Abdullahi Ahmed An-Naim

decolonizing human rights
In his extensive body of work, Professor Abdullahi Ahmed An-Naim challenges

both historical interpretations of Islamic Sharia and neocolonial understanding of
human rights. To advance the rationale of scholarship for social change, An-Naim
proposes advancing the universality of human rights through internal discourse
within Islamic and African societies and cross-cultural dialogue among human
cultures. This book proposes a transformation from human rights organized
around a state-determined practice to one that is focused on a people-centric
approach that empowers individuals to decide how human rights will be under-
stood and integrated into their communities. Decolonizing Human Rights aims to
illustrate the decisive role of human agency on the subject of change, without
implying that Islamic, or any other, society is exceptionally disposed to politically
motivated violence and consequent profound political instability.
Abdullahi Ahmed An-Naim is Charles Howard Candler Professor of Law at Emory

University. He is an internationally recognized scholar of Islam and human rights
and human rights in cross-cultural perspectives. An-Naim teaches courses in
international law, Islamic law, human rights, and comparative law. His research
interests include constitutionalism in Islamic and African countries, Islam and the
secular state, and Islam and politics.
Decolonizing Human Rights
ABDULLAHI AHMED AN-NAIM

Emory University
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Contents
Preface: Beyond the Myth of Enforcement page vii

Acknowledgments xv
1 Evolution of Founding Vision 1
2 Marriage of Futility: International Law and Human Rights 26
3 The Deadly Mirage of “Humanitarian Intervention” 49
4 People-Centric Protection of Human Rights 81
5 Human Rights Are the Measure of Our Humanity 102
References 125
Index 133
v
Preface
Beyond the Myth of Enforcement
The purpose and rationale of this book is to expose the myth of legal
enforcement and promote more effective and sustainable practice of human
rights norms through what I call cultural transformation and political mobil-
ization. The pretensions of legal enforcement of the current human rights
regime distort the concept of universality of human rights and impede its
legitimacy and relevance to the lives of the totality of humanity. One aspect of
this drastic distortion is that any legal protection requires the consent and
cooperation of the territorial state where protection and accountability for
violations can reach both victim and perpetrator. By denying or controlling
access, the state is obstructing the essential quality of universality of human
rights (the unrestricted entitlement of every human being) as prescribed by
international norms, which undermines prospects of total and inclusive
protection.
For example, reservations imposed by the United States of America on its
obligations under the Torture Convention of 1984 limit the meaning of torture
to the domestic standard of the United States, which distorts the universality of
protection against torture because it restricts the meaning of torture to the
domestic standard in US legislation. What is the point of ratifying a major
international treaty prohibiting torture if the United States (or any other state
party to the treaty) can avoid responsibility by imposing such drastic reserva-
tions? It is true that Articles 20–21 of The Vienna Convention on the Law of
Treaties 1969 permits states that are party to any treaty, including human rights
treaties, to make reservations limiting their obligations under the treaty in
question. As I will discuss later, this is exactly my point about the futility of
international human rights law.
Other impediments of the myth of legal protection include the total lack of
legal basis for the intervention of any state into another state in the name of
protecting human rights. In addition to the profoundly destabilizing and
vii
viii Preface
excessive human and material costs of military conflicts, as can be seen

recently in Afghanistan and Iraq, illegal interventions diminish the integrity
and credibility of international law regulation of the use of force and violate
specific treaties like the Charter of the United Nations. The legal enforcement
approach necessarily fails to deliver the protection of human rights because it
is premised on coercive illegality under international law.
The alternative I am seeking to further promote is already the basis of
whatever respect and protection human rights have had because it is premised
on the struggle for sustained decolonization and holistic independence. My
critique of the first approach and advocacy of the second are both necessary
because the harmful outcome of the state-centric approach is not generally
acknowledged, while the efficacy of the people-centered approach is not
sufficiently recognized.
The familiar human rights narrative since the mid-twentieth century is that
the vision and determination to ensure the international protection of univer-
sal human rights was born of the world that emerged from the shock and
outrage at the atrocities of the Second World War.
To advance this goal, the purposes of the United Nations included . . .
“promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion.”1 The
Charter charged the United Nations with promoting “universal respect for,
and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion” (Article 55 (c)), but the
Charter did not define or determine what human rights actually are. That
task was left to the Human Rights Commission of the United Nations, which
drafted the Universal Declaration of Human Rights; this was subsequently
adopted by the UN General Assembly on December 10, 1948. Since the
Declaration is not binding under the UN Charter, it was assumed that human
rights norms must be further elaborated and made binding through subse-
quent treaties to be negotiated and adopted by states.
I will discuss that founding doctrine in terms of what I call the “three Cs,”
namely, the Concept, Content, and Context of human rights. The concept of
universality of human rights is easy for all people to accept in principle,
provided it is not used to impose a normative content of those rights that has
been determined by others for their practice in a different context. My primary
concern in this book is the operational futility of attempting to protect human
rights under international law. The whole human rights paradigm was, from
1
United Nations, Charter of the United Nations 1945, Article 1 (3).
Preface ix
the beginning, premised on the notion that the obligation to protect human
rights is based on treaties which are binding on states under the normal rules of
the international law of treaties. This premise is drastically inappropriate
because human rights treaties are fundamentally different from normal treat-
ies simply because states do not have the same self-interested motivation for
enforcing human rights treaties as they do for their treaties on such matters as
trade, security, and international boundaries.
To briefly explain, the problem with human rights treaties is that they are
accessible to individuals who are supposed to be the beneficiaries of those
treaties except through the institutions of the same state that is responsible for
violations. If human rights are incidentally implicated in the self-interested
motivation of states, then the outcome will still fail to benefit the victims of
violations because the nature, method, and duration of the action states are
able to take will be inappropriate for protecting the human rights of victims.
A related contradiction to be emphasized here is that it is practically
impossible and politically untenable for any state or international organization
like the UN to stay in the territory of another state long enough to be able to
do what is necessary to protect human rights in that state. The point here is not
simply the prohibition of interference in the internal affairs of other states, and
possible legal or practical exceptions to that principle. It is not only the tragic
spectacle of the so-called international community waiting at the borders of a
state requesting permission to enter in order to prevent or investigate charges
of human rights violations in that country, as happened in the case of Darfur,
western Sudan, following the massive killings and destruction of communities
since 2003. Rather, the point is that foreign intervention cannot succeed in
achieving sustainable protection of human rights in any country. Other states
and the international community at large do not have the political legitimacy,
material resources, cultural competence, or language skills to be able do what
it takes to protect human rights.
In contrast, when we consider the commonsensical nature and rationale of
human rights outside the paradoxical paradigm of protection under inter-
national law, we can see that there is in fact a much higher and broader level
of practice of human rights norms and values in spontaneous social relation-
ships. Since, in the final analysis, every human rights violation or protection
always begins with a person doing (or failing to do) something to another
person, the whole paradigm depends on the values and the political choices of
people everywhere. Spontaneous conformity with human rights norms is what
makes social life possible, and the basis of the notion of universality of human
rights as entitlements of all human beings around the world. In a related sense,
Eleanor Roosevelt said that universal human rights begin in small places,
x Preface
close to home “Such are the places where every man, woman and child seeks
equal justice, equal opportunity, equal dignity without discrimination. Unless
these rights have meaning there, they have little meaning anywhere. Without
concerned citizen action to uphold them close to home, we shall look in vain
for progress in the larger world.”2
Still, my objective here is not to immediately discard the European state
system altogether. Given the realities of modern global international relations
in all economic, political, security and other vital concerns of communities at
all levels, everywhere, it is impossible to bypass the state, and we do not need
to do that in this context. The question is, rather, one of what (or who) the
state is, and how it can be approached or deployed in the most useful way in
the interest of the human rights of those subject to the state’s jurisdiction. Yet,
whatever level of protection of human rights can be achieved through state-
centric models is totally dependent on the cultural and political force of
spontaneous social relations, which reflect the orientation of the human and
material resources and institutions that drive state policy and practice.
This book calls for reclaiming the glorious rationale and vision of the
Universal Declaration of Human Rights, as the universal rights of all human
beings, as defined and realized by all human beings for themselves. There are
universal human rights that can be identified and implemented in ways that
are consistent with the essence and rationale of these rights, but never coer-
cively enforced by external so-called humanitarian intervention, even if sanc-
tioned by the Security Council of the United Nations. Authorization of the
use of force by the Security Council under Chapter VII of the Charter of the
United Nations may be necessary and effective in restoring peace and security
in the short term, but it is unlikely to have any sustainable benefit in stopping
or preventing gross and systematic human rights violations, or holding perpet-
rators accountable. As most recently illustrated by the cases of Afghanistan and
Iraq, the highest level of determination and massive resources of the United
States succeeded only in raising the scale and magnitude of human rights
violations throughout the region to an unprecedented level.
The imperial gate of humanitarian intervention may perpetuate neocolo-
nial design, but it cannot protect human rights. The Preamble of the
Universal Declaration of Human Rights indicates that the General Assembly
of the United Nations seems to be relying on the cultural transformation and
political mobilization I am proposing in this book:
2
Eleanor Roosevelt, “In Our Hands,” 1958 speech delivered on the tenth anniversary of the
Universal Declaration of Human Rights. Available at: www.fdrfourfreedomspark.org/blog/2015/
2/18/human-rights-day-december-10.
Preface xi
The General Assembly Proclaims this Universal Declaration of Human

Rights as a common standard of achievement for all peoples and all nations,
to the end that every individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by teaching and education to
promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition
and observance, both among the peoples of Member States themselves and
among the peoples of territories under their jurisdiction.3 (My italics.)
The fundamental paradox of the human rights system is therefore in its

foundational statement – namely, how can these norms be the standard of
achievement for domestic protection of human rights when that can only be
done through progressive, incremental national and international measures
for the “recognition and observance” of these rights? In the familiar refrain of
its critics and skeptics, what is the use of an external standard without effective
means for its enforcement against offending states? This paradox is integral to
the international law foundations of the human rights system, which is
premised on state sovereignty as the expression of the collective human right
of national self-determination.
However, the argument I am advancing here is that this paradox should be
acknowledged, even celebrated, as inherent to the rationale and nature of
universal human rights norms, and not simply as an unprincipled expedient of
international relations. I will also argue that elements of the same paradox are
the bases of its mediation. The key to the thesis I am presenting here is that
coercive enforcement of human rights norms by external actors is neither
acceptable in principle nor possible in practice. Coercive enforcement by
external actors is an unacceptable violation of national sovereignty, but the
implementation of human rights by the people themselves is a legitimate and
appropriate exercise of their own right to self-determination.
The basic thesis and research questions of this study can be summarized as
follows:
International law and intergovernmental institutions are incapable of pre-
empting or providing effective remedies for human rights violations to meet
the legitimate expectations of self-determining human beings in their com-
munities around the world. This fundamental critique of the present state-
centric approach to the protection of human rights is premised on the obvious
paradox of expecting states to protect human rights against the organs and
officials of the same state.
3
United Nations, Preamble, Universal Declaration of Human Rights 1948.
xii Preface
According to present international law, only states can have human rights
obligations and only states can discharge those obligations. A harmful action
or omission may be a crime or tort if caused by a private actor and must be
legally attributed to a state to constitute a human rights violation. Yet, external
coercive enforcement against the will of the state is neither lawful under
international law (because it violates the sovereignty of the state) nor capable
of reaching victims among the general population without the permission of
the same state that is accused of having committed that action or omission in
the first place.
External intervention in the name of protected human rights is not only
ineffective – because it cannot be sustained for a sufficient degree or time –
but also a source of major and persistent human rights violations. The rights of
women or children, for instance, cannot be protected by following them into
their homes or supervising their daily interactions with their families and
communities.
In the absence of verifiable means of evaluating the level or degree of actual
protection of human rights, factors such as the ratification of treaties, adoption
of laws, and descriptive self-reporting by states or highly selective and arbitrary
reporting by international human rights organizations (NGOs) are taken as
“evidence” of negative or positive human rights performance by the state. The
priorities of so-called donor governments and northern-based NGOs are taken
as the sole reliable means of promoting human rights in postcolonial states in
Africa and Asia.
Since human rights are by definition universal claims asserted and realized
by self-determining human beings, our ability to define and implement these
norms is integral to our humanity. The present state-centric international law
system and its institutions can provide only limited and contingent protection
of human rights norms. Shifting the human rights paradigm from state-centric
bureaucratic formalism to people-centered social and political movements
will still need states or other forms of large-scale political formations that are
subject to total transparency and effective accountability.
This essay explores the nature and implication of the mutual linking of
being human and human rights, whereby perceptions of what the human is
define the scope, content, and methods of the protection of human rights, and
the quality of being human is enabled and realized through the protection of
those rights. By “human rights,” I mean moral and political entitlements that
are due to all human beings equally by virtue of their humanity, without any
distinction on such grounds as race, sex, religion, or national origin. In other
words, I am entitled to these rights simply by being a human being, without
any other requirement or qualification. I prefer to present these rights as moral
Preface xiii
and political – instead of legal – entitlement because the legal dimension is

futile without sufficient moral foundation and the political will to
implement it.
My purpose in this study of the viability and efficacy of international human
rights from an inclusive global perspective is to overcome the limitations of the
liberal relativism of this paradigm. I appreciate that the human rights project
may completely fail – indeed, I see indications of that already – but the
question for me is what can be done to contribute to supporting this project
here and now, as the process of defining and defending human rights con-
tinues. Failure and success are appreciated in retrospect, often long after the
fact, because reliable assessment is difficult when events and developments are
still in progress. Moreover, assessment is a matter of approach, criteria, and
timeframe – what may appear as success or failure may in fact be short-term, a
stage in a gradual process of change. After all, the transformative outcomes of
major ideas in human history always take time, and often several attempts are
made to revive a dying or diminishing project.
Acknowledgments
As I approach the end of my academic career, I look back to twenty-five years

of the stimulating and instructive company of the students and faculty of
Emory Law School. Most of all, I am profoundly grateful for the confidence
and support of Howard Hunter, the former dean of Emory Law School, who
“took a chance on me” in 1995 and continued to believe in my academic and
scholarly competence through the years. I am also profoundly grateful for the
gratuitous confidence and support of my senior faculty colleague, John Witte,
who supported Dean Hunter and senior faculty colleagues in taking that
fateful chance on me.
I also gratefully acknowledge the instructive insights and critical comments
of generations of my seminar students and research assistants of Emory Law
School. I am also obliged to those among my students who resisted seeing the
irrationality of the liberal relativism of their views on human rights. It is
reassuring to know that some of my communities do not have a monopoly
on cultural relativism and contextual exceptionalism. I am obliged to other
Emory Law students for contesting my call for possibilities of promoting
overlapping consensus on the universality of human rights through internal
discourse and cross-cultural dialogue. To all students and colleagues alike, the
universality of the concept, content, and context of the protection of human
rights is too important to be taken for granted. As my experiences at home and
abroad confirm to me:
My views are not relevant if they are not resisted.
xv
1
Evolution of Founding Vision
The premise of this book is that, like everything else in life and human
experience since the beginning of time, evolution is the key for understanding
how the world works. For me, as a Muslim, only God is the permanent reality,
while everything else evolves with time and in response to changing circum-
stances. Since human rights are rendered in the service of human beings, they
must evolve with the life experience of their subject, namely, human beings
on the ground everywhere, for each person and community on their own
terms. This is the true meaning of universal human rights which are worthy of
global struggle for their realization and protection. By the principle of the
concept itself, no other person, group, or entity can impose their view in
defining, interpreting, or elaborating human rights norms and institutions for
others. The way remains open for respectful debate, contestation, suggestions,
and recommendations, but these should never violate the dignity and freedom
of the human subject. This is what we all know as the Golden Rule, or the
principle of reciprocity. If in doubt as to whether a debate or challenge is in
violation of this fundamental principle, imagine the situation with you as the
subject of violation of human dignity and freedom.1
Any apparent compliance in the area of international human rights that is
perceived as the result of economic or security pressure by other states in fact
reflects neocolonial power relations. In the realities of what I call “human
rights dependency,” the power of developed states to influence the human
rights policies and legislation of developing states always flows from former
colonial and richer countries of the Global North2 against former colonies and
1
I have applied this principle to issues of Sharia and human rights. See, e.g., An-Naim, Toward
an Islamic Reformation.
2
I will use the term “Global North” to refer to developed former colonial societies of Western
Europe (including Russia) and North America, and “Global South” to refer to former
1
2 Evolution of Founding Vision
poorer countries of the Global South, and never the other way round. This
process is so tainted by the coercive geopolitical power of former colonial
states – in violation of the underlying rationale of human dignity – that it is
difficult to accept both the influence and its outcome as the result of friendly
relations among “equal” members of the same human rights treaty. Since
such influence is never coming from former colonized states toward former
colonial states, the relationship should not be taken as being among peers
sharing the same commitment to upholding human rights values and norms.
Instead, we should see the coercive nature of influence from rich, powerful
states toward poor, weak states, and how reliance on such power relations is
also legitimizing other manifestations of unequal power relations. Such
dependency is legitimized by affiliation to human rights, thereby hiding the
underlying historical hegemony and exploitation.
Still, we need to understand how the protection of human rights still benefits
from “state-centric enforcement” in reaffirming the founding people-centered
doctrine of the Universal Declaration. To begin with, states had the power of
creating and convening international organizations, such as the United Nations
itself, that are presumably founded on the equal sovereignty of state members of
those organizations, despite the realities of their inequality in power and wealth.
Yet, those inequalities contributed to global geopolitical relations that facilitated
the process of decolonization and promoted a dynamic process of self-
determination in international relations. Another development in favor of the
protection of human rights is the rise in the protection of constitutional rights in
some countries. Although this was initially primarily of the rights of citizens, and
the specification of these rights and remedy for their violation were at the
discretion of the state, the expansion and entrenchment of the process encour-
aged people to organize to demand their entitlements beyond the discretion of
the state. A third factor to be briefly noted here is that the idea of universal
human rights was totally inconceivable under colonial and imperial rule, when
the vast majority of human beings around the world had no possibility of having
their rights respected even as citizens of their own countries. It was only after
these colonized peoples achieved political independence that the potential
possibility of universal human rights emerged during the second half of the
twentieth century for the first time in human history.
In view of the nature and process of economic, political, and social/cultural
change, tactical benefits for the protection of human rights can still be
realized despite the lack of structural changes in the present state-centric
colonized, developing societies of Africa, Asia, and Latin America. To me these terms indicate
geopolitical concepts, rather than physical geographies.
Paradoxical Founding Narrative 3
regime. In other words, the limited concessions powerful states make for weaker
states can be organized to achieve more relative equality in the relationship than
what the powerful states originally intended to concede. The underlying
inequality in power relations among states can be diminished in two ways.
First, by ensuring consistent practice of the rule of law in international
relations, for instance, to diminish the false promise of so-called humanitarian
intervention. The protection of human rights should build on transparent and
accountable political and legal processes rather than the vague and manipu-
lative promise of intervention which can never achieve its unrealistic promise,
as I will explain in Chapter 3.
Second, by continuing to promote strategic and systemic reliance on cultural
transformation and political mobilization, and seeking solidarity with sympa-
thetic forces within developed states, instead of waiting for legal enforcement to
achieve sustainable human rights outcomes on its own. I am referring here to
the difficulty of appreciating the force and magnitude of change resulting from
cultural transformation and political mobilization. Major revolutions are appre-
ciated in retrospect, rather than while they are actually happening.
The crucial aspect of the dynamic of change is that there is now relative
development of the effective agency of human subjects of human rights within
and among postcolonial states to challenge and resist external imposition of
human rights norms throughout the world. As often happened in transforma-
tive phases in human history, change is gradual and incremental, rather than
immediate and total. The age of European colonialism is over and its attempt
to survive through neocolonial strategies is also failing. Such positive changes
are already in the process of happening, though they are taking the time they
need to materialize. The cause and effect of these and related changes is the
rise of total and systemic self-determination within and among societies.
Women and other disenfranchised and marginalized groups everywhere are
realizing that they are entitled to equal human dignity and the right of self-
determination, without waiting for these to be granted by the elites or trad-
itional structures of powers at home or abroad. These and related geopolitical,
cultural, and political transformations since the adoption of the UN Charter
in 1945 are now irreversible and are bound to advance to their logical
conclusions on their own terms, probably as customary international law if
used in formal adjudication or arbitration.
paradoxical founding narrative

Several factors contribute to and reinforce the paradox of limiting to the
authority of the state both the capacity to violate and competence to protect
the human rights of those subject to the state’s jurisdiction. Yet, the paradox of
entrusting protection to the only possible legal suspect continues to frustrate
the core values and purposes of the United Nations itself because the UN
Charter (binding treaty for its member states) prohibits the use of force or
intervention into the internal affairs of other states. Article 1 of the Charter
affirms that maintaining international peace and security is the primary
purpose of the United Nations, and requires all Members States of the UN:
to take effective collective measures for the prevention and removal of threats
to the peace, and for the suppression of acts of aggression or other breaches of
the peace, and to bring about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the
peace.3
It is therefore clear that the protection of human rights as such does not
constitute an exception to the prohibition of the use of force against another
state, even one that is suspected of massive and persistent violations of human
rights. To emphasize that this prohibition applies to the UN itself, as well as its
Member states, Article 2 (7) of the UN Charter provides: “Nothing contained
in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or
shall require the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the application of
enforcement measures under Chapter VII.”
The exemption of enforcement measures under Chapter VII relate to the
authority of the Security Council “determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommenda-
tions, or decide what measures shall be taken in accordance with Articles
41 and 42, to maintain or restore international peace and security.” Chapter
VII provides for the gradual acceleration of response by the Security Council
up to taking action, including military force “as may be necessary to maintain
or restore international peace and security. . ..” Since the Security Council
does have military forces of its own, it can only appeal to Member states of the
UN to provide the forces and resources for enforcement measures. One of the
rare examples of successful action by the Security Council on this authority by
the Security Council was the international coalition military campaign to
expel Iraq from Kuwait in 1991. The only two exceptions to this strict prohib-
ition of the use of force/aggression in international relations are (1) when
3
United Nations, Charter of the United Nations 1945, Article 1.
authorized by the UN Security Council under Chapter VII of the UN Charter

or (2) when a state is acting in self-defense as authorized by Article 51 of
the Charter.
In addition to such textual confirmation of the categorical illegality of
intervention by one or more states into the affairs or territory of another state,
the realities of armed conflict on the ground, from Viet Nam to Afghanistan,4
consistently confirm that it is practically impossible and politically untenable
for any state or an international organization such as the UN to stay in the
territory of another state long enough to be able to do what is necessary to
protect human rights in that state. It is true that international relations
continue to be dominated by powerful states who invade and exploit other
states with impunity, despite the UN Charter’s categorical prohibition of the
use of force in international relations. None of such unlawful or lawful actions
by any state of whatever standing – superpower or not – can claim to have
succeeded in protecting human rights in another country or their own. In
other words, other states and the international community at large do not have
the political legitimacy, material resources, cultural competence, language
skills, etc., to be able do what it takes to protect human rights at home
or abroad.
I agree with Antony Anghie that colonialism continues to thrive and
dominate the development of international law. He shows how colonial
relations have been reproduced even as they have been obscured by inter-
national law developments, from the sixteenth-century Spanish conquests of
the Americas to the twenty-first-century War on Terror. I also agree with him
on the enduring, evolving operation of the “civilizing mission” – the grand
project that served to legitimize European colonialism and justified the
measures colonial powers used to control and transform non-European soci-
eties. As he correctly argues, the civilizing mission played a powerful role in
international law across time periods and across jurisprudential paradigms
(natural law, positivism, pragmatism), all schools of thought which served to
reproduce colonial inequalities.5
Anghie examines the role of Francisco de Vitoria, the sixteenth-century
Spanish author of De Indis Noviter Inventis, widely regarded as the first
international law text from a European perspective.6 Vitoria argued that the
4
I am referring here to military interventions in Viet Nam by the United States in the 1960s–
1970s following the end of French colonial rule, and the military interventions in Afghanistan
by both the Soviet Union and the United States since the 1970s.
5
Anghie, Imperialism, p. 268.
6
This Eurocentric imperial claim about the origins and nature of international law ignores the
fact that other civilizations had their own conceptions of international law (see, for instance,
extension of the empire was not a just cause of war but he legitimized Spanish
imperial rule by interpreting Spanish action in the Americas as self-defense!
Vitoria asserted the existence of a system of norms that were inevitably violated
by the Indians of the Americas. Vitoria affirmed a legal framework in which
the right to “travel” and “sojourn” freely made it entirely legitimate for the
Spanish to enter Indian territories.7 When the Indians attacked the Spanish
who entered their territory, this justified the Spanish in defending themselves,
according to Vitoria. Since Indians were pagans, he reasoned, they could not
be sovereign. Anghie moves on to the late nineteenth century, the peak of
colonial expansion and the period when positivism replaced natural law as the
principal theory of international law. Positivism focused on sovereignty as the
foundation of law and on the primacy of the state actor. A central feature of
positivism was the distinction it made between “civilized” and “uncivilized”
states. By deeming the non-European world “uncivilized,” Europeans
excluded the rest of humanity from the realms of sovereignty and international
law,8 thereby holding that there were virtually no legal restrictions on the
actions of European states with respect to non-European societies.
The Berlin Conference of 1884–1885 highlights the interconnectedness of
colonial expansion, trade, and the civilizing mission. One of the ways in
which European leaders at the conference justified colonial expansion in
Africa was by asserting that opening of the interior of the continent to
commerce would allow for “the improvement of the conditions of their
[‘the natives’] moral and material well-being” and help suppress the African
slave trade.9 The jurisprudence of the period between the First and Second
World Wars involved the project of transforming colonial territories into
sovereign states and was characterized by profound ambiguity in relation to
the colonial past. For example, the Mandate System sought to eliminate
native customs that were perceived by the colonial powers to be in conflict
with humanitarian ideals and civilized society. Economics was viewed as a
universal “scientific” discipline that transcended cultural particularities, and
Anghie argues that the invocation of economics was a new justification and
guise for colonial practices.10
Khadduri, The Islamic Law of Nations). The Muslim scholar al-Shaybani, one of the founders
of the Hanafi School of Islamic jurisprudence, died in 805 CE. Francisco de Vitoria died in
1546 CE.
7
Anghie, Imperialism, p. 21.
8
Ibid., p. 63.
9
Ibid., p. 97.
10
Ibid., p. 185.
In Anghie’s view, the War on Terror is a new form of imperialism premised

on the notion that “if rogue, ‘pre-modern states’ became ‘too dangerous for
established states to tolerate’, it will become necessary to inaugurate a ‘defen-
sive imperialism’.”11 This is the twenty-first-century form of an old project: the
control and salvation of backward peoples, with backwardness constructed as a
threat to developed states as well as a pitiful condition in need of advance-
ment. Anghie sees similarity between the doctrines of preemptive self-defense
of President George W. Bush and Vitoria’s ideas about waging a “defensive”
war on the Indians of the Americas. Anghie argues that international law
continuously attempts to efface its complicity with colonialism, perpetuating
its relationship to colonialism while striving to erase its connections with the
inequalities and exploitation of the colonial encounter.
One of the themes of this book is to promote the legitimacy and efficacy of the
true universality of human rights, and that can be achieved by simply minimizing
reliance on international law. However, I would argue, the process of reforming
traditional international law is already happening through the same strategies of
cultural transformation and political mobilization I am proposing for universal
human rights norms. From this perspective, I am in agreement with Balakrishnan
Rajagopal. For instance, I support his critique of the idea that nationalism is the
best way to counter colonialism and agree with his objection to the fact that
international law remains bound to the will of states and institutions, rather than
serving the masses of the Third World whose will is not best represented by their
states. He also argues that international law must acknowledge the importance of
development discourse and appreciate social movements as foundational to
changing international law. As he put it, “Social movements seek to construct
alternative visions of modernity and development that constitute valid Third
World approaches to international law.”12 In my analysis, indigenous social
movements emerge out of and are sustained by cultural transformation and
political mobilization. He argues that Third World states cannot guarantee
“democratic aspirations of the masses in the Third World, as state sovereignty
has been parceled out up (to international institutions such as the World Trade
Organization) and down (to market actors and NGOs).”13 I am also in agreement
with his view that “A new Third World approach to international law will have to
engage with social movements to transcend the impasse in which it finds itself,”14
but in relation to human rights for me, and not “development” for Rajagopal.
11
Ibid., p. 279.
12
Rajagopal, International Law, p. 3.
13
Ibid., p. 12.
14
Ibid., p. 23.
Oona Hathaway examines the core questions of the effect of human rights
treaties on compliance by states party to such treaties: Do countries comply
with or adhere to the requirements of the human rights treaties they have
joined? Are countries more likely to comply with a treaty’s requirements if
they have joined the treaty than would otherwise be expected? Drawing on a
database encompassing the experiences of 166 countries over a nearly 40-year
period on genocide, torture, fair and public trials, civil liberties, and political
representation of women,15 her findings support the conclusion that human
rights treaties either have no statistically significant effect on the practice of
countries or lead to poor human rights practices within the countries that
ratify them. She does not find a single treaty “for which ratification seems to be
reliably associated with better human rights practices and several for which it
appears to be associated with worse practices.”16 Hathaway concludes that the
existing theories (normative, rationalist, institutionalist, and liberal) are insuffi-
cient for explaining her findings.17
My reading of Hathaway’s long and complex study is that it strongly
supports the conclusion that ratification of human rights treaties is not an
effective means of ensuring that human rights are actually protected on the
ground. Yet, instead of questioning the international law framework of the
human rights regime, Hathaway observes that human rights treaties offer
countries rewards for positions rather than outcomes.18 This reminds me of
how people failed to recognize that “the emperor has no clothes” for fear of
the stigma of being thought stupid or uncivilized. For my part, I ask the
question: why rely on a treaty-based regime for the protection of human rights
if that regime does not have a real effect or outcome of protection?
Stephen Hopgood presents a persuasive critique of the idea of human rights
as a product of nineteenth-century humanist norms and European secular
religiosity. His thesis is that “We are living through the endtimes of the
civilizing mission. The foundations of universal liberal norms and global
governance are crumbling, creating a vacancy where sovereignty and religion
now make dramatic inroads in the post–Cold War world.”19 Hopgood
develops the concept of the “secular sacred” to describe the nineteenth-
century bourgeois European cult of sentiment, moral improvement, and
innocent suffering. In the face of modernity, the “secular sacred” provided
15
Hathaway, “Do human rights treaties make a difference?,” p. 1939.
16
Ibid., p. 1940.
17
Ibid., p. 2001.
18
Ibid., p. 2013.
19
Hopgood, The Endtimes, p. 1.
continuity between the Christian Church of the past and the secular future.
An emphasis on human suffering, innocent victims, and other values of
Christian civilization helped to channel formerly Christian work into secular
human rights work. In a remarkably short period of time, human rights
became “the lingua franca of international morality.”20
Hopgood critiques the role of Amnesty International and Human Rights
Watch as self-appointed “gatekeepers” over what constitutes Human Rights at
the global level. He supports this argument by pointing to these organizations’
opposition to forms of local justice in Uganda and Rwanda and their reluc-
tance to embrace restorative justice. They want to trump existing forms of
local authority in favor of universal norms. “Human Rights advocates want the
final power to decide what are valid rules and therefore what are legitimate
exceptions to those rules.”21 He also reflects on the human rights crusade for
the eradication of female genital mutilation:
The difficulty historically of eradicating the practice of female circumcision
or female genital mutilation (FGM) is an object lesson to the hubristic.
Nothing could seem on the surface more like a human rights abuse than
FGM, but despite colonial and missionary activism and law, postcolonial
condemnation, and several decades of INGO activism, it remains deeply
entrenched and legitimate among millions of African women who see it . . .
as an identity marker and a key requirement for marriage.22
I agree with the general point Hopgood is making but would also want to
make explicit what might be implicit in his cautious expression: “Nothing
could seem on the surface more like a human rights abuse than FGM.”23 As
I see the point, FGM is simply not accepted as a human rights violation by
those who practice it, e.g., East African mothers on their own daughters. As
the facts on the grounds clearly confirm, it is futile to tell me that I am
“blaming the victim” or to tell practitioners of FGM that they are subjects
of “false consciousness.” Since it is both unacceptable and futile to attempt to
coerce those who engage in this practice into abandoning it, the only effective
and sustainable way to combat FGM is to persuade its practitioners that it is
harmful and unnecessary. It may not even be wise to bring human rights into
the conversation at that stage.
Hopgood’s view of an alternative to the global human rights regime is that
because religious, nationalist, ethnic, and family structures are located much
20
Ibid., p. 4.
21
Ibid., p. 120.
22
Ibid., p. 161.
23
Ibid.
closer to people and integrated within their everyday needs and identities,
such structures may be better able to create “sustainable reciprocity-based and
socially reinforced norms that reduce suffering, even if they fail to deliver on
the promise of global liberal norms.”24 He advocates a “syncretic, political,
ground-up process of mobilization.” He acknowledges that such a process may
not prevent mass atrocities but points out that the global human rights
paradigm has failed in that endeavor as well. I generally agree with
Hopgood’s critique but will try to elaborate further on a proactive alternative
approach of cultural transformation and political mobilization.
Another feature of my analysis is what I call “human rights dependency,”
which indicates how new states emerging out of European colonialism in
Africa and Asia remain dependent on their former colonial powers. The
relationship is not mutual because former colonizers can hide or cover their
trade or other benefits they continue to draw from their former colonies. In
the absence of other means of protecting human rights, the primary means of
applying pressure on offending states is to publicize their abuses and failure to
protect human rights, a process known as “naming and shaming.” The first
step is to monitor, verify, and document states’ violations of their human rights
obligations. The second step is to publicize violations widely and strongly by
circulating reports documented by international human rights organizations
like Amnesty International and Human Rights Watch. This is done by sending
missions to “investigate” news of violations in the country in question, usually
by taking information from local advocacy organizations and interviewing
their staff or local political figures from the government accused of violations.
Here is what is wrong with this process, as I personally experienced it working
as Director of Africa Watch (the Africa Division of Human Rights Watch at
the time) from July 1993 to April 1995:
(1) The selection of countries to be investigated and issues to be researched
and documented is exclusively decided by international human rights
organizations like Amnesty International and Human Rights Watch,
which take such determinations as essential to their global mandate.
(2) The primary “constituencies” – and by this I mean the sources of funding
for international human rights organizations (i.e., the donors to whom
those organizations hold themselves accountable) – are based almost
exclusively in Western Europe and North America. I say “hold themselves
accountable” because there is no other mechanism or independent
24
Ibid., p. 21.
Expose the “Confidence Trick” 11
process by which international human rights organizations are held

accountable.
(3) The primary purpose of investigations and publicity for reports is to influ-
ence so-called donor governments in Western Europe and North America
to impose conditions or limitations on states receiving “development aid”
or other economic, financial, or security (military) assistance from
Western Europe and/or North America. International monitoring and
civil society organizations tend to coordinate their activities to coincide
with meetings and other gatherings of intergovernmental organizations or
economic aid settings to provide maximum impact among donors
targeting aid-recipient governments.
(4) The nature and mechanism of the entire process does not provide any
accountability or possibility of influencing international human rights
organizations regarding which suspected violations to be investigated or
documented, what to do with the reports, or subsequent follow-up.
Although organizations like Amnesty International and Human Rights
Watch appear to be all-powerful or irresistible, they do not have any legal
right or authority against any state.
The ultimate limitation of the role of international human rights organiza-
tions is the total lack of remedy or redress except against another state. Civil
society and non-governmental organizations (NGO) have no standing, no
competence to sue any state. In fact, there is no forum or tribunal before
which such action against any state can be adjudicated or litigated. None of
the international human rights treaties provides a forum for legal accountabil-
ity of states for violation of their human rights obligations.
expose the “confidence trick” of the twentieth

century
By “the confidence trick of the twentieth century,” I mean the way in which
former colonial powers renamed their own domestic civil rights “human
rights” while limiting the application of those same civil rights to citizens
and legal residents instead of extending entitlements to the rights to all human
beings as human rights should be. In that way, the liberal colonial powers who
controlled the formation of the human rights system at the end of the Second
World War had their own civil rights approved as human rights through the
relevant international process (the UN global system, and European, inter-
American, and African regional systems). The emerging states of Africa and
Asia were excluded from that formation process because they were not
members of the international organizations due to their lack sovereignty under

