The Poverty of Rights
Barriers to the Achievement of Global Justice in the Era of Globalization
Paper presented at the Fourth Annual Kent State University Symposium on Democracy
Introduction
French writer Jean-Claude Carriere1 and Portuguese novelist and 1998 Nobel Literature laureate José Saramago2 provide potentially useful points of departure for the reflections necessary to address the limits of contemporary international human rights law, and of its potential democratizing effects, in the age of neoliberal globalization. Carriere, author of the script for the Western theatrical and film adaptations of the ancient Indian epic poem known as The Mahabharata (of which the Bhaghavad Gita is part) tells the story of a small village that could be located almost anywhere, and in any historical period, where there was once a very, very rich man and a very, very poor man. Each had a son about to come of age, and each took their son one day to the highest mountaintop overlooking the village. As they looked out upon the vast landscape surrounding the village, the rich man spread his arms before him, and said: “Look, my son, someday all this will be yours.” A few days later the poor man climbed up to the same mountaintop with his son to carry out the same ritual, spread his arms before him, and said: “Look.”
José Saramago
tells a parallel kind of story. We might even venture to assume for purposes of
this paper, that his involves the same characters from the first, at some
subsequent moment of their intertwined histories. Saramago’s story takes place
in fifteenth century rural
None of these things had occurred on the day the bells began to toll, and so, many astonished, skeptical villagers surrounded the old man as he came down from the bell tower and mocked or insulted him, wondering why he would have done such a thing in violation of all the village’s conventions. The old man’s tired yet passionate response was that he had rung the bell as a sign of mourning by the whole village because of the death of justice.
It turns out as he
told it that the old man had just lost the last appeal before the highest level
of the most important court in the land, in a case brought to preserve his
family’s ancestral lands from their gradual theft by his neighbor, the
village’s most wealthy landowner, who had a predilection for moving the
boundary-stones between them when no one was looking (there is a similar
sequence in the Hollywood version of the story of Mexican revolutionary
Emiliano Zapata in the film Viva Zapata, directed by Elias Kazan,
starring Marlon Brando and Anthony Quinn). As Saramago tells it, the highest
court had just upheld the legality of his neighbor’s wanton actions, and the
old man’s ancestral, communally held lands would soon be lost forever. But the
villagers who had gathered either scratched their heads or muttered darkly to
themselves that the old man must be mad, that he was just making trouble for
everybody. None of them stopped to heed the bells, and their possible
significance for each of them. Saramago’s story was told as part of his special
address, by videoconference, to the closing session of the World Social Forum
in
I would like to pose two questions for discussion in light of these stories:
1. Does a poor man, in the era of globalization, (employing sexist language only as a literary conceit, since most of the human beings living in poverty throughout the world are, of course, women) have any rights that a rich man is bound to respect? I am deliberately borrowing here the language employed in the notorious Dred Scott case before the United States Supreme Court in 1857, Dred Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857), where the Court held, inter alia, that no blacks in the United States, whether free or slave, had any rights except “such as those who held power and the government might choose to grant them”3; and
2. What is the historical origin of contemporary notions of human rights, and what does this history tell us about we are in the struggle for the globalization of human rights, where we are headed, and where we need to be, and ultimately about our need for a coherent vision and strategy to save humanity?
My attempt to propose some possible answers to such questions are initial reflections that are part of a broader, ongoing inquiry and based on a series of reflections grounded in my experiences over the last twenty years as a human rights scholar, researcher, advocate, and activist in three different specific, but ultimately convergent contexts: first, within the United States from 1982 to 1992 as a lawyer involved in the promotion and defense of the educational rights of immigrant and other children and youth in racial, ethnic, linguistic, and cultural minority communities throughout the country, then between 1992 and 2002, while I was based in Mexico and Latin America and directly engaged in the struggles of indigenous peoples in defense of their rights to equality, self-determination, and autonomy as an activist in Mexico’s Zapatista movement and now again since I returned to the United States in August 2002, to a much different country than the one I had left behind.
Globalization and Human Rights: The Origins of a Conflict and New Bases for Possible Convergence
The essence of my argument is that
issues of human rights and international law and a necessary debate about their
range and depth are central to any broader discussion regarding the
relationship between globalization and democracy. These are the issues placed
on the agenda of civil society and public opinion throughout the world as a
result of the Zapatista rebellion in
My fundamental argument is that Mexico’s Zapatista rebellion is a uniquely appropriate case study that reflects and sheds light on the dimensions and character of this broader conundrum and also that the rebellion itself and the globalized resistance movement to neoliberalism that it has given rise to suggest the basis for the new paradigm necessary to transcend the limits of the prevailing orthodoxy. The Zapatista rebellion was itself also the single most important forerunner of the movement for global justice that has since emerged on the streets of Seattle, Davos, Prague, Genoa, and New York; in the deliberations of the World Social Forum at Porto Alegre; and in the globalized mobilizations of the international antiwar movement in the weeks leading up to the U.S. invasion of Iraq.
My further
argument is that the Zapatista rebellion and its aftermath are an especially
critical case study in this context because of the strategic role played by the
Latin American and Caribbean region in general, and Mexico in particular, as
the hemispheric “backyard” (foreground?) or strategic reserve that provide the
necessary foundation for the projection of United States military, economic,
and political strength elsewhere (as Africa and the Middle East have for
Europe, for example, or East Asia for Japan). From this perspective, Mexico’s
incorporation into the North American Free Trade Agreement (NAFTA), which was
the immediate target of the Zapatista uprising, is most significant because it
lays the groundwork for the incorporation of the entire Latin American and
Caribbean region into a hemispheric free trade zone (the proposed Free Trade
Area of the Americas, or FTAA) that would dwarf even an expanded European
Union. The FTAA is unthinkable without
The Zapatistas and
their allies among indigenous communities and communities of African descent,
environmentalists, independent labor unions, global justice activists,
progressive sectors of the Catholic and evangelical churches, and human rights
nongovernmental organizations (NGOs) elsewhere in the region have been very
active in organizing opposition to the expansion of NAFTA through the FTAA, and
in particular to the “Puebla Panama Plan.” This has in turn been a major
emphasis of the regional expression of the global justice movement at the
But in a more
fundamental sense the Zapatista rebellion and its aftermath also suggest basis
for questioning and reconfiguring the dominant paradigm in international human
rights, and the need for a new epistemology, theory, history, discourse, and
praxis of human rights. My point of departure is that the history of human
rights and of processes of globalization are inextricably linked and must be
traced in terms of their intertwined trajectories. My further assumption is
that there is a deepening crisis in the dominant paradigm in the wake of
September 11 and the
The great strength of indigenous peoples in this context is the living presence in their communities of a collective memory of how things were before (that is a history and community before property as in the story cited above regarding the very distinct rites of passage of the very rich and the very poor) and, most particularly, the presence of the ability to collectively imagine a different future and a different world. We must understand the “rule of law” in this sense, as the German philosopher Jurgen Habermas has conceived of it, as that order of things that is characterized by the dialogical and communitarian force of a dialectical reason capable of “litigating against itself.” Ultimately this means a struggle to bring human rights “home” to us, to make our homelands safe for human rights, and to build each of our nations as communities of justice. This is the advocacy of hope as the basis of liberation that Paulo Freire sought to nurture in his pedagogy, that Martin Espada has written about in his poetry, and that Ernst Bloch and Enrique Dussel have invoked in their philosophical writings.
The essence of this process must be to rethink and recenter the paradigm of human rights from below; that is from the standpoint of the Global South, and in the context of the Americas, from the perspective of this region’s southern hemisphere (as also in the cases of Africa and Asia in the face of Europe). The significance of the Zapatista rebellion and its aftermath, from this perspective, must be measured in terms of its actual and potential contributions to this overall task. This approach is especially difficult to conceive of given the dominant tendencies in even the most progressive intellectual and academic circles in the United States, which assume that the United States is a model for the rest of the world in terms of its supposed respect for human rights and that contemporary conceptualizations of such rights are both uniquely Western and have a Western origin.
This is actually
least true if one adopts the vantage point of those who live most closely to
the actual borders of the
The alternative
history and praxis of human rights in which the Zapatista rebellion is grounded
suggest instead that the human rights that matter from a Latin American perspective
are those rights that have emerged from multidimensional struggles in
resistance to
This alternative “Latin American paradigm” of human rights centered around notions of self-determination, participatory democracy, multiculturalism, and what has come to be known as sustainable, autonomous development is only viable to the extent that United States domination over the peoples of the region is contained and eventually rolled back. Such efforts in turn are an integral part of the increasingly globalized resistance to neoliberalism throughout the world.
