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LGD 2004 (2) - De Brennan

Critique, Culture and Commitment: The Dangerous and Counterproductive Paths of International Legal Discourse

 

Sebastian De Brennan

Researcher,
College of Law and Business/
Australian Expert Group in Industry Studies,
University of Western Sydney, Australia
s.debrennan@uws.edu.au

Abstract

This paper seeks to question some of the assumptions underlying certain strands of the ‘Third World Approaches to International Law Literature’ (TWAIL). For various representatives of this school, human rights is little more than an exercise in which the good western state is juxtaposed against the illiberal, immoral and draconian non-western one; a process said to derive from Eurocentric ideas of colonial superiority and domination, and sustained today by the west and major human rights institutions. This view has been propounded by Professor Makua Mutua who asserts that the human rights corpus can be reduced to a damning 'Savage-Victim-Saviour' (SVS) metaphor – a metaphor which pits 'savages' on the one hand, against 'victims' and 'saviours' on the other. Whilst illuminating, it is argued that the polarisation implicit in Professor Makua Mutua's construct is simply misconceived. Aided and abetted by globalization and an increasingly interdependent world, human rights, like all great traditions, has undergone monumental change. The human rights analyst's guiding fiction of certain compartments, chiefly the Savage-Victim-Saviour metaphor has evaporated. We can no longer deny a complex legal world.? ?

Keywords: Human Rights, Metaphors, International Legal Discourse, Legal Traditions, Jurisprudence, Polarisation, Third World, Western Culture.

Author’s Note

This paper was prepared during time at Osgoode Hall Law School, Toronto, Canada. Thanks are extended to both Osgoode and the University of Western Sydney for the opportunity. I am also grateful to Kate Graham, Christi Pearce and the anonymous reviewers for their valuable contributions.


This is a refereed article published on: 28 February 2005

Citation: De Brennan, S, ‘Critique, Culture and Commitment: The Dangerous and Counterproductive Paths of International Legal Discourse’, 2004 (2) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/elj/lgd/debrennan>



1. Introduction

It has been argued that the human rights movement is marked by a damning metaphor. That it is a ‘grand narrative’ containing a subtext that depicts an epochal contest pitting ‘savages’ on the one hand against ‘victims’ and ‘saviours’ on the other. The savages-victims- saviours (SVS) construction, it is proffered, is a three-dimensional compound metaphor in which each dimension is a metaphor in itself. Allegedly, the metaphor was not only created by the west, but is sustained by its authors, such as: the UN, western states, international non-governmental organisations (INGOs), and western academics.1 In short the good western state is pitted against the draconian non-western one. In unearthing the SVS metaphor, Professor Makua Mutua makes no pretensions about it, aiming to:

Address the biased and arrogant rhetoric and history of the human rights enterprise, but also grapple with the contradictions in the basic nobility and majesty that drive the human rights project – the drive from the unflinching belief that human beings and the political societies they construct can be governed by a higher morality.

The first dimension of the prism depicts a savage and evokes images of barbarism. Although not confined to the offending state, the state is portrayed as the overarching perpetrator, which chooses to let ‘illiberal, anti-democratic or other authoritarian’ culture run rife, in stark contrast to the ‘good’ western state who brings these cultural driven atrocities to an abrupt halt.

The second dimension of the prism according to Professor Mutua depicts the ‘face and the fact of the victim as well as the essence and the idea of victimhood’. In short, the victim is a powerless, helpless, innocent whose naturalist attributes have been negated by the primitive and offensive actions of the state and the rampant culture therein. Professor Mutua proceeds to inquire into the nature of human rights reports, which routinely feature a catalogue of horrible catastrophes, coupled with a diagnostic epilogue and recommended therapies and remedies.

Finally is the third dimension of Mutua’s prism, which factors in the saviour or the redeemer. Hence:

… the good angel who protects, vindicates, civilises, restrains and safeguards. The saviour is the victim’s bulwark against tyranny. The simple, yet complex promise of the saviour is freedom: freedom from the tyrannies of the state, tradition and culture.

This freedom, however, is a freedom attuned to a specific set of cultural values. Specifically, the human rights corpus is little more than a front for liberal thought and philosophy and the human rights corpus, though ‘well meaning’ is fundamentally Eurocentric. This, Professor Mutua contends, gives rise to a ‘othering process’ in which savage cultures and peoples are seen as lying outside the human rights ambit, and accordingly, outside the reach of political democracy.