European colonialism. In fact, colonial rule deprived colonized societies the
opportunity to practice their indigenous self-governance, thereby denying
them the ability to counter the colonial claim of “rights” asserted by the
colonial powers. The inevitable nature of colonial relations is that colonized
societies lacked the opportunity to learn from their experiences under colonial
rule, including the ability to practice their sovereignty in international
relations.
The premise of the critique and transformation I am proposing is the now-
plausible conviction in the reality of human evolution and development in
social and political institutions. As human consciousness evolves, so does the
ability of persons in their communities to transform their social and political
institutions to advance their quest for individual freedom and social justice.
Yet, such transformation should not be taken for granted or assumed to
materialize in the same manner and degree in every human community.
The manner and speed of change tends to depend on the ability of people
to learn from their experiences, and to coordinate solidarity and alliances to
advance shared interests and evade risks. The theme and framework here is for
each community to work with its own “three Cs,” for each community to
coordinate its Concept, Content, and Context. The concept of human rights
for each community is to identify and affirm its own meaning of the inherent
human dignity and protection of self-determination. The content is the
substance of entitlements of human dignity through the exercise of self-
determination; and the context is cultural and geopolitical location for the
exercise of human rights as locally defined.
By “decolonizing” human rights I mean that the concept, norms, and
institutions of the global human rights paradigm have been hijacked by the
North Atlantic colonial powers, including Russia (the Soviet Union at the
time) and the United States, to protect their strategic interests and enhance
their geopolitical and economic hegemony. This neocolonial purpose and
strategy are hidden in such liberal notions as individual justiciability of rights,
which assumes the political will and human and material resources for the
state to enforce legally-binding international law obligation by ratifying and
incorporating human rights treaties in their national legal systems. Ironically,
this notion of legally-binding individual rights in fact ensures lack of enforce-
ment. Fortunately, on the other hand, this new cycle of colonialization is
confronted and rejected this time through global solidarity among former
colonized peoples. By the same token of human agency to promote social
justice and secure individual and collective freedoms, the rest of humanity is
even more able to challenge this neocolonial project and recover the initiative
for a more sustainable, people-centric decolonizing process. The term

“hijacked” is used to indicate the malicious nature of illegitimate seizure of
the human rights paradigm by neocolonial powers. This serious abuse of
international protection of human rights can be resisted effectively, but this
requires political mobilization, which is the second arm of the proposed
strategy that should be deployed by advocates of human rights.
Far from attempting to challenge or undermine the profound significance
of human rights or contest their universality, this book seeks to contribute to
achieving appropriate and sustainable protection of human rights on a truly
global, universal scale. To this end, I begin by focusing on the double paradox
at the foundations of the international human rights legal framework to expose
the inherent contradiction of the entire structure of the system, as if it was
designed to fail. By double paradox, I mean the claim of “universality” of
human rights norms in the reality of fundamental cultural and contextual
difference. The second paradox is the claim of self-regulation by the state.
These contradictions can be mediated in practice, provided that notions of
state sovereignty and exclusive territorial jurisdiction are accepted to work in
negotiable terms. The key to the entire process of negotiating sovereignty and
territorial jurisdiction is the realization that coercive enforcement of human
rights norms is simply out of the question. Conformity and compliance with
human rights norms must be with the agreement and cooperation of the
relevant population. Coercive outcomes must be emphatically rejected as
imperial imposition and replaced by cooperative compliance among the
concerned population. The manner and scale of effective and legitimate
protection of human rights must be consistent with the nature and rationale
of the concept and content of the norms, and this cannot be achieved through
pretensions of legal enforcement under international law.
Institutionalized coercive enforcement of human rights norms under inter-
national law is a contradiction in terms that is doomed to generate more
violations than protection of some rights. To the extent that coercive enforce-
ment of some human rights by the agency of the subject of those norms, like
the prevention and punishment of genocide, may be appropriate in extreme
emergencies. Relief for victims tends to be extremely fleeting and arbitrary.
Such relief should be sought and reinforced because it may indeed mean the
difference between life and death for a multitude of victims. Yet, coercive
intervention cannot last long enough to establish relevant policies and insti-
tutions for their implementation. Intervention cannot be extended into a long-
term solution for situations of armed conflict and genocide, because that
negates self-determination for both local and external populations. Despite
the moral contradiction of imposing solutions on people in the name of their
self-determination, and the practical futility of so-called humanitarian inter-

vention, this ploy of European imperialism is the pretext to rationalize new
forms of neocolonialism. The selective deployment of massive suffering is
invoked to rationalize military intervention to serve the imperial objectives of
former colonial powers. Nothing is done to establish institutional collective
action to stop and punish the crime of genocide, except in the highly selective
use of force in the name of the so-called international community to stop and
punish genocide when it threatens the foreign policy objectives of colonial
powers.
My objective in this book is not simply to confirm the obvious futility of so-
called enforcement of human rights, but to show the incoherence of the
notion of international enforcement itself. The purpose I seek to advance is
the implementation of human rights in the manner normally deployed by all
human communities throughout the history, namely, promoting cultural
legitimacy of alternative values and political mobilization for their implemen-
tation. This is the only way positive sustainable change can be achieved in any
society anywhere. My purpose is therefore to promote consensus and compli-
ance with evolving human rights norms as identified by local communities
and internalized through socialization processes. I realize that this strategy
seems to take too long, yet it is in fact the fastest and most productive approach
to generating and reinforcing a human rights culture.
There are major legal and political impediments to judicial and adminis-
trative enforcement of human rights norms. In contrast, indigenous socializa-
tion strategies of what I call cultural transformation and political mobilization
are more consistent with the human dignity of people and their communities.
This procedural formula is of course part of normal socialization strategies that
have emerged out of the many centuries of trial-and-error practice on various
issues of social, ethical, and political mediation in all societies. In my view this
is a case of contrasting the false pretensions of legal protection under
developed European and North American legal systems versus honest acknow-
ledgment of the need for promoting indigenous advocacy of human rights in
order to support and promote the voluntary popular practice of rights in
those communities.
It is essential to the dignity of every human being for every person to have
the ability to strive to define or present her own conception of her human
dignity in ways that render the rights “both the ends and means” of self-
determined universality. In the same way that colonial tyranny and domin-
ation of the peoples of South America, Africa, and much of Asia were
misrepresented and rationalized as necessary to achieve the civilizing mission
of European colonialism, the discourse of protection of universal human
rights is misrepresented and rationalized as necessary to fulfil the civilizing

mission of the postcolonial hegemony and exploitation of former colonies to
justify “imperial uniformity” as necessary for centralized production of human
rights norms through international law principles and institutions. The histor-
ical reality, however, is that such formations merely assert self-proclaimed
imperial uniformity as perceived by the imperialists’ self-evident universal
principles, though such outcomes are necessarily relative to historical and
geopolitical context. The production of universality of human rights under
principles and institutions of international law is merely liberal relativism
pretending to be global universalism. The pragmatic approach I am proposing
is what I call incremental promotion of universal and sustainable protection
among all human societies, each on its own terms, everywhere.
Human rights are the entitlement of every human being, while all other
entitlements are either contractual, situational, or limited to members of one
group or another. Regardless of the actual quality or level of provision or
protection of human rights on a local, regional, or global scale, they must be
accepted by all their subjects as the entitlement of all human beings every-
where, equally and without distinction. This quality of universal inclusivity is
the distinguishing feature of human rights. Yet, it is probably impossible to
verify that any specific human right is practiced universally on global terms.
Paradoxically, the right to difference itself is a human right which is necessary
for promoting consensus on human rights norms and their implementation.
Navigating such subtleties requires advanced insight and goodwill, which are,
by definition, lacking wherever human rights are in desperate need of protec-
tion. It is also the vulnerability of “victims” of human rights violations which
facilitate their clearer view of the remedy they need, while it is the power of
privilege which sustains the ulterior motives of self-appointed “intervener.”
Working with these and related factors and processes as elaborated in the
course of this volume indicates a permanently tentative quality of the entire
field of identifying and implementing rights, like trying to distinguish between
competing claims of freedom of speech and its abuse. Such factors and
processes emphasize the need for tentative discourse and mediation among
competing claims. Yet, the history of the human rights movement since the
1940s seems to have been driven by a perceived need for categorical claims
and absolute assertions about what the rights are and how they are to be
implemented. Developed states and privileged constituencies within states
and communities seek to impose their views on claims of rights and the
consequences of those claims. Instead of mediating and moderating compet-
ing claims, the human rights paradigm itself has been appropriated to serve
the geopolitical struggle of states over power and resources. Former colonial
powers in particular are now resorting to the dated discourse of “civilizing

mission” to justify neocolonial domination and exploitation of former
colonies.
In this way, imperial projections of the normative authority of former
colonial powers are now misrepresented as the only viable source of univer-
sality of human rights. This illusion has been reinforced by the global reach
and transformative impact of European colonialism in the formation of the
nation-state, global capitalism, and the development of international law.25
Since liberal European powers have apparently successfully imposed their
liberal values, social institutions, legal systems, and political practice through-
out most of the world, it seemed to follow by the late 1940s and early 1950s that
the “civilizing mission” of European colonialism authorized the imposition of
the same liberal values and institutions of that colonial mandate. By requiring
former colonies to follow the new human rights paradigm as defined and
operationalized by European colonial powers, the civilizing mission con-
tinues without the destabilizing, security, and material costs of military con-
quest or occupation.
One of the primary purposes of this book is to present and elaborate a
radical critique of the colonial model of international human rights law and
present an alternative approach that is more consistent with human dignity as
the rationale. According to the process-oriented approach I am advocating, the
universality and practice of human rights are the integral and legitimate
outcome of a truly inclusive and pragmatic process of cultural transformation
and political mobilization. This approach also includes a fundamental cri-
tique of the colonial appropriation of the theory and practice of the human
rights paradigm. The only way to claim allegiance to human rights and
commitment to their implementation must be through the free choice and
dignity of the human subjects of these rights. Yet, the postcolonial hegemony
of former colonial powers continues to misrepresent the ethos of human rights
in exclusively liberal terms, while condemning the theory and practice of the
rest of humanity as primitive cultural relativism.
The most significant fallacy of the seven decades since the adoption of the
Universal Declaration of Human Rights, which was used to justify colonial
domination as well as postcolonial hegemony, has been the misrepresentation
of the civil rights of citizens and lawful residents as universal human rights. In
this way, former colonial powers claim conformity with universal human
rights norms by following their own domestic standards and avoiding
25
Benton and Ford, Rage for Order.
responsibility for violating broader or more affirmative human rights norms.

For instance, western liberal states relegated economic, social, and cultural
rights to the bottom of the normative hierarchy of human rights because they
assume such claims to be nonjusticiable, without explaining why judicial
enforcement should be a criterion of human rights in the first place. This
same liberal bias for judicial enforcement has been used to reject a range of
collective and intergenerational entitlements like rights to social and eco-
nomic development and protection of the environment. Despite the vulner-
ability of the elderly, the judicial enforcement of the individual and collective
rights of this group are rejected by the current human rights discourse because
the judicial protection of this group is incomprehensible to the liberal mind.
The “confidence trick” of misrepresenting civil rights as human rights has
been reinforced by presenting an apparent continuity of claims of the “civiliz-
ing mission” that were used earlier by the same European powers to justify
their colonial expansion. Another factor in this process is that the same former
colonial powers have established themselves as “gate-keepers” of the so-called
international community by controlling membership and operations and
functioning of the UN.26 Membership and operation of international finan-
cial institutions such as the World Bank and the International Monetary Fund
(IMF) are governed by the constituent documents of the organization. The
IMF is governed by charter of the organization, while voting power in such
agencies is proportionate to each state’s contribution to the agency’s total
budget; since the richest members of those agencies are nearly always former
colonial states, this enables them to wield disproportionate power and influ-
ence in matters of international finance. Another factor enabling former
colonial states to exercise disproportionate power and influence in inter-
national relations in general is that they have the most experience in the
workings of international organizations, from the League of Nations to the
World Trade Organization. Because of this, their national experts tend to
dominate when it comes to negotiations and arbitration of disputes. Former
colonies, however, have little choice when engaging lawyers and business
experts than to turn to the nationals of former colonial powers. Even the
national languages of colonial states contribute to limiting the choice of
26
According to Article 4(2) of the Charter of the United Nations of 1945, admission of any state to
membership in the United Nations “will be effected by a decision of the General Assembly
upon the recommendation of the Security Council.” Combined with the veto power of each of
the five permanent members of the UN Security Council, this means that any of these five
permanent members can deny any state membership of the UN.
new states when they seek legal advice or representation in their disputes with
other states.
One result of this is that any outcomes or settlements achieved by inter-
national arbitration and negotiations between developing countries and inter-
national organizations have already been anticipated and shaped by the legal
and administrative systems of former colonial powers. Similarly, the ability of
former colonial states to perform “gatekeeping functions” demonstrates their
ability to exercise what is called “the power of the initiative,” which refers to
their ability to mobilize their resources, in the form of their media and civil
society organizations, and to combine their foreign policy objectives with their
role as gatekeepers of the current legal framework of international relations. In
this way, European powers have in recent history been able to control
membership in the club of “civilized nations,” which Article 38 (c) of the
Statute of the International Court of Justice (ICJ) officially recognizes as one
of the sources of international law to be applied by the ICJ. Other factors
shaping the disproportionate influence of former colonial states include, for
instance, the legal and technical power of the ICJ, although the decisions
ofthe Court are supposed to apply only to the parties to each case decided by
the Court.
In this book I seek to affirm the true universality of human rights, in ways
that enhance the practical and sustainable protection of these rights through a
variety of strategies beyond piecemeal, reactive, and expensive judicial
enforcement. The universality of the concept itself means that human rights
are the entitlement of all human beings by virtue of their humanity. This
quality of globally inclusive scope of the rights of every human being, equally
and without any distinction, can be used to enhance the “value added” of
human rights regardless of judicial enforcement of human rights norms as
such. The belief that these rights should override any rights asserted by virtue
of membership in a group (e.g., citizens of a state, or members of an ethnic or
religious group) is prerequisite for the validity of the concept and the possibil-
ity of practically applying the specific rights claimed under this framework.
Since neither the human rights paradigm nor the universality of these rights as
prerequisite for their global validity is an end unto itself, the pursuit of the
practical viability and normative universality of these rights must also be “good
means to the end,” the end being one of sustainable protection for the human
rights of every human being, anywhere in the world.
The validity of any human right cannot be confirmed at the expense of
other rights, and human rights cannot be simply what the state wishes to grant
its citizens and other persons or groups subject to the state’s jurisdiction. Yet,
no authoritative institution or process exists by which competing claims of
rights can be arbitrated or adjudicated. The apparent consensus around the

impetus for the protection of human rights by the end of the Second World
War has been the failure of the state to protect its own citizens against itself
and other authorities, which is the basic rationale for the pursuit of universal
rights. It is from this perspective that I am presenting this strong critique of
the present human rights system and proposing an alternative, in tribute to
the concept, its potential content, and the prospects of implementation of
human rights.
The premise of this critique of the present international human rights
regime is twofold: First, the regime’s ineffectiveness in achieving any of its
purported benefits indicates deliberate purpose and inherent institutional
quality. Second, the weakness and ambiguity of the present human rights
regime, which expects states to hold themselves accountable to humanity at
large, is also counterproductive because it entrenches profound hypocrisy and
perpetuates complacency. This book is an urgent plea to take the protection of
human rights seriously enough to either earnestly strive for their practical and
sustainable realization or stop the cynical pretense of adherence to this
humane principle.
The basic credibility challenge for the claim that universal human rights
are the equal rights of all human beings by virtue of their humanity is to
transcend the inherent neocolonial nature of the project as founded on the
present system of international law. By asserting their own values and social
relations as the global model of universal human rights, former colonial
powers have identified themselves as the embodiment of human rights and
doomed the rest of the world to struggling to “catch up.” Submission to the
legal obligation of the western model of human rights has become the
essential requirement for acceptance of statehood by other states, and admis-
sion to the membership of the United Nations. Once a country’s statehood has
been accepted by other states it cannot be legally lost because of the failure of
the state to protect human rights – neither the normative criteria nor any
institutional mechanism exists by which recognition of statehood can be
withdrawn by other states. Yet, the western requirement of justiciable enforce-
ment of human rights is difficult for emerging postcolonial states and develop-
ing countries that were not colonized to achieve due to the lack of judicial
resources and administrative competence for protecting human rights on
the ground.
It is clear to me that the inevitable consequence of the neocolonial fallacy
that liberal relativism has exclusive claim to being the universal norm is the
practical failure of the liberal model of juridical protection of human rights by
the state. This combination of conceptual fallacy and practical inadequacy of
the foundational myth of the universality of human rights seems to hint at

ideological and cultural relativity in European conceptions of human rights,
though bridging the gap remains possible in practice.
universality or uniformity
Why must the apparent dichotomy of universality versus uniformity be a
choice of one or the other? And how can the two be reconciled so that
universality becomes the global ideal within which local uniformity is asserted
against coercive dichotomy? For example, gender equality is the universal
ideal, while uniform practice of the norm is not violated by granting working
mothers “maternity leave.” Accepting such differentiations within broader
universality can sustain pragmatic practice so that, for instance, maternity
leave for mothers does not immediately require “paternity leave” for fathers,
unless justified by other factors.
To speak of human rights as a preordained uniform set of presumably
universal rights for all human beings by virtue of their humanity requires
the capacity to imagine humanity in different socioeconomic and cultural
contexts. To promote and defend human rights requires the ability to empa-
thize and identify with all varieties of people, their needs, and their expect-
ations, especially when they are unable to articulate these for themselves.
Such requirements are what the capacity to imagine, empathize, and identify
would facilitate and support. For instance, the neocolonial premise and
presumed outcome of the current human rights discourse are too flawed to
qualify as protection of human rights at all.
The democratic principle of self-governance is premised on the sovereignty
of the human person as the subject of human rights in defining and imple-
menting those rights, through the radical democratization of the entire system.
Granted, the state has an indispensable role in the protection of human rights
through intergovernmental relations and regulating access for international
agencies (such as the World Health Organization and the International Labor
Organization) to provide their services to local populations. Yet it is the role of
civil society and the democratic process which ensures the proper working of
these agencies and organizations. Every aspect of self-governance and inter-
national cooperation presupposes the active and well-informed role of the
public at large without demands or supervision by local civil society organiza-
tions. Every aspect of the protection of human rights starts and ends with the
role of the human subject of those rights.
By decolonizing human rights, I mean an ongoing dynamic process of
reversing the colonial domination of the norms, institutions, and processes
Universality or Uniformity 21
for protecting human rights, in order to bring all aspects of the system into
conformity with the rationale of equality of all human beings in dignity and
rights. The present international human rights system is inherently neocolo-
nial because it is premised on the uniformity of a set of norms and institutions
proclaimed by a self-select group of colonial powers that presume to speak for
humanity on a global scale. As to be expected, it is that self-select group of
former colonial powers (including Russia/the Soviet Union and the United
States) which prescribe their own values and institutions as the exclusive and
uniform universal model of human rights to be imposed on former colonies as
their “passport” to political independence and membership of the so-called
international community.
To speak of reconciling in this context is to indicate the pragmatic, incre-
mental, and progressive nature of the process, and should not be perceived as
implying submissive compromise on the goals of upholding the universality of
human rights. Emphasizing the tentative and contingent nature of social
change is to indicate the role of the sovereignty of the human subject, which
includes choice or preference of sequence of outcomes. In other words, we
should not attempt to override the priorities or choices people wish to make in
the name of protecting their human dignity and self-determination.
The protection of human rights is a means to the end of ensuring respect for
the dignity of each and every human being, everywhere in the world, by virtue
of her humanity, without any requirement or qualification other than being
human. The premise of universality of human rights affirms the global
inclusion of every human being according to his or her own understanding
of the meaning and implications of human dignity. On its own terms, the
universality of human rights means that each person has the right to define
and protect her own human rights. Conversely, any claim to protect human
rights through imposition by the state or in the name of the so-called inter-
national community is a neocolonial assertion of “the civilizing mission” of
European colonialism, and as such is inherently incompatible with the core
premise of universality. Such imperial projects rely on an expectation of
uniformity of universal human rights norms, which presume to authorize
imposition of a predetermined set of rights by a centralized hierarchy of power
through international institutions like the United Nations. Some form or
degree of normative uniformity may emerge over time out of an overlapping
consensus among different communities around the world, but never through
imposition by imperial powers in the name of the so-called international
community.
This book seeks to clarify and facilitate the possibility of protection of
universal human rights because the present state-centric system is incapable
of protecting these rights on their own terms. The suggested shift from the
current illusion of legal protection of human rights by the state to cultural
legitimacy and political mobilization as the necessary basis for any protection
of these rights is not an “alternative” of the present state-centric system. The
state is incapable of protecting the rights of human beings as such. The
premise of the nation-state’s territorial sovereignty necessarily means
the limitation of what it can do within its own jurisdiction and constitu-
tional/legal competence and cannot and should not extent to humanity at
large. The claim of any state to protect rights beyond its own domestic
jurisdiction is an imperial projection of its power and violates the sovereignty
of other states.27 The claim of any state to protect human rights is a contradic-
tion in terms because whatever the state does about rights is by definition in
the realm of the civil rights of those who are subject to the state’s lawful
jurisdiction and never the rights of all human beings.
In this light, the categorical principle to emphasize here is that self-
determined universality is the only possible basis for the protection of human
rights in any community. This principle does not mean that all established
norms and institutions necessarily conform to a unanimous view of self-
determined universality in the community. What this principle means is that
advocates of change or adjustment in established norms and institutions
should engage in an internal discourse to transform attitudes and mobilize
political support in favor of what they believe to be the self-determined human
rights norms within their community. To recall a point already made in the
preceding paragraph, this is not an alternative to the current state-centric legal
enforcement model because enforcement cannot work except through cul-
tural transformation and political mobilization. Any view of an alleged human
right that is stipulated by international treaties without the endorsement of self-
determined universality is an untenable imperial projection of foreign power,
an external imposition on the community in question that is incompatible
with the essential rationale of human rights. Issues and themes suggested by
the preceding framework include: What is universal about locally defined
human rights, i.e., does universality require uniformity? What is the role of
normative universality in the human history of the world?
Following up on the same theme of liberal relativism of the current human
rights paradigm, I argue that Western former colonial states adopted their own
liberal values as the universal norm for human rights and are pushing the rest
of the world into the defensive position of being cultural relativists for seeking
27
Dunoff, Ratner, and Wippman, International Law, pp. 278–93, 349–51; Janis, International
Law, pp. 336–41, 345–54.
to do the same. For example, the states of western Europe did not prohibit the
death penalty – a human rights norm – in their regional human rights treaty,
namely, the European Convention for the Protection of Human Rights and
Fundamental Freedoms 1950. As social and cultural attitudes on the issue in
the region shifted during the second half of the twentieth century, the
European states adopted Protocol 13 of the European Convention on
Human Rights and Fundamental Freedom to prohibit the death penalty.28
In contrast, the death penalty remains permitted in the United States.
This example shows the two sides of the coin of liberal relativism: prohib-
ition of the death penalty was not a human right when Europeans did not
accept that and became a human right when they did. The democratic nature
of the human rights rationale for prohibiting the death penalty confirms
choice by citizens rather than a normative mandate. Given their own experi-
ence with the death penalty, how can Europeans seek to impose their choice
on the democratic process for other peoples of the world?
To conclude this introductory chapter with some personal reflections, my
initial view of human rights as a law student in Sudan in the 1960s reflected
conflict and tension between elements of my identity as a Muslim, on the one
hand, and my commitment to the advocacy of human rights as a universal
ideal. I did not want to give up on either of those two sets of commitments, but
also did not know how to reconcile or adjudicate their competing claims. At
the time, my understanding of Islam was Sharia as established since the tenth
century and my view of human rights was established by the Universal
Declaration and the two Covenants. Neither side of my dilemma was open
to reconsideration or compromise. Over time, however, I was fortunate
enough to find and accept a methodology for the contextual reinterpretation
of Sharia, and an ideology for cross-cultural dialogue for a dynamic consensus-
based view of human rights.29 I continued until the mid-1990s to write and
speak in terms of how to reconcile Sharia with human rights, but up to that
point I had taken human rights for granted. By the late 1990s, however, I had
begun to question the Western liberal conception of human rights and the
state-centric manner of their alleged protection. As a Muslim, I remain con-
vinced of the need for the reinterpretation of Sharia, and as an advocate of
human rights I have come to be convinced of the inevitable multiplicity of
28
Council of Europe, Protocol 13 to the European Convention on Human Rights and
Fundamental Freedoms on the Abolition of the Death Penalty in All Circumstances, 3 May
2002, ETS 187.
29
On the basic statement of my contextual understanding of Sharia, see An-Naim, Toward an
Islamic Reformation. On the mediation of culture and human rights see, An-Naim (ed.),
Human Rights in Cross-Cultural Perspective.
perspectives and interpretations of human rights. Far from being a fatal fault in
the human rights paradigm, the inherent diversity of perspectives and experi-
ences of the concept, content, and context of the practice of human rights are
in fact the key to the dynamic mediation of competing demands for social
justice and individual freedom. The analysis and application of these theories
have evolved in my own mind over time, and will continue to evolve, I hope,
but I have not found reason to revise the basic premise and implications of the
process of mediation itself.
As I see them now, all aspects of the theory and practice of human rights must
remain open to contestation and challenge by all human beings everywhere as a
necessary consequence of the nature of the universality of human rights. For me
as a Muslim, neither Sharia nor the view of the UDHR about the universality of
human rights can be taken for granted or assumed to be definitive. Regardless of
such appropriations of the outcomes of dialogue, the reality is that the vision of
the universality of human rights is fundamentally challenging to all societies
and to all human beings. Every person in every community is challenged by the
real magnitude and true nature of the claim of the universality of human rights.
The quality of universality is the conceptual means by which each human
subject is entitled to formulate her or his conception of each right and free
contribution of contextual strategies of implementation. In practice, such
diverse expressions and visions will tend to converge into evolving consensus
on the meaning of each right and convergence of strategies of implementation.
Such is the historical nature of human experience. Yet, for every conception of
rights to remain relevant to the experience of their human subject, all aspects of
the process should reflect the voluntary agency of every human subject.
In conclusion of this chapter, I recall three original ideas I highlighted to
clarify and elaborate at different stages of the following analysis which are not
commonly known in the field. The first is the distinction between civil rights
and human rights, as the subject of my main charge that there is no protec-
tion anywhere of human rights as the rights of every person by virtue of his or
her humanity. When liberal societies present civil rights of citizens and lawful
residents as universal human rights, this negates the core rationale of the very
idea of universal human rights. If civil rights and human rights are the same,
what is the point of raising the possibility of universal human rights to which
every person is entitled without any distinction whatsoever? Many human
societies have achieved a degree of protection of a range of civil and political
rights, but no human society anywhere or at any time has practiced protection
of the rights of all human beings by virtue of their humanity. This charge is
fundamental to my entire approach in this book, because we must expose the
fallacy of the claim before we can begin to correct it.
The second idea, which is also distinctive to my approach, is the useful

triangle of concept, content, and context. The point here is that all three are
inherent to the idea of human rights and must work together to clarify and
confirm the doctrine. The concept of human rights is the idea of universality
which, although relatively easy to accept in theory as the entitlement of every
human being, is extremely difficult to apply in practice, and is nowhere to be
found in any society today. The content is the claim to specific meaning of a
set of values or norms that are universally accepted and applied everywhere.
This claim has never been raised anywhere in the world yet, let alone being
able to deliver identical entitlements to every human being without distinc-
tions of race, gender, religion, social origin, etc.
The third idea is the contextual framework of the practice of human
rights. This is another paradox, namely one of how rights are to be practiced
equally and without distinction despite their distinctive context. As I see it, this
request is a variation on the proverb “eat your cake and have it, too.” An
analysis by contextual framework is a request for distinctiveness, in this
instance of rights, whether qualified as human rights or not.
2
Marriage of Futility
International Law and Human Rights
introduction
Legal enforcement of international obligations under domestic law is a con-
tradiction in terms because the same state that has the conclusive obligation to
protect human rights also has exclusive control of the means of legal enforce-
ment under domestic law. The impulse for the state to obstruct or hinder the
domestic enforcement of its international obligations under routine trade and
international relations is effectively precluded by fear of retaliation by other
states and/or international organizations that have the power and resources to
secure their economic, trade, security, and other interests under international
law. Unfortunately, human rights treaties are unlikely to have similar benefits
for states when they implement or enforce the treaty or international custom
on which a human rights claim is based.1
Consider the supreme hypocrisy of the “human rights policy” of the United
States, which not only refuses to ratify the most fundamental human rights
treaties, but also ensures that the few treaties it ratifies cannot possibly intro-
duce any element of international human rights standards or accountability in
the United States itself. The ultimate irony is that the United States monitors
the “human rights record” of every country in the world, except itself, to be
recorded in the annual reports from the State Department to Congress.2 None
1
Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment
of the Crime of Genocide. International Court of Justice (ICJ), May 28, 1951.
2
The main State Department report is Country Reports on Human Rights Practices, which
covers human rights as proclaimed in the UDHR and other international agreements. The US
Department of State submits reports on all countries receiving assistance and all United
Nations member states to the US Congress in accordance with the Foreign Assistance Act of
1961 and the Trade Act of 1974. See also International Religious Freedom Reports; Trafficking-
in-Person Reports; and US Treaty Reports.
26
Introduction 27
of this is motivated by the desire to serve humanitarian goals, but only to

support the pretense of global moral leadership to justify the imperial policy
and coercive so-called humanitarian intervention at the exclusive discretion of
the United States in advancing its own foreign policy objectives. All former
colonial powers, including Russia, engage in such manipulative practices, but
I am singling out the United States because of its combination of minimal
ratification of human rights, emptying the few treaties it ratifies of all mean-
ingful human rights content, and highly effective propaganda claiming the
exclusive role of the United States as the global guardian of human rights.
Specialized treaties and their specific enforcement mechanisms promise
advanced and sophisticated rights but fail to deliver on those promises.
Moreover, the liberal bias of Western societies against social and economic
rights or collective/group rights means that they will not cooperate when
approached about legal enforcement of these rights in their own countries.
For instance, since liberal states refuse to accept a right to education or health
care as human rights, they will refuse the legal enforcement of such rights in
their countries. Liberal states will also probably seek to generate a counter
discourse to disrupt legal obligations to cooperation in enforcement even
among societies that have expressed their wish to accept education and health
care as human rights.
The subordination of international law to the domestic legal system of
nation-states is too entrenched in the nature and functions of the state itself
to be avoided. This requirement includes the incorporation of treaty provi-
sions into the domestic law of the state by statute in common law jurisdictions
like all former British colonies, including the United States. Other countries
may take other routes for incorporation of treaties into domestic codification
or judicial traditions or political institutions of the country in question.3
Regardless of the means of “domestication” of international law, the outcome
of the application of human rights treaties will become domestic civil rights
instead of international human rights law. In ratifying a human rights treaty,
the state will probably modify and adapt the interpretation of the treaty to fit its
political and legal systems and institutional governance, in addition to
insisting on reservations limiting the state’s obligations under the treaty. This
combination of limitations of domestic application of international law can be
illustrated by the case of torture in the United States.
This curious consequence can be explained as follows. The rationale of
human rights is that they are supposed to be the universal rights of all human
3
Janis, International Law, pp. 1–8. For actual sources of international law used by different states
see, Gaebler and Shea (eds.), Sources of State Practice.
28 Marriage of Futility
beings by virtue of their humanity – regardless of whether the state where they
happen to be living is willing or able to protect them. The apparent source of
the belief that rights should be protected against the state itself was the then
(mid-1940s)-recent experience of the Holocaust as a massive and horrendous
example of the brutality of which the nation-state is capable. To provide for
the entitlements of all human beings by virtue of their humanity, instead of
being limited to only the right of citizens and lawful residents, the system was
established and continues to operate through the presumed authority of an
external frame of reference of treaties and customary international law. The
system is also implemented and promoted through the institutional authorities
of international organizations, such as the UN and World Trade
Organization, presumably beyond the domestic control of any state. What is
paradoxical is that despite the bold vision and ambitious plans, control of the
protection of human rights – and of the concept of human rights, which was
to protect human beings against the state in the first place – was left to
the state.
The predominance of states over the entire human rights field is supported
by the framework of international law under which only states can have rights
and obligations.4 Unfortunately, the structural system of international law is
not mature enough to accept possibilities of making exceptions or allowances
for human rights issues, like the possibility of different subjects for variety of
content or context. Only states can sue or be sued before international
tribunals or seek arbitration to adjudicate disagreements with other states.
Only states can be parties to treaties or members of international organiza-
tions. Moreover, only states that are members of the relevant international
organization can approve or object to admission of other states to the same
treaties or membership of international organizations.5 Therefore, according
to the current structure of international law, only states can be subjects of
violations of international law because only they have rights that can be
violated by states and other entities. These rights include those under inter-
national human rights law. Consequently, they have the exclusive claim to
seek remedy for violations of their “human” rights, without delegation to the
state of legal agency by the human subject of the right. This exclusive ability of
4
The following brief outline of aspects of the same structural principles of general international
law of rights and obligations of the state. Janis, International Law, pp. 263–69.
5
Such as the United Nations (UN) itself – the most global and complex institution – and the
Organization of American States (OAS), the European Union (EU), and the African Union
(AU). Only states can be members of any of these organizations, or of specialized agencies of
international organizations, such as the World Health Organization (WHO), World Trade
Organization (WTO), and World Labor Organization (WLO).
Introduction 29
states to hold rights under international human rights law means that they can
block actual human beings whose rights have been violated from seeking remedy,
including appropriate conceptions of self-determination. The inherent nature
and rationale of the right to self-determination, including the definition and
practice of the right, cannot be held hostage to the narrow conception of self-
determination as defined by colonial powers. This is the rationale of liberating
the concept of “right” in the term “human rights” from the control of liberal
relativism of colonial powers. Unfortunately, the liberal relativism of human
rights discourse continues in neocolonial power politics up to the present.6
The title of this chapter indicates the apparent mismatch between universality
of human rights and sovereignty of the state, but that need not be the case if
sovereignty is defined as subject to the protection of human rights by the state
itself or collaboration among equally sovereign states.7 Yet, the inclusion of the
protection of human rights in our understanding of sovereignty will reduce the
tension in the paradox of self-regulation by the state. In this book I am arguing that
the combination of cultural transformation and political mobilization is in fact
the logical and pragmatic alternative to the paradox of universality of human
rights and sovereignty of the state. Otherwise, actors in the name of the state can
easily manipulate the mechanisms and processes of international law to rational-
ize or justify violating the rights of individuals and communities.
Reference to “communities” here and elsewhere in this book is to indicate
the possibility, even priority in appropriate context, of collective human rights
of communities. For example, Article 19 of the African Charter of Human and
Peoples Rights of 1981 provides: “All peoples shall be equal; they shall enjoy
the same respect and shall have the same rights. Nothing shall justify the
domination of a people by another.” Article 20 affirms that all peoples shall
have the right to a general satisfactory environment favorable to their develop-
ment. According to Article 22, “All peoples shall have the right to their
economic, social and cultural development with due regard to their freedom
and identity and in the equal enjoyment of the common heritage of man-
kind.” Other collective rights are stipulated in Articles 20 to 24 of the African
Charter. My reference to communities here and elsewhere is also to affirm
that rights of individuals are exercised in community with others.
Proponents of liberal relativism would argue that human rights should be
confined to rights of individual persons since collective rights are impossible to
enforce in a court of law. In fact, human rights of individual persons are also
impossible to enforce in a court of law beyond the sovereignty of the state
6
Orford, Reading Humanitarian Intervention, pp. 126–56.
7
Deng et al., Sovereignty as Responsibility; and Chayes and Chayes, The New Sovereignty.
against which the human right violation is charged. Any “enforcement”

