The Blackwell Companion to Sociology (26 page)

other social entitlements as well as the state, the liberal mind finds it difficult to conceive of collective entities or groups as bearers of rights. Liberals may see their views as obviously valid to every reasonable person, but that is exactly how ideological or cultural conditioning of human behavior works everywhere. In

other words, liberal societies tend to resist accepting economic, social, and

cultural rights or collective/group rights as human rights because that is the

position of their own ideology or culture. If ideology or culture can exempt

Western countries from accepting these rights as human rights, non-Western

countries can claim the same regarding such human rights norms as equality

for women or protection of freedom of expression.

Moreover, the persistence of some Western governments in asserting chauvi-

nistic notions of national sovereignty can fairly be described as relativistic. For example, the United States is notorious for seeking to fashion international

human rights treaties to fits its own ideological views and social institutions

during the drafting process, only to fail to ratify and incorporate those treaties into its domestic law for application within the country itself. This is true from the 1948 Genocide Convention, which took the United States more than forty

years to ratify, and only subject to reservations, to the 1989 Convention on

the Rights of the Child, which is now ratified by every country in the world

except the United States and Somalia. Since Somalia has had no government

since 1992, the United States stands completely alone in refusing to ratify this Convention. It is difficult to see a significant difference between the position of the government of the United States and those of countries like China, Iran, and Saudi Arabia, as all of them are refusing to allow their own domestic practice to be judged by agreed international standards. Moreover, the position of the USA

is especially damaging for the human rights paradigm, not only for its failure to live up to claims of global leadership in this field, but also because its economic and military power enables it to play a paramount role in shaping international

relations, as well as influencing the domestic policies of other countries around the world.

Human Rights

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Instead of insisting on a sharp dichotomy between universality and relativity,

it is better to perceive the issues in terms of a constant mediation between the two poles. The realities of enduring cultural diversity around the world, on the one hand, and global multifaceted interaction and interdependence, on the other, challenge both the theoretical validity and practical viability of a framework of universality and relativity as polar extremes. An example of mediation between

the excesses of both extremes can be seen in the doctrine of ``the margin of

appreciation'' in the European human rights system ± allowing states a degree of discretion in the interpretation and implementation of their human rights obligations (Steiner and Alston, 1996, p. 601). But as elaborated elsewhere, it is also important to strive to achieve wider and more sustainable global overlapping

consensus on human rights norms through internal discourse within different

cultures, and cross-cultural dialogue between them (An-Naìm and Deng, 1990;

An-Naìm, 1992).

In conclusion for this section, I would emphasize the need to understand how

the political will to uphold human rights is generated within civil society, or in response to its demands. State action is more likely to happen when human

rights are accepted as culturally legitimate than when they are perceived as an

alien imposition. It is also important to address the economic dimensions of the effective implementation of human rights, as underlying causes of violations as

well as in the allocation of resources for practical implementation of rights. Even so-called ``negative'' civil and political rights, like freedom of speech or protection against torture, where the state is required to refrain from certain actions, still entail the deployment of material and human resources to implement the

necessary policies. In any case, legal protection has to assume voluntary com-

pliance as a general rule because no enforcement regime can cope with massive

and persistent violations. Social scientists can make crucial contributions to

addressing all these and other aspects of the human rights paradigm.

Complementary

Complementary Legal and Social Science Approaches

In view of the complexity of effective response to a wide variety of possible

human rights claims in any society today, one should always consider as many

approaches to the implementation of these rights as possible or advisable in one setting or another. Many factors affect the implementation of human rights, such as the level and quality of political commitment to the implementation of

administrative, educational, and other policies, allocation of economic

resources, and civil society activism. These and related factors cannot possibly be effectively addressed through purely legal approaches, though the latter will remain indispensable. In this final section, I offer an evaluation of legal

approaches, followed by a brief review of how some sociologists have

approached human rights issues.

The early emphasis on legal approaches to the protection of human rights will

probably continue for the foreseeable future because of the universalization of

European models of the state through colonialism, with its centralized powers

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over political processes, economic activities, social relations, provision of essential services, and so forth. As those models of the state persisted into the

postcolonial world, thereby entrenching the central role of the state in national politics and international relations, the human rights paradigm adopted a legal

approach for the protection of human rights. Indeed, the whole human rights

system has generally emerged from the liberal approach to individual civil rights, as judicially enforceable limitations on the powers of the state in order to protect certain vital interests of the population. Accordingly, the judicial enforcement of these rights as a legal entitlement became the basis for the credibility of administrative, political, educational, and other policies and processes, as the source of operational definitions of each human right and as the mechanism for the

mediation of competing claims of rights. But the limitations of purely legal

approaches to constitutional rights at the national level are even more constraining for the international protection of human rights because, as noted above, the latter has to overcome domestic resistance without having the power to impose

its will.

