What is the Colonialism of Human Rights?

by Colin Samson

(Originally posted on Polity books 27 July)

The title of my new book may seem perplexing. Human rights are widely associated with life affirming social benefits and freedoms. They are said to be enjoyed in democracies, and indeed human rights are often how liberal governments distinguish themselves from autocracies. From the franchise to impartial social justice, freedom of expression to the right to the fundamentals of life, Western liberal scholars and politicians have projected human rights as indicators of inevitable human progress. The suggestion that one of the preeminent achievements of liberalism is colonial seems uncharitable, especially now when several nations are ruled by nationalistic populists who have a contempt for human rights.

Colonialism of human rightsMy title is not a reiteration of the charge that the finger pointing about human rights problems from Western middle classes and political elites is a continuation of a colonial mindset – although that charge is not entirely unfounded. Instead, I refer to the notion that human rights are infused with colonial attitudes because in their formulation in texts and laws, and in their recognition and enforcement in civil society, exceptions to the much vaunted principles were, and continue to be, routinely made. Indeed, exceptions by which non-Europeans were excluded from rights were built into the philosophical treatises on human rights as well as the more prosaic texts produced by governments and international bodies. Furthermore, the civic institutions that have administered human rights often have had no intention of applying such rights to everyone.

This is ironic since human rights call for universal application, recognising specific, sometimes ‘inalienable’, rights that are conferred to people either as individuals or collectives. Broad rights to equality, liberty, freedom, legal protections and private property are decreed in the official documents and extolled by liberal theorists. While many of these rights have been realized, violations recognised, and processes of ameliorative justice pursued and won, there is still a large gap between what is pronounced and the force that is given to universal application. One of the most important reasons for the existence of this gap is the authoritative depiction of non-European peoples as culturally and biologically inferior. In ‘liberalism’s founding text’, John Locke’s Second Treatise on Government, asserted that American Indians do not qualify for private property rights. This right, a crucial one given the continual waves of English migration, was for Locke a prerogative of culturally superior colonial farmers. Being all hunters in his erroneous view, indigenous peoples could not claim property in their land as a right since they did not ‘improve the soil’.

What if the State is Racist?

Through the concept of the social contract, Locke conceived of popular consent to the authority of ‘political society’ or the state, which in turn confers human rights on subject populations. The idea of consent through a social contract is embodied in liberal thought and tracts such as the American Declaration of Independence and the French Declaration of Rights of 1791. But what if, as is currently being said through the Black Lives Matter and other social movements, the state was and is racist? What if it achieved its authority by violent occupation, duplicity and enslavement? What if these activities were legitimated by the belief in the inherent inferiority of non-Europeans? What if, as Frantz Fanon argued quoting from a WHO booklet of the 1950s, the normal African is perceived by significant liberal institutions as a ‘lobotomized European’?

The colonialism of human rights advances the idea that authoritative constructions of Afro-descended and indigenous peoples as being sub-Europeans fuels a longer history of non-universal human rights. Today the tension between the realities of differential human rights and liberal claims to universalism is now out in the open as the current impacts of past wrongdoing are being brought forth. The exceptions, exclusions and denials of human rights that occurred simultaneous with colonialism and enslavement have metastasized into new realms of de facto non-universality, and these are apparent to even the most casual observer.

In the US and Britain it has long been known that black people, for example, are not accorded the same rights as whites in employment, housing, education, criminal justice, and the right to life itself – the public spheres in which such rights are supposedly enjoyed. It did not only take the senseless killing of George Floyd by Minneapolis police officers in May 2020 to know that the sets of rights officially granted to African Americans as a group are not only inferior to those granted to whites as a group, but that violations of supposedly universal human rights have been of no consequence when perpetrated by largely white authorities on black people.  As the narrator of Attica Locke’s Bluebird, Bluebird tells readers, ‘for every story about a black mother, sister, wife, husband, father or brother crying over a man who was locked up for something he didn’t do, there was a black mother, sister, wife, husband, father or brother crying over the murder of a loved one for which no one has been locked up.’