requires the authority and power of the state to achieve effective enforcement
against the will of the state and in opposition to other economic and political
forces in the country. The quality of being a human right is lost when an
entitlement or protection is incorporated into domestic law for the national
courts to enforce it. Enforcement by domestic courts negates the quality of
universality, thereby defining the right as domestic, not universal. This is true
of every conception of right, whether liberal, communitarian, or otherwise.
The difference between liberal and other conception of rights is that a liberal
conception is manipulated by former colonial powers to demonize and look
down on developing countries and their values and cultures as relativist,
incapable of yielding a universal right, although liberal rights are also relative
to liberalism, and incapable of yielding a universal right.
It is ironic that a commonly held view of the universality of human rights is
that it is necessary to challenge the ability of states to violate the rights of their
citizens and other persons under their jurisdiction. In other words, proponents
of an international framework for human rights often claim that it is necessary to
hold states that violate the rights of persons under their sovereignty accountable.
Yet, the entire human rights paradigm is firmly embedded within the sovereign
jurisdiction of states. State authorities decide whether to ratify human rights
treaties, and whether these are subject to reservations that state representatives
select. Moreover, state authorities decide when and how to incorporate human
rights and other treaties that they ratify into their domestic jurisdiction.
The arbitrary and exclusive manner by which France, the United Kingdom,
the United States, and the Soviet Union forged their alliance during World
War II is one relevant framework for my analysis. The sequence and rationale
that led each of those powers to enter the war are crucial factors. The Soviet
Union was initially “neutral,” then cooperated with Germany against the UK
and France, before ending the war allied with the British and French. The
Western allies developed their plans for “governing” the postwar world while
fighting the final phases of the war. The United Nations was officially estab-
lished when China, France, the Soviet Union, the UK, and the United States
ratified the UN Charter. These major powers designed the structure and
organization of the UN Charter to ensure the consent of all permanent
members of the Security Council, including China, to any amendment of
the UN Charter and prior approval of critical operations of its organs.8 For
example, states are admitted to membership in the UN by decision of the
8
US Department of State, Office of the Historian, “Milestones: 1937–1945.”
Introduction 31
General Assembly upon the recommendation of the Security Council. Note

that any one of the five permanent members of the Security Council can
block any nonprocedural decision of the Council, including the admission of
any NEW member of the UN or subsequent annual accreditation of repre-
sentatives of existing members of the UN applying to be seated in the UN itself
or in any of its specialized agencies.
The process of developing the UN Charter resulted from complex negoti-
ations, which could not have been anticipated. The same was true for the
structure of the UN itself and its specialized agencies. The UN system could
have been achieved without the consent of those five major powers, especially
the United States and the Soviet Union. Yet, the process and its outcomes,
including the adoption of major human rights covenants and conventions,9
was achieved by negotiations among UN members to safeguard and protect
the diplomatic and political interests of the five permanent members of the
Security Council and their allies. There was nothing romantic or magical
about advancing the interests of the major powers and other alliances of
member states of the UN. At the same time, all the issues in dispute were
settled by negotiations at the beginning or subsequent stages of development
of each of the UN subsystems. The human rights system was also negotiated in
similar manner at around the same time.
The mismatch of International Law and International Human Rights is so
problematic that it is unlikely that the major colonial powers (France, the UK,
the United States, and the Soviet Union) would submit to an alternative
system that limits their powers and position in the UN. Western colonial
powers designed the human rights regime to fit their own liberal relativism so
that they could use it to consolidate their postcolonial control over their
former colonies. In its current iteration, this human rights regime does not
hold them accountable to the structure that they established under the United
Nations. As I have explained elsewhere:
By liberal relativism I mean the set of values and institutions which limit
human rights to negative claims on the state to refrain from interfering with
9
Such as the Convention on the Elimination of All Forms of Racial Discrimination (1965);
International Covenant on Civil and Political Rights (1966); International Covenant on
Economic, Social, and Cultural Rights (1966); Convention on the Elimination of All Forms of
Discrimination Against Women (1979); Convention Against Torture and Other Cruel,
Inhumane or Degrading Treatment and Punishment (1984); Convention on the Rights of the
Child (1989); International Convention on the Protection of the Rights of Migrant Workers
and Members of Their Families (1990); Convention on the Rights of Persons with Disabilities
(2006); International Convention for the Protection of All Persons From Enforced
Disappearances (2006).
the freedom of individuals. This perspective upholds civil and political rights
of citizens, pays lip service to notions of inclusive universality of human
rights, and relegates economic and social rights and collective demands for
development and protection of the environment to the realm of second and
third generation rights. In this model, judicially enforceable negative civil
and political rights are true rights, while affirmative claims on the state for
economic and social justice are deemed incidental outcomes of upholding
true rights.
This view is relativist because it is premised on a particular philosophical
view and political experience. It is neocolonial because it projects that
relativist view as universal through imperial hegemony, economic blackmail
and the constant implicit threat of use of military force at the discretion of the
same former colonial powers, while “international” finance and the U.S.-
backed loan businesses make it impossible for “developing” countries to
realize socio-economic and cultural rights. The liberal scenario is paradoxical
because it negates self-determination of poor countries in the name of
protecting their human rights. The point here is not whether a claim deserves
recognition as a human right or not, but the imperialist coercive nature of the
process that refuses to consider the possibility of a non-liberal perspective.10
Officially Marxist regimes which ruled the Soviet Union and their Marxist
East European allies during the Cold War (approximately 1949–1990) insisted
on calling their regimes “democratic,” although they were all harshly totalitar-
ian in practice. Still, all those regimes adopted the same human rights
approach that prevailed in democratic Western European and North
American states. Nonetheless, the human rights regime that has prevailed
since the adoption of the UDHR in 1948 still applies today without the
presumed universality of human rights and its alleged benefits. The imperial
policies and brutal repression that the liberal Western powers continued to
practice in their colonies and new dependencies provide evidence of this
legacy.
For example, France insisted on maintaining its colonial stronghold in
Algeria and other colonies in north and west Africa. France also continued
its colonial war in Indochina until the colony (and the war) was taken over by
the United States. Britain held on to its African colonies, including Kenya and
Nigeria, until the early 1960s.11 Western European colonial ambitions still
shape political and economic developments in Africa and Asia. The United
States continues to dominate the Western Hemisphere, while implementing
interventionist policies in Africa and southeast Asia. In view of these global
10
An-Naim, “Human rights and its inherent liberal relativism.”
11
Rodney, How Europe Underdeveloped Africa.
Squaring the Circle 33
hegemonic geopolitical relations, it is reasonable to conclude that former

colonial states are assuming global leadership in human rights without acting
accordingly.12
squaring the circle

The international human rights regime was not preconceived as a process of
an integrated and comprehensive system. Its core structure and processes
came to be organized in terms of a global regime centered around the
United Nations, on the one hand, and the three regional systems of the
Council of Europe and Inter-American and African regional treaties, on
the other. I begin by identifying the sources of human rights law and examine
the projected process of protection to see whether this system can deliver on its
alleged promise. I also examine whether the system can be truly universal and
inclusive of all human civilizations and traditions or merely impose liberal
relativist claims of human rights while dismissing non-Western societies as
“cultural relativist.”
To summarize the “sources” of international human rights norms, we
should first note that norms evolved and were reinforced under customary
international law. Examples include prohibition of slavery and torture. The
problem with this source of human rights norms is that customary inter-
national law relevant to human rights norms is rather vague or scarce. This
is true of customary international law in general. In practice, evidence of
customary international law is not only ambiguous and subjective, but the
sources that international tribunals turn to for proof of customary law tend to
be from Western scholarship in Western languages. Moreover, as to be
expected, they often address issues that are relevant to the interests and
experiences of Western powers.13 While the charge of liberal relativism is
damning enough for international law at large, it is devastating for the
legitimacy and integrity of the universality of human rights.
Ironically, liberal proponents of human rights have used the Western liberal
hegemony to proclaim a wide range of so-called human rights standards
through international treaties. Unfortunately, the massive expansion of the
12
Before I continue my analysis, I would quote an important caveat by Shashi Tharoor, one of the
most devasting critics of the massive exploitation of India and brutal repression of Indians by
British colonial rulers. Tharoor begins his damning general evaluation of British colonial rule
of India by saying: “As with all human enterprises, colonialism too brought positives as well as
negatives.” (Tharoor, Inglorious Empire, p. 213).
13
Janis, International Law, pp. 43–57; Dunoff, Ratner, and Wippman, International Law,
pp. 73–77.
scale and scope of human rights treaties in the UN system and regional
systems14 has come at the expense of effective protection of human subjects
of the proclaimed rights. By listing major treaties, I am highlighting the vast
scope and highly ambitious nature of the range of human rights included.
These aspirations contrast starkly with the few rights that are realistically
identified for enforcement or application. In addition, the UN system also
includes Optional Protocols relevant to some of the major treaties. States party
to those treaties have the discretion to ratify related protocols if they choose.
Therefore, by creating Optional Protocols, states can supplement and
reinforce the provisions of main treaties among those states that have ratified
them. The regional human rights systems, namely the European Convention
on Human Rights 1950, American Convention on Human Rights 1979, and
the African Convention on Human and Peoples Rights 1981, follow the same
approach of main treaties and specialized optional protocols. The protocols
tend to focus on specific subjects, such as the involvement of children in
armed conflicts, trafficking of children, and pornography. Some optional
protocols grant individual persons the right to complaint procedures under
select major treaties. The practical weakness of this massive system of human
rights instrument is the tendency to cite enactment of legislation as if it is an
accurate representation of practice. Ironically, lack of practical implementa-
tion comes in adverse correlation to the number of treaties and protocols
adopted in the same field, as if numbers of adopted instruments make up for
the lack of practical efficacy.
The basic problem with the current international law of treaties is that it was
designed and evolved to regulate economic, political, and security relations
among the states of Western Europe and former colonies settled by European
immigrants in the Americas and Australia, who remained allied to their
“metropolitan European country,” such as the UK, France, and Spain. In
these and related ways, the development of Eurocentric international law
tended to follow its European roots by applying primarily among regions that
are either matched in economic and military power or share common polit-
ical and cultural history. The so-called international community was an
exclusive club of Western states,15 which also controlled membership in the
club for non-European states seeking to join. That structural barrier kept non-
14
For a sample of these treaties in the UN system, see footnote 5 in this chapter.
15
I use the term “so-called” to describe the international community because it is neither
inclusively international nor sociologically a community, yet I do believe in the possibility of its
dynamically proactive role in the future. I also see my present critique as the means to explore
the potential role of the concept and its positive contributions.
Western states of the nineteenth century, such as the Ottoman Empire and
Japan, out of the exclusive group of the “civilized nations” of Europe (and
“civilized by association” among descendants of European settlers abroad)
until the twentieth century, despite the established practical sovereignty
and economic and military power of both the Ottoman Empire and Japan
at the time.
Article 38.1.c of the Statute of the International Court of Justice (ICJ)
provides that the sources of international law for the ICJ include “c. the
general principles of law recognized by civilized nations . . .”16
Consequently, this article makes the history of the exclusive club of so-called
civilized nations particularly problematic. The Statute of the Court does not
define the criteria of what constitutes a “civilized nation” or set an assessment
process by which to judge the capacity of a state to be civilized enough to
sanction general principles of law. For instance, should the ICJ declare that a
state is civilized enough for the purposes of Article 38.1.c, does this mean that
state is forever considered “civilized”? How about states that lack the quality of
being civilized? Can they ever qualify in the future, and how (and by whom) is
their admission to the club evaluated?
Other difficulties with Article 38 of the Statute of the ICJ include the fact
that states cannot sue or be sued before the ICJ without their explicit consent,
and the rulings of the Court are binding only on consenting states or when so
decreed by the UN Security Council. Yet, international lawyers and arbiters
tend to treat the rulings and dicta of the ICJ as binding as if they were judicial
precedents in common law jurisdictions. While this does not preclude parties
and their lawyers from arguing that general principles of law from any state or
group of states can contribute or not contribute to the formation of a general
principle of law in any other case, the ICJ may choose to uphold general
principles of law from established jurisprudence of Article 38.1.c of the ICJ
Statute. In any case, there are no independent criteria for deciding which is
the correct view of the law beyond the instance of the case before the ICJ or
any arbitration panel.
Sources of international law and their outcomes tend to be conservative
because the principles of international law often draw on preexisting state
practice. For example, the formation of customary international law requires
consistent practice by states out of a sense of obligation. As the Supreme Court
of the United States described the process of “ripening” of practice into a rule
of international law: “By an ancient usage among civilized nations, beginning
16
International Court of Justice, Statute of the International Court of Justice.
centuries ago, and gradually ripening into a rule of international law . . .”17
This subjective element of circular logic of state practice out of a sense of
obligation in the formation of the customary law rule that gives that sense of
obligation has been described by the International Court of Justice as follows:
“The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or eventual character of the acts
is not in itself enough.”18
The imperial policies of Western liberal powers who designed the UN
human rights regime sought to combine a liberal relativist view of human
rights and their lack of effective remedies. As such, it is clear that they
deliberately entrusted the protection of human rights to international law to
keep the human rights initiative under the control of former colonial powers.
Military conquest was legal under Eurocentric international law, which also
regulated European colonial expansion through schemes like the Berlin
Conference of 1885–1886, which carved up African territories among colonial
European powers. Eurocentric international law also sanctioned the expan-
sion of colonial rule throughout Africa until well after the establishment of the
United Nations in 1945. As noted earlier, France and the UK, two of the
Permanent Members of the Security Council, insisted on holding on to some
of their African colonies until the early 1960s–1962 for France (Algeria) and
1963 for the UK (Kenya). Other European colonial powers, such as Portugal,
fought vicious wars against independence movements in their African col-
onies in the 1970s.
It is worth considering what the founders of the UN human rights regime
could have used as an alternative. First, the concept and scope of the human
rights paradigm was too novel to be applied within the mundane framework of
state sovereignty and exclusive territorial jurisdiction under traditional inter-
national law. Yet, these founders should have pursued an alternative approach
to state-centric legality. To stay within that traditional framework is to negate
the innovative value of the human rights paradigm, which applies an external
standard to judge the domestic conduct of nation-states. Second, the former
colonial powers who founded the human rights regime in 1945 could not
conceive of a genuine alternative to traditional international law. They were
too invested in the jurisprudence of European notions of state sovereignty and
“justiciable rights” to seriously consider any alternative framework that the rest
of world could share. The inherent liberal relativism of leading international/
human rights scholars of the time is clearly illustrated by Hersch Lauterpacht’s
17
The Paquete Habana case, 175 U.S. 677 (1900), at 686.
18
North Sea Continental Shelf Cases, 1969 I. C. J. Reports 3, 44.
authoritative 1945 book on the international bill of human rights. He focuses

his justification of human rights exclusively on Western scholars and ideas and
principles, ranging from Roman law and Medieval thought to the
Enlightenment and modern philosophy and scholars. He does not offer
references to any scholar or source from outside Europe or North America.19
The problem of recognition of new states and acknowledgment of their
competence and capacity as independent sovereign entities reflects the inher-
ently discretionary and tentative nature of international law on this subject.
On the one hand, other states have a profoundly strong yet ambiguous
concern in the ability of an emerging state to conduct its international
relations, honor all varieties of its treaty obligations, etc. On the other hand,
Western states created the present Eurocentric system and made themselves
the oldest members and “gatekeepers” for the admission of new members to
the club. At one end of the spectrum, the former colonial powers, the oldest,
economically and militarily best established, most experienced in inter-state
trade and geopolitics, used to be able to keep their control over the process
and its outcomes. At the other end of the spectrum the medium capacity
states, established by European settlers who aspired to lead former colonial
states in Africa and Asia while themselves being ruled by the former colonial
class, wanted to establish a treaty-based system for state recognition. The Latin
American “declaratory approach,” providing that a state achieves sovereignty
by declaring itself “sovereign,” was codified in the Montevideo (Uruguay)
Convention of 1933. The United States signed the Convention but did not
complete the ratification process. In contrast, west European states, including
all former colonial powers, kept the “constitutive view” of recognition by other
states as contributing to constituting the new state.
While each of the two approaches (constitutive and declaratory) has its pros
and cons, the difficulty lies in the inconclusive outcome of the process of
confirming sovereignty under international law. Since the choice of approach,
selection and verification of relevant facts, and evaluation of counterargu-
ments are all decided by the tribunal or arbitration panel agreed to by the state
in dispute and the common law principle of binding precedent does not
apply, it is not possible to predict even an approximate outcome of inter-
national disputes involving determination of sovereignty or its impact on
subsequent relations among relevant states. There is also the relevance of
the significant discretion exercised by the tribunal or panel of arbiters. The
operation of conflicting interests and demands among concerned states within
19
Lauterpacht, An International Bill of the Rights of Man, pp. 3–53.
the underlying paradox of self-declaration (significant examples range from

the United States of America in 1776 to Israel in 1948) versus recognition by
preexisting sovereign states.20
Similar strategies and outcomes can be seen in debates about the ranking of
categories of rights within the UN in the context of the Cold War. Creators of
the human rights regime gave civil and political rights precedence over
economic, social, and cultural rights.21 The UDHR allowed for several eco-
nomic, social, and cultural rights in Articles 22 to 26, but the liberal relativism
of Western powers relegated those rights to the weaker of these two
Covenants.22
Consequently, the human rights that are most relevant and urgently needed
by people of the Global South were relegated to an inferior status. This was
because, in the eyes of the human rights regime founders, economic and
social rights or collective right to development lacked the true quality of
liberal rights of being enforceable by a domestic court of law. As countries
in the Global South became sovereign independent states, they sought to
reject liberal values as definitive sources of universal human rights. Liberal
values are suited for societies that share those values, but cannot be imposed or
assumed to apply everywhere without regard to indigenous cultural values in
other parts of the world. relativism cannot motivate most people of the Global
South to struggle for the realization of liberal conceptions of rights. Western
states and their societies have so far denied the obvious conclusion that the
liberal notion of a right is not universal to most human communities. By
acknowledging this conclusion and acting accordingly, most societies around
the world can promote their local view of universality, separate from liberal
relativism. Here is a brief explanation and support for this view.
The Human Rights Commission of the UN initially proposed the adoption
of a single Bill of Rights for all human rights in the form of a single covenant,
but adherence of Western delegates to the liberal view of rights resulted in the
adoption of the approach of two separate covenants. The Covenant on Civil
and Political Rights uses stronger language in defining its set of rights as
immediate obligations of the state.23 Article 2.1 of this Covenant provides that:
“Each State Party to the present Covenant undertakes to respect and to ensure
20
The underlying paradox here is whether a state becomes sovereign by its own self-declaration
or through recognition by other preexisting sovereign states (Dunoff et al., International Law,
pp. 105–30; Janis, International Law, pp. 169–79).
21
McGoldrick, The Human Rights Committee, p. 11.
22
United Nations Commission on Human Rights, “Commission on Human Rights: Report to
the Economic and Social Council on the Seventh Session of the Commission,” pp. 57–85.
23
McGoldrick, The Human Rights Committee, p. 11.
to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as
race, colour, sex, . . .” In contrast, Article 2.1 of the Economic, Social, and
Cultural Covenant provides that: “Each State Party to the present Covenant
undertakes to take steps, individually and through international assistance and
co-operation, especially economic and technical, to the maximum of its
available resources, with a view to achieving progressively the full realization
of the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.”
I use the term “so-called” to describe each set of rights to protest the concept
and criteria of hierarchy of rights, whereby economic, social, and cultural
rights are as much human rights as any of the so-called civil and political
rights. The rights to healthcare and education, for instance, are as much
human rights as the rights to freedom of expression and freedom from torture.
Moreover, freedom of expression is severely diminished by a lack of education,
while the value of education rises in proportion to the importance of issues for
public debate. For instance, since the right to education is essential for the
sound practice of democratic self-governance, this means that the right to
education is foundational to all human rights and fundamental freedoms.
The main reason for dividing human rights as defined in the UDHR
between two Covenants is that economic, social, and cultural rights were
seen by delegations of Western states as outcomes of protecting civil and
political rights rather than as independent human rights. The liberal view
among Western state members of the UN, which dominated the drafting and
early development of the field of human rights, rejected the inclusion of
economic, social, and cultural rights in the exclusive membership of “true”
human rights. There are two aspects of liberal definition of civil and political
rights. The first aspect is that they are negative, requiring the state to refrain
from interfering with the right. In ideological and tactical terms, the dichot-
omy of rights was useful in the context of the Cold War to undermine the
alliance between Soviet and postcolonial states. As Ziauddin Sardar explained:
“If the discourse on human rights is confined to civil and political rights, it will
be much easier to put governments in the South [developing countries] on
trial for alleged violations of freedom of expression or freedom of assembly.”24
The second aspect of civil and political rights is that they are justiciable, i.e.,
they can be enforced by a court of law. Since economic, social, and cultural
rights are proactive in the sense of requiring the state to allocate resources for
24
Sardar, Postmodernism and the Other, p. 76.
health care and education, for instance, that is requiring the state to provide
the rights, as opposed to requiring the state to refrain from interfering with
enjoyment of the right by citizens and lawful residents. My main objection to
imposing a liberal definition of human rights is for the benefit of those who do
not share this view. Liberal relativism is not only defining rights for liberals,
but also blocking the right of other people to define human rights for
themselves. The common standard of human rights is that they are all
universal, meaning they are due every human being by virtue of his or her
humanity. Self-determination is at the core of the humanity of human beings,
whereby all persons can decide within their communities which view of
human rights they wish to accept and practice.
“If the discourse on human rights is confined to civil and political rights, it
will be much easier to put governments in the South [developing countries]
on trial for alleged violations of freedom of expression or freedom of assem-
bly.”25 It is further argued by Western societies that civil and political rights are
relatively inexpensive because these rights compel states to abstain from
infringing upon an individual’s integrity and freedom. Additionally, imple-
mentation of civil and political rights is made immediate due to its nature of
only addressing and regulating state behavior.
Since economic, social, and cultural rights consist of a positive obligation
on states to provide adequate welfare to their citizens, opposition to these
rights is often rooted in the argument that they require a greater or extensive
pool of resources to implement and achieve them. Furthermore, Western
values see “economic and social justice as a threat to free market values.”26
Western opposition to economic, social, and cultural rights is also fixated in
hypocrisy as seen in US human rights policies. For example, when the UDHR
was signed in 1948, “Jim Crow laws enforcing racial segregation were consti-
tutional in the United States,”27 despite the costs and other liabilities of
enforcing those laws.
It is a mistake to separate civil and political rights from economic, social,
and cultural rights because “there is an inextricable relationship between
socio-economic development, democracy, culture and human rights.”28 In
order to be effective and successfully implement economic, social, and cul-
tural rights, international human rights law must surpass Western models of
liberalism and Eurocentric ideals to address economic injustices and
25
Ibid., p. 76.
26
Mutua, Human Rights Standards, p. 60.
27
Sewpaul, “The West and the rest divide.”
28
Ibid.
The Supreme Hypocrisy of US Human Rights Policy 41
neocolonial efforts that are often disguised as humanitarian aid or enforce-

ment of human rights.
the supreme hypocrisy of us human rights policy

With all due respect, “supreme hypocrisy” is the only accurate description
I can honestly offer for the human rights policy of the United States. In
common ethical discourse, hypocrisy is behavior that is contrary to what is
claimed to be believed or felt, such as when a morally responsible agent (in
this case the United States) freely engages in certain conduct while condemn-
ing others for the same conduct. The negative implications for the human
rights paradigm are compounded when the United States cites the failure of
poor countries to protect human rights in their domestic practice as a reason
for penalizing them in their economic relations with the United States. Any
state may of course adopt whatever human rights policy it chooses, but such
inconsistencies in the United States’ foreign relations have serious negative
implications in the policy field in question. The accurate application of this
morally negative description to such a highly developed society and powerful
state diminishes the moral standing and political weight of the human rights
paradigm. In other words, since the United States aggressively promotes itself
as the primary founder and champion of human rights on a global scale, its
failure to live up to such claims will lead others to conclude that the problem
is with human rights policies, instead of seeing the problem as a consequence
of the United States’ hypocrisy.
The main elements used by the United States to characterize its human
rights policy – as commonly described by all levels of officialdom, media,
practitioners, advocates, and other public policy leaders of this supreme
hypocrisy – include the following:
(1) assertions that the United States has been the primary founding authority
on modern human rights since the Second World War;
(2) a tenacious determination to participate most vigorously in every negoti-
ation for the drafting of international human rights treaties when it is
widely known that the United States Congress will either refuse to ratify
any multilateral human rights treaty or request so many reservations,
declarations, and “understandings” on the language that the few treaties
the country does ratify are effectively emptied of all meaningful content;
(3) constant assertions that upholding and protecting universal standards of
human rights are one of the primary motivations of the United States’
foreign policy.
I will now highlight some of the features and consequences of the United
States’ human rights policy and its drastic consequences for the global integ-
rity and viability of the universality of human rights. I will first begin with a
brief review of relevant provisions of the 1969 Vienna Convention on the Law
of Treaties, which is a codification of traditional principles of customary
international law and other sources. For example, the full text of Article
19 of the Vienna Convention on the Law of Treaties provides that:
A State may, when signing, ratifying, accepting, approving or acceding to a
treaty, formulate a reservation unless:
(1) the reservation is prohibited by the treaty;
(2) the treaty provides that only specified reservations, which do not include
the reservation in question, may be made; or
(3) in cases not falling under subparagraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.29
By permitting reservations “unless,” Article 19 is listing only three exceptions

to, or limitations on, the permissibility of reservations.
Article 27 on Internal law and observance of treaties provides that a party
may not invoke the provisions of its internal law as justification for its failure to
perform a treaty. This rule is without prejudice to Article 46.30
According to Article II, section 2 of the United States Constitution, the
president “shall have Power, by and with the Advice and Consent of the
Senate, to make treaties, provided two-thirds of the Senators present concur.”
If two-thirds of the Senate approve a treaty submitted by the President for
ratification, then the final assent on the text of the treaty will still be subject to
reservations imposed by the Senate.
The next several pages of this section of text is a direct quotation from the
official statement of the US government at its “ratification” of the Torture
Convention. I am quoting the exact text of the US reservations, etc., on the
Torture Convention because it is absolutely incredible that the government
that produced this also claims global leadership in the protection of human
rights through its moral grandstanding and constant and massive propaganda
of self-promotion. I am engaging in this unusual degree of direct quotation to
avoid the risk of my evidence or analysis being dismissed as gross
29
Vienna Convention on the Law of Treaties 1969, Art. 19.
30
Article 46 of the Vienna Convention on the Law of Treaties, 1969, regarding detailed rules of
concluding treaties. The point for our purposes here is that since general principles of
international law of treaties apply, it may be necessary to make specific exceptions and
limitations to the provisions of the law of treaties.
misrepresentation or exaggerated assertions. What I am directly quoting here

is the exact official text of the reservations, understandings, etc., asserted by the
US government in ratifying the Torture Convention, especially the scope and
magnitude of reservations and other means of precluding accountability by
the USA. Since I have called this section “The Supreme Hypocrisy of US
Human Rights Policy,” I am relying on direct quotations and minimal analysis
to avoid the risk of error or exaggeration.
I. The Senate’s advice and consent is subject to the following
reservations:
(1) That the United States considers itself bound by the obligation
under Article 16 to prevent “cruel, inhuman or degrading treat-
ment or punishment,” only insofar as the term “cruel, inhuman
or degrading treatment or punishment” means the cruel, unusual,
and inhumane treatment or punishment prohibited by the Fifth,
Eighth, and/or Fourteenth Amendments to the Constitution of the
United States.
(2) That pursuant to Article 30(2) the United States declares that it
does not consider itself bound by Article 30(1), but reserves the
right specifically to agree to follow this or any other procedure for
arbitration in a particular case.
II. The Senate’s advice and consent is subject to the following under-
standings, which shall apply to the obligations of the United States
under this Convention:
(1) (a) That with reference to Article 1, the United States understands
that, in order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering
and that mental pain or suffering refers to prolonged mental
harm caused by or resulting from: (1) the intentional infliction
or threatened infliction of severe physical pain or suffering; (2)
the administration or application, or threatened administration
or application, of mind altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
(3) the threat of imminent death; or (4) the threat that another
person will imminently be subjected to death, severe physical
pain or suffering, or the administration or application of mind
altering substances or other procedures calculated to disrupt
profoundly the senses or personality.
(b) That the United States understands that the definition of
torture in Article 1 is intended to apply only to acts directed
against persons in the offender’s custody or physical control.
(c) That with reference to Article 1 of the Convention, the United
States understands that “sanctions” includes judicially imposed
sanctions and other enforcement actions authorized by United

States law or by judicial interpretation of such law.
Nonetheless, the United States understands that a State Party
could not through its domestic sanctions defeat the object and
purpose of the Convention to prohibit torture.
(d) That with reference to Article 1 of the Convention, the United
States understands that the term “acquiescence” requires that
the public official, prior to the activity constituting torture,
have awareness of such activity and thereafter breach his legal
responsibility to intervene to prevent such activity.
(e) That with reference to Article 1 of the Convention, the United
States understands that noncompliance with applicable legal
procedural standards does not per se constitute torture.
(2) That the United States understands the phrase, “where there are
substantial grounds for believing that he would be in danger of
being subjected to torture,” as used in Article 3 of the Convention,
to mean “if it is more likely than not that he would be tortured.”
(3) That it is the understanding of the United States that Article
14 requires a State Party to provide a private right of action for
damages only for acts of torture committed in territory under the
jurisdiction of that State Party.
(4) That the United States understands that international law does not
prohibit the death penalty, and does not consider this Convention
to restrict or prohibit the United States from applying the death
penalty consistent with the Fifth, Eighth and/or Fourteenth
Amendments to the Constitution of the United States, including
any constitutional period of confinement prior to the imposition of
the death penalty.
(5) That the United States understands that this Convention shall be
implemented by the United States Government to the extent that
it exercises legislative and judicial jurisdiction over the matters
covered by the Convention and otherwise by the state and local
governments. Accordingly, in implementing Articles 10–14 and 16,
the United States Government shall take measures appropriate to
the Federal system to the end that the competent authorities of the
constituent units of the United States of America may take appro-
priate measures for the fulfillment of the Convention.
III. The Senate’s advice and consent is subject to the following
declarations:
(1) That the United States declares that the provisions of Articles
1 through 16 of the Convention are not self-executing (i.e. cannot
be applied by American courts without specific legislation incorp-
orating the treaty into Federal American law.)
(2) That the United States declares, pursuant to Article 21, paragraph 1,
of the Convention, that it recognizes the competence of the
Committee against Torture to receive and consider communica-
tions to the effect that a State Party claims that another State Party
is not fulfilling its obligations under the Convention. It is the
understanding of the United States that, pursuant to the above-
mentioned article, such communications shall be accepted and
processed only if they come from a State Party which has made a
similar declaration.
IV. The Senate’s advice and consent is subject to the following proviso,
which shall not be included in the instrument of ratification to be
deposited by the President:
The President of the United States shall not deposit the instru-
ment of ratification until such time as he has notified all present
and prospective ratifying parties to this Convention that nothing in
this Convention requires or authorizes legislation, or other action,
by the United States of America prohibited by the Constitution of
the United States as interpreted by the United States.31
**************************
To conclude this strong condemnation of US human rights policy, and to
avoid misunderstanding, I am NOT asserting that the United States has no
respect for its obligations under international law in general. Instead, I am
asserting that there is a fundamental moral and political failure in the US
position on international human rights treaties. Of course, current inter-
national law entitles every state to freely participate or totally abstain from
ratifying any human rights or other type of treaty. The United States is also
freely entitled to refuse to ratify any human rights treaty, but it cannot pretend
to subscribe to the human rights core values. It is not enough to condemn the
supreme hypocrisy of US human rights policy, while still enabling the country
to escape accountability for manipulating the human rights paradigm to
advance its own foreign policy interests. Such global failure of accountability
on both sides indicates the low significance given human rights values by
various states in their international relations.
31
“U.S. reservations, declarations, and understandings, Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment,” Congressional Record, October
27, 1990.
from magnificent promise to inevitable failure

