Human rights in disastrous times 14

Susan Marks

C.L.R. James’s book The Black Jacobins tells the story of the Haitian revolu-
tion of 1791–1803, the only slave revolt in history that brought permanent
emancipation and a new independent state (James 1963). Central to the story
is the magnificent figure of Toussaint L’Ouverture. A former slave, he became
the pre-eminent leader of the revolt, but lost the chance to lead it to its
conclusion when, in 1802, he was arrested and taken to France. Imprisoned in
the mountains of the Jura with deficient heating and reduced rations, he died
nine months after arriving there.
James’s book was originally published in 1938, and then revised and
reissued in 1963. In a recent work, David Scott calls attention to an intriguing
feature of the revisions that James made for the book’s second edition,
namely that he shifted the register of his story from romance to tragedy
(Scott 2004). Whereas in the original version James told a romantic tale of
revolutionary triumph, in the revised edition there was a new emphasis on
Toussaint’s tragic predicament, and on the dilemmas, disappointments,
ironies and uncertainties of enlightenment and liberation.
The aspect of international law which is the subject of this chapter is
human rights, and I shall be showing how, in that very different context,
something similar can be observed. If the story of the international protec-
tion of human rights has been conventionally told as a romance, there is, at
present, a significant body of opinion that invites us to re-imagine it in the
register of tragedy. Of course, the words ‘tragedy’ and ‘romance’ are used in
a wide variety of ways. In everyday language tragedy is what we call events
that are deeply sad or calamitous, while romance is about affairs of the
heart. Here, however, as explained further below, I follow Scott (and many
others) in treating these as modes of emplotment that involve, above all,
different perspectives on the possibilities and nature of ethical, political and
epistemic progress.
The chapter begins with the main lines of the romantic account of
human rights, the story of the establishment and consolidation of the

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international human rights regime. Turning next to recent critical literature,

we shall review some of the respects in which that regime’s progressive
character has been put in question. In a final section, we shall return to
(present-day) Haiti. When in January 2010 the capital and surrounding
areas were devastated by an earthquake, the United Nations Human Rights
Council met in a special session to discuss the Haitian recovery process from
the perspective of a ‘human rights approach’. Delegates spoke of the need
not to forget human rights, even at such a time of ‘immense tragedy’. How
does that tragedy relate to the others we shall be encountering in this
chapter, and can the answer help us to get the measure of international
human rights law today?

International Protection of Human Rights

While recognising that the protection of human rights has deep roots and
important antecedents, most accounts of the history of international human
rights law begin in the mid-20th century. It was then, in the aftermath of
World War II, that the institutional and textual foundations were laid for
the contemporary human rights ‘system’. A common starting-point is the
establishment of the United Nations in 1945, with reference in the organ-
isation’s Charter to a shared ‘[determination to] reaffirm faith in funda-
mental human rights [and] in the dignity and worth of the human person’.
The Charter indeed declared as one of the purposes of the UN the promotion
and encouragement of ‘respect for human rights and for fundamental
freedoms for all’, but it said nothing more specific about what those rights
and freedoms were.
That was left to the Universal Declaration of Human Rights, adopted as a
resolution of the UN General Assembly in 1948. Alluding to President
Roosevelt’s ‘four freedoms’ – freedom of speech and belief, and freedom
from fear and want – the Declaration set out a broad catalogue of rights
which it pronounced the ‘equal and inalienable rights of all members of the
human family’. This included, among other rights, the right to life and
the right not to be subjected to torture or inhuman or degrading treatment,
the right to adequate food, housing and medical care, the right to education
and work and to just and favourable conditions of work, the right to
personal liberty and security and to a fair trial, the right to privacy and to
freedom of thought, conscience and religion, and the right to freedoms of

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expression, information, assembly and association. The implementation of