The Zapatista
rebellion must then also be understood as part of a continuous historical
chain, including Colombia’s current civil war, Venezuela’s “Bolivarian
Revolution” since 1999, Jean-Bertrand Aristide’s first period in power in Haiti
during 1991, insurrectional movements in El Salvador and Guatemala during the
1980s, Nicaragua’s “Sandinista Revolution” from 1979 to 1990 (and its historical
roots in Augusto Cesar Sandino’s resistance to United States occupation between
1927 and 1934), Grenada’s “New Jewel Movement” from 1980 to 1983, Michael
Manley’s center-left government in Jamaica in the late 1970’s, the Chilean
experience of “Popular Unity” led by Salvador Allende followed by the 1973
coup, the 1965 popular uprising in the Dominican Republic, the Cuban Revolution
of 1959, the Guatemalan “Democratic Revolution” of 1944 to 1954, and Mexico’s
own revolution in the earlier part of the century. All of these processes of
Latin American and Caribbean resistance—some more “successful” in their
achievements or radical in their intentions than others—confronted direct or
indirect
The still dominant paradigm of international human rights, which acquired institutional dimensions in the post–World War II architecture of the United Nations system, in practice accords a more privileged, enforceable status to “civil and political” rights; that is, those bound up most closely with traditional notions of citizenship in its orthodox Western liberal conception, such as the right to vote and to the protection of private property and market interests and relations, and in general “negative,” individual(ized) rights of speech, association and religious belief against state oppression, what the Bush administration’s “National Security Strategy” refers to in sum as “freedom, democracy, and free enterprise.”4
This same paradigm generally relegates “economic, social, and cultural” rights (conceived of affirmatively, in terms of claims against the state, as to food, work, health, housing, education, dignified conditions of labor, and environmental protection, as well as the “collective” rights of individual persons belonging to groups discriminated against because of their race, ethnicity, social status, culture, language, religion, gender, sexual preference, age, or disability) to a secondary status with an aspirational, virtually utopian character: “second-class” rights and “second-class citizenship” for “second-class” persons and peoples, ultimately the increasingly globalized poor, who are the vast majority—80 percent or more of the world’s population. In this way the dominant paradigm insures that those most in need of enforceable rights as to the most essential aspects of their material existence have the least enjoyment of them when viewed on a global scale. The Zapatistas have posited the need instead of a reconstructed globalized rule of law “for the 80%,” which will be defined further here as that of a new paradigm of “international poverty law.”
According to 2001 Nobel Economics laureate Joseph E. Stiglitz, former chief economist of the World Bank and former chairperson of the Council of Economic Advisers during the Clinton administration, “A growing divide between the haves and the have-nots has left increasing numbers in the Third World in dire poverty, living on less than a dollar a day. Despite repeated promises of poverty reduction made over the last decade of the twentieth century, the actual number of people living in poverty has actually increased by almost 100 million. . . . This occurred at the same time that total world income actually increased by an average of 2.5 percent annually. . . . The critics of globalization accuse Western countries of hypocrisy, and the critics are right.” Meanwhile, as John Bellamy Foster has put it, the “global rich get richer and the global poor get poorer” with the overall gap between the richest and poorest countries deepening every decade since 1960 and inequality rising on a world scale within the richest countries (particularly in the United States and the United Kingdom) and even within those countries among the poor that have succeeded in attaining significant growth, if only intermittently (such as Mexico).5
As a result, “the
world’s richest 1 percent of people receive as much income as the poorest 57
percent; the richest 10 percent of the
The hegemonic
approach to human rights issues is especially prevalent in its most extreme
form in the United States (and interestingly enough is overwhelmingly rejected
elsewhere in the world, including by most of the countries with the greatest
affinity to the United States in other terms such as standard of living, shared
history and culture, and identification with the West, as well as by most
grassroots movements for human rights in Latin America, Africa, and Asia) and
has a direct parallel in the Bush administration’s highly selective and
arbitrary approach to issues of international law generally, as exemplified in
the debate leading up to the renewed war against Iraq. The net effect is that
with the virtual incorporation of the most cramped version of this paradigm in
the Bush administration’s “National Security Strategy,” much of the world has
come to identify the advocacy of “human rights” with the defense of the
purported national security interests of the
As a result issues
of international human rights and international law in the context of the
globalization of
This double stratification of issues of human rights and international law is absolutely central to the overall configuration of the effects of the globalization of U.S. power, which are both Orwellian (“some rights are more equal than others,” with such inequities extending as well to the purported bearers of such rights) and Darwinian (or Hobbesian) in character: the “survival of the fittest” as the outcome of the “war of all against all” or at least of the United States versus everybody else.
But these two
levels also have an interrelationship. Stratification in one dimension tends to
reinforce stratification in the other, for example, and vice versa. The combined
weight of these two sets of dominant assumptions or “truths” (widely propagated
and reinforced by key sectors such as dominant elites, the media, academia, and
“public” opinion) is devastating overall, but especially so for the most
vulnerable sectors of global society (the vast majority of the world
population) in the short-run, and for the vast majority of the population of
the United States in the medium and long run. These issues would lead us
ultimately into an exploration of the sustainability of emerging
patterns of
The Poverty of Rights
The net result of such tendencies is that the vast majority of humanity is thus both most victimized by unrecognized human rights violations (those of an economic, social, or cultural character), and most disempowered of their potential ability to redress them effectively. This increasingly globalized “South” (or “Third World within,” given the increasing numbers of immigrants from these groups within “First World” societies in North America and Western Europe) is thereby relegated not only to increasingly desperate conditions of material deprivation but also to a veritable “poverty of rights,” which is the empty space at the point of intersection between human rights, international law, and the dominant forms assumed by contemporary processes of globalization. Such a vacuum undermines and must eventually frustrate the realization of any viable notion of authentic democracy or “rule of law” on a global scale. Global democracy is ultimately impossible without global equity, and neoliberal globalization vitiates both.
More particularly
then the possibilities of global democracy must be assessed at least in part
within the context of the overall breakdown and incoherency of the discourses
and practices of contemporary international human rights law. This degenerative
process is in turn exacerbated and in part driven by the “globalization from
above” of market-driven tyranny and misery, which George Soros has referred to
as that of “market fundamentalism.”8 In this sense the globalization
of neoliberal policies has reinforced the most backward aspects of the Cold War
discourse of human rights, which the
The great struggles of the twentieth century between liberty and totalitarianism ended with a decisive victory for the forces of freedom—and a single sustainable model for national success: freedom, democracy, and free enterprise. In the twenty-first century, only nations that share a commitment to protecting basic human rights and guaranteeing political and economic freedom will be able to unleash the potential of their people and assure their future prosperity. People everywhere want to be able to speak freely; choose who will govern them; worship as they please; educate their children—male and female; own property; and enjoy the benefits of their labor. These values of freedom are right and true for every person, in every society—and the duty of protecting these values against their enemies is the common calling of freedom-loving people across the globe and across the ages.9
The exact range of what is meant by
“basic human rights” in the National Security Strategy policy paper is not
spelled out, but it can be discerned through inference and by interpretation of
the significance of that which has been explicitly included or implicitly
excluded. Six rights are specifically enumerated, and thus presumably to be
automatically included within the category of those considered “basic,” and
thus “right and true for every person, in every society,” and thereby the only
such rights worthy of universal respect and protection “against their enemies.”
This set of preferred rights in President Bush’s September 2002 statement is
much narrower than those contained in such authoritative texts as that of the
International Covenant of Civil and Political Rights, for example, adopted in
1966, which is in turn a significantly shorter list than those included in the
Universal Declaration of Human Rights of 1948. They include (presumably in
order of importance): the right to “speak freely,” to “choose who will govern,”
to freedom of worship, to educate one’s children (both “male and female,” with
a nod toward purported war aims in
Elsewhere in the
same document the list is further narrowed down to “democracy, development,
free markets, and free trade,” understood as the essential elements of “free
and open societies” that it will now be a matter of national security policy to
“extend” to “every continent.”11 From such a perspective of what is
“basic,” much of what is recognized by or troubles the masses of the rest of
the world must indeed appear literally and figuratively superfluous and
excessive—even dangerous. Presumably movements of resistance to such an
extension of “free markets and free trade”—from
As Richard Falk has suggested, neoliberalism then also has its own human rights policy, as an extension of his concept of “market logic,” characterized by the “liberalization of the economy, privatization of ownership, a minimal regulatory role for government, a stress on the most efficient return on capital, and a conviction that poverty, social distress, and even environmental deterioration are best addressed through the invisible hand of rapid economic growth and the beneficence of the private sector.”12
Latin American theorists such as Atilio Boron have long noted how such policies have fostered a “hollowed-out” form of democracy (“low-intensity democracy” or “democracy Lite”) that has spread throughout the region (as its nations wander along the winding, ultimately endless path of a democratic transition that never fully kicks-in). Sometimes, as in the attempted U.S.-backed coup last year against Venezuela’s revolutionary regime, the problems that arise for the United States are precisely in settings where the amount of democracy—and of recognized human rights—is simply superfluous, excessive, and thus dangerous—demanding intervention.
