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date: 21 February 2018

Globalization and Human Rights

Summary and Keywords

The literature on the relationship between globalization and human rights has laid out three responses to the economic, political, and social transformations of globalization within the human rights. First, some scholars consider globalization as complementary to the progressive realization of universal human rights on a global scale. They cite the extension and deepening of the formal human rights regime through international institutions and nongovernmental organizations (NGOs), and the emergence of new private, corporate forms of authority. Second, others perceive of globalization as creating substantial challenges for the realization of universal human rights on a global scale. Such scholars are engaged in criticism of the existing institutional arrangements of the formal human rights regime. They highlight the way in which human rights act as a form of power over people, especially where different ways of life are brought into contact and conflict through transformations associated with globalization. Furthermore, they reject the idea of the progressive realization of human rights as some form of an inevitable unfolding of history or as a singularly desired end point, and instead acknowledge conflicting conceptions of rights as expressions of social struggle A third group of scholars are engaged in the critique of the conception and function of human rights within globalization. From this viewpoint, globalization reveals that ideas of universal and indivisible human rights, along with their progressive realization, are flawed and need to be replaced by more substantive concepts. The critiques stem from the perspectives of neo-Marxism, postpositivism, feminism, and cultural relativism.

Keywords: globalization, universal human rights, of neo-Marxism, postpositivism, feminism, cultural relativism

Introduction

The relationship between globalization and human rights is problematic. Under globalization human rights may “have become part of the discourse in all societies, speaking to both the elites and the oppressed, to institutions and to communities” (McCorquodale and Fairbrother 1999:740), but at the same time substantial questions concerning the impact of global transformations on the implementation, enforcement, and understanding of human rights have emerged, both in terms of the formal regime and of human rights as a concept. This essay examines literature concerning the variety of perceived impacts of globalization on human rights, laying out as far as possible the major contemporary intellectual and social dimensions of this relationship. Three responses to the economic, political, and social transformations of globalization within the human rights literature are outlined.

First, globalization is considered by some as complementary to the progressive realization of universal human rights on a global scale. The evidence put forward for this position is the extension and deepening of the formal human rights regime through international institutions and nongovernmental organizations (NGOs), and the emergence of new private, corporate forms of authority.

Second, others perceive of globalization as creating substantial challenges for the realization of universal human rights on a global scale. Such scholars are engaged in criticism of the existing institutional arrangements of the formal human rights regime. An alternative understanding of NGOs, transformations toward global governance, structural adjustment, threats to democratic politics, environmental degradation, and pressures to reduce labour standards is considered.

A third group of scholars are engaged in the critique of the conception and function of human rights within globalization. From this viewpoint, globalization reveals that ideas of universal and indivisible human rights, along with their progressive realization, are flawed and need to be replaced by more substantive concepts. This section examines critiques from the perspectives of neo-Marxism, postpositivism, feminism, and cultural relativism.

The Transformations of Globalization

Globalization is a contested term. Whereas some scholars, such as Hirst and Thompson (1999), argue that globalization has always existed, the modern history of globalization begins in the 1970s and 1980s with its emergence as an academic term. This period is identified with substantial transformations in economic, political, and social relations on a global scale that have shifted the foundations of global order away from the state and post–1945 conceptions of sovereignty toward transnational and global processes (Held and McGrew 2007). Anthony McGrew defines this as “the widening, deepening and speeding up of processes of world-wide connectivity” (McGrew 1998a:302); Anthony Giddens as the “intensification of worldwide social relations” (Giddens 1990:64). Globalization, then, signifies the shift from the “local” to the “global,” and from the “international” to the “transnational.”

The most visible transformation is the way in which formerly national economies have integrated toward a “global economy,” which Manuel Castells defines as “an economy whose core components have the institutional, organizational, and technological capacity to work as a unit […] on a planetary scale” (Castells 2003:311). On the one hand this has meant a vast quantitative increase in international activity. World exports of goods and services, for example, have risen from $137 billion in 1961 to over $3 trillion in 2008 (OECD 2009).

On the other hand, this has also involved substantial qualitative changes stemming from the expansion of global communications networks, particularly the internet. “[C]omputerization, telecommunications, miniaturization, compression technology and digitization” (Friedman 2000:47) have meant that “[n]etworks, rather than countries or economic areas, [have become] the true architectures of the new global economy” (Castells 2000:61). Institutions of political governance, corporations, social movements, and individuals have been enabled to organize in new ways on a global scale. Thus, many commentators have highlighted the emergence of transnational spaces that seem to transcend the physical, territorial world altogether (Scholte 2005: Chapter 2; Dicken 2007). Although these claims give too little importance to the territorial nature of all economic and social processes (Gilpin 2001: Chapter 1), they do reveal how substantial these new global trends are.

This is most apparent in the realm of global finance, which is for the most part the trading of “electronic money” in global networks of exchange (Helleiner 1998). Thus, in April 2007 foreign exchange trading alone stood at $3.21 trillion per day (BIS 2007). The accumulated stock of foreign direct investment (FDI) has risen from $704 billion in 1980 to $15.2 trillion in 2007 (UNCTAD 2009). As centers of this electronic infrastructure, New York, London, and Tokyo are financial capitals with global reach. Most international loans are denominated in US dollars, euros, and yen, which in addition are often traded in place of local currencies (Scholte 2001). Exotic products such as derivatives, securities, and options have been developed to match new global investment needs (Strange 1998).

In turn, production chains have expanded beyond national boundaries into what Philip McMichael terms a “world factory” in which the various elements of the production process are distributed globally, “organizing disparate labor forces of varying skill, cost, and function” (McMichael 2004:80–1). A good example of this is Pietra Rivoli’s The Travels of a T-shirt in the Global Economy, in which global production and labor processes are traced from the extraction of raw materials in the US, through the production process in China, to the point of sale worldwide and resale in Africa (Rivoli 2009). Another is Peter Dicken’s study of automobile production chains (Dicken 2003).