 

Article-Card-windrush-generation

In 2018 activists, journalists and private individuals exposed the British Home Office targeting people who had arrived following the Windrush migration from former British slave plantation colonies in the Caribbean in the mid 20th century. Accused as being illegal immigrants, these now elderly people had accompanied their parents who were recruited to work in Britain’s public services after the ravages of World War 2.  Many of them were, after successive immigration acts, denied rights to employment and healthcare after paying taxes over decades of service to the UK. Key evidence of their legitimate status, such as the original landing slips, were destroyed by the Home Office in 2010.  Many victims of the Windrush scandal have still not received the promised government apologies and several have died since it erupted.  At the time of writing, there have been massive delays in disbursing the compensation payments pledged two years ago.

The colonialism of human rights is reflected in the ongoing global mobilization against police murders of black people, demanding the removal of statues of national heroes whose heroism was connected to slavery and colonialism, and in the growing choruses for schools to cease teaching histories omitting the racism which has permeated national social, cultural and political life. Current social movements are revealing that human rights were never really intended for vast swathes of national populations, and simply update the invidious distinctions between colonizer and colonized, enslaver and enslaved. The real fear of many of those in power in Britain and the US is that the past will interrogate the liberal democracy that legitimates their rule, and ultimately that the telling of the truth will accuse them also. The victims as well as journalists, activists and scholars are showing how the past is folded into the present. The reclaimed memories offer dignity and some glimmer of justice.

Why should these colonial divisions have such longevity?

While the liberal principles of the European Enlightenment are often swaddled in self-applause, they are too often seen in isolation from the parallel set of principles that underpinned the belief that humanity was divided so sharply into hierarchies. These doctrines were multifarious; for example, that indigenous peoples were savages and that certain peoples, especially Africans, were ‘natural slaves’. Such assumptions were translated into action as indigenous peoples were killed, dispossessed of their territories, forcibly assimilated and consigned to small tracts of land. The pattern was set in the initial English colonization of ‘New England’ with the relative indifference of the English towards the mass deaths of Indians from disease and violence in the 17th century. Over one 23 year period as much as 95% of the New England population was killed by English transmission of disease. This was, as Jill Lepore says made possible by, ‘the idea that Indians were not, in fact, truly human, or else were humans of such a vastly different race as to be considered essentially, and biologically, inferior to Europeans.’

Instead of protecting American Indians as subject populations of a democracy, the US Constitution functioned as a human rights document to empower settlers to encamp themselves on indigenous lands. It mentions Indians directly only twice; excluding them from taxation and, importantly from political representation, and giving powers to Congress to regulate trade with them. In practice, several Articles in the Bill of Rights were also not applied to Native Americans as ways of life, languages and religions were suppressed and often eradicated.

We the People

Similar beliefs legitimated plantation slavery.  Implicit in the Constitution was the idea that humanity is arrayed along an ethnically differentiated continuum with human rights dispensed accordingly. This was admitted in the 3/5s compromise in the 1787 Constitution, which made enslaved people count as 3/5s of a person for the purposes of taxation and the calculation of the number of state representatives in Congress. Other passages in the Constitution, most prominently, the fugitive slave provision and a clause preventing Congress from ending the slave trade within 20 years, underpinned the legitimacy of enslavement.

Given this history, it is not surprising that today black people are routinely denied the right to life by American police. It is not surprising that legitimate British subjects who happened to be black were tracked down, criminalized, denied health care and jobs, and some hounded out of the country to be ‘repatriated’ to other countries that they hardly knew.  It is no surprise that in France Muslim migrants from ex colonies have been segmented into vast suburban housing estates called banlieues in which unemployment rates over double the national average, and that former President Nicolas Sarkozy infamously referred to French African youth protesters as ‘rabble’ or ‘riffraff’.  Similarly, it is no surprise that fundamental rights to freedom of speech and assembly were denied to Native Americans and their allies contesting the construction of the Dakota Access Pipeline. The company building this environmentally damaging project diverted it away from a white community to run it through burial sites and sacred lands guaranteed to the Sioux by treaty, and under the water supply of the Standing Rock reservation.

As the book shows, the official treatment of particular populations is linked to enduring social, political and economic expressions of colonial domination. Contemporary conflicts are layered onto uncompleted histories of racial domination, exception, differentiation and rightlessness, all of which cannot be extricated from the study of human rights. States which administer human rights are represented by institutions and personnel that embraced ideas affirming the inferior status of indigenous and enslaved persons. Because states are dedicated to the perpetuation of hegemony, neither they nor the official human rights they oversee can hold great potential for social change.