In this way, according to Falk, “market logic” brings with it the spread of a “neoliberal model of governance”13 with its own stripped-down version of international human rights that ends up pitting civil and political rights and economic, social, and cultural rights against one another as part of a new “zero-sum” game, “to the extent that the text of the Universal Declaration of Human Rights authoritatively identifies the scope of human rights, neoliberal ideology amounts to a drastic foreshortening with no legal or moral mandate. Human rights are narrowed to the point where only civil and political rights are affirmed. In the more general normative language of the day, ‘individual freedom’ and ‘democracy’ are asserted as beneficial, and indeed necessary, to the attainment of economic success via the market. By implication, moves to uphold social and economic rights by direct action are seen as generally dangerous to the maintenance of civil and political rights because of their tendency to consolidate power in the state and to undermine individualism.”14
As a result,
according to the statement of the U.N. Committee on Economic, Social and
Cultural Rights to the United Nation’s 1993 summit on human rights issues in
States and the international community as a whole continue to tolerate all too often breaches of economic, social, and cultural rights that, if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and would lead to concerted calls for immediate remedial action. In effect, despite the rhetoric, violations of civil and political rights continue to be treated as though they were far more serious, and more patently intolerable, than massive and direct denials of economic, social and cultural rights. . . . Statistical indicators of the extent of deprivation, or breaches, of economic, social, and cultural rights have been cited so often that they have tended to lose their impact. The magnitude, severity and constancy of that deprivation have provoked attitudes of resignation, feelings of helplessness and compassion fatigue. Such muted responses are facilitated by a reluctance to characterize the problems that exist as gross and massive denials of economic, social, and cultural rights. Yet it is difficult to understand how the situation can be realistically portrayed in any other way.15
In a broader sense the policies and practices of this emergent world system (what Thomas Friedman describes, mostly approvingly, as the new “globalization system”)16—and that according to Michael Hardt and Antonio Negri is constitutive of a new “Empire”17 with unprecedented global hegemony, not only overlaps but also exceeds that of the United States. On its own are the expression of a new stage in human history, which Enrique Dussel has characterized as that of the “Age of Globalization and Exclusion.”18
But in Dussel’s
view, this new era is also an expression of the logic of the preceding stage of
world history, defined by Eurocentrism on the one hand as the assertion of the
hegemony of Western civilization and on the other by the first economic and
then increasingly political hegemony of capitalism with its inherently
globalizing features. This is the mantle assumed more and more explicitly by
the ruling circles of the
This paper is an attempt to approach these issues from a different perspective—from “below,” rather than from “above,” from the vantage point of the Global “South” rather than that of the Global “North,” or, as Enrique Dussel would say, within the context of his “Ethics of Liberation,” “from the perspective of the victims.” The assumption from this side of the trenches is that the necessary price of the globalizing processes extolled by the strategic vision that drives the Bush administration (and that is shared with only minimal nuances of difference by influential propagandizers like Friedman, and in its essence even by apparent critics from within such as Soros) is the deepening and perpetuation of structural patterns of global inequality and poverty, which amount to a “global war against the poor” (overwhelmingly, of course, people of color) that is ultimately unsustainable (or sustainable only at the price of unbearable horrors). The new global system thus is founded on and reinforces both economic and racial hierarchies of domination that are deeply intertwined. As Howard Winant would have it, echoing the words of Brian Cutler’s song performed long ago by the group War, more than ever “The World Is a Ghetto,” in New York and in Paris, as in Mexico City, Johannesburg, Baghdad, and Jakarta.19
This war for
global hegemony is being fought out on various different fronts (economic,
political, social, and cultural) and in various different regions (for example,
the Persian Gulf, the Middle East, South Asia, Africa, and Latin America)
simultaneously, and is structured in part by the remnants of the preceding
“system of 500 years” (as Noam Chomsky has described it),20 which
was ushered in by the European Conquest of the Americas in the fifteenth and
sixteenth centuries. My emphasis here is on the implications of this struggle
for Latin America, through the prism of
The post-1648 Westphalian system of international relations centered around nation-states as its fundamental protagonists has increasingly given way to a new emerging system with a handful of powerful states at the core (including those with military, economic, and political dominance over the rest through structures such as the Group of Seven (G-7), the North Atlantic Treaty Organization (NATO), the U.N. Security Council, the International Monetary Fund (IMF), the World Trade Organization (WTO), the World Bank (WB), the Organization for Economic Cooperation and Development (OECD), the most powerful transnational corporations, and the increasingly centralized control of global finance, capital flows, and key commodities and resources such as oil, uranium, and biodiversity, with the World Economic Forum at Davos as the place of convergence for all of these forces), clustered around the increasingly unilateral exercise of U.S. primacy. In this way the “balance of power” politics typical of the dominant Realist paradigm of the hitherto dominant orthodoxy in international relations has been increasingly displaced by apparently contradictory trends toward concentration of an undue imbalance of military, political, and cultural hegemony in the hands of the United States as a quasi-global “super-state,” on the one hand, while on the other hand overall economic hegemony is increasingly dispersed among a regionalized system of “free trade” alliances such as the European Union (EU) and NAFTA (and soon its hemispheric expression, the projected Free Trade Area of the Americas, FTAA).
All of this has apparently contradictory implications for the notion of a globalized system of human rights—or “global justice”—as well, understood as the essence of a meaningful international legal order or global “rule of law.” On the one hand, many argue that the emerging global system is in fact incomplete—and perhaps dangerously ungovernable—without a juridical equivalent of the globalizing trends and institutions in the economic (IMF, WTO, and WB, as well as the EU and NAFTA and their emerging equivalents), political (the U.N. Security Council or the US Congress, as circumstances and convenience might dictate), and military (NATO plus U.S. unilateral power where necessary) realms of its incipient framework. Tentative and incomplete, yet still significant steps in this direction include concrete institutional innovations such as the creation of the International Criminal Court (ICC)—but interestingly enough without U.S. membership and over its active opposition, foreshadowing the recent divide within the core of the Western alliance over the U.S. and British drive toward war against Iraq, with or without U.N. sanction—and a more diffused, but sufficiently generalized tendency toward the explicit incorporation of international human rights norms into domestic law as enforceable principles in settings as diverse as Venezuela, South Africa, and India.
Here again the United States is a notable absence, with the exception of the ability of U.S. citizens to sue for acts of torture committed abroad under the Torture Victims Protection Act, and that of foreign residents of the United States to sue for foreign torts violative of the “Law of Nations” (narrowly construed by most courts to encompass only the most grievous violations of contemporary international human rights norms such as torture, genocide, slavery, or forced labor), including those committed by or colluded in by transnational corporations based in the United States, under the Alien Tort Claims Act. This tendency toward the recognition of limited forms of “extraterritorial” or “universal” jurisdiction over the most egregious violations of international human rights by U.S. courts has thus far been limited to those of a “civil or political” character, and more particularly to those considered to have a universally “binding” character under international law, generally encompassed under the Latin concept of “jus cogens” or “peremptory law” (that may have its origin in either conventional or customary law, either international or domestic).
The U.S. Constitution, more generally, is in fact one of the most primitive and most archaic in the world in its failure to recognize economic, social, and cultural rights long recognized by international law (such as those included in the Universal Declaration of Human Rights of 1948 or in the International Covenant on Economic, Social, and Cultural Rights adopted in 1966 and their evolving regional equivalents in the European and Inter-American human rights systems) or by long-standing domestic constitutions such as that adopted by Mexico, as a result of its revolution, in 1917 (not to mention the most advanced constitutions of the contemporary period in countries such as Cuba, South Africa, and Venezuela).
But there is in
any case nothing inherently “un-American” about such rights in themselves. The
importance of such rights was eloquently suggested by President Franklin D.
Roosevelt in his “Four Freedoms” speech almost sixty years ago and was promoted
by Eleanor Roosevelt in her role as chair of the U.N. committee that drafted
the Universal Declaration of Human rights.21 According to President
Roosevelt, a “second bill of rights” was necessary to reflect the “clear
realization of the fact that true individual freedom cannot exist without
economic security and independence. ‘Necessitous men are not free men’ . . . .
In our day these economic facts have become accepted as self-evident.”22
FDR’s list of such rights included “the right to a useful and remunerative job
. . . the right to earn enough to provide adequate food and clothing and
recreation; the right of every farmer to raise and sell his products at a
return that will give him and his family a decent living; the right of every
businessman, large and small, to trade in an atmosphere of freedom from unfair
competition and domination by monopolies at home or abroad; the right of every
family to a decent home; the right to adequate medical care and the opportunity
to achieve to achieve and enjoy good health; the right to adequate protection
from the economic fears of old age, sickness, accident, and unemployment; the
right to a good education.”23
But the initial role of the United States in promoting an integral notion of human rights as an incipient global ethic in the immediate post–World War II period was soon displaced by the pragmatist pressures of the Cold War, and by the Truman Doctrine’s stress on U.S. military, economic, political, and ideological hegemony as a defense of the operative—civil and political—core of human rights (the core most intertwined with the narrowest, most economistic defense of capitalist market relations from the perceived dangers of state intervention) as a matter of “National Security.” This converged nicely with the Realist insistence on the primacy of national sovereignty in the face of human rights claims, and both trends together fed the complementary dominance of notions of “state logic” (statism) and “market logic” (capitalist economism, with its concrete contemporary expression in the neoliberal policies promoted by the “Washington Consensus” of the IMF and WB, as promoted, for example, through “structural adjustment”).
Together these two tendencies succeeded in decoupling the promotion of capitalism from the promotion of a democracy with significant economic and social content, stripping down the Western reification of “democracy” to its most instrumentalist minimum (the act of periodically casting a vote—as long that vote doesn’t threaten capitalism’s own primacy, as evidenced by the U.S. open subversion of Salvador Allende’s Popular Unity government in Chile in the early 1970s, or of Hugo Chavez’s “Bolivarian Revolution” in contemporary Venezuela). The hegemony of “neoliberal” policies has further reinforced the tendency to relegate democracy to a secondary, mostly symbolic and rhetorical importance, and as noted above in extreme cases to sustain capitalist hegemony—previously in the name of anti-Communist “National Security” and now in the name of an ostensible global “antiterrorist” war—against democratic threats to its hegemony.