Transnational corporations (TNCs) dominate these global networks of finance and production. Anderson and Cavanagh, for example, reveal that when corporate sales and national GPD are compared, 51 of the 100 largest economies in the world are corporations (Anderson and Cavanagh 2000). A 2007 study in Fortune magazine that employs this comparison shows that, individually, Wal-Mart, Exxon Mobil, and Royal Dutch/Shell are larger than either Denmark, South Africa, or Argentina (Fortune 2007).

These global linkages have meant that political institutions and organizations are no longer understood as discrete, self-enclosed spaces with particular, limited competences, but rather as “complex structures of overlapping forces, relations and networks” (Held and McGrew 2002:7). Cross-border human rights abuses, the economy, environmental degradation, security, migration, and pandemics such as HIV/AIDS all seem beyond the capacity of individual states to manage. Global markets in particular appear to dwarf the capacity of states to cope with recessions and financial movements, as clearly revealed in the current global financial crisis (Stiglitz 2002; Duncan 2009). As such, this period has seen the emergence of “networks” of global governance (Cox 1997; Woods 2002) to augment the authority of national governments. These networks have been created within the context of the following developments.

First, post–1945 institutions such as the United Nations (UN), International Monetary Fund (IMF), and World Bank have reorganized and expanded to manage these new global transformations (Gill 1992b). This has been most visible in the establishment of the World Trade Organization (WTO) in 1995 and the expansion of the European Union under the Maastricht Treaty in 1992.

Second, NGOs have become prominent actors in their specialist fields. For example, NGOs focusing on human rights operate within the areas of poverty (Oxfam), children’s rights (Save the Children), judicial issues (Amnesty International), and women’s rights (Association for Women’s Rights in Development, AWID). This has been made possible by the development of a “global civil society,” a new space of social organization provided by new technologies such as the Internet within which NGOs and other movements can organize (Falk 2005).

And third, new forms of private authority, particularly corporate authority, have developed to manage new global markets and processes. In part this has involved the creation of new organizations such as the International Chamber of Commerce, but also the establishment of codes of practice and self-regulation within particular regions or industries (Cutler et al. 1999:6).

Conceptions of Human Rights under Globalization

The emergence and initial development of human rights post–1945 took place within the context of postwar reconstruction and an international states system based on the sovereign equality of all states within the framework of the UN (Evans 1996: Chapter 2). Whereas human rights had in the immediate postwar period been primarily the concern of diplomats and governments, globalization has facilitated the worldwide diffusion of the idea of universal human rights to become, as Richard Rorty puts it, “a fact of the world” (quoted by McGrew 1998b:188). But at the same time, the economic, political, and social transformations of globalization appear to have undermined the very basis of the postwar international order on which rights claims are based. They have thus produced a substantial challenge for the understanding and implementation of human rights globally (McCorquodale and Fairbrother 1999:739–40). Fundamental questions concerning the role of the state, democracy, production, finance, and social change have thus emerged.

The various understandings of human rights under globalization are framed by the three loosely defined discourses of what R.J. Vincent calls “human rights talk” (Vincent 1986; see Evans 2005: Chapter 1). First, the philosophy of rights is an abstract discourse that seeks to discover the foundations on which appeals to human rights might be justified and sustained (Donnelly 2003). Second, the legal discourse on human rights focuses on a large body of international law. Comment and criticism within the legal discourse are concerned with disagreements over the nature and status of international law in a world characterized by sovereignty, nonintervention and domestic jurisdiction (Chinkin 1998). Third, the political discourse on human rights asks questions about power and interests associated with particular conceptions of rights. Included within this discourse are questions about how and why dominant forms of philosophical and legal reason sustain those interests. For critics, while philosophy and law are understood as neutral and objective, the political discourse is seen as ideological. It is therefore a distraction that can only hamper progress in processes of standard setting and implementation of human rights (Evans 2005).

With these distinctions in mind, there are three main broad understandings of human rights among scholars within the context of globalization. First, that globalization is complementary to the progressive realization of universal and global human rights. This position assumes that the contemporary philosophical approach to rights is universally accepted and that the legal implementation of human rights is successfully taking place through processes of globalization. Second, that globalization has created a number of substantial challenges to the progressive realization of universal and global human rights. This group of scholars is engaged in the criticism of the legal implementation of human rights under globalization, arguing that more effective institutions and legal arrangements are needed. And third, that globalization reveals that ideas of universal and indivisible human rights, along with their progressive realization, are flawed under conditions of globalization and need to be replaced by more substantive concepts. Scholars engaged in this critique of the concept and place of human rights under globalization highlight how human rights perpetuate particular global interests and power relations.

Joseph Nye puts forward a distinction between “process” and “end-point” utopianism that helps differentiate among these three positions (Nye 1987:245–7). Endpoint utopianism suggests that historical, social, and institutional change is determined by progress toward an established end point, or “truth,” which in the case of human rights finds its foundations in the doctrine of natural rights. In this context, when an end point is achieved “politics as struggle stops, and is replaced by administration and management” (Booth 2007:252). Those engaged in both the progressive realization and criticism of human rights under globalization fall into this bracket. In contrast, process utopianism suggests that history is not bound to one particular end point but is, rather, a process of socially constructed incremental change within a world of alternative and competing goals. In this formulation, imagination is continually applied to the social milieu in ways that generate innovative ways of thinking, knowing, and acting, which stimulate new accounts of moral and utopian futures through social and political struggles. Process utopianism thus proposes that the dynamics of social change demand a continual reimagining of the future, including moral goals such as ideas of human rights (McKenna 2001:93; Baxi 2002:3). Critiques thus dismiss all claims that human rights are built on a set of foundations that transcend time and place, arguing instead that social process offers the key to the history of all claims for universal values.