these rights was proclaimed a ‘common standard of achievement for all
peoples and all nations’.
A common standard of achievement is one thing; legally binding obli-
gations, with institutional oversight, are another, and the focus of sub-
sequent activity was the negotiation of treaties. The first general human
rights treaty was the European Convention on Human Rights, adopted
within the framework of the Council of Europe in 1950. Further Council
of Europe treaties followed, along with treaties elaborated by the
Organisation of American States, the Organisation for African Unity (now
replaced by the African Union), and other regional organisations. Under the
auspices of the UN too, negotiations were initiated for the adoption of a
treaty that would impose on participating states legal obligations to uphold
human rights. When those negotiations finally came to a close in 1966, the
outcome was in fact two treaties, the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The bifurcated approach is usually explained in terms of the
West-East rivalry of the Cold War era; with the antagonism between liberal
states and state socialism came a separation of civil and political rights from
social, economic and cultural rights.
It is a feature of all these treaties that they provided for compliance to
be internationally monitored. In the case of the regional treaties, there
are ‘courts’ and in some cases also ‘commissions’. In the case of the two
International Covenants, there are ‘committees’ – the Human Rights
Committee and the (more recently established) Committee on Economic,
Social and Cultural Rights. Monitoring procedures vary from treaty to
treaty, but they generally include the possibility of rendering opinions in
certain circumstances on claims by individuals that their rights have been
violated. (Where the Committee on Economic, Social and Cultural Rights is
concerned, this procedure is based on an Optional Protocol adopted only in
2009 and not yet in force.) Evidence is mostly in the form of written
testimony, but investigative visits to the country concerned are sometimes
made. Under the two International Covenants and also under some regional
arrangements, states parties are obligated to make regular reports on the
extent to which national law and practice comply with the obligations
undertaken, and the examination of these reports, aided often by ‘alter-
native reports’ submitted by civil society organisations, is seen as a key
element of the monitoring process.

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In the years that followed the adoption of the International Covenants, new
international treaties were concluded which laid down more detailed commit-
ments concerning specific forms of abuse and specific categories of people.
A core set of treaties – on racial discrimination, discrimination against women,
torture, the rights of the child, the rights of migrant workers, the rights of
persons with disabilities, and enforced disappearance – set up monitoring
institutions (‘treaty bodies’ like the Human Rights Committee and Economic,
Social and Cultural Rights Committee); oversight again involves the examina-
tion of state reports and in some cases also the competence to render opinions
on specific complaints. At the same time, within the framework of the UN and
under the authority of the Charter, arrangements were put in place to promote
and protect human rights throughout the world. Modified over the years, these
arrangements revolve currently around the Office of the High Commissioner
for Human Rights, the intergovernmental Human Rights Council, and a large
array of ‘special procedures’, some linked to country-specific mandates, others
to mandates cast in thematic terms. Long-standing thematic mandates include
disappearances and extrajudicial execution; more recent ones include traffick-
ing in persons and access to safe water and sanitation.
The emergence of so many texts, institutions and procedures in a rela-
tively short space of time unsurprisingly prompted concerns about the
efficacy and coherence of the system as a whole. Are not the rights – and
especially some of them – vitiatingly vague? Is not the scheme of enforce-
ment too weak to be effective? Does not the proliferation of procedures
simply widen the scope for confusion, inefficiency, and empire-building?
Such concerns have been at least partly allayed by two developments. On
the one hand, through the operation of the various supervisory processes,
the content of internationally protected human rights and of the obligations
correlative with them has been considerably clarified. A vast and constantly
expanding literature now exists glossing the texts of international human
rights law. On the other hand, high priority has for some years been attached
to improving the system’s efficiency and assessing its effectiveness. This
has resulted in enhanced coordination and an emphasis on indicators and
benchmarks, along with ongoing processes of adjustment and review.
Whatever their remaining shortfalls, human rights procedures can undeni-
ably be credited with helping to catalyse important changes to law and
practice in many countries.
But the system’s efficacy and coherence have not been the only issues.
Alongside ‘internal’ preoccupations of that sort, there has also been

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discussion of ‘external’ phenomena that affect international human rights

law. Thus, towards the end of the 1990s, an important debate was initiated
on the relationship between trade (and more generally globalisation) and
human rights. After 9/11 attention turned to the problem of how counter-
terrorism impinges on the protection of human rights. An emergent topic
today is the relevance of human rights for approaches to climate change and
its management. There are also long-standing controversies about the
relationship between human rights and culture, about the ethical claims
associated with human rights and how those claims may be explained
philosophically, and about the place within human rights procedures of
global civil society. In some of these arenas, the focus is on the changing
context in which human rights norms are interpreted and applied. In other
arenas, the central issues have to do with the justification for internation-
ally protected human rights, and with the practical measures needed to
redress legitimacy deficits.
If at one level these and other challenges point to strains in the system of
human rights, at another level they are, of course, tokens of the extra-
ordinary prominence which human rights have now attained – and not
just within legal landscapes. The discussion today is not simply of the
organised promotion and protection of human rights; it is also of the
specification and implementation of a ‘human rights approach’ to global
policy-making. Applied to international development, poverty reduction
and refugee assistance, but also to a huge array of other problems from
prison administration to (as we shall see) disaster relief, this is seen to
bring with it an orientation towards dignity and rights. Under a human
rights approach, charity and benevolence are replaced by the recognition
that there exist universal and inalienable entitlements which impose legal
obligations on states and others; that those obligations must be imple-
mented on a non-discriminatory basis, and with particular regard for the
most vulnerable social groups; that human rights are interdependent, so
that programmes must be framed in a manner which ensures that no right
is downgraded or impaired; and that underpinning all this are human
dignity and the moral demand to respect, uphold and protect it.
Yet the penetration of human rights into global public policy still cap-
tures only a small part of what makes human rights so prominent in the
world today. According to the contemporary cliché, human rights have
become a secular religion: an object of faith, a basis for hope and a code
of morality we can all accept, whatever other systems of belief we may

