Social Movements and the Social Construction of Human RightsAuthor(s): Neil StammersSource: Human Rights Quarterly, Vol. 21, No. 4 (Nov., 1999), pp. 980-1008Published by: The Johns Hopkins University PressStable URL: http://www.jstor.org/stable/762754Accessed: 03/11/2009 22:45

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Social Movements

paper argues that these lacunae arise because dominant discourses from both proponents and opponents of human rights are not analytically equipped to grasp the way in which ideas and practices in respect of human rights have been socially constructed in the context of social movement challenges to extant relations and structures of power. The contention of this article is that if we use the triadic relationship between human rights, social movements, and power as an organizing focus for analysis, we get a very different picture from those offered by the dominant discourses, not only in respect of the origins and development of human rights, but also their potentials and limits.

The need to see this alternative picture is made all the more urgent by the current pace of the processes of globalization, which appear to be significantly transforming the capacities of many social and political institutions, including the nation-state. The potential importance of this last point can hardly be exaggerated given that the nation-state is almost universally regarded as the main duty-bearer in respect of all forms of human rights. Beyond this, it is also clear that human rights are part of globalization processes: an important and contested, some would even say oppressive, element of political globalization.

In the rest of this introduction, I will set out my assumptions in respect of social constructionism and power. The first main section of the article will then offer some initial thoughts on the nature of social movements and the role of social movements in the socio-historical development of human rights. The section which follows looks at the limits of the dominant discourses on human rights, and the third section examines how we might go about understanding the highly ambivalent relationship between human rights and power. This leads to a final section which considers some issues relating to how human rights might be reconstructed under contemporary conditions of globalization.

A. Social Constructionism and Power

To say that human rights are socially constructed is to say that ideas and practices in respect of human rights are created, re-created, and instanciated by human actors in particular socio-historical settings and conditions. It is a way of understanding human rights which does not require them to have any metaphysical existence (for example, through nature or God), nor does it rely on abstract reasoning or logic to ground them. The emphasis on the potential creativity of human actors in this understanding of social construc- tionism also stands in contrast to forms of structuralist explanation that reduce the role of social actors to nothing other than bearers of structural determinations. Taken together, these assumptions locate my ontological

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and epistemological positions close to those of "structurationist" and "critical realist" schools of thought,3 sharing common features with many feminist, and some cultural relativist, critiques of human rights.4

"Power" is the other term I want to briefly discuss at the outset, because how power is conceptualized also bears heavily on how human rights have been understood. Within the western liberal tradition, the concept of power has often been used in a very limited way: as the capacities of social actors located in the political sphere (the state, government, political parties, etc.). In other words, the sort of power that has been much described, studied, and analyzed has been restricted to political power. There have been, of course, much wider understandings of power than this, most evidently emanating from the discipline of sociology. However, for the most part, these alternative conceptions have tended to focus, not on power as such, but on the perceived structural basis of that power. For example, in the case of Marxism, the focus has been on the capitalist mode of production. In the last thirty years or so-and significantly linked to the rise of the so-called "new social movements," especially the feminist movement-power has come to be understood in a much wider sense, as being a pervasive feature of most, probably all, forms of social relations.

These wider analyses of power have often been mediated in academia

through interpretations of the work of Michel Foucault.5 While I cannot enter into detail here, I want to suggest that, while Foucault's work provides important insights into the nature and operationalization of power in

contemporary social relations, it has also generated interpretations which are highly problematic. To avoid these difficulties, my suggestion is that, by synthesizing some of Foucault's insights with a retrieval of the core elements of Steven Lukes' three-dimensional view of power,6 it is possible to see the outlines of what might be termed a materialist/socio-cultural conception of

power. What have typically been seen as two of the strengths of Foucault's

views on contemporary forms of power are, firstly, that power is inherently

3. See generally ANTHONY GIDDENS, THE CONSTITUTION OF SOCIETY: OUTLINE OF THE THEORY OF STRUC-

TURATION (1984); IRA J. COHEN, STRUCTURATION THEORY: ANTHONY GIDDENS AND THE CONSTITUTION OF

SOCIAL LIFE (1989); ROY BHASKAR, RECLAIMING REALITY: A CRITICAL INTRODUCTION TO CONTEMPORARY

PHILOSOPHY (1989); ANDREW COLLIER, CRITICAL REALISM: AN INTRODUCTION TO ROY BHASKAR'S

PHILOSOPHY (1994). 4. See, e.g., Eva Brems, Enemies or Allies?: Feminism and Cultural Relativism as Dissident

Voices in Human Rights Discourse, 19 HUM. RTS. Q. 136 (1997). 5. Including recent studies of global change. See, e.g., Stephen Gill, The Global Panopticon?:

The Neoliberal State, Economic Life, and Democratic Surveillance, 20 ALTERNATIVES 1 (1995); Kate Manzo, Global Power and South African Politics: A Foucauldian Analysis, 17 ALTERNATIVES 23 (1992).

6. See STEVEN LUKES, POWER: A RADICAL VIEW (1974).

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relational and "circulates" throughout all networks of social relations, and, secondly, that those subjected to power are-at least to some degree- constructed as subjects by that power.7 From the point of view of this article, what is important is that Foucault's work emphasizes the importance of analyzing how power is embedded in everyday life and the fact that it cannot simply be "abolished." That said, many readings of Foucault's work derive these insights from a direction which negates both the possibility of grasping the material bases and concentrated nature of particular forms of power and, also, any real possibility of social actors being able to effectively resist the effects of power. The heart of the problem here is the extent to which power is seen as constructed solely through discourse and discursive practices and the degree to which such discourse and discursive practices can be said to entirely constitute the subject (of power), that is, social actors .8

Debates about the correct interpretation of Foucault's work will no doubt continue, but I will side-step them here by suggesting that his emphasis on the socio-cultural embeddedness of power in everyday life is compatible with, and in fact can be buttressed by, a retrieval of Lukes' three- dimensional view of power.9 The strengths of Lukes' conception of power are: it is neither purely actor-centered nor structuralist; it recognizes that power is constructed and exercised materially as well as socio-culturally; and it posits that power can be constructed so as to constitute domination. That said, Lukes' focus remained on the traditional and instrumental loci of power. So, in trying to synthesize these various points, I suggest that we need to see power as being held, developed, and exercised consciously by individual or collective social actors, but also recognize that it manifests itself structurally through the patterning of social systems regardless of consciousness or intent. Furthermore, power is always and necessarily embedded in a network of concrete social relations. These relations include, but do not solely comprise, discourse. In this framework, while recognizing that power may be constructed so as to constitute domination, the possibility of agency-and thus, effective resistance-is not negated a priori.

7. See MICHEL FOUCAULT, POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 1972-1977

(1980); Michel Foucault, Afterword to HUBERT L. DREYFUS & PAUL RABINOW, MICHEL FOUCAULT: BEYOND STRUCTURALISM AND HERMENEUTICS 208 (1982).

8. For a brief, useful discussion of this point, see Sandra Lee Bartky, Agency: What's the Problem?, in PROVOKING AGENTS: GENDER AND AGENCY IN THEORY AND PRACTICE 178, 186 (Judith Kegan Gardiner ed., 1995).

9. See LUKES, supra note 6.

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II. A CONCEPTUAL SKETCH OF THE ROLE OF SOCIAL MOVEMENTS IN THE SOCIO-HISTORICAL DEVELOPMENT OF HUMAN RIGHTS

My focus here should not be read as implying that other social actors (e.g., states, United Nations bodies, and NGOs) are not involved in the social construction of human rights; clearly they have been and are. However, I do argue that the role of social movements in the long-term historical develop- ment of human rights has been of great significance. This section, therefore, begins by briefly looking at the concept of social movements and how I see them relating to processes of social change.