The Progressive Realization of Universal Human Rights

Universal human rights as laid out most prominently in the Universal Declaration and the two accompanying covenants are considered by some to be both universally accepted, as in Jack Donnelly’s “Universal Declaration model” (Donnelly 2003: Chapter 2), as well as fundamentally and positively interwoven with globalization. Howard-Hassmann (2005) suggests the following possible models to explain this relationship:

  1. 1 globalization → human rights;

  2. 2 globalization → wealth → human rights;

  3. 3 globalization → markets → liberal economic order → democracy → human rights.

Such links are framed in the understanding of globalization as an “engine of development” (Lerner 1958), where human rights, economic development, and democracy are considered symbiotic and complementary (Carothers 1994). Former UN Secretary General Kofi Annan’s 2005 report In Larger Freedom is a good summary of this position, in which he argues that “[t]he world must advance the causes of security, development and human rights together […] Humanity will not enjoy security without development, it will not enjoy development without security, and it will not enjoy either without respect for human rights” (Annan 2005: executive summary).

Supporters of the regime founded on the Universal Declaration and subsequent covenants thus argue that the process of globalization has revealed the contemporary liberal order and its understanding of human rights as the progressive unveiling of the “end of history” (Fukuyama 1992; Ishay 2008). According to Fiona Robinson,

the idea that we are human beings first, and citizens second […] resonates with increasing strength across the world […] where globalization is viewed as the triumph of liberal and cosmopolitan values, most evident in the spread of capitalism and of liberal democratic institutions, human rights embodies the “moral wing” of this world view […] comfortably occupying the moral high ground.

(Robinson 1998:58)

This, then, is most prominently the language of how things should be. Globalization appears only as the latest stage of “progress” for the progressive realization of human rights on a global scale, such that all that is left for debates concerning human rights are technical issues to do with improving implementational procedures and drafting new international laws that clarify already legitimated and universally accepted norms (Evans 2005). For many commentators the end of the Cold War was the key moment of transition. Whereas in the past the necessity of maintaining friendly relations with known human rights violators was accepted, provided they remained avowedly anticommunist, in the new order human rights would be placed first above all other issues. As McCorquodale and Fairbrother (1999:740) point out, today “[e]very single state has ratified at least one treaty containing legal obligations to protect human rights,”

International Institutions

In this view, international institutions are central to the progressive realization of universal human rights on a global scale in terms of enforcement, implementation, and promotional activities (Donnelly 2003:127).

At the center lies the UN regime, which consists of three main bodies. The Human Rights Council, established in 2006 to replace the Commission on Human Rights, is an intergovernmental body of 47 states that exists with the main purpose of addressing human rights violations (Lauren 2007). The Human Rights Committee is a body of 18 independent experts that monitors implementation of the International Covenant on Civil and Political Rights (ICCPR). The Office of the High Commissioner for Human Rights, established in 1993, is mandated to promote the full realization of all rights in the UN Charter and international human rights treaties (Mertus 2005: Chapter 2). In addition, a number of other bodies and committees exist within the UN system. The International Labor Organization (ILO) in particular is cited for its “tripartism,” a unique institutional structure that seeks to promote “cooperation between governments and employers’ and workers’ organizations” through “social dialogue” (ILO 2009), in other words creating a forum for joint decision making among trade unions, NGOs, and other civil society bodies alongside governments and TNCs (Petersmann 2004). According to its supporters, then, the UN system is crucial in the dissemination and enforcement of human rights among its members. In turn, the creation of new bodies such as the Human Rights Council and the International Criminal Court (ICC) suggests that the UN system is itself evolving toward increasing functionality in this process.

Furthermore, human rights are considered important components within other international institutions, both global and regional. The WTO, IMF, and World Bank have declared a firm commitment to human rights in their respective fields of competence, institutionalized in their concern for labor standards (Ruggiero 1999) and poverty reduction (World Bank 2009). Supporters argue that their legal frameworks have great potential to transform national rights legislation, for example in terms of women’s rights in China (Burda 2007). Regional regimes have developed, most noticeably within the European Union (EU) (Donnelly 2003:138–44), which have strengthened the implementation of human rights, particularly by creating legislation that supersedes that of national governments (e.g., DCA 2009). Where formal regional regimes do not exist, or have a much more limited institutional framework than elsewhere in the world, for example in Africa, there is an increasing literature on what developments should take place toward their extension and deepening (Mutua 2000; Wohlgemuth and Sall 2006).

NGOs

NGOs are also considered to be lynchpins of this system. Supporters such as Risse et al. (1999) argue that they act as transmission belts for ideas of human rights and their implementation, facilitated by new global telecommunications networks (also Keck and Sikkink 1998). According to Steiner et al. they are

an indispensable component of the international human rights regime. Their contributions are especially important in relation to fact-finding, reporting, standard-setting, and the overall promotion, implementation and enforcement of human rights norms. They provoke and energize. They spread the message of human rights and mobilize people to realize that message. Decentralized and diverse, they proceed with a speed, decisiveness and range of concerns impossible to imagine in relation to most of the work of bureaucratic and politically constrained intergovernmental organizations.

(Steiner et al. 2008:1421)

To their proponents, NGOs such as Amnesty International operate to extend the global reach of human rights claims and to put pressure on governments and international institutions to live up to the obligations of national and international law. Thus, the 1998 Rome Conference to draft the Statute of the ICC and the drafting of the 2006 Convention on the Rights of Persons with Disabilities both took place with substantial NGO involvement. To this end, NGOs’ involvement has been formalized within the UN human rights regime, for example in their “consultative status” with the Department of Economic and Social Affairs (DESA) and the ILO (Mertus 2005:164).