In this section I will briefly highlight the magnificent promises of two major
human rights treaties in order to show how the failure of those promises was
inevitable because of the inherent inability of international law to protect the
rights of human beings who are victim to violations of those rights. At a basic
level, the language and concepts of the law of treaties are intended to
determine the rights and obligations of states, instead of those of individual
human beings who are subject to the jurisdiction of those states. Such failure
is inevitable because treaties are agreements or contracts between states,
whereby states are supposed to fulfill their obligations through the exercise
of their sovereignty and free volition, though in the realities of differential
power relations among states. The assumptions of sovereignty and free volition
should include the obligation of states to protect persons who are subject to
their jurisdiction according to their treaty obligations. The law of treaties is
part of the fundamental structure of principles of responsibility to respect the
rights of other states and their subjects, and vice versa, under traditional
international law.
The assumption of international law in general is that such exchange of
rights and responsibilities among states will somehow result in the protection
of all persons who are subject to the jurisdiction of all states concerned.
Unfortunately, the fatal defect of this assumption of equal sovereignty and
motivation to cooperate is that it requires enforcement by an independent
personnel in a credible process, yet the concept, content, and context of
international law itself is designed to avoid having to hold any state bound
by a determination or ruling without the consent of the state in question.
Mediation or adjudication among states is always caught in the paradox of
assumption of equal sovereignty, on the one hand, and the reality of differen-
tial power relations in a minefield of alliances and complex history of conflict,
on the other. The only entity against which a state is free to exercise its
sovereignty without worrying about serious consequences is its own popula-
tion, individual or communal. The assumption is that the victim’s state always
has the discretion – not the obligation – to assert the rights of its citizen against
the transgressor state, subject to pragmatic considerations about the costs and
benefits of confronting the other state in question, whether friend or foe.
This fundamental principle of international law may be easier to compre-
hend when seen, for instance, as a matter of international trade, defense,
boundaries, or rights to offshore oil rather than the human rights of the
citizens and lawful residents of a state. A core problem of human rights law
is that states have no incentive to seek application or act on behalf of citizens
From Magnificent Promise to Inevitable Failure 47
whose rights have been violated by states. Take, for example, a scenario in
which state X received credible information that officials of state Y tortured V,
who is a citizen of state X. In such a case, which is not uncommon, state
X may opt not to pursue the issue with state Y because there is no pressure on
state X from powerful political or strategic interests. State X might also refrain
from acting on behalf of citizen V against state Y out of concern that to do so
could jeopardize its economic or security interests with state Y, or be counter-
productive for V’s community who live in state X.
The language of human rights treaties requires “protection” of the human
subject. In practice, no mechanism of protection exists that can prevent a
person or community from being harmed. Moreover, the proponent of
remedy or redress for violation of liberal rights must wait until the harm
occurs. This response often appears in a piecemeal, disjointed manner.
From the start, the concept and norms of international human rights in the
UN and regional systems were incapable of legal enforcement. This was due
to the state’s inability to coercively prevent human rights violations against its
human subjects. The paradox here is that if human rights are protected
(prevented from occurring) by the territorial (nation) state, then a state simply
needs to enforce the civil and criminal law of its jurisdiction. This enforce-
ment occurs regardless of the existence of so-called human rights treaties or
whether the state has ratified or incorporated those treaties into its domestic
law. If the rights are protected by the intervention of other states, then this
enforcement mechanism constitutes a violation of the sovereignty and terri-
torial integrity of the state where the harm occurred.
The claim that the cause of human rights around the world will be
promoted and effectuated if humanity can rise to the challenge of protecting
a uniform set of human rights is not true of any part of the world, including
Europe and North America. Unfortunately, this is unlikely because the costs
will probably be too high even for the most developed states of western Europe
and North America. A more serious objection to this claim is that its applica-
tion, if possible, will reduce the distinctive feature of universality of human
rights as the entitlement of every human being by virtue of his or her
humanity and without distinction. The population of each region prefers
protections for those rights which they accept as human rights due to philo-
sophical, religious, sociological, political, or other justifications. Moreover,
there is no significance to evaluating compliance with what people in any
region accept as human rights according to the UDHR or any other so-called
international standard. Instead, it is what people in their communities hold as
humane or civilized that matters, and not what any other region or organiza-
tion upholds as the standard of judgment or evaluation. Expectation of
universality as uniformity is degrading to human persons and communities

that are held to this combination of standards, even when the claim is made by
members of the community in question.
The present human rights system also assumes the cooperation of privileged
native elites who control states, inter-governmental institutions, and civil
society organizations. These individuals define and implement the inter-
national human rights system on their terms. They can also evade responsi-
bility for violating, or enabling others to violate, human rights. This authority
indicates that the drafting and practice of the human rights system is much
more complex and politically charged than one would imagine. The present
system of self-reporting by states only exposes the propaganda of governments,
international institutions, and transnational organizations. These publications
also reveal how deceptive and manipulative the use of the term “human
rights” is in daily practice. Ultimately, the current global and regional human
rights systems were neither established by, nor do they continue to be imple-
mented by, neutral professionals who were, then or now, capable of working
with complete neutrality or impartiality in defining or implementing universal
human rights norms equally and fairly to all human beings.
Hopgood’s vision for an alternative to the global human rights regime is that
because religious, nationalist, ethnic, and family structures are located much
closer to people and integrated within their everyday needs and identities,
such structures may be better able to create “sustainable reciprocity-based and
socially reinforced norms that reduce suffering, even if they fail to deliver on
the promise of global liberal norms.”32 He advocates a “syncretic, political,
ground-up process of mobilization.” He acknowledges that such a process may
not prevent mass atrocities, but he points out that the global human rights
paradigm has failed in that endeavor as well. When he explains the issues in
such terms, I find my position closer to his than when both of our positions are
colonized by liberal relativism.
32
Ibid., p. 21.
3
The Deadly Mirage of “Humanitarian Intervention”
As illustrated by the case briefly discussed in Chapter 2 (see “The Supreme

Hypocrisy of US Human Rights Policy”), the United States gets away with
minimal ratification of human rights treaties while claiming global leadership
of the entire field. The United States of America also imposes extensive
reservations and other limitations on the scope of the few treaties it cares to
ratify. Yet, the massive propaganda at all diplomatic, civil, cultural, and
academic levels, as well as in official and political circles in the United
States, makes it difficult for readers to recall that this apparent American
compliance with domestic civil rights does not equal conformity with inter-
national human rights norms.
The confidence trick of the twentieth century is that Western promotion of
its own domestic civil rights as universal human rights hides the real problem
and evades the sustainable solution. The problem is not only paying lip service
and engaging in chauvinistic rhetoric to misrepresent universal human rights
as national achievement of former colonial states. Conceding such fabrication
facilitates and entrenches continued colonial hegemony to impose relativist
liberal values in the name of the “civilizing mission” of Western colonial
societies on the rest of humanity. The only possible remedy is rejecting the
fraudulent Western pretense of original authorship of the concept and content
of universal human rights and striving to promote genuinely overlapping
consensus in the entire field. This can be done, I argue, by practicing the
combination of internal discourse and cross-cultural dialogue to promote
grassroots bottom-up consensus on pragmatic sustainable solutions.1
1
An-Naim (ed.), Human Rights in Cross-Cultural Perspectives; An-Naim, Human Rights under
African Constitutions. I describe the process in this book as “cultural transformation and
political mobilization.”
49
50 The Deadly Mirage of “Humanitarian Intervention”
The purpose of this chapter is to challenge the legality and legitimacy of so-
called humanitarian intervention,2 and its effectiveness in protecting human
rights. For the objectives of this book in particular, I am also concerned with the
implications of humanitarian intervention for the foundational collective rights
to self-determination and peaceful international relations. Individuals are the
intuitive subjects of human rights because they experience the pain and suffering
of violations of their rights enough to seek redress or remedy. Individuals also
struggle for and appreciate and seek redress for suffering of communities. It is
therefore grossly misguided arrogance to claim the liberal capitalist authority to
strike categorical dichotomy among different rights in order to deny human rights
standing for so-called economic, social, and cultural rights.
Every military intervention (hereinafter called “intervention” regardless of
how it is described by its authors), is a deadly mirage because it kills its
pretended beneficiaries without bringing them any benefit. As demonstrated
by the invasion and occupation of Iraq by the United States and its allies
between March 20, 2003 and December 18, 2011 – which represents everything
wrong with intervention and every harm it is bound to bring to local popula-
tions – colonial occupation continues to be practiced by major powers with a
sense of entitlement and without any accountability. The discourse of inter-
vention is a deadly mirage because it washes away everything that might be
useful for restoring the structure of the house or the resources for communal
experiences of the home. Interveners are neither legitimate enough for their
explanations of their actions to be trusted, nor sufficiently informed about the
history and context of the situations into which they inject themselves, or
compassionate enough to work together with local populations in restoring
political, economic, and security stability. Interveners rush to war in the name
of enforcing accountability for human rights violations, without knowing the
legal system, criminal justice process, speaking the language, or understanding
the culture of the country. The United States has done this so many times in
many parts of the world that US leaders have taken it for granted that they are
entitled to “police the world” at their own discretion and without any account-
ability. As David Chandler explains:
As we have seen in the Middle East, Africa, the Balkans and Afghanistan, the
development of new international jurisdictions has heralded a return to the
2
Both frameworks of legality from an International Law perspective, and legitimacy in globally
inclusive moral and political terms, are important for the subject of this chapter. Since I am
challenging both the legality and legitimacy of claims that military intervention is
humanitarian, I will use the term “so-called” from time to time to remind readers that I am not
conceding this patronizing imperial claim.
Colonial, Neocolonial View of War and Humanitarianism 51
system of open Great Power domination over states which are too weak to
prevent external claims against them . . . What is different in the twenty-first
century is that this open domination is not legitimized by a conservative elite,
on the basis of racial superiority and an imperial mission, but by a liberal
elite, on the basis of ethical superiority and a human rights mission.3
What is more problematic is that the United States does get away with being at
war, often in the name of protecting human rights, but with little regard to the
legality of the wars it is fighting or threatening to fight.4
Despite its excessive arbitrariness and counterproductive nature, the possi-
bility of intervention is constantly evoked as the only means of effectively
responding to massive violence and systematic human rights violations.
I therefore find it necessary to confront such naïve wishful thinking to expose
its illusion in order to persuade policy makers and public opinion leaders to
preempt its fallacy. Governments and inter-governmental organizations
should expose this myth and prepare for systemic action by international
and regional organizations, instead of being paralyzed into surrendering the
initiative to individual states who are bound to have their own selfish interests.
It is also necessary to understand and discredit the exaggerated qualities of
alternative resolutions that fail to acknowledge the integral role of protection
of human rights in any everyday life. Even when it is not mentioned by name,
policy makers and opinion leaders clearly assume that military power under
the cover of humanitarianism should be accepted as a legitimate way of
keeping the peace and ending protracted violent conflict that is “getting out
of hand.”
colonial and neocolonial view of war

and humanitarianism
Instead of a detailed theoretical discussion of the definition of “humanitarian
intervention,” it may be more useful to take a more applied definition of the
term in relation to some concrete examples in geopolitical context. In view of
3
Chandler, “International law and the challenge of human rights,” p. 155.
4
According to data from the Costs of War project by the Watson Institute for International and
Public Affairs at Brown University (available at https://watson.brown.edu/costsofwar/), as of
November 2019 military actions in Afghanistan, Iraq, Pakistan, the Philippines, Somalia, and
Yemen in which the United States and its allies are involved had resulted in over 335,000
civilian deaths and 37 million war refugees and displaced persons. Since September 11, 2001,
the US government has spent over US $6.4 trillion in its war on terror and is conducting
counterterrorism activities in eighty-five countries. These wars have also resulted in massive
violations of human rights and civil liberties both in the United States and abroad.
my fundamental focus on the concept, content, and context of decolonization

and humanitarian intervention, I will review the applied definition of these
terms by Gary J. Bass, who in his book Freedom’s Battle: The Origins of
Humanitarian Intervention defines “humanitarian intervention” as military
intervention based on the “principle that troops should sometimes be sent to
prevent the slaughter of innocent foreigners.”5 His primary focus is on tracing
this principle through history rather than on providing a framework for
international tribunals to use. He hints towards a pragmatic framework in
reflecting on lessons that can be learned from nineteenth-century humanitar-
ian interventions.6 Nineteenth-century diplomats voluntarily limited the size
and duration of their humanitarian missions. They relied on specific treaties
to delineate what could be called spheres of humanitarian interest.7
Bass argues that the most effective approach is a combination of multilateral
authorization and unilateral initiative, and illustrates his analysis by the actions
of the European powers in Syria in the 1860s. The state that brought the
initiative – France – was treated with skepticism by the other European powers
and had to accept strict constraints about the structure of the mission and
promise not to seek advantages for itself. Bass grounds the principle of
humanitarian intervention in historical tradition and customary international
law. “One of the most important tactics for delineating the limits of sover-
eignty was the creation of treaties specifying exactly which countries were
allowed to intervene in which other countries, and under which circum-
stances,” Bass writes. “The most famous one was the Treaty of Kutchuk-
Kainardji, which allowed Russia to protect Orthodox Christians under
Ottoman rule . . . that Russia had the right to send troops on behalf of
Ottoman Christians.”8 Treaties also played the important role of clarifying
which country ought to be sending troops to intervene. The intervention of
the French in Syria and of Russia in Greece rested on specific treaties.9 Bass
argues that some states have a moral duty to intervene in humanitarian ways.
Bass seems to believe that states should share the responsibility of interven-
tion. “Middleweight powers could take the lead in policing their own
regions,” he writes, citing the examples of Australia in East Timor and
5
Bass, Freedom’s Battle, p. 3.
6
See, for example, ibid., p. 364.
7
Kinzer. Overthrow; Choi and James, “Why Does the United States Intervene Abroad?,”
pp. 899–926. See also Congressional Research Service Report RS21405, “U.S. Periods of War
and Dates of Recent Conflicts” for a timeline of all US military interventions.
8
Bass, Freedom’s Battle, p. 9. The Treaty of Kuchuk-Kainarji was a peace treaty signed on 21 July
1774, in Kaynardzha, Bulgaria between the Russian Empire and the Ottoman Empire.
9
Ibid., p. 360.
European countries in Bosnia. What the world needs today, according to Bass,
“is not a universal right to wage humanitarian intervention, but paraphrasing
Che Guevara: one, two, three, many Treaties of Kutchuk-Kainardji.”10 Bass is
sympathetic to the view that intervention is a right. However, he also tempers
this view with caution, an emphasis on self-restraint, and a recognition of the
“terrifying unintended consequences” that may follow an intervention. Bass
writes that interventions “should only be contemplated in the worst human
rights emergencies . . . Foreign societies are enormously complex, and reshap-
ing them must always be an awful last resort.”11 This last sentence is probably
intended to balance Bass’s precolonial views, but it is so grossly out of propor-
tion that it will probably have the opposite effect, promoting imperial hegem-
ony and colonial exploitation in addition to drastic region-wide destabilization
as happened with Iraq and Syria.
If any state has a right to intervene in another state to protect human rights,
how can other states prevent this claim from being abused when it is used to
advance the interest of interfering states? The abuse of such claims is the most
frequent pretext for imperial ambitions, while other states may not realize the
danger until it is too late when the intervening state has already invaded and
taken control of the territory it desires. Recent examples of this include Russia
in Georgia in 2008 and the Crimean Peninsula in 2014, probably in response
to the US invasion of Iraq in 2003.
When France intervened in Syria in the 1860s to protect the Syrian
Christians against the Druzes, France was not acting against its own strategic
interest. France had obvious imperial aspirations in the Middle East.
Especially from the perspective of Britain and the Ottoman Empire, the
specter of a new French crusade loomed as a background worry.12 To counter
these fears, the five European powers and the Ottoman Empire signed a
protocol to send troops to Syria, plus an additional protocol renouncing any
self-interested motives. “The Contracting Powers do not intend to seek for and
will not seek for, in the execution of their engagements, any territorial
advantages, any exclusive influence, or any concession with regard to the
commerce of their subjects,” the agreement read.13 Under the agreement,
the European troops’ occupation of Syria would be limited to a period of six
months – enough “to attain the object of pacification.”14
10
Ibid., p. 361.
11
Ibid., p. 359.
12
Ibid., p. 157.
13
Ibid., p. 189.
14
Ibid., p. 188.
Although Bass is primarily trying to defend humanitarian intervention against its

critics, he acknowledges that self-interest almost always plays a role in international
politics. For example, when Russia unilaterally invaded the Ottoman Empire in
reaction to the atrocities committed against the Bulgarians, it did so against the
backdrop of a powerful Pan-Slavist movement. Pan-Slavism, according to Bass,
became a way of justifying expansion against the Ottoman and Austro-Hungarian
Empires, in territory where there were plenty of Slavs to liberate.15
Besides praising the example of the French intervention in Syria in the
1860s (which involved multilateral decision-making about the scope and
duration of the intervention), Bass does not provide answers to these questions
in Freedom’s Battle. Bass recognizes that issues regarding the scope and
duration of a humanitarian intervention are some of the most difficult issues
involved, with few clear answers and many potentially disastrous unintended
consequences.16
Bass briefly discusses the issue of mission creep. The British statesman John
Russell pondered this thorny issue: “What limit, either of numbers or of time,
could be placed to such an occupation? It would soon degenerate into a
transfer of the local Government of Syria to the Five Powers . . .”17 Bass argues
that the practice of humanitarian intervention must be “suspiciously watched”
by non-intervening countries, to prevent humanitarian military intervention
from blurring into imperialist occupation. However, Bass does not get much
more specific than this about political or legal mechanisms for monitoring
and enforcement.
Bass weaves a historical narrative to support the argument that limited
intervention is the most moral response to human rights emergencies.18 His
book is driven by the question: why do nations sometimes rally to stop evil in
foreign countries, and how can they do so more effectively? Unfortunately, his
analysis already assumes that military power of Western colonial nations is
essential for combating evil and fails to consider the possibility of alternative
strategies for collective and institutional mediation of violent conflict. Bass
argues that we must leave room for moral action in international politics and
international political theory. My question is: who is the “we” who decides to
“leave room” for what? Will this be a globally mutual exchange, or will the
“moral action” continue to flow from the Global North to the Global South?
It is misleading to speak of this as if it is a geopolitically neutral process
15
Ibid., p. 264.
16
Ibid., pp. 11–24.
17
Ibid., p. 214.
18
Ibid., pp. 213–32.
because that is impossible in the realities of power relations. Based on such

concerns, I am making the counterargument that human actors should never
be left to decide on the morality of their own actions when these involve
military force and affect the well-being of others.
Bass supports his claims that states are sometimes genuinely driven by moral
impulses by documenting three examples of this type of intervention:
1. In the Battle of Navarino in 1827 during the Greek War of
Independence, Britain went against its own realpolitik interests, includ-
ing the core security concern of checking Russian expansionism, in the
name of humanity.19
2. The French intervention to protect Syrian Christians from the Druses
after a series of horrific massacres in the 1860s – Bass concedes that
France in that situation was not acting against its own strategic
interest.20
3. Britain’s abstention from intervening in the “Bulgarian Horrors,” in the
broader context of the Pan-Slavist uprising against Ottoman rule.21
My critique of Bass’s defense of intervention includes the weakness of his
framework for accountability. For instance, Bass argues that the 1860s inter-
vention in Syria reflected a combination of West European multilateral
authorization and unilateral initiative by France, which was treated with
skepticism by the other European powers. The would-be rescuer government
had to accept strict constraints about the structure of the mission and promise
not to seek advantages for itself. Remaining questions for me include: What
was the basis of authorization by West European powers? What were the
consequences of skepticism about French actions? And who monitored
France’s compliance with the purportedly strict constraints or consequences
of their violations?
My additional questions to highlight the inherent ambiguity and lack of
accountability for the reckless outcomes of the intervention include: Is inter-
vention a right or duty, and is that for some or all states? If intervention is a
right, how can other states prevent the abuse of the claim by an intervening
state which is seeking to serve its own self-interest? Bass also has little or
nothing to say on a series of consequent questions: for instance:
19
Ibid., pp. 139–50.
20
Ibid., pp. 175–81, 184–232.
21
Ibid., pp. 242–47, 256–65, 269–96.
(1) If intervention is a duty, is it fair and realistic to expect intervening states to

accept the human and material costs of intervention?
(2) Who decides such questions and by which criteria?
(3) Should the intervening state or group of states unilaterally decide the
scope and duration of intervention, and should that be defined by a
designated time frame (in months or years?) or by achievement of the
intervention’s declared objectives (e.g., ending human rights violations)?
(4) How can a time frame be determined or objectives be verified?
(5) Should all other states and international organizations accept whatever
time frame or objectives are claimed by the intervening state or group of
states?
The two most important points to emphasize for my purpose in the preced-
ing review of recent scholarship are the following: First, I remain fully
committed to globally inclusive universality of human rights and opposed to
the global projection of liberal relativism masquerading as universality of
human rights. Second, I am critical of the inability of the present state-
centric legal enforcement model to deliver effective and sustainable protec-
tion of human rights. However, instead of proposing any structural changes in
the present international system, I am calling for shifting the way it is supposed
to work to focus on a people-centered approach of cultural transformation and
political mobilization to promote grassroots commitment to human rights
values and sustain the political will for implementation and practice. In other
words, I am not proposing any structural changes in the present national and
international human rights systems, but only a different approach to human
rights policy from a Global South perspective. I will now review a few recent
publications in relation to my critique of the projection of liberal relativism
through the present state-centric enforcement model.
The thesis that persuasion is the only way to achieve the valid and sustain-
able protection of any value or norm as a human right may seem counter-
intuitive, yet it is in fact so true that there is no alternative to it if we mean
human rights in the inherent nature and rationale of the concept. The
dominance of former colonial powers at the UN during the establishment of
the human rights system in 1945–1948 molded the process of protecting
human rights in the same, state-centric model of international law that they
used to justify their colonial conquest of the rest of the world. Since states are
the only subjects of international law who have competence to assume and
discharge legal obligations, the logic goes, then human rights obligations must
be undertaken and discharged by states through the international law of
treaties.
In my view, the present state-centric international system and its corollary,

“naming and shaming” strategies by NGOs from the Global North, in the
name of protecting human rights is totally futile and counterproductive, if by
“human rights” we truly mean human rights of all human beings, as defined
and implemented by people for themselves, everywhere. The neocolonial
“emperor” of human rights, despite its users’ belief in their own good inten-
tions, has in fact failed to protect these rights. The fallacy of the colonial
nation-state has persisted for so long because the self-appointed elite actors
who have appropriated the task of protecting human rights tended to assume
the efficacy and success of their strategies on their own terms, regardless of the
requirements of a truly universal view of human rights beyond their relativistic
liberal world view.
I will argue that liberal relativism is not only limited to a narrow, state-
centric legalistic view of human rights, but also fails to acknowledge the need
for structural economic and geopolitical changes if a truly inclusive view of
the universality of human rights is applied in the postcolonial world. In fact,
liberal relativism insists on such a narrow view of human rights to avoid having
to acknowledge the need for those changes. This fatal flaw of the present
treaty-based state-centric system is that the compliance of states with their
obligations under human rights treaties is supposed to be achieved through
pressure by other states party to the same treaties, usually through inter-
governmental bodies like the Human Rights Council of the UN or regional
organizations like the Council of Europe, the Organization of American
States, or the African Union. Aside from the lack of verifiable evidence of
success of this means of inducing compliance, the realistic dynamics of power
relations always works in favor of the more developed former colonial powers
and against underdeveloped postcolonial states.
The point here is not that postcolonial states in the Global South are
innocent of human rights violations, because they have obviously been impli-
cated in the most horrendous systemic violations for decades. Instead, my
argument is that the present international human rights regime is deliberately
designed to enable former colonial states, which continue to be economically
and politically dominant, to avoid their greater responsibility for creating and
sustaining the underlying conditions and structural causes for systemic human
rights violations. Colonial powers, which continued to dominate international
relations throughout the formative stages of the current human rights system,
have colonized the emerging human rights regime by founding it in exclu-
sively liberal terms that legitimized their own dominance over the system. In
particular, the founding colonial powers limited the criteria of entitlements
and remedy to individual persons. Only individual persons can have negative
justiciable civil and political rights that require states to passively refrain from
violating rights without also having to affirmatively act to provide for eco-
nomic, social, and cultural rights.
This colonial logic, which continues to undermine the human rights
system to the present time, ensures the continuity of the status quo in
economic and social relations within former colonized societies. The same
colonial logic also perpetuates and justifies economic and political depend-
ency of poor, formerly colonized countries on former colonial powers. Since
they limit human rights to what they already do in their own contexts, liberal
societies have by definition installed themselves as the intrinsic protectors of
these rights and relegated the rest of the world to the permanent “self-evident”
position of inherent violators. Moreover, the purported usefulness of inter-
national pressure to protect human rights perpetuates and obscures the much
more broadly dehumanizing realities of neocolonial dependency that keep
postcolonial states vulnerable to pressure by former colonial powers. This
irony of the continued “civilizing mission” of colonial powers under the guise
of protecting human rights is what I mean by “decolonizing human rights” in
the title of this book.
I am not suggesting that the state-centric system is unnecessary or dispens-
able. It continues to perform vitally important functions such as keeping peace
and security within and among states, organizing public services in health and
education, developing economies, regulating commerce, and conducting
international relations. State-centric systems are also essential for the protec-
tion of the constitutional and legal rights of citizens and lawful residents under
domestic jurisdictions.
While these fields overlap with some human rights norms, and can have
human rights implications, the state-centric system is, by definition, particular
to persons who are subject to the territorial jurisdiction of each state. As such,
it is inherently inconsistent with the idea of the universality of human rights,
which cannot be limited in that way. Yet, the state-centric view is so much
taken for granted as the only viable basis for the present vast and expansive
apparatus of global (United Nations) and regional (European, Inter-American,
and African) human rights systems, that it seems futile to challenge the present
regime. Despite the perceived difficulty of the task, and recalling how domin-
ant concepts and institutions have been challenged and replaced in human
history, I will argue that the fallacy of the present state-centric regime must be
exposed and replaced if the idea of universal human rights itself is to survive.
Common human experiences testify to the seductive power of uncritical
habitual thinking and holding on to what we are told is true, especially when it
seems to help us evade individual personal responsibility for our beliefs,
Current Legal Framework of War 59
actions, and omissions. Human experiences also confirm realistic possibilities

of challenging and replacing apparently incontrovertible social and political
principles or doctrines. This is true of such deeply entrenched social and
economic institutions like slavery, patriarchy, class hierarchies, and authori-
tarian and exclusive political systems.
It is true that shades and remnants of such injustices still remain in all
human societies, but none of them is as dominant or “taken for granted” as it
used to be. The fallacy of uncritical habitual thinking that I am seeking to
challenge is the notion that human rights are what states say they are in
international treaties or domestic legislation, and that these rights can only
be protected through enforcement by the state. The current dominance of this
state-centric view can be seen, for example, in the established doctrine that
causing harm or injury is a private crime or civil wrong and cannot be
classified as a violation of human rights unless it is attributed to the action
or omission of state officials. When accepted as a violation, such harm or
wrong cannot be redressed without the action of the state within whose
jurisdiction the violation occurred. In other words, only states can commit
violations of the human rights, and only states themselves can redress such
violations committed by the state.
current legal framework of war

I challenge and repudiate claims of humanitarian intervention not only
because of the inevitable failure of military intervention to achieve any
protection of human rights, but also call intervention a deadly mirage because
it is incapable of delivering what it promises, whether by preempting interven-
tion or redressing its consequences. Cautioning against this negative combin-
ation is one of the main purposes of this chapter by exposing the false appeal of
the myth of humanitarian intervention, which hampers the development of
more effective strategies to combat the need for intervention in the first place.
The false promise of humanitarian intervention not only fails to defend
vulnerable communities, but also distracts from the urgent task of developing
an effective defense or remedy against all human rights violations.
By “deadly mirage” in this context I mean the dangerous illusion of relying
on the possibility of military intervention as an alleged last resort for protecting
human rights. To clarify and support this aspect of my analysis, I propose to
focus on the vague and arbitrary notion of “humanitarian intervention,” which
is commonly invoked or imagined as the ultimate resort for combating
massive and systemic violations. The illusion of this mirage is even more
damaging for the protection of human rights because of the unwarranted
assumption of availability of so-called humanitarian intervention. It is

extremely difficult to predict the incidence and terms of humanitarian inter-
vention because of the multitude of actors and factors. It is also extremely
difficult to predict the scope and duration of intervention, and the mixture of
motives and objectives. In my view, such hypothetical thinking is encouraged
by former colonial powers to reassure vulnerable communities under their
influence that “the international community” will move to protect all “uni-
versal” human rights by any means necessary, including deployment of mili-
tary force when all other strategies fail.
Being the global powers who can decide to intervene or abstain at their own
complete discretion because they have the resources to support their choice,
global powers frame the issue in contingent terms that leave them in control of
the situation at large. In pursuit of this devious strategy, powerful states decide
whether intervention is necessary, and determine how it should be implemented,
including duration and conclusion, governance and economic recovery, etc.
There is no legal justification for military intervention under the traditional
customary International Law or under the Charter of the United Nations.
Under the Charter of the United Nations, which is an authoritatively binding
treaty that formulates such general principles in precise legal terms, the use of
force among states is prohibited except in only two situations: self-defense
under Article 51 of the Charter, or if authorized by the UN Security Council
under Chapter VII of the Charter.22 Genocide is defined as committing any of
the acts listed in Article II, provided the act is committed with the intent to
destroy the group, and not simply because of the scale or method of commit-
ting the act. Disagreement on whether to call what was happening in Rwanda
(or similar situations) “genocide” or not was one of the ways in which the
neocolonial powers that controlled the UN Security Council downplayed
events on the ground to delay having to respond to their obligations to prevent
or punish the crime of genocide as required by the Genocide Convention.
The question whether the killing was with the specific “intent to destroy” is
also part of the evasive strategy used to avoid the obligation to “investigate and
punish” the crime of genocide, especially when their own actions are investi-
gated. An additional complication is that intervening states rarely declare their
intentions categorically, and keep making additional justifications, while
declaring that they are unable to prevent their national media and civil society
organizations from making and publicizing their own rationale.
22
These principles are strongly endorsed and applied by the International Court of Justice in The
Republic of Nicaragua v. The United States of America (1986). www.worldlii.org/int/cases/ICJ/
1986/1.html ICJ 1.
In this chapter I will examine and evaluate the theory and practice of
“humanitarian intervention” and its consequences and implications. An
instructive image of this form of aggression is to see it as a “flash flood,”
sweeping away preexisting social and political networks and institutions,
without replacing them with workable alternatives for redressing the very
crisis used by intervening state(s) as a pretext for intervention. Such failure is
inherent to the nature of military intervention because armies are trained and
equipped to kill people, destroy structures, and dismantle institutions. In
addition to the “logical” lower priority of nonmilitary activities and objectives
for military personnel, like building bridges or schools, intervening forces are
unlikely to have the time, skills, and resources needed for rebuilding what they
destroy. Even if they do, or to the extent that intervening forces are able to do
some rebuilding or repair of the damage they have inflicted on local commu-
nities, that “peaceful” effort is unlikely to serve a humane purpose because it is
done in isolation from prior approval or subsequent acceptance by local
populations and their legitimate leaders. The stigma of sponsorship by the
aggressor and suspicion of his ulterior motives will also contribute to dimin-
ishing whatever degree of good will is attributed to intervening armies.
Since the end of the Second World War, this “peacekeeping” model has
worked in some instances, such as the Arab–Israeli conflict and similar
situations; it can work well in containing and regulating the use of force in
international conflicts, but in others it has no application. Since the same text
works well in some cases and fails to work in others, the difference must be in
contextual factors, including the ability of the Five Permanent Members of
the Security Council to cooperate in the process.23 Throughout these long
and complex proceedings, the case is only between the states in questions,
Congo and Rwanda in this case, and whatever benefit or remedy may materi-
alize for private persons, that will be at the exclusive discretion of the states
that are parties to this case. The outcome will still remain beyond the reach of
individual victims of human rights violations because wherever remedy may
be realized, it will always be subject to the discretion of the state.24
The purpose of this critique of intervention is therefore to promote the
development of better alternatives whereby people rely on themselves to
protect their own peace and rights. There is simply no alternative to people
23
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).
The original suit was filed by DRC against Uganda and Rwanda in1999, and subsequently
continued against Uganda alone. www.icj-cij.org/en/case/116/press-releases to www.icj-cij.org/
files/case-related/116/116-20191113-PRE-01-00-EN.pdf.
24
O’Connell, International Law.
protecting their own peace and rights, by and for themselves. What I mean
here is to reaffirm my thesis that human rights should be accepted and
protected for each people by and for themselves. Otherwise, the claim of
upholding human rights will turn into colonial violation of the concept of
human rights itself, and flagrant violation of the fundamental human right to
self-determination according to Article 1 of both Covenants. This is a key
factor in what I mean by “decolonizing human rights,” whereby the principles
of these rights and their rationale cannot signify freedom and justice until they
are liberated from colonial domination and exploitation. International law
and cooperation should contribute to the well-being of human persons and
communities and addressing their global concerns, but the protection of
human rights cannot be part of that agenda of liberation except through the
agency and self-determination of victims and their communities everywhere.
I am not suggesting that any state or group of states, by whatever label
identified, (monarchies, republics, democracies, autocracies, etc.) are inno-
cent of human rights violations, because it is in the nature of powerful actors
to consolidate their power. To this end, part of my argument is that the present
international human rights regime is deliberately designed to enable states to
evade responsibility for their violations of human rights. States are unlikely
to allow each other to avoid responsibility for economic or security obligations
to each other, while permitting avoidance of liability for violating the rights of
persons subject to their jurisdiction. A related pattern of state behavior is the
tendency to seek to accumulate power and resources while avoiding responsi-
bility for creating and sustaining the underlying conditions and structural
causes for systemic human rights violations. Colonial powers, which were
founders of the UN and its human rights system, have “colonized” the
emerging regime by founding that system on the assumptions of state sover-
eignty and limiting accountability to inter-state relations, to the exclusion of
individual persons and groups. Even among states, enforcement of rights
through litigation requires prior violation to trigger initiation of proceedings
of judicial enforcement, one incidence at a time.
The mismatch between international law and the human rights framework
is so obviously problematic that it is difficult to accept that this policy decision
by the UN was the result of anything but a deliberate strategy of ambiguity and
evasion of responsibility in entrusting the protection of human rights to
international law.25 If states can be trusted to fulfill this task, why bother with
the conception and development of a whole set of rights? What difference
25
By the “international human rights framework,” I mean the Universal Declaration of Human
Rights of 1948, and subsequent human rights covenants, conventions, and institutions.
does it make to call these rights universal? An additional complication for the
project is that the concept and scope of universal human rights was too
innovative to operate within the mundane framework of state sovereignty
and territorial jurisdiction under traditional international law. Moreover, the
same former colonial powers took over effective control of global governance
institutions, such as the World Bank and International Monetary Fund, too
invested in the jurisprudence of European nation-states to consider a genuine
alternative that is realistic and plausible not only among former colonial
powers, but around the world. That Eurocentric vision excluded, for example,
exploration of means of protecting broader intergenerational entitlements
such as protection of the environment and accountability of nonstate actors.
The fundamentally geopolitical nature of the entire UN structure depended
on the unanimous consent of the five permanent members (FPM) of the
Security Council. Any one of the FPM can use its veto power to block new
states from being admitted to membership in the UN, or to block seating in UN
organs – even for founding members – if the member elects a new government
that one of the permanent members refuses to accept. Examples of this seating
game include the one that was played until 1971 with the People’s Republic of
China (PRC) in favor of the Republic of China (Taiwan) and the similar, but
more complex scenario occurred regarding Cambodia/Kampuchea from
1975 to 1998. A candid reading of that history in the context of the geopolitics
of the Cold War would support the view that the complex paradox of the
foundational premise of the human rights framework could not have been
intended or expected to protect human rights. Instead, the human rights
framework was intended as a tool of neocolonial geopolitics which will lose
its utility for the foreign relations objectives of powerful states if it is effectively
and consistently enforced. Since international law is unlikely to change for the
benefit of more sustainable protection of human rights, advocates of human
rights must look elsewhere for a more appropriate and effective strategy for
protection and development of these rights.
It is probably true that the UN as we have it today would not be possible
without the cooperation of the five permanent members of the Security Council
and I grant that the role of the UN is indispensable for international peace and
security, but neither goal should be sought at the expense of respect for, and
protection of, human rights against all possible sources of violation, whether
attributed to state or nonstate actors. In fact, the opposite is the more plausible
view. The far more integrated and interdependent world of the twenty-first
Although I do not accept the claim of universality for this framework, I can see its far-reaching
negative consequences for the protection of human rights.
century requires a broader base of cooperation in the structure and operation of

the UN and other international organizations. Instead of entrenching and per-
petuating the present primitive adversarial view of power in international rela-
tions, human rights advocates should invest more into sustainable protection of
peace and security, including human rights, beyond the model of nation-states
and their competitive and confrontational power relations. Far from being naïve
or sentimental, the aim of this book is to deliberately and precisely identify the
difficulties facing the protection of human rights, and focus on transforming the
nature of the problem, instead of submitting to it as the inevitable “nature of
things.” With this mission firmly in focus, I will try to identify and discuss the
structurally problematic nature of international law and power relations for the
protection of human rights. It is only when the inevitable futility of legal protec-
tion of human rights is established that we can hope for a change of course.
The main rationale of this book is to preempt or combat the risk of abusing the
cause of protecting human rights to advance imperial hegemony over weaker
states through economic and political power and cultural relativism. All such
imperial means are underlined by the threat of military or technological aggres-
sion. The frequent abuse or threat of such historical pretext for aggression has
often set the scene for massive and systemic violations of human rights while
pretending to protect those same rights. Ironically, the vagueness or ambiguity of
reference to the protection of human rights as a rationale for aggression has
enabled developed states to rationalize and continue long-term hegemony over
developing (poorer, weaker) states. The other side of the same coin for former
colonial states is the rationalization of their support for some repressive dictatorial
regimes such as the Apartheid regime in South Africa and general geopolitical
strategic concerns of the Cold War. Those contextual factors can also be seen as
reflecting the inadequacy of inter-state cooperation over traditional concerns of
geopolitical and trade relations and mutual dependencies of developed and
developing countries over their respective security and economic concerns.
This dimension should also be seen in terms of structural aspects of international
relations, including the politics of the UN Security Council, role of specialized
organs. I am not highlighting these aspects of international relations and post-
colonial strategic coordination at NATO, OAS (Organization of American
States) and AU (African Unity) to excuse the failure of the so-called international
community to protect human rights, but rather to emphasize the complex
geopolitical realities within which that objective should be realized.26
26
This purpose is the only legal justification for the use of force under Article 39 of the Charter of
the United Nations. There are only two bases for the lawful use of force under international
law. The first is the use of force in self-defense, which is established by customary international
In view of the gradual and incremental evolution of social and political

change, it is wise to begin with the prudent acceptance of the role of lawful
and institutional intervention when necessary to maintain peace and security,
and enhance possibilities of orderly mediation of conflict. I oppose and resist
the assertion of a discretionary authority of unilateral and extrainstitutional
military intervention under the guise of fulfilling a humanitarian mission. The
Security Council’s 1991 authorization of the use of force under Chapter 7 of
the UN Charter to expel Iraq from Kuwait is an example of lawful and
institutional military intervention.27 In contrast, the invasion and occupation
of Iraq by the United States, United Kingdom, and their allies in 2003 – which
was neither authorized by the Security Council nor justified on any other
international law grounds – is an example of unlawful assertion of imperial
hegemony. The fact that the same two states (United States and United
Kingdom) were primary actors in both upholding international legality in
1991 and undermining it in 2003 emphasizes that outcomes are governed
more by the national interests of major powers than the principles of inter-
national law.
In view of these provisions, I would hold that the use of force among states is
prohibited except in only two situations: First, in self-defense under customary
international law or Article 51 of the UN Charter. Second, as authorized by
the UN Security Council under Articles 39 to 42 of the UN Charter.28 If the
conditions for each of these requirements of the use of force are satisfied,
military force may be used for the specified purpose – namely, in self-defense
or to safeguard and restore international peace and security. The scope,
intensity, duration, and other features of lawful military intervention should
be determined by the requirements of the circumstances that form the basis
for lawful use of force under the circumstances. In addition to being unlawful
in itself, unlawful military intervention may also violate other requirements of
the use of force, such as the regulation of military activities under the Geneva
Conventions. For instance, state(s) having the legal right to use force must still
law and confirmed and codified by Article 51 of the UN Charter. The second is for the
preservation of international peace and security under Chapter 7 of the UN Charter. This
second basis requires authorization by the Charter of the United Nations of 1945, which is one
of only two lawful use of force under international law. Chapter 7 affirms the preservation of
international peace as determined by the Security Council, is the second possible basis for
authorizing the international use of force under international law.
27
By “lawful” here I mean “provided for by principles of international law.” I am paraphrasing
the terms of authorization of the use of force under Chapter 7 of the Charter of the United
Nations of 1945, which is the only lawful use of force under international law.
28
O’Connell, International Law.
strive to minimize harm to civilian populations and protect prisoners of war.29