A. Social Movements and Social Change

Social movements have typically been defined as collective actors consti- tuted by individuals who understand themselves to share some common interest and who also identify with one another, at least to some extent. Social movements are chiefly concerned with defending or changing at least some aspect of society and rely on mass mobilization, or the threat of it, as their main political sanction.10 On the one hand, social movements can be contrasted with cultural trends and fashions which exhibit less organization and conscious orientation to change, while, on the other, they can be contrasted to much more formally organized and ideologically coherent associations, such as political parties and interest groups. In the context of this article, it is particularly important to note that formally structured organizations may exist within or alongside a social movement and that many nongovernmental organizations (NGOs) are connected to movements in this way. So, for example, Amnesty International is a formally structured organization; it is not a social movement. Rather, it is an NGO that is a particular organized node of a broader human rights movement. Social movements traditionally have been studied and researched as a sub- branch of sociology, but, with the rise of thinking about globalization, there has been a flurry of interest in social movements from those studying processes of global change and from researchers in international relations."

Drawing on elements most evidently from the work of Alain Touraine and Alberto Melucci (but not utilizing the oft made, but fatally flawed,

10. See, for example, the definition given in ALAN SCOTT, IDEOLOGY AND THE NEW SOCIAL MOVEMENTS 6 (1991).

11. See especially Richard Falk, The Global Promise of Social Movements: Explorations at the Edge of Time, 12 ALTERNATIVES 173 (1987); Social Movements and World Politics, MILLENIUM (Special Issue), Winter 1994.

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distinction between supposedly "old" and "new" social movements),12 my contention is that social movements have been, and remain, important agents in the processes that foster or retard socio-historical change. From Touraine's earlier work on social movements and the self-production of society, I draw the idea that social movements are always engaged, to some degree, in a struggle for "historicity," that is, the basic values, orientations, and structures of a society.13 From the work of Melucci, I incorporate the insight that social movements have an important "expressive" dimension which can be embedded in everyday life through "subterranean networks" of contacts, affinity, identity, and so on.'4 In other words, social movements are important agents of socio-cultural change which should not be defined solely by reference to their visibility in terms of overt political mobilizations.

Borrowing from the work of Jean Cohen and Andrew Arato,'5 these points can be brought together by seeing social movements as always having "dual faces" which dialectically combine instrumental-political, economic, or social-demands with an expressive dimension oriented towards norms, values, identities, lifestyles, etc. This can be represented as follows:

Diagram 1: The Dual Faces of Social Movements

Dual and Dialectical Faces Dimension Instrumental Expressive

(not just "interests") (not just "identity")

To talk about "instrumental" and "expressive" dimensions of social move- ments is hardly novel.'6 However, to use such terms intentionally transcends and disrupts those analyses which have sought to explain social movements either in terms of "interests" or in terms of "identity," or else have attempted to look at social movements in terms of the relation between "interests" and

12. This has been a fundamental debate in the field of social movement studies since the rise of the so-called "new social movements" in the mid-1960s. For critical analysis, see Paul D'Anieri et al., New Social Movements In Historical Perspective, 22 COMP. POL. 445 (1990); David Plotke, What's So New About New Social Movements?, 20 SOCIALIST REV. 81 (1990); Steven M. Beuchler, New Social Movement Theories, 36 Soc. Q. 441 (1995); Neil Stammers, Social Movements and the Challenge to Power, in POLITICS AND GLOBALISATION:

KNOWLEDGE, ETHICS, AGENCY (Malcolm Shaw ed., forthcoming 1999). 13. See ALAIN TOURAINE, THE SELF-PRODUCTION OF SOCIETY (1977); ALAIN TOURAINE, THE VOICE AND THE

EYE: AN ANALYSIS OF SOCIAL MOVEMENTS (1981). 14. See generally ALBERTO MELUCCI, NOMADS OF THE PRESENT: SOCIAL MOVEMENTS AND INDIVIDUAL NEEDS

IN CONTEMPORARY SOCIETY (John Keane & Paul Mier eds., 1989). 15. See JEAN COHEN & ANDREW ARATO, CIVIL SOCIETY AND POLITICAL THEORY (1992). 16. See, e.g., MELUCCI, supra note 14; Alan Scott, Political Culture and Social Movements, in

POLITICAL AND ECONOMIC FORMS OF MODERNITY 127 (John Allen et al. eds., 1992).

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"identity."17 The use of the term "instrumental" here opens up the possibility of understanding that social movement actors make concrete political, economic, and social demands but that such demands do not necessarily serve the interests of those actors. In other words, it allows for the articu- lation of demands which are at the same time altruistic and instrumental.

Similarly, to use the term "expressive" makes it clear that this dimension extends beyond the construction and articulation of particular identities into the broader realm of the socio/cultural construction of values, norms, lifestyles, identities, symbols, discourses, etc., which are then typically articulated and projected into the wider social and cultural milieu. I should emphasize that my propositions here are of a general nature: how this instrumental/expressive dialectic "works out" in any particular movement will vary and there is no necessary equivalence between instrumental and expressive dimensions in particular social movements. My point-in con- trast to most previous analyses-is that this instrumental/expressive dialectic has been, and remains, a general feature of social movements, while its manifestation and/or construction undoubtedly varies from movement to movement and across time and place.

B. Social Movements and Human Rights: The Challenge to Power

A good prima facie case, I think, can be made to show that many of the key innovations in the socio-historical development of human rights were constructed and articulated, in the first instance, in the context of social movements seeking to challenge extant relations and structures of power. While this proposal certainly needs much more investigation than can be offered here, if accurate, it should transform our understanding of the origins

17. The interest/identity dichotomy has been extensively used analytically to distinguish between "old" and "new" social movements, with "old" movements being said to be predominantly concerned with the pursuit of material interests and "new" movements being said to be much more concerned with identities. Without wishing to foreclose that debate, in switching the emphasis towards focusing on an instrumental/expressive dialectic, we can recognize that, historically, social movements have always encom- passed both, at least to some extent. There was an important expressive dimension to the "old" labor movement just as there were/are clear expressive dimensions to nationalist movements-whether of the nineteenth or twentieth century varieties. On "new" dimensions of "old" movements, see Kenneth H. Tucker, How New are the New Social Movements?, 8 THEORY, CULTURE & SOC'Y., May 1991, at 75 (1991); Craig Calhoun, "New Social Movements" of the Early Nineteenth Century, 17 Soc. Sci. HIST. 385 (1993). I am also avoiding the use of the "strategy"/"identity" relation as discussed by Cohen and Arato and many others because these terms seem to relate more to distinctions arising out of the study of social movements (i.e., resource mobilization theory versus new social movement theory) rather than to distinctions within movements themselves. See generally COHEN & ARATO, supra note 15.

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and development of human rights. There is already some general recognition of the point in the literature. For example, David Beetham has argued recently that the subject of human rights "demands attention to considerations of both power and justice, of political struggle and justiciability, if the subject is to be adequately understood."'8 Similarly, in Human Rights in the Twenty First Century: A Global Challenge, a number of writers discern links between social movements, power, and human rights.19 Perhaps most interestingly, the entire literature which focuses on supposed "generations" of human rights could be seen as being built on an assumption of the link between rights claims and the historical struggles of particular social movements, as Burns Weston has come close to acknowledging.20 How- ever, despite these hints, only a small number of papers have ever attempted to look at these links systematically,21 and, even then, the ways in which social movements construct and deploy rights discourses have rarely been considered to be of analytical import.