Finally, Professor Mutua is extremely sceptical of the importance attached to race in the human rights narrative, arguing that the SVS metaphor of human rights entails racial connotations that sustain an international hierarchy grounded in race and colour:

… savages and victims are generally non-white and non-western while the saviours are white …

This paper is written as a response to Mutua’s article and argues that, although insightful and provocative, the professor’s SVS metaphor is unnecessarily and unrealistically bleak. To adopt this stance is not to deny completely the polarisation that characterises our world. It would be a tall order indeed to refute the existence of some divisions (North/South, East/West, EU States/Non-EU States etc). Nevertheless, it is questionable whether one can paint these boundaries as stagnant, immutable and extend them to the contemporary human rights rubric. Analytical postures developed during the colonial era can no longer be sustained. Despite the intensification of North American imperialism the ‘Third World’ has imploded into the metropolis. Even the conservative national politics of containment, designed to shield ‘us’ from ‘them,’ betray the impossibility of maintaining hermetically sealed cultures. Consider a series of efforts: police fight cocaine dealers, border guards detain undocumented workers, tariffs try to keep out foreign imports and giant space shields promise to repel nuclear weapons. Such examples reveal, more than anything, how porous our boundaries have become.2 Thus, the human rights analyst’s guiding fiction of certain compartments, principally the Savage, Victim, Saviour Metaphor, has crumbled. We can no longer deny a kaleidoscopic world.

2. Context

In developing metaphors such as the SVS metaphor, scholars such as Mutua engage in an othering process whereby we have the predominately western human rights corpus coming to save the savages from the ‘other world’.

This othering process was a key feature of earlier western writings. From its inception, positive international law distinguished between civilised nations on the one hand, and non-civilised peoples on the other. In short, it asserted that international law applied only to the sovereign states that constituted the so-called civilised ‘Family of Nations’. Indeed, from the outset of the international law enterprise - and by derivative, human rights law – there has been an undeniable complicity between positivism and colonialism. In that process, positivists developed an elaborate vocabulary to demean people of the other world, presenting them as suitable objects for conquest, and legitimising the most extreme violence against them, all in the furtherance of the civilization mission – ‘the discharge of the white man’s burden’.3

Anghie has demonstrated convincingly the more immediate problems stemming from invoking an ‘othering process’.4 By the 19th century the idea of a universally applicable natural law had been widely repudiated by its positive brethren. Even in 1866, Wheaton had argued:

‘Is there a uniform law of nations? There certainly is not the same one for all nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilised and Christian people of Europe or to those of European origin’.5

The implications of such Eurocentricism crudely meant that once non-European states were excluded from the realms of sovereignty, they were excluded from lodging any sort of legal stake in the realm of international law, as only the sovereign (ie European States) were acknowledged as full members with all the rights and powers therein.6

Accordingly, positivist international law was charged with the role of bridging the gap between the European and ‘backward’ populations throughout the world. The task involved distinguishing sovereign nations proper from other entities that ostensibly, also possessed the indicia of sovereignty. A series of tests emerged, notably notions of command theory as evinced by legal philosophers like Bentham and propounded by Austin. And then there were other tests, many of which still have resonance today, including: control over territory and political organisation. Nevertheless, it became clear that a number of the so-called savages satisfied tests of this nature with quite little strain. Confronted with this reality, international positivists were compelled to acknowledge that ‘other states’ such as those in various pockets of Asia, for example, might formally be sovereign, but unless they satisfied the criteria of membership in civilised international society, they lacked the comprehensive range of powers enjoyed by their European seniors. And so, by extrapolation the notion of recognition moved to the forefront. Thus, international law became an exclusive gentleman’s club, in which membership was conferred upon those who resembled the archetypal gentleman (whatever that was?) or at least those who it would be worthwhile to construe as gentleman for the sake of economics and trade. Suffice it to say, the positivist endeavour to delineate the civilised and uncivilised worlds was fraught with unresolved complications,7 but there was no disputing, international law was one of privilege - a privilege that remained the prerogative of strong colonial states.

So the deep-seated biases of the European nations that scholars such as Mutua and Anghie discuss appeared to pervade all aspects of international law. Seeing as though, international human rights law is simply an offshoot of that law, can we really say that the SVS metaphor may be withering away? In providing a more contemporary account of the human rights corpus this must be answered in the affirmative.