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cherish or reject. At the least, it is hard to escape the impression that human
rights have become an ethical shibboleth or test of right, indeed of right-
eousness. One aspect of this is their function as an all-purpose, all-pervasive
language of responsibility and claim – that is to say, a language used to
assert or avow responsibility, and to express and validate claims, in a wide
and seemingly limitless variety of contexts. In this sense, human rights
represent one of the more striking successes of globalisation. And that
accomplishment, in turn, represents one of the more striking recent suc-
cesses of international law. For if we live today in an ‘Age of Human Rights’,
this is in significant part because of the international legal context with
reference to which human rights are today defined, invoked, contested,
promoted, explicated and debated.
There is a great deal more to the story of the establishment and consol-
idation of the international human rights regime than can be conveyed in a
few pages. But I have perhaps related enough of it to be able to pause now
and take stock of the general register in which the story unfolds. I suggested
earlier that it bears the hallmarks of a romance, and referred to David Scott’s
analysis of C.L.R. James’s The Black Jacobins. Before going further with our
discussion of human rights, let us briefly step aside to consider that book.
The basic facts with which James was concerned have to do with
European colonisation in the Caribbean. Specifically, they have to do with
the French colony of Saint-Domingue on the island of Hispaniola, the
regime of plantation slavery that was established there, the overthrow of
that regime by the slaves themselves under the leadership of Toussaint
L’Ouverture, Toussaint’s enforced removal to France and his death there
shortly afterwards, and the subsequent founding of Haiti as the first – and
for a long time only – independent black republic outside Africa. Clearly,
however, these facts can provide material for a variety of narratives,
involving plot structures, forms of characterisation, and recourse to partic-
ular tropes that belong with a variety of registers. So what was it, according
to Scott, that made James’s initial telling of the Haitian revolution – the
account that appeared in his first edition of 1938 – a romance?
It was the way James put Toussaint at the centre of his story, and lionised
him as a hero with vision, courage, and an undaunted belief in – his own
and others’ – humanity, who paid to end injustice with his life. It was also
the way James described in terrible detail the suffering from which so many
longed to be delivered, and evoked the sweet deliverance that would one
day be theirs. It was the way he included in his story the many vicissitudes

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associated with this deliverance – the obstacles, challenges and setbacks

that were faced on its path. It was the way he narrated the events as an epic
struggle for freedom against oppression (self-government against despot-
ism, integrity against corruption, respect against abuse, and so on). It was
the way he wrote of great deeds and noble sentiments, and of the eventual
redress of wrongs, the overcoming of adversity and the vindication of those
whose dignity had been traduced. As Scott describes it, what made James’s
initial version a romance was, above all, the distinctive direction, rhythm
and ‘moral’ of his story – the sense that successive events were moving
towards some definite horizon; that momentum was gathering, and
achievements were being racked up; and that there was inspiration to be
gained here, for in this tale of a particular time and place was an allegory of
universal significance.
If we return now to human rights, it is not difficult to see the parallels.
There too is an inspiring story of great deeds and noble sentiments.
Developed through that story are the same themes of suffering and longing,
freedom and oppression, vindication and deliverance. Humanity and dig-
nity are again the key values, reasserted through a collective enterprise that
calls on courage, determination, sacrifice (albeit usually non-mortal), and
leadership. Though it would have unduly prolonged my earlier account
to go into them, heroes likewise populate that story; to name just two
who are associated with the Universal Declaration of Human Rights: the
‘indomitable’ Eleanor Roosevelt, first chairperson of the UN commission
that negotiated the Declaration, and (more of ‘backroom’ hero) John
Humphrey, the UN official who was principally responsible for drafting
the document. The human rights story also proceeds by the same progres-
sive rhythm and with the same clear direction and ‘moral’. There are
achievements and successes, along with obstacles, challenges and setbacks.
Sometimes the successes are themselves challenges, as with the concerns
about efficacy and coherence that have attended the proliferation of human
rights texts, institutions and procedures. Throughout, however, one senses
the unyielding momentum of consolidation, correction, refinement, and
reform. Equally, and in consequence, one senses the accumulating results of
universalisation or, perhaps better, inclusion within the human rights
system of that which was previously missing or left out – inclusion most
obviously of more law and more organisation, but also of more states, more
victims, more experts, more issues, more perspectives, more stakeholders,
and more influence and prestige.