My proposal here is that the role of social movements in the socio- historical construction of claims to human rights might be generally understood in the terms sketched out in diagram 2.

Diagram 2: The Historical Role of Social Movements in the Social Construction of Human Rights

Dual and Dialectical Faces

Dimension Instrumental Expressive (not just "interests") (not just "identity")

Challenge to existing agents, sites socio-cultural manifestations and structures of power of power relations in everyday life

Use of human rights claims rights claims as legitimating rights discourses as political, economic alternative values/norms and

and social demands validating self/group identities

So, here, I am suggesting that the construction and use of rights discourses by social movements has played an important and positive role in challenging relations and structures of power, both in respect of concentrated "sites" of

18. David Beetham, Introduction: Human Rights in the Study of Politics, in POLITICS AND HUMAN RIGHTS 1, 8 (David Beetham ed., 1995).

19. See generally A GLOBAL CHALLENGE, supra note 2. 20. See Weston, supra note 2. 21. Interesting exceptions are Fields & Narr, supra note 1; Blomley, supra note 2; Alan Hunt,

Rights and Social Movements: Counter-Hegemonic Strategies, 1 7 J.L. & Soc'Y 309 (1990); Nikhil Aziz, The Human Rights Debate in an Era of Globalization: Hegemony of Dis- course, 27 BULL. CONCERNED ASIAN SCHOLARS, Oct.-Dec. 1995, at 9; J.L. Richardson, Con- tending Liberalisms: Past and Present, 3 EUR. J. OF INT'L REL. 5 (1997).

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power and in terms of the way that power is embedded in everyday social relations. Insofar as the point has been considered at all, previous commenta- tors only have considered the use of rights discourses in purely instrumental terms. However, I am suggesting that they also operate expressively in seeking to legitimate alternative values, norms, and lifestyles and validate the perspectives and identities of those oppressed by particular relations and structures of power.22 In Gramscian terms, they might be said to be seeking to establish "counter-hegemony" at the level of public "common-sense."23 A very brief sketch of a few basic contours of a chronology of the socio- historical development of human rights may illustrate what I mean.

The idea that claims to natural rights and the rights of man were socio- historical constructions that sought to challenge extant relations and structures of power-the power of absolutist states-is quite uncontroversial.24 What might seem rather more strange is to think of "liberalism" as a social movement. Yet, as J.L. Richardson has noted recently, liberalism is a nineteenth century term which has been used to describe a range of historical social movements involved in struggles to achieve fundamental political and social change in the seventeenth and eighteenth centuries.25 Few would deny that the American and French revolutionary movements were social movements as defined above, but Richardson also points out that "political movements propounding liberal values first appeared in the mid-seventeenth century, when the characteristic liberal themes and de- bates were first articulated in the English Revolution."26 Interestingly, these were John Locke's formative years. Indeed, Peter Laslett notes that "[t]he resemblance between Locke's final political doctrines and those of the English radicals writing and acting between 1640 and 1660 is most marked."27

The idea that claims for economic and social rights were constructed in the context of the emerging socialist and workers' movements of the nineteenth century also appears uncontentious. The unfettered accumula-

22. See Amy Bartholomew & Margit Mayer, Nomads of the Present: Melucci's Contribution to "New Social Movement" Theory, 9 THEORY, CULTURE & Soc'Y., Nov. 1992, at 141. This is a point that is rarely made. Yet, in an interesting review of Nomads of the Present, Bartholomew and Mayer suggest that Melucci fails to address the "expressive" dimension of rights discourses because he "erects an overly sharp dichotomy between political- strategic-instrumental action and political representation on the one hand and everyday life, culture, identity formation and symbolic challenges on the other." Id. at 154.

23. See Hunt, supra note 21, at 314. 24. See, e.g., JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY & PRACTICE 28-29 (1989);

Margaret Macdonald, Natural Rights, in HUMAN RIGHTS 40 (A.I. Melden ed., 1970); Kenneth Minogue, The History of the Idea of Human Rights, in THE HUMAN RIGHTS READER 3, 5 (Walter Laqueur & Barry Rubin eds., 1979).

25. See Richardson, supra note 21, at 8. 26. Id. 27. Peter Laslett, Introduction to JOHN LOCKE, Two TREATISES OF GOVERNMENT 3, 21 (Peter Laslett

ed., Cambridge Univ. Press 1988) (1690).

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tion of private property and the unbridled exercise of economic power led these movements to challenge the fundamental power relations of capitalist society. As Weston puts it, economic, social, and cultural rights find their "origins primarily in the socialist tradition that was foreshadowed among the Saint-Simonians of early nineteenth-century France and variously pro- moted by revolutionary struggles and welfare movements ever since."28

The twentieth century has witnessed not only the global rise of anti- imperialist movements mobilized around a claim of a right to national self- determination,29 but, in the last thirty years or so, the rise of movements, usually referred to as the "new social movements," that have mobilized around a wide variety of issues. Some of these movements, such as the women's movement, the green movement, indigenous peoples' movements, and human rights movements, now appear to be becoming global social movements, in the sense that they are both global in scope and have an overtly global orientation. This is true even in cases (such as that of indige- nous peoples' movements) where the assertion of cultural identity and difference lies at the heart of the movements. Virtually all of these movements have made extensive use of rights discourses and proliferated whole new sets of rights claims, many of which have been articulated as claims for human rights. As mentioned earlier, these so-called "new social movements" have identified and challenged relations and structures of power in a wide diversity of forms.

In summary, my suggestion is that, increasingly since at least the beginning of the Enlightenment period, social movements have demonstrated a capacity to, as Melucci puts it, "[make] power visible,"30 utilizing rights claims to challenge such relations and structures of power, both instrumen- tally and expressively. Indeed, it might be accurate to see the socio-historical development of ideas of human rights emerging as social movements identified, recognized, and sought to challenge particular forms of power. Even though such challenges may not have succeeded, it is possible to see here an unfolding and expanding of increasingly complex understandings of power arising as a consequence of the struggles of social movements.

Clearly, these broad general claims need to be substantiated by detailed and specific historical research. Yet, currently, such research is notable only by its absence. One explanation for this is to be found in the analytical

28. Weston, supra note 2, at 19. 29. The origins of the formulation of a people's right to national self-determination can be

found in the early declarations of natural rights, but its modern form only developed after World War I, following Woodrow Wilson's "14 point speech" and the emergence of anti-imperialist movements.

30. MELUCCI, supra note 14, at 76. Melucci explains this capacity in terms of what he calls contemporary social movements. I am therefore proposing a much wider applicability.

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inadequacies of the dominant discourses on human rights. It is these that I now want to examine.

III. LIMITS OF THE DOMINANT DISCOURSES

If the central contention of the last section is accurate, it is indeed strange that the dominant discourses on human rights have been able to studiously ignore this reality. Why should this be? A wide variety of problems are involved, producing different forms of epistemological and ontological "blinkering." Four groups of such problems, which I have termed "meta- physical abstraction," "legal positivism," "strong particularism," and "struc- turalism," are distinguished below. The first two are deeply embedded in discourses from the proponents of human rights; the latter two are crucial elements of discourses from critics of human rights.

A. Metaphysical Abstraction

The idea that claims for the existence of human rights are based on forms of metaphysical abstraction is as old as the idea of human rights itself and will be familiar enough since it is included in nearly all critiques of the idea of human rights.31 In terms of grasping the role of social movements in the construction of human rights, the evident problem is that such positions simply cannot be connected with accounts of actual socio-historical developments because such understandings of human rights are constructed so as to be entirely independent of social context. Without wishing to suggest that there is no merit in exploring hypotheticals and possibilities, it seems clear that, when such explorations, and the analytic categories they deploy, become reified, they then only serve to obscure, rather than clarify, our understanding of the social world. So, for example, the reification of initial liberal formulations of natural rights as supposedly universal, timeless truths only serves to obscure their particular historical origin in the western liberal tradition and their role in social and political struggles, past and present.