Amy Chua has recently argued that such antagonisms between the promotion of capitalism and the promotion of democracy are exacerbated by neoliberal policies characteristic of the current phase of globalization (particularly in settings where economic hegemony and thus the enjoyment of the benefits of such policies are concentrated in the hands of racially and ethnically differentiated “market-dominant minorities,” and where as a result the “success” of neoliberal policies is unequally distributed along lines that are racially and ethnically stratified).24
George Soros has similarly argued that “market fundamentalism” is inherently dangerous to the health of the notion of the “Open Society” originally developed by Karl Popper.25 Like Soros and Friedman however, Chua has no interest in a more fundamental critique of capitalism itself, and is blind to the extent to which the antagonism between the economic demands of capitalism and the political and social demands of democracy might be fundamental to capitalism itself—particularly in its neoliberal version—rather than an aberration.
For all three—Soros, Friedman, and Chua—greater doses of democracy could temper the undue ravages of untrammeled market power, without interfering unduly with the market’s ultimately legitimate claim to hegemony and relative autonomy from unnecessarily intrusive political and social controls. Falk argues for a similar kind of remedial approach at the level of the global community, where more institutionalized forms of “global justice” could serve to temper the inequities of the combined effects of unchecked “state logic” and “market logic.”
Arundhati Roy approaches the contemporary dimensions of democracy from a much more critical perspective, which I would argue captures a great deal of the approach suggested by the Zapatistas and their critique of neoliberal democracy in Mexico (both in 1994 at the time of their public emergence, when the advent of an authentic Mexican democracy seemed most distant, and at present, when many claim it has already arrived):
Democracy, the modern world’s holy cow, is in crisis. And the crisis is a profound one. Every kind of outrage is being committed in the name of democracy. It has become little more than a hollow word, a pretty shell, emptied of all content or meaning. It can be whatever you want it to be. Democracy is the Free World’s whore, willing to dress up, dress down, willing to satisfy a whole range of taste, available to be used and abused at will. Until quite recently, right up to the 1980’s, democracy did seem as though it might actually succeed in delivering a real degree of real social justice. But modern democracies have been around long enough for neoliberal capitalists to learn how to subvert them. They have mastered the technique of infiltrating the instruments of democracy—the “independent” judiciary, the “free” press, the parliament—and molding them to their purpose. The project of corporate globalization has cracked the code. Free elections, a free press, and an independent judiciary mean little when the free market has reduced them to commodities on sale to the highest bidder. . . . Democracy has become Empire’s euphemism for neoliberal capitalism.26
Globalization and Global Resistance
But the hegemonic pretensions of neoliberal globalization have also begun to generate deeper and more widely dispersed forms of political, social, and cultural resistance. These include both the wave of mass mobilizations and protests against the effects of neoliberal policies at meetings of the WTO, IMF, WB, G-7, Summit of the Americas, and World Economic Forum over the last few years in Seattle, Davos, Prague, Genoa, Barcelona, Quebec, New York, and Washington, D.C., to name just a few of the most notable examples, and the deliberations of the World Social Forum in Porto Alegre, Brazil, in 2001, 2002, and 2003 (with the 2004 gathering held in Mumbai, India) as a direct counterpoint to the World Economic Forum’s sessions at the same time in Davos and New York.
There were initial concerns about the continued viability and vitality of the global anti-neoliberal movement in the wake of September 11, but these appear to have been dispelled as it has taken on an increasingly antiwar and anti-imperialist character and converged with such sectors, spurred first by U.S. excesses in the Afghanistan war and most powerfully by the prolonged saber-rattling leading up to the reactivation of the Gulf War against Iraq. Unprecedented, simultaneous and massive antiwar demonstrations involving ten million people or more in some six hundred cities throughout the world in February and March of 2003 have confirmed the sustainability—and flexibility—of such movements and reflected their successful reliance on new technologies, methods, and discourses of global struggle.
Local resistance
movements have emerged meanwhile with great force throughout much of the Global
South from Latin America to Africa and
The Latin American
expressions of such movements have been especially notable. These include
Mexico’s Zapatista rebellion of 1994, mass uprisings against the imposition
of the dollar as the national currency in Ecuador, resulting in the overthrow
of
the president who had carried out the “dollarization” plan (though
the change
of currency itself has been maintained) (2000); and against the proposed
privatization of water and gas in Bolivia (2001–2003); the overthrow of
Argentine President De la Rua in December 2001, in large part because of his
persistence
in applying neoliberal measures that precipitated the collapse of the country’s
economy (including the fixing of an unsustainable 1 to 1 parity between its
currency and the dollar); and more recently once more in Bolivia against the
toughening of national budget austerity measures imposed by the IMF, resulting
in twenty-three dead in the capital city of La Paz (February 2003) and
eventually, in October 2003, in the overthrow of President Gonzalo Sanchez de
Losada, the architect of these measures. In
Latin America’s overall protagonism in this sphere may be in part a back-handed tribute to the fact that this region has been both more thoroughly subjected to some of the most orthodox variants of neoliberal policies (as supposedly evidenced by ostensible models, at differing moments over the last twenty years, such as Chile, Mexico, Peru, Brazil, and Argentina), and more thoroughly “democratized,” at least in orthodox terms, than either Africa or Asia. In several cases the combination of long-standing military dictatorships or authoritarian democracies that pioneered neoliberal policies, complex processes of democratic transition, and the emergence of powerful anti-neoliberal resistance movements has led to especially fertile environments for seeking to push beyond the limits of liberal democratic formalism, and toward the difficult construction of democracies with more substantive economic, social, and cultural content.
In some of these
cases leaders who were initially extolled (typically by decision makers in
Washington, D.C., as well as by leading academics and by the international
media) for “visionary” leadership in economic policy (for their slavish
application of neoliberal formulas, or at least of such rhetoric), such as
Pinochet in Chile, Salinas in Mexico, Fujimori in Peru, Collor in Brazil,
Bucaram and Mahuad in Ecuador, De la Rua in Argentina, and Sanchez de Losada in
Bolivia, have ended up in forced exile and prosecution for their crimes while
in power (Pinochet, Salinas, Fujimori) or actually driven from office by
popular uprisings of varying militancy (Collor, Bucaram, Mahuad, De la Rua, Sanchez
de Losada). Carlos Andres Perez of
It is thus not accidental that Porto Alegre, long governed by Brazil’s Workers Party (led by Lula at the national level), became the site for the World Social Forum in the immediate aftermath of Seattle and Prague, and for the forging of what Noam Chomsky has described as a “new International,” understood as the place of convergence for the construction of a “movement for global justice,” capable of filling the empty space at the heart of contemporary globalization processes. A Latin American setting is thus playing a central role in the Freirean process of dialogue, exchange of experiences, and fashioning of such a movement—”“globalization from below”—with added significance in the wake of Lula’s election as president, the first elected socialist regime in Latin America since Allende’s Chile.
Many have also
argued in fact that Latin America plays a vital, under-stated, and
under-recognized role in the configuration of the range of
From another perspective Latin America (ultimately rooted in the “Pan-Americanist” paradigm of the Monroe Doctrine, “Manifest Destiny,” and Theodore Roosevelt’s “Big Stick” and “Dollar Diplomacy”) is the natural reserve or “backyard” of the United States, which serves the same function for its projection of power into other regions of the world as does North Africa and the Middle East for Europe, or the Asian mainland for Japan. This is precisely what makes NAFTA and its expansion into FTAA so vital for U.S. interests more generally—and such a target for resistance by movements critical of the designs and effects of neoliberal globalization processes throughout the region, from the Zapatistas to the center-left regimes in Brazil, Venezuela, and perhaps Ecuador, as well as the insurgent movements directly combating U.S. intervention in Colombia.
This process of transition to a new global ethics and commensurately reconstituted international order is foreshadowed by diverse, increasingly influential expressions of “international civil society” positing an alternative mode of “globalization from below,” as reflected in the emerging critique and practice of anti-neoliberal social movements around the world (e.g., the World Social Forum of Porto Alegre) and of specific grassroots expressions of these currents, such as that of the landless peasants in Brazil, the Zapatista indigenous communities of Mexico, and in resistance to IMF and WB-promoted “megaprojects” in India and elsewhere.
This emerging
movement toward global justice must be adequately grounded in a
multicivilizational or multicultural “ethics of liberation” (Enrique Dussel),
or “new global ethic” (Hans Kung)27 propelled by the recognition of
Ernst Bloch’s “principle of hope” as the driving force in the creative, social
transcendence of humanity’s most destructive, universal impulses through an
alternative project of global development. It is only such an ethics that would
be capable of recentering, regrounding and reconstructing the crumbling edifice
of the falsely universalist, and in fact ethnocentrist (specifically
Eurocentrist) pretensions of the hegemonic versions of international human
rights law still dominant in the “West” (especially in the
The Right to have Rights
Contemporary international human rights law, in its stunted, hegemonic caricature, is badly crippled in its ability to address—and redress—the multidetermined causes and consequences of increasingly globalized poverty and inequality that are characteristic of this tragic stage of human history. The most serious initial barrier to the efficacy of international human rights law is the conceptual and structural imbalance between approaches taken to the implementation and enforcement of civil and political rights on the one hand and economic, social, and cultural rights on the other, which is a pervasive legacy of ideological expressions of the Cold War. The tendency to privilege the former kinds of rights over the latter is still powerful on a global scale and dominant in the United States (particularly in policy-making circles, and to varying degrees among mainstream human rights advocacy groups such as Human rights Watch, Amnesty International, and Freedom House).
