Martti Koskenniemi, “Human Rights Mainstreaming as a Strategy of Institutional Power” (2010), excerpt | Samuel Moyn | August 10, 2016

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Martti Koskenniemi, “Human Rights Mainstreaming as a Strategy of Institutional Power” (2010), excerpt

Martti Koskenniemi, “Human Rights Mainstreaming as a Strategy for Institutional Power,” Humanity 1 (2008) (footnotes omitted)

This essay is a comment on the proposal by human rights activists and lawyers, made in various international and domestic contexts, for “mainstreaming” human rights into an aspect of the regular business of (international) governance. …

The call for mainstreaming human rights in the regular business of government has come about as a reaction to a certain failure of the “rule of law.” …

Human rights, too, arose to counteract the transfer of political power to “regulators” and managers, scientific and economic experts, and professional negotiators. … The emergence of human rights law (as well as the recent “fight against impunity”) gives expression to the search for absolutes in a world whose complexity has created the danger of unfettered relativism and bureaucratic abuse. The language of “rights” contrasts with that of “management” and suggests that there must be some limit to the weighing of costs and benefits—that some requirements are so self-evidently “good” (or some forms of behavior so intrinsically “evil”) that they should leave no room to instrumental calculations.7 Through a language of rights one is able to say, for example, that “indigenous groups should not be forced to leave their homes only because it might be socially useful to set up an industrial area where they live. They have “a right to stay there,” or “the police may not torture crime suspects however efficient that might be in view of the objectives of criminal policy. Torture is just plain wrong.”8 Even if it is true that in normal situations, public officials may use discretion when they seek for the most “equitable” or “cost-effective” solution, this must be limited by rules that express particularly important values.9 This is what it means to claim that the “natural place [of rights] must be outside politics, yet constraining politics.”

As soon as rights are conceived in this way, they begin to seem extremely valuable. To dress a claim (for resources, for example, or for inviolability, immunity, concern, and so on) in the form of a “right” is to put it in the strongest available terms, even as an administrative veto. It would thus seem very important to know what rights there actually are. But how does one go about determining this? The old rhetoric of “natural rights” suggests that a list of such rights does exist somewhere but provides no access to it that would be independent from taking a stand on issues of political philosophy that have been disputed in the West for the better part of the past two thousand years. It is hard not to dismiss natural law as premodern myth. Moreover, natural rights have frankly undemocratic implications, suggesting as they do that human communities are bound by values that precede them…

In the practice of the secular West, however, the determination of what rights there are has been part and parcel of the regular political process in the course of which the beneficiaries of any policy (labor policy, welfare policy, criminal policy, environmental policy, and so on) have seemed capable of dressing the benefits they are seeking in terms of their “rights.” Hence the bewildering proliferation of rights that has made some rights advocates despair as it has threatened the special dignity and power of rights language. At the same time, absence of a litmus test to distinguish between “genuine” rights and those that reflected just the (egoistic) interests of the claimants has led to social conflict being increasingly represented as a conflict of rights. To resolve them, legislatures, administrative bodies, and courts have developed complex balancing practices and rights-exceptions schemes that defer to general considerations of administrative policy, public interest, economic efficiency, and so on—precisely the kind of criteria that rights were once introduced to limit. From providing limits to administrative and bureaucratic discretion, rights became dependent on it.

At this point, the push for mainstreaming has emerged as a modest strategy no longer seeking to trump power. “Okay,” it suggests, “it may be true that a human rights are only a consideration among others. But at least administrators should pay attention to them in their decision-making.” … This was of course a much more modest strategy than the original claim to endow rights with a “trumping” power. Indeed, perhaps human rights were simply a policy among others (though of course, a particularly important policy) and the real (or reasonable, or realistic) objective was to ensure that due concern was given to them when important decisions were being made.

