Multipolarity Multipolarity

The Future of Human Rights11. This article is partially based on Rodríguez Garavito (2014a, 2014b).

César Rodríguez-Garavito

From Gatekeeping to Symbiosis

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ABSTRACT

The international human rights movement faces a context of uncertainty due to: (i) the rise of a multipolar world with new emerging powers, (ii) the emergence of new actors and legal and political strategies, (iii) the challenges and opportunities presented by information and communication technologies, as well as (iv) the threat posed by extreme environmental degradation. The author first reviews the critical literature on human rights, highlighting how these transformations are unsettling prevailing structures and practices in the human rights field such as: the hierarchical nature of traditional human rights discourse and movement, asymmetry between North and South organisations, over-legalisation of human rights language, and the lack of concrete assessments of human rights outcomes. The author identifies two responses to these critiques among human rights practitioners: denial that defends traditional boundaries and gatekeepers, on one hand, and reflexive reconstruction that reimagines practices and boundaries to generate productive symbiosis among diverse human rights actors, on the other. Overall, the author favours the latter approach, arguing that human rights practitioners should strive to create a human rights ecosystem. This approach seeks strengthen the collective capacity of the human rights movement by harnessing its diversity. Thus, a human rights ecosystem prioritizes collaboration and symbiosis with a much more varied range of actors and issues coupled with more decentralised and network-based forms of collaboration than that of previous decades.

Keywords

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Uncertainty seems to be the dominant mood in human rights circles these days. A new wave of scholarship debates foundational issues about the human rights movement (Douzinas; Gearty, 2014), and wonders whether we have now entered its “endtimes” (Hopgood, 2013). Leading NGOs and activists sense that the ground is shifting under their feet. “Mountains of new information and rapid changes are coming at us from different directions at dizzying speed,” as one of my roundtable companions put it at a thought-provoking meeting of human rights NGOs and funders from around the world, which the Ford Foundation convened in Marrakesh in April 2014 to discuss the contours and challenges of the current moment.

The sense of disorientation stems from the convergence of four structural transformations that are pulling the human rights field in different directions. First, the rise of emerging powers (such as the BRICS countries – Brazil, Russia, India, China and South Africa) and the relative decline of Europe and the United States point to a multi-polar world order. Together with the proliferation of soft-law and hard-law international standards, this trend results in a legal and political arena that is both broader and more fragmented (de Búrca; Keohane; SABEL, 2013). In this new context, states and NGOs in the Global North no longer have sole control over the creation and implementation of human rights standards, as new actors (from transnational social movements to transnational corporations to Global South states and NGOs) emerge as influential voices.

Second, the range of actors and legal and political strategies has expanded considerably. Time-honoured strategies such as naming and shaming recalcitrant States into compliance with human rights are being complemented with new strategies for transnational advocacy that involve a host of actors and targets of activism, including social movements, online media outlets, transnational corporations, inter-governmental organisations, universities, and virtual activism networks (Rodríguez-Garavito, 2014a).

Third, information and communication technologies (ICTs) present new challenges and opportunities for human rights. As shown by the mobilisations associated with the Occupy Movement around the world, tools such as social networks, video documentaries, digital reporting, online learning, and long-distance education have the potential to accelerate political change, reduce the informational disadvantages suffered by marginalised groups, and bring together national, regional and global groups capable of having a direct impact on the protection of rights (Zuckerman, 2013).

Fourth, extreme environmental degradation – climate change, water scarcity, the rapid extinction of species and forests, uncontrolled pollution – has become one of the most serious threats to human rights. After all, human rights mean very little if what is at risk is life on earth itself. Thus, ecological questions are central to global discussions regarding human rights, from those that question the traditional conception of economic development to those that seek to connect environmental justice with social justice, and including those looking for new conceptions that make human rights compatible with the rights of nature (Santos, 2014).

The resulting uncertainty is an uncomfortable position for the human rights community, which has courageously confronted dictatorships, corporate abuse, socio-economic injustice, ethnocide, and environmental degradation for decades. Being left with more questions than answers is disconcerting for NGOs that have come to be expected to provide clear-cut legal solutions to complex moral and political dilemmas.

Yet I believe we should welcome this discomfort. For transitions – between strategic models, intellectual paradigms, governance structures, technologies, or all of the above— represent moments of creativity and innovation in social fields. In human rights circles, where we have erected such high organisational and ideational walls that it has become difficult for us to be reflexive and self-critical, this raises an unprecedented opportunity to reconsider some of our core assumptions: who counts as a member of the human rights movement, what the disciplinary bases of human rights knowledge should be, what strategies can be most efficacious in a multi-polar and multimedia world. For the first time, important tensions and asymmetries – South v. North, elite v. grassroots, national v. global— are being openly discussed with a view to overcoming such divisions and strengthening the collective capacity of the movement.