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Human Rights in Critical Perspective

What I call inclusion, someone else may call inflation. Indeed, James Griffin
is the latest of a long line of scholars to remark on the conceptual inflation
of human rights. He writes of the ‘tendency to . . . uncritical generosity’ in
the Universal Declaration of Human Rights that brought us, among other
rights, the human right to paid holidays (see article 24), and got ‘worse in
later rights documents’ (Griffin 2008, 186). I think it is fair to say that the
internationally protected right to paid holidays would have many defend-
ers, who would insist on its indispensability in ensuring the conditions for a
decent life, but let us put that aside and stay where we are. The issue for now
is: does Griffin’s complaint place him at odds with the romantic conven-
tions of human rights commentary just described? No. As we have seen,
those conventions are progressive, but not, in fact, uncritical. Griffin’s call
for a parsimonious approach to human rights (if that is what it is) is
advanced in the spirit of correction. He believes that we need criteria to
determine when the concept of ‘human rights’ is being correctly used and
when it is being overextended, and he offers help in supplying those criteria,
which in his view must depend ultimately on philosophy, not law. So he has
a plan to remedy the defects he identifies; he means to provide the rudder
without which he considers human rights have drifted badly off-course.
To observe that Griffin’s stern criticism still belongs within the romantic
conventions of writing about human rights is not, however, to say that all
criticism of human rights does so. In what follows we shall review critical
arguments of a different sort. They can be found in a relatively recent
literature (for a selection of works, see the end of this book), though one
that draws on traditions of thought which go back decades and in some cases
centuries. These arguments are advanced not so much in the spirit of correc-
tion as in the spirit of interrogation. What animates them is not a concern that
human rights have drifted off-course, but that questions need to be asked
about what it means for them to sail on-course. The focus is, accordingly, on
structural features of the human rights system – presuppositions, tendencies
and effects that are unremarkable, or at any rate generally unremarked,
within the romantic story of human rights. One consequence is that, if that
story (at least as I related it above) reads like a history, the story I am about to
outline may read more like theory. But part of its point is to offer elements
towards an alternative historical narrative of the international protection of

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human rights, and also to show how the romantic narrative itself embeds
theoretical propositions that need to be brought out and challenged. So, if
that is right, there is history and theory in both.
What then are these structural features? To get the discussion of them
started, let us consider a short text by Chidi Odinkalu entitled ‘Why More
Africans Don’t Use Human Rights Language’ (Odinkalu 1999). According to
Odinkalu, Africa presents us with a case of both ‘a human rights crisis and a
crisis for human rights’. The human rights crisis is well known, and has to do
with the chasm that separates rights from realities for the vast majority of
people on the continent. The crisis for human rights is less well known, or
anyway less often mentioned. It is reflected in the fact that most Africans
‘do not describe their problems in human rights terms’. As he explains the
situation, ‘people are acutely aware of the injustices inflicted upon them’;
for that knowledge, they don’t need the Universal Declaration of Human
Rights and the treaties and other instruments that make up international
human rights law. What they do need is ‘a movement that channels these
frustrations into articulate demands that evoke responses from the political
process’. Yet the insistence of human rights institutions and organisations
on being ‘neutral’, ‘impartial’ and ‘non-political’ means that that is the one
thing which the international human rights system cannot provide. Thus
alienated from those they are meant to protect, human rights become
increasingly the specialised idiom of a select group of professionals – less
a ‘badge of honour’ than a ‘certificate of privilege’.
Put forward here, quite plainly, is an account of human rights in which
our appreciation of their successes is tempered by an awareness of their
significant failures and limitations. Odinkalu’s analysis is useful because he
touches on a number of the matters that are similarly highlighted and called
into question by other authors. To begin with, there is the depoliticisation
of which he writes. The effort to keep the international protection of human
rights as ‘non-political’ as possible belongs, of course, with the much
broader ideal in liberal thought of separating law from politics. As has
long been observed, however, law fundamentally depends on politics,
even as politics is itself shaped by the concepts and categories of the law.
There are many aspects to this, but one, emphasised by Odinkalu, is that
legal rights do not of themselves translate into social realities; to realise
rights it is necessary to act on political processes. And just as political
processes determine what can be made of legal rights, so too they determine
what constitute those legal rights in the first place; in theoretical language,