The fruit of this approach is to deprive those living in poverty (the vast majority of humanity) of the most fundamental human right of all, as understood by Hannah Arendt: “the right to have rights”28—the right to be the subject of rights. Hans Egil Offerdal narrows this down more succinctly to nothing less than simply, the notion of “the right to be human,” in a creative, deliberate inversion of the concept of “human rights” itself.29
From this perspective poverty itself must thus be understood, as suggested by Amartya Sen, as a deprivation of freedom, and more specifically as a violation of the individual and collective right to self-determination of those belonging to communities living in poverty.30 Sen’s characterization of poverty—itself prefigured by FDR’s approach in his 1944 address, tracing the inextricable connections between economic and political freedoms—effectively re-centers and redefines the boundaries of the supposed differentiation between civil and political rights on the one hand and economic, social, and cultural rights on the other reified by much Western human rights scholarship and practice (and often ironically reinforced by its critics elsewhere in the name of other reifications such as that of “Asian Values” or Islamism).
Manuel Castells has proposed a similar approach to the concept of “social exclusion” in the context of globalization (building on the initial development of this concept, according to his account, by “social policy think-tanks” linked to the European Commission and its adoption by the International Labor Organization, who understood it in terms of the “social rights of citizens . . . to a certain basic standard of living and to participation in the major social and occupational opportunities of the society” in question).31 Castells defines “social exclusion” more precisely “as the process by which certain individuals and groups are systematically barred from access to positions that would enable them to an autonomous livelihood within the social standards framed by institutions and values in a given context.”32 More particularly in his view this implies that “under normal circumstances in informational capitalism, such a position is usually associated with the possibility of access to relatively regular, paid labor, for at least one member of a stable household.”33 According to Castells, then, “Social exclusion is, in fact, the process that disenfranchises a person as labor in the context of capitalism.”34 His understanding of “autonomous livelihood” converges with that of Sen as to the relationship between poverty and freedom, as I have developed it above, since Castells’s approach deliberately refers to “social conditions that represent the social norm (in a given society, for example, Mexico), in contrast with people’s inability to organize their own lives even under the constraints of social structure, because of their lack of access to resources that social structure mandates as necessary to construct their limited autonomy. This discussion is what underlies the conceptualization of inclusion or exclusion as the differential expression of people’s social rights.”35 Ultimately it is capitalism itself however that disenfranchises the individual and collective autonomy and self-determination of those who belong to exploited communities (as workers and as indigenous peoples in the context of the Zapatista critique of Mexican society in its globalized phase, but also of United States workers as well in the context of NAFTA as suggested by the work of Brown Anderson).36
For my purposes here, then, poverty as conceived of by Sen and social exclusion as defined by Castells constitute in practice a deprivation of rights to full citizenship, as also understood by the work of Paulo Freire in terms of the impact of illiteracy or of an inadequate education with his emphasis on the intimate connection between literacy, education, and citizenship (in U.S. constitutional law this is formulated in terms of the concept of education as an “enabling” right).37 International human rights advocacy must thus be reconceptualized if it is have relevance to the task of redressing the castelike status of the global majority excluded and marginalized from the meaningful enjoyment and defense of their rights, and redefined in terms of what I have proposed elsewhere as an emerging alternative paradigm, which is that of “international poverty law.”
This concept is intended to capture the essence of the overall evolving category of economic, social, and cultural rights, in addition to its more specific expressions such as the legacy of longstanding struggles in varying contexts including the Group of 77, the Non-Aligned Movement (NAM), the United Nations Conference on Trade and Development (UNCTAD), the evolving critique of international debt, structural adjustment, and the policies and practices of the IMF, the WB, the WTO, and their regional variants such as NAFTA (and soon FTAA), and of notions such as the “right to development,” and of “sustainable development” as refined at U.N. summits over the last decade from Rio to Durban and Johannesburg, the general comments of the U.N. Committee on Economic, Social, and Cultural Rights (CESCR) , the concept of “human development” of the U.N. Development Programme (UNDP), and the debates and recommendations of the first three sessions of the World Social Forum in Porto Alegre in 2001, 2002, and 2003.
The emerging paradigm of “international poverty law” has its historical and conceptual origins in the overall evolution of contemporary notions of human rights in response to the European conquest of the Americas, the Atlantic slave trade, colonialism, imperialism, and in the multiple, inter-related struggles, advances and retreats throughout the last five hundred years regarding the rights of conquered, colonized, and enslaved peoples, workers, women, and other oppressed and exploited groups and persons. Its moment of genesis was the work of Dominican friar Bartolome de Las Casas (1484–1566)38 in his defense of the rights of the indigenous peoples of the Americas in the face of the Spanish conquest of the sixteenth century, which served to place the rights of the most marginalized in the emerging world-system at the center of its ethical, juridical, and political agenda and reflections.
The Zapatista rebellion of January 1, 1994, rooted in Mexico’s most impoverished Mayan indigenous communities in the southeastern state of Chiapas (bordering Guatemala) completed the circle, as it was deliberately timed to coincide with the date that the North American Free Trade Agreement (NAFTA) among Mexico, the United States, and Canada was scheduled to go into effect. As a result, the Zapatistas’ “weapon of criticism” served to recenter the debate regarding free trade as part of the neoliberal agenda, and focused the attention and energies of “international civil society” and “international public opinion” as never before on issues of indigenous rights throughout Latin America, and perhaps the world, in terms of the “death sentence” latent for such peoples (and for all humanity) in unbridled globalization.
The level of recognition and protection of the rights of indigenous peoples is understood in this context as a globalized version of the metaphor of the “miner’s canary” applied by Lani Guinier and Gerald Torres to issues of racial and ethnic inequality as a touchstone of the inadequacies of democracy in the United States in their recent book:
Race, for us, is like the miner’s canary. Miners often carried a canary into the mine alongside them. The canary’s more fragile respiratory system would cause it to collapse from noxious gases long before humans were affected, thus alerting the miners to danger. The canary’s distress signaled that it was time to get out of the mine because the air was becoming too poisonous to breathe. Those who are racially marginalized are like the miner’s canary: their distress is the first sign of a danger that threatens us all. It is easy enough to think that when we sacrifice this canary, the only harm is to communities of color. Yet others ignore problems that converge around racial minorities at their own peril, for these problems are symptoms warning us that we are all at risk.39
Interestingly enough for our purposes here, the origin of the “miner’s canary” metaphor cited by Guinier and Torres is in a law review article by Felix Cohen, “The Erosion of Indian Rights, 1950–1953: A Case Study in Bureaucracy” in which Cohen wrote:
The Indian plays much the same role in our . . . society that the Jews played in Germany. Like the miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of the American Indian, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.40
Cohen’s original version of the “miner’s canary” metaphor, later borrowed by Guinier and Torres, is specifically grounded in his impassioned critique of U.S. government policy towards the American Indian and more particularly in a comparison between the treatment of native peoples in the United States and that of the Jews of Germany in the transition from the Weimar Republic to Nazism (“from fresh air to poison gas”). All of this is lost in Guinier and Torres’s version of Cohen’s original vision. On the one hand, Guinier and Torres extend Cohen’s metaphor more broadly to issues of racial and ethnic inequity as a whole in the context of the contemporary United States. But in so doing they tend to over-emphasize the African-American and Latino dimensions of such issues in the country (for reasons with which I sympathize but that are still problematic), to underplay the importance of the increasingly important minorities of Asian origin within the United States, and to have virtually nothing to say about the original focus of Cohen’s piece, the marginalized status of the nation’s native peoples, except in terms of the role played by indigenous identity as a constitutive factor in the treatment of Latinos as of “mixed race” and the relationship of this to Latin American notions of “mestizaje.”41 And Cohen’s explosive comparison (written in the immediate aftermath of the Holocaust) of the treatment of American Indians in the United States to that of the Jews in Germany and insistence on the comparatively graver lessons for the actual dimensions of U.S. democracy to be derived from the injustices visited upon American Indians in particular are absent entirely from Guinier and Torres’s work for reasons that go unexplained. Their appropriation of the “miner’s canary” metaphor is likely to be much more widely remembered than Cohen’s original formulation (relegated to a footnote in their book, but is both overinclusive (because of its extension to issues of racial and ethnic marginalization in the United States in general) and underinclusive (because of its very limited consideration of issues regarding Asian-Americans and exclusion of Native Americans) as to Cohen’s intent.42
Of course Cohen can and should be criticized as well for his failure to explain why he believed the subjugated status of American Indians spoke more eloquently to him about the limits of United States democracy in practice than did that of either African-Americans or Latinos (and this on the eve of the Supreme Court’s decision finding segregated public education to be unconstitutional in Brown vs. Board of Education in 1954, or of the Montgomery bus boycott led by Dr. Martin Luther King Jr.—the beginning of the civil rights movement—in 1955). Interestingly, though Cohen does suggest an analogy between the rampant violations of Indian rights documented in his article and partially attributed to Dillon Myer, the then Commissioner for Indian Affairs, and Myer’s prior role as head of the War Relocation Authority responsible for management of the detention camps for United States citizens of Japanese origin suspected of disloyalty during the Second World War and his responsibility for their “authoritarian, racist, and stereotyped administration.”43 This allusion clearly establishes that Cohen was not entirely blind to U.S. patterns of racism beyond the context of federal Indian policy, and in fact that he sought to embed the inequities visited upon American Indians in a broader context.