In order to contribute to this collective reflection regarding organisational forms and strategies, this paper has both critical as well as reconstructive components. I will begin by briefly reviewing the criticisms that, in my view, are most relevant and useful in current debates about human rights. Then I characterise two types of reactions of human rights organisations in the face of these criticisms: on one hand, the defence of traditional boundaries and gatekeeping mechanisms of the field; on the other, reflexive reconstruction and expansion of the boundaries of the field. In the final section of the text, I adopt the latter position and argue that the above-mentioned structural transformations point towards a much more diverse, decentralised and network-like human rights field than that of previous decades. I maintain that, although actors and strategies that have dominated the field of human rights will remain relevant, the movement is shifting toward the structure and logic of an ecosystem. As in ecosystems, the field’s robustness will depend on the collaboration and complementarity among different forms of organisation and diverse strategies. Thus, I conclude by proposing that practitioners and organisations will need to spend less time on gatekeeping and more on symbiosis; less on guarding conventional strategies and boundaries, and more on finding more horizontal and effective modes of collaboration across borders.

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1.  Five Problems with Human Rights

The critical bibliography about human rights is extensive and quite varied. It includes philosophical and historical objections as well as geopolitical and cultural deconstructions1. Given that the emphasis of this paper is on current discussions regarding organisational forms and strategies of the movement, I will concentrate on criticisms regarding this specific angle of the debate.

First, critics have rightly pointed out that human rights as a discourse and a movement tends to be vertical and rigid. Perhaps the best example of this criticism is international criminal justice (Hopgood, 2013). Those of us who practice human rights in societies that are trying to overcome long periods of armed conflict, like Colombia, experience the well-known tension between the dictates of international criminal law on the one hand, and the political negotiations necessary to transition from conflict to peace on the other. While we collaborate with global NGOs on this and many other issues, we note with surprise the inflexibility of some of their positions regarding transitional justice, stemming from a seemingly unconditional prioritisation of criminal justice over other forms of justice and reparations. And the International Criminal Court, with its preliminary investigations into transitional justice processes like those in Colombia, has tended to solidify even more this message. This is detrimental in contexts where peace negotiations with actors such as the FARC (Revolutionary Armed Forces of Colombia) require greater flexibility and an appreciation of national issues, without granting impunity for crimes against humanity (Uprimny, Sánchez; Sánchez, 2014). Yet the rigid interpretation of international justice that some global organisations espouse leaves little room for alternatives – for instance, reduced prison sentences and restorative justice – and instead, tends to present their interpretation as the definitive content of international criminal and humanitarian law.

A second critique pertains to the over-legalisation of human rights. This relates not only to the emphasis on legal standard-setting that characterise human rights, but also to the disproportionate role given to lawyers in the movement. Although the international legal framework for human rights is a historic achievement, the over-legalisation of the field has had two counterproductive effects. First, as Amartya Sen (2006) has argued, viewing human rights claims exclusively through the lens of legal rules may reduce their social efficacy, as a large part of their power lies in the moral vision they embody regardless of whether they have been translated into legal rules. Second, technical legal knowledge is a barrier to entry into the field that alienates grassroots activists and other professionals (from experts in information technology to natural scientists and artists) that make invaluable contributions to the human rights cause. This is particularly worrisome when it comes to fundamentally important topics such as climate change, which profoundly affect human rights, but cannot be understood or acted upon without the participation of professionals from other fields. It may also alienate key new constituencies like citizen e-activists, who are already using human rights frameworks but feel distanced from the technical language and tools of the traditional movement.

Over time, the closed nature and legal specialisation of the field has led to another difficulty: the tendency to adopt the defence of legal frameworks as an end in itself, instead of as a means to improving the living conditions of those who suffer violations of human rights. The current international debate about business and human rights provides a clear illustration of this. As those of us who have participated in regional and global consultations convened by the UN Working Group (WG) (responsible for implementing the UN Guiding Principles on Business and Human rights) have seen, this is a highly polarised debate in which both sides staunchly defend their positions. On the one side, there are those who defend a soft law approach to the Guiding Principles. On the other, there are those who refuse to use the Principles and demand a binding international treaty. What is clear is that a good part of the polarisation and unproductiveness of the debate is due to the fact that both the WG and the law-oriented NGOs tend to concentrate on defending a regulatory paradigm, instead of focusing on the difference that such a paradigm could make in practice (Rodríguez-Garavito, forthcoming).