Several recent and influential western proponents of a social demo- cratic concept of human rights have acknowledged these weaknesses and sought to overcome them by explicitly acknowledging that human rights are

31. See, e.g., Weston, supra note 2; DONNELLY, supra note 24; RHODA E. HOWARD, HUMAN RIGHTS AND THE SEARCH FOR COMMUNITY (1995); Susan Mendus, Human Rights in Political Theory, in POLITICS AND HUMAN RIGHTS 10, supra note 18.

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socially constructed while, at the same time, retaining a commitment to their universality as the highest form of moral claims. Yet their typical explanation, that we have human rights "simply because we are human," is inherently unsatisfactory as a way of grounding human rights and betrays the difficulties involved in reconciling these positions. I have sought to demonstrate previously that these approaches to human rights ultimately collapse back into the abstractions of liberal thought when their assump- tions are interrogated in detail.32

B. Legal Positivism

The phrase legal positivism is not being used here in its technical sense. Rather I am using it to signal the intention and ambition of what might be termed the global human rights industry. There is an enormous literature on the international bill of rights and regional human rights instruments dealing with issues such as standard setting, monitoring and reporting, enforcement, and interventions. In short, this is a literature overwhelmingly concerned with the establishment, implementation, and enforcement of human rights as international public law. Without wanting to dismiss the importance of such work, it clearly has some particular limitations from the point of view of recognizing the role of social movements in the construction of human rights.

Firstly, this discourse typically avoids serious analysis of the nature and origins of human rights, generally acceding to the claims to universality contained in the various international instruments and taking them as given. In other words, this discourse relies ultimately on the assumptions, and thus carries the weaknesses, discussed under Metaphysical Abstraction above. Secondly, the emphasis on legal codification in this discourse means that nonlegal forms of human rights claims are not considered to have any analytical import. In other words, this discourse simply focuses on the "ends" of the trajectory of claims for human rights towards enforceable legal mechanisms without considering the "means," that is the relevance, context, and origins of such claims in their nonlegal forms. Yet, it is precisely in their nonlegal form that the link with social movements is most evidently apparent. Interestingly, the importance of this link is implicit in

32. The suggestion that we have human rights "simply because we are human" is articulated most explicitly by Jack Donnelly and Rhoda Howard. See generally DONNELLY, supra note 24; HOWARD, supra note 31. The works of John Vincent and Henry Shue can also be described as "social-democratic" in orientation. See, e.g., HENRY SHUE, BASIC RIGHTS: SUB- SISTENCE, AFFLUENCE AND U.S. FOREIGN POLICY (1980); R.J. VINCENT, HUMAN RIGHTS AND INTERNA-

TIONAL RELATIONS (1986). These points are taken up in Stammers, A Critique, supra note 2.

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Jack Donnelly's perceptive argument that human rights claims aim to be self-liquidating.33 If it is through social movements that claims to human rights have typically been constructed, then these claims necessarily have a "nonlegal" and "pre-institutional" form. As I shall suggest shortly, there are particular problems with a discourse which only captures the process of development of claims to human rights at the point at which consideration is being given to their possible institutionalization.

Thirdly, and paradoxically in view of the first point above, this discourse is very pragmatically realist, concerned with the detailed legal and quasi- legal processes of establishment, implementation, monitoring, enforcement, and so on. Furthermore, some of this work is particularly concerned with how the international bill of rights should be developed (for example, in the areas of women's rights or environmental rights). This generates an impera- tive which requires the acceptance of, or at least engagement with, the "realpolitik" of human rights. That "realpolitik" is one which is both highly state-centric and necessarily reflects the highly uneven balance of power within the inter-state system.

One of the major difficulties with this state-centrism lies in the way international public law is constructed. Based on treaties between "con- tracting state parties," it follows that duty bearers in respect of human rights are virtually always specified as states.34 This strongly reinforces the almost universal assumption that states are necessarily the principal duty bearers in respect of human rights. While this ascription of duties may make sense in the context of international law between states, it does not follow that this is the only possible way duties can be ascribed. Indeed, below, I will discuss how claims for human rights constructed by social movements as chal- lenges to particular forms of power have sought to ascribe duties directly to the perceived violators of such rights. This is clearly a point of fundamental importance both in terms of understanding duties correlative to human rights and how human rights might be realized in practice.

33. DONNELLY, supra note 24, at 14. 34. This is overwhelmingly so, even though occasionally some obligations are placed on

other bodies such as the United Nations and NGOs. See, e.g., Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec./ 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46 (1980) (entered into force 3 Sept. 1981), reprinted in 19 I.L.M. 33 (1980); Fourth World Conference on Women: Action for Equality, Development, and Peace, Beijing Declara- tion and Platform for Action, U.N. GAOR, U.N. Doc. A/CONF.177/20 (1995) (recom- mended to the UN General Assembly by the Committee on the Status of Women on 7 Oct. 1995), reprinted in THE HUMAN RIGHTS READER: MAJOR POLITICAL WRITINGS, ESSAYS, SPEECHES, AND DOCUMENTS FROM THE BIBLE TO THE PRESENT 491 (Micheline R. Ishay ed., 1995) [hereinafter MAJOR POLITICAL WRITINGS].

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C. Strong Particularism

Perspectives grouped under this heading recognize that ideas and practices in respect of human rights are socially constructed but emphasize (or focus on entirely) the particularities of such construction. Typically, they deny the possibility of any universality of human rights, seeing any actually existing universalizing tendencies as the imposition of one form of particularism on others. This strong particularism can take a variety of forms: from notions of actually existing "cultural absolutism" asserting the strong and bounded nature of particular cultures;35 to theoretical communitarianism which assumes that discrete cultural forms arise from strong and bounded com- munities based on nation-states;36 to elements of postmodern analysis which emphasize difference, plurality, and fragmentation and deny the possibility of a "meta-narrative" of universal human rights.37

These sorts of analyses sometimes offer a powerful corrective to abstract universalism and the attempt to apply it via "legal positivism" as discussed above. However, in terms of grasping the nature of the social construction of human rights and the dynamics of power in the contemporary world, there are a number of problems. Firstly, the cultural absolutist and communitarian arguments are typically too static and take insufficient account of actual socio-historical developments. Put simply, cultures have rarely been either unitary or hermetically sealed. Moreover, the pace of cultural interchange has increased enormously in recent decades.

Secondly, it is not necessary to accept the legitimacy of a teleological modernization thesis to recognize the extent to which the globalizing dynamics of political and economic power have created powerful tenden- cies towards universalization and homogenization. So, even if it were true that peoples of particular cultures did not need human rights before, a good case might be made to suggest that they certainly need them now! In summary, these perspectives fail to grasp the full extent to which relations and structures of power are multifaceted and necessarily permeate across and between what are assumed to be (or assumed that they ought to be) sealed cultural boundaries.

35. See HOWARD, supra note 31; Richard A. Wilson, Human Rights, Culture and Context: An Introduction, in HUMAN RIGHTS, CULTURE & CONTEXT: ANTHROPOLOGICAL PERSPECTIVES 1 (Richard A. Wilson ed., 1997) [hereinafter ANTHROPOLOGICAL PERSPECTIVES].

36. See, e.g., MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL

ILLUSTRATIONS (2d ed. 1992); Michael Walzer, The Moral Standing of States: A Response to Four Critics, 9 PHIL. & PUB. AFF. 209 (1980).

