Centre for International Governance and Justice
Consider two contrasting world views. The first is of a better world achieved through the realisation of human rights. According to this world view:
the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his [human] rights.
According to the second world view, championed by the international peasants’ movement, La Via Campesina:
We must never be afraid to imagine a much better world, one without the WTO, one that is based on Economic Justice, that has Food Sovereignty at its heart and…that relates to Mother Nature in a respectful and sustainable manner.
People’s mobilisation, confrontation with oppressors, active resistance, internationalism and local engagement are all necessary components for social change.
I consider the Via Campesina world view in the final part of my discussion. To begin, I canvass two arguably compelling critiques of human rights and suggest that identifying the rituals associated with human rights helps to demonstrate the force of these critiques. I also consider whether growing recognition of economic, social and cultural (ESC) rights unsettles some rights rituals and accords meaningful content to others – thereby providing a response to the critiques that I’ve identified.
The political critique
Many rights theorists, including Susan Marks in her article, ‘Human Rights and Roots Causes’ argue that while any appeal to human rights is inherently political – involving claims that are explicable only with reference to the historical, social and material context in which they are made, what is at stake in such an appeal is obscured by the characterisation of human rights as ideologically neutral and as expressing universal moral commitments.
This means that when human rights are invoked by powerful actors in particular contexts, whether in order to support a ‘democracy-building’ project in Afghanistan or a military intervention in Libya, the strategic and material interests that are at play are written out of the story. At the same time, the agency of the potential recipients of ‘human rights’ is quashed. For Žižek this involves, ‘beneath [the] depoliticized, let’s-just-protect-human-rights rhetoric…an extremely violent gesture of reducing the other to the helpless victim.’
The market critique
The market critique moves beyond the political critique to suggest that human rights help secure a liberal market model within which considerable disparities in economic power are the norm. This critique recognises the source of the claim that humans are born ‘free and equal in rights’ in classical liberalism, in which rights entitle individuals to exercise control over their bodies as well as over possessions that they have been able to acquire through their labour, but do not entitle them to begin life in possession of land or other material goods. Unequal distributions are acceptable from birth given that property owners are entitled to bequeath and inherit possessions. According to the liberal argument, individuals born without an inheritance are free to sell their labour in an open market place and to use the proceedings to purchase property. Arguably current conceptions of human rights still conform to this basic liberal structure.
The rituals of human rights
Rituals are forms of meaning-making that constitute certain norms and values while de-legitimating others. Rituals may instigate new social relations, and operate to strengthen existing relationships, but it’s also part of their nature to obscure the contested quality of these relationships. The practise of human rights in international law is replete with ritual, including many linguistic rituals involving the repetitive use of iconic or lofty phrases. Like music these phrases strike a chord and appeal to our emotional sensibilities, but they may also operate to short-circuit critique. Within the international human rights lexicon, notable rituals include those of universality; moral consensus; human dignity, freedom and equality; state sovereignty; political neutrality; international cooperation; legality; and faith in human progress and technical solutions to the problems humans face. Each idea is invoked within the instruments and practices of international human rights in ritual fashion. All are articles of faith that through reiteration also affirm and entrench participants’ shared faith in human rights.
I’m not going to spell out the particular instances and forms of each ritual here. Rather, I want to draw attention to the fact that while the International Covenant on Economic, Social and Cultural Rights (ICESCR) reiterates the key rituals of human rights, it provides an interesting example of a human rights instrument that is potentially disruptive of some rights rituals and that at first glance appears to demonstrate the substance of others. Against the rituals of universality, consensus and political neutrality, the status and recognition of ESC rights is vigorously contested. At the same time, the formulation of ESC rights arguably supports human dignity, freedom and equality, and fosters some forms of international cooperation.
In the drafting debates for ICESCR, opponents of ESC rights characterised them as ‘leftist’ and as requiring ‘more or less totalitarian control of the economic life of [a] country.’ Opposition to ESC rights did not disappear with the adoption of ICESCR in 1966. While it now has nearly as many states parties as the ICCPR, it has only recently acquired an enforcement mechanism and the adoption of ICESCR’s Optional Protocol in 2008 was attended by similar controversy as that which attended the Covenant’s drafting.
This would seem to auger well for a reading of ICESCR as more ideologically capacious than the market critique of human rights suggests. By referencing rights to food, education and housing, for example, ICESCR appears to ameliorate the injustice of a world in which individuals’ material starting points are dramatically skewed, and thus to promote human dignity, freedom and equality. Admittedly, ICESCR doesn’t treat material inequality as a problem in itself – but it does appear to accord equal rights to a broad range of economic and social goods.