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rights are not ‘pre-political’. So, for example, the nature and scope of
human rights in any given situation will be conditioned by the particular
treaties that have been ratified by the state or states involved, the extent to
which reservations have been made and monitoring procedures accepted
with respect to those treaties, and the way relevant norms of the law of
treaties are understood and applied by state authorities.
Alongside depoliticisation, Odinkalu directs attention to the related phe-
nomenon of professionalisation. Although human rights have had, and still
at times retain, an important role in mobilising, consolidating and fortify-
ing popular struggles against oppression, the context for this role is today a
countervailing prioritisation of expertise. Thus, Odinkalu highlights the
emergence of human rights as an object of specialised knowledge, and of
the human rights movement as a privileged domain with limited participa-
tion by, and even less accountability to, the constituencies it is supposed to
protect. Insofar as human rights organisations act on behalf of groups to
whom they do not answer, there creeps in a potential for arrogance or, at the
least, loss of solidarity; the focus is instead on the donor agencies and
‘partner’ organisations to which ties are stronger. This points to another
notable dimension of the professionalisation of human rights: bureaucra-
tisation. As human rights institutions and procedures have proliferated, so
also have the people and practices required to run them, and to do so, as
observed above, efficiently and effectively. Of course, efficiency and effec-
tiveness are laudable and appropriate goals, but the point here is that
bureaucratic indicators can be misleading. Through them a vision of the
world is fostered in which we too hastily assume that more meetings, more
reports, more monitoring mechanisms, and more treaty ratifications equate
to better social conditions.
Depoliticisation and professionalisation are the key issues evoked in
Odinkalu’s text, but implicit in his analysis are some further concerns.
One has to do with the production of victims. By this is not meant the
production of what occasions victimhood (though, as we shall see, that too
may be at stake); the reference is instead to the production of victims as a
particular category, identity or form of ‘subjectivity’. For human rights do
not simply ascribe rights to people already constituted as subjects; part of
what they do is to constitute those subjects. So, for instance, although the
Universal Declaration of Human Rights and the other texts of international
human rights law are written as though the ‘human being’ or ‘member of the
human family’ who is the subject of human rights were their basis, it needs

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rather to be understood as their effect. More than that, it needs to be

understood as an effect with distinctive characteristics, for rights produce
the particular sort of right-holders who fit them. The question then
becomes: what sort of right-holders are they? What specificities are con-
cealed inside this person-in-general, this neutrality which is the ‘human
being’, and what social hierarchies and forms of power and privilege are
thereby naturalised and reinforced? Within that line of enquiry, it is sig-
nificant that the victim of human rights is a largely passive identity, defined
by suffering, and waiting for vindication through the heroic agency of the
international human rights system.
The victim of human rights is an identity that also has the characteristic
of privileging abuses in the domain of public life. This leads to another
concern, inasmuch as that is helpful to those seeking redress in connection
with misconduct by state officials, but not so helpful in dealing with
violence, exploitation and oppression in the ‘private’ sphere of economic,
associational and intimate relations. To be sure, important steps have been
taken in recent decades to extend the scope of state responsibility. We speak
today not just of the (negative) obligations of states to refrain from inter-
fering with human rights, but also of their ‘positive’ obligations to prevent
and punish interferences by ‘non-state actors’. So too we speak of the
obligations of states not just to ‘respect’ human rights, but also to ‘protect’
and ‘ensure’ them, again through regulation of ‘non-state’ conduct. But the
responsibility remains that of the state, and this reflects a notable state-
centricity that, as discussed elsewhere in this book, pervades international
law in general. To place the state at the centre of all liberatory possibilities is
not just to marginalise ‘non-state actors’ – the very phrase already under-
scores the primordiality of states. It is also to gloss over the constraints
imposed on state action by socio-economic forces and relations, both
within national boundaries and across the world. According to a familiar
analysis, state-centricity is offset in the case of human rights by a focus on
individuals (or collectivities) and their rights. This idea of human rights as
‘incursions into’ state sovereignty presupposes that power gained by indi-
viduals is power lost by states. Yet we know that, in reality, things are not so
simple; rights empower right-holders, but they also empower states to order
and control the social environment in which right-holding arises and
becomes consequential.
This double empowerment has another dimension, which brings us to
perhaps the most telling structural feature of the international human rights