In the colonial exchanges – if one may call them this – the treaty instrument assumed preference as a mechanism by which European and non-European parties comprehended themselves to be entering into legal relations. It is interesting in this context to note the contributions of Webber who argues, that the relationship between European peoples and non-European peoples in North America, are better characterised as a process of reflection on that experience rather than the imposition of a positive law of any one people: ‘They constitute a set of norms that are fundamentally intercommunal, created not by dictation of one society, but by interaction of various societies through time.’8 He notes that, at the moment of their encounter, both Aboriginal and non-Aboriginal societies, flaunted their own sets of norms, each created in ignorance of each other. For him:

the parties could have acquiesced in the situation. They could have refused all concessions to the other’s sense of justice, settling their intercommunal conflicts through the use of force, as indeed was done in some colonial situations. But for a whole host of motives, noble and ignoble, they generally sought to live peacefully with each other, hammering out a modus vivendi that becomes the foundation of a normative community that crossed the cultural divide.

Thus, the final product was the product of mutual adaptation, in which the structure of the relationship was negotiated as much from compromises on the ground as from abstract principles of justice. ‘It was the outcome of trial and error, not the application of pre-existing rules’.

Although very much attracted to Webber’s argument, the proposition that it promotes a somewhat euphemistic account of intercommunal relations is difficult to rebuff. The deficiency of this thesis lies in its inattention to the disproportionate power bases that existed. It presupposes that most transactions were done at ‘arms length,’ that indigenous peoples were in a position to uproot their European invaders, but instead opted for a lifestyle of compromise and normativity. Even the most cursory exploration of history demonstrates that this was not the case. As Anghie has remarked, ‘Legal niceties were hardly a concern of European States driven by ambitions of imperial expansion’. Defeat was inevitable given the superior military might of the European states, and it was principally through this medium that European nations compelled the indigenous peoples to enter treaties virtually allowing them to act as they pleased. Consider the following treaty, which Lindley cites, apparently without any irony:

We . . . most earnestly beseech Her Most Gracious Majesty the Queen of Great Britain and Ireland, Empress of India, Defender of the Faith, &c., to take our country, ourselves, and our people to observe the following conditions:

I. That we give over all our country within the above described limits, all sovereign rights, and all and every other claim absolutely, and without any reservation whatever, to Her Most Gracious Majesty . . . and heirs and successors, for all time coming. 9

For even Webber is forced to concede that human interaction never occurs in a perfect world, free from the effects of social inequality, and this was especially true of the period of colonisation, marked as it was by warfare, the seizure of lands, and the decimation of Aboriginal societies by disease. In this respect, it would be far easier to postulate a relationship of duress, exploitation and coercion than one of normativity.

However, in striving for a more balanced account of the colonial period it would be imprudent to dismiss, summarily, Webber’s thesis. Despite the resounding differences in military capability that existed at this time there is more than adequate evidence to show that not all legal and social arrangements were induced by brute force alone. To put military capability on such a pedestal is mischievous for we know that even today, military might, whilst significant, is not the sole determinant of a state’s interaction. Notwithstanding all of the military might of the USA today, it still had to rely on the cooperation of other states to freeze 70 percent of terrorist funds in the ‘war against terrorism’10 and it has been argued that the latter will not be won by unilateral action alone.11

As Webber notes, notions of sovereignty and ownership may have had merit in the salons of Europe, but they were far less glaring in America. Arriving in the new continent the colonists encountered the power and autonomy of the Aboriginal peoples. If the colonists wished to benefit from the riches of the lands – if they wished to survive – they had to adapt to the societies that controlled and occupied the land. Germane to Webber’s argument is the sheer vulnerability of the Europeans in America. As late as 1663, the entire non-Aboriginal population of New France was only about 3,000 people. In 1627, it had been 107. By contrast, there were approximately 20,000 Hurons and 30,000 Iroquois before the epidemics of the 1630’s, and these were the strongest of the region’s Aboriginal nations. It would have been impossible for such a tiny number of colonists to govern the Aboriginal nations by force, or by any other means. They therefore worked to maintain peaceful relations with their indigenous neighbours, especially those who were their closest allies. In painting a candid assessment of the relations of the time, Webber points out that colonial diplomacy was sometimes unsuccessful. Acts of violence were common as a result of attacks by hostile nations, disputes with allies over the occupation of lands by colonists, fraud in land transactions, theft, drunkenness, the internal power struggles of Aboriginal nations, and the misunderstanding endemic to cross-cultural relations. All of the colonies were apparently subject to such strife, including Virginia, which was then the largest Aboriginal settlement in North America. In 1622, the Powhatan people massacred a quarter of Virginia’s 1,200 non-Aboriginal inhabitants. In 1644, 500 more were killed. The European’s vulnerability was even greater in colonies like New France because of the nature of the fur trade. There, a very small white population was dispersed across a vast territory, in constant contact with the indigenous population.