The Emptiness of Mainstreaming

But what would it mean to “have due regard to human rights”? In order for even the modest policy to work, we should be reasonably able to identify “human rights concerns” in contrast to other kinds of concerns. But this may not at all be possible. Because there are no authoritative lists of prelegislative rights, political actors are always able to dress their claims in rights language. And as every significant rights claim involves the imposition of a burden on some other person, the latter may likewise invoke their preference to be free from such burden in rights terms. Should protesters against genetically manipulated foodstuffs enter the localities in which they are being sold? The protesters invoke their right of freedom of speech—the owners of the locality, their right of ownership. However much a communal policy might be penetrated by a rights ethos, the city officials would receive no significant guidance from it. “Rights,” after all, support both sides. They might decide in accordance with their preferences, of course. But was not that precisely what recourse to “rights” was intended to prevent? …

Perhaps more familiar is the conflict over freedom rights and security rights that is played out before the whole world under the banner of “fight against terrorism.” The problem here is the same as above. In the case concerning the ten-month detention of an Iraqi-British dual citizen, the British court faced with the claim that the detention had been made in violation of the person’s human rights responded in the following way:

The Security Council, charged as it is with primary responsibility for maintaining international peace and security, has itself determined that a multinational force is required. Its objective is to restore such security as will provide effective protection for human rights for those within Iraq. Those who choose to assist the Security Council in that purpose are authorised to take those steps, which include detention, necessary for its achievement.

Even here both sides argue on the basis of rights. Mainstreaming would not advance the assessment of such a situation one bit—that is, it would not do so without a specific political commitment on the decision-maker’s part to prefer one type of rights claim to another. At this point, however, “human rights” have completely lost their specificity. If incommunicado detention can be a human rights measure, anything can. Everything will depend on the decision-maker. Which verbal strategy seems useful to justify one’s decision? …

That rights are both unlimited and (thus inevitably) conflictual renders the call for administrative bodies to “take rights into account” empty. If every policy consideration an administrative organ needs to take into account may be framed as a human rights consideration, and if—as human rights organs repeatedly stress—this will require “striking a balance,” then mainstreaming calls upon administrative bodies to do what they would in any case be committed to doing. For “balancing” itself cannot be framed in terms of rights application because its very point is to determine the applicability (and thus the limit) of particular rights in particular circumstances. Or in other words, rights conflicts cannot be resolved by reference to “rights”—only by reference to some policy that enables the determination of the relative power of the conflicting rights. But in such case, mainstreaming has no special meaning whatsoever. It merely calls for reasonable and intelligent adjustment of the conflicting considerations— something that the administrative body was surely expected to do anyway.

Mainstreaming as a Project of Seizing Institutional Power

But if human rights mainstreaming cannot be conceived in terms of advancing some determinate preferences in the bureaucratic governance of modern societies, it does have cultural and institutional effects. It does empower some groups at the cost of other groups. … For if we are unable to identify “rights” by analysis of substantive claims, we may be able turn our attention to the cultural preferences of particular groups— groups such as “football fans,” “investment bankers,” or “left liberals”—and choose from those the one we think most likely to share our preferences. No doubt, the group identified as “human rights experts” might be a good candidate for this purpose.

From this perspective, mainstreaming would signify an effort to empower “human rights experts” in the relevant institution, for instance by directing administrators to be in regular contact with them. …

The Virtues of Utopia and Critique…

There is much to be said in favor of human rights—including human rights experts—staying outside regular administrative procedures, as critics and watchdogs, flagging the interests of those who are not regularly represented. This would protect those experts from the need to make the kinds of mundane choices that administrators have to make on a routine basis and that always seem to call for a downsizing of one’s preferences into pragmatic rules of thumb and ad hoc accommodations. Human rights arose from revolution, not from a call for mainstreaming. One cannot be a revolutionary and participate in the regular management of things without some cost to both of these projects. The more “revolutionary” one is, the more difficult it is to occupy those administrative positions in which the main lines of policy are being set. The more influential one is as an administrative or regulatory agent, the less “revolutionary” one’s policies can be. There is nothing in this dilemma that is specific to rights. It concerns political action and strategy, requiring—as all politics does—a continuously critical and self-critical sensibility that moves between commitment to the idioms in which one has been trained and an ability to not let that commitment block one’s view of the consequences of one’s action, “including consequences to [the actors’] inner being, to which they will fall helpless victims if they remain blind to them.”

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August 10, 2016

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Samuel Moyn

Harvard Law School

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