Can Human Rights be Decolonized?

To decolonize human rights is not an easy task, in part because differential human rights are themselves engrained in racist histories. I end the book by suggesting that two actions to address the morass of contradictions in which human rights stands are worth pursuing; reparative justice and indigenizing law.  Reparations for the murder, rape, and pillage of colonialism and slavery are long overdue. This recompense will never atone for countless Black Americans killed by the police and lynched. It will not rectify the systemic refusal to extend human rights to African Americans. Likewise, reparations will never help realise the alternative futures that colonialism and enslavement denied to the populations of Africa, the Americas and the Caribbean. But they will signal that universal human rights have to amount to more than a statement in an official text, protocol, standard or policy document.

Reparations to indigenous peoples for their losses of land, people and culture have not been discussed seriously, and their colonization continues as state sovereignty goes largely unquestioned in the institutional orders of international and national human rights. Continuing violations are enabled by the mandatory use of national laws.  Instead, as many indigenous scholars, such as Gerald Vizenor and Glen Coulthard, and allied activists have suggested, a dialogue which would involve the use of indigenous values, customs and laws, and that diminishes state sovereignty could help address ongoing human rights violations. An important element of the decolonization of human rights is also to affirm that laws or frameworks of common understandings of the world are transgenerational and refer to knowledge and norms formulated in the past, but which are binding on current generations. This would include the idea that all of nature has agency, and that people have a duty to respect it.

These measures would help bring the present into conversation with the past, connecting the wrongdoings of colonialism and slavery with the differential human rights doled out to so many people today.

 

ABOUT THE AUTHOR

Colin_SamsonColin Samson is Professor of Sociology at the University of Essex. His new book, The Colonialism of Human Rights: Ongoing Hypocrisies of Western Liberalism, is now available from Polity.

 

International Human Rights News: Focus on the impact of Coronavirus on vulnerable groups

by Pauline Canham, Lauren Ng, Bethany Webb-Strong,  Julia Kedziorek, Alana Meier, Amita Dhiman

As the world goes into lockdown to tackle COVID-19, some sectors of society are particularly at risk, not only to contracting the virus but to the very measures being put in place to protect us all.  This week we look at how the most vulnerable are being impacted by this unprecedented crisis.

The Homeless in the UK

Homeless“Stay at home.”

This plea, now an instruction, permeates through the coronavirus crisis and echoes around the United Kingdom.  But where does it leave those who do not have a home, or at least a safe home, to go back to?

The United Nations Special Rapporteur on extreme poverty and human rights, Philip Alston, published a report in 2019 outlining that despite being the world’s fifth largest economy, 14 million people in the UK live in poverty, with the number of rough sleepers and homeless persons having increased throughout the period of austerity.

This group is particularly vulnerable in the face of the Coronavirus pandemic.  They are more likely to suffer from poor nutrition, have unaddressed health complications and no safe place to self-isolate from other people.  With the hoarding of toilet paper, food, sanitary gels and essential medicines, they are unlikely to be able to access these essential items to protect them from the virus.  Furthermore, the closure of stores, and organisations such as gyms and public bathrooms, has led to significant disruption in support systems, and the ability to maintain hygiene standards.

The Ministry of Housing, Communities and Local Government has written to local councils advising that housing must be found for all rough sleepers in order to prevent further spread of the virus.  However, the lack of clarity has resulted in many remaining without a home.  Hotels and offices are also being used to house rough sleepers, although figures of how many have been accommodated across the country have yet to emerge.

 

Those in detention

DetentionLife has ground to a global halt as many countries subject their nations to strict lockdown.  Prison settings are particularly vulnerable to the spread of the coronavirus and preventative measures are inadequate in overcrowded prisons without adequate handwashing facilities.  The World Health Organisation (WHO) has warned that prisons are unprepared and must act immediately to avoid ‘huge mortality rates’.

Without increased testing, the virus is likely to spread rapidly amongst inmates.  Those deprived of their liberty are more vulnerable to the psychological impact of severe isolation measures.  Lockdown in prisons in England and Wales bans family visits leaving inmates confined to cells for 23 hours a day.