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system. If human rights are a language of responsibility and claim, they are
also a language of exoneration and justification. That is so for at least three
reasons. One is the simple fact of conceptual boundaries: what is not in is
out. To prohibit abuse is to authorise whatever does not constitute abuse.
Regulatory activity is always at once repressive and permissive. A second
reason is that it is also invariably the case that the relation between
repression and permission gets mediated in a multiplicity of ways. With
rights come rationales for setting them aside, whether in the shape of in-
built exceptions and qualifications, overriding principles of exoneration or
excuse, general norms to do with the making or application of international
law, or indeed other, equally compelling but potentially incompatible
human rights. And a third reason is that all this calls for interpretation.
Human rights do not themselves speak; they are made to speak in the
service of particular people and particular purposes. The question is always
which people and purposes. What arguments does the international human
rights system make available, to whom, and under what conditions? To
point to the justificatory aspect of human rights is to invite attention to their
legitimating function in many different contexts. But one context in which
the legitimating function of human rights has attracted particular attention
in recent years is war. The centrality of human rights in virtually all
justificatory arguments today for war, whether through the doctrine of
humanitarian intervention, the more recent principle of the responsibility
to protect, or the rules of international human rights law (and the related
bodies of international humanitarian law and international criminal law)
themselves, is at one level a measure of the rise of human rights; at another,
a measure of their fall; and at yet another, a measure of their abiding
contradictions.
As with the story of the establishment and consolidation of the human
rights regime, there is much more to this ‘counter-narrative’ than can be
captured in a few pages. But rather than pressing further, let us return now
to the question of register, and to The Black Jacobins that is serving as our
reference-point in that regard. The key aspect, you will recall, is the shift
observed by David Scott from romance to tragedy. We have seen the main
elements that can be said to have made C.L.R. James’s original edition of
1938 a romance. How did he revise it for his second edition of 1963 so as to
re-code the story as a tragedy, and what parallels may again connect the
history of this book with our investigation into the international protection
of human rights?James made a number of changes for the work’s second

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edition, but for Scott the most significant is the insertion of a new passage in
which James reflects on his hero’s ‘tragic alternatives’ (James 1963, 236).
Either Toussaint could ensure the permanent emancipation of slaves in
Saint-Domingue, or he could maintain colonial ties with France. He could
not do both, for the French authorities were determined to restore slavery in
the colony; the bourgeoisie profited from it too much to let it go. Yet he had
to do both, for true emancipation depended on ties with modern, enlight-
ened France – or so Toussaint believed, as a modern, enlightened child of
the French revolution himself.
Scott calls this kind of dilemma, about which many have written in recent
decades, the ‘tragedy of colonial enlightenment’, and he shows how, in
emphasising the tragedy of colonial enlightenment, James interrupts the
romantic narrative of progress. Instead of a progressive movement in the
direction of some definite horizon, we are left with the sense that we do not
know where the future may lead. Instead of an epic struggle between starkly
opposed phenomena (freedom and oppression, self-government and des-
potism, and so on), we are presented with a much more interconnected set of
problems. Instead of the eventual redress of wrongs, we are confronted with
the possibility of an outcome that is contradictory, ambiguous and unre-
solved. And instead of an inspiring story in which the universal is disclosed
within the local, we are thrown back on the contingency of events we
should neither sentimentalise nor judge. Scott suggests that the altered
register of James’s second edition may reflect the impact on James of the
nationalist struggles in Africa then reaching fruition. But whatever promp-
ted the change, Scott’s main point – the point he wants us to take from his
book (as distinct from James’s) – is that the tragedy of colonial enlighten-
ment is a more compelling story today than the romance of anti-colonial
nationalism, inasmuch as the latter simply is not now helpful.
And this, surely, is the principal message too of the arguments we have
just reviewed. The romantic narrative of human rights is not wrong, but it is
inadequate. Its well-meaning tale of vindication and deliverance needs
interruption. For if the international human rights system can serve as an
instrument of the powerless, it can also serve as an agent of the powerful. If
it can be used for resistance, it can also be deployed for hegemony. If it can
impugn violence, it can also justify violence. And if it can help to challenge
prevailing power relations, it can also help efforts to keep things as they are.
We have seen some of the factors that contribute to this ambiguity: depo-
liticisation, professionalisation, the production of victims, state-centricity

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and the justificatory capacity of human rights. In each case, the forward
march of progress is unsettled by a more complex and uncertain rhythm.
The international protection of human rights may well be moving in the
direction of consolidation, correction, refinement, and reform, but if so, that
is not the only direction in which it is moving. We need to consider the other
directions too, and scrutinise them with equal vigour. In this context,
Toussaint’s dilemma stands as a permanent reminder that the gates of
modernity are guarded with two faces. What enables emancipatory struggle
may also enable the brutality of a global order in which the secular religion
is not (or not only) human rights, but, of course, capitalism.