Private Authority

Proponents of this view argue further that corporations have developed new forms of private authority that are supportive of human rights (Hall and Biersteker 2002). They cite initiatives such as the various codes of conduct that have emerged to govern particular industries or suppliers for multinational corporations (MNCs) (e.g., Nike 2009), which are aimed in particular at raising labor standards and ending child labor (Murray 1998; Donaldson 2000).

The UN has provided a forum for this to take place, particularly through its Global Compact initiative. According to the UN Global Compact Office, historically there has never been

a greater alignment between the objectives of the international community and those of the business world. Common goals, such as building markets, combating corruption, safeguarding the environment and ensuring social inclusion, have resulted in unprecedented partnerships and openness between business, governments, civil society, labour and the United Nations.

(UN 2008)

Supporters argue that many problems could be alleviated by bringing together the different skills, capabilities, and resources of these bodies, particularly focusing on the UN and transnational corporations (TNCs), all of whom are becoming increasingly conscious of the new responsibilities and obligations that globalization engenders. This initiative thus offers an opportunity to channel the increasing power and influence of TNCs toward achieving their economic goals while simultaneously serving the world’s peoples (Blüthner 2008). Linked to the creation of the Global Compact is the idea of Corporate Social Responsibility (CSR), which many claim has now become part of normal global business practice and attempts to ensure the fulfillment of corporate responsibilities toward a company’s shareholders, its legal responsibilities, and the stakeholders affected by its operations (Hopkins 2003). Thus the Intergovernmental Working Group of Experts on International Standards of Accounting and Reporting, part of the United Nations Conference on Trade and Development (UNCTAD), provides voluntary technical guidance on following CSR guidelines (UNCTAD 2008).

Criticism

A number of scholars conceive of globalization as creating substantial challenges for the realization of human rights on a global scale, which must be addressed and overcome (McCorquodale and Fairbrother 1999; Evans 2005). Such critical scholars are sympathetic to the UN’s assessment that globalization has both positive and negative impacts for human rights. In a report prepared by Kofi Annan for the General Assembly, globalization was identified as consisting of simultaneous and contradictory trends toward both integration and disintegration, and both social inclusion and exclusion. While some benefit from the opportunities offered by cheap air travel, the Internet, and access to health and education brought by increased wealth through trade and capital flows, others “are being left behind, in poverty, effectively marginalized from the hopes that globalization holds.” Significantly, the report recognizes that “economic growth does not automatically lead to greater promotion and protection of human rights” (UN 2000).

Most prominently, globalization is considered to have a negative impact on human rights in the way in which it challenges the foundations of the post–1945 global human rights regime, which is based on the national implementation of globally agreed human rights. Globalization thus appears as a barrier to achieving human rights as power shifts from the state to international economic institutions, TNCs, and finance houses. Critical scholars hold that the optimism of the legal discourse cannot be reconciled with the overwhelming evidence of human rights violations coexisting with globalization, as Conor Gearty argues:

Making a paper commitment to [a] human rights convention or agreement is the easy part; forcing through the realization of such ideals via determined political graft, involving tough choices and unpopular decisions, is much harder – and it needs to be acknowledged that political slog is not something for which the proponents of human rights are renowned […] [thus] there is in many countries a structural gap in human rights protection between theory and practice, between a state’s claim to guarantee human rights and what happens on the ground.

(Gearty 2007:347)

In this sense, McGrew (1998b:203) contends that “[w]hile globalization may not quite demand the “reinvention” of universal human rights […] some rethinking of human rights is called for.” Those involved in the criticism of the present implementation of human rights remain committed to the legal implementation of rights as above, but suggest that the present institutional arrangements will not bring this about through some direct causality between globalization and human rights.

NGOs as Critical Voices

Scholars engaged in criticism of the present institutional arrangements suggest that the prominence of NGOs and local human rights organizations offers clear evidence of the impact of globalization on the promotion of human rights. In this sense, NGOs are understood as crusaders bringing human rights issues to public attention by shaming states, the UN, and other organizations into enforcing international law and its declared human rights aims and objectives. NGOs are seen as representing the moral concerns of global civil society, with a mission to highlight failures in the implementation of the formal human rights regime. In recognition of this role, the UN has offered prominent NGOs, like Amnesty International and Human Rights Watch, consultative status within its various human rights institutions. For those who offer critique rather than criticism, NGOs are thus coopted by interests associated with the formal human rights regime.

Typical of the approach that attempts to transform legal institutions for human rights is that outlined by Paul Hunt. As the UN special rapporteur on the right to health between 2002 and 2006, Hunt campaigned against the way in which the “right to the highest attainable standard of health,” enshrined in the Universal Declaration, has attracted little UN attention in the past in comparison to civil and political rights. He has thus framed his work, including the development of the Human Rights Centre at the University of Essex, UK, in terms of transforming the human rights regime from within, aiming to “make the right to health […] more specific, accessible, practical, and operational,” toward the fulfillment of existing treaty obligations globally. Sally Engle Merry charts a similar evolution of women’s rights. However, global NGOs can themselves be criticized for their lack of accountability and transparency. As the Economist asked in considering the apparent moral credibility of one NGO on global matters, “who elected Oxfam?” (Economist, 2000).

Global Governance, Structural Adjustment and Democratic Politics

Critics highlight that although international institutions employ the language of human rights and engage in pro-human rights initiatives, they do so only as a justification for other actions (Hemingway 2002). Instead, many argue that their policies undermine the realization of human rights under globalization.