37. See, e.g., John H. Simpson, "The Great Reversal": Selves, Communities and the Global System, 57 Soc. RELIGION 115 (1996).

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D. Structuralism

The perspectives grouped together under this heading also recognize that ideas and practices in respect of human rights are socially constructed but typically see such constructions as being "a product" or "an effect" of particular elements of social relations. In other words, at their heart are various (explicit or implicit) forms of structuralist explanation which effectively deny the capacity for meaningful human action and, thus, the possibility that social actors can create ideas and practices in respect of human rights to challenge extant relations and structures of power.

Traditional Marxist critiques of human rights are perhaps the most obvious examples of such structuralism, with human rights then being dismissed as nothing more than bourgeois ideology.38 Yet, radical cultural relativist critiques often occupy similar territory, seeing human rights as nothing other than an ideology of cultural imperialism serving the interests of the west-most often understood as the structure of global capitalism supported by the hegemonic position of the United States and other western states within the structure of the global inter-state system.39 Other forms of structuralism, typically rooted in language and discourse, are also apparent in particular forms of contemporary analysis. For example, a recent article by Pheng Cheah combines a form of discourse reductionism with a parallel assumption of the determinant role played by the "force field of global capitalism" to produce an analysis in which human actors appear to be nothing more than "bearers" of structural determinations in the Althussarian sense.40 Unsurprisingly, authors of such analyses see no potential in any sort of social movement struggle for human rights. Indeed, due to both the fatalism inherent in structuralist analysis and the perceived hegemonic position of "disciplinary neo-liberalism"41 in the emerging global order, many such critics have fallen into a deep pessimism, seeing no possibility of significant social, political, or economic change taking place which does not "obey the logic" of global capitalism. Relations and structures of power cannot be effectively resisted.

38. This is not, of course, true of all Marxist approaches. See, e.g., E.P. THOMPSON, THE SECRET

STATE, State Research Pamphlet No.1 (1979); Hunt, supra note 21. 39. See, e.g., HUMAN RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES (Adamantia Pollis & Peter

Schwab eds., 1980) [hereinafter CULTURAL AND IDEOLOGICAL PERSPECTIVES]. 40. Pheng Cheah, Posit(ion)ing Human Rights, 9 PUB. CULTURE 233 (1997). 41. Gill, supra note 5, at 1.

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IV. DISCOURSES AND POWER

There is a small but significant range of work in the literature of human rights which comes close to the sort of analysis presented in this article insofar as human rights are seen as being necessarily enmeshed in relations and structures of power in particular socio-historical contexts and con- structed in real social and political struggles. Yet, while not dismissing the possibility of human agency, this work still tends to emphasize the structural influences on the development of human rights discourses and, conse- quently, the extent to which such discourses sustain, rather than challenge, relations and structures of power. For example, Belden Fields and Wolf- Dieter Narr, cited at the beginning of this article, clearly recognize that understandings and practices in respect of human rights can be recon- structed so as to challenge forms of power, yet their overall judgement is that the history of human rights tends to demonstrate the opposite.42 For example (and in contrast to my argument in the previous section), they argue that the emergence of natural rights "served the ideological function of legitimizing the entitlement claims of those who had won certain power struggles during particular historical periods."43

Similarly, in the introduction to an innovative recent volume, Richard Wilson also accepts the possibility that human rights might be able to be used to challenge power.44 Indeed, he makes the crucial point that rights are not a product of social relations but are embedded within them, "positioned at the concrete conjuncture of two fields of the social: agency and power."45 Yet, at the same time, he also notes that "[h]uman rights are above all the result of historical political struggles .. ."46

In other words, rather than seeing human rights claims as being constructed as challenges to extant relations and structures of power, they tend to explain human rights discourses arising as an expression of the consolidation of newly emerging relations and structures of power or else simultaneously challenging "old" forms of power while seeking to consoli- date "new" ones. While a considerable advance on the structuralism discussed above, in these analyses, the possibilities for agency remains severely curtailed and they do not seem to have fully grasped the role of social movements in the construction of human rights claims. The differ- ences between these analyses and my own point to the necessity of looking more closely at the ambivalent relationship between human rights and power. This is the intention of the next section.

42. Fields & Narr, supra note 1. 43. Id. at 3 (emphasis added). 44. See Wilson, supra note 35. 45. Id. at 14. 46. Id. at 16 (emphasis added).

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V. CHALLENGING POWER, SUSTAINING POWER: HUMAN RIGHTS AND THE PARADOX OF INSTITUTIONALIZATION

That ideas and practices in respect of human rights can serve to sustain particular forms of power has, as indicated above, lain at the heart of a wide variety of detailed critiques of human rights for many years. What is more, strong evidence has been presented to support such critiques, even if that evidence then has been often interpreted through analytical paradigms which I have argued are ultimately flawed.47 How, then, might my argument that social movements construct human rights as challenges to power be reconciled with this evidence? What might be the nature of the relationship between the "challenging" and "sustaining" dimensions of human rights discourse? These are issues which have hardly been considered in the literature, yet, again, they are questions of fundamental importance which go to the heart of debates over the nature and role of human rights.

There are four possibilities-that human rights:

1) challenge power but do not sustain it;

2) sustain power but do not challenge it;

3) challenge and sustain power simultaneously; or

4) both challenge and sustain power, but in different degrees, in different ways, in different places, and at different times.

It seems to me that (1) and (2) are unsustainable propositions: (1) being the position most likely to be adopted by uncritical supporters of human rights and (2) being the position typically derived from forms of structuralist analyses criticized above. (3) looks initially attractive because it appears to grasp the processual and apparently paradoxical nature of power and the relationship between "power over" and "power to." Yet, in fact, this pro- posal of "simultaneity" is only meaningful if it assumed that the challenging and sustaining dimensions are always equal and opposite. If this is not the case, then (3) starts to look rather like (4), which-it seems to me-is the only possibility which is sufficiently context sensitive and allows for the recognition of differences across space/time so as to have the potential for meaningfully understanding human rights socio-historically. Yet, if this is so, questions follow. How do we explain the way in which particular ideas and practices in respect of human rights challenge or sustain relations and structures of power? How does "switching" between them (for want of a better phrase) take place and in what direction?

47. See, e.g., Gill, supra note 5; CULTURAL AND IDEOLOGICAL PERSPECTIVES, supra note 39; Rajni Kothari, Globalization: A World Adrift, 22 ALTERNATIVES 227 (1997).

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There are one or two hints in the existing literature. Donnelly, for example, noted that the idea of natural rights ceased to be an instrument for political change and, rather, "came to be used to impede further change" when "the original and largely bourgeois proponents of natural rights gradually moved out of political opposition and into control."48 In a somewhat different vein, addressing the ambivalence of the relationship between rights and power in the context of a discussion of mobility rights in Canada, Nicholas Blomley argues that, while "in certain community-based settings, rights claims can be powerful and progressive weapons, both as critique and mobilizer[,]"49 nevertheless, "it is the circulation of rights within the juridical domain that ensures that their meaning is counter- progressive."50

These two comments agree that the ambivalence of the relationship between human rights and power must be grasped via an understanding of actual dynamic socio-historical processes, and implicit in each of them is the notion of institutionalization. For Donnelly, it is a new elite fashioning institutions to their own design after having achieved effective political power. For Blomley, rights claims most evidently sustain relations and structures of power when they have been institutionalized through their codification as positive law.