Haiti and the Human Rights Approach

The Black Jacobins deals with Haitian history from colonisation to inde-
pendence. Fast-forward a little over two hundred years. On 12 January 2010
a catastrophic earthquake hit southern Haiti, with its epicentre near the
capital, Port-au-Prince. Hundreds of thousands of people were killed, many
more injured, and more still left without homes. Two weeks later the UN
Human Rights Council held an emergency meeting (or ‘special session’) to
discuss the situation. The theme was ‘a human rights approach to the
recovery process in Haiti’. In a statement to the session, UN High
Commissioner for Human Rights Navanethem Pillay paid tribute to the
‘bravery, resilience and mutual solidarity that had been displayed in
the face of immense adversity’. This was the ‘worst tragedy’ experienced
in the Western hemisphere for many decades. Its effects had been ‘exacer-
bated by pre-existing inhuman conditions of poverty, instability and feeble
institutions’, and if these were to be overcome, initiatives had to be ‘anch-
ored in human rights’. ‘A human rights approach helps ensure that the root
causes of vulnerabilities, in this case poverty and discrimination, are
addressed.’ Government and civil society delegates likewise spoke of the
tragedy that had befallen Haiti, and of the need not to let human rights be
eclipsed by the immediate demands of humanitarian aid. For it was crucial
to be aware that ‘natural disasters and the way in which international
organizations responded to them [have] clear human rights implications’.
Was this, however, a ‘natural’ disaster? At the same time as that dis-
cussion was unfolding in the Human Rights Council, another debate was
underway on the historical context in which ‘poverty and discrimination’

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had caused so many people to be killed, injured and made homeless. Writing
in the New Statesman, Peter Hallward recalled the course of Haitian history
since the overthrow of colonial slavery and the establishment of the new
state in 1803 (Hallward 2010; see also Hallward 2007). Beginning with a
punishing blockade and the imposition by France of massive ‘reparations’
for the loss of slaves and other colonial property, it is a litany of interven-
tionary episodes in support of foreign commercial interests and the tiny
local elite, the successors to the colonial plantation owners. The viciousness
of Duvalier père et fils, the US-backed despots who ruled Haiti from the
1950s to the 1980s, is well known, and it was during the younger Duvalier’s
reign of terror that economic ‘modernisation’ came to Haiti. Hallward
reports that Haitians referred to the scheme of privatisation, fiscal austerity,
and de-agrarianisation as the ‘death plan’. Several more monetary and
military interventions later, that has certainly been, and in January 2010
remained, its significance for many. When the earthquake struck, huge
numbers of people were living in and around Port-au-Prince, in flimsy
slum dwellings pushed to the precarious edge of deforested and eroding
ravines.
The message here is clear. If nature brought the earthquake to Haiti, the
catastrophe it caused was decidedly man-made. The Human Rights Council
was plainly aware of this. In speech after speech, poverty and discrimina-
tion were held up as the root causes of what had happened. But what caused
poverty and discrimination?As Seamus Milne writes in commentary about
the public reaction to the earthquake in the United Kingdom, these realities
of the Haitian situation were treated as ‘baffling quirks of history or culture’
(Milne 2010). To be sure, Pillay referred at one stage to the ‘Duvalier regime
which forced people from rural areas and farmers from rice fields to the
capital to provide cheap labour for Haiti’s elite’. But she did not – indeed, she
could not – mention the relation of that regime to the United States, and nor
did she say anything about the role of the international financial institu-
tions and later also the UN itself in carrying the policies forward through
‘structural adjustment’. There is an important general point here. The con-
cept of ‘root causes’ is today a conspicuous feature of the international
human rights system. Root causes, as we see, are part of what a ‘human
rights approach’ is supposed to address. But in the manner in which this
discourse has developed, it risks concealing more than it reveals. We are left
to think of the misery of Haiti’s poor not as an outcome of determinate
forces and relations, including forces and relations that stretch across the