The question here is one of how likely it is that states will respect such
regulations, or suffer serious consequences for their failure to comply.
The more principled rationale is that intervention by a global community of
states, acting collectively through an international organization like the UN, is
more likely to address shared human concerns, such as the risk of genocide,
while being restrained by global transparency and accountability. In contrast,
invasion by one or a few states, acting outside the framework of an international
organization, is more likely to serve the selfish interests of that state/those states,
and its/their allies, while being unrestrained due to the lack of transparency and
accountability because all decisions and actions are controlled by the invading
state(s). The objective is to oppose and resist imperial hegemony disguised as
necessary action for the protection of human rights, while supporting and
promoting collective humanitarian action by the community of states through
an international organization. This process should lead to mounting practice of
the rule of law at home and abroad, and diminishing resort to self-help and
vigilante justice, and their colonial associations.
Granted that this formulation of the thesis of this chapter is unlikely to prevent
unlawful intervention by imperial powers such as the United States and Russia,30
in the same way that universal prohibition of murder under the penal norms of
every human society is unlikely to prevent this crime. Indeed, such unlawful
violence must be condemned precisely when the principle of prohibition of
arbitrary use of force is being violated. According to the strategy for protecting
human rights suggested in this book, the point here is to deny any legitimacy to
unlawful intervention in order to urge “all peoples and nations,” as proclaimed in
the preamble of the UDHR, to condemn the hypocrisy and moral bankruptcy of
all perpetrators of violence, especially when they are major world powers such as
the United States and Russia.
The reluctance of the United States, Russia, and other major powers to
openly assert that they are engaged in humanitarian intervention or to declare
their reasons for making that claim is profoundly disturbing because it indi-
cates lack of concern with justifying their unilateral and arbitrary aggression.
29
According to the Cornell Law School’s Legal Information Institute, “The Geneva Conventions
[and their Protocol] are a series of treaties on the treatment of civilians, prisoners of war
(POWs) and soldiers who are otherwise rendered hors de combat (French, literally “outside the
fight”), or incapable of fighting.” See Cornell Law School Legal Information Institute,
“Geneva Conventions and their Additional Protocols.”
30
Recent examples of reasons for reference to these states in such terms are the unlawful invasion
and occupation of Iraq by the United States in 2003, and the invasion of the Republic of
Georgia and occupation of part of its territory by Russia in 2008.
This is problematic in terms of the major debate about the illegality of war and
the integrity and relevance of even universal treaties like the Charter of the
United Nations. As the case of the civil war in Syria shows, the conduct of the
United States and Russia indicates the belief of those two permanent members
of the Security Council that they have a monopoly on the authority to engage
in either limited or unlimited use of force in other countries. In the absence of
any clear declaration by the main international actors of the objectives and
alleged justifications for their actions, the rest of humanity are reduced to
guessing what is happening or likely to happen. Even more problematic due
to the uncertain and manipulated level of transparency, the duration and
dynamics of civil war situations, such as those in Syria and Yemen (at the time
of this writing), depend on the intentions of major powers or according to their
own view whether so-called regime change, however this is alleged to be
justified, is warranted or not.
Moreover, whatever the major powers are doing in their so-called sphere of
influence, minor states are trying to do in their regional sphere of influence,
usually with the explicit or implicit approval and support of major powers. Such
cases can be illustrated with the intervention of several southern and central
African states in the civil war in the Democratic Republic of the Congo. Such
second-tier interventions reflect the same difficulties that have been observed in
the case of major powers interventions, including reluctance to declare their
reasons or intentions or providing some measure of transparency and account-
ability. None of these problems is recent or limited to humanitarian intervention
issues, but their coexistence and intersections with other problems of national
and international peace and security, and various degrees of postcolonial con-
flicts, may limit the possibility of extracting cases of purely human rights concerns
and how they may be resolved. Yet, there is no reason to limit our discussions to
those situations alone, hence the term “decolonizing” in the title of this book.
To conceive the protection of human rights through military conquest and
coercion is not only ineffective, but also a violation of the collective human
right to self-determination, as defined by common Article 1 of the two
Covenants, which provides: “All peoples have the right of self-determination.
By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.”31 This view is
colonial because it seeks to limit the competence to define human rights
and the ability of powerful states to protect these rights in weaker states. Such a
31
These are the identical terms of Article 1 of the International Covenant on Economic, Social
and Cultural Rights, and the International Covenant on Civil and Political Rights, which were
adopted in 1966 and came into force in 1976.
scheme is completely inconsistent with the essence of what universal human

rights mean among human communities. The purpose of my opposition to
claims of humanitarian intervention is to expose the true nature of military
invasion and occupation, and to thereby deprive such imperial ventures and
colonial strategies of any moral or humane justifications.
I will briefly present a brief description and analysis of some recent
examples to show that so-called humanitarian intervention is inherently
incapable of delivering what it promises to deliver. As the discussion and
illustrations will show, humanitarian intervention is like a “flash flood,” which
sweeps away preexisting social and political structures and institutions, without
replacing them with better alternatives that can produce positive outcomes.
Such failure is inherent to the nature of military intervention; armies are
trained and equipped to kill people and destroy institutions and cannot be
corrected. The purpose of this critique is therefore to encourage the develop-
ment of better alternatives whereby people rely on themselves to protect their
own rights, regardless of the time and effort that takes. There is simply no
alternative to people protecting their own rights, by and for themselves. This is
what I mean by “decolonizing human rights.”
overview and concerns

To introduce the following discussion, I should note a few conceptual and
methodological ambiguities that may impede precise and persuasive analysis.
Some of the ambiguity relates to doubts whether declared intentions regarding
purposes or objectives of intervention are merely propaganda or a genuine formal
assumption of obligations by the intervening state(s) for which it (they) can be
held accountable. Even if declared intentions are taken as formal obligations, this
allows the invading state to define the objectives and parameters of its military and
administrative activities for which it should be held accountable. There is also the
ambiguity of the criteria by which the intervening state(s) can be held account-
able, and whether accountability can be for the declared or implied intentions of
the intervening state. It is also difficult to determine which are the intentions of
the state, or how to distinguish declared intentions from implied intentions. In
any case, is the legality and efficacy of intervention determined by the intentions
of the intervening state or the outcome of the intervention?
Since intervention can be undertaken by several states, in what has been
called a “coalition of the willing,”32 the difficulty would be in determining the
32
This term was used by President Clinton in the context of possible military operations against
North Korea in June 1994, and again by President George W. Bush regarding the invasion and
Overview and Concerns 69
international law principles that can judge the relative responsibility of the
various states and their varying roles in the conflict in question. The most
serious difficulty is that although any military intervention is illegal under
present international law and counterproductive on any humanitarian
grounds,33 there is neither international law doctrine, institutional capacity,
nor political will among states to enforce accountability on intervening state(s).
The supreme irony, moreover, is that whatever enforcement measures one
can imagine are in fact under the control of the same colonial powers
that have always engaged in atrocious military interventions throughout
Africa and Asia.
Military intervention is not only illegal, but by the very nature of its massive
and undisciplined power it is bound to result in truly catastrophic human
rights violations when released by fanciful and reckless human impulse to
sweep away entrenched forces of political and social oppression. In so doing, a
military intervention is bound to indiscriminately sweep away everything in its
path, including the best resources communities need for survival and recon-
struction. A flash flood lacks the ability to distinguish between good and bad
social and political institutions, and the competence to spare positive
resources for better structures or institutions in the future. Such are the nature
and dynamics of “humanitarian intervention” and yet it is alleged to restore
justice and peace in redressing extreme human rights crises.
Although rarely mentioned by name, as we will see in the recent examples
highlighted later in this chapter, the possibility of such illegal and reckless
action is the implicit and unspoken rationale for the so-called international
community’s failure to develop strategies for effectively protecting human
rights. Ironically, such illegal and reckless action has always been, and con-
tinues to be, a favorite tool of former colonial powers. Such camouflage
strategies must be categorically rejected and their neocolonial aggression
condemned, and its attempt to legitimize itself exposed. Unfortunately, the
real problem is the lack of willpower among states and international organiza-
tions to challenge powerful former colonial states. Later in this chapter we will
discuss the structural nature of the inertia and complex reasons and motiv-
ations, which may explain the failure of international law to lend itself to
effective implementation or enforcement, as appropriate. For our purposes
occupation of Iraq in 2003. See https://en.wikipedia.org/wiki/Coalition_of_the_willing.

Accessed October 27, 2018.
33
Since the end of the Second World War, any military invasion is illegal under international law
unless it is use of force in self-defense or as authorized by the UN Security Council under
Chapter 7 of the UN Charter.
here, the reality of those reasons and motivations should make obvious the
need to search for alternatives to international law as a means of protecting
human rights, instead of adding this function to the list of tasks international
law has so far failed to accomplish.
Therefore, for any protection of human rights to be credible and sustain-
able, it is imperative that the mirage of so-called humanitarian intervention be
categorically repudiated, because this is never more than an elaborate disguise
for imperial and neocolonial designs. Such manipulation of local and global
public opinion not only undermines the integrity of essential principles of
international law itself, but it is also incapable of achieving any protection
of human rights on the ground. In addition to its futility, the availability of
military intervention as a tool provides a pretext for avoiding serious and
sustainable action to protect human rights. Even when it is not mentioned
by name, policy makers and opinion leaders clearly assume that military
power can always be used if a situation “gets out of hand.” In fact, the
illusionary legitimacy of the reckless, arbitrary, and capricious discretionary
power of humanitarian intervention as the purported strategy of last resort
for protecting human rights makes it probably the most expedient strategy for
former colonial powers to continue their neocolonial domination and exploit-
ation of developing societies, while claiming the high moral ground as
global guardians of human rights. This mirage is the worst of all worlds
because it is exploited by former colonial powers to perpetrate violations of
the right to self-determination of their colonies – which is the basis of whatever
postcolonial nation-states can do to protect the human rights of their citizens –
yet so-called humanitarian interventions that are perpetrated in the name of
protecting human rights commit massive and systemic violations of those
same rights.
To summarize the preceding analysis of objections to so-called humanitar-
ian intervention for protecting human rights – which is usually invoked by
major colonial powers like Russia, the United States, and the United Kingdom
to justify the invasion and occupation of a small or poor state that is deeply
torn by civil war or conflict. Potential intervention situations are frequent, and
clearly envisioned and provided for under Chapter 7 of the UN Charter – if
the five permanent members of the UN Security Council can agree on using
military intervention to contain and prevent a threat to international peace
and security. Collective and institutional action to keep the peace is the best
scenario if intervention is imperative. Such cases are so rare that there have
been only a handful of situations of action by the United Nations under
Chapter 7 in the organization’s history. A primary example of collective and
institutional action by the UN itself is the authorization to use military force in
North and South Korea from June 1950 until the signing of an armistice in
July 1953. All the UN could do is to “keep the peace” by blocking the
possibility of war. A second example is the United Nations authorization of
the first Gulf War to drive Iraq out of Kuwait (August 1990–February 1991).
But then, there were far more instances of illegal invasion and occupation,
such as the illegal invasion and occupation of Iraq for a decade (March 2003–
December 2011) by the United States, the United Kingdom, and their allies.
First, the consistent history of the practice of such interventions confirms
that they are devious stratagems perpetrated by major powers to disguise their
imperial objectives. Today’s so-called humanitarian intervention is nothing
more than the “civilizing mission” of earlier forms of European colonialism,
which was the racist and bigoted condescending discourse used to hide crude
economic exploitation and political repression of African and Asian commu-
nities. As such, this practice is not only unlawful under both the UN Charter
and modern customary international law, as reaffirmed by the ICJ in the
Republic of Nicaragua v. The United States of America (1986) – to be discussed
later in this chapter – but it also undermines the rule of law in international
relations by promoting the perception that compliance with international law
is discretionary for powerful states, instead of being binding for all states all
the time.
Second, military intervention is inherently incapable of protecting human
rights anywhere because invading armies sweep away everything in their path,
without being capable of creating or sustaining any preventive measure or
remedy. In addition to focusing on destroying any resistance, they also lack
linguistic and cultural competence to engage hostile and resentful local
populations. Invaders can neither have friendly relations with occupied popu-
lations nor stay long enough to effect sustainable sociopolitical change. It is
also common experience that intervening states are unable to bear the human
and material costs of combating negative attitudes and social practices.
Favorable media coverage may help delay the political costs of continuing
intervention, but the more democratic the state, the less likely will it be able to
contain popular resistance to the intervention.
Third, since the human and material costs of any military intervention need
to be justified in political and economic terms in the domestic context of the
invading state, the government of that state has to be highly selective when
choosing the locations and situations in which it will intervene. The inci-
dence, scope, and duration of intervention must therefore be justified to the
domestic population of the intervening state in terms of their economic,
security, or geopolitical interests. Some political support for intervention
may be drawn from ethnic, religious, or cultural affinity between the domestic
population of the intervening state and victims of repression in the target state.
No state has the political will or material resources to intervene in every
instance of massive or systemic human rights violations, or to maintain an
extended occupation regardless of the political views of its own domestic
population. I will now elaborate on these objections by first highlighting
the concept and practice of so-called humanitarian intervention as an
imperial strategy.
In light of the preceding remarks, I will now examine what might be called
the discourse of false legitimation, in other words, what former colonial
powers deploy to create the myth of responding to the urgent demands of
the “international community” for humanitarian intervention to save vulner-
able and helpless women and children, potential victims of “genocide,” etc.
The ideological and political loyalties of the media tend to reflect long-
standing attitudes, often since the Cold War or other conflict in the region
targeted by the government and its opposition, conservative or liberal political
parties seeking to benefit politically from a quick and easy victory. The call for
military intervention may also be driven by strong nationalist constituencies in
the domestic politics of the intervening colonial power.
Other factors influencing the outcome of geopolitical debates over who will
intervene and how to intervene include traditional geopolitical factor influ-
encing decisions and timing of intervention, often favoring former colonial
powers. Since the Security Council does not have its own military command
and forces, as originally envisaged by Articles 46 and 47 of the Charter of the
UN, it has to appeal to members of the UN who have the military capability
and political incentive to implement the decision of the Security Council. In
this way, the major colonial powers get to “have their cake and eat it too” by
achieving their national objectives while also receiving praise for contributing
to the protection of international peace and security. Because major powers
are reluctant to provide troops and resources for an intervention sanctioned by
the Security Council unless they can control the deployment and activities of
their own forces in the field, this effectively means negotiating with the United
States because it almost always combines its willingness to intervene using
military force with its insistence that the supreme commander of the entire
operation be an American officer. In view of these and other logistical and
practical difficulties, the possibility of intervention by the Security Council is
frustrated by the very powers that are often parties to the same international
military conflicts.
It is important to clarify here that I am not implying any form or degree of
conspiracy between the media and governments of major powers to orches-
trate this process. The more reasonable explanation is that media, public
opinion, and political leadership of countries such as the United States and
the United Kingdom are all molded by the same culture and affected by
geopolitical factors in similar ways. It is not that the media and public
opinion are told what to say, but that by the nature of their world view, these
actors in the public opinion share the same world view and outlook as their
political leaders.
It follows from the preceding analysis that humanitarian intervention by
major powers is understandable, and it is even perceived as commendable by
populations of major powers. The usual sequence is that news about massive
and indiscriminate violence in a developing country or minor state attracts the
attention of the media in developed countries. When that happens, the media
may cover the situation as routine news, but whether sustained and intensive
news coverage continues and whether calls for intervention begin to emerge
are likely to depend on some special factors and considerations according to
the cultural and political sensibilities of the media. What is significant for our
purposes here is that the inevitable selectivity of news coverage and progres-
sion to calls for intervention will depend on some special considerations.
Since the intervening state is unlikely to reveal its true motivation or
rationale for intervening, one can only speculate about such factors in trying
to explain or understand the action of the intervening state. Fortunately, we
don’t need to precisely identify the true motivation or rationale of interven-
tion. What is important for our purposes here is that major states decide
whether or not to intervene, to what extent and for how long, all according
to their own motivations or rationales. Moreover, as we can see from current
or recent examples, there is no clear doctrinal basis or adequate institutional
mechanism for investigating or testing the motivation of the intervening state,
or for assessing its responsibility or accountability for the consequences of its
intervention. Judging by recent and current cases of so-called humanitarian
intervention, it seems that major states can decide whether or not, and for how
long, to intervene, and to what extent the costs will be borne by the human
and material resources of the state subjected to intervention, entirely at their
own exclusive discretion, without any risk of accountability as to what ends or
what costs. While major states control every aspect of their contribution to,
and the costs of, their so-called humanitarian intervention, the people to be
“saved” and their states have no say whatsoever in the costs and consequences
of their so-called salvation!
Broader implications of so-called humanitarian intervention include the
following: At one level, realities of material relations among societies and their
states mean that the flow of intervention is from the Global North – of former
colonial powers – to the Global South – of former colonized states – thereby
tending to perpetuate neocolonial relations between the two geopolitical

regions. Two negative consequences of this formula are first, that colonial
powers seek to perpetuate their hold on the territories, economies, and trade
relations of their former colonies, and second, that this in turn raises the anger
and frustration of the peoples of the Global South, which are then manipu-
lated by unscrupulous local elites to agitate for ethnic and/or religious con-
flictual politics. The outcome of this familiar scenario is the generation of
more violent conflict to keep elites in power and enable former colonial
powers to engage in the lucrative arms trade, etc. From the perspective of this
book, military intervention is likely to continue regardless of its demonstrated
inability to develop and implement any benefit for protecting human rights in
postcolonial societies. My purpose in this analysis is to shift the formula by
increasing the use of transparency and accountability to combat sources of
human rights violations on the ground throughout the world.
the strength and weakness of international law

I am concerned here with exploring ways of identifying and redressing those
aspects of international law that affect the ability of the global legal system to
protect human rights in practice without violating the human rights of its
human subjects. In particular, my focus here is on the consequences of the
apparently decentralized and voluntary nature of the system. I argue that this
aspect of international law is both the strength of the system and its weakness for
the purposes of protecting human rights. It is commonly accepted that states
cannot be bound against their will, which means that all states around the world
have the power both to participate in the making of human rights law and to
agree to be bound by the rules they decide to accept. Since the entire popula-
tion of a country cannot engage in this process, the making and application of
international human rights law is done by states on behalf of their populations.
Yet, the population has no means of holding its own state accountable for
failure to discharge the full obligations of that representation because states are
sovereign and nonstate actors have no standing before international tribunals.
Regarding treaties as a source of human rights law, no state can be bound by
any treaty unless the state has ratified the treaty. Even then, the scope of the
obligations of the ratifying state under the treaty is subject to “reservations,
understanding and/or declarations” made by the ratifying state to limit its
obligations under the treaty. This possibility can be restricted or excluded by
the treaty itself, for example, to protect key aspects of the treaty from being
rendered excluded, thereby defeating the purpose of the treaty. For common
law countries (such as the United Kingdom, the United States, India, and all
The Strength and Weakness of International Law 75
former colonies of the United Kingdom), domestic courts cannot apply an

international treaty unless and until it has been incorporated by statute into
the legal system of the country.
Now here is the paradox of this assumption: In international law, human
rights obligations (whether based in treaty or customary law) are binding only
on states, which means that states are the only entities that can violate the
human rights of any person under their jurisdiction, and only states can
remedy or redress any violation. Any unlawful action may be an ordinary
crime or civil wrong, but it cannot be a human rights violation unless it is
done by a state official or can somehow be attributed to a state. Add to this the
fact that a state cannot be subject to the jurisdiction of any international
tribunal without its express consent, and this means that there is no possibility
of adjudication or other means of definitively resolving a state’s liability for any
human rights violations unless that state voluntarily submits to adjudication or
other mediation process. Moreover, as we will see in the Nicaragua case
(1986),34 any of the five permanent members of the Security Council can
defy even the lawful and accurate final ruling of the International Court of
Justice by casting its veto vote to block any enforcement or implementation
measure decided by the Security Council.
The nature and structure of the human rights system has emerged from the
model of identifying and enforcing international law norms via the
International Court of Justice (ICJ), the official judicial organ of the UN.
Here is a paraphrasing of Article 38 of the Statute of the ICJ:
(1) The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
international custom, as evidence of a general practice accepted as law;
the general principles of law recognized by civilized nations;
subject to the provisions of Article 59;35
judicial decisions and the teachings of the most highly qualified publi-
cists of the various nations, as subsidiary means for the determination
of rules of law.
34
Nicaragua v. United States, 1986 ICJ 14.
35
Article 59 noted in Article 38 provides that “The decision of the Court has no binding force
except between the parties and in respect of that particular case.” The point of this reference
seems to be that whatever the ICJ holds to be applicable in the case at hand, including
reference to the scholarly sources, has no force beyond the case at hand being decided by the
ICJ.
(2) This provision shall not prejudice the power of the Court to decide a case
ex aequo et bono (according to what is equitable and good), if the parties
agree thereto.36
Although Article 38 is intended to govern how the ICJ can identify applicable
law to cases submitted to it, this provision is generally accepted as specifying
how international law can be found in this context. The point to emphasize
for our purposes here is the elective nature of international law. For the ICJ to
decide a case, all parties to the case before the court must submit voluntarily to
the jurisdiction of the ICJ, and the decision of the ICJ is applicable only to the
parties in the case at hand, i.e., there is no possibility of binding precedent for
one case over others.
The system that emerged from that founding formula was as follows: treaties
and customs are the essential sources of international law obligations and
remedies, including rules of jurisdiction, evidence, and procedure for arbitra-
tion and negotiation of disputes. In this way, the same principles apply to a vast
variety of disputes among a wide range of states. The validity and efficacy of
outcomes depend on the fairness and consistency of application by human
arbiters, mediators, and adjudicators of rules of procedure and substance.
In this regard I admit that this scenario is not true about every state today;
though it may be true, relatively speaking, some states may be more represen-
tative and accountable to their native populations than others. One of my
conclusions in this regard is that one way out of this vicious cycle is for people
to struggle for genuine representation and meaningful accountability by their
states. The second way out of this vicious cycle is for people to reduce their
dependence on states, and to create and operate alternative institutions and
processes. In other words, the idea is to reduce our reliance on states and to
invest in a civil society that is global, regional, national, and local and can take
over some of the functions and resources of states. This proposition is not as
unrealistic or absurd as it may sound because so-called national or territorial
states are extremely recent in historical terms, and the vast majority of human
beings live with extremely limited contact with or reliance on states.
States are important for the vital functions they are particularly suited to
fulfill in today’s interconnected and integrated world, such as organizing
international trade and supervising conditions of domestic security and public
health, subject of course to requirements of transparency and accountability.
36
The term “ex aequo et bono” (according to what is equitable and good) is used in the context
of arbitration, to indicate authorization by the parties to the dispute. Reference to this term in
this Article of the Statute of the ICJ confirms that litigation before the ICJ can be considered as
arbitration, if the parties agree on that.
The Myth and Vision of the “International Community” 77
By the same token, I would oppose expanding state powers beyond legitimate
boundaries of their functions or failing to hold all state actors to the limits of
their authority and to the standards of transparency and accountability. This
balance may be maintained in terms of human rights, but that would be a
means to the end of compliance rather than a formalistic design.
The sad reality now is that the premise of state representation of their
populations is more of a myth than reality, even with the most democratic
states. State actors have a role and degree of responsibility in this situation, but
that is only to be expected because seeking to keep and expand power is a
common human trait. To illustrate the point in the context of the right to
education or the right to health, the more state actors comply with their
professional obligations, the more the beneficiaries of those rights can enjoy
them, because compliance is always better for both sides than enforcement.
Thinking in human rights terms, it is more becoming of the human dignity of
state actors to voluntarily perform, rather than to be coerced into performing,
their professional obligations. Realistically, people everywhere are “repre-
sented” by their states, which are transparent and accountable about what
they do on behalf of their populations.
Put in these terms, international law seems to be democratic in its formation
as well as its implementation, but in reality the making and implementation of
international law in general – and consequently human rights law – is con-
trolled by an extremely limited number of elites. Once again, like all human
institutions, international law is what we all make of it, or fail to make of it.
the myth and vision of the “international community”

The term “international community” is most frequently used in a general,
rhetorical sense of moral and political appeal to do something or refrain from
doing something. For example, Kofi Annan, then Secretary-General of the
UN, affirmed in a 1999 press release that the international community does
exist, and added: “There are many more examples of the international com-
munity at work, from peacekeeping to human rights to disarmament and
development. At the same time there are important caveats. The idea of the
international community is under perfectly legitimate attack because of its
own frequent failings.”37 In contrast, former British Prime Minister Margaret
Thatcher reminded us of the realities of power relations behind present
principles and structures when she said that “the West or, as we tactfully
37
United Nations, “Secretary-General Examines.” Available at: www.un.org/press/en/1999/
19990915.sgsm7133.doc.html. Accessed December 3, 2018.
preferred to describe it, ‘the international community’, would prevail over

Saddam Hussein and reverse Iraq’s aggression against Kuwait.”38 It is instruct-
ive to recall that it was Britain that carved Kuwait out of the Ottoman province
of Basra in 1899, while the rest of the province remained a constituent part of
the Iraq of the era of Saddam Hussein. The aspirational, fictional sense that is
created and abused at will by major colonial powers is highly misleading for
our purposes here. The sense in which I am raising the issue here is more
normatively specific, about the entity that is entitled to act on the international
domain, and whose action has clear and authoritative meaning, a framework
to which reference can be made to determine the legal significance of the
activity in question.39
As concepts, myth is vision without a clear strategy for realizing it, while
vision is myth with a clear strategy for realizing it. Since the lack of strategy can
be corrected through human willpower and imagination, characterization of a
concept as myth can legitimately change into vision. It may therefore follow
that a myth of today can become a vision in the future; the reverse may be true
as well, a vision can become a myth. Both are strategies that are mediated by
what the parties consider to be “reality,” which is also relative to parties
and context.
Accordingly, by calling the notion of international community a “myth,”
I am indicating a range of possible meanings and usages of the term, including
that it is an illusion, legend, fairy tale, allegory, as well as falsehood, fiction,
and fabrication. This range and contrast of meanings and practice reflects the
variety of positive and negative ways in which the term is used in public
discourse. Political and policy leaders can play on that ambiguity to discredit
or hijack the concept to serve their own objectives. But this ambiguity can also
be used to legitimize the concept and turn it to the service of democratic and
humane purposes.
Government propaganda tends to be supported and promoted by external
actors in the “international community” who are maintaining one position or
another, calling for some sort of action or its opposite, and so forth. Since there
is no empirical way of confirming what the international community really
believes or wishes, any claim can be made with impunity unless it is chal-
lenged by opposing forces in the international community. This ambiguity
and contestability can also be used to expand the range and manner of
contestations among civil society factions. Regarding our subject here, for
38
Thatcher, Path to Power, p. 508.
39
For an insightful review of some theories and debates around these issues see, Kritsiotis,
“Imagining the international community.”
The Myth and Vision of the “International Community” 79
instance, governments may use language that sounds like they are calling for
humanitarian intervention to uphold human rights, and yet subsequently
contest the meaning of what they said or qualify what they intended to say
in ways that enable them to disclaim the implications of their discourse. Such
relativity is inevitable in human politics everywhere, including the risk of co-
optation of social and political forces in society that are intended to counteract
excessive relativity or extreme interpretations of what is believed to be in the
public good, or intended to safeguard against devious social and political
forces.
The preceding comments may also help explain why the term “inter-
national community” is so rarely used in international treaties and diplomatic
exchanges. One of the very rare instances of usage of the term in an inter-
national treaty is in Article 53 of The Vienna Convention on the Law of
Treaties 1969. In this instance “the international community” is assigned the
role of validating that norms that are claimed to constitute jus cogens40 are in
fact “accepted and recognized by the international community of States.”41
Even at this level of circular generalization (i.e., jus cogens are what the
internal community of states accept and recognize as such), it is up to the
constituency being addressed by the particular usage of the term to contest,
support, or deny that this claim is true or false of the norm in question. Here
comes the ambiguity of the central question of how the international commu-
nity – a nonstate actor – can determine and verify how and where it should
certify that the norm be accepted and recognized (or not) by states. There are
questions at all levels: Who is the international community? Where can it be
found, and how to ascertain its conclusion on the issue? How can the
international community determine what states accept and recognize, and
are these two separate measurements or not? Is it appropriate to ask states, all
states or only some of them, or only states concerned with the specific dispute?
What is an appropriate time frame for ascertaining how a state feels about the
norm in question?
40
As explained by Anne Lagerwall in Oxford Bibliographies, jus cogens “is a Latin phrase that
literally means ‘compelling law.’ It designates norms from which no derogation is permitted by
way of particular agreements . . . given the fundamental values they uphold. Most states and
authors agree that jus cogens exists in international law. Opinions diverge however as to its
exact content, sources, means of identification, and application, as well as to its precise effects
and role within the international legal order.” Available at: www.oxfordbibliographies.com/
view/document/obo-9780199796953/obo-9780199796953-0124.xml. Accessed August 21, 2020.
41
International Law Commission, “Summaries of Work: 1.1 Law of treaties.” Available at: http://
legal.un.org/ilc/summaries/1_1.shtml. Accessed November 29, 2018.
There are many questions to ask, but the biggest problem is that there is no
definite and verifiable way for determining what the term “community of
states” means? What does it include or exclude? At this level, the uncertainty
goes to the units within federal states that are authorized to act and have the
power to determine the outcome of the questions raised previously. Should all
states have an equal vote, or should special consideration be given to states that
have particular contextual relevance to the issue at hand, e.g., coastal states in
a dispute over fisheries? There is no mechanism or secretariat to trace and find
relevant information or examine the working of a timeframe for the process.
For instance, should the state’s view be determined while it is engaged in an
active dispute or litigation/arbitration with other states to which a jus cogens
quality of an applicable norm is relevant? In practical, logistical terms, who
should be asked (i.e., political or legal authority), for the view of the state, and
who should formulate the question, since there is no institutional framework
or secretariat to conduct such simple yet crucial functions?
In tentative conclusion, the issues and questions raised in these concluding
reflections are not intended to be exhaustive or conclusive, but only illustra-
tions for the issues intended to be resolved in communal collaboration among
intersecting constituencies and social formations. In the same way that the
concept, content, and context of human rights through social practice, in
people-centric process of inclusion and collaboration, the same applies to the
communities and social networks of peoples in their indigenous formations.
4
People-Centric Protection of Human Rights
In this chapter I will highlight and explain how, by their nature and practice,
cultural transformation and political mobilization are already the means for
sustainable social and political change for all societies relative to their own
context. This does not mean that the nature and outcome of social and
political change is the same in all societies. Rather, the point for this book is
that the manner and process of transformation and mobilization for each
society happens on its own terms in relation to its own history and context.
Societies can neither be “tricked” nor “coerced” into accepting ethical or
cultural change or submitting to whatever political mobilization seems to
produce at the time. The outcome of these processes may not be to our liking
or satisfaction, but we all have the tools and opportunity to join and attempt to
influence the outcome of these processes. The emphasis on the human
agency of people in their communities and through socially appropriate
strategies reflects the interaction of ends and means in the protection of
human rights by human beings in their communal context. The only way
for sustainable defense of human rights is through cultural transformation of
underlying values and political mobilization for the political will to defend
these rights. This is also the only means to experience the responsibility of
defending these rights by themselves in their own experience.
As I will emphasize by quoting Eleanor Roosevelt later in this chapter, the
defense of or failure to defend human rights is the outcome of what we all do
or fail to do, whoever we are and wherever we happen to be. This is the true
and precise nature of human rights and their practice by “ordinary people,”
according to their own values and convictions. This is not to say that the state
has no role in the protection of human rights, but only to explain that for a
sustainable human rights outcome, the role of the state should follow the
choices of its population at large. Regardless of the formalities and customary
practices of the democratic process, the legitimacy of the state is in its faithful
81
82 People-Centric Protection of Human Rights
compliance with the popular will of its society. By emphasizing the process of
cultural transformation and political mobilization I am calling for recognition
of the reality that these processes are already integral to all aspects of social and
political processes of our societies. Part of the reason for the success or failure
of agents of social change in each society is in their ability to know where to
stand and how to engage their communities for the change they seek to
achieve.
transformation and mobilization are already