Perhaps it is these points which explain why radical critics have tended to see ideas and practices in respect of rights sustaining power: that they have only considered them in their institutionalized form-once they had been "won" and legally codified. This was as true of Karl Marx's critique in On the Jewish Question51 as it is of more recent accounts. Wilson explicitly seeks to transcend the legalistic and statist approaches common in the human rights field, one of his concerns being the way in which the reporting of human rights violations "strip events of their subjective meanings."52 Yet, his focus remains on institutionalized human rights and how "power inhabits meaning" through legal codes.53 Similarly, Wendy Brown's other- wise fascinating account of rights and power remains clearly rooted in "the universal discourse of liberal jurisprudence."54

If it is indeed the case that it is in their institutionalized/legal form that ideas and practices in respect of human rights are most likely to sustain

48. DONNELLY, supra note 24, at 29. 49. Blomley, supra note 2, at 413. 50. Id. at 412. 51. KARL MARX, On the Jewish Question, in KARL MARX: SELECTED WRITINGS 39 (David McLellan

ed., 1977). 52. Richard A. Wilson, Representing Human Rights Violations: Social Contexts and Sub-

jectivities, in ANTHROPOLOGICAL PERSPECTIVES, supra note 35, at 134, 134. 53. Wilson, supra note 35, at 16. See generally Wilson, supra note 52. 54. WENDY BROWN, STATES OF INJURY: POWER AND FREEDOM IN LATE MODERNITY 96 (1995).

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relations and structures of power, is it also the case that it is in their pre- institutionalized, nonlegal form that we can see claims for human rights most evidently challenging relations and structures of power? Is it, in fact, precisely in processes of social and political institutionalization that "switch- ing" is most likely to occur? These are big questions which clearly demand serious research. Yet, a potentially innovative "turn" in thinking about human rights, more generally, is hardly a novel idea. Literature in the disciplines of politics and sociology abound with analyses of the nature and effects of institutionalization, whether in respect of political parties, interest groups, and social movements, or in respect of the dynamics of modernity itself.55 The trajectory of institutionalization is always the same, from "change" to "order," from challenging the status quo to sustaining it.

I argued earlier that social movements have been, and remain, impor- tant agents in the processes fostering or retarding socio-historical change. Put another way, socio-historical transformations in relations and structures of power can be at least partially understood as a consequence of the struggles of social movements. Social movements construct claims for human rights as part of their challenge to the status quo. To the extent that social movements succeed in facilitating change, new relations and struc- tures of power will then typically become institutionalized and culturally sedimented within a transformed social order. In other words, political, economic, and cultural forms come to reflect and sustain that balance of relations and structures of power both instrumentally and expressively and do so, partly, through existing discourses on human rights.

We can now see how "switching" may take place and also recognize that-whatever else they may offer-institutional structures are not likely to be a fertile soil through which existing relations and structures of power can be effectively challenged unless those institutions are themselves being forced to adapt and change as a consequence of further challenges from outside those institutions. So, to grasp the complexities of the role of human rights discourses in challenging and sustaining relations and structures of

55. See, for example, Weber's perspective on increasing rationalization. FROM MAX WEBER: ESSAYS IN SOCIOLOGY (Hans H. Gerth & C. Wright Mills eds., 1970). The classic, if flawed, work on organization and oligarchy is ROBERT MICHELS, POLITICAL PARTIES: A SOCIOLOGICAL STUDY OF THE OLIGARCHICAL TENDENCIES OF MODERN DEMOCRACY (1962). In respect of social movements, see Mayer N. Zald & Roberta Ash, Social Movement Organizations: Growth, Decay and Change, in STUDIES IN SOCIAL MOVEMENTS 461 (Barry McLaughlin ed., 1969); Karl-Werner Brand, Cyclical Aspects of New Social Movements: Waves of Cultural Criticism and Mobilization Cycles of New Middle-class Radicalism, in CHALLENGING THE POLITICAL ORDER: NEW SOCIAL AND POLITICAL MOVEMENTS IN WESTERN DEMOCRACIES 23 (Russell J. Dalton & Manfred Kuechler eds., 1990) [hereinafter CHALLENGING THE POLITICAL ORDER]; Claus Offe, Reflections on the Institutional Self-transformation of Movement Politics: A Tentative Stage Model, in CHALLENGING THE POLITICAL ORDER, supra, at 232.

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power, we have to develop a perspective through which the dynamics of the social can be grasped. Let me make clear, that is not to say that struggles to get human rights institutionalized are wrong. On the contrary, the drive towards institutionalization has, historically, been seen as a key part of struggles to change relations and structures of power. It does, though, involve recognizing that once rights are institutionalized, then they are likely to play a highly ambivalent role in respect of power. This is not something that proponents of human rights have been prepared to recognize.

Yet, there is another point of importance here because, socio-historically, what I have called "switching" between challenging and sustaining power also typically involves "switching" between different forms of power. In earlier papers, I have discussed, for example, how the early liberal challenge to absolutist state power came to sustain, and continues to sustain, economic power in the private realm and that challenges to private economic power has served to sustain state power.56

There are a number of ways of explaining this pattern. First, either ideologically or as a matter of practical necessity, social actors assume that one form of power is required to effectively challenge another. In other words, it is believed that a particular form of "power to" needs to be deployed to limit "power over." Many socialists-both reformist and revolutionary-have argued for "statist" solutions to the problem of private economic power. Second, particular movements and the intellectual tradi- tions associated with them may not see particular forms of power as being forms of power at all. As noted earlier, neo-liberal constructions of power still typically focus exclusively on political power, economic power being seen as freedom of action in a free market. Bizarrely, economic inequality is not seen as a problem of power at all. Third, it is quite possible that social actors might misunderstand the nature of the relations and structures of power with which they are dealing. So, for example, while, nowadays, claims for a right of national self-determination are being increasingly used to challenge the legitimacy of northern/western economic influence in the south, at the time of the anticolonial struggles, the winning of independence was often seen and portrayed as the winning of "freedom." While it may have been in a political sense, it soon became clear that there was rather more to it than that. No doubt, in particular struggles and transitions, these points often get conflated, but what they all point to is the need for a more thorough understanding of the processes and dynamics of power. In particular, if human rights are to retain their legitimacy as challenges to power, then their potential to "turn" to serve as a way of sustaining another form of power needs to be both recognized and minimized.

56. See, e.g., Stammers, Human Rights, supra note 2.

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The above discussion has tended to focus on the "instrumental" side of social struggle and social change, partly for ease of illustration, but also partly because I am trying to connect to the dominant discourses on human rights, which are themselves largely instrumentally focused. However, as indicated in diagram 2, the expressive side of social movement action is also fundamentally important, seeking to embed/sediment values, norms, etc., into social and cultural life. Indeed, it is only insofar as social move- ment struggles succeed in shifting norms, values, etc., as well as winning instrumental demands that they are able to shift relations and structures of power and thus reconstruct "historicity." Yet, to the extent that such processes are effective, such norms, values, etc., then become "common sense." They tend to become hegemonic insofar as they are accepted as unquestioned axioms, sustaining the changed pattern of relations and structures of power of which they are necessarily a part. In other words, processes of institutionalization and the tendency towards the establishment of "cultural" hegemony are themselves intertwined, arguably being the outcomes of successful social movement struggles.

What the discussion in this section suggests is that understandings of the way in which ideas and practices in respect of human rights may challenge or sustain forms of power requires a much more detailed and nuanced analytic framework than has so far been produced. This becomes even more critical at times of rapid change, and certainly any attempt to support struggles for human rights or reconstruct human rights in contemporary conditions needs to grasp these complexities. The last main section of this article tries to look at some of these issues.