Thus, during the 1980s and 1990s, IMF and World Bank structural adjustment programs (SAPs) were introduced to aid governments that had fallen into balance of payments difficulties. Their aim was to institute particular policy reforms that would restructure these economies toward exports and debt repayment, so that economic growth, seen as beneficial for all parts of society, could be restored (Williamson 1990). One of the main targeted policy changes was the reduction of government spending in social insurance and welfare, along with the privatization of national industries and service providers. Such reforms shifted the provision of economic and social rights from the state to the market, leading, in the short term, to substantial problems for large sections of Third World populations (Cammack 2002; Rudra 2002). In Mexico, for example, Philip McMichael (2004) notes that the conditions of IMF restructuring imposed in 1986 forced the withdrawal of subsidies for basic foods such as tortillas, bread, beans, and rehydrated milk, causing an increase in levels of malnourishment. As a result of the removal of state provision of economic and social rights, he argues, wage levels fell by 50 percent, and purchasing power by two thirds from 1970 levels. Poverty rose from 32.1 to 41.3 million, leaving 17 million living in extreme poverty (McMichael 2004:135).

Policies of structural adjustment, whether externally imposed by international institutions or adopted at the government level, for example under the policies of Reagan or Thatcher, are considered by some as having negative consequences for democratic politics, a key ingredient of the human rights regime. Robert Cox, among others, has suggested that globalization has led to a shift toward “limited democracy” (Cox 1997). According to Cox, “globalization has made competitiveness in world markets” – rather than a concern for rights – “the primary goal and criterion of state policies” (Cox 1997:50). Thus, a significant “consequence of economic globalization, which diminishes the control governments have over national economies, has been to transform politics at the national level into management” (Cox 1997:63, emphasis retained); that is, the creation and management of a competitive unit within the global economy, rather than a democratic entity within which citizens have a significant capacity to determine aspects of their own lives (Cerny 1997). Once states have agreed to SAPs or become members of institutions such as the WTO, EU, or North American Free Trade Association (NAFTA), they become bound by their rules, with substantial censure and punishment if future elected governments choose to withdraw (Gill 1995b). Thus, “[o]nce the logic of the global economy has been made into the unchangeable framework of state policy, the role of government is reduced to managing things as well as possible within that framework” (Cox 1997:63). From this perspective, globalization appears to have constrained the capacity of the state to provide for the human rights of its citizens, have most impact on the marginalized sections of the population such as women, migrants, and the poor (Pellerin 2002; Rudra 2008).

Counterterrorism

The perceived threats of transnational terrorism and government counterterrorist initiatives under the US-led “war on terror,” which are consequences of globalization (Evans forthcoming), have been identified as having negative human rights consequences (Duffy 2005; Wilson 2005). In her review of the subsequent debates over new counterterrorist laws and key judicial decisions in the US, the UK, and Germany, Sandra O’Connor (2008) reveals much contestation over the curtailment of civil liberties in the face of this new security environment. According to Gearty (2007:348), “[s]uch laws […] characteristically involve a great increase in the power of the state vis-à-vis the individual [and] a commensurate movement away from legal and political accountability for the exercise of that power.” In addition, although such laws might be enacted without immediate negative consequences for the rights of most citizens, they result in exclusionary trends regarding “members of particular ethnic or religious groups – some of whose members are involved in terrorist or other subversive activity” (Gearty 2007:348).

Furthermore, Gearty suggests that these legal contestations have created a new moral discourse within international relations. Less democratic governments have adopted the language of counterterrorism as justifications for security policies with significant negative consequences for human rights, for example Russian military operations in Chechnya, Turkish suppression of Kurdish populations, and “the Zimbabwe government’s condemning as ‘terrorist’ all those who oppose its […] rule” (Gearty 2007:347). However, due to the difficulty of assessing empirical data, such conclusions often remain contested (Piazza and Walsh 2009).

Labor Standards

Contemporary global transformations in finance and production are perceived as having negative human rights consequences through the reduction of labor standards and threats to human security (Mittelman 1997; Thomas 2000). Where production chains have become global, unskilled and labor-intensive production is outsourced to the global South where the cost of labor is lowest. One of the factors in this low cost is that less regulation exists, so that labor can be coerced into working under conditions that would be considered unacceptable in the North, for example in receiving lower wages, working longer hours, being employed from a younger age, having fewer (if any) maternity rights, along with less (if any) social insurance (McMichael 2004). From this perspective, corporate codes of conduct and moves toward the CSR framework appear as no more than responses to Northern social movements such as “antisweatshop” campaigns against low labor standards in the global South, particularly in the apparel industry (Bartley 2007).

According to some, globalization has encouraged a “race to the bottom” in terms of rights, where states competing for FDI have reduced or removed labor regulations and taxes for welfare spending, along with increasing the suppression of trade unions, to appear the most attractive location for TNC investment (de Rivero 2001; Rudra 2008). States labeled as newly industrializing countries (NICs) such as Brazil, Chile, and South Korea have been criticized for such practices. As much as their competitiveness may have been due to market factors and the quality of education, some argue that the coercive production of labor discipline and semi-authoritarian government has played its part also (Bello 1999). The creation of export processing zones where particular trade and labor regulations are relaxed and tax breaks offered in order to secure investment are considered indicative of such processes (Klein 2001).

Environmental Rights and Natural Resources

The extraction of natural resources within the global economy and the production of environmental degradation have been highlighted as sources of human rights violations, leading to calls for environmental rights to be included within the framework of human rights (Hancock 2003: Chapter 7). The conflict between Royal Dutch/Shell and the Ogoni people in Nigeria is a well-documented example. The Movement for the Survival of Ogoni People (MOSOP) was formed in 1991 as a protest movement that sought self-determination, “to force Shell and the Nigerian state to accept their right to control their own land, and the proceeds therefrom” (Obi 2005:318). Their protest was based on the idea that land was not simply a form of private property and that environmental degradation had dire social consequences. Activist Ken Saro-Wiwa argued, for example, that the Ogoni had received nothing of the $30 billion Nigeria had earned, except “a blighted countryside, an atmosphere full of carbon dioxide, carbon monoxide and hydrocarbons, a land in which wildlife is unknown, a land of polluted streams and creeks, of rivers without fish, a land which was in every sense of the term an ecological disaster” (Saro-Wiwa 1995:74).