required for universality
As a matter of principle, human rights in each specific setting must be
identified and defended by the people concerned, who should specify the
norms which constitute the concept of entitlements or claims of all human
beings by virtue of their humanity, whether these are called “rights” or by
another name. The immediate paradox of this proposition is that human rights
are universal, as the rights of every human being for being human. Yet, these
rights must necessarily vary by virtue of the cultural and material diversity of
their human subjects. Since every cultural or philosophical understanding of
human rights is necessarily relative to the cultural and philosophical context
within which rights are asserted. By cultural transformation I mean significant
and sustained change in attitudes regarding some type or form of social
relationship or behavior, whether this change is positive or negative towards
acceptance and approval of the behavior in question and its underlying values
or rationale. The point here is that not every change is necessarily good, but
the social practice of change at large is good. Such grounding is universally
required for human motivation and willingness to claim credit or accept
responsibility for ethically significant behavior, which should include
accepting or rejecting positive or negative consequences of our standing by
what we believe. Since such sustained change in attitude is often strongly
attractive for political actors and their strategies, political mobilization is
necessary to the dynamics of ends and means.
“Political mobilization,” the term by which I refer to this dimension of my
analysis, is integral to the theory and practice of democratic self-governance,
which is already necessary for the enactment and entrenchment of rights and
their systematic large-scale practice, including in societies with deep-rooted
commitment to what they believe to be positive law and strong centralized
administration of justice. For those societies and communities that are
strongly vested in the principles and practice of the so-called rule of law, the
formation and development of those principles and practice in one way or
Transformation, Mobilization Required for Universality 83
another could just be the meaning and outcome of the same process in
historical context. To insist that one community or another is exclusively
entitled to a unique set of principles and practice, however this is identified,
is simply chauvinistic hubris that contradicts respect for common experience
of human communities.
Unfortunately, such claims have frequently been made by all communities
at different times of their experiences. Judging by the manner in which such
claims were simply acted upon by powerful states without explanation or
warning, such chauvinistic claims must be resisted wherever they are made
by “modern” societies. The recurrence of such experiences in human soci-
eties requires constant reflection on the nature and dynamics of cultural
transformation and political mobilization to understand how such phenom-
ena occur and how they work. Previous experiences with such phenomena
mandate that public and educational institutions give priority to socialization
of their members in relevant values among members of the community.
While this involves an unavoidable measure of tension between competition
and self-restraint among members of the community and their social organiza-
tion, the underlying rationale of the process demands transparency and public
accountability for balance of ends and means.
This founding doctrine can be understood in terms of what I call the “three
Cs” – the Concept, Content, and Context – of human rights. The concept of
universality of human rights is easy for all people to accept in principle,
provided it is not used to impose a normative content of those rights that is
determined by others for their practice in a different context. One of my
primary concerns in this book is the operational futility of attempting to
protect human rights under international law. From the beginning, the whole
human rights paradigm has been premised on the notion that the obligation to
protect human rights is based on treaties that are binding on states under the
normal rules of the international law of treaties. This premise is drastically inappro-
priate because human rights treaties are fundamentally different from traditional
treaties simply because states do not have the same self-interested motivation for
enforcing human rights treaties as they do for their treaties on such matters as trade,
security, and boundaries. If human rights are incidentally included in the self-
interested motivation of states, then the outcome will still fail to benefit the victims
of violations because the nature, method, and duration of the action states are able
to take against other states that violate treaty obligations will be inappropriate for
protecting the human rights of victims for the following reasons:
Treaties determine duties and obligations among states, and the manner
and strategies for their implementation depends on such factors as whether the
state considers the breach serious enough to warrant a response against the
apparently offending states, and if so, what type or level of response is

considered appropriate. Factors and considerations affecting the response
include historical relations and current relative power relations among the
concerned states, opportunities for negotiated settlements or retaliation that
may take many years to arise or materialize in practice. In other words, the
determination of what constitutes a breach of treaty obligations, and what the
consequences for such breaches should be, is designed from the perspective of
states, not from that of the individual persons who may be victims of the
breach. If and when a state achieves a measure of remedy or redress for a
breach of a treaty involving violations of the rights of its citizens or persons
subject to its jurisdiction, it is that state as such which decides whether and in
what manner it wishes to compensate individual victims.
Consequently, the meaning and implications of human rights norms are
the product of negotiations among states, whereby the rights are binding only
on states, and can only be enforced or implemented by states. It was inconceiv-
able from that perspective for human rights norms to be defined, interpreted,
or applied independent of the same states that hold the exclusive competence
to violate as well as the obligation to protect those rights. If X tortured Y, then
that conduct may be a crime under the domestic law of the state where the
action occurred, but it cannot be a human rights violation unless the action
can be attributed to a state. Since only states can have rights and obligations
under international law, and can sue or be sued before international tribunals,
the entitlement of individuals to the protection of their human rights can only
be provided by the same entity that violated or failed to protect those rights in
the first place, namely, the state under whose jurisdiction the victim lives. This
is inherently problematic because the human being who is entitled to the
protection of his human rights is incapable of upholding those rights or
seeking redress for their violation under international law.
impossible and politically untenable for any state or an international organiza-
tion like the UN to stay in the territory of another state long enough to be able
to do what is necessary to protect human rights in that state. The point here is
not simply the prohibition of interference in the internal affairs of other states
and possible legal or practical exceptions to that principle. It is not only the
tragic spectacle of the professed international community waiting at the
borders of a state and requesting permission to enter to prevent or investigate
charges of human rights violations in that country, as happened in the case of
Darfur, Western Sudan following the massive killings and destruction of
communities since 2003. Rather, the point is that even when it is actually
undertaken, foreign intervention cannot succeed in achieving sustainable
Transformation, Mobilization Required for Universality 85
protection of human rights in any country. In other words, other states and the
international community at large do not have the political legitimacy, material
resources, cultural competence, language skills, etc., to be able to do what it
takes to protect human rights.
The fact that the human rights quality of an act or omission is limited to the
conduct of the state and its officials is precisely what is wrong with the present
system. It makes no difference to the victim whether the author of the conduct
is a state official or not, except that official actors are less likely to be held
accountable for violating the rights of those who are subject to the state’s
jurisdiction.
One of the reasons for limiting both violation and protection to the conduct
of the state is premised on a European conception of the state and inter-
national law. Both institutions facilitated the colonization of Africa and much
of Asia and Latin America. All former colonies inherited this European
conception of the state and of international law, including the premise of
protection of human rights as a legal obligation. Emerging postcolonial states
were supposed to be independent and sovereign, but both were juridical ideals
rather than empirical realities. This is one of the reasons I am calling for the
decolonization of human rights – because domestic postcolonialism and
external neocolonialism have persisted through the adoption and subsequent
application of the human rights regime up to the present time. I will therefore
argue for more explicit and strategic reliance on internal cultural transform-
ations and political mobilization of human rights values rather than on
formalistic notions of legal enforcement of international obligation. The
motivation for compliance and deterrence of violation in mutual international
law obligations in such matters of trade, security, and diplomacy is simply
inapplicable to human rights obligations among states. Rhetorical lip service
aside, the limited occasional pressure states are likely to apply on other states
in the interest of compliance with human rights norms presupposes a high
degree of economic, security, and political dependency on the part of states
subjected to pressure that reflects neocolonial relations and double standards.
This is another factor in calling this manuscript “decolonizing human rights.”
To make the point as candidly as possible, it is absurd that the underlying
complex and protracted human rights norms are assumed to be protected as
soon as a treaty is adopted by the UN or other organization. In fact, the human
rights presumed to be protected by the treaty, like rights of the child or
protection against torture, require many years of hard work and provision of
resources, education for officials and civilians, etc. for the relevant treaty to
have any impact on the relevant private actions or official activities in ques-
tion. Yet, liberal human rights scholars and practitioners are claiming
universal success on the basis of the mere ratification of the Rights of the
Child Convention or, at most, the enactment of domestic legislation imple-
menting presumed rights of children.
paradoxical founding narrative: phase two

Appreciation of the need to protect the entitlements and well-being of chil-
dren has existed in all cultures and ethical traditions, albeit each on its own
terms and by its own means. Until relatively recently, legal enforcement by the
state was the rare exception. The legal rights perspectives emerged with the
rise and entrenchment of the territorial state model through European colo-
nialism in the late nineteenth century. Realistically, protecting the entitle-
ments and well-being of children by casting these as legal rights, although it
may be necessary, is far from sufficient. The challenge is therefore how to
develop potential foundations of the entitlements and well-being of children
in every culture and community, on their own terms. The concept of univer-
sality of human rights is easy for all people to accept in principle as something
everyone must keep, provided it is not used to impose a normative content of
those rights that is determined by others for their practice in a different
context.
The present system of international law for the protection of human rights is
premised on the same notions of state protection and responsibility that are
used in traditional international law. Deeply entrenched in the history of
European inter-state relations, the basic idea is that sovereign states are legally
entitled and politically required to protect both their own citizens and other
people under the protection of the state. The inherent structural incompe-
tence of international law as the legal framework for the protection of human
rights is due to a combination of doctrinal and pragmatic reasons.
While domestic (national) law may change and evolve due to local or
limited political tensions responding to a limited number of significant actors
responding to each other, the motivation of lawmakers in national context is
usually regulated by the interests and concerns of a limited range of actors, in
view of national and regional dynamics of power relations among political
forces who are competing for political power in the state. In contrast, the
making and application of international law is hampered by the lack of neutral
institutional means for interpreting treaties and adjudicating the conse-
quences of breaching treaties. This can work well in matters of international
trade or financial regulation, for instance, but it is unlikely to work in the
interpretation and application of financial disputes or material competition
among states around the world.
Paradoxical Founding Narrative: Phase Two 87
Another aspect of the difficulty of protecting human rights through inter-

national treaties is that resolving the paradox of equal sovereignty in inter-
national legality versus democratic self-governance can be mediated through a
combination of institutional regulation, on the one hand, and legitimation by
cultural transformation and political mobilization on the other hand. Stated in
plain terms, international enforcement measures should be undertaken by
multilateral action by the most appropriate states.1
Consequently, for all treaties, including those setting human rights and
obligations, the terms of the treaty will not be sufficient for determining the
precise content and means of remedy or redress. Interpretation and imple-
mentation of treaties also the development of a host of procedural factors, such
as measures intended to protect the interests of both sides to a dispute while
the final adjudication or arbitration is determined by the panel of arbiters.
impossible and politically untenable for any state or an international organiza-
tion like the UN to stay in the territory of another state long enough to be able
to do what is necessary to protect human rights in that state. The point here is
not simply the prohibition of interference in the internal affairs of other states
and possible legal or practical exceptions to that principle. It is not only the
tragic spectacle of the so-called international community waiting at the
borders of a state and requesting permission to enter to prevent or investigate
charges of human rights violations in that country, as has happened in the case
of Darfur, Western Sudan following the massive killings and destruction of
communities since 2003. Rather, the point is that even when it is actually
undertaken, foreign intervention cannot succeed in achieving sustainable
protection of human rights in any country. In other words, other states and
the international community at large do not have the political legitimacy,
material resources, cultural competence, language skills, etc., to be able do
what it takes to protect human rights.
There is also serious doubt that the premise of legal enforcement of
international legal obligations can preempt human rights harm or ensure
certainty of effective and large-scale remedies to deter future violations. To
protect a person is to defend, guard, or safeguard in order to prevent harm
from reaching and affecting her. To enforce a right is to apply, impose it, or
1
By “most appropriate states” I mean those which have a legitimate interest in the outcome of a
dispute though they are not formally parties to an arbitration. For example, disputes and
mediation of disputes over the waters of the Nile basin in east and north Africa would
recommend some states and exclude others, but regional and international politics can also
complicate selection of the best states.
implement its benefit for the person who is entitled to that right. To provide a
remedy for the victim of violation or failure of implementation is to attempt to
penalize a perpetrator for the harm done or compensate the victim for the loss
of the benefit. Enforcing a remedy is supposed to deter a potential violator
from inflicting further harm in the future, but that depends on the certainty of
detection and accountability provided the remedy’s deterrent effect is not
diminished or evaded by the culprit. The logic of remedy is an assumption
of rational choice calculation by the violator of the right, whereby the cost of
the violator’s conduct exceeds the expected benefit of, for instance, keeping
political power or evading accountability for corruption.
The present international human rights regime is therefore not only a
distraction, but also a dangerous subversion of possibilities of effective and
sustainable protection of human rights through internal cultural transform-
ation and political mobilization. The legal enforcement pretensions of the
current human rights paradigm distort the concept and impede its legitimacy
and relevance to the lives of the whole of humanity, except for the tiny fraction
of political elites contesting political power in their respective states. The
blunt reality is that almost the entire population of the world whose rights
are routinely violated – often repeatedly – every day receive no protection
whatsoever from any of the international or regional human rights systems.
Moreover, there are no prospects of improvement in this situation under
the current paradigm of legal protection of human rights because the faults
are in the inherent limitations of the present state-centric international
legal system.
The overarching approach presented in this book consists of an analytical
move to apply a transformative approach of political mobilization building on
existing and prospective cultural transformation to achieve social and political
change in societies and communities. This framework is discussed in
Chapters 1 and 2, to expose and deconstruct the fallacy of the liberal relativist
claim to define and protect the universality of human rights for the entire
world. This rhetorical delusion is intended to conceal the liberal relativist
pretentions of universality of human rights in order to perpetuate neocolonial
imperial hegemony by the same geopolitical formations that perpetrated the
previous cycle of modern European colonialism. The task for this final
substantive chapter is to identify and develop the alternative approach of
people-centered universality and efficacy of the protection of human rights.
The ends and means of human dignity are fused in this people-centered drive
to the protection of human rights as realization of self-determination – where
people define and live by their own conception of human rights without the
mirage of reliance on the state to protect those rights.
One of the primary insights I seek to affirm is that universality of human

rights is a “consensus-promoting process,” and not a static ideological or
philosophical claim or neocolonial rationalization of global hegemony as
“civilizing mission.” In this chapter I will discuss the ambiguous relationship
of universality and uniformity of human rights norms, values, and institution.
On the one hand, universality means the entitlement of all human beings to
the same equal rights by virtue of their humanity, without any distinction on
grounds of sex, race, religion, national origin, and so forth. On the other hand,
uniformity refers to the uniform quality of the rights guaranteed by the
standard of universality. The risk of imposing uniformity on universality would
be the use of a single universal standard (derived from one culture or religion)
to judge any human right. Familiar examples of these tensions include the
threat of uniformity to universality where the standard of freedom of religion
or speech is exclusively judged by the internal standard of one religion or
culture. Stronger or more threatening tensions include determinations of
family and gender relations, education, and discipline of children. The
problem is that the conflict is resolved by external power relations without
internal legitimacy.
For example, the diversity of definitions and practice of rights among US
states is a clear illustration of the “threat of uniformity” in US domestic law.
We see clear examples of the threat of uniformity in the controversy about the
right to an abortion versus the “right to life” between states in the northeastern
and southeastern United States; if either group of states were to try to impose
its view of abortion as either a right or a crime in an effort to have “uniformity”
in the law on this issue, the country would either break up or have a second
civil war. If this domestic controversy is cast in global terms, the entire concept
of human rights immediately becomes problematic. For instance, imagine the
United States imposing its liberal view of abortion or free speech on Canada or
Mexico in the name of uniform human rights standards across the region. The
point at every stage of my analysis in the entire field of human rights can be
bluntly illustrated as follows: would the United States accept having any
human right imposed on it, even by those countries – such as the UK or
Canada – that are culturally closest to it? If the human rights field insists on
uniformity of rights between Europe and the United States or Canada –
let alone the rest of the world – there will be no human rights field anywhere.
The only possible way to protect any human rights norm is for that norm to be
defined and practiced by each society on its own terms. Advocates of human
rights would be struggling for the protection of human rights in their own
societies. The “C” in concept, content, and context would be that of each
society for itself. Over time, some degree of consensus will begin to emerge in
different societies. The purpose of this perspective is NOT to justify imposing

a uniform standard, but to secure the space for universality and uniformity to
evolve and become entrenched in social relations spontaneously through
cultural transformation and political mobilization.
If necessary and accurate information about human rights practice is left to
the propaganda of major powers and their foreign policy objectives, the entire
fabric of these rights and their rationale would collapse. From the beginning,
the UN human rights system has done much damage to the integrity and
impact of human rights by making them obligations and their implementation
subject to the limitations of international law for international organizations
and international relations. By lowering our expectations to “what states are
willing to do” to protect human rights, we not only lower expectation of
compliance, but also abandon the exceptional nature of human rights norms,
which are supposed to transcend the mundane territorial jurisdiction of the
state. If human rights norms are defined and applied by the state, then they are
no longer secured beyond the mundane jurisdiction of the state. In other
words, purported human rights norms will be at the same level of inviolability
as constitutional rights or lower. There is intersection and overlap between the
rationale of the rights of all human beings by virtue of their humanity, on the
one hand, and the constitutional rights of citizens and lawful residents by
virtue of membership in a political and social group, on the other. Both sets of
rights are supposed to be entrenched against the contingencies of national
politics, but the scope and rationale of these sets of rights are different.
There is a lot of noise and commotion on the international scene about
extremely serious and urgent human rights concerns revealed through, for
instance, publication of reports by states or experts, periodic meetings, work-
shops, media coverage, etc., but none of that constitutes protection of human
rights as such in a liberal sense of the term. At best, such activities are about
raising awareness, and publicizing concrete instances of rights violations in the
hope of initiating actions and mechanisms to hopefully prevent further viola-
tions. Whatever is proved in terms of human rights norms is in fact civil rights
because it requires action by national governments to legislate a universal
human right into domestic civil rights for national courts to enforce or
domestic authority to implement. Calling it “human rights” does not change
the fact that it is a civil right because it will be available to all human beings by
virtue of their humanity. There is a great deal of NOISE in the media around
some special occasions (e.g., national elections) and among specialized elite
groups, which fail to distinguish between human rights – those available to all
human beings by virtue of their humanity – and civil rights, which are defined
by the state and restricted in their application to less than a universal
entitlement of all human beings. Two outrageous examples of this are the
International Religious Freedom Acts of 1998 and 2020, which are purely
domestic statutes enacted and promoted by the US Congress as instruments
for the international protection of religious freedom. Another way of manipu-
lating discourse to fit national politics is deliberately misnaming domestic
legislation or policy as “international” or “universal.” For instance, we hear
about the “intention” of the president of the United States, the president of
France, or the prime minister of the United Kingdom (as the case may be) to
“raise human rights issues” with the president or prime minister of some
postcolonial state, but we never hear about whether or how the outcome
can be in favor of protecting human rights on the ground. When the visit is for
economic/security relations, human rights tokenism is merely the fig leaf for
the domestic politics of the United States, France, or the United Kingdom,
while the “target” country has its own familiar well-rehearsed set of responses.
Since neither side in such pretentious performances has any intention or
expectation of actually making “a human rights difference,” it would be futile
to wait for any level or form of human rights protection to emerge.
Fortunately, the rest of the world can move on to seek real outcomes for the
protection of human rights instead of waiting on states, governments, and
inter-governmental organizations to play their power games, which never yield
any sustainable protection of the rights of human beings. This is a game of
“make-believe” for the diplomats and other official actors, though the out-
come is deadly serious for people who are either already victims of human
rights violations or likely to be. The integrity and credibility of the premise or
analysis of this book cannot be challenged because the charges I am making
are easy to verify and confirm or refute. The real challenge for this book is to
present a credible alternative strategy for the present futile masquerade of
international and regional human rights systems.
As already explained in this book, the credible alternative strategy is to
promote the authority of human rights doctrine and specific norms by pro-
moting their legitimacy through cultural transformation and advance their
efficacy in changing both social practice and state policy through political
mobilization within the community. The question with this strategy is not
about how long it takes or what it needs to succeed, because there is no
alternative. The entire project of human rights can succeed or fail only
through cultural transformation and political mobilization, regardless of how
long it takes and what else it needs to succeed. As I have argued throughout
this book, there is no possibility of coercive enforcement of human rights
norms, not only because of practical and logistical difficulties, which are
paramount and structural, but more importantly because any outcome that
results from enforcement – regardless of what is expected or hoped for –cannot

be a human rights outcome at all.
There is no mystery about the phrase “cultural transformation and political
mobilization,” or magic in how it works in practice because this is how any
significant change in human behavior has ever been achieved – and will
continue to be achieved – throughout the history of human societies.
Whenever a normative claim is perceived to be in conflict with an entrenched
value system – such as racism, religious bigotry, ethnic chauvinism, or anti-
Semitism – it is futile to expect positive and sustainable change in the social
practice of discrimination and other related hostile and intolerant attitudes
and behaviors without concerted efforts to change the underlying values and
rationalization of hostility, exclusion, and related cultural norms and prac-
tices. Political mobilization is necessary for generating the will to enact
appropriate legislation and policies, allocate material and human resources,
and pursue other measures, including coercive enforcement when necessary.
As can clearly be observed in any initiative for significant change to human
behavior in any society, anywhere, success or failure hinges on transforming
attitudes and mobilizing political will in favor of the desired change.
This view is particularly important for upholding human rights principles
and institutions because of the dialectic of ends and means, whereby positive
change cannot and should not be promoted through coercive means.
Legislative and policy initiatives in democratic societies of the Global North
are almost never the result of associations with established favorable cultural
attitudes or promoted through political mobilization of relevant constituen-
cies, and they are never coercively imposed by governments. The question
I am raising at this point is: why do we accept the rationalization of top-down
imposition of human rights norms to work in developing postcolonial societies
of the Global South, when this was absolutely out of the question for banning
the death penalty in Western Europe in the 1980s, or attempts by West
European states and NGOs to campaign for sharing this civilizing achieve-
ment with the United States?
It is imperative, I believe, to proactively pursue cultural transformation and
political mobilization in favor of whatever human rights norms and values one
seeks to advocate and promote in all societies and communities of both the
Global South and the Global North. To proclaim human rights norms, as
conceived and experienced by societies of the Global North, and to expect
those same norms to be accepted and protected in the Global South is to
assume the moral leadership of materially developed societies of the Global
North, conceding the “civilizing mission” they claimed to justify their colonial
domination and neocolonial hegemony over the Global South. The point
here is not only that this is unfair and condescending, but more importantly, it
is simply not working now and will not work in the future. So, let me briefly
explain what this shift in perspective entails and how it is already required for
the proper working of the present national and international systems.
The distinctive quality of the idea of human rights is that it is about the
rights of all and every human being as such, everywhere, and at every level.
Even when these rights are protected in practice under national constitutions
and legal systems, their human rights quality requires them to be secured for
every human being who is subject to the jurisdiction of the state, regardless of
her legal status in the country, instead of being limited to citizens. There is
nothing remarkable in the modern era about protecting the rights of citizens
when they happen to coincide with proclaimed human rights norms, unless
such protection equally applies to refugees and undocumented aliens who
lack legal protection from their state of national origin.
This human rights quality is the basis of my call for focusing on internal
cultural transformation and political mobilization instead of unproductive
reliance on state-centric articulation and enforcement of human rights norms.
My proposal is about generating and sustaining a productive role for the state
within the people-centered approach, rather than negating or discarding that
role. The reason for emphasis on a globally inclusive human rights quality is
not to deny the practical need for protecting these rights under national
regimes, but to anchor that protection in a sustainable and democratic
foundation of popular acceptance and mobilization of political willpower to
act accordingly.
My argument is premised on two commonly acknowledged principles.
First, any domestic and international legal system or any other normative
system presupposes voluntary compliance as the norm and coercive enforce-
ment as the exception. No enforcement system, be it the penal law of a
country or the regulations of a professional association or social club, tolerates
constant systemic violations. Second, voluntary compliance requires genuine
and entrenched acceptance of the validity and legitimacy of the norms in
question. In view of this readily apparent reality, human rights norms cannot
be protected in practice by their mere proclamation by states or international
organizations except to the extent that the underlying values are entrenched
through internal cultural transformation and galvanized into policy and prac-
tice through political mobilization.
The challenge of universality of human rights and the need for cultural and
political responses to that challenge faces every society, regardless of the
degree of its economic development or political and social cohesion. Every
society tends to accept some norms as universal human rights norms, while
excluding some norms that other societies recognize as human rights norms.
Even presumably similar societies, such as those of the United States, the
United Kingdom, or France, agree on some norm like freedom of expression
or of religion, but they tend to disagree about the scope and implications of
the norm.2 In other words, every culture or ideology of any society is bound to
have its moral blind spot regarding some claims that it does not acknowledge
as human rights.
Internal cultural transformation and political mobilization are necessary for
the acceptance of the idea of universality itself, and of whatever claims of
human rights a particular society refuses to accept. This approach seems to
have been favored by the founding vision of the Universal Declaration of
Human Rights itself. Both the proclaimed “value added” of universality of
human rights and the pragmatic means for their “universal and effective
recognition and observance” are in plain view in the Preamble of the
Universal Declaration of Human rights, which provides:
… The General Assembly Proclaims this Universal Declaration of Human
Rights as a common standard of achievement for all peoples and all nations,
to the end that every/individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by teaching and education to
promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition
and observance, both among the peoples of Member States themselves and
among the peoples of territories under their jurisdiction. (Emphasis added.)
By proclaiming human rights as a common standard of achievement for all

peoples and all nations, the United Nations General Assembly intended to
assert human rights norms as an external, independent standard by which the
domestic performance of states is measured. This goal is to be realized by
“teaching and education,” to achieve the “recognition and observance” of
these rights.
This foundational view of the Universal Declaration is fully consistent with
the global historical reality that there is in fact a much higher and broader
level of practice of human rights norms and values in spontaneous social
relationships outside the framework of the state and state-centric legal enforce-
ment. Since in the final analysis, every human rights violation or protection
always begins with a person doing (or failing to do) something to another
person, the whole paradigm depends on the values and the political choices of
people everywhere. Spontaneous conformity with human rights norms is what
2
See, for instance, Gunn, “Religious freedom and Laicite,” pp. 420–506.
makes social life possible, as well as being the basis of the notion of universality
of human rights as entitlements of all human beings around the world. In a
related sense, Eleanor Roosevelt – the Chairperson of the Human Rights
Commission, which drafted the Universal Declaration – said:
Where, after all, do universal human rights begin? In small places, close to
home – so close and so small that they cannot be seen on any maps of the
world. Yet they are the world of the individual person; the neighborhood he
lives in; the school or college he attends; the factory, farm or office where he
works. Such are the places where every man, woman and child seeks equal
justice, equal opportunity, equal dignity without discrimination. Unless these
rights have meaning there, they have little meaning anywhere. Without
concerned citizen action to uphold them close to home, we shall look in
vain for progress in the larger world.3
Eleanor Roosevelt could only speak from her experience in a society where
people go to school or college and work on farms or in factories or offices, and
could not reflect the experiences of, for instance, nomadic peoples of the West
African Sahel region, but her focus on a people-centered approach is beyond
dispute. The free acceptance of human rights norms as such is essential for
sustainable protection because there is no possibility of enforcement without
the political will to allocate resources and the cooperation of the human
beings who are supposed to apply the enforcement regime. It is futile to
expect the protection of human rights through the adoption of treaties and
declarations and the ritualized examination of reports by states of their own
compliance. Neither can compliance be expected to follow from enacting
domestic statutes and policies, launching publicity campaigns, or condition-
ing aid to poor countries on the human rights performance of their
governments.4
Whatever apparent compliance is perceived through economic or security
pressure by other states in fact reflects neocolonial power relations. In the
realities of what I call “human rights dependency,” the power to influence
human rights policies and legislation always flows from former colonial and
richer countries of the Global North against former colonies and poorer
countries of the Global South, and never the other way around. Still, we need
to understand how the protection of human rights can still benefit from “state-
3
Roosevelt, “In Our Hands.”
4
As can be seen in the case of Female Genital Mutilation, discussed by Hopgood in his book
The Endtimes of Human Rights (2013).
centric enforcement” in reaffirming the founding people-centered doctrine of

the Universal Declaration.
To begin with, states had the power of creating and convening international
organizations, such as the United Nations itself, which are presumably
founded on the equal sovereignty of state members of those organizations,
despite the realities of their inequality in power and wealth. Yet, those
developments contributed to global geopolitical relations which facilitated
the process of decolonization and promoted a dynamic of self-determination
in international relations.
Another development in favor of the protection of human rights is the rise
in the protection of constitutional rights in some countries. Although that was
initially primarily of the rights of citizens, and the specification of the rights
and remedy for their violation were at the state’s discretion, the expansion and
entrenchment of the process encouraged people to organize to demand their
entitlements beyond the discretion of the state.
A third factor to be briefly noted here is that the idea of universal human
rights was totally inconceivable under colonial and imperial rule, where the
vast majority of human beings around the world had no possibility of having
their rights respected even as citizens of their own countries. It was only after
these colonized people achieved political independence that the potential
possibility of universal human rights emerged during the second half of the
twentieth century for the first time in human history.
In conclusion so far, there is no need for structural changes in the present
state-centric regime, although I have very low expectations of good human
rights outcomes from the status quo, provided the negative features for the
present regime for this purpose can be diminished in two ways. First, by
ensuring consistent practice of the rule of law in international relations, for
instance, to realize the promise of equal sovereignty and effectively prevent
reckless attempts at so-called humanitarian intervention. Second, by continu-
ing to promote strategic and systemic reliance on cultural transformation and
political mobilization, instead of waiting for legal enforcement to achieve
sustainable human rights outcomes.
The most crucial aspect of my conclusion so far is that there is now
sufficient development of the effective agency of human subjects throughout
the world. As has often happened in other transformative phases in human
history, the age of colonialism is over and its attempt to survive via neocolonial
strategies is also failing. The cause and effect of this and related changes is the
rise of total and systemic self-determination within and among societies.
Women, the disenfranchised, and marginalized groups everywhere are realiz-
ing their equal human dignity and self-determination as a right, and not
Mediating Competing Perspectives 97
waiting for it to be granted by the elite or traditional power structures of their

societies. The trends of these and related geopolitical, cultural, and political
transformations since the middle of the twentieth century are now irreversible,
and are bound to advance to their logical conclusions on their own terms.
This is how change happens in the world – the more consistent the means
become with the ends, the more legitimate and sustainable outcomes become.
Since we are unable to evaluate the true nature and value of the change we make
except in retrospect, we look back over time to evaluate the outcome in relation to
what else is happening in the same time frame. Whether the outcome of change
is “good” or “bad” for the community in question is the subject of ongoing
subjective judgment. What I may judge in positive terms at one time – or in light
of additional information or consideration of other factors – can appear to be
negative at another time or in light of additional or different information. It is
therefore wise to always hold tentative judgement, that is open to change or
revision, because it is not in our human nature to identify what is good or bad in
absolute, permanent terms. As Oliver Cromwell is reported to have said:
“I beseech you, in the bowels of Christ, think it possible you may be mistaken.”5
As his own actions confirmed, however, Cromwell himself failed to uphold
that caution, and the same is true of countless political and opinion leaders, and
religious scholars throughout the history of human societies and across the
world. The same is true of me, of course, so the best I can do is to remind all
of us about the inevitability of subjectivity for all human beings of every religious
or cultural affiliation, ideological or philosophical orientation. Since sounding
this caution does not “cure” our thinking or judgment of the weakness of
inherent subjectivity, we must construct the best safeguards and strategies of
transparency and accountability we can devise or implement. The following
review does not claim to address the entire issue in its various manifestations and
implications, but only to add or refine what I have argued elsewhere in this book
about the dialectic of universality and uniformity of human rights.
mediating competing perspectives