VI. RECONSTRUCTING HUMAN RIGHTS IN AN ERA OF GLOBALIZATION?

A. The Context of Globalization

In contrast to those who see globalization as a purely economic process, or alternatively as "westernization" via a process of cultural homogenization, I am using the term globalization as a shorthand for describing multi- dimensional and dialectical processes of political, economic, and cultural change resulting in the increasing degree of interconnectedness and "stretching and deepening" of all forms of social relations around the globe.57 While globalization processes are not themselves new phenomena,

57. This understanding is drawn from works such as ANTHONY GIDDENS, THE CONSEQUENCES OF MODERNITY (1991); DAVID HELD, DEMOCRACY AND THE GLOBAL ORDER: FROM THE MODERN STATE TO

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what does appear to be new is the rapid intensification and acceleration of such processes over the last forty or fifty years. In short, there are good reasons to believe that we are at the beginning of a fundamental historical transformation but that neither the trajectory of that transformation nor its endpoint are predetermined.

More specifically, globalization involves complex dialectical processes of, for example, universalization/particularization, homogenization/differ- entiation, or integration/fragmentation. The implication of these is that the nature and directions of future change remain highly uncertain, and this means we need to be extremely flexible and reflexive in our analyses and orientations. We should not just assume that past forms of power will stay the same and have the same implications, nor should we assume that new forms of power will not arise.

For example, the growing global ecological crisis has prompted claims for environmental rights. How should these be understood as challenges to existing relations and structures of power? One simple answer might be to say that they are another form of a challenge to private economic power, but are they just that? Perhaps they might be better understood as challenging that constellation of relations and structures of power that have supported industrialism or, more specifically, those sectors of the economy and the state linked to the production and consumption of fossil fuels.

Changing tack, in parallel to the idea of globalization is the commonly held view that we are entering a new "information age." If this is so, one implication might be that an arena around the control of, and access to, information is becoming a new site of power distinguishable from and rivalling more traditionally recognized forms of power.

Finally, of course, processes of globalization have fuelled an important debate about how the world is to be governed in the future. We should not simply assume that relations and structures of power relating to any emergent institutions of global governance would necessarily raise the same issues as those traditionally associated with "state power."

All of that said, two things seem clear. First, ideas and practices in respect of human rights are very much implicated in these processes of globalization. For the most part, this has resulted in not much more than a "globalized" re-hashing of the dominant discourses discussed above. So, for example, in practice, many proponents of human rights-especially power- ful western/northern states-continue to defend a narrowly defined con- ception of human rights as civil and political rights but manifestly fail to

COSMOPOLITAN GOVERNANCE (1995); THE TRANSFORMATION OF DEMOCRACY?: GLOBALIZATION AND TERRITORIAL DEMOCRACY (Anthony McGrew ed., 1997); MODERNITY AND ITS FUTURES (Stuart Hall et al. eds., 1992).

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interrogate gross violations of economic, social, and cultural rights.58 In contrast, as indicated above, many critics often portray the developing global human rights agenda as being nothing more than an acceleration of "westernization" or else as being an ideological buttress for processes that are nothing more than the latest wave of capitalist expansion.59

Second, though, there can be little doubt that economic globalization- particularly developments in the financial and commodity markets and the consolidation of global production capacity by transnational corporations, supported by an extremely pervasive ideology of global neo-liberalism-is significantly weakening the capacity of even the most powerful states to regulate economic and social affairs within their territorial boundaries. As Rajni Kothari has put it, "Capitalism is entering a new phase and economic processes are becoming autonomous of political authority."60 The upshot of this is that even the richest states are reducing welfare and social security provisions as they scramble to ensure that their particular local labor market is sufficiently flexible to attract inward investment and compete in the global market. This is a question of critical importance, for most of those who have sought to ensure that economic and social rights are taken seriously have assumed that-for all practical purposes-the correlative duties in respect of guaranteeing economic and social rights rest with one's own state.61 While such an argument has always been weak, it may be becoming utterly untenable. If economic and social rights are going to be made meaningful for the vast bulk of humanity, something else will be necessary.

58. In contrast to the oft asserted interdependence and indivisibility of all human rights. See, e.g., Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., art. 5, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M. 1661 (1993). See also MAJOR POLITICAL WRITINGS, supra note 34, at 479, 482. The slogan for the 50th anniversary of the UN Declaration of Human Rights is likewise "All human rights for all," supposedly highlighting "the universality, the indivisibility and the interrelationship of all human rights" and reinforcing the idea that all human rights "should be taken in their totality and not disassociated from one another." Press release DPI/1 937/A-97-33083-Feb. 1998, UN Department of Public Information (on file with author).

59. For the debate on "Asian values," see, for example, Joseph Chan, The Asian Challenge to Universal Human Rights: A Philosophical Appraisal, in HUMAN RIGHTS AND INTERNATIONAL RELATIONS IN THE ASIA-PACIFIC REGION 25 (James T.H. Tang ed., 1995); CHANDRA MUZAFFAR, HUMAN RIGHTS AND THE NEW WORLD ORDER (1993); Tom Young, Rights as Discourse and Practice in Contemporary Politics and International Relations, paper presented at the 25th Anniversary Conference of Millenium, held at the London School of Economics and Political Science, 17th-19th Oct. 1996 (on file with author).

60. Kothari, supra note 47, at 228. 61. Argued strongly by, for example, DONNELLY, supra note 24. See also Stammers, A Critique,

supra note 2.

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Writers such as Henry Shue and John Vincent have argued that richer northern/western states have duties to protect economic and social rights beyond their borders; Vincent goes as far as calling for the establishment of a global welfare state.62 Yet, this could be done only if richer northern/ western states were prepared to properly resource relevant supranational institutions, and these supranational institutions were both prepared and able to regulate the global market. In Democracy and the Global Order, David Held explicitly suggests that a wide ranging set of rights-including economic and social rights-is required to protect people from the effects of power.63 His understanding of rights, though, remains a highly institutional- ized one, and he, also, makes it clear that the main bearers of the duties in respect of these rights should be political institutions.64 In fact, although rights are important for Held, it is rather "[t]he entrenchment of democratic public law [which] is the foundation of autonomy, promising protection and security to each and all."65 Social movements are treated with suspicion and kept at arm's length in Held's proposals for cosmopolitan democracy.66

If there is a good prima facie case to suggest that existing relations and structures of power tend to be sustained within institutional structures and legal frameworks, proposals that economic and social rights can somehow now be effectively protected on a global level solely by a combination of institutional innovation and international law looks hollow. In my view, it might prove rather more useful to consider how social movements could renew and re-invigorate the challenge to economic power. One way of doing this would be to reassess the nature of claims and duties in respect of economic and social rights, so as to specify how powerful private economic actors, and not just states, have fundamental obligations in respect of those rights. However, this raises a wider point since states are seen as the principal duty bearers in respect of all human rights. If states are losing any capacity they might have had to protect human rights in contemporary conditions, what are the implications of this?

Interestingly, early liberal rights claims were directed against states because states were seen as the violators of the rights. Similarly, claims for national self-determination were directed against the colonial states be- cause they were the violators of the right. However, in other cases, for example in the case of women's rights, states are not necessarily the only, or even the principal, violators. Rather-as in the case of the social democratic approach to economic and social rights-states are expected to "mop up"

62. See SHUE, supra note 32; VINCENT, supra note 32. 63. HELD, supra note 57. 64. Id. at 204 n.5. 65. Id. at 222. 66. Id. at 286.

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after the violations have occurred.67 What I am suggesting is that-as a moral claim-we could do worse than consider replicating the trajectory of original liberal claims for natural rights, ensuring that duties are ascribed in the first instance to those who are seen as violating the right.