In the United Kingdom, immigration detainees with underlying health conditions face the prospect of 3 months in solitary confinement. Detention may only be imposed where there is a realistic prospect of removal from the UK, yet many individuals cannot be returned because their countries have been devastated by the pandemic.  Legal action in the UK which argued that the Home Office has failed to protect immigration detainees led to the release of almost 300 people from detention centres earlier in March.

The psychological impact of quarantine upon children is raising concerns in the United States. Judge Dolly M Gee of the US District Court has called for the release of detained migrant children after four children tested positive in a shelter in New York.

Dr Hans Kluge, the WHO’s regional director in Europe, has called for ‘the boldest of actions’ in response: ‘we must not leave anyone behind in this fight’.

 

Indigenous people around the world

IndigenousThe CODIV-19 pandemic has proved the inadequacy of delivering equity to indigenous people, denying them access to health care.  Indigenous people are one of the most vulnerable groups because of their natural immunological vulnerability caused by civilisation diseases and poor access to clean water, suitable housing and healthcare.  Many communities in Australia receive additional soap and sanitisers supplies, but sadly this is a drop in the ocean.  The healthcare system in aboriginal communities is not equipped to cope with the pandemic and suspending non-essential medical treatments only exacerbates the situation.

In Brazil, since one medical worker from the Kokoma tribe tested positive for coronavirus, doctors became increasingly concerned about indigenous communities, because respiratory infections tend to spread quickly through tribes.  Many children suffer from anaemia, malnutrition and have lung conditions because of constant forest fires, which makes them particularly vulnerable.

Older generations also face a greater risk of death from COVID-19.  Therefore, if village elders pass away, their wisdom and social organisation will not be passed onto younger generations which may lead to the disappearance of their culture.

Many indigenous people have decided to isolate themselves either within their communities, or out in nature.  Once again, this vulnerable group cannot expect any sufficient external support because as Marlene Poitras, Assembly of First Nations Regional Chief for Alberta, states; they have never been a priority.

 

Women

female_nurseAs the COVID-19 pandemic continues, both highlighting and deepening pre-existing social and economic inequalities, it is important to acknowledge the disproportionate burdens that are being placed upon women.  As Maria Holsberg, humanitarian and disaster risk advisor at the UN Women Asia and Pacific stated, “Crisis always exacerbates gender inequality.”

Foremost, women are a large majority of those working on the front lines of the COVID response. According to the World Health Organization, 70% of workers in the health and social sector are women.  Women also comprise the majority in sectors being hit the hardest economically including precarious work and jobs within the service sector.  For example, a quarter of women across the EU fill roles that go unpaid if they don’t work.

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Boniol et al. (2019)

Additionally, with school closures impacting 91% of the world’s students, childcare is moving from the paid economy of schools and nurseries to the unpaid one.  Older relatives ‘social-distancing’ also are now in need of additional care and support.  This shines light on the ‘care crisis’ as these types of unpaid care will fall most heavily on women, thus limiting their work and economic opportunities.  Some countries like Australia are compensating for this by making childcare services ‘fee-free’ for families, despite potentially disastrous impacts for care centres.

Policies and public health responses must account for the sex and gendered effects and experiences of the outbreak.  A gender analysis approach is needed to address coronavirus concerns – an approach that includes sex-disaggregated data, recognising the crucial role that woman must play in the decision-making process.

Finally, the toll of the lockdown on women suffering from domestic abuse came to light this week after a survey of organisations that help domestic abuse victims revealed a dramatic increase in cases.  The UN Chief, Antonio Guterres is calling for urgent action to address the surge.

https://news.un.org/en/story/2020/04/1061052

 

Children

ChildrenThe WHO has established that only a very small proportion of children have contracted coronavirus but the crisis is impacting children in a variety of other ways.  In an effort to ‘flatten the curve’, some states have imposed severe restrictions on some vulnerable groups, including children.

In the Philippines, authorities have resorted to barbaric acts such as confining children inside coffins and cages if found in violation of the covid-19 regulations. In some cases, mothers have been arrested for violating the regulations.  Human Rights Watch officials said the locking up of children would increase the transmission of the disease and the government must prioritize the right to health, while respecting the human rights of all their citizens.