The Ogoni movement based much of its resistance on claims to universal human rights (Hancock 2006). MOSOP has taken its case to NGOs such as Amnesty International and Greenpeace, and later to the UN, seeking to draw the international community into forcing Shell and the Nigerian government to alter their policies with the aid of Northern public opinion (Obi 2005:324). In June 2009 this led to a $15.5 million settlement by Shell to prevent the matter going to court in New York (Pilkington 2009). There also exist substantial concerns over the illegality of natural resource extraction in areas where state governance is particularly weak, revealed for example in the June 2005 Lutundula Commission report concerning the Democratic Republic of Congo (Human Rights Watch 2006).

The notion of environmental rights as a component of international law is supported by some as an answer to questions of degradation, pollution, and competition over scarce resources such as water and fertile land, particularly in Africa (Soden and Prager 2005). However, critics suggest that the idea of environmental rights, despite claiming popular support where such negative human outcomes result, stand outside of the way in which the global economy prioritizes TNCs over local populations (Hancock 2003:154–5).

Critique

Scholars engaged in critique question the foundational claims of universal human rights under conditions of globalization (Stammers 1995; Pasha and Mutua 2002; Evans 2005). They highlight the way in which human rights act as a form of power over people, especially where different ways of life are brought into contact and conflict through transformations associated with globalization, which Samuel Huntington identifies in his Clash of Civilizations (1996). Importantly, such scholars reject the idea of the progressive realization of human rights as some form of an inevitable unfolding of history or as a singularly desired end point, and instead acknowledge conflicting conceptions of rights as expressions of social struggle (Stammers 1999). These critiques have been made possible by the way in which globalization has facilitated new forms and networks of social and intellectual interaction among diverse and dispersed groups, through the global spread of communications technologies such as the internet.

On the one hand, the purported indivisibility and universality of human rights in a globalized world are questioned. Whereas the formal human rights regime rests on liberal norms of the indivisibility of both civil and political, and economic and social rights, along with the universality of a model of rights based on individual rights and property ownership (Donnelly 2003), critiques of this framework outlined below suggest that it promotes a Western, individualist, and capitalist conception of rights, marginalizing and excluding alternative ways of life. On the other, the basis of international law on which the global human rights regime is founded is also challenged. This follows the work of Italian Marxist Antonio Gramsci, who saw legal and political institutions in terms of power and hegemony within a framework of historical struggle among different classes within society (Gramsci 1971). From this perspective, law is thus understood as a disciplinary mechanism that, instead of creating possibilities for human freedom, coerces people toward particular ways of living. Critique thus places all bodies that engage in the creation, promotion, and enforcement of international law, such as institutions of global governance, regional organizations, and NGOs, under scrutiny as a potential barrier to the creation of alternative conceptions of human rights on a global scale. Four brief and broad examples of contemporary critique are offered here.

Neo-Marxism: The Question of Economic and Social Rights

Neo-Marxists critique the claim of the indivisibility of civil and political rights and economic and social rights under globalization. Their argument is that the very nature of the capitalist world order means that only civil and political rights are promoted under globalization (Cranston 1973).

The liberal account of the post–1945 human rights regime suggests that an inclusive international framework of economic and social rights alongside civil and political rights was constructed by US-led negotiations. The US promoted both sets of rights as the basis of a new global order. In domestic policy, this was matched by the construction of the welfare state and the pursuit of industrialization and economic development. The formal human rights regime thus presented the “international norm of the interdependence and indivisibility of all human rights,” including economic and social rights (Whelan and Donnelly 2007:909). Neo-Marxists argue that this norm does not reflect actual practice in the postwar era. Instead, they contend, the US and its allies, along with institutions of global governance and key civil society actors, have “succeeded in acknowledging formal parity between the two sets of rights while simultaneously promoting only civil and political rights through rhetoric, policy and action” (Evans 2005:80).

This is because, on the one hand, “negative” civil and political rights, which enable individual freedoms such as the ownership of private property and free market practices, constitute the legal-political framework for the existence of the free market and the pursuit of self-interest, cornerstones of the global liberal economic order (Evans 1996). This set of rights is the basis for the global economy, legitimated through claims of indivisibility and universalism (Kirkup and Evans 2009).

On the other, “positive” economic and social rights place a constraint on the freedom of free market actors. Accordingly, this set of rights can only ever be aspirations, because their fulfillment depends on breaching liberal principles of private property through the redistribution of wealth. Economic and social rights should therefore be seen as, at best, “entitlements” won either in the marketplace or by political struggle (Thomas 2000). According to this argument, legitimate human rights are defined as that set of rights that require government abstention from acts that violate the individual’s freedom to invest time, capital, and resources in processes of production and exchange (Tetrault 1988).

Under conditions of globalization, neo-Marxists suggest that many of the trends identified above, such as structural adjustment and lower welfare payments, limited democracy, declining labor standards, and so forth, are indicative of this process, increasing the strength of civil and political rights while at the same time undermining the fulfillment of economic and political rights (Evans 1998).