Guinier and Torres however fail both to take note of the contemporary dimensions of the struggle for indigenous rights in Mexico, as expressed by the Zapatista rebellion and its aftermath, and to relate this context to their discussion of the Latino dimensions of issues of racial and ethnic inequality in the United States and its effects on this country’s strivings for democracy. They fail to recognize in sum that struggles for authentic democracy in both the United States and Mexico are bound up with a broader hemispheric dilemma regarding structural patterns of racism and marginalization throughout the region. More particularly, they appear to be clueless about the complex relationship between issues of Latino civil rights in the United States and issues of Latin American human rights in the rest of the hemisphere.
This may well be rooted in their failure to account for the extent to which the incomplete character of United States democracy is directly intertwined with its imperialist role in Latin America as a whole, both historically and in terms of its contemporary dimensions. Three of the largest sectors of the United States population of Latino origin are of Mexican, Puerto Rican, and Cuban origin or descent. In all three cases an understanding of the history and culture of these nations is impossible without reference to repeated instances of U.S. domination, invasion, and occupation throughout the last one hundred and fifty years (as in Nicaragua, Haiti, the Dominican Republic, and Panama as well, among others). The prospects of a non-racialized future for U.S. democracy cannot be separated from the prospects of a non-racialized democratic future for these subject nations, which is only possible in the absence of U.S. domination. Guinier and Torres’s implicit theory of non-racialized democracy in the United States lacks the vital dimensions of a hemispheric and global theory of non-racialized, anti-imperialist democracy. My argument in this paper, in this regard, is that the Zapatistas suggest a viable basis for such a discourse, theory and practice on a national, hemispheric, and global scale.
In a deeper sense, an assessment of the inadequacies of Guinier and Torres’s approach and the promise of that of the Zapatistas must be rooted in a rethinking of the relationship between the United States and Latin America in an epistemological sense. The Zapatista challenge is then ultimately about the need for a new epistemology, history, theory, discourse, and practice of human rights capable of recentering the context of the unequal relationship between the United States and Latin America. From this perspective U.S. appropriation and instrumentalization of the rhetoric of human rights and its ultimate draining of any meaning for the majority of humanity must be matched by its reappropriation from below in service to the liberation of the world’s masses from the twenty-first century slavery of neoliberal gloibalization and its concomitant racial and ethnic hierarchies.
My argument here is that both Guinier and Torres’s and Cohen’s approaches are instructive at least in this limited sense for an understanding of the origins and significance of indigenous rights issues in Mexico and Latin America as the necessary context for an appraisal of the Zapatista rebellion and its implications. For now let it suffice to note that such issues in Mexico can be understood as analogous in significance both to those posed by Guinier and Torres and those addressed by Cohen, since their convergence relates to the centrality of issues of racial and ethnic inequalities and marginalization to the impact of neoliberal globalization in the Mexican and Latin American context. Neoliberal policies tend to reinforce, exacerbate, reproduce, and precipitate the explosion of preexisting structures and patterns of racial and ethnic inequality deeply rooted in Mexican and Latin American history and society.
Furthermore their approaches are consistent and convergent with that of Enrique Dussel in his Ethics of Liberation (forthcoming) with his emphasis on the need to assess the ethical strengths and weaknesses of any economic, social, or political system from the standpoint of its victims. The world’s indigenous peoples have long been “the miner’s canary” necessary to gauge the inequities of emerging global systems of power from the Spanish conquest of the Americas to the Zapatista rebellion. Their largely unmet and unheeded demands for self-determination and autonomy place the same kind of mirror in the face of the universalist pretensions of the new globalized power structure defined by Hardt and Negri as “Empire,” as the rebellion of African slaves in Haiti in 1791 did for the French Revolution, and how it served to reflect and helped redefine the racialized boundaries of the vaunted Declaration of the Rights of Man and Citizen adopted in 1789, according to C. L. R. James.44
In light of all of the above, the reconceptualization of contemporary international human rights discourses and practices in terms of “international poverty law” provides an ethical and rational basis for the new “global moral economy” necessary to help redress the current imbalance inherent to hegemonic forms of contemporary globalization, as described by Richard J. Barnet and John D. Cavanagh, and that is particularly central to indigenous peoples’ struggles against the effects of neoliberal globalization:
As traditional communities disappear and ancient cultures are overwhelmed, billions of human beings are losing the sense of place and sense of self that give life meaning. The fundamental political conflict in the coming decades of the new century, we believe, will not be between nations or even between trading blocs but between the forces of globalization and the territorially based forces of local survival seeking to preserve and to redefine community.”45
Such an approach, then, is essential if we are serious about ultimately seeking to reverse the contemporary globalization of market-based exploitation and tyranny, and hope to supplant it with the globalization of justice.
Historical Origins of International Poverty Law
Overall Approach to the Issue of Origins
My argument is that the most meaningful single point of origin of contemporary human rights discourse and practice is in the Western hemisphere, in the Americas, over five hundred years ago, somewhere between the end of the fifteenth century and the middle of the sixteenth, at the height of the process of European and, in specifically, the Spanish conquest and colonization of the American continent (only “half a world” before then). This historical moment gave rise to what I would argue was the first globalized (if not truly global) process of reflection about the issue of human rights as relevant to human beings everywhere. This process of reflection was initiated by, among others, perhaps most dramatically and persistently by a Dominican friar named Bartolome de Las Casas, a former Spanish explorer and colonial landowner who became the single most important critic of the Spanish conquest from within the Spanish Empire. At that point in Western history, law was mostly philosophy, and philosophy theology, with each of these virtually indistinguishable from the other, with fundamental issues being questions of “divine right” vs. “human right” (in the singular), and so forth.
The issue joined by Las Casas, as documented by historians and scholars such as Gustavo Gutierrez, Lewis Hanke, and Juan Friede (see sources listed in note 29), was about the juridical and theological status of the conquered peoples of the Americas: what limits were there, if any, to how the Spaniards might treat them? More concretely, there was the threshold issue about whether these peoples were in fact human (this was an open question, much discussed). Whether they were human from the standpoint of the Church turned on whether such peoples had souls.
At bottom the issue was whether the objects of the Spanish colonial conquest of the Americas might not in fact be the subjects of rights (with of course their specific weight and extent yet to be determined). To make a long story short: Las Casas pressed the issue, against great odds and amidst great adversity—and prevailed, at least in theory and discourse. Spanish colonial practice, of course, never lived up to its lofty aspirations. One of Las Casas’s most devastating experiences was when he was named the first bishop of the remote Spanish province of Chiapas, in the heart of the enclave of Mayan civilization in what was then New Spain (now southeastern Mexico, bordering Guatemala), precisely the same region where the Zapatista rebellion against the ravages of neoliberal globalization has arisen, almost five hundred years later. Las Casas was violently driven out of Chiapas after only a few years because the Spanish landowners there could no longer abide his attempt to propagate a humanitarian version of colonial rule. But the seed planted by his reflections and efforts became nothing less than the basis of contemporary international law and international human rights, understood almost synonymously by the way.
Las Casas’s history, philosophical, and theological contributions were soon systematized and elaborated by professors at the Law Faculty of the renowned University of Salamanca in Spain (most notably in their initial phase by another Dominican friar named Francisco de Vitoria) and laid the basis for what came to be known as the “Salamanca School” of International Law, extending Las Casas’s assertion of the Spaniards’ obligation to treat the indigenous peoples of the Americas humanely into the basis of a new theory of international relations as well, founded on the assumption of the obligations of states to treat each other fairly as part of a broader, global human community.
If you look at any typical English-language international law text, you will usually find a Dutch scholar named Hugo de Groot (best known by his Latin name, Grotius), who published a foundational text (in Latin) in 1625 called “The Law of War and Peace” amid the horrors of the Thirty Years’ War, described as the “father of international law.” Maybe so, but it is less widely disseminated that the Netherlands was still fighting for independence from the Spanish Empire (not finally obtained as a matter of international law until the Treaty of Westphalia in 1648) during the life of Grotius and that Grotius was thus necessarily himself a disciple of Vitoria and ultimately of Las Casas (and cited them extensively in his own work). His 1625 work is thus founded on their insights. Some accounts of the history of human rights are especially egregious, such as the chronology offered by the UNDP’s 2000 annual Human Development Report, which leaps directly from Magna Carta in 1215 to Grotius in 1625 without even acknowledging the relevance of anything in between (much less anything about the specifics of the European conquest of the Americas, Las Casas, and their effects).
The globalized process of reflection on issues of human rights—and specifically as to the rights of subject peoples—unleashed by Las Casas was at its core (though its effects went much beyond, over time) a process of reflection and dialogue within the West, but that is necessarily and inherently multicivilizational, intercultural, and interactive (dialogical). Anything unique that might be typically attributed to European or Western culture or civilization in this process of the gestation and propagation of what has now supposedly become a “universalist” human rights paradigm is thus in fact inextricably intertwined with the contributions (by means of both reflection and action) by the continent’s indigenous peoples as an integral party to this process, in their critical role as coparticipants and protagonists in what has since become the struggle for their own liberation, understood as an open-ended process that is as yet incomplete.