This appearance is, however, deceptive. ICESCR requires states to ‘take steps to ensure progressive realisation’of the rights it contains, it doesn’t require immediate fulfilment of these rights. Nevertheless, the Committee that administers ICESCR (CESCR) argues that the Covenant imposes ‘core obligations’ to provide ‘minimum essential levels of [all] rights’. On this basis CESCR says that:
a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic form of education is, prima facie, failing to discharge its obligations under the Covenant.
CESCR has called on states to implement redistributive policies to ensure their ‘core obligations’ are met, and it has expressed support for traditional and micro credit schemes as well as for some land redistribution policies.
ICESCR also appears to give substance to the ritual of international cooperation – at least amongst states parties – because it recognises that the realisation of ESC rights within particular countries may require such cooperation. Here, though, the Covenant’s capacity to give meaningful content to the ritual of international cooperation is clearly limited by political realities, with CESCR asking no more of wealthy countries than that they meet existing commitments to dedicate 0.7% of their Gross National Income to Overseas Development Assistance.
Human rights are more partial than their seductive rituals of universality, dignity, freedom and equality imply, and historically they have supported a liberal market model, but as the on-going debates over ESC rights demonstrate, their meaning continues to be contested. Whether they will ever provide more than an ‘ameliorative’ or ‘civilising’ strategy in the service of liberal market relations is a question I want to consider with reference to La Via Campesina.
La Via Campesina
Founded in 1993, through the initiative of Latin American peasant and landless workers movements, La Via Campesina represents ‘around 200 million’ ‘peasants, small and medium-size farmers, landless people, indigenous people and agricultural workers’. It disavows allegiance to institutionalised political parties and is ‘committed to work[ing] collectively to defend [its members’] rights’.
La Via Campesina’s goals centre around the concept of ‘food sovereignty’. The movement describes food sovereignty as supporting ‘small scale production that benefit[s] communities and their environment’. According to Via Campesina, it also
gives a country the right to protect its local producers from cheap imports and to control production. It ensures that the rights to use and manage lands, territories, water, seeds, livestock and biodiversity are in the hands of those who produce food and not of the corporate sector.
Food sovereignty is specifically opposed by Via Campesina to the notion of a human right to food. The right to food may be realised by handouts from the state or international donors, but in this form does nothing to remedy problems such as evictions from land or price volatility in international food markets that deprive people of the capacity to support themselves through sustainable food production practices.
La Via Campesina aims to achieve food sovereignty primarily through popular mobilisations, ‘confrontation with oppressors’, ‘active resistance’, ‘and building up alternatives’. Despite its oppositional stance to many global institutions, however, Via Campesina is engaged with the UN through its Food and Agricultural Organization and as a civil society member of the intergovernmental Committee on World Food Security. Campesina is also pursuing dedicated legal recognition of peasants’ rights. In 2009 it presented the text of a Peasants’ Rights Declaration to the UN General Assembly. The Human Rights Council’s Advisory Committee has now produced a draft Declaration drawing heavily on Via Campesina’s original, and an ‘open-ended intergovernmental working group’ has been asked to finalise a further draft for consideration by the Human Rights Council.
The engagement by Via Campesina with the UN and its promotion of a Declaration of Peasants’ Rights has been a source of spirited discussion within the movement. For proponents, it’s important to cultivate spaces that provide oppositional fora to institutions such as the WTO. Proponents also argue that unless peasants make their voices heard in international institutions their interests will not be canvassed at all. Opponents argue that engaging with the UN and the human rights system is too costly in terms of time and resources and is unlikely to undermine the power of global financial and trade institutions.
It’s certainly the case that the closer the Peasants’ Rights Declaration comes to official UN recognition, the further it is from responding to peasants’ demands. To take just one example, in the transition from the Via Campesina draft to the Advisory Committee draft, the right ‘to reject all kinds of land acquisition and conversion for economic purpose’ has been excluded. It was replaced with an article stating that peasants should not be forcibly evicted from their land and that re-location should only take place with their ‘free, prior and informed consent’. This locution appears in the 2007 UN Declaration on the Rights of Indigenous Peoples and it has been restrictively interpreted in other contexts so that it operates more like an obligation imposed on indigenous people to consult on development projects than a right to veto these projects.