Postpositivism: Universality as Power/Knowledge

Postpositivist critiques question the way in which the global discourse of human rights are built on universal truth claims. Foucault, for example, rejects the liberal notion that knowledge can flourish only in the absence of power. Instead, he argues that there can be no knowledge without power or power in the absence of knowledge (Foucault 1980; Cozens Hoy 1995). Discourses that claim the status of universality and truth do so not because they are in fact universal and true but, rather, because this status has a particular role in relations of politics, power, and interests. Such claims legitimate the right to speak for some and exclude others (Foucault 1981). The postpositivist critique of human rights discourse, then, is that its claim of universality is a mask for hidden relations of power. This is revealed by the disjuncture between the optimism offered by the formal regime and the pessimism engendered by continued reports of gross violations of human rights, seemingly from within the structures and processes of globalization. Thus Langlois, for example, argues that human rights discourse can no longer be considered an “unproblematic articulation of moral progress in the twentieth [or twenty-first] century, as allegedly demonstrated by near-universal state recognition of the [Universal Declaration] and subsequent instrumentalities” (Langlois 2001:100).

Following this argument, an insight into these hidden relations of power can be gained through the concept of discipline (Foucault 1991). In this sense, the “truth” of human rights can be understood as part of a program for disciplining global order. Foucault uses the term discipline to refer to a form of power that is individual, with particular ways of thinking, knowing, and behaving, thus instilling modes of social consciousness that make social action predictable. Discipline is learned and practiced in the day-to-day complex of social life, where notions of correct and incorrect behavior and thought are clearly delimited by the norms, value, and beliefs that act to reproduce and “normalize” social life (Foucault 1994). In this context, international law is understood as a disciplinary mechanism that, instead of creating possibilities for human freedom, coerces people toward particular ways of living (Hunt and Wickham 1994).

From the perspective of disciplinary power, then, critics of the liberal conceptions of rights have argued that the institutionalization of discourse within the contemporary global order, which produces and promotes truth claims, obscures and conceals the processes of domination that lie beneath normal social practice (Ivison 1998). Gill refers to the most prominent of the disciplines within the current global order as “market discipline,” which stresses economic growth and development, deregulation, the free market, the privatization of public services, and minimum government. He argues that this can be seen in national and international economic planning, market-based solutions for environmental degradation, the move to privatize social welfare provision, and the move to commodify biological life, seen in the scramble to patent the genes of both human and nonhuman life forms (Gill 1995b).

From this perspective, human rights appear to have a disciplinary role under globalization. The creation and implementation of international law and the human rights regime, along with processes for “normalizing” the social order, including surveillance techniques conducted by the institutions of global governance (Gill 1995a), are constructive of a particular kind of human being and particular global social order based on the free operation of global capital on a global scale (Gill 1992a).

Feminism: The Invisibility of Women

There exist a variety of critical feminist arguments concerning human rights under conditions of globalization, some of which have been mentioned above. An important feminist critique of human rights under globalization argues that women are largely invisible within the discourse of universal human rights, which are, in essence, men’s rights (Peterson and Parisi 1998:141). The failure of human rights discourse, according to this argument, is seen specifically in how the purported universality of rights obscures various social, economic, and political inequalities and contestations that limit the actual realization of human rights for women (Rao 1995; Robinson 1998; Radicic 2008).

Feminists note that the various legal documents and treaties that collectively constitute the global human rights regime use predominantly gendered language, which assumes a subservient social, economic, and political role for women in relation to men (Otto 2005). The postwar discourse of universal human rights established the rights of all citizens within civil society, but at that time civil society was largely viewed as the domain of men. This is revealed in the gendered language of the Universal Declaration, which calls for human beings to “act towards one another in the spirit of brotherhood” (UN 1948: Article 1, emphasis added throughout). In turn, Article 11.1 ensures that “he has had all the guarantees necessary for his defence” during trials. Following from this, a whole set of social relationships apart from that between state and citizen are assumed, for example those within the household and family (Sullivan 1995; Engle 2005). Article 16.3, which states that the “family is the natural and fundamental group unit of society,” overlooks the potential of the family as a “powerful regulatory mechanism of a female’s productive abilities, reproductive capacity, sexuality, and participation in other social contexts” (Rao 1996:250). The Universal Declaration asserts that everyone has the right to “just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity” (UN 1948: Article 23.3), including the right to “a standard of living adequate for the health and well-being of himself and his family” (as highlighted by Charlesworth 1995). Within the foundational documents of the global human rights regime, feminists contest, men rather than women are portrayed as the breadwinning, economic actors within civil society.

Feminists engaged in critique argue that globalization is creating substantial difficulties for the realization of women’s rights. A key feminist contention is that whereas conditions of globalization have brought a substantial transformation of women’s roles, especially in terms of what constitutes the distinction between household and workplace (Peterson and Runyan 2005), these transformations are not reflected within the human rights regime. This leaves women vulnerable to finding themselves on the outside of human rights protection and provision, especially in the case of economic and social rights (Obando 2003; Grown et al. 2006). Otto, for example, suggests that the degendered language of most human rights treaties and legislation is not only implicitly masculine, but also undermines the particular biological and rapidly changing social relations of women globally (Otto 2005). Borrowing from the postpositivist critique, feminists thus argue that the rise of human rights as a legal construct only serves to mask the real changes that globalization has brought to women’s lives, changes that reinforce longstanding arguments that the human rights regime follows a male agenda (Peters and Wolper 1995).

Furthermore, despite the often claimed equality of rights, and the prohibition on discrimination on grounds of sex or gender (UN 1981), women’s work appears to remain undervalued, both within the home and with regard to paid employment (Hoogvelt 2001; McMichael 2004). In turn, Jill Steans argues that such gendered inequalities continue to be reinforced through global institutions, for example through policies of structural adjustment that have placed a greater burden on women through the reduction of state welfare payments and the privatization of public services (Steans 2006; UNDP 1995). Finally, Lazarus-Black and Merry highlight how particular national implementations of women’s rights in line with global treaties, for example in the case of protecting against gender violence, legislate in favour of male-dominated cultural norms over and above the rights of women as enshrined in international law (Lazarus-Black and Merry 2003).

