Between Hope and Critique: Human Rights, Social Justice and Re-imagining International Law from the Bottom Up

• Publication year: 2020
• Citation: Vol. 48 No. 2

Between Hope and Critique: Human Rights, Social Justice and Re-Imagining International Law from the Bottom Up

Lorenzo Cotula^*

Table of Contents

I. Introduction................................................................................475

II. Human Rights and Social Justice: Anatomy of the Critique—and of Its Limits...........................................................................478

A. On Social Justice...............................................................478
B. The Critique in Outline......................................................479
C. Human Rights in 3D..........................................................482
D. Social Movements and Human Rights: "Reactive" and "Constitutive" Strategies..................................................484

III. Human Rights in "Reactive" Mode: The Right to Collective Property and Indigenous Peoples' Land Struggles............485

A. Introductory Remarks........................................................485
B. Mapping the Terrain.........................................................488
C. Normative (Re)configurations...........................................493
D. Preliminary Appraisal.......................................................497

IV. "Constitutive" Human Rights Strategies: The Struggle for Peasants' Rights..........................................................................504

A. Introductory Remarks........................................................504
B. Mapping the Terrain ......................................................... 504
C. Normative (Re)configurations...........................................507
D. Preliminary Appraisal.......................................................513

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V. Discussion.....................................................................................515

A. Human Rights: Intellectual Histories, Legal Configurations, and Social Practices..........................................................515
B. From Human Rights Frameworks to Rights-Claiming as a Practice of Contestation....................................................517
C. Rights-Claiming in Contested Socio-Political Terrains.... 519

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I. Introduction

For human rights advocates, the present era is a time of reflection. This is partly because, in several countries, authoritarian patterns old and new are restricting scope for dissent and contestation—a trend that increases the need but reduces the space for human rights strategies.¹ At a deeper level, however, wide-ranging critiques over the past two decades have questioned the viability of human rights as a vehicle for emancipatory action.

Critiques of rights are not new and have taken different forms.² But growing public concerns about economic inequality have sparked more recent commentary about the role human rights may have played in abetting and even sustaining the perceived ills of global economic ordering—including poverty, dispossession and exploitation.³ The historical overlap, since the 1970s, between the rise to prominence of human rights in public discourse and mobilization on the one hand, and the deepening of neoliberal economic configurations on the other, has sustained these debates.⁴

The new wave of critique has emerged at a time when many social movements mobilize human rights to frame their action in pursuit of social justice, from challenging land grabbing and labor exploitation, to promoting fairer terms of inclusion in global value chains. Over time, the critique could foster shifts in the discursive practices that underpin social justice advocacy. But the present coexistence of a new surge in the critique of rights on the one hand, and of mobilizing rights in social struggles on the other, raises questions about the relation between critical theory and emancipatory action.⁵

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International law has long provided fertile ground for the interplay of human rights and social justice. International tribunals have adjudicated on human rights claims that were informed by a concern for social justice, for example, with regards to the litigation that indigenous peoples initiated to defend or reclaim their ancestral lands.⁶ Similarly, the international bodies responsible for interpreting human rights treaties have had to grapple with social justice issues in the elaboration of their jurisprudence, and the involvement of activists in the development of new international human rights instruments has become an increasingly significant occurrence.

Outside the realm of institutionalized proceedings, public advocacy in wide-ranging socio-political arenas has often invoked the terms, and the authority, of international human rights treaties to advance social justice goals.⁷ This role of international law in the interface between human rights and social justice means that the recent surge in the critique of rights raises questions about the theory and practice of international law, and ultimately about the emancipatory potential of international law itself.

This Article reflects on the place of human rights, particularly international human rights law, in strategies to advance social justice. It argues that, while some critique takes aim at an encompassing human rights "project," the contested nature of human rights calls for more granular analyses that consider the diverse constellations of actors, agendas, arenas, and approaches connecting human rights to social justice. And while much public debate has focused on institutionalized human rights actors and frameworks, the article identifies human rights' primary emancipatory promise in the agency of the social actors—indigenous peoples, agrarian movements, trade unions, non-governmental organizations (NGOs), grassroots groups—that have appropriated and in some cases reconfigured human rights from the bottom up.

Examples include international litigation to validate new interpretations of long-recognized rights; public campaigning for new international instruments to shift the contours of human rights; and invoking internationally recognized rights to change public discourses in local to global policy arenas. This re-centring of the discussion around how social actors mobilize internationally recognized human rights is part of a wider shift in the way international law is conceived of, not just as a practice located in the global centers of

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international diplomacy, but as a phenomenon that is both experienced and to some extent shaped at the grassroots as well.⁸

The remainder of the Article is structured as follows. Section II briefly outlines the relation between human rights and social justice, cursorily re-viewing—and critically engaging with—some of the main strands of the recent critique of rights. Section II also articulates the case for disaggregating the interface between human rights and social justice in the light of two interlinked but distinctive modes of human rights advocacy: "reactive" strategies, whereby recourse to existing human rights concepts and instruments responds to specific instances or patterns of social injustice; and "constitutive" strategies, whereby advocacy aims for a more foundationally normative reconfiguration of human rights themselves, in pursuit of longer-term social justice goals.

Sections III and IV examine two case studies of "reactive" and "constitutive" forms of rights-claiming to distil qualitative insights on the place of human rights in social justice strategies. While much debate about the relation between human rights and social justice has been primarily grounded in European and North American experiences, the analysis deliberately focuses on experiences of advocacy conducted by actors that are located, at least in part, in the "global South," often through alliances that cut across conventional North-South divides, and largely outside the mainstream "human rights movement," in order to facilitate fuller consideration of the geographic and ideological diversity of human rights activism.

The first case study, discussed in Section III, concerns the "reactive" use of human rights in indigenous peoples' struggles to challenge the award of commercial natural resource concessions in their ancestral territories. This case study relies particularly heavily on human rights litigation and jurispru-dential developments that occurred within the regional human rights systems of Africa and the Americas. The second case study (Section IV) considers the use of human rights in "constitutive" strategies to transform the economic paradigm that underpins the global food system. This part focuses on the longstanding and ultimately successful advocacy of international agrarian movements for the adoption, by the United Nations General Assembly, of the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas.⁹

Each of the two case studies is examined though a common socio-legal prism that interrogates: i) the political and juridical terrain from which the

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relevant rights-claiming practices emerged; ii) any normative reconfigurations the rights-claiming led to, whether in the form of jurisprudential developments or international (soft) law making; and iii) whether and how rights-claiming ultimately achieved the changes sought in social, political, and economic trajectories.

While extremely diverse in their actors, agendas, arenas and approaches, the two case studies illustrate the ways in which social actors have wielded human rights to reclaim land, resources and territories, to renegotiate control over national development pathways, and to challenge aspects of global economic ordering. These aspects range from the "extractivist" paradigm whereby large-scale agribusiness, mining, petroleum and hydro projects are converting indigenous lands to commodity extraction, all the way to control over the means of production and value chain relations in the context of global food systems.

The...