The key contested issues and approaches to any consideration or evaluation of
human rights theory, policy, practice, always come from a specific, relativist
perspective. At the most basic level, the question is simply what do people
mean, or what are they thinking, assuming, projecting or expecting when they
speak of “human rights”? Such questions are always included or implied in
5
Oliver Cromwell, letter to the general assembly of the Church of Scotland (3 August 1650).
any inquiry on or analysis of the foundations or justification, application, or

evaluation of practice. The key insight I have relied on when addressing this
question is to emphasize that it must necessarily come from the person’s
subjective perspective. In view of the inevitable varieties of perspectives,
I propose to present the issue in terms of a range or continuum, without
assuming or implying a ranking or preference. Every ranking or preference is
relative to the person or perspective from which it comes. The advantage of a
continuum is that it enables one to engage in analysis of changing perspec-
tives, which enables mediating perspectives to acknowledge the value of each
to one or more sides of the debate.
On one side of the continuum, and by virtue of the concept of self-
determination that is inherent to the rationale of human rights, these rights
must be specified and protected by people everywhere for themselves by
themselves, which is what I call a “people-centered” approach. This view
seems to be pragmatic and feasible because it calls for a shift in perspective
in working with the existing norms and institutions of domestic and inter-
national practice that have evolved since 1945–1948, instead of discarding all
that has been done and starting over again. At another side of the continuum,
since coercive imposition of purported human rights values and institutions is
unacceptable to any society, the principle of reciprocity (the Golden Rule)
precludes all societies from attempting to impose their values and ethical
norms on others. To disregard this elementary foundation of all human rights
is to concede the contrived rationalization of colonial and neocolonial “civil-
izing mission.” It is a contradiction in terms for human rights to be “protected”
in ways that violate all sorts of individual and collective human rights of the
very people whose rights are supposed to be protected.
Mediation is already happening when there are no winners or losers
because there are no objective criteria for a categorical answer. Each side
includes an indefinite series of “from whose perspective?” or “whose point of
view?” More importantly, truly fundamental questions do not have a single,
categorical answer, which enables people to continue wrestling with the
question and find their own answer. The more the question is asked by
different communities and generations, the better the question becomes in
enlightening and inspiring new ways of thinking about the field and its
creative possibilities.
This perspective is already reflected in how differences of opinion or
variation of views over the outcome remain inevitable. As Peg Birmingham
said, “to argue that it is up to individuals to claim rights through a debate is to
miss the political urgency: those who desperately appeal to human rights are
often those who are in no position to be recognized as claimants before a
tribunal that has already decided against them.”6 These two perspectives are
not necessarily mutually exclusive, if the protagonists do not insist on casting
their positions in absolute terms.
Another variety of perspective can be seen in the work of Francis Deng, as
represented by William Twining as adopting a cultural approach to human
rights and democracy that involves seeing tradition as supplementing and
informing abstract values and principles. Human rights and principles of
democracy are universal, in Dr. Deng’s view, but only at a very abstract level.
For example, even though Dinka (the Nilotic tribe of Sudan (now South
Sudan), who are changing the core values that have sustained their identity,
yet some aspects of Dinka are very open to criticism.7 “In order to appreciate
Dinka self-perception, their world view and cross-cultural perspectives on their
material status, it is necessary to understand the indigenous cultural frame-
work of their values, institutions and patterns of behavior.”8
Parallel processes that have contributed to the protection of human rights as
mediation of competing perspectives include, first, the role of states that had
the power of creating and convening international organizations, such as the
United Nations itself, which contributed to global geopolitical relations,
which in turn facilitated the process of decolonization and promoted a
dynamic of self-determination in international relations. Second, another
development in favor of protecting human rights is the rise in the protection
of constitutional rights in some countries. Although that was initially primarily
of the rights of citizens, and the specification of the rights and remedy for their
violation were at the state’s discretion, the expansion and entrenchment of the
process encouraged people to organize to demand their entitlements beyond
the discretion of the state.
Yash Ghai has presented an analysis of the competing perspectives behind
the Bills of Rights of India, Canada, South Africa, and Fiji,9 but it will suffice
for my purposes here to review his analysis regarding both the Indian and
(more briefly) the Canadian Bills of Rights. He finds that while Indian
politicians took the initiative to begin formulation of a Bill of Rights, the
focus was on nationalization and unification, as opposed to protecting cultural
values and traditions. The goal of the Indian Bill of Rights was to eliminate
differences, rather than protect them. However, the Bill did contain provisions
that were designed to protect minorities.
6
Birmingham, Hannah Arendt and Human Rights, pp. 11–12.
7
Twining, Human Rights, p. 8.
8
Ibid., p. 10.
9
Ghai, “Universalism and relativism.”
The initiative for a bill of rights came entirely from Indian politicians . . .
Indians first expressed an interest in a bill of rights due to their resentment of
the privileged position of the British . . . As early as 1928, the Indian National
Congress established a committee representing a wide cross-section of opin-
ions and interests to prepare a declaration of rights as part of the consti-
tutional review.10
Still, special attention had to be given to minority rights. “Since religion was a
major source of division and conflict, there are several provisions for the protec-
tion of religious beliefs and practices. All religious groups are entitled to set up
institutions to own property and to manage their religious affairs. Minorities have
the right to preserve their languages, script, and culture, and to establish their own
educational facilities.”11 Accordingly, Ghai confirms that “The clear thrust of the
Indian Constitution was towards national integration, which, at the time, by and
large took precedence over issues of social reform . . . The debates centered
around what would most effectively lead to the elimination of divisions in society,
not over the preservation of cultural values and distinctiveness.”12
Ghai continues:
The primary aim of the [Canadian] Charter does not seem to have been the
strengthening of rights, which were generally well-protected under the law
and traditions of Canadian polity. . . The push for the [Canadian] Charter
came from then-Prime Minister Pierre Trudeau, who was worried about a
growing feeling of provincialism and wanted to offer Canadians an identity
they could all embrace.13
Thus, paradoxically, proposals for the Charter reinforced the very identities that
Trudeau, given his liberal predilections, was most anxious to transcend through a
universal regime of rights, though within each skeptical group – particularly the
Francophones, aboriginal people, and women – there were minorities who
responded more positively to the Charter. The drafting of the Charter, therefore,
in large measure consisted of negotiating among competing claims.14
Multiculturalism was explicitly protected in the Canadian Charter, though it

was not clearly defined. According to Article 27, “This Charter shall be
interpreted in a manner consistent with the preservation and enhancement
of the multicultural heritage of Canadians.” Yet, “It is uncertain whether
10
Ibid., p. 1104.
11
Ibid., p. 1111.
12
Ibid., p. 1114.
13
Ibid., pp. 1114–15.
14
Ibid., p. 1116.
‘multiculturalism’ implies state neutrality between cultures or active state

engagement with the propagation of different cultures.”15
Continuing his analysis in relation to South Africa, Ghai frames the anti-
apartheid movement as a movement for rights, rather than a movement rooted
in race.16 “In none of these approaches was culture or religion an issue. The
only group which had a distinct cultural approach consisted of some African
traditionalists, mostly chiefs, who wanted recognition of their own status and
the preservation of traditional institutions and laws.”17
Ghai also finds that: “the most general principle was that: Everyone shall
enjoy all universally accepted fundamental rights, freedoms and civil liber-
ties.”18 I find this reference to all universally accepted fundamental rights,
freedoms and civil liberties paradoxical and confusing, because it assumes
the universality which is being disputed without explaining how it can be
achieved in practice.
Racial, gender, and other forms of discrimination were prohibited and the
state was to promote racial and gender equality and national unity. The right
to equality between men and women and people of all races was strongly
endorsed. Equality was seen positively as including programs or activities,
which indicates affirmative obligations of economic, social, and cultural
rights, and not merely in the negative sense of civil rights. Section 7 of the
South African Constitution states that: “This Bill of Rights is a cornerstone of
democracy in South Africa. It enshrines the rights of all people in our country
and affirms the democratic values of human dignity, equality and freedom.”
“The freedom of expression, otherwise broadly defined, expressly exempts
from its protection ‘advocacy of hatred that is based on race, ethnicity, gender
or religion, and that constitutes incitement to cause harm’.” This balanced
view of these rights is essential in contrast to the exaggerated and destructive
scope of free speech in the constitution of the United States. Ghai finds that
human rights in South Africa is more concerned with the balance of power
and justice, rather than cultural protection. I’m not sure that these concepts
are mutually exclusive. I see them as more interrelated than Ghai appears to
understand them.
15
Ibid., p. 120.
16
Ibid., pp. 1123–24.
17
Ibid., p 1126. I wonder here whether Ghai is assuming his own view of culture or religion to
imply that the concerns of African traditionalists, etc., were not sufficiently matters of “culture”
or “religion.”
18
South African Constitution (Constitutional Principles, Schedule 4 to Act 200, 1993, as
amended) II.
5
Human Rights Are the Measure of Our Humanity
The conclusion I find appropriate and credible for this book should be about
practical action instead of theoretical abstraction. With human rights as the
ultimate measure of our humanity, our focus should be on strategies for action
by the most inclusive measures. Working on cultural transformation requires
engaging issues of public ethic and socializing children to instill appropriate
values of transparency and accountability in public service. The key factor in
this process of cultural transformation is the intuitive and spontaneous manner
by which the promoters of these values practice what they preach. The object
should be to internalize and promote values of compassion and empathy with
minorities and marginalized communities. Yet, the objective should never be
to excel or prevail over others because that will diminish the communal values
needed to accomplish the task.
There is currently no system of legal protection for human rights anywhere
in the world that identifies them as the rights of every human being by virtue
of his humanity. By the time human rights treaties are incorporated into
domestic legal systems, the outcome of their application is protection of
constitutional civil rights, and not protection of universal human rights. Due
to the dominance of colonial liberal relativism, the choice is therefore not
between some degree of protection of universal human rights versus less
protection under one alternative approach or another. The choice I am
suggesting is between no protection under the liberal relativism of the current
international legal system, or some degree of possible protection under the
proposed indigenous formation of human rights. Though it remains possible
for such formations of human rights to achieve universality, this will be a
102
Human Rights Are the Measure of Our Humanity 103
gradual and incremental process, occurring through what I call internal

discourse and cross-cultural dialogue.1
As proclaimed in the Preamble of the Universal Declaration of Human
Rights of 1948, human rights are the “common standard of achievement for all
peoples and all nations.”2 The premise of this book, and the arguments in
contains, do not question the desirability or the possibility of what this
proclamation represents. Rather, this book raises the question of how human
rights are to be identified and upheld by all human societies in spontaneous
daily practice and deliberate conformity with the humane rationale of the
doctrine and the evolving contents of its norms. By this measure, the current
claim of international protection of human rights is an empty promise that is
not, and cannot be, realized anywhere in the world today. Since this negative
outcome is inherent to both the lack of globally inclusive legitimacy and the
inadequacy of legal protection for human rights. After more than forty years of
teaching and personal and professional advocacy of strategies for filling this
gap between theory and practice, I have come to accept that such reconcili-
ation requires a paradigm shift on both sides of the argument, and I seek to
present a workable model of what I call the paradigm of cultural transform-
ation and political mobilization.3 Some aspects of that history are reflected in
this book, which include my early uncritical acceptance of liberal relativism,
and gradual shifting to a more balanced position since the late 1990s.
I will begin this final chapter with an explanation of the inevitable paradox
of the universality of human rights project, on the one hand, and relativity of
every cultural, ideological, or geopolitical premise or rationale of the inter-
national protection of these rights, on the other. Drawing on this analysis,
I will move on to explain applying the proposed paradigm shift to the
perspectives of various constituencies that are struggling to protect universal
human rights from the local to the global scale. In the final analysis, I believe
that by opting for people-centered cultural transformation and political mobil-
ization instead of state-centric coercive legality, I am seeking to integrate the
ends and means of human rights. Human beings are the ends and means of
1
First explained and applied by several scholars of different cultural groups in An-Naim (ed.),
Human Rights in Cross-Cultural Perspective.
2
Preamble of the Universal Declaration of Human Rights. (1948). Available at: www.un.org/en/
universal-declaration-human-rights/. Accessed April 13, 2020.
3
I started teaching international human rights law at the Faculty of Law, University of
Khartoum, Sudan, in 1976. I started teaching this subject at the Sudan Police College in 1979.
I have also joined various human rights organizations in Sudan and elsewhere in exile since
1985. I started publishing articles, book chapters, and books since the early 1980s. My first book
on Sharia and human rights was Toward an Islamic Reformation.
104 Human Rights Are the Measure of Our Humanity
the protection of their own human rights as inherent to their own dignity and
self-determination.
In contrast to the patronizing and hegemonic neocolonial international
system, the alternative I am proposing is the foundation of all positive change,
namely, the agency of the human subjects, working through their own strat-
egies and ethical resources, trial and error, and sustaining the struggle for
change, however long it may take. The proposed methodology of cultural
transformation and political mobilization is consistent with the dignity of
human subjects of the system by entrusting them with the authority to decide
what they believe their human rights to be, as well as the power to implement
their own choice. The charge is for all advocates of human rights in every
community to apply their energy and resources to changing attitudes and
behavior that are counterproductive to human rights. Common human
experience confirms that changing attitudes and behavior in a wide variety
of human societies ensures sustainable change in daily behavior more than
changing legal norms and institutions.
Moreover, the problem is that the international human rights framework
and its norms and institutions have already been shaped and conditioned by
Western liberal values and institutions since the 1948 adoption of the UDHR.
This may be appropriate for Western states and satisfactory for their societies,
but it regresses the possibility of achieving truly universal human rights. To
acknowledge the liberal cultural and ideological relativism of the framework
and content of the UDHR is only the first essential step toward overcoming
the root causes of the present system’s failure. Understanding the causes and
dynamics of that model’s failure is necessary but insufficient for developing
strategies for effectively and sustainably protecting human rights at the local
and global levels.
There is currently no system for protecting human rights anywhere in the
world that acknowledges them as the rights of all human beings by virtue of
their humanity. In this sense, my criticism of the present system is firmly
accurate in terms of its definition of the essential criterion of human rights as
being the rights of all human beings. My criticism is also valid in view of the
ability of states to control the criteria of jurisdiction and other requirements of
legal enforcement. The state controls the ratification and scope of obligation it
assumes under all treaties, including human rights treaties, by including
reservations, declarations, and understandings. Another broad limitation of
obligations among common law countries is that non–self-executing treaties
must be incorporated into the domestic law of the country in question by
domestic legislation intended specifically for that purpose. The result of this
requirement is that treaty-based obligations, rather than being universal
Habit of Force or Force of Habit? 105
human rights, become subject to the domestic law of the countries in which
they are accepted.4
The framework and norms of the UDHR were not universal at the time of
its adoption by the UN General Assembly in December 1948, when there was
no attempt to even define universality, whether normatively or empirically.
The permanent and profound cultural diversity of human societies around the
world precluded establishing theoretical consensus of human rights norms.
Instead of seeking strategies for promoting universality of human rights, the
emerging concepts and institutions of the entire field were simply assumed
and “swept under the carpet.” Universality was therefore neither clarified nor
promoted. The notion of universality could not evolve subsequently to the
adoption of the UDHR because the entrenched liberal view of “right” is
incapable of yielding a universally valid normative outcome.
Inter-governmental organizations such as the UN are neither competent
nor authorized to speak for global humanity on profoundly intimate concerns
about what is due to human beings by virtue of their humanity. As an entity
created by member states, the UN can serve as a conduit for action by states in
fulfilling the purposes and functions of the organization, but it cannot initiate
independent action except in implementing action that has already been
authorized by member states. Such factors are deeply entrenched in the
liberal premise and institutional structure of current international law and
its implementation: once the protection of human rights was conceived in
liberal terms of legal rights and individual judicial remedy, the theory and
practice of the entire field became doomed to the paradox of conception and
frustration of its purpose and rationale.
habit of force or force of habit?

The process of incorporating international human rights norms is supposed to
operate at the stable and predictable level of English/American Common Law
but is in fact working with multiple normative systems. The difficulty I am
referring to here is due to the multiple sources of the normative/legal author-
ity. A human rights treaty, like all other treaties, begins with the authority of
international law, which is binding on the state on the external front of
international law. Yet, treaties cannot work on the internal front in a common
law context, i.e., to be applied by domestic courts without first being incorpor-
ated by statute into the national legal system of the country. The difficulty of
4
Dutton, “Commitment to international human rights treaties,” p. 1.
understanding how international treaties work – or rather, do not work – in

national jurisdictions is because the relationship of different legal systems
through the process of incorporation is not explained and discussed in relation
to the country’s specific legal and political system. The fact that the process
applies in common law jurisdictions does not mean it works in precisely
identical terms in all former British colonies. Instead of engaging in detailed
analysis of this process in the country in question, the courts and other organs
of the state tend to operate with either the habit of using force or the force of
habit in enforcing the treaty domestically. In either case, human rights treaties
are more likely to be misunderstood by those applying them than they are to
be understood and properly applied. The practical outcome of human rights
treaties is likely to be misleading or inconsistent across international and
domestic jurisdictions.
To begin with, former colonial powers, including the United States and the
Soviet Union/Russia, were deemed to hold exclusive sovereignty over their
colonies and their population. For instance, the entire Indian subcontinent
lacked any standing under international law except as and to the extent it was
“represented” by the United Kingdom. According to that view of sovereignty
and competence under international law, the vast majority of the peoples of
Africa and Asia were deemed by Eurocentric international law to lack any
competence to speak for themselves about their own view of human rights
simply because their most fundamental collective human right to self-
determination was denied by the same colonial powers that had proclaimed
the UDHR in Paris on December 10, 1948. This strict exclusion of human
beings – the subjects of human rights – from the conception, formulation, and
implementation of those rights continues to the present day.
This common reaction to the core thesis of this book is not only irrational in
theory and false in practice, but a wide range of officials, institutions, and civic
advocates are likely to dismiss my critique and analysis without ever having
considered the basis of their position. The frequent response I receive is the
categorical assertion of the “self-evident” universality of the human rights
paradigm as framed by the UDHR, without reflecting on the practical diffi-
culty of identifying credible evidence to support the claim of universality.
Some proponents of the UDHR would even cite the practical difficulty of
proving universality as the primary reason why their claim should be accepted,
regardless of any indication to the contrary. Since neither approach can
change the reality that the UDHR is in fact a set of normative assertions from
a liberal relativist perspective, the question is about the implications for the
entire current international system. The presumed need and implications of
universality itself must be questioned as the latest version of “the civilizing
mission of the white man,” which was used to justify European colonialism.
This notion continues to justify postcolonial hegemony and its imperial
consequences in trade and international relations.
To put issues in perspective, people have struggled for individual freedom
and social justice throughout the history of human societies, starting thou-
sands of years before the idea of universal rights was ever conceived. When this
idea was popularized around the middle of the twentieth century, the claim of
universality was presumed and proclaimed by the colonial powers, which
dictated the premise and terms of universal human rights in the absence of
the majority of humanity in whose name that claim was made. Seven decades
later, there is neither an established standard for evaluating this claim of
universality nor credible methodology for verifying the claim’s empirical
viability. As I have demonstrated in this book, the international legal frame-
work on which the UDHR is expected to rely to achieve actual protection of
human rights is incapable of delivering on that promise. Confirming the
current system’s obvious inability to achieve actual protection of human rights
is therefore a necessary step toward sustainable protection for the rights of
human beings as such.
I am challenging the fallacy of the UDHR’s claim of universality and its
aftermath in order to uphold the possibility of true universality of human rights
through cultural transformation and political mobilization. I use the term
UDHR as a metaphor for the entire international rights system developed
since the 1945 adoption of the UN Charter, including all regional systems,
international organizations and institutions, and governmental and nongo-
vernmental organizations. The strategy shift proposed in this book does not
mean that all existing human rights treaties should be repealed, or that insti-
tutions in New York, Geneva, Vienna, and the Hague should be dismantled,
nor that all field operations related to human rights should be terminated. On
the contrary, I would encourage professional practitioners and civil society
activists working in or with the current system to make maximum use of the
system’s benefits or advantages for the protection of human rights.
In any case, promoting the protection of human rights through cultural
transformation and political mobilization is already happening at all levels and
locations. What I am calling for is the immediate termination of any activities
that tend to undermine or obstruct the work of cultural transformation and
political mobilization. With all these factors still working, my contention is
that the current system’s influence will diminish and that the influence of
cultural transformation and political mobilization will increase over time.
While this is my contention, I realize that there are no mechanical guaranties
in matters of social and cultural change. The futility of the current state-
centric system is beyond dispute in my view, though the outcome of cultural

transformation and political mobilization may not achieve the desired out-
come for all perspectives in human rights.
I am raising this challenge because the supreme value of universal human
rights cannot be realized through the present paradigm. Whatever “rights” are
protected or respected under the present international and regional systems,
the outcome will inevitability be in terms of the rights of citizens and subjects
of states, not the rights of human beings by virtue of their humanity. The
UDHR is not only incapable of realizing the vision of universal rights of
human beings as such, but also a dangerous distraction from the possibility
of true universality. The fallacy of the current paradigm is also the source of
positive harm to human beings around the world because it authorizes and
legitimizes exploitative economic and security relations and creates barriers to
protecting the entitlement of all human beings to what they are due by virtue
of their humanity.
The purpose of the challenge I am presenting is to withdraw the moral
authority and political power of a globally inclusive consensus among all
peoples of the world on a specific set of human rights principles. The moral
authority and political power of universality should not be conceded to an
exclusive process (i.e., the liberal relativism of former colonial powers) to
continue projecting this as universal. Truly inclusive universality may always
be a “work in progress,” an ideal never to be fully captured in practice, but the
ideal quality of the vision itself will surely be lost if it is allowed to be captured
by a culturally and ideologically relativist, geopolitical project such as the
UDHR of 1948. The potential universality of normative claims, like human
rights, can promote the ability of vulnerable persons and groups to contest
adverse cultural, religious, or other relativist norms and practices by invoking
the moral force of humane consensus among different societies and cultural
or religious traditions. Allowing that possibility to be hijacked by the ancient
dynamics of imperial power under the guise of the UDHR is a betrayal of the
transformative power of universal consensus around humane values. Yes, the
inevitable cultural and ideological relativity of the UDHR, or any other
document produced under similar hegemonic process, represents a major
obstacle to the realization of truly universal human rights.
Another aspect of the rationale of this challenge is to advance the dual
purpose clarifying the meaning and implications of the universality of human
rights, while emphasizing the unprecedented scale and magnitude of the
challenge this claim raises for political and economic systems, which are
taken for granted by current social theory and their underlying ideologies.
Both aspects of this process are necessary in order to rescue and advance the
possibility of the truly universal entitlement of every person, everywhere, to be

human, by her own vision, affirmation, and realization. As a statement of
broad principles from a specifically relativist liberal perspective, documents
like the UDHR cannot possibly qualify as even a partial representation of the
universal entitlement of human beings by virtue of their humanity. It is
therefore necessary to explain how the essential nature of UDHR itself, and
the legal framework on which it is founded, are incapable of delivering on any
of the rights they claim to affirm as universal.
The title of this chapter, which is the premise of this book as a whole,
immediately raises a series of questions. To begin with, why or how is the
UDHR not universal, contrary to its own title and self-proclamation at its
inception in the 1946–1948 drafting process, and its subsequent affirmations of
universality among multiple layers of constituencies – states, inter-
governmental organizations and institutions, and countless national, regional,
and international organizations? What does this mean for the concept of
human rights itself? My objective in this book is to contribute to advancing
and securing the true universality and efficacy of the rights, claims, and
entitlements of all human beings by virtue of their humanity, without distinc-
tion on such grounds as race or ethnicity, sex, or religion, and regardless of
membership in or affiliation with any political or social group. To this end,
I am rejecting the liberal ideological or cultural nature of the current legalis-
tic, state-centric system that is purported by its proponents to provide legal
protection of human rights. Some of the objections I have to the current
system are that it is really about the civil rights of citizens and lawful residents,
and not about universal rights of all human beings simply for being human.
I use terms such as “claims, entitlements, and so forth,” to avoid the
limitations of liberal notions – which are not globally accepted – of rights as
justiciable legal claims. Liberals are, of course, entitled to live by their own
values and institutions. By the same token, the rest of humanity are also
entitled to live by their values and institutions, but the outcome cannot
logically be universal human rights or claims. I do believe in the possibility
of evolving – from the bottom up – consensus on a basic set of claims,
entitlements, or rights through globally inclusive discourse, but this can never
happen through projecting liberal values and institutions as if they were
universal. To misrepresent the liberal model as universal is simply reincar-
nating the European pretense of justifying their colonial ventures in the name
of “the civilizing mission of the white man.”
This neocolonial project is unacceptable in principle and unsustainable in
practice because the inherently self-determining nature of the human subjects
of human rights around the world. For a variety of reasons and factors, it is
time to decolonize the human rights paradigm. From a theoretical perspec-

tive, there is the glaring fallacy of projecting relativist liberal values as “self-
evident” universal human rights through the United Nations. Although this
fallacy was integral to the UN-based and regional human rights system and
related institutions from its beginning in 1945, rejecting that conceptual fallacy
and its negative consequences is becoming increasingly compelling in the
aftermath of the decolonization of former colonies in Africa and Asia.
Decolonization tends to evolve from formal political independence to more
substantial self-determination, which means that the force of the challenge to
the cultural/ideological relativity of what is presented as universal is also
related to the substantive capacity to cope with the consequences of breaking
away from postcolonial dependency. The material I am hinting at is the basis
of a gradually evolving process, in which the ability of peoples of the post-
colonial world to see it evolved gradually after independence. That theoretical
insight of what is presumably “self-evident” claim of universality of a set of
rights which are in fact the product of a relativist liberal doctrine, should be
tested and observed as widely as possible in this age of self-determination
because the human subjects of this paradigm are ready and able to exercise
their own agency in the protection of their own rights.
By “decolonizing” I mean freeing this powerfully liberating paradigm from
the paradoxical constraints of imperial universality of liberal concepts and
institutions. In particular, it is time to transcend the limitations of the current
system of state-centric legality, whereby states are considered both the sole
violators, and the exclusive protectors, of the rights of human beings at large.
By principles of European international law that have been imposed globally
through European colonialism, the so-called sovereign nation-state is the only
legal entity that is capable of having both legal obligations and the exclusive
authority to discharge those obligations within its exclusive territorial jurisdic-
tion. The sovereign state is also, in theory, the sole subject of international law.
Any form or degree of international personality, like that of international
organizations such as the United Nations and regional or thematic entities
such as the European Union or the World Trade Organization, can only flow
from delegation or authorization by states. This is what I call the paradox of
self-regulation by the state: only states are capable of having the international
obligation to protect human rights, and only states have the legal jurisdiction
and physical access to protect those rights within their territories.
To note a matter of terminology as the struggle for human rights and self-
determination goes forward, “European colonialism” includes what is simply
the latest manifestation of the ancient process of conquest among human
societies, commonly called imperialism. The term “colonialism” also refers to
the process of conquest among human societies, commonly called imperial-

ism. Aside from specialized usage of such terms, e.g., in medical or public
health research, the term “colonialism” refers to the process of displacement
of local populations, often by physical extermination, to be replaced by
subjects of the imperial state and other colonizers. While appreciating this
distinction, I am deliberately using the term “European colonialism” to
indicate that European imperialism has in fact combined both forms of
displacement of native populations. European colonialism seeks to
displace native populations through either physical extermination or the
displacement of their independent identity and political consciousness,
whereby the surviving colonized population accepts and cooperates in the
process of molding itself into the colonizer’s image. In other words, European
colonialism seeks to perpetuate itself by calibrating the colonized population’s
consciousness and self-understanding to induce it to attempt to mimic the
colonizer. In that way, the colonized population either succeeds in
making itself a poor copy of the original European civilized model or fails,
thereby confirming its primitive preconquest condition. In other words,
the “civilizing mission of the white man,” as the purported rationale
of European conquest can never fail: the conquered population is either
co-opted into mimicking European civilization or fails to do so. Both out-
comes confirm the superiority of European civilization over the rest of
humanity.
The first form, massive genocidal extermination of native populations, was
practiced by European colonial powers primarily in the Americas and
Australia. The insidious second form, displacement of independent identity
and political consciousness, was practiced by European colonial powers
throughout Africa and Asia. The genocidal extermination of native popula-
tions to be replaced by European settlers resulted in the horrific extinction of
whole societies and their civilizations, which would clearly violate each and
every principle of international as well as humanitarian law. Ironically, that
possibility has been blocked by the same colonial European powers who
refused to apply their civilized laws to colonized populations and denied the
sovereignty of all colonized societies. For instance, the Berlin Conference of
1885–1886 carved up the whole of Africa among the European powers (includ-
ing the United States) on the assumption that the African populations and
their territories are free for all because they lacked sovereignty. Thus, the
European notion of statehood and sovereignty were applied to Africa, which
was deemed to fail the test of being civilized, thereby justifying the imposition
of European international law. There we find the roots of the paradox of
universality and self-regulation by the state.
Through the second form of colonialism, Europeans sought to mold the

world “into their own image” by imposing European political, economic, and
legal systems through the arbitrary formation of so-called “nation” states under
European international law. The insidious nature of European colonialism
begins by installing all things European – the Enlightenment, John Locke, the
French Revolution and Declaration of the Rights of Man and of the Citizen,
the American Declaration of Independence, the rule of law, and so on – as the
standard and the fountainhead of rights. If other peoples follow those models,
they can only produce poor second-hand copies of the original sources, and if
they fail to copy, they remain primitive and uncivilized. I do not need to
elaborate or dwell on such analysis and reflections, which are common among
postcolonial scholars and public intellectuals. Instead, I take this as my point
of departure for reflecting on the momentous process of crossing the threshold
of self-determination, which is being realized by those who are increasingly
refusing to concede the self-proclaimed “civilizing mission” of Western cul-
tural imperialism. As a process that unfolds over time, this evolution of global
human consciousness will not become unanimous all at once, and not all of
those who are asserting their right to self-determination will share the same
clarity of vision and determination on action. Even though there will be
varying degrees or levels of realization of self-determination and its implica-
tions, crossing the threshold will be incremental and irreversible.
The only real and immediate protection for human rights, as identified by
the consensus of the community of the subjects of these rights, is to prevent
those rights from being violated in the first place. In contrast, the current
common understanding and practice of protecting human rights is to either
promise a remedy to the victim or threaten to penalize the perpetrator, after a
violation has been committed, investigated, and documented. In practice,
neither the remedy nor the penalty are likely to happen because of both the
international law basis of the state obligation to protect human rights and the
neocolonial realities of power politics in international relations. Regardless of
the validity or sufficiency of this explanation, the fact remains that human
rights are not protected on their own terms as the rights of every human being as
such anywhere in the world today! Yes, I do mean anywhere in the world and
will explain and demonstrate the truth of this assertion. The purpose of this
book is to contribute to changing this reality by challenging its complex causes
and offering an alternative approach to realizing the actual universality of
human rights on the ground, everywhere.
What I mean by the term “human rights” in this book is different from
predominant usage in academic theory, diplomacy, international institutions,
practice, advocacy, and general public discourse, where it is apparently taken
for granted that the concept and norms of universal human rights emanate
from the Universal Declaration of Human Rights of 1948 (UDHR) and subse-
quent treaties and declarations. Even those who reject human rights as an
incoherent idea or unrealistic distraction, and those who uphold human rights
and seek to trace their philosophical or political origins or sources assume that
the concept and norms are what the UDHR says they are. Efforts to add new or
different varieties of human rights, like collective rights to development or
peace, or inter-generational environmental rights, still use the formulation of
the UDHR as their starting point of reference. It is true that the UDHR and
subsequent human rights treaties and conferences contributed to popularizing
the term and contributed to its development, but such exclusive, predominantly
liberal relativist ideas and activities cannot possibly define or determine the
nature and norms of human rights on a universal, globally inclusive scale.
The concept and norms of human rights should represent or reflect the
communal consensus of the people themselves everywhere, regardless of the
conformity of that understanding to so-called international standards. There is no
established universality of human rights except to the extent it has emerged out of
overlapping consensus among necessarily relative perspectives of these rights
around the world. Any philosophical or political claim of universality from any
intellectual or cultural perspective, such as liberalism, or political institution,
such as the United Nations, is necessarily relativist because it represents a limited
perspective that is not globally inclusive of humanity at large.
By virtue of their concept and rationale, human rights must be specified
and protected by people everywhere by themselves for themselves, as required
by their fundamental right to self-determination. No person or people would
accept their human rights to be determined or implemented for them by
others, whether within a country or among different countries. This is what
I call a “people-centered” approach, to indicate that the human agency of the
subject of human rights is both the author of those rights and the foundation
of their implementation. This view is pragmatic and feasible because it begins
not by calling for the abrogation of existing norms and institutions of domestic
and international practice that have evolved since 1945–1948, but by calling for
a shift in perspective in working with these. Although I will argue that the
current treaty-based system is one of the major obstacles to the protection of
human rights, I also realize that the paradigm shift I am proposing may be
resisted by influential constituencies out of their shock at or resentment of
such sudden and total change.
Since coercive imposition of purported human rights norms and institu-
tions is unacceptable to any society; the principle of reciprocity (the Golden
Rule) precludes all societies from attempting to impose on others. It is a
contradiction in terms for human rights to be defined or protected in ways that

violate the individual and collective human right to self-determination of the
people whose rights are supposed to be protected. This is one aspect of what
I mean by “decolonizing human rights” in the working title of this book,
namely, that self-determination is integral to the means as well as the ends of
human rights.
To the frequently asked question is the “international community” to stand
by helplessly if a society engages in the practice of cruelty or humiliation of
human being, I propose a threefold answer:
First, the question assumes that the rest of the world can and does in fact
intervene to stop such practices, which is factually false. The international
community is a metaphor, not an identifiable entity, and does not intervene as
such to stop human rights violations. It is always a few neocolonial powers (the
United States and its allies) who intervene in the name of an illusionary
international community. The same neocolonial powers decide whether or
not to intervene when and where they wish, at their own discretion and for
their own political expediency. They are neither transparent in their decisions
and actions, nor accountable for the futile outcomes and tragic consequences
of their actions. I discuss and document the cruel and reckless fallacy of so-
called “humanitarian intervention” in Chapter 3 of this book.
Second, in any case, coercive so-called humanitarian intervention never
succeeds in achieving good, sustainable human rights outcomes because
intervening external actors do not have the linguistic, cultural, or logistical
access to reach the sources or locations of the alleged practice, and do not
have the ability or time to change such practices. Military intervention is like
unleashing a “flash flood” through a house to clean it because interveners
cannot stay long enough or bear all the human and material costs of occupa-
tion and coercive prevention of what they deem to be negative social practice.
Third, and perhaps most importantly, there is much that can be done by
concerned external actors to protect human rights anywhere in the world that
falls between the two extremes of either standing by helplessly or intervening
coercively. This is one of the purposes of the United Nations, namely, “To
achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting
and encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion.”5 This principle is
also emphasized in Article 55 (c) of the Charter:
5
United Nations, Charter of the United Nations, Article 1(3).
Concept, Content, Context 115
With a view to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based on respect
for the principle of equal rights and self-determination of peoples, the United
Nations shall promote: . . . universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion.6
Aside from these clear and categorical principles of international cooperation,

there is no justification for so-called humanitarian intervention anywhere
under treaty-based or customary international law.
The admirable urge to “do something” to alleviate the suffering of others
will turn counterproductive unless “something” is an appropriate and sustain-
able response that is fully consistent with the dignity of vulnerable popula-
tions. Appeal to the universality of human rights can motivate external actors
to act in solidarity with others so that they may in turn expect reciprocity if
their rights are violated or threatened. However, the validity and legitimacy of
inclusive, universal human rights will emerge through promoting overlapping
consensus among different societies over time and not through projecting
some societies over others. To call a norm we favor a “human right” does not
make it so except for those who accept it as such for themselves. The
insistence of those who accept a given human rights norm on imposing their
convictions on others will not only necessarily fail but will also discredit the
idea of human rights itself. The possibility of agreement among human
societies on a uniform set of standards is a long-term goal that will be realized
through practice over time; it should not be used as a starting platform.
the concept, content, and context

of realizing human rights
It may appear counterintuitive or anticlimactic to limit the concept and
content of human rights to what each community accepts for itself. The
colonial origins and neocolonial practice of the present human rights para-
digm is entrenched in the rationale of “the civilizing mission of the white
man,” which assumes that non-Western societies cannot be trusted to know on
their own what human rights are or how to protect them in their own context.
This perspective assumes a preconceived notion of the concept and norms of
human rights – which happen to be intuitively known to Western liberal
6
United Nations, Charter of the United Nations, Article 55 (c).
societies – which then, by virtue of that presumed knowledge, consider

themselves authorized to monitor and police the norms and practices of
non-Western societies to ensure their conformity with human rights. The
decolonization thesis of this book will expose and challenge this neocolonial
perception and its practical implications for the future of human rights by
basing the understanding and practice of these rights on a fundamental
premise of the right of all human beings to self-determination.
The notion of the “human” can be explained or discussed from various
philosophical, moral, or biological perspectives, but the question here is
limited to what being human means in relation to the claim of equal rights
that are founded on the quality of being human. To explore the question of
who is the “human” in “human rights,” I would recall the three Cs approach
to human rights, namely, the Concept of universality, Content of any norms
and standards of any concept which will necessarily be determined by the
Context of the human subject of human rights. I would also emphasize
that there is paradox in all three aspects, and their relationship to each
other, that can only be mediated over time, rather than being resolved at
once in theoretical terms. This is how the paradox of universality in the reality
of permanent cultural diversity is mediated through social practice, instead
of being imposed by coercive enforcement of a so-called solution by the
state. This is one of the major terms of the thesis I am presenting to mediate
and promote respect of human rights through practice within each
community.
Each of these three aspects raises a paradox that may be mediated through
practice over time but cannot be theoretically resolved conclusively and
permanently. For instance, does the claim of universality of human rights
imply or require the existence of a “universal human being,” and if yes, who is
that person or what makes him universal? As I see it, the paradox is that it
is problematic for the universality of human rights to either affirm or deny
the notion of a universal human. By “mediation of paradox” I mean that it is
better to “negotiate” consensus on whether and when it is helpful or valid to
think of the universal human or not to do so, in relation to various issues
and contexts.
This enduring paradox is true not only for the concept, content, and context
issues, but also for their mediation. For instance, it seems obvious that the
quality of being human in “human rights” must presuppose both the right and
the ability to have a choice about accepting or rejecting the concept itself,
contribute to defining its content, and participate in its implementation in
their own context. To force a concept on people – to deny them participation
in specifying or implementing human rights norms and principles – is clearly
inconsistent with the basic rationale of human rights. In other words, even
though the human in “human rights” is a self-determining person, how is that
to be realized when the “self” is socially defined, and possibilities of determin-
ation are politically and economically constrained?
We have no choice regarding when or where we are born, our class, race, or
sex, the parents or family who raise us, and the community and context in
which we live. We have no effective control over the psychological, social,
economic, and other factors that influence our attitudes and behavior.
Paradoxically, human rights are supposed to help us realize and protect our
autonomy and self-determination as persons in community with others, yet
outcomes are constrained by the same circumstances and factors, such as our
gender or race, that underlie the violation of our human rights in the first
place. Indeed, the conception, content, and implementation of human rights
are all shaped by the same conditions they seek to challenge in the sense that
the nature and scope of a right, such as protection against torture, is often
determined by its violation.
Thus, in terms of the previously mentioned “mediation of paradox”
approach, instead of seeking final and conclusive resolution, the view of the
human in “human rights” as self-determining continues to be paradoxical
through the mediation process itself. For instance, the premise and rationale
of self-determination is that the person should defend and protect her own
rights, yet it is difficult to see how one whose human rights have been violated
can have the ability and resources to protect those rights. As actual or potential
victims of human rights violations, we all need institutional and material
resources to prevent human rights violations in the first place or to provide
effective remedy if and when violations do occur.
Yet violations, by definition, deprive us of the resources and ability to
protect our rights or obtain effective remedy. Whether it is arbitrary detention,
suppression of freedom of speech, or denial of education, health care, or
housing, the violation in fact hampers our ability to protect our rights. We
need external resources and actors to protect our rights when we are actual
victims of violations; however, this fact of external protection of rights is not
only the result of a lack of self-determination but is also likely to perpetuate
dependency on others to protect our rights. Whoever provides the resources
and acts to protect the rights of others will do so on their own terms, which are,
by definition, not those of the victim whose rights they purport to protect.
When my rights are protected by others, those “others” are the ones who
decide what my rights mean and how they should be protected. I become the
object of their charity, not the autonomous human subject who determines
what his rights mean and how they should be protected.
As I have argued elsewhere,7 this paradox of “human rights dependency”

can be mediated by promoting the cultural legitimacy of human rights in
various societies in order to mobilize local communities to protect their own
rights. But the paradox continues because dependency on external protection
can only be diminished over time through the cooperation of internal and
external actors. On the one hand, the initiative must come from within the
community in order to redirect external protection toward facilitating internal
self-protection, though external actors may see devoting their resources to
internal self-protection by the victims themselves as inefficient and denying
them the political credit of protecting the rights of others. On the other hand,
the nature of power relations between external actors and internal victims
would not permit the victims to influence which rights the external actors
chose to protect and how they protected them.
While relatively richer and stronger external actors would not normally
need protection against relatively poorer and weaker victims, external actors
should not be required to act in particular ways that violate their right to self-
determination regarding their view of human rights and how to protect them.
Even if external actors are willing to concede leadership to internal actors, that
can mean requiring external actors to accept attitudes and behavior from
within the community they are helping that they believe to be in violation
of – for instance – the rights of women or children.8 This dilemma was the
underlying tension in the debate between Western and African human rights
activists over female circumcision, cutting, or genital mutilation, where these
terms reflected differences among internal and external constituencies.
Another dimension of “mediation of paradox” to be noted here is that
between individuals and their communities, or among different segments of
communities. Self-determination is primarily about an inner life, within each
person, where people can find the moral courage to stand by their convictions,
to resist peer and social pressure, or be willing to endure hardship and risk to
life and livelihood in protecting their rights and the rights of others in their
communities. This inner moral resource will not only sustain victims of
human rights violations when external help is not forthcoming, but also
enable them to require any external assistance to suit their own priorities
and sensibilities. In other words, the moral courage from within enables
people not only to resist oppression, but also to negotiate with those who
7
An-Naim, “Toward a Cross-Cultural Approach,” pp. 19–43; An-Naim, “Cultural transformation
and normative consensus,” pp. 62–81; An-Naim, “The cultural mediation of human rights,”
pp. 147–68.
8
An-Naim, “State responsibility,” p. 191.
claim to help them. A well-known example of what I mean here is how