The Commission for Global Governance picked up this point. In an otherwise "orthodox" rendering of a social democratic understanding of human rights, their report states:

[A]s presently conceived, rights are almost entirely defined in terms of the rela- tionship between people and governments. We believe it is now important to begin to think of rights in broader terms by recognizing that governments are only one source of threats to human rights and, at the same time, that more and more often, government action alone will not be sufficient to protect many human rights. This means that all citizens, as individuals and as members of different private groups and associations, should accept the obligation to recognize and help protect the rights of others.68

If one added to that last sentence "in direct proportion to their degree of power," we might move from general exhortation to seeing the outlines of a potentially definable moral and political project. We might have the beginnings of a rather more radical approach to human rights. So how could social movements contribute to this process?

B. Globalization from Below: The Potential Role of Social Movements in Reconstructing Human Rights

I do not intend to suggest that all demands of all social movements should be accepted as legitimate claims to human rights, nor that it is only social movements that have a role to play in reconstructing ideas and practices in respect of human rights. On the other hand, I do think that social movements have an important role to play in such reconstructions and that it is essential that this potential is recognized by both current proponents and opponents of human rights. If, as Melucci suggested, social movements have the capacity to make power visible,69 then, particularly in periods of rapid change, that capacity could prove an important corrective to purely institutionalized approaches, which are highly ambivalent in respect of their orientation to relations and structures of power.

67. Hunt makes the interesting point that the social democratic project in respect of economic and social rights, rather than empowering dignified rights holders, has, instead, created welfare state "supplicants." See generally Hunt, supra note 21.

68. COMMISSION ON GLOBAL GOVERNANCE, OUR GLOBAL NEIGHBOURHOOD 56 (1995). 69. MELUCCI, supra note 14, at 76.

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The possibility of social movements being key collective actors in what has often been described as "globalization from below" has been recog- nized by a number of authors.70 Furthermore, there is a widespread belief that the objectives, tactics, and strategies of many contemporary social movements are markedly different from what are often assumed to be the "typical" movements of the nineteenth and twentieth centuries. As Nikhil Aziz explains:

Broadly speaking, the new transnational social movements' concerns with eliminating political, economic, and social inequalities are the same as the goals of past socialist and communist movements. However, the new movements seek nonviolent as opposed to violent revolution; and they generally abjure power in the sense of control of the state, seeking instead political alternatives to the state itself.71

While, as indicated above, attempts to distinguish between supposedly "new" and supposedly "old" social movements are, in my view, ultimately untenable, can particular features of contemporary social movements be linked to the way in which they articulate demands as rights claims? I think they can.72

Vincent made the point that human rights must be subversive,73 and, if they mean anything, human rights can only be validated when they are challenging power, not sustaining it. Advocates of existing or potentially "new" human rights need to think about constructing their claims in such a way that they are the least likely to sustain power. One obvious way of doing that is seeking to construct claims in such a form that they do not imply or require the replacement of one form of power with another. To reiterate a point made earlier in a somewhat different way, to construct ideas of rights against economic power in a way which requires and entails substantial extensions of state power-a fundamental problem with both Marxism and social democracy-may ultimately destroy the potential of the initial challenge.

From this sort of perspective we can identify problems with the way current rights claims are being constructed by movement activists. In the crucially important area of environmental rights, claims are being con- structed through typically "statist" assumptions with respect to who bears the correlative duties. At the global level, if this were to involve accepting the need to create a world state, the authoritarian potential of such a state

70. See, e.g., Falk, supra note 11; Richardson, supra note 21; Aziz, supra note 21. 71. Aziz, supra note 21, at 14. 72. Stammers, supra note 12. 73. VINCENT, supra note 32, at 102.

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would be worrying indeed. Claims are also being made for the rights of non- humans-that is animal rights and the rights of non-sentient entities. In this case, because the proposed subject of the right cannot themselves/itself articulate the demand, this necessarily means that some human being(s) must do so "on behalf" of animals and non-sentient entities. In a similar manner to claims for all sorts of group rights as collective rights, this carries an authoritarian potential.

A possible model for understanding the potential of social movements in reconstructing ideas and practices in respect of human rights is shown below.

Diagram 3: The Potential Role of Social Movements in the Reconstruction of Human Rights

Dual and Dialectical Faces

Dimension Instrumental Expressive (not just "interests") (not just identity)

Challenge to existing agents, sites socio-cultural manifestations and structures of power of power relations in everyday life

Use of human human rights claims human rights claims as legitimating rights discourses as political, economic alternative values/norms and

and social demands validating self/group identities

Objective democratisation, equalisation, diffusion and equalisation, diffusion dispersion of socio-cultural

and dispersion of manifestations of power relations concentrated sites of power in everyday life

As before, I am suggesting here that the construction and use of human rights discourses by social movements can play an important and positive role in challenging relations and structures of power, both as concentrated "sites" of power and the way in which that power is embedded in everyday social relations. On the "instrumental" side, rights discourses are used to make political, economic, and social demands which we may expect, typically, to include demands for the "institutionalization" and "enforce- ment" (i.e. the "realization") of such rights. However, the "objective" on the instrumental side reminds us that rights claims are the tool, not the end of social and political struggle. It nevertheless gives us a way of understanding which social movement claims for rights (amongst the present cacophony of such claims) could be considered "progressive" because demands that seek to replace one form of power with another are not compatible with this objective of "whittling down" the capacity of concentrated sites of power.

On the expressive dimension of this chart, the use of rights discourses seeks to challenge the way in which relations and structures of power are

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embedded in everyday life by providing alternative values and norms as well as morally validating the identities and perspectives of-those oppressed by the existing relations and structures of power. In this way, the use of rights discourse seeks to create an outlook which challenges dominant ideas of "common sense" and could be said to be seeking to be counter-hegemonic in respect of such power. Again, though, the "objective" on the expressive side, stresses a socio-cultural commitment to what might be termed as a "power-limitation" stance.

What is of particular interest here is the possibility that-under contemporary conditions of globalization-social movements might be- come more effective agents of global socio-cultural change in respect of human rights than existing nation-states and emerging supranational institu- tional structures. In circumstances in which individual states become increasingly unable to fulfill duties in respect of human rights but suprana- tional bodies have not gained the legitimation traditionally accorded to the nation-state via nationalism and national identity, perhaps a space is opening up for social movements to extend popular understandings of human rights as challenges to extant relations and structures of power. Perhaps all those who would seek to defend human rights should recognize and actively embrace that possibility.

VII. CONCLUSION

This article has covered a lot of ground and can be criticized for not being based on detailed empirical research. I would agree. It seems to me that a research agenda looking at the socio-historical link between social move- ments and claims for human rights should be taken seriously. Similarly, the way in which what I have called the "switching" of human rights from challenging to sustaining forms of power requires detailed analysis in a way that simply has not been attempted before. Finally, of course, analysis of the role and prospects for human rights in contemporary conditions of rapid globalization requires particular and urgent consideration. This article is necessarily speculative and exploratory, but it nevertheless tries to inject some fresh thoughts and possibilities into discourses on human rights, and that seems to be desperately needed. As Richard Devlin stated:

If human rights are to be understood as a challenge to power, as a mode of resistance to domination, then we must confront power in all its manifestations.

But slowly, I think, the first steps are being taken to combat the problem. By the process of naming, by fighting from the margins, the destabilization of the hegemonic view has begun. Perhaps those who refuse to listen to these

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alternative conceptions of human rights, those who invoke the silencing strategy of definitional closure, those who control the international human rights agenda should get out of the way. Then they would be part of the solution, or at least not part of the problem.74

I hope that this article has helped to identify the problems and perhaps make a small contribution to thinking about some possible solutions.

74. Devlin, supra note 2, at 998-99.