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 324 Susan Marks

world, but as a local dysfunction and accident of history. We seem con-

fronted with the work of a cruel dictatorship that simply arrived one fearful
day and wreaked havoc, almost as though it were . . . an earthquake.
This opens up a fascinating question. Could it be that to call something a
violation (or ‘root cause’ of a violation) of human rights is always to treat it
is a baffling quirk of history or culture, that is to say, as a disaster which, if
man-made, may just as well be natural? Could it be, in other words, that
‘natural disaster’ is the model on which in this context everything is
imaginatively constructed? If so, then the Human Rights Council exposes
here, however unwittingly, a truth about the international protection of
human rights that goes well beyond the question of a human rights
approach to the post-earthquake recovery process in Haiti. That is, in fact,
a truth to which many have alluded in diverse ways. Naomi Klein, for
example, has evoked the case of torture and disappearance in Chile and
Argentina during the 1970s and 80s (Klein 2007, 118 et seq.). The human
rights movement never raised the question as to whether there was a
connection between these atrocities and the extreme form of neo-liberal
economic restructuring then being imposed on the societies concerned.
Klein maintains that this was because the movement committed itself
during this formative period to the style of anti-political politics on which
Odinkalu also comments in the text discussed above. While there were
reasons for that, the effect was to occlude any awareness that the abuses
were a form of ‘planned misery’ (this is Rodolfo Walsh’s phrase. See Klein
2007, 95). They could only be grasped as ‘random, free-floating bad events,
drifting in the political ether, to be condemned by all people of conscience
but impossible to understand’ (Klein 2007, 120).

Conclusion

Let us briefly retrace our steps before concluding. Taking our cue from
David Scott’s analysis of C.L.R. James’s The Black Jacobins, we have
considered the international protection of human rights with reference to
two distinct narrative modes. A romantic account describes the establish-
ment and consolidation of the international human rights regime. It is a
story of proliferating texts, institutions and procedures, and of the patient
labour of interpretation, co-ordination and reform. There are setbacks and
strains, but also incontrovertible achievements. All states of the world are

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 Human rights in disastrous times 325

today parties to at least one human rights treaty, and most are parties to
more than one. Monitoring mechanisms created under these treaties, and
within the UN, have catalysed countless changes of great legal and practical
significance.
A tragic account reminds us that more treaty adherences do not neces-
sarily correlate to improved social circumstances, even if sometimes they
do. Bureaucratic indicators can be misleading, just as the professionalisa-
tion of human rights can be corrosive. Emancipatory struggles are not a
matter of rescue by heroic professionals, but of people altering the con-
ditions of their lives. This means acting on political processes that include,
but also extend beyond, the state. International human rights law creates
avenues for redress in connection with misconduct or neglect by state
officials. But it also offers justification for state policies. And it provides
few direct remedies against private actors, indeed strengthening the latter’s
hand insofar as it treats economy, society and culture as the given back-
ground against which rights may be claimed.
Interwoven with that story of two narratives about human rights has also
been another story, about Haiti from revolutionary times to the present day.
This is a story of three tragedies. The first is the tragedy related by the UN
High Commissioner for Human Rights and the delegates to the Human
Rights Council’s special session of January 2010. That story tells of tragedy
in the sense of fate, chance, destiny or malign nature; the accent is on the
ineluctability of events and the nobility of suffering. The second is the
tragedy that preoccupies James (in his second edition) and Scott. That
story tells of tragedy in the different sense of contradiction, indeterminacy
and dilemma – the tragedy of colonial enlightenment. And the third is the
tragedy to which Hallward, Milne and Klein direct our attention.
Questioning both the ineluctability of events and their historical indetermi-
nacy, that final story tells of tragedy in the different sense again of planned
misery or ‘necessary suffering’ (see Asad 1996).
In elaborating the idea of ‘necessary suffering’, Talal Asad quotes Lord
Cromer, British Consul-General to Egypt from 1883 to 1907 (and later
leading anti-suffragette). If cruelties were imposed in the course of colonial
administration, then – Cromer matter-of-factly observed – this was because
‘civilisation must, unfortunately, have its victims’. Necessary suffering, like
planned misery, invites consideration of the organisation of imperial power,
and of the persistence, and changing forms, of exploitation in the modern
world. This third form of tragedy is vivid in writing about Haiti. But, with

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few exceptions, it has had relatively little impact on writing about the
international protection of human rights. Perhaps, though, the moment
has come for another shift in register, a new human rights narrative for
our disastrous times.

BIBLIOGRAPHY

Asad, T., 1996. ‘On Torture, or Cruel, Inhuman, and Degrading Treatment’, Social
Research, 63, 1081–1109
Griffin, J., 2008. On Human Rights, Oxford University Press
Hallward, P., 2007. Damming the Flood: Haiti, Aristide and the Politics of
Containment, London: Verso
Hallward, P., 2010. ‘The land that wouldn’t lie’, New Statesman, 28 January
James, C. L. R., 1963. The Black Jacobins, London: Penguin
Klein, N., 2007. The Shock Doctrine, London: Penguin
Milne, S., 2010. ‘Haiti’s suffering is a result of calculated impoverishment’, The
Guardian, 20 January
Odinkalu, C., 1999. ‘Why more Africans don’t use human rights language’, Human
Rights Dialogue, 2.1, Winter
Scott, D., 2004. Conscripts of Modernity: The Tragedy of Colonial Enlightenment,
Duke University Press

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