Upendra Baxi

The making of human rights norms and standards, and even values, remains a dialectical process of inclusion and exclusion. The order of inclusions at the same time demarcates the zones of exclusion. The famed enunciation of the historic human right to self-determination excludes the right of secession from actually existing nation-state formations, no matter how imperially constituted. Various constructions of human rights hierarchies testify to the exclusionary prowess of human rights textualities and intertextuality. The agenda of human rights still in the making, such as the human rights of indigenous peoples, the human right to sexual orientation and conduct, and the human rights of peoples with disability, more than fifty years after the Universal Declaration of Human Rights testifies to some originary practices of exclusion in the very production of international, regional, and national human rights norms and standards. The politics of exclusion in the making of human rights cuts deeper than the exigencies of politics of intergovernmental desire in the making of human rights may suggest.

It is true that the exponential expansion of the very notion of ‘human’ and the normative plenitude of the reconstituted universal human inclusivity is the hallmark of contemporary human rights. No less true (as Hannah Arendt has above all shown) is the extreme violent social exclusion of human beings denied the very prospect of belonging to any organized polity. The ‘whole question of human rights was quickly and inextricably associated with the question of national emancipation’ (Arendt 1951:291–2, hereafter cited by page numbers) and therefore ‘the conception of human rights, based upon the assumed existence of a human being as such broke down the very moment’ of its enunciation (ibid.: 269). Human rights stand protected only within the zone of sovereignty, ambiguously cast, simultaneously within the creative as well as destructive dimensions of the ‘family of nations’. Peoples outside this zone stand condemned to conditions of ‘absolute’, ‘fundamental’ rightlessness.

Writing on the eve of the Universal Declaration of Human Rights, Arendt poignantly drew our attention to the fact that the production of human rights also entails the production of human rightlessness. Human rights and human rightlessness are thus born together at the very same moment. Although paradigmatically conceived as belonging to all human beings, human rights are at the very moment of enunciation meaningful only within the zones of sovereignty. In the contexts of the refugee and the stateless person, the language of human rights begins to appear to ‘all concerned—victims, prosecutors, and onlookers alike’ as the ‘evidence of hopeless idealism or fumbling or feeble-minded hypocrisy’ (ibid.: 269).

The calamity of rightlessness that befalls them

Statelessness is here already a doubled phenomenon. Giorgio Agamben develops the first dimension acutely when he endorses Hannah Arendt’s description of the refugee as ‘truly “the man of rights’”. For Agamben, the refugee ‘put(s) the originary fiction of sovereignty in crisis…by breaking the continuity between man and citizen, nativity and nationality’ (Agamben 1998:131) and presents ‘nothing less than a limit concept that radically calls into question the fundamental categories of the nation-state from the birth-nation to man-citizen link…’ (ibid.: 134). Compelling as Agamben’s insight is, it perhaps does no more than add a linguistic turn to Arendt’s expose of human rights; ‘rights are attributed to man,’ he says ‘solely to the extent that man in the immediately vanishing ground…of the citizen’ (ibid.: 128).

In this essay, however, I suggest that human rights do not just constitute an affair of law; they also signify practices of resistance and struggle directed to name human rights and to put them to work. If as a matter of positive law human rights stand legislated by expedient acts of power, ideals and ideas concerning what constitutes being human, and as such having human rights, arise out of the protean practices of communities of resistance and peoples in struggle. A violent epistemic exclusion arises when one focuses merely upon the state/law production of human rights; at the threshold, this deprives us of the understanding of the fact that suffering and repressed peoples remain the primary authors of human rights values and visions. Overcoming this exclusion raises in turn several pertinent questions concerning authorship and authority of human rights enunciations.

