rights prevents us from closing the circle. “Rights,” as a circular phenomenon, is an enclosure, a foreclosing of possibility because it sets off an outside, a “that which cannot be.” Human rights, though, will always confront us with the problem of the spectacular other who must be. The notion of grounding rights in our humanity means we must adapt human rights to difference, rather than adapting difference to fit our conception of rights. This is the great difference in the traditions inaugurated by the Constitution rather than the French Declaration. The United States has increased the global reach of “rights” – there is no doubt about that – but by molding the world in its image, which has generated many more human rights crises than it has solved, I think. The tradition more directly influenced by the French Declaration has been more open – and certainly more problematic in some ways. [The United Nations’ perceived weakness on some issues, such as during the lead up to the Iraq War, stems in part from its hesitancy in taking hard moral stances when different forms of life are put up against one another.]
Now, these are somewhat crude distinctions, and I do not intend to construct a hierarchy here where the US, UN, or France, or whatever ends up on top. I am trying to lay out a distinction between “rights” and “human rights.” A discourse of rights can solve disputes by ultimately coming to a concrete solution based on the norms, laws, and cultures within a closed community. A discourse of human rights, however, cannot solve problems, because any time a norm is settled upon, we will be confronted with a new person or group that challenges our notion of what humanity IS, and the grounding of rights in the human body means we MUST respond with openness.
So to review for a moment: Rights discourses are easily historicized, and we do this all the time when we teach American history versus world history, or have a public debate about gay marriage, and so on. Human rights also have a history, but they appear timeless, since the human body appears timeless. Grounding a notion of rights in the very idea of humanity, in the very bodily existence of the person, human rights, then, puts its own history under erasure. The immediate “cause” of human rights in international law was the experience of the Holocaust in World War II. Coming out of the first fully modern war, where not only Nazi archives opened up the possibility of imagining the Holocaust but the presence of the image of Auschwitz and Bergen-Belsen, Sobibor and Ravensbruek burned it into our memories, it was a natural (if not uncontested) development to try to move the sanctity of human life into the center of a new international politics.
So, in 1948, the new United Nations declared:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if a man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas member states have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now therefore, the General Assembly proclaims This Universal Declaration of Human Rights as a common standard of achievement for all peoples and nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among peoples of territories under their jurisdiction.”
If we return to the opening story, of the Roma in France, we can now see some distinct questions opened up by our tracing of the history of human rights. First, who guarantees basic human rights when a group is largely considered stateless? France didn’t want the Roma, nor did Romania or Bulgaria. Second, even if we accept the (largely undocumented) charges that Roma in France were engaged in criminal enterprises, how do we distinguish when their human rights might conflict with their citizenship rights, and which discourse of rights gets precedence?
Trying to negotiate between citizenship rights and human rights has been notoriously difficult. States have been slow to open up to supra-national agreements on human rights because they fear they will give up too much sovereignty. This has been the case for the United States’ refusal to join with the International Criminal Court, among other notable problems. It has also opened up the space for a paradox, the notion of humanitarian intervention. The United States’ intervention in Somalia in the early 1990s demonstrates the problems here: the US goes in with the goal of stopping a genocide; in the process, a battle ensues where 19 Americans lose their lives and hundreds of Somalis are killed. The act of going to war in order to prevent killing is paradoxical, and this cannot be overcome by reasoning our way out of it (even if there were times we could get clear mandates from the international community).
The paradox of humanitarian intervention highlights the problem of using human rights as a normative ethic around which we could construct some sort of international order grounded in human dignity. It is certainly a wonderful goal; but it can only ever be a goal, and no notion of progress will ever get us there.
Instead of this normative order of human rights, I propose that human rights cannot be a system through which we govern. It must be a performative order, wherein human rights are demonstrated and affirmed in EVENTS.
A final example will suffice, and then I will close:
The current revolutions sweeping across North Africa and the Middle East have largely not been articulated through the discourses of rights or human rights. In Libya, Tunisia, Algeria, Bahrain, Jordan, Palestine, and elsewhere since December, people have been rejecting dictatorial/monarchical rule. It is clear that they are rebelling over the lack of jobs, the rise in food costs, and the historical theft of common wealth by rulers. The debates in the US about whether we can credit President Bush’s “freedom agenda” or President Obama’s speech or Wikileaks for the uprisings misses the point entirely. It was not the promotion of human rights discourses or the pressure felt from new media – although these things no doubt amplified the situations – it is the everyday demonstration of the affirmation of human dignity through revolt that is significant here. Articulating human rights as an a priori formula for years produced a discourse of Arab apathy and lack; therefore, when the Arab world rises up in revolt we need a causal explanation: “it was Bush, no it was Obama, no it was wikileaks/twitter/facebook!”
Changing the way we think about human rights is necessary. They are not universal in the sense of being innate to some thing called humanity, because closing that circle will always produce an outside, thereby replicating the very logic upon which genocides are built. Human rights cannot be a normative stance for politics, because then we play into the paradox of humanitarian intervention of killing in order to save lives. Nor can human rights be an ethical standard, because then we assume a solution exists for competing claims as to what human rights actually are. Instead, human rights are universal in the event, when the community of beings we call humanity can look and say “yes, human rights are being violated here.”
Reframing human rights through the event allows us to name human rights crises and justify a response immanent to the conflict at hand. For example, in Libya, it seems that an armed struggle against Gaddafi is justified for the moment; whereas the humanitarian crises in France in 2010 or the ongoing crisis in the United States – where we jail a greater proportion of our population than China – do not seem to warrant armed intervention. Inverting human rights from ethical and political norm to the affirmation of an event removes the paradox of humanitarian intervention, because we are no longer in the realm of moral absolutes, which are so easily nullified.
To conclude this evening, I would like to pose a few questions.
1) When we imagine the world as we want it, what is it that we see?
2) What does justice look like?
3) What order of law rules?
4) How do individuals live together in community, and how do communities co-exist?
These are not questions that can be answered by appeals to universal human rights. These are questions that can only be answered in the demonstration of universality that the struggle over defining human rights opens up.