In Bosnia and Herzegovina, the government imposed a blanket ban on children and the elderly from leaving their houses, issuing fines for violations.  An exception was made only for children with disabilities, who are allowed to take a walk with their parents within 50 to 100 metres of the house. Activists said that though restrictions on some rights during the Covid-19 pandemic are justified, they need to be backed with proper evidence and be non-discriminatory in nature.

Due to the closure of schools, UNESCO has recommended that states  ‘adopt a variety of hi-tech, low-tech and no tech solutions to assure the continuity of learning’. Governments must adopt measures for the challenges faced due to this sudden loss of schooling.

 

 

Other stories making the news around the world

International

Africa

Asia

South and South-east Asia

Australasia

Europe

Middle East

North America

Latin America

Indigenous land battles in Nicaragua’s UNESCO World Biosphere Reserve

Indigenous tribes and their land are under threat across the South American continent.  Brazil, in particular hit the headlines in recent months as President Bolsonaro announced plans to legalise the commercial exploitation of natural resources in Indigenous territories.  But the countries of Central America too are facing similar struggles with attacks on Indigenous communities and pressure from farmers and loggers.  The following article by Karthik Subramaniam looks at the escalation of attacks on indigenous groups and their lands in Nicaragua.

On 30th January 2020, six indigenous people belonging to the indigenous Mayagna tribe were killed and ten others were kidnapped in a reported attack by armed men.  This incident occurred in the Bosawás Biosphere Reserve in the northern part of Nicaragua.  The attack on this indigenous tribe is not an isolated one.  There have been heightened conflicts in the region between the indigenous tribes and the new settlers over forest land that is the territory of the indigenous tribes.  On 5th January 2020, Mark Rivas, an indigenous leader who had publicly denounced the grabbing of land by the logging industry, was shot to death.

The Bosawás Biosphere Reserve, along with three other neighbouring protected areas, forms the “Heart of the Mesoamerican Biocorridor”.  Declared by the United Nations Education, Science, and Culture Organisation (UNESCO) as a World Biosphere Reserve in 1997, it serves as the home for around 22 different indigenous communities who contribute to its protection.  The tribes that live in these areas depend on the forests for their subsistence.  However, over the last few years, there has been what some indigenous tribes have termed an “invasion” by “colonists,” that has led to the massive deforestation of these forests.  The invasion of these settlers, lured in by the promise of gold, the abundance of timber, and the plentiful maritime assets of the reserve, has led to them grabbing the ancestral lands of the indigenous population.  These settlers include peasants, small- and large-scale farmers, wood smugglers, loggers, and ranchers.

The International Labour Organisation’s “Indigenous and Tribal Peoples Convention (N. 169)” (ILO 169) adopted in 1989 (which has been ratified by Nicaragua) was followed by up with the near unanimous adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).  Together, they greatly improved the rights of property of indigenous population, while also protecting them from the interference of the state.  For instance, Article 8.2(b) of the UNDRIP mentions that States shall provide indigenous populations with effective mechanisms for the prevention of, and redress for, “Any action that has the aim of dispossessing them of their lands, territories or resources.”

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Article 89 of the Constitution of Nicaragua describes that the State recognises the communal forms of land ownership among the ethnic population and provides recognition to the use and enjoyment of the waters and forests on these communal lands.  Article 180 guarantees these communities the benefits of their natural resources, the effectiveness of their forms of communal property and the free election of their authorities and representatives.  Law No. 14 amended the Agrarian Reform Law in 1986, which established in Article 31 that the state would provide the ethnic communities of Nicaragua with necessary lands so as to improve their standard of living.

The presence of these laws in Nicaragua that aim at protecting the property rights of the native population of the country clearly show that there exist intentions of the government to protect the rights of the ethnic population of the country.  However, the mere intention of protecting the rights of these people is not enough.