The rest of the history of human rights since is in effect the history of a continuous process of successive stages of this kind of oppression, conflict, reflection, and multicivilizational and intercultural dialogue, evident at specific subsequent historical moments in terms of debates (at least initially) within the West that are the expression of reflexivity about its own conduct (understood today as “crimes against humanity”) elsewhere (and then regarding the implications of such acts at home, within the West’s own systems, discourses, and practices of domination and oppression). These succeeding stages can then be tracked in a series of specific struggles and debates regarding issues such as colonialism, slavery, imperialism, the rights of working people and women, racism and apartheid, environmentalism, and rights of human and sexual diversity, all the way up to the contemporary age of globalization.
Ultimately then, it is the history and the multilayered, multidetermined implications and consequences of these debates in how they advanced human thought and practice throughout the world regarding issues of human rights that have laid the groundwork for contemporary human rights theories, discourses, and practices, and about such rights have come to be conceptualized. Each of the historical and conceptual stages described above overlap, interact, loop backward and forward, and are threaded together, being much more spirals or helixes than stages in any linear, deterministic, or functionalist sense. The history of human rights must then be reinterpreted as that of intertwined advances and retreats, with no predetermined trajectories or destinies and no pseudo-“universalist,” ostensibly Western. model to emulate or enforce (as in the looming war of supposedly righteous Western civilizational wrath against “terrorism,” against the civilian victims of the U.S. war in Afghanistan, and against those soon to come in Iraq and soon thereafter in Colombia, the Philippines, Cuba, or wherever the next target is conjured).
Recent History and Contemporary Dimensions
The modern phase of this history is essentially post-1945, driven initially by the Nazi Holocaust, Nuremberg, the founding of the U.N. system, and the adoption of the Universal Declaration of Human Rights by General Assembly resolution on December 10, 1948 (since observed as International Human Rights Day). The Universal Declaration both marks the point of departure for the balance of the account and sets its limits. However, the declaration itself was not enough, and was widely acknowledged to be insufficient to authoritatively delimit the relevant terrain of international human rights advocacy because of its limited substantive content and relative weakness (it does not have the loftier status for example of a treaty subject to ratification such as the U.N. Charter). A more prescriptive instrument was necessary if the Declaration’s intent were to be taken seriously, but efforts in this direction were quickly derailed by a Cold War–inspired ideological debate over the relative weight and importance of civil and political rights on the one hand and economic, social, and cultural rights on the other that ultimately led to the adoption of two parallel, and to some extent rival, instruments known respectively as the International Covenant on Civil and Political Rights (ICCPR) and that on Economic, Social, and Cultural Rights (ICESCR) in 1966.
Those rights characterized as civil and political were generally associated with the legal and political traditions of the West, capitalist economics, and what some have described as the values of the “American Revolution”: for example, rights to private property and to contract, to vote, freedom of speech, conscience, and association, but later especially of “negative” rights not to be persecuted or imprisoned for one’s political beliefs, rights not to be massacred, tortured, or “disappeared,.” Economic, social, and cultural rights came to be associated on the other hand with the East, the Soviet Bloc, with a pro-socialist perspective, and understood as the values first of the French and then of the Russian, Chinese, and Cuban revolutions: the right to work and the rights of labor to organize, to social security and health, shelter, education, and so forth.
The net effect was a conceptual and structural imbalance between these competing categories of rights and models of society that has destabilized the precarious edifice of international human rights ever since. Despite the efforts of organizations such as Amnesty International and Human Rights Watch to give civil and political rights some weight, neither of the two covenants has been taken very seriously for much of the last thirty-five years since their initial adoption.
Historical Dimensions of the Right to Have Rights
Another problem with the approach taken by the Universal Declaration and by much of international human rights scholarship and practice since then was early identified by German Jewish philosopher Hannah Arendt in her essay “The Perplexities of Human rights” in her 1950 book The Origins of Totalitarianism in which she considered the limits of the rights recognized in the 1948 Declaration. The essence of her critique was that these rights were defined in a state-centered manner (what Richard Falk has since referred to as the “statist” logic of Westphalian international law in the “Realist” tradition of Metternich, Bismarck, Kissinger, and Brezinski, among others, in which nation-states are posited as the fundamental units of analysis, and as the only legitimate protagonists—and subjects—of international relations and international law), with the result that stateless people are by definition deprived of the recognition of their own rights (such as Arendt herself, along with all Jewish people ultimately deprived of citizenship rights in Nazi Germany—or Palestinians today in the Israeli-occupied territories—and millions of refugees during and after the Second World War as the result of the redefinition of state boundaries and even the disappearance of pre-existing states).
Arendt’s query was how the human rights contained in the declaration could be truly universal as they were proclaimed to be if there were still humans without human rights throughout the world. I would argue that the contemporary expression of this dilemma is that of undocumented immigrants in situations such as that of the United States, Western Europe, and Australia where exclusion from the national or regional community of entry implies legal oblivion, as it does with indigenous peoples, as well, throughout the world. Falk and many others—notably Manuel Castells, David Held, Hardt and Negri, Benjamin Barber, and Samuel Huntington, in varying ways and to varying extents agree that contemporary processes of globalization are eroding such assumptions or even transforming them altogether into a different paradigm.
In Arendt’s view, the limits of such a state-centered approach, which assumed that the only rights worthy of universal recognition were those flowing from membership in a specific national community, led her to affirm that it was in fact necessary to posit a more fundamental basis for the recognition of human rights, which she defined as the original human right, the most basic one of all: “the right to have rights,” for example; the right to enjoy the recognition that one is a subject entitled to have rights, or the right to be the subject of rights, as such.
Globalization, Human rights, and Poverty
At this point I’d like to return to the issue of the privileging of civil and political rights on the one hand and economic, social, and cultural rights on the other, and how all can be tied up together with the contemporary debate over globalization, with the relationship ultimately between human rights and globalization in terms of the struggle for global justice. It is indisputable by now that contemporary processes of globalization as expressed in such critical realms as that of finance capital and trade, debt, communication, and of neoliberal ideology, policies, and practices is also, and inextricably the globalization of poverty and inequality (a “global social apartheid,” which reinforces, reproduces, and helps perpetuate historical patterns of racism and ethnocentrism as well), as evidenced by the widening and deepening of the gap between “North” and “South,” between Davos and New York on the one hand and Porto Alegre on the other. And, once again, as at the beginning of our story, Mexico’s Zapatista rebellion of January 1, 1994, timed to coincide with the date of entry into force of the North American Free Trade Agreement (NAFTA) placed indigenous peoples at the center of what has become the debate over the effects of globalization on the most poor and most marginalized, as forerunners of the critiques highlighted at the subsequent sessions of the World Social Forum in Porto Alegre.
Contemporary international human rights theory, discourse, and practice is poorly equipped to address the implications of the most recent forms assumed by the globalization of poverty and inequality. It is under such conditions that Mexican Argentine philosopher Enrique Dussel has argued that in this “age of globalization and exclusion” the victims who must be placed at the center of our ethical reflection and action are the globalized poor—the most poor, most marginalized and excluded, those most discriminated against, everywhere (at earlier historical stages they were slaves, serfs, indentured laborers, indigenous peoples, workers, colonized peoples, and, always, women).
The problem in making international human rights advocacy relevant in this context is the human rights deficit, the empty space, the vacuum at the heart of contemporary human rights discourse and practice, or “poverty of rights,” which in Falk’s terms is only accentuated as neoliberal globalization driven by the devastating combination of “statist” and “market logic,” reduces the notion of human rights to just a portion of civil and political rights at its core. As a result economic, social, and cultural rights erode and eventually disappear altogether from the screen, as in the work of Friedrich von Hayek and Milton Friedman.
Amartya Sen’s redefinition of poverty as a deprivation of freedom provides us a basis then to transcend the typical failure—or refusal—of theories centered in civil and political rights to address issues of economic and social inequity, and to characterize that poverty (especially now in its most devastating, globalized expression) must be understood then as the absence or lack of control over one’s own circumstances, and thus ultimately as the violation of the rights of the poor to their individual and collective self-determination (e.g., that of the communities of the poor, and of communities that are “disproportionately” poor, such as indigenous peoples and racial, ethnic, cultural, and religious minorities, and immigrants, particularly those who are undocumented).
This leads us then to a further understanding of poverty as a deprivation of rights of full and equal citizenship, which is drawn in part from, and enriched by, Brazilian educator Paulo Freire’s notion of an inextricable link between education and citizenship, with education itself reconceived as a vehicle for self-determination in the most intimate sense—that of making history your own, and that of your community, and ultimately that of giving history a human face, where the global poor would be finally recognized as equal subjects, with the right to have rights.
Meanwhile, the bell from Saramago’s story is beginning to toll again—somewhere, everywhere—but this time he enjoins us, “Please let us stop—and listen. It tolls for us.”