A fourth critique that needs to be taken seriously is the obvious asymmetry between the Global North and South in the human rights field. Organisations in the North receive over 70% of the funds from philanthropic human rights foundations (Foundation Center, 2013). They continue to have disproportionate power when it comes to setting the international agenda. And too often they define this agenda based on internal deliberations, rather than through collaborative processes with NGOs of the Global South, social movements, activist networks, and other relevant actors.

Finally, critical voices inside and outside the movement have rightly singled out a particularly complex problem: how can we measure the impact of human rights and calculate the opportunity cost of the resources and efforts dedicated to their advancement? For a movement dedicated to creating legal standards and dominated by those of us with legal training, the question of the actual impact of these norms does not come naturally. For foundations and NGOs that are used to talking in terms of outputs instead of outcomes, the question of how to measure the latter remains elusive. This is a conversation and an ongoing task that I believe should concern the entire movement.

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2.  From Gatekeeping to Symbiosis

Faced with these critiques, the response could be celebration, denial, or reconstruction. Celebration tends to be the response of some sectors of academia which, after having turned towards what Santos (2004) calls “celebratory postmodernism,” are content with deconstructing human rights discourse and practice (Kennedy, 2012).

Since human rights practitioners cannot afford to simply celebrate criticism and rejoice in uncertainty, their responses oscillate between defensiveness and reflexive reconstruction. Defensiveness tends to be the reaction of NGOs and some lawyers who are highly invested in the dominant model of human rights advocacy. Reflexive reconstruction is the response of those who recognise the value of such critiques, but believe that they do not represent the end of an ideal and the struggle for human rights, but rather the need for new ways of thinking about and practicing them.

The contrast between these two approaches is typical of moments of transition and shifting paradigm within social fields. In those situations, actors engage in “boundary processes” (Pachucki; Pendergrass; Lamont, 2007), whereby they seek to redefine the contours of the field. While those on the defensive argue that it is necessary to keep the traditional boundaries of human rights, those favouring reflexive reconstruction try to redraw the boundaries to accommodate criticisms. I characterise these two approaches as gatekeeping and symbiosis, respectively.

2.1  Gatekeeping and Its Woes

Guarding the traditional boundaries of the field takes up a disproportionate amount of time and energy. For example, in some academic and advocacy circles there are continued efforts to build a wall between “core” human rights and other rights, such as social and economic rights (Neier, 2013). This happens despite the fact that, as we will see, social movements, NGOs, courts, international treaties and contemporary theories of justice effectively tore down this fence during the last two decades.

Similar to what happens in cities, gatekeeping efforts multiply in times of uncertainty and insecurity such as that which the human rights field is experiencing. The human rights neighbourhood is changing: the gatekeepers and traditional guards (Northern governments and NGOs) no longer have the same power as before in an increasingly multi-polar world. Trespassing has become the norm as new actors (from e-activists to local NGOs) circumvent the gates by directly networking with each other across borders and contest the very borders of the field (North v. South, elite v. grassroots, legal vs. non-legal).

Given this context, ideas and strategies that try to provide clarity amidst the haziness are necessary. For example, questions regarding the priorities of the movement and its excessive emphasis on the creation of legal standards are timely. However, these analyses become problematic, both empirically and strategically, when they reinforce the conventional contours of the field – such as when Hafner-Burton (2014) argues that “we need to set more priorities based on the likely consequences of success”, which implies “prioritising some rights and some places over others”.

From an empirical point of view, proposals of this type are at odds with the above-mentioned transformations in the geopolitical, social, and technological context in which human rights work takes place. They imply that there is a group of actors that set the priorities, and therefore, act as gatekeepers who determine the international agenda of human rights. Thus, the key actors are a limited number of “steward States” willing to promote human rights around the world through their foreign policy (Hafner-Burton, 2013). The protagonists – the “we” of the proposal – are these States and, probably, the international NGOs with direct access to them.

If this proposal sounds familiar, it is because it describes the predominant way in which the international human rights agenda has traditionally been set, with disproportionate influence from Washington, Brussels, Geneva, or London (Bob, 2010, Carpenter, 2014). Yet, looking forward, it is increasingly out of pace with a less uneven international order, a fragmented governance system, and a human rights movement that is much more diverse and decentralised than in past decades.

