Rescuing Human Rights: Challenges of Identity and Diversity in a Context of Democratic Backsliding
Both liberal democracy and human rights are proving increasingly vulnerable to the re-emergence of authoritarianism, and populist leaders around the world are thriving in a climate of generalised mistrust. As part of the solution, however, Western liberal elites may themselves need to take more responsibility for addressing issues of community and belonging.
Towards the end of the last century there was a broad perception of an irreversible consolidation of liberal democracy and human rights, which were presumed to expand economic prosperity and a cosmopolitan ideal of justice. Such interconnections became a central tenet in a broader narrative of globalisation as progress, where the latter is defined in liberal terms of economic development through capitalist growth. Democratisation was conceived as inherent to individual freedom and collective self-determination.In the absence of a “global constituency”, liberal cosmopolitan-inspired theories projected the consolidation of universal human rights as the cornerstone of legitimacy for supranational integration and global governance. In the absence of a “global constituency” (of a territorially bounded community sharing a common ethos and political identity), liberal cosmopolitan-inspired theories projected the consolidation of universal human rights as the cornerstone of legitimacy for supranational integration and global governance. In Europe, the waves of democratisation following the collapse of communism seemed to reaffirm this trend, and led to the optimistic proclamation of the “end of history” by Francis Fukuyama in the summer of 1989 (Fukuyama 1989). In his view, the universalisation of Western liberal democracy was “the end point of mankind’s ideological evolution” (p. 4). And there was no way back.
Yet, more than two decades into the 21st century, such predictions appear illusory. Talk of democratic “crisis” or “fatigue” as well as of “backlash” against human rights has become ubiquitous. Deep economic and cultural crises are fuelling the re-emergence of populism, authoritarian forms of government and the growing polarisation of societies. In the illuminating account by Zygmunt Bauman (2000), the liquidity of modernity reflects in territorial dislocation, blurred identities and disrupted economies, all of which are currently aggravated by renewed conflicts, climate change and forced migrations.
Both liberal democracy and human rights are proving vulnerable to this heightened fluidity. Deepening inequalities, now exacerbated by the COVID-19 pandemic, call into question the glossy liberal-cosmopolitan vision of progress and teleological unfolding of human rights. Likewise, as Arjun Appadurai argues in Fear of Small Numbers (2006), the growing sense of rootlessness and materialism generated by globalisation is increasingly imputed to (neo)liberal ideologies and their inherent individualism, which remains alien to many non-Western cultures. Whereas cosmopolitan global elites might appropriate and move freely in this postnational space with a distinctive lingua franca, large working and middle-class majorities have been harshly impacted by these transformations and perceive diversity as a threat to stability and their “ways of life”.
Populist leaders thrive in this context of growing distrust and political disaffection, effectively harnessing people's fears and frustrations to legitimise their illiberal and authoritarian politics, frequently from within formally consolidated democracies. Illiberal regimes typically advocate a return to isolationism (or emancipation from supranational forms of integration) and a uniform (ethnic rather than civic) vision of the nation as a recipe for regaining a sense of order and stability. The spirit of democracy and rule of law is thus subverted from within, by populist movements claiming to operate in the name of “the people”. As Nancy Bermeo puts it, today’s democratic decline is typically not a story of military coups that abolish elections, but of gradual “democratic backsliding” (2016), in which a progressive dysfunction of democratic structures takes place through small steps covered by an appearance of legality – for example, executive aggrandisement, bringing courts into line, reducing the critical role of the media, or intimidating opposition politicians by exploiting the thin divide between lawful and unlawful forms of violence.
Democratic backsliding has an adverse impact on the universal emancipatory ideal embedded in the concept of human rights, which is entrenched in many postwar constitutions. Indeed, international human rights institutions and norms are increasingly discredited or reframed as biased in favour of liberal ideologies. They are further portrayed as essentially non-binding or as merely instrumental by neorealists and utilitarians who reject a more robust conception of human rights as imposing strong constraints on sovereignty and democratic (majoritarian) rule. For instance, the alluring metaphor of being flooded by waves of migrants and refugees is invoked as an existential threat (and “emergency”) in populist discourses in order to justify defecting on international human rights norms for the sake of preserving the well-being (or the “common good”) of the nation. From such a perspective, cultural and identity differences are increasingly depicted as a threat and framed in terms of Samuel Huntington’s clash of “civilisations” (1993). The underlying claim is that there are trade-offs to be made between human rights and legitimate collective goals such as security or the survival of one’s community. The underlying claim is that there are trade-offs to be made between human rights and legitimate collective goals such as security or the survival of one’s community. Consequently, “enemies’ (minorities within or asylum seekers outside) are increasingly deprived of their status as subjects of rights and depicted as security threats jeopardising the unity of the nation. Such exclusionary narratives tend to obscure deep structural inequalities and status hierarchies between national, cultural, linguistic and racial groups, all of which are incompatible with the ideal of equal dignity embedded in human rights. As a result, a growing part of the world population (refugees, minorities, destitute, displaced) is at risk of becoming “worldless” – an expression first coined by Hannah Arendt ( 2013) to refer to a phenomena of dehumanisation where some categories of peoples barely belong anymore to a world in which they matter as human beings.
