By Amber Karanikolas
To come up against what functions, for some, as a limit case of the human is a challenge to rethink the human. And the task to rethink the human is part of the democratic trajectory of evolving human rights jurisprudence.
Who is the subject of human rights? Or, to put the question another way, who has the right to be human? Do women? The concept of human rights is continually evolving, and it is used in diverse ways. Human rights can encompass the many forms of ‘rights-talk’ that social movements use to make their claims, and internationally, recognition of human rights is proliferating. Although not denoting global compliance with human rights norms, it is now commonplace to declare that we live in an age of human rights.
This claim references the expansion of human rights law and theory over the course of the twentieth century – what Upendra Baxi has called the ‘overproduction of human rights’. Human rights may now be considered universal in the sense that all states have formally endorsed them and citizens and organisations all over the world invoke them for a wide range of causes. Yet even given the apparent expansiveness and malleability of human rights, feminist critiques persist.
Some advocates of women’s human rights concede that although the concept of human rights may not be ‘unproblematic…from a feminist standpoint’, the discourse can still provide a vocabulary for women to ‘assert their needs in the language of the powerful’. Other scholars and critical theorists, feminist and otherwise, caution that there are pitfalls – as well as potentials – in a human rights discourse for women and feminism. Many emphasise what Ratna Kapur (following David Kennedy) refers to as the ‘dark side’ of the human rights project: its modernist narrative of progress, its universal, de-historicized, neutral and inclusive claims, and the atomised, insular liberal subject that it presupposes.
They argue that the subject of human rights reflects a distinctly masculine experience, and that rights are ‘defined by the criterion of what men fear will happen to them’. For instance, the ‘first generation’ of rights, including to individual liberty and to participate in political life, rest on a vision of an unencumbered (male) self who has ‘a degree of separateness and independence’ unfamiliar to most women.
The underlying problem with women’s human rights may be, as Catherine MacKinnon phrased it, that being a woman is ‘not yet a name for a way of being human’. Why is invoking the stark, naked human subject perceived as one of the strongest possible ways of making claims on behalf of any subjected or oppressed social group? As Kennedy has argued, the extent to which emancipatory projects must be expressed in the language of rights to be heard means other strategies that are not framed in this way may go unattended. To what extent has the women’s human rights movement de-legitimised alternative feminist international legal theories and forms of political action outside the confines of liberal legality and legal justice? The appeal to women’s human rights may simply re-cast the problem of women’s de-subjectification, whereby women are already ‘deemed less than human, or as having departed from the recognisable human community’, as Judith Butler puts it. Indeed, even the motto of the women’s human rights movement, ‘Women’s Rights are Human Rights’ turns on women’s status as Other, or not yet fully human. This statement attempts to re-figure women as belonging to the recognisable human community but within the boundaries of the imaginary of the liberal, humanist subject.
The current women’s human rights movement ought to re-think the limits of the human. This re-thinking could spur important new intellectual and reflexive practices. Feminist approaches to human rights must reckon with and overcome the imaginary, abstract human. They must provide spaces within which to ‘imagine justice in registers that are both normatively and philosophically disruptive and disquieting’. Rather than signaling a repudiation of human rights, a critical re-examining of women’s human rights could actually develop a more robust international legal theory, and a political praxis for the collective re-imagining of alternative futures beyond the area of women’s human rights.
 Butler, J. (2004), Precarious Life: the Powers of Mourning and Violence, (London: Verso), p. 90.
 Baxi, U. (1998), ‘Voices of Suffering the Future of Human Rights’, Transnational Law and Contemporary Problems, Vol. 8, Issue 2, p. 125.
 Asad, T. (2000), ‘What do Human Rights Do? An Anthropological Enquiry’, Theory & Event, Vol. 4, Issue 4.
 Fileborn, B. (2010), ‘Addressing Sexual Assault Through Human Rights Instruments’, Australian Centre for the Study of Sexual Assault (ACSSA) Aware, No. 25; O’Hare, U. A. (1999). ‘Realising Human Rights for Women’, Human Rights Quarterly, Vol. 21, Issue 2, p. 380.
 Kapur, R. (2006), ‘Human Rights in the 21st Century: Take a Walk on the Dark Side’, Sydney Law Review, Vol. 28, Issue 4, pp. 665-687.
 Kapur, R. (2012), ‘Un-Veiling Equality: Disciplining the ‘Other’ Woman Through Human Rights Discourse’, in Ellis, M., Emon, A. & Glahn, B. (eds.), Islamic and International Law: Searching for Common Ground, (Oxford University Press), p. 272.
 McNay, L. (1992), Foucault and Feminism: Power, Gender and the Self, (Cambridge: Polity Press), p. 169.
 MacKinnon, C. A., (2007), Are Women Human?: and Other International Dialogues, (Cambridge, Mass.: Belknap Press of Harvard University), p. 43.
 Kennedy, D. (2004), Dark Sides of Virtue: Reassessing International Humanitarianism, (Princeton: Princeton University Press); Kennedy, D. (2014), ‘The International Human Rights Regime: Still Part of the Problem?’, in Examining Critical Perspectives on Human Rights, (eds.) Dickinson, R., Katselli, E., Murray C. & Pedersen, O. W, (Cambridge University Press), p. 20.
 Kapur, R. (2015), ‘Precarious Desires and Ungrievable Lives: Human Rights and Postcolonial Critiques of Legal Justice’, London Review of International Law, Vol. 3, Issue 2, pp. 269.
 Butler, J. (2004), Precarious Life: the Powers of Mourning and Violence, (London: Verso), p. 57.
 Kapur, ‘Precarious Desires’, p. 268.