Cultural Relativism: Islamic Thought and Asian Values

Globalization has led to fresh claims of cultural relativism in the face of the apparent universality of global human rights (Evans forthcoming). Cultural relativism suggests that the idea of universal ideas, conceptions, language, standards, or values existing across civilizations or cultures in a globalized world is fundamentally problematic. Rather than attempt to build a global society based on an inclusive set of human rights, such universalism is often argued to be an instance of cultural imperialism, the imposition of one civilization’s values on another (Said 1998). Following Huntington’s thesis that globalization has led to a “clash of civilizations,” the universality of the global human rights regime has thus come under challenge from cultural (or civilizational) standpoints that resist the hegemony of Western conceptions of rights (Cox 2002: Chapter 4). Their “validity in a multi-cultural world” is thus questioned (Dalacoura 2007:8). Two examples are considered here.

First, Islamic critiques concentrate on the ways in which human rights discourse, as an element of Western influence and Western-led globalization, undermines Islamic society and values. The basis of this critique is that whereas Western human rights discourse emphasizes individual rights, Islam gives precedence to duties and community, centered on the ummah, or the community of Islam (Armstrong 2002; Hassan 2003). While Islamic scholars often acknowledge the concept of human rights as a significant global issue, such that it is now “ugly and abominable to stand against human rights” (Humied 2000), Islamic scholars have put forward an alternative framework for human rights with the Qur’an as the foundational document (Maududi 1976; Hassan 1996). This has been outlined for example in the Cairo Declaration of Islamic states at the UN in 1990 (UN 1990; IHEU 2008).

Within Islamic thought founded on the Qur’an, the ummah is viewed as the only legitimate social context for economic activity, and as such the interests of the individual are fused with those of the community (Hashmi 2002). It is therefore considered legitimate to curtail individual freedoms when the security of the ummah and the collective interests of its members are threatened. These interests, which include the maintenance of minimum levels of welfare, housing, education, and medical care, take priority over the rights of the individual to pursue unlimited self-interest (Behdad 1995). The duty of the Islamic state and its citizens, then, is to establish and maintain the principles, norms, and values of Islamic society, not to ensure the rights of individuals in pursuit of personal wealth (Mernissi 1991). This leads to fundamental difficulties where Islamic notions of gender difference come into conflict with liberal ideas of equal rights among men and women enshrined in the Universal Declaration (Kristianasen 2004).

Secondly, the 1990s debate over Asian values is instructive here also. The central concern of Asian values discourse was with the social impact of individualism within the global human rights regime in the context of the rapidly expanding global economy (Langlois 2001). The East Asian “Tiger” economies of the 1980s and 1990s achieved high levels of economic growth under what Davies calls “market preserving authoritarianism,” an approach to government that stressed strong leadership and social discipline over democracy, rights, and individual freedoms (Davies 1998). To maintain this successful economic model, Asian leaders sought to resist what they viewed as the worst excesses of capitalism by differentiating Western values from Asian values, promoting an alternative vision of human rights that supported Asian states’ economic and political interests, and providing a defense against external interference in their internal affairs. This was articulated clearly at the 1993 Bangkok Regional Conference, and at the following Vienna World Conference on Human Rights, for example by the declarations of representatives from Singapore, Malaysia, China, Indonesia, and Thailand (Brems 2001: Chapter 3). This process has been continued with the July 2009 ministerial proposal for an ASEAN human rights body with consultative powers, a clear attempt to maintain a hold on the regional human rights agenda in East Asia (Piromya 2009). The Asian values critique, sourced from the vantage point of state elites, is summed up well by the Chinese claim at Vienna that “individuals must put the state’s rights before their own” (quoted by Cooper 1994:69). Just as with the Islamic critique, this notion clashes directly with the Universal Declaration, which, as Donnelly argues, demands that “[t]he rights of the community,” and indeed the state, “whatever priority we give to them, are not human rights” (Donnelly 2003:114, emphasis added).

Unresolved questions

The changing milieu of human rights claims under conditions of globalization offers many questions for the future. For the most part these are not new, but they have bedeviled postwar human rights talk since before the signing of the Universal Declaration. Globalization has brought them to the fore once again, this time in amended form.

First, although the literature on globalization recognizes changes in the nature of statehood and sovereignty, a substantial tension remains between claiming a set of universal values within a global order and the way in which this is described through the language of the sovereign state. Although other actors such as the institutions of global governance, TNCs, and social movements may have changed how this issue is framed, they have not transcended the fundamental discrepancy between the global and the national (Krasner 1999; McCorquodale and Fairbrother 1999; Falk 2000).

Second, and following from the first point, is the question of international law as the prime, if not the only, tool for securing human rights. If the global order is best described today as “globalized,” rather than an international order of states, important questions arise concerning the subjects of “international” law. These questions have led some commentators to call for a new form of law, perhaps better described as “transnational” law, that widens the subjects of law to include actors whose activities lead to violations of human rights (Chinkin 1998; Evans 1998; Gearty 2006).

Third, the new voices on human rights enabled through global telecommunications technology have resurrected old debates concerning cultural relativism. At the end of the Cold War many believed that the age of universally accepted human rights had arrived. Instead, globalization has produced a situation in which many cultures seek to challenge the Western, liberal foundations of rights and assert alternatives (Weston 1999; Englehart 2000; Goodhart 2003).

Finally, one of the characteristics of globalization is the creation of institutions of global governance mandated to make and implement decisions with human rights consequences. The WTO, World Bank, and IMF fall into this category. Although these institutions are now receiving attention on questions of human rights, so far little has been achieved. In turn, an understanding of the role of TNCs as nonstate actors in the global human rights regime, especially with regard to attempts to bring human rights into their decision making, has not been sufficiently established (Oloka-Onyango and Udagana 2000; Secretary-General 2000; Monshipouri 2003).

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