In short, in the minds of authoritarian democrats, human rights claims are no longer unnegotiable, but mere side-constraints on the overarching imperative of preserving the economic or cultural capital of the nation. Progressive models of liberal multiculturalism, of a “politics of difference”, in the terms proposed by Will Kymlicka (2003) or Iris Marion Young (1990), find little acclaim in this context.
Similarly, policies and laws promoting and protecting minority rights, intergroup equality and cultural dissent are increasingly challenged and dismantled. Aside from mere rhetorical references to the value of cultural diversity and the general individual right to take part in cultural life, there is little positive recognition of the rights of minority cultures as collective or group rights capable of producing binding effects both domestically and internationally. Certainly, international human rights norms have played a crucial part in providing a framework for the claims of minority cultures (see box). Yet group rights have not been fully incorporated as a distinctive legal category involving tangible state duties (for instance, clear rules for the democratic exercise of internal or external self-determination remain inexistent) and most standards retain a strong individualist outlook. In the current human rights regime, rights are typically formally conferred upon individuals (as members of minority groups) and interpreted as negative rights rather than involving positive recognition or specific cultural protections.
The neglect of the collective dimension of human rights claims is criticised by communitarian critics who see the liberal aspiration to universalism, and the specific content (and relative priorities) of human rights norms, as non-neutral, part of a neocolonial project of political hegemony and cultural domination.There has been much political and academic talk, also among progressives, about the perils of the recognition of diversity There has been much political and academic talk, also among progressives, about the perils of the recognition of diversity, and of collective rights turning into a risk for social and national unity and cohesion (either because of the supposed proliferation of racial and religious ghettos or because of claims to self-determination and the right to cultural identity).
In short, human rights, both as law and as universal values grounded on humanitarianism, seem to be at risk in a broader context of democratic retreat. Hence, rescuing human rights is a mission not extraneous to that of preventing further backsliding of democracy and its noxious effects on the status of minorities and the legitimacy of political dissent. So far, as Pankaj Mishra argues in The Age of Anger (2017), Western liberal intellectual elites have relied on a self-complacent critique that fails to acknowledge their responsibility in tackling issues of community, distrust and ethics of belonging, which keep nurturing collective anger. Likewise, human rights are seen by many non-Westerners as a tool to promote the global endorsement of liberalism and open markets, and of individualistic ideas of retributive rather than restorative or transformative justice. Makau Mutua (2001), Boaventura de Sousa Santos ( 2020), Maleiha Malik (2014) and Khanyisela Moyo (2012) are among the African and Muslim scholars who have called for an engagement of human rights theory and law with postcolonial and communitarian conceptions. Peggy Levitt and Sally Merry stressed the importance of a “vernacular understanding of human rights”, more inclusive of non-secular foundations, in order to boost their emancipatory potential beyond liberal political cultures (Levitt & Merry 2009, 2011; Merry & Levitt 2017).We need to build stronger democracies with a human rights culture that is permeable to diversity by reclaiming the transformative power that emanates from the margins of the state and supranational organisations.
To confront the current deterioration of democracy and human rights, we might need to reimagine human rights institutions from the margins and to reclaim the presence of those who remain alienated, silenced, outcasted, and excluded from modern societies. Margins matter because they force us to see things that we tend to overlook from our partial subjectivity and experience. Margins are very revealing with regards to poverty, cultural alienation, linguistic domination as well as the plight of racial minorities or refugees in transit to nowhere. We need to build stronger democracies with a human rights culture that is permeable to diversity by reclaiming the transformative power that emanates from the margins of the state and supranational organisations. Civil society, human rights defenders and independent journalists will prove crucial in this battle. Because only by pushing in those who have been pushed aside, empowering the insurgence of the marginal and the weak, will we have a chance of rescuing democracy and human rights.
BOX: Main Human Rights Norms for Minorites
After the major geopolitical change brought about by the fall of the Berlin wall, the evolution of the international law of human rights reflects the idea that minorities need to be protected through specific standards, thus departing from the prevailing ideology since the creation of the United Nations that was hesitant to recognise group rights and favored instead a universal attribution of rights to all individuals. The minority question was thus reactivated, especially in Europe when the Organisation for the Security and Co-operation in Europe (OSCE) adopted the so-called “Declaration of Copenhagen”, known as the European Charter for Minorities. The Declaration affirmed that respect for the rights of individuals belonging to national minorities is an essential aspect of peace, justice, stability and democracy, and that persons belonging to such groups should have, among others, the right “to express, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects, free of any attempts at assimilation against their will” and also the right “to use freely their mother tongue in private as well as in public”. Even though this document only included a declaration of principles and there was no agreement on how to implement them effectively, it represented symbolic progress, since problems related to the accommodation of cultural diversity in democratic societies were at least explicitly acknowledged. Later on, in 1992, the same organisation created a High Commissioner on National Minorities in order to respond to the challenge of ethnic conflict. Even though his functions are of a nature more political than legal, the High Commissioner has played a significant role in addressing difficult cases involving minorities in highly divided societies, setting minimum standards and encouraging negotiations and policy reforms.