Generally speaking, the legal protection of rights assumes the prevalence of a

certain conception of the rule of law, independence of the judiciary, and execu-

tive compliance with judicial determinations. The legal enforcement of rights

also requires a certain degree of political stability for the proper development of an independent and credible judiciary, as well as a legal profession that is willing and able to represent all human rights litigants before the courts. These prerequisites are frequently lacking, especially when legal protection is most

needed. For example, the legal systems of most African countries suffer from

serious problems of poor legitimacy and accessibility, as well as lack of human

and material resources (Ake, 1994). The complexity and procedural formality of

postcolonial legal systems make it difficult for most Africans to have effective access to legal remedies. Structural and contextual difficulties include prolonged and complex political instability, economic underdevelopment, lack of

independence and technical resources for the judiciary, and the inadequacy or

poor quality of legal services. Under such conditions, it is not surprising that people will simply abstain from resorting to the courts for the legal enforcement of their rights.

This is not to say, however, that all prerequisites must be present at once

before people begin to use the courts to vindicate their human rights. On the

contrary, it seems to me, there is a synergy between the requirements of legal

enforcement, on the one hand, and public confidence in the process, on the other.

Since people will probably resort to the courts whenever there is the slightest

chance of obtaining relief and justice, even a low level of public confidence may contribute to the development of an independent judiciary, and attract the

necessary legal advice and representation, which may enhance public confidence

further, and so forth.

But, as already indicated, even the best system for the legal protection of

human rights will not be sufficient because the implementation of human rights

requires different approaches. The mandate of the human rights paradigm in

general is to simply provide effective redress, not only legal remedy, for every Human Rights

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violation of human dignity and the rights of any person or group. Article 28 of

the Universal Declaration provides that `èveryone is entitled to a social and

international order in which the rights and freedoms set forth in this Declaration can be fully realized.'' It is difficult to see how this original broad vision can materialize without substantial contributions of sociologists and other social

scientists. The preceding analysis may have already suggested some ways in

which social science approaches can make such contributions. As a human

rights lawyer, I will now try to envisage how sociologists can improve our

understanding of a set of interrelated issues of shared concern, by way of

illustration, without presuming to speculate about specific ways in which they

might do that.

Only a very few North American sociologists, like Rhoda Howard (1995),

have consistently and systematically addressed human rights issues in their work in the past (Reynolds, 1998). But stronger interest seems to be emerging more

recently, including efforts to examine the reasons for the earlier lack of soci-

ological analysis of these issues in other parts of world as well. For example,

Bryan Turner draws attention to the silence in sociology about human rights,

and finds it puzzling, given the interest of sociologists in such subjects as social movements, social membership, and the general themes of globalization and

mobilization (Turner, 1993b, p. 490). A discussion of Turner's outline of a theory of human rights, and the debate that followed (Waters, 1996b; Turner, 1997), is

beyond the scope of this chapter. The point here is to note the sort of interrelated themes Turner is suggesting for analytical connections between sociology and

human rights issues. For example, recalling that the human rights paradigm

seeks to protect rights at the domestic level from an international perspective, without the power to impose its will over national sovereignty, one can appreciate the crucial role of social movements for and against this paradigm in

different societies. However, while sociologists are familiar with the role of

social movements in relation to domestic constitutional rights, as noted above,

they now need to consider the impact of what is commonly known as ``globa-

lization'' on the possibilities of international protection of human rights in the domestic context.

As the means for achieving and safeguarding the interests of their members,

social movements have traditionally been engaged in the negotiation of compet-

ing claims among themselves, and in relation to the state as a hegemonic political institution. Some social movements succeed in substantially influencing the state, in pursuit of their own objectives. With the universalization of European models of the state through colonialism and its transformation of the postcolonial world system, as noted above, human rights non-governmental organizations (NGOs)

have become the operational arm of social movements throughout the world, at

both the national and international levels (Steiner and Alston, 1996, p. 456).

Social movements or groups, however, tend to perceive the human rights

paradigm as either supportive of or antagonistic to their values and social

objectives to varying degrees. All social actors need this paradigm for thè`space'' it ensures for them to organize and advocate their view, through freedoms of opinion, expression, and association, as well as the support it might give 98

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to their normative claims, such as freedom of religion or the rights of ethnic or cultural groups, and so forth. Yet social actors often try to claim the benefits of the human rights paradigm, while rejecting aspects of it that they deem to be

contrary to their own values and objectives. This common inconsistency is at the heart of the universality/relativity debate discussed above, in that while all social actors would welcome the human rights paradigm to the extent that it affirms

their own values and facilitates their own work, very few are willing to accept

the totality of this paradigm and its implications, at least regarding matters they deem to be fundamental to their own position.

In their analysis of these social process at the domestic level, sociologists

should also consider the international dimensions of the present age of multi-

faceted globalization (Woodiwiss, 1996; Axtmann, 1997; Merry, 1997). The

dynamics of social movements and NGO activism are increasingly influenced,

if not shaped, by transnational forces and global processes. This is as true for the advocates of the rights of women and indigenous peoples as it is for those