 

In 2001, in a decision by the Inter-American Court of Human Rights in the Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the government was found to be guilty of violating the right to property of the indigenous Awas Tingni population over their customary land by giving concessions to loggers within the traditional lands of these tribes.   The legally binding nature of the decision bestowed on it by Article 68 of the American Convention of Human Rights (ACHR), of which the Republic of Nicaragua is a party to, implied that the government had to comply with the decision.  Following this, it was only in 2008 that the government of Nicaragua granted the Tingi people title to around 74,000 hectares of forested land. Based on the 2001 decision, Law 445, or the Communal Land Law, was passed in 2003 which formally recognised the rights of the indigenous populations and ethnic communities to their historic territories and set up an institutional framework for the demarcation and titling of territories either as a single community or as a group of communities.

However, out of the 1,604,683 hectares of broadleaf forest the Bosawas Reserve had in 1987, only 1,039,945 were left by 2010.  This implies that more than around 564,000 hectares of pristine forest were lost due to deforestation for the purposes of ranching and agriculture.  The intense internal migration of people from the coastal and the central regions of the country looking for fertile land have been identified to be one of the primary contributors to this deforestation.  While the human conflict is definitely problematic with respect to the rights of the indigenous population, many scientists are also concerned about the detrimental effect this is having on the region’s biodiversity.

For the preservation of the territories of the indigenous population that depend on these forests for sustenance, as well as for the conservation of the delicate ecosystem of the reserve, the government needs to take necessary steps.  It is crucial for the authorities to take immediate action to prevent further violence and protect the land and resources of the indigenous population of Nicaragua.

 

ABOUT THE AUTHOR

KarthikKarthik Subramaniam is an undergraduate student at NALSAR University of Law, Hyderabad, India. His main research interests lie in areas of alternate dispute redressal, including mediation and negotiation. He also dabbles in areas of international human rights and sports law.

Standing Rock: An Intersection of Rights

By Jenna Dolecek

Standing Rock Reservation in North Dakota, United States is a First Nations Sioux sovereign territory. A reservation is a piece of land that the US government set aside for Native Americans to reside on. Historically, tribes were forcibly removed from their ancestral lands to reservations.  However, with a reservation comes tribal sovereignty, meaning that tribes are allowed to govern themselves. Unfortunately, not only has the US stolen land previously negotiated in treaties, but the poorly managed tribal-federal system itself keeps Native Americans disenfranchised and with few avenues to protect and exercise their rights. The erosion of tribal sovereignty is a long standing issue in the United States.

Tribal Sovereignty and water rights are intertwined. Energy Transfer Partners (ETP) and Army Corps of Engineers are building the Dakota Access Pipeline to carry Bakken shale oil obtained from fracking.  The pipeline passes within a few miles of the reservation and will go under the Missouri River which provides drinking water for tens of millions of people. A Supreme Court decision found that establishing a reservation comes with implied water rights. The issue of whether the pipeline’s construction violates these water rights is currently being heard before the courts. Continue reading

How a controversial dam threatens rights of Canada’s indigenous Innu people

By Colin Samson

A controversial hydroelectric dam project in sub-Arctic Canada relies on local Innu people giving up their own lands. Nalcor Energy, the firm building two dams to produce the Muskrat Falls hydroelectric project in Labrador, along Canada’s north-eastern coast, talks enthusiastically about “boundless energy”. And why not? Hydroelectric power is seen as a renewable and relatively benign way to meet the ever-growing energy needs of industrialised societies. Nalcor, owned by its provincial government, says that its project will “significantly reduce greenhouse gas emissions – equivalent to taking 3.2m vehicles off the road each year”.

This sounds great. Yet beyond the impressive feats of engineering and the CAN$11 billion cost (£6.5 billion), what will it take to accomplish what is being imagined here?

Across the world, many areas sacrificed for hydroelectric generation belong to indigenous or land-based peoples who either have to be moved or live with drastic changes. The Three Gorges dam in China displaced 1.2m people and the Belo Monte dam in Brazil could displace up to 40,000. And back in the 1950s the Kariba dam project on the Zambesi river in Zambia precipitated an involuntary resettlement of some 57,000 people, including the Gwembe Tonga farmers and hunters, whose homes, gardens, burial and spiritual sites were flooded with virtually no consideration from the British colonial authorities.

Opposition to “progress” may lead to imprisonment and in the case of Honduras and Guatemala, even to the suspected murder of indigenous opposition leaders and protesters. Continue reading