Minority protection has also become a priority for other international organisations besides OSCE, especially after the rise of ethnic conflicts that led to the war in Yugoslavia, leading to the approval by the UN in 1992 of Resolution 47/135, which contains the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. But the most significant general minority rights provision within the universal UN framework is Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right of members of ethnic, religious or cultural minorities to preserve their own culture, use their language and practice their religion. This article has enabled the UN Human Rights Committee and some national courts to provide protections for minority groups.
The same Covenant also acknowledges (Article 1) the right of peoples to self-determination worded as a collective rights provision.
The 2007 UN Declaration on the Rights of Indigenous Peoples (A/RES/61/295) was a great achievement after decades of debates and negotiations. Several provisions explicitly recognise collective rights (directly attributed to indigenous peoples, rather than to their individual members. The declaration thus represents a significant step forward in consolidating the rights of peoples, insofar as it not only expressly prohibits genocide, forced assimilation, discrimination and the exploitation of indigenous individuals, but also directly attributes to indigenous people rights that have to do with territory, resources and self-government.
Indeed, among many other rights, indigenous peoples are directly attributed, in contrast to the rights individually assigned to their members, the right to self-determination (Article 3), the right to land, territories and resources that have traditionally been owned, occupied or used (Article 26.1), the right to self-government (Article 4), the right to preserve and strengthen their own political, legal, economic, social and cultural institutions (Article 5), and the right to manifest, practice, develop and teach their traditions, customs, and spiritual and religious ceremonies (Article 12).
Neus Torbisco Casals
Visiting Professor of International Law and Senior Research Fellow at the Albert Hirschman Centre on Democracy, The Graduate Institute, Geneva
Faculty member at the Geneva Academy of International Humanitarian Law and Human Rights
Associate Professor of Law at Pompeu Fabra University, Barcelona.
TIMELINE: Major International Human Rights Treaties
The Universal Declaration was the first detailed expression of the basic rights and fundamental freedoms to which all human beings are entitled.
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the UN in an effort to prevent atrocities, such as the Holocaust, from happening again. The Convention defines the crime of genocide.
The Convention relating to the Status of Refugees protects the rights of people who are forced to flee their home country for fear of persecution on specific grounds.
The Discrimination (Employment and Occupation) Convention (No. 111) of the International Labour Organization prohibits discrimination at work on many grounds, including race, sex, religion, political opinion and social origin.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) obliges states to take steps to prohibit racial discrimination and promote understanding among all races.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) protects rights like the right to an adequate standard of living, education, work, healthcare, and social security. The ICESCR and the ICCPR (below) build on the Universal Declaration of Human Rights by creating binding obligations for state parties.
Human rights protected by the International Covenant on Civil and Political Rights (ICCPR) include the right to vote, the right to freedom of association, the right to a fair trial, the right to privacy, and the right to freedom of religion. The First Optional Protocol to the ICCPR creates a mechanism for individuals to make complaints about breaches of their rights. The Second Optional Protocol concerns abolition of the death penalty.
Under the Convention on the Elimination of All forms of Discrimination against Women (CEDAW), states must take steps to eliminate discrimination against women and to ensure that women enjoy human rights to the same degree as men in a range of areas, including education, employment, healthcare and family life. The Optional Protocol establishes a mechanism for making complaints.
The Indigenous and Tribal Peoples Convention (No. 169) of the International Labour Organization aims to protect the rights of Indigenous and tribal peoples around the world. It is based on respect for the right of Indigenous peoples to maintain their own identities and to decide their own path for development in all areas including land rights, customary law, health and employment.
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families aims to ensure that migrant workers enjoy full protection of their human rights, regardless of their legal status.
The Convention on the Rights of Persons with Disabilities aims to promote, protect and ensure the full and equal enjoyment of all human rights by persons with disability. It includes the right to health, education, employment, accessibility, and non-discrimination. The Optional Protocol establishes an individual complaints mechanism.
This Declaration establishes minimum standards for the enjoyment of individual and collective rights by Indigenous peoples. These include the right to effectively participate in decision-making on matters which affect them, and the right to pursue their own priorities for economic, social and cultural development.
This Declaration asserts that everyone has the right to know, seek and receive information about all human rights and fundamental freedoms and should have access to human rights education and training.
Based on the information produced by the Australian Human Rights Commission