Conclusion
What we need then is to move forward, rearmed with a new strategy and vision under fire: that of “international poverty law” as the legacy and fruit of previous struggles to dignify economic, social, and cultural rights overall and as a weave capable of drawing together the disparate strands of the still unmet demands for a “new international economic order” in UNCTAD, the Group of 77, and the Non-Aligned Movement for recognition of the “right to development” and for “sustainable development” as a serious alternative paradigm rather than a panacea and the emerging critique of the depredations of the international financial institutions at Porto Alegre and elsewhere and thus as the necessary basis for the construction, from below, of a new global “social and international order in which the rights and freedoms” recognized by the international community “can be fully realized” (as articulated by Article 28 of the Universal Declaration). Only then will it be possible to “overthrow all relations in which man is a degraded, enslaved, abandoned, or despised being,” as Marx suggested.46
This is so, according to Bloch, because “human dignity is not possible without economic liberation, and this liberation is not possible without the cause of human rights, which is beyond all forms of contracts and contractors.”47 This same insight underlies E. P. Thompson’s notion of the “moral economy,” understood as the normative framework in which market forces must be grounded in order to prevent them from destroying the community that gave rise to them, and that they were originally intended to serve. “International poverty law” thus provides a basis for the “global moral economy” we need in order to check, and begin to redress, the ravages of contemporary globalization.
But the ethical force—the “army of ideas” necessary to bring this about, as Puerto Rican revolutionary pro-independence activist, poet, and philosopher Clemente Soto Velez48 once characterized it—can only come from among the victims themselves and those of us who cast our lot with them because, as Bloch argued, “liberation and dignity are not automatically born of the same act; rather they refer to each other reciprocally—with economic priority we find humanistic primacy. There can be no true installation of human rights without the end of exploitation, no true end of exploitation without the installation of human rights.”49
Mexico’s Zapatistas have come to symbolize the essence of such an approach, both as a movement that prefigured the critique of neoliberal globalization that has since become generalized in the “global justice” movement and more particularly because of their rigorously ethical wedding of critical theory and humane praxis. Much of this is reflected in their approach, for example, to issues regarding the relationship between “reason” and “force” in the context of globalized struggle that confronts such movements:
If you cannot have both reason and force, always choose reason, and let the enemy have force. In many battles force may obtain victory, but in the struggle as a whole only reason will triumph in the end. Those who are powerful will never be able to wrest reason from their force, but we will always be capable of deriving force from our reason.50
From such a perspective the objective is then to bring Bloch’s “Principle of Hope” into contemporary history, in this case, through law, since a glance around us is enough to confirm “that man everywhere is still living in prehistory, indeed all and everything still stands before the creation of the world, of a right world. True genesis is not at the beginning but at the end, and it starts to begin only when society and existence become radical; that is, grasp their roots. But the root of history is the working, creating human being who reshapes and overhauls the given facts. Once he has grasped himself and established what is his, without expropriation and alienation, in real democracy, there arises in the world something which shines into the childhood of all and in which no one has yet been: homeland.”51
Let us begin.
Notes
1. As told in an interview with Jean-Claude Carriere, by Carlos Paul, in the Mexico City daily La Jornada, February 8, 2002. Available online at www.jornada.unam.mx/2002feb02020208/03an1cul.php?origen=cultura.html.
2. Saramago’s speech is available online in its Spanish version at http://habitat.aq.upm.es/boletin/n20/ajsar.html.
3. See Derrick A. Bell Jr., Race, Racism, and American Law, 2d ed. (Boston: Little, Brown, 1980): 15–20, and, generally, for a definitive account of the case, Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (Oxford, U.K.: Oxford Univ. Press, 1978)
4. George W. Bush. The National Security Strategy of the United States of America (Falls Village: Winterhouse, 2002). Available online at www.whitehouse.gov/NSC/NSS.html.
5. See Deepening Democracy in a Fragmented World, Human Development Report 2002, Box 1.1, 19; James K. Galbraith et al., “Is Inequality Decreasing?” Foreign Affairs (July–Aug. 2002): 178–83. For a recent overview of the debate regarding the relationship between globalization, poverty, and inequality, see John Bellamy Foster, “The Rediscovery of Imperialism,” Monthly Review 54, no. 6 (Nov. 2002), 1, 12–16 (particularly tables 1 and 2); and for a critique of the World Bank’s methodology for conceptualizing and calculating global income poverty, see Thomas W. Pogge and Sanjay G. Reddy, “Unknown: The Extent, Distribution, and Trend of Global Income Poverty” (unpublished paper, August 16, 2002). A more extensive version of this paper is available online at www.socialanalysis.org.
6. Castells in David Held and McGrew, The Global Transformations Reader: An Introduction to the Globalization Debate (London: Polity, 2000), 351.
7. Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council (New York: United Nations, 1999).
8. See, generally, George Soros, The Crisis of Global Capitalism: The Open Society Endangered (New York: BBS Public Affairs, 1998).
9. George W. Bush, introduction to The National Security Strategy of the United States (Washington, D.C.: White House, 2002).
10. Ibid.
11. Ibid.
12. Ibid.
13. Richard A. Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (New York: Routledge, 2000), 21, 22.
14. Ibid., 48
15. Ibid.
16. Excerpted in Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals, 2d ed. (Oxford, U.K.: Oxford Univ. Press, 2000), 238.
17. Thomas L. Friedman, The Lexus and the Olive Tree: Understanding Globalization, exp. ed. (New York: Anchor Books/Random House, 2000), 8.
18. Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard Univ. Press, 2000).
19. Enrique Dussel, Etica de la liberacion en la edad de la globalizacion y de la exclusion (Madrid: Editorial Trotta, 1998) (forthcoming in English translation); also Enrique Dussel, “Beyond Eurocentrism: The World-System and the Limits of Modernity” in The Cultures of Globalization, ed. Fredric Jameson and Masao Miyoshi (Durham: Duke Univ. Press, 2001).
20. Howard Winant, The World Is a Ghetto: Race and Democracy Since World War II. (New York: Basic, 2001), xvi.
21. Cited by Dussel (2001), 19.
22. See discussion and excerpts from President Franklin D. Roosevelt’s “Four Freedoms” speech in 1941 and most extensively from his 1944 State of the Union address, where his approach was most fully expressed, in Steiner and Alston, International Human Rights in Context, 242–45.
23. Ibid.
24. See, generally, Amy Chua, World on Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability (New York: Doubleday, 2003).
25.Soros, The Crisis of Global Capitalism.
26. Arundati Roy, Speech at Riverside Church, New York City, May 13, 2003. Available online at http://www.commondreams.org/Views03/0518–01.htm.
27. See the text of an early draft of Kung’s proposed Declaration of global ethics online at http://astro.temple.edu/~dialogue/Center./Kung.htm.
28.Hannah Arendt, “The Perplexities of the Rights of Man,” In The Portable Hannah Arendt, ed. Peter Baehr (New York: Viking, 2000), 31–45. Originally a chapter in her book, The Origins of Totalitarianism.
29. Hans Egil Offerdal, “Restoring Dignity in a Sick World: Some Selected Interfaith Perspectives on Social Justice and Health,” unpublished paper presented at a conference on “Health and Social Justice,” Royal Institute for Inter-Faith Studies, Amman, Jordan, October 2002.
30.Amartya Sen, Development as Freedom (New York: Anchor, 1999), 3–4, 20–21, 36–37.
31.Castells, qtd. in Held and McGrew, The Global Transformations Reader, 349.
32. Ibid., 350.
33. Ibid.
34. Ibid.
35. Ibid., 353.
36. Unpublished research note prepared by Brown Anderson, 3rd year Law student, while my research assistant at CUNY School of Law (spring 2003).
37. See, generally, Paulo Freire, Pedagogy of the Oppressed (New York: Herder and Herder, 1972) and Education for Critical Consciousness (New York: Seabury, 1973).
38. See, generally, Juan Friede and Benjamin Keen, eds. Bartolome de Las Casas in History (DeKalb: Northern Illinois Univ. Press, 1971).
39. See, generally, Lani Guinier and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (Cambridge, Mass.: Harvard Univ. Press, 2002).
40. Felix Cohen, “The Erosion of Indian Rights, 1950–53: A Case Study in Bureaucracy,” Yale Law Journal 62 (1953): 390.
41. Guinier and Torres, The Miner’s Canary, 225–28.
42. Ibid., 307.
43. Cohen, “The Erosion of Indian Rights, 1950–53,” 389–90n159.
44. See, generally, C. L. R. James, The Black Jacobins: Toussaint L’Ouverture and the San Domingo Revolution 2d ed. (New York: Vintage, 1989).
45. Richard L. Barnet and John Cavanagh, Global Dreams: Imperial Corporations and the New World Order (New York: Simon and Schuster, 1994), 22.
46. Author’s preface to Ernst Bloch’s Natural Law and Human Dignity (Cambridge: MIT Press, 1987), xxviii–xxix (three-volume edition of the English language translation of The Principle of Hope [1995]).
47. Ibid, xxix.
48. The phrase the “army of ideas” is taken from Clemente Soto Velez’s Opening Remarks to the Conclave Cultural: The First Latino Arts and Humanities Conference in Massachusetts, September 25, 1987, reproduced in large part in the afterword to the only bilingual (Spanish-English) anthology of his selected poems, La sangre que sigue cantando (The Blood That Keeps Singing), ed. and trans. Martin Espada and Camilo Perez Bustillo (Willimantic, Conn.: Curbstone, 1991).
49. Bloch, Natural Law and Human Dignity, xxix.
50. Ibid.
51. Subcomandante Marcos,
“The Seven Loose Pieces of the Global Jigsaw Puzzle (Neoliberalism as a puzzle:
the useless global unity that fragments and destroys nations).” Available
online at http:/zapatistas.org/neo/ and in an alternative translation with a
different title, “The Fourth World War Has Begun” in Tom Hayden, ed. The
Zapatista Reader (
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