The centrifugal pressure in the field of human rights is also brought on by ICTs, and the rise of “network societies” (Castells, 2009). Priority setting is a fundamental task in forms of organisation characterised by hierarchical structures and centralised decision-making. But they become less relevant and feasible in the network-like structures that key actors in the field have increasingly adopted, from inter-governmental governance bodies to transnational social movements and multinational corporations.

As noted, the cumulative effect of these transformations has led to an explosion of actors who use the language and the values of human rights, but have broken down the fences of the gated community. Among them are grassroots groups, online activists, religious organisations, think tanks, artists’ collectives, scientific associations, film makers, and many other individuals and organisations around the world. They are mobilising for human rights not just through traditional legal advocacy tactics, but also through new ones like online campaigns that have put effective pressure on States and private actors to comply with human rights. This is what is happening in the most successful cases, such as the 2013 campaign against sweatshop labour in the Bangladeshi apparel industry, which involved the transnational labour movement, national and international NGOs, and virtual activist networks like Avaaz.

In this new context, the idea of ‘prioritising some rights and places over others’, if taken as a prescription for the human rights movement as a whole, is also problematic from a strategic point of view. First, who would set the priorities in such a plural and decentralised field? What criterion and practical procedures would be used to ascertain “core” rights and distinguish them from other rights, or to assert that “discrimination on grounds of sexual orientation and gender identity” is “the one big, and urgent” issue in need of international regulation (Hafner-Burton, 2014). How can such a statement stand when NGOs and communities around the world are mobilising for equally important regulations with regard to such issues as indigenous peoples’ rights or the right to food?

Second, while scholars and practitioners like Hafner-Burton rightly criticise too little attention being given to the implementation of legal standards, even as new ones are proposed, it is equally important to realize that gatekeeping has costs of its own. A loss of legitimacy is not the least of them. Gated communities, by definition, operate with a double standard: one that applies to insiders and another to outsiders. In a world moving toward multi-polarity, the traditional exemption from international scrutiny that steward States have enjoyed has become a fundamental problem for the legitimacy and effectiveness of human rights. With increasing confidence and supporting evidence, emerging powers and other Southern states cite such an asymmetry in order to effectively deflect criticisms for their human rights violations and demand similar exemptions.

This was clear, for instance, for those of us who participated in a campaign to counter the efforts by several Latin American States to weaken the enforcement powers of the Inter-American human rights system (Due Process of Law Foundation, 2012). In response to our campaign, several States forcefully countered that the United States was demanding compliance with decisions of the Inter-American Commission and Court, even as it ignored the Commission’s recommendation to close down Guantánamo; and that the US has not ratified the American Convention on Human Rights.

In sum, the call for priority setting is important at the organisational level ¾ although even at that scale its results are far from clear, as the likelihood of success is not the only relevant criterion for determining priorities (Levine, 2014). But when extrapolated to the human rights field as a whole – to the “we in the international human rights community” that Hafner-Burton and others write about – it is unfeasible and even counterproductive.

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2.2  Towards a human rights ecosystem

As noted, the main trait of the contemporary human rights movement is its striking diversity. The twenty-first century has witnessed a true explosion of actors who use the language and values of human rights and surpass, by far, the traditional boundaries of human rights.

In light of this, I have argued that instead of reinforcing the traditional boundaries of the field, human rights theory and practice must be expanded, so as to open spaces for new actors, themes, and strategies that have emerged in the last two decades.  To capture and maximise this diversity, I have suggested elsewhere that the field should be understood as an ecosystem, rather than as a unified movement or institutional architecture (Rodríguez-Garavito, 2013, 2014a). As with every ecosystem, the emphasis should be on the highly disparate contributions of its members, and the relationships and connections between them.

Just looking around we see examples of this ecosystem in motion. With regards to the diversity of actors, current human rights campaigns involve not only (and often, not mainly) professional NGOs and specialised international agencies, but also many others. For example, I have witnessed this diversity in action in a recent campaign to ensure compliance with the Inter-American Court ruling that condemned the Ecuadorian government for illegally authorising the exploitation of oil within the territory of the indigenous people of Sarayaku in the Amazon (Inter-American Court of Human Rights, Sarayaku indigenous people v. Ecuador, 2012). The campaign includes the Sarayaku people, social movements (mainly the Ecuadorian indigenous movement), local NGOs (like the Pachamama Foundation), international NGOs (Cejil), national NGOs from other countries who work internationally (Dejusticia), and online activists networks and citizen journalism outlets (like Change.org). While in these and other campaigns power differentials persist (between North and South, professionals and non-professionals, etc.), efforts to mitigate them through different forms of collaboration are also evident.