The worry is that if the Peasants’ Rights Declaration is ultimately adopted, it may be used to legitimise the repression of Via Campesina’s own mobilisations, including land occupations and resistance to land grabbing and to development projects. The beguiling rituals of human rights may again serve to mask what is politically contested and to facilitate the functioning of a liberal market model.
This is an edited version of a paper presented at ‘The Rituals of Human Rights Law’ workshop, hosted earlier this month by the Centre for International Governance & Justice at ANU.
 Preamble, International Covenant on Civil and Political Rights & International Covenant on Economic, Social and Cultural Rights.
 La Via Campesina, 2013. ‘La Via Campesina demands an end to the WTO’, Letter from La Via Campesina to the members of ‘Our World is not For Sale’, 6 December.
 La Via Campesina, 2014. ‘The Jakarta Call’. Documentary featuring La Via Campesina’s 6th International Conference that took place in Jakarta in June 2013 (La Via Campesina, ZinTV and Alba TV, Harare, 10 April 2014). The blurb to the documentary on the LVC website is titled, ‘Celebrations in Jakarta for La Via Campesina’s 20 year anniversary’.
 (2011) 74(1) The Modern Law Review, 57-78.
 Slavoj Žižek, 1999. ‘Human rights and its discontents’, lecture at Bard College, 15 November.
 See Ben Authers, Hilary Charlesworth & Emma Larking, ‘The Rituals of Human Rights Law’ workshop themes, Centre for International Governance & Justice, ANU, 25-27 June 2014.
 Some of these rituals are identified by Jane Cowan specifically in relation the Human Rights Council’s ‘Universal Periodic Review’ process (‘The Universal Periodic Review as a Public Audit Ritual’ in Charlesworth, H. & Larking, E. (eds), Human Rights and the Universal Periodic Review, Cambridge University Press, forthcoming 2014.) In her ‘Root Causes’ article Susan Marks emphasises the reliance on technical solutions in the human rights system.
 Representative of the Union of South Africa, in debate surrounding the draft Universal Declaration, quoted in P. Alston & G. Quinn, 1987. ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ 9 Human Rights Quarterly 156 at 181.
 Committee on Economic, Social and Cultural Rights, ‘General Comment 3, The nature of States parties’ obligations’ (Fifth session, 1990), U.N. Doc. E/1991/23, para.10.
 See Ben Golder, 2014. ‘Beyond Redemption? Problematising the critique of human rights in contemporary international legal thought’, London Review of International Law Vol. 2(1): 77-114 at 110: ‘On many accounts, human rights as a political project seeks not to break with or contest the logic of capitalism but instead to ameliorate or to ‘civilise’ it’.
 Maria Elena Martinez-Torres & Peter M. Rosset, 2010. ‘La Via Campesina: the birth and evolution of a transnational social movement’, The Journal of Peasant Studies Vol.37, No.1, 149-175 at 156.
 La Via Campesina, 2011. ‘The International Peasants’ Voice’, La Via Campesina website, ‘Organisation’ page, published 9 February.
 La Via Campesina, ibid.
 La Via Campesina, 2013. ‘Gaining support for the peasant’s way – La Via Campesina at UN’s leading food security institutions’, La Via Campesina website, published 11 October, and La Via Campesina. 2014 ‘The Jakarta Call’.
 Marc Edelman & James Carwil, 2011. ‘Peasants’ rights and the UN system: Quixotic struggle? Or emancipatory idea whose time has come?’ The Journal of Peasant Studies 38(1): 81-108 at 91.
 Human Rights Council. ‘Final study of the Human Rights Council Advisory Committee on the advancement of the rights of peasants and other people working in rural areas’, UN Doc. A/HRC/19/75, 24 February 2012, para.71.
Resolution of the Human Rights Council on the promotion and protection of the human rights of peasants and other people working in rural areas. UN Doc. A/HRC/RES/21/19, 11 October 2012.
 See Marc Edelman, 2014. ‘Linking the Rights of Peasants to the Right to Food in the United Nations’, Law, Culture and the Humanities Vol. 10(2): 196-211 from 208-210 for a discussion of the debate both within Via Campesina and more broadly. See also Priscilla Claeys, 2012. ‘The Creation of New Rights by the Food Sovereignty Movement: The Challenge of Institutionalizing Subversion’, Sociology 46(5): 844-860.
 See Jackie Hartley’s Regarding Rights blog post, ‘Indigenous Peoples and FPIC: When Does the ‘C’ mean ‘Consent’?’, 21 March 2014.