Legitimizing Human Rights: Beyond Mythical Foundations and Into Everyday Resonances

Abstract

What is the source of human rights’ resonance and does that legitimize working on human rights transnationally? This article responds both to human rights critics (among them relativists, poststructuralists, and some Queer theorists) and supporters (legal, philosophical, and historical universalists) who assume human rights’ source is in some sort of singular foundation. This is a shared misconception. Human rights’ global resonance does not come from one foundation but rather flows out of human rights’ mutually dependent groundings in law, politics, institutions, and norms. A key element to the intersections among these groundings is the impact of transnational conversations in which local actors have had a substantial stake and which have contributed to human rights’ continuing rearticulations. The vitality of the intersections between human rights and bottom-up social movements is what gives the lie both to overly top-down conceptualizations of human rights as well as to overly structuralist dismissals of human rights. Each de-emphasizes the essential role of human agency, the saliency of transnational normative networks, and the ways in which individual and collective action anchor human rights in contemporary politics. This will be illustrated by reference to movements for rights regarding sexual orientation and gender identity, even (or especially) in the controversial context of the Arab world. If this argument has merit, then we can move beyond the question of whether or not human rights in the abstract are inherently legitimate or illegitimate. Instead, the question becomes the degree to which specific human rights and specific human rights claims have flowed out of everyday local struggles. It is the answers to that question that will indicate the legitimacy and resonance (or lack thereof) of specific human rights.

Notes

1. See, as well, Agamben (2005) or Costas Douzinas (2000, 2007).

2. Donnelly (2003) takes a sophisticated universalist approach that makes headway into seeing human rights as not just an entity preordained from the top-down.

3. Lesbian, Gay, Bisexual, Transgender, and Intersexed: This article prefers the more inclusive term “sexual orientation and gender identity” that is used in international human rights documents and is more representative of diverse sexualities around the world.

4. Much of the popular focus on LGBTI human rights abuses has been on non-Western countries. However, for an account of Western countries’ backlashes, such as the United States, see Puar (2007).

5. General Comments being definitive treaty-monitoring-body interpretations of the rights in the treaties they oversee.

6. Azimi adds that “Pubic regulation of morality is an area in which [Egypt's] secular regime—often through its mouthpiece religious institution, Al Azhar—is in harmony with the Islamists” (2006: para. 7). It's also interesting that Azimi notes police reports often justify arrests for homosexuality as the arrested threaten to harm “the country's reputation at the international level” (2006: para. 9; Azimi is quoting from a police report)—as noted, transnational currents work in many different directions.

7. Indeed, the focus in this chapter on gay Arab men is quite limiting. Sexuality is a set of undefined erotic practices mediated by social norms, economic structures, and political situations. The subjectivities that flow out of this are multiple and not reducible to the standard categories of heterosexual or homosexual.

8. Appadurai is discussing ethnic minorities not sexual or gender minorities. His concepts, however, illuminate their structurally similar position.

9. Massad does recognize that homosexual practices have a long history in the Arab world; it is the emergence of the gay identity that enrages him.

10. The “West” is problematic given its fractured nature, as evidenced by bitter ongoing fights within the so-called “West” over rights regarding sexual orientation.

11. Massad identifies the “gay international” as consisting mostly of two international gay and lesbian human rights groups: The International Gay and Lesbian Human Rights Commission (IGLHRC) and the International Lesbian and Gay Association (ILGA), as well as the Arab groups such as al-fatiha or the Gay and Lesbian Arabic Society.

12. Stammers is very helpful on power in bring together Foucault and Steven Lukes. Stammers argues for a conception of power that is “neither purely actor-centered nor structuralist; it recognizes that power is constructed and exercised materially as well as socio-culturally .… 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” (1999: 983). 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.

13. Hoover and Iniguez De Heredia (2011) get at this same notion at which I am driving (or, at least, a similar notion) when they write that human rights theorists should not see ambiguity in human rights foundations as a “scandal,” rather they urge that such ambiguity be embraced as inherent in diverse global politics.