A similar ecosystem approach is required with regard to the expanding range of topics that the human rights movement is taking up. This is clear, for instance, in the realm of socio-economic rights. Although initially raising doubts among scholars (Sunstein, 1996) and advocates (Roth, 2004) in the North, efforts by NGOs, movements and scholars in the South have successfully incorporated them into the legal and political repertoire of the field. As a result, socio-economic rights are recognised in international law and in constitutions throughout the world, and have become the focal point of large sectors of the human rights field, giving rise to new theories of justice and human rights (Sen, 2011).

Activists, academics, and courts in countries including Argentina, Colombia, India, Kenya, and South Africa have developed sophisticated legal doctrines and theories that have improved compliance with socio-economic rights (Gargarella, 2011, Gauri; Brinks, 2008, Liebenberg, 2010). International human rights agencies such as the UN Special Rapporteurs, the African Commission, and the Inter-American Court are busy creating content and effectiveness for these rights (Abramovich; Pautassi, 2009, Langford, 2009).  They do all this without diluting the idea of human rights into social justice, and without weakening civil and political rights.

An equally open and pluralistic approach is required with regard to the strategies in the field. Classical, “boomerang effect” strategies (Keck; Sikkink, 1998) – whereby organisations like Amnesty and Human Rights Watch have successfully pressured Northern States to use their influence on Southern States to get the latter to comply with human rights – will continue to be important. But multi-polarity makes it increasingly difficult for strategies centred on Europe and the United States to be effective, as the current crises in Syria and Ukraine bear witness. Thus, human rights organisations are trying new approaches. The above-mentioned campaign to preserve the powers of the Inter-American Commission of Human Rights is a case in point. Through what I describe as a “multiple boomerang” strategy, Latin American NGOs (CELS, Conectas, Dejusticia, DPLF, IDL and Fundar) forged a successful coalition in defence of the Commission when it came under attack from governments throughout the region between 2011 and 2013 (Rodríguez-GaravitO, 2014c). Since the United States was part of the problem (it never ratified the Inter-American Convention on Human Rights), and its regional influence has declined, lobbying the US government to put pressure on its Latin American counterparts to back off would have been useless, even counter-productive. Thus, national NGOs chose to put pressure on their national governments to support the Inter-American Commission, with the Brazilian government ultimately tipping the balance in favour of the Commission. Thus, it was a coalition of national organisations, lobbying their national governments and the emerging power of the region, which ultimately made the difference.

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3.  Conclusion

As in any ecosystem, the strength of the human rights field will depend on symbiosis, that is, the interaction among its different actors, to the advantage of the latter and the broader cause they share. Collaboration and complementarity will thus become even more important to the survival and thriving of the field as a whole.

Nurturing collaborations is easier said than done. For dominant human rights organisations like Human Rights Watch and Amnesty, this implies a difficult challenge: transitioning from the vertical and highly autonomous modus operandi that has allowed them to make key contributions, to a more horizontal model that would allow them to work with networks of diverse actors. For the time being, their efforts to globalise their operations by opening offices in new centres of power in the Global South have failed to translate into new forms of engagement, so as to interact with local, national and regional organisations on an equal footing in terms of initiative, decision-making and authorship. For domestic organisations, adjusting to the new ecosystem entails pursuing strategies that allow them to link up with each other, and use the new leverage points created by increased multi-polarity, as well as opening themselves up to non-legal professionals, social movements, and online activists.

In sum, we need to see the human rights field as a diverse ecosystem, rather than as a hierarchy. In a more complex and interdependent world, our questions need to be informed by biology as much as by law and politics. We need to spend less time on gatekeeping and more time on symbiosis.

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Notes

1. For recent overviews of this literature, see Douzinas and Gearty (2014) and Gearty and Douzinas (2012).

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References

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https://sur.conectas.org/wp-content/uploads/2017/10/cesar-rodriguez-garavito-1.jpg

César Rodríguez-Garavito

César Rodríguez-Garavito is Associate Professor of Law at the University of the Andes (Colombia), and serves as International Director of the Center for Law, Justice, and Society (Dejusticia), a human rights NGO based in Bogota. He has been a visiting professor at Stanford University, Brown University (the United States), the University of Pretoria (South Africa), the Getulio Vargas Foundation (Brazil) and Central European University (Hungary). He serves in the editorial boards of the Annual Review of Law and Social Science and OpenGlobalRights, as well as in the executive boards of Fundar Mexico and the Business and Human Rights Resource Center.

Email: cerogara@gmail.com

Original in English.

Received in September 2014.