This chapter explores the legalization of human rights both in terms of the politics of writing and of reading of human rights. By these terms, I refer here to the germinal distinction between the politics of production and the production of politics (Burawoy 1985). The politics of production refers to the labours of writing human rights law; production of politics invites understanding of ways of reading human rights law which is thus produced. Both practices occur within overarching contexts of domination and resistance to domination. This distinction, I believe, offers a richer way of understanding the practices of making and unmaking of human rights norms, standards, and even values, than those which suggest, for example, the distinction between ‘texts’ and their ‘interpretation’. Structures of interpretation—that is, formation of authoritative interpretive communities, hierarchical distribution of powers within these, and degrees of openness and closure that constrain the narrative power of interpretive voices—stand already installed by practices of writing human rights law. These, as all international human rights lawpersons know well, or think they know well, condition (at times even determine) whatever autonomy ‘interpretation’ is said to possess. The performances of writing usually, but not always, influence patterns of reading human rights norms and standards. Interpretation is ceaseless but not unbounded by the texts that summon interpretation.

All writing and interpretation entail questioning the notions of author and authority of a text. Michel Foucault has problematized for us the very notion of the author as a principle of ‘thrift’ amidst ever-proliferating possibilities of interpretation. Interpretation usually privileges authorial intent (no matter how fictive) if only because this anchors legitimacy of the power of interpretive communities in the sphere once (that is, before the launch of the ‘War on Terror’) known as ‘public’ international law. The indeterminate power of interpretive communities has indeed been far reaching not just because its ‘authorship’ remains multitudinous in case of treaties and like instruments but also unscripted as in case of reading international custom as a source of law. However, as I far as I can tell, the meta-theory of international law interpretation has as yet to fully address the messages that flow concerning the ‘Death of the Author’.

Yet the search for romantic authorship of human rights never ends, as seen recently in the Golden Jubilee of the Universal Declaration of Human Rights, which celebrated the authorial initiatives of Eleanor Roosevelt and René Cassin. And it remains deeply Eurocentric in its failure to include in the same Pantheon inaugural south figures that invented the prolific conceptions of the ‘common heritage’ of humankind or the contemporary discourse concerning the development of the right to development. In the dominant mode this search syndrome names collective authorship of human rights at the surface level and thus remains heavily engaged with what may be messily named here as collective diplomatic authorship, that is, the variety of modes of international production of negotiated drafts and final texts of international instruments concerning human rights. These modes mystify historic processes of the authorship of the multitudes, in which communities in struggle and peoples in resistance create the matrix for collective diplomatic authorship (Baxi 2002:24–42). This radical authorship remains almost wholly unacknowledged in the dominant modes of reading human rights. It divorces, with a certain degree of epistemological violence, the realms of ‘real’ from ‘virtual’ authorship. This virtuosity is not always virtuous.

These questions (which I pursue elsewhere) remain important not just for an adequate historiography of contemporary human rights but also as impacting upon the available grammars of interpretation of international customariness and treaty law, which so far fail to privilege any role of popular authorship of human rights. The so-called ‘publicists’, whose writings offer in any case a ‘subsidiary’ figuration of interpretation, remain, by and large, free of any fiduciary burdens of carrying to the tasks of interpretation the creationist role and function of voices of human suffering that animate the texts of human rights instruments at all levels (international, regional, and national). Surely, we must ask: is the contemporary wave of global citizen action and protest at global capitalism (One- Off Press 2001) of any relevance to tasks of interpretation/rewriting of multilateral trade treaties such as WTO and the conduct of the international financial institutions? Are the most remarkably resurgent global protests at the commencement and conduct of the Second Gulf War of any relevance to interpretive communities in defining international law standards, principles, and values; in constructing normative restraints in the inauguration of a New Cold War by ad hoc and shifting ‘coalitions of the willing’? How may the law of peoples perforate the armours of impunity that such ‘coalitions’ equip themselves with?

The meta-treaty of interpretation of treaties (offered by the Vienna Convention on the Law of Treaties) has made us all more familiar with the tasks of relating texts of treaties to their contexts. In literary theory, contexts signify patterns of intertextuality. How then may our approaches to international human rights law and jurisprudence stand informed by the discourse of intertextuality?