Mahatma Gandhi’s insight and inner ability to stand by his convictions and
motivate other Indians to do the same launched and sustained a massive
nonviolent resistance movement against British colonialism, sectarianism,
and repression of women and lower castes among Indians.
The purpose and rationale of the international human rights system (norms,
institutions, and processes) and movement (nongovernmental activities) is to
protect all of us precisely because very few of us have the level and sustainability
of moral courage that Gandhi was able to achieve in his own lifetime. But in my
view, we all need to have a little of Gandhi within ourselves if we are to realize
the true potential of the human rights system and movement. I would further
argue that we all have that potential, which is what I mean by “the human in
‘human rights’,” but that potential can be realized within each of us in terms of
his own moral frame of reference. This is my understanding of the expression
attributed to Gandhi, “be the change you want to make,” that we should realize
the norms of human rights within ourselves in order for it to be experienced in
the world around us. I am referring here to a causal relationship, whereby
internal transformation within the person is the means for the desired external
change, which in this case is the practical protection of human rights.
The premise of this linkage between the human and human rights could be
conceptually false; or the human rights project itself may fail in practice. It may
not be possible to define the human in a way that is meaningful for the concep-
tion and practice of human rights, or the whole human rights project may be
abandoned because it is found to be untenable or too naïve to cope with the
realities of power relations at home and abroad. While realizing these possibil-
ities, my purpose here is to elaborate the nature and implications of the proposed
linkage in the event, and to the extent, that the human rights project is tenable. In
my view, clarifying the relationship of the human to human rights may be helpful
for supporting a tentative assumption of the linkage and practical success of the
human rights project. The question for me is what to do about human rights here
and now, while the process of defining and defending these rights continues to
unfold. Failure and success are appreciated in retrospect, often long after the fact,
because reliable assessment is difficult when events and developments are still in
progress. Moreover, assessment is a matter of approach, criteria, and time frame –
what may appear as success or failure may in fact be short-term, a stage in a longer
process, or change when another approach is adopted.
Even for those who believe that the human rights project has failed, thereby
rendering the question of who the human in human rights is irrelevant, all are
still confronted with the moral question of what to do about human suffering –
do we concede the final and conclusive failure of the human rights paradigm,
or do we strive to make it work in other ways? After all, transformative

outcomes of major ideas in human history always take time, and often several
attempts are made to revive a dying or diminishing project. I am personally
working in the belief that the human rights project is alive, and certainly
worthy of the struggle to make it succeed in protecting the equal human rights
of every human being, anywhere in the world. But I also believe that the issues
are worthy of exploration even for those who do not share this belief to either
confirm their view or change it.
believers, skeptics, and liberal relativists

Significant critical reflections and discourses go all the way back to the initiation
of the possibility of universal human rights under the UN Charter of 1945, which
became conceivable only through decolonization process in particular. There
was no possibility of universal human rights prior to that time frame when the vast
majority of the peoples of Africa and Asia were colonized by the same Western
powers who proclaimed the Universal Declaration of Human Rights in Paris in
1948. We should also note the severe crisis and regression the emerging concept
and practice of human rights has suffered, and continues to suffer, in various parts
of the world. Indeed, the idea of human rights was not accepted without
challenge by someone with the global moral status of Mahatma Gandhi, who
wrote in a letter to the Secretary General of UNESCO: “All rights to be deserved
and preserved came from duty well done. Thus the very right to live accrues to us
only when we do the duty of citizenship to the world” (UNESCO, 1948).
Whether Gandhi was expressing rejection or acceptance of the idea of universal
human rights as such, there is clear relevance of the ancient human experience of
mutuality of relationships and entitlements. To appreciate such mutuality does
not mean the conditionality of entitlement to rights for fulfillment of duties.
Instead, it indicates how communal resources of compassion, solidarity, and
empathy are cultivated to sustain moral and political commitments to honor
vulnerable members and segments of communities.
This perspective can be contrasted with the natural law approach of Jacques
Maritain in the Introduction of the same UNESCO book, who said:
“According to philosophic doctrine it may be said that men are divided into
2 antagonistic groups: those who to a greater or lesser extent explicitly accept
and those who to a greater or lesser extent explicitly reject Natural Law as the
basis of those [human] rights.”9 It is remarkable that the French Catholic
9
Maritain, Human Rights, p. 13.
Believers, Skeptics, Liberal Relativists 121
philosopher, who was chosen by UNESCO – the presumably globally inclu-

sive UN Educational, Scientific, and Cultural Organization – would take
such an exclusively relativist Christian view of the basis of universal human
rights. There are clear possibilities of reconciling such different inherently
relativist approaches by accepting that people may come to a shared commit-
ment to the universality of human rights despite their different ways of coming
to that commitment. It is from that conciliatory approach to overlapping cross-
cultural consensus that global support and cooperation for protecting human
rights can emerge.
Recalling earlier remarks about the fact that human rights are almost always
assumed to be what the UDHR and subsequent treaties prescribed, and never
considered from the perspective of the human subjects of these rights and
their agency in defining and implementing the rights of human subjects.
Even major intellectuals such as Amarta Sen and Martha Nussbaum, who
struggled with this issue, seem reluctant to prescribe what alternative perspec-
tives might be. Instead, I will attempt to clarify the ways in which vulnerable
populations might radically reconceive what is commonly known as “human
rights” from their own perspectives and contexts. My point of departure is the
fact that vulnerable persons and groups will not accept what various elites
prescribe for them and are unlikely to think in terms of human rights at all, or
of whether the concept itself is relevant or useful to them. Yet what relevant
varieties of elites think and do affects the lives and livelihoods of vulnerable
persons and groups. My primary objective in this regard is to encourage
human rights constituencies to promote and protect local spaces and strategies
of contestations and protests against injustice and marginalization – for human
rights constituencies to “listen in” and act for themselves in accepting respon-
sibility for their role in creating and sustaining injustice and marginalization of
vulnerable persons and their communities.
Samuel Moyn, for instance, holds that human rights, as an agenda for
bringing about a world in which the dignity of each individual will enjoy
secure international protection, is a surprisingly recent phenomenon. To him,
the most meaningful origin of the modern human rights movement can be
found in the 1970s. Moyn write: “human rights emerged historically as the last
utopia,“ one that became powerful and prominent because other visions
imploded.”10 In his view, human rights represented a moral alternative to
bankrupt political utopias and the collapse of prior universalistic schemes and
10
Moyn, The Last Utopia, p. 4.
has emerged out of exasperation with the Cold War and the hope for a way
beyond its divisions.11
For Moyn, it is important to acknowledge the recent origins of human
rights because the myth of human rights’ deep roots distracts from the real
conditions that led to the historical development of the social movements that
coalesced around the idea of human rights. He acknowledges that the con-
ceptual foundation of rights before the Universal Declaration may have been
natural rights or even “human” rights for some thinkers, especially in the
Enlightenment. But even then, Moyn argues, “it was universally agreed that
those rights were to be achieved through the construction of spaces of
citizenship in which rights were accorded and protected.”12 Invocations of
individual rights at home before World War II were able to take for granted
“an existing space of inclusive citizenship in which such claims could be
given meaning.”13 The turning point in Moyn’s account of human rights
history is the recasting of rights as entitlements that could contradict the
sovereign nation-state from above and outside.14
In this book, Moyn focuses on the perspectives and motivations of activist
nations rather than the on-the-ground effects of their efforts. He is primarily
concerned with the history of human rights as an idea and as a movement,
seeking to situate this history within the longer history of utopianism – “the
desire to make the world a better place.”15 I am opposed to this sort of “liberal
relativism,” assuming that all relevant intellectual history, social, and political
movements for human rights are Western, and perceive the rest of the world as
the passive object of Western ideas and actions. I find this limitation of the rest
of humanity to receiving whatever Western societies and their states choose to
do or refrain from doing profoundly inconsistent with the concept of human
rights. I have a similar objection to Moyn’s other recent book, Human Rights
and the Uses of History, where he is so focused on developments in and
perspectives of North Atlantic societies that he leaves hardly any space for an
inclusive view of the universal rights of the human. His approach also tells us
little about what to do from a truly universalistic perspective. For instance,
I find his use of “we” in his text to be apparently limited to societies of the
Global North, with little space for indigenous actors of the Global South in
their own communities.
11
Ibid., p. 217.
12
Ibid., p. 13.
13
Ibid., p. 33.
14
Ibid., p. 13.
15
Ibid., p. 225.
Conclusion 123
Despite the compelling appeal of the concept of human rights as such, there
may be some resistance to how the content (norms, institutions, and processes)
of this concept is conceived and defined, by whom and where. There is also
skepticism about the relevance of that content to the actual contexts in which
people live in inaccessible rural, nomadic communities, tropical forests, and
slums of megacities of the Global South. Skeptics may also doubt the efficacy
of whatever implementation strategies may exist. In the final analysis, it may
well be that the entire project may fail or be abandoned. Still, my purpose
here is to affirm and reinforce the integrity and legitimacy of truly universal
rights of all human beings everywhere, in theory and in practice.
This manuscript is also intended to address the structural and institutional
underpinnings of human rights violations in global geopolitical power rela-
tions and economic and trading conditions. To put it candidly, it is supreme
hypocrisy to maintain global neocolonial conditions of political domination
and economic exploitation through bilateral relations and the structural role
of international institutions like the World Bank, the International Monetary
Fund, and the World Trade Organization, and still pretend commitment to
the universality of human rights and their practical protection.
conclusion
This book calls for reclaiming the possibility of the glorious rationale and
vision of the Universal Declaration of Human Rights by asserting the true
universality of the rights of all human beings, as defined and realized by all
human beings for themselves. I do believe and affirm that there are universal
human rights that can be identified and implemented in ways that are
consistent with the essence and rationale of these rights. It is precisely this
belief and conviction that drives me to reject projections of liberal relativism as
normative universality sanctioned by the threat of so-called humanitarian
intervention. Authorization of the use of force by the UN Security Council
under Chapter 7 of the UN Charter may be necessary for restoring peace and
security in the short term, but it is unlikely to have any sustainable benefit in
stopping or preventing gross and systematic human rights violations, or in
holding perpetrators accountable. As most recently illustrated by the cases of
Afghanistan and Iraq, the highest level of determination and the massive
military resources deployed by the United States and its global allies suc-
ceeded only in raising the scale and magnitude of human rights violations
throughout the region to an unprecedented level.
In conclusion, the core propositions I seek to advance in this manuscript
can be summarized as follows. Any expectation of legal enforcement of
universal human rights (not just those that happen to be protected under
domestic law as the civil rights of citizens) by any nation-state is a ruthless
mirage. Any outcome that can be expected of the legal protection of human
rights by the state is unsustainable in practice unless it is accepted and
internalized as an indigenous norm by the people concerned. Conversely,
any human rights norms that are accepted and internalized by people in their
communities will be predominantly upheld in their own daily practice, and
states can enjoy the voluntary cooperation of their populations when enfor-
cing the right in exceptional cases of violation. This is already happening for
many human rights norms in the daily practice of communities everywhere,
but the current international advocacy regime is exclusively focused on viola-
tions because the survival of the current system of institutionalized monitors is
totally dependent on the existence of violations, not the reality of compliance.
The paradigm shift and strategy I am calling for is to focus on making
compliance with human rights the constant daily norm in our interpersonal
and intracommunal relations, the socialization of our children, and the
organization of our social institutions. There is simply no alternative to reli-
ance on habitual conformity if we are to have the human and material
resources and political will to enforce human rights norms in the rare and
exceptional instances of their violation. This strategy may sound difficult or
time-consuming, but it is in fact the fastest, most effective, and most sustain-
able way of protecting human rights as the rights of every human being,
everywhere, all the time. Whoever seeks to protect any human right among
any people should immediately begin to work within that community to
promote that norm through cultural transformation and political mobiliza-
tion. That is how norms that can produce the spontaneous practice of gender
equality and religious pluralism can be entrenched and expanded
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Index
accountability, 73, 76 Chandler, David, 50–51

adjudication among states, 46 China, 30
Afghanistan, vii–viii, x Christian Church, 8–9
Africa, 32–33, 111 Christian civilization, 8–9
Africa Watch, 10 civil rights, 11–12, 16–18, 21–22, 24, 39–40, 102–3
African Charter of Human and Peoples Rights civil society organizations, 18, 48, 107
of 1981, 29 civilizing missions, 6, 8–9, 15–16, 89, 92–93, 98,
African Convention on Human and Peoples 109
Rights 1981, 33–34 claims of, 17–18
African Union, 57 colonialism and, 21, 106–7
agency, 61–62, 81, 104 humanitarian intervention as, 71
Algeria, 32–33, 36 imperialism and, 112
American Convention on Human Rights, irony of, 58
1979, 33–34 Clinton, Bill, 68–69
American Declaration of Independence, 112 coalition of the willing, 68–69
Amnesty International, 9–15 coercive enforcement, xi, 93
Anghie, Antony, 5–7 Cold War, 38, 63, 120–21
Annan, Kofi, 77–78 collective right to development, 38
anti-Semitism, 92 collective/group rights, 27
arbitrary detention, 117 colonial expansion, 6
arbitration, 76 colonial powers, 31–32, 62, 68–69
Arendt, Hannah, 98–99 colonialism, 3, 10–12, 96, 118–19
arms trade, 73–74 age of, 96–97
Australia, 52–53 civilizing missions and, 21, 106–7
Austro-Hungarian empire, 54 cycle of, 88
autonomy, 117 forms of, 71
impact of, 16
Bass, Gary, 51–55 imperialism and, 110–11
Berlin Conference of 1884-85, 6, 36, 111 international law and, 5–7
Birmingham, Peg, 98–99 liberal relativism and, 102–3
Bosnia, 52–53 nationalism and, 7
Bush, George W., 7, 68–69 colonized people, 2, 110–11
common human experiences, 58–59
Cambodia/Kampuchea, 63 common law countries, 74–75, 105–6
Canadian Charter, 100–1 community of states, 80
capitalism, 16 Congo, 61, 67
133
134 Index
Constitution of the USA, 42–45 enforcement mechanisms, ix–x

Council of Europe, 33, 57 coercive, 13–14
Country Reports on Human Rights Practices, futility of, 14
26 Enlightenment, 36–37, 112
Covenant on Civil and Political Rights, environmental protection, 16–17
38–39 equal rights, 116
Crimea, 53 ethnic chauvinism, 92
Cromwell, Oliver, 97 European colonialism. See colonialism
cross-cultural dialogue, 102–3 European Convention on Human Rights 1950,
cruelty, 113–14 33–34
cultural relativism, 16, 19–20, 33, 64–72
cultural relativity, 109–10 favorable media, 71
cultural rights, 39, 50 female genital mutilation (FGM), 9, 118
cultural transformation, vii, x, 14, 56, 91–92 First War World, 6
already happening, 107–8 foreign intervention, ix, 84–93
dynamics of, 83 former colonial powers, 16–21, 37, 69–70, 106
focus on, 93 arms trade and, 73–74
human dignity and, 104 false legitimation by, 72
integral nature of, 81–82 legal and administrative systems of, 18
meaning of, 82 liberal values and, 22–23
nature and practice of, 81 manipulative practices of, 26–27
necessity of, 92 in UN, 56
reforming international law with, 7 former colonized peoples, 12–13
required for universality of human rights, former colonized states, 73–74
82–86 France, 30, 32–33, 36, 52–53, 60
state-centric legal enforcement model and, freedom of expression, 39
22 freedom of religion, 89
strategic reliance on, 85, 96–97 freedom of speech, 89, 117
systemic reliance on, 96–97 Freedom’s Battle (Bass), 54
values entrenched through, 93 French Revolution, 112
working on, 102
Gandhi, Mahatma, 119–20
Darfur, ix, 4–5, 84–93 gender equality, 20, 124
De Indis Noviter Inventis (Vitoria), 5–6 genocide, 66, 111
death penalty, 22–23, 92 potential victims of, 72
Declaration of the Rights of Man and Citizen, Genocide Convention of 1948, 60
112 Georgia, 53
decolonization, vii–viii, 2 Ghai, Yash, 99–101
Deng, Francis, 98–99 global human consciousness, 112
developed states, 15–16 Global North, 52–55, 57, 73–74, 92
diplomatic exchanges, 79 global powers, 60
domestic law, 26, 47 global solidarity, 12–13
subordination of international law to, 27 Global South, 11–15, 38, 52–55, 57–58, 73–74,
domestic security, 76–77 92, 122
donor governments, 11–15 Golden Rule, 1
Greece, 52
economic development, 93–94 Guevera, Che, 52–53
economic exploitation, 71 Gulf war, 70–71
economic power, 34–35
economic rights, 27, 38–39, 50 habitual conformity, 124
education, 27, 39 Hathaway, Oona, 8
Index 135
health care, 27, 117 human rights values, 85

Holocaust, 27–28 human rights violations, xi–xii, 4, 11–15, 57–58,
Hopgood, Stephen, 8–10 62, 94–95
human agency, 12–13 accountability for, 50
human dignity, 1, 14–15, 21, 50, 104 charges of, 84–93
self-determination and, 12, 21 deterrence of, 85
of state actors, 77 sources of, 73–74
of vulnerable populations, 115 systemic, 71–72
Human Rights and the Uses of History (Moyn), victims of, 91, 117
122 Human Rights Watch, 9–15
human rights dependency, 10, 118 humanitarian aid, 40–41
human rights law humanitarian intervention, x, 50–70
implementation of, 77 broader implications of, 73–74
international, 16 calling for, 78–79
making of, 74 as civilizing missions, 71
sources of, 33, 74–75 claims of, 59, 67–68
human rights norms, xi, 90 coercive nature of, 26–27
acceptance of, 95 costs of, 73
administrative enforcement of, 14 dynamics of, 61–69
coercive imposition of, 113–14 imperialism and, 13–14, 71–72
double paradox of, 13 implications of, 50
elaborating, 1 neo-colonialism and, 13–14
enforcement of, 93 public opinion on, 73
implementing, 116–17 self-interest of, 54
internalized, 123–24 theory of, 61
international law relevant to, 33 threat of, 123
judicial enforcement of, 18 vague notion of, 59–60
limited protection by state-centric approach, humiliation, 113–14
xii–xiii Hussein, Saddam, 77–78
meaning and implications of, 4
political will and, 124 ICJ. See International Court of Justice
practice of, ix–x ideological relativity, 109–10
production of, 14–15 imperial hegemony, 64–72
protection of, 93 imperial powers, 21
spontaneous conformity with, 94–95 imperialism, 36, 69–70
uniformity of, 89 civilizing missions and, 112
human rights obligations, 75 colonialism and, 110–11
human rights paradigm, 41–43 humanitarian intervention and, 13–14, 71–72
manipulation of, 45 War on Terror as, 7
neo-colonial practice of, 115–16 Indian Constitution, 99–100
human rights policy, 26–27, 41 indigenous self-governance, 11–12
human rights project, 119–20 indigenous socialization strategies, 14
human rights quality, 84–93 individual freedom, 12, 20, 107
human rights regime, 9–10, 57–58, 85 individual judicial remedy, 105
human rights system, xi, 48, 58, 119 individual justiciability of rights, 12–13
human rights tokenism, 90–91 Indo China, 32–33
human rights treaties, vii, 27, 105–6, 112–13 inter-governmental institutions, xi–xii, 48
effects of, 8 inter-governmental organizations, 51, 109
language of, 47 inter-governmental relations, 20
motivation for enforcing, 83 internal affairs of states, ix, 4–5, 84–93
USA refusal to ratify, 26–27 internal discourse, 102–3
136 Index
international community, ix, 4–5, 34–35, 84–87 Japan, 34–35

demands of, 72 Jim Crow laws, 40
myth of, 77–80 judicial enforcement, 62
International Court of Justice (ICJ), 18, 35, 71 jurisprudential paradigms, 5–6
Article 38 of Statute of, 75–76
Article 59 of Statute of, 75 Kenya, 32–33
jurisdiction of, 75–76 Kuwait, 65, 70–71, 77–78
Permanent Members of Security Council
and, 75 Lauterpacht, Hersch, 36–37
international human rights law, 16 League of Nations, 17–18
international human rights legal framework, 13 legal enforcement, vii, 47, 123–24
international human rights organizations, of international obligations, 26, 85
10–11 state-centric model of, 22
international human rights system, 20–21 legal protection, 93
international law, 5–6, 11, 16, 62–63 legal rights, 105
assumption of, 46 liberal bias, 27
colonialism and, 5–7 liberal relativism, 14–15, 22–23, 29–32, 38–40
customary, 65–66, 71 colonialism and, 102–3
doctrine, 68–69 international law and, 33
Eurocentric, 106 limited nature of, 57
framework of, 28–29, 107 normative assertions of, 106–7
fundamental principles of, 46–47 projecting, 107–8
implementation of, 77 projections of, 123
institutional structure of, 105 uncritical acceptance of, 103
liberal relativism and, 33 universality of human rights and, 57, 88
limitations of, 69–70, 90 liberal values, 16, 22–23
normal rules of, viii–ix, 83 liberation, 61–62
principles of, 65 Lock, John, 112
reforming, 7
seeking remedy under, 4 major colonial powers, 31–32, 70–71, 77–78
sources of, 35–36 major states, 73
strengths and weaknesses of, 74–77 Mandate System, 6
subordination to domestic law, 27 marginalized communities, 102
traditional, 46 Maritain, Jacques, 120–21
violations of, 28–29 maternity leave, 20
International Monetary Fund, 17–18, 62–63, Medieval thought, 36–37
123 military force, 52–55
international obligations, military intervention, 50, 55, 68
legal enforcement of, 26, 85 counterproductive nature of, 51
international relations, 45, 99, 112 human and material costs of, 71–72
gate keepers of legal framework in, 18 incapable of protecting human rights, 71
sovereignty in, 11–12 likely to continue, 73–74
international trade, 46–47, 76–77 relying on, 59–60
international tribunals, 74–75 unlawful, 65–66
inter-personal relations, 124 military power, 34–35
inter-state relations, 62 mission creep, 54
inter-state trade, 37 modernity, 8–9
intra-communal relations, 124 Montevideo Convention of 1933, 37
Iraq, vii–viii, x, 50, 53, 65, 68–69 Moyn, Samuel, 120–22
Hussein and, 77–78
illegal invasion of, 70–71 naming and shaming, 10
ISIS. See Islamic State of Iraq and al-Sham nationalism, 7
Index 137
nation-states, 27–29 positivism, 5–6

Natural Law, 120–21 post-colonial conflicts, 67
neo-colonialism, 40–41 post-colonial dependency, 109–10
domination of, 15–16, 50–70 post-colonial economies, 72
hegemony of, vii–viii, 88, 92–93 post-colonial societies, 73–74
humanitarian intervention and, 13–14 post-colonial states, 3, 57–58, 90–91
power-relations of, 95–96 power relations among states, 2–3
powers, 12–13 practice of human rights, 25
relations of, 85 PRC. See People’s Republic of China
news coverage, 73 President of the United States, 45
NGOs. See non-governmental organizations principle of reciprocity, 1, 98
Nigeria, 32–33 process-oriented approach, 16
non-governmental organizations (NGOs), xii, public good, 78–79
57 public health, 76–77
non-military activities, 61 public opinion, 72–73
non-self-executing treaties, 104–5 public service, 102
non-state actors, 79
normative systems, 105–6 R2P. See Responsibility to Protect
North Korea, 68–71 racism, 92
Nussbaum, Martha, 121 Rajagopal, Balakrishnan, 7
recognition of new states, 37
oppression, 61–69 regime-change, 66–67
Organization of American States, 57 religious bigotry, 92
Orthodox Christians, 52 religious pluralism, 124
Ottoman Empire, 34–35, 53–54 remedies, xi–xii
Republic of China, 63
Pan-Slavism, 54 Republic of Nicaragua v. The United States of
peace-keeping model, 61 America (1986), 71
people-centered approach, vii–viii, 56, 93, 98, restorative justice, 9
103–4, 113 Roman Law, 36–37
People’s Republic of China (PRC), 63 Roosevelt, Eleanor, ix–x, 81–82, 94–95
policy leaders, 78 rule of law, 82–83, 112
political dependency, 85 Russia, 26–27, 52, 60, 66, 70–71, 106
political leaders, 78 Rwanda, 9, 60–61
political mobilization, vii, x, 14, 56, 82, 91–93
already happening, 107–8 Second World War, viii, 6, 30, 61
dynamics of, 83 sectarianism, 118–19
focus on, 93 secular sacred, 8–9
human dignity and, 104 self-defense, 65–66
integral nature of, 81–82 self-determination, 2, 13–14, 39–40, 50, 98,
nature and practice of, 81 103–4, 106
practice of democratic self-governance and, age of, 109–10
82–83 conceptions of, 28–29
reforming international law with, 7 dynamics of, 96
required for universality of human rights, fundamental premise of, 115–16
82–86 human dignity and, 12, 21
state-centric legal enforcement model and, 22 national, xi
strategic reliance on, 85, 96–97 protection of, 117
systemic reliance on, 96–97 realization of, 112
political repression, 71 right to, 50–70, 113, 118
political rights, 39–40 systemic, 3
political will, 12–13, 124 self-determined universality, 22
138 Index
self-governance, 20, 82–83 non-self-executing, 104–5

self-regulation, 110 normal rules of, viii–ix, 83
Sen, Amarta, 121 scope of obligation of, 104–5
Sharia, 23–24 as source of human rights law, 74–75
social institutions, 124 Treaty of Kutchuk-Kainardji, 52
social justice, 12, 20, 107 Twining, William, 98–99
social organization, 83
social rights, 27, 38–39, 50 UDHR. See Universal Declaration of Human
sociopolitical change, 71 Rights
South Africa, 101 Uganda, 9
South Korea, 70–71 UK. See United Kingdom
sovereignty, 46, 106 UN. See United Nations
assumption of equal, 46 UNAMIR. See United Nations Assistance
in international relations, 11–12 Mission for Rwanda
self-governance and, 20 UNESCO. See United Nations Educational,
state, xi Scientific and Cultural Organization
territorial, 21–22 uniformity of human rights, 97
territorial jurisdiction and, 13 United Kingdom (UK), 30, 34–35, 70–71
universality of human rights and, 29 domestic politics of, 90–91
violations of, 47 political leadership of, 72–73
Soviet Union, 30, 32 United Nations (UN), 2, 4–5, 19, 21
sphere of influence, 67 Charter, viii, x, 3, 60, 70–71, 107, 120
state actors, 77 controlling membership of, 17–18
state-centric approach, vii–viii, x–xii, 2, 56 establishment of, 30
limited protection of human rights norms former colonial powers in, 56
by, xii–xiii General Assembly of, x–xi
state-centric enforcement, 95–96 Gulf war and, 70–71
state-centric human rights, 20 Human Rights Commission of, 38
state-centric legal enforcement model, 22 Human Rights Council of, 57
state-centric systems, 58, 109 Optional Protocols of, 33–34
statehood, 19 Security Council, x, 30, 35, 60
subjectivity, 97–98 locked in hopeless stalemate, 72
Sudan, 23–24 Permanent Members of, 30–31, 36, 61,
Syria, 52–53, 66–67 63–72, 75
use of force and, 123
territorial integrity, 47 sub-systems of, 31
territorial jurisdiction, 11, 13 United Nations Educational, Scientific and
territorial sovereignty, 21–22 Cultural Organization (UNESCO),
Thatcher, Margaret, 77–78 120–21
Third World, 7 United States of America (USA), vii, 30, 60, 66,
three aspects model, 116 70–71
three-Cs of human rights, viii–ix, 12, 23–24, 83 Constitution of, 42–45
universality of human rights and, 25 domestic politics of, 90–91
torture, vii, 4, 39, 46–47 Jim Crow laws in, 40
USA and, 27 military resources deployed by, 123
Torture Convention 1984, vii political leadership of, 72–73
treaties, 95, 121 See also human rights treaties President of the, 45
breach of obligations, 84 refusal to ratify human rights treaties, 26–27
duties and obligations among states Supreme Court, 35–36
determined by, 83–84 supreme hypocrisy of, 41–45
implementation of, 83–84, 87 torture and, 27
Index 139
Universal Declaration of Human Rights model of, 19

(UDHR), x–xi, 16–17, 24, 36, 38, 40, no established, 113
60–63, 120 paradox of, 103–4, 111, 116
adoption of, 104 political mobilization required for, 82–86
conceptual foundation of rights before, 122 possibility of, 120
essential nature of, 108–9 realizing, 112
fallacy of, 107–8 regression of possibility of, 104
framework and norms of, 105 sovereignty and, 29
framework of, 107 strategies for promoting, 105
ideologically relativist nature of, 107–8 three-Cs of human rights and, 25
normative assertions of, 106–7 true, 107
norms emanating from, 112–13 viability of, 42
Preamble of, x, 66, 94, 103 USA. See United States of America
rationale of, 123 use of force, vii–viii, 65–66, 123
standards of, 47–48
universality of human rights, vii, 16, 18, 56, 58, validity of human rights, 18–19
93–94, 97 Vienna Convention on the Law of Treaties
commonly held views of, 30 1969, vii, 42, 79
as consensus-promoting process, 89 Vitoria, Francisco de, 5–7
cultural transformation required for, voluntary compliance, 93
82–86 vulnerable populations, 115
double paradox of, 24
easy to accept in principle, 83 war, legal framework of, 59–68
expectation of universality as uniformity, War on Terror, 5–7
47–48 West African Sahel region, 95
foundational myth of, 19–20 women, 118–19
goals of, 21 World Bank, 17–18, 62–63, 123
implications of, 108–9 World Trade Organization, 17–18, 27–28, 110,
inclusive, 115 123
legitimacy and efficacy of, 7
liberal relativism and, 57, 88 Yemen, 66–67

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decolonizing human rights

In his extensive body of work, Professor Abdullahi Ahmed An-Naim challenges

Abdullahi Ahmed An-Naim is Charles Howard Candler Professor of Law at Emory

Cambridge University Press is part of the University of Cambridge.

In his extensive body of work, Professor Abdullahi Ahmed An-Naim challenges

Abdullahi Ahmed An-Naim is Charles Howard Candler Professor of Law at Emory

ABDULLAHI AHMED AN-NAIM

Cambridge University Press is part of the University of Cambridge.

In his extensive body of work, Professor Abdullahi Ahmed An-Naim challenges

Abdullahi Ahmed An-Naim is Charles Howard Candler Professor of Law at Emory

ABDULLAHI AHMED AN-NAIM

Cambridge University Press is part of the University of Cambridge.

Preface: Beyond the Myth of Enforcement page vii

1 Evolution of Founding Vision 1

2 Marriage of Futility: International Law and Human Rights 26

3 The Deadly Mirage of “Humanitarian Intervention” 49

4 People-Centric Protection of Human Rights 81

5 Human Rights Are the Measure of Our Humanity 102

excessive human and material costs of military conﬂicts, as can be seen

The General Assembly Proclaims this Universal Declaration of Human

The fundamental paradox of the human rights system is therefore in its

and political – instead of legal – entitlement because the legal dimension is

As I approach the end of my academic career, I look back to twenty-ﬁve years

Evolution of Founding Vision

paradoxical founding narrative

authorized by the UN Security Council under Chapter VII of the UN Charter

In Anghie’s view, the War on Terror is a new form of imperialism premised

process by which international human rights organizations are held

expose the “confidence trick” of the twentieth

members of the international organizations due to their lack sovereignty under

for a more sustainable, people-centric decolonizing process. The term

self-determination, and the practical futility of so-called humanitarian inter-

rights is misrepresented and rationalized as necessary to fulﬁl the civilizing

powers in particular are now resorting to the dated discourse of “civilizing

responsibility for violating broader or more afﬁrmative human rights norms.

rights can be arbitrated or adjudicated. The apparent consensus around the

the foundational myth of the universality of human rights seems to hint at

The second idea, which is also distinctive to my approach, is the useful

of this is motivated by the desire to serve humanitarian goals, but only to

against which the human right violation is charged. Any “enforcement”

General Assembly upon the recommendation of the Security Council. Note

hegemonic geopolitical relations, it is reasonable to conclude that former

squaring the circle

authoritative 1945 book on the international bill of human rights. He focuses

the underlying paradox of self-declaration (signiﬁcant examples range from

neocolonial efforts that are often disguised as humanitarian aid or enforce-

the supreme hypocrisy of us human rights policy

By permitting reservations “unless,” Article 19 is listing only three exceptions

misrepresentation or exaggerated assertions. What I am directly quoting here

sanctions and other enforcement actions authorized by United

from magnificent promise to inevitable failure

universality as uniformity is degrading to human persons and communities

The Deadly Mirage of “Humanitarian Intervention”

As illustrated by the case brieﬂy discussed in Chapter 2 (see “The Supreme

colonial and neocolonial view of war

my fundamental focus on the concept, content, and context of decolonization

Although Bass is primarily trying to defend humanitarian intervention against its