Significantly, this vulnerability was concurrent. The Europeans were also competent at deploying appreciable force, made more formidable by the availability and superiority of firearms. Thus, Aboriginal people too had an interest in brokering peace deals.

Vulnerability issues aside, it would be myopic to ignore the economic interdependence that existed between Europeans and non-Europeans, albeit often in favour of the colonial powers. The fur trade, in particular, was principally dependent on the active participation of the Aboriginal peoples. Telling is Webber’s account that if the French had alienated the Aboriginal allies, the latter would have sold their furs to the English; withheld them until relations improved, or, in the worst case, withdrawn completely from trade as they had done in other provinces.12 But, significantly, the Aboriginal people were also committed to the fur trade. So great was the level of commercial interdependence that all kinds of mutual concessions were made.13

If we are to accept that international human rights constitutes an offshoot of international law generally, then could it be that a more balanced account of human rights law is one that recognises that even hundreds of years ago, the SVS metaphor, was perhaps not as prominent as certain accounts would lead us to believe? Rather than being helpless victims that the self-important colonial powers could save, the Aboriginal peoples of America were fully capable of exploiting the manoeuvring room created by colonial competition in order to sustain the value of their product.14 Although an important factor commercial necessity was not the sole determinant of this normativity. In reality a fundamental shift had taken place. A shift from perceiving Aboriginal peoples as barbaric beasts to peoples who were more than capable of participating in trade, negotiation and the shaping of their own destiny. This should not seem striking – for such is the fluidity of international law.

3. From ‘Othering’ to Reverse Orientalism

In asserting that the human rights rubric is grounded in a SVS metaphor, scholars such as Mutua ignore the dynamism of international law and in doing this they employ the very ‘othering process’ they so detest. In one of the truly great works highlighting the perils associated with this ‘othering’, Edward Said notes a distinction between the Orient (the Arab) and the Occident (the European).15

Orientalism can be described as a way of coming to terms with the Orient. Orientalism is a style of thought based upon an ontological and epistemological distinction between the Orient and the Occident. In a fashion not dissimilar to Anghie’s, Orientalism is described as a western style for dominating, restructuring and having authority over the Orient. Said presents compelling empirical evidence emanating largely from the Egyptian colonial experience, which illustrates the deplorable way in which the Arab population was ‘othered’. The British, he quotes, are not merely ‘there for the sake of the Egyptians, though we are there for their sake; they are there also for the sake of Europe at large’.

In sustaining the self-righteous approach vis-à-vis the Oriental, it never occurs to the European to let the Egyptian speak for himself, to personally appraise the utility of European presence. Rather the oriental is presumed incapable of ever appreciating the good things that are being done by the noble colonial occupiers. And when the oriental does comment he is seen as an ‘agitator … who wishes to create difficulties’.

Egypt for Britain was not just another colony; but rather a confirmation of western imperialism; it was until English intervention the quintessential example of Oriental backwardness, which was to become an exemplar of English knowledge and power. The British claimed that they had imbued the Oriental with moralistic behaviours; although exactly how this new found moral prosperity was to be measured no one ventured to say. Nevertheless, the message was clear: ‘Subject races did not have it in them to know what was good for them’. In a nutshell, there are westerners and there are Orientals. The former dominate; the latter must be dominated; which usually translates into having their land occupied, their international affairs rigidly controlled, their blood and treasure put at the disposal of one or another western power.16

The Oriental discourse smacks with the paternalism. Orientals or Arabs are described as barbaric, aggressive, gullible, devoid of energy and initiative, intriguing, an object to be studied, cunning, unkind, backward, dishonest, lethargic and suspicious. This stands in juxtaposition with the flawless clarity, directness, rationality and nobility of the Anglo-Saxon race. Orientalism then, is knowledge of the Orient that places the oriental in a class, a manual for scrutiny, study, judgment or discipline. And so again we can see that Mutua’s SVS metaphor is not a new one. It is bundled up deeply in the colonial enterprise, and yet we know that the age of colonialism as it was has come to an end. 17

Furthermore, it would seem that Mutua becomes consumed by the simplistic explanations that characterise Orientalism. These explanations fail to accurately capture the diversity intrinsic to the human rights enterprise. More than this Mutua enlists a process of reverse Orientalism. For example, in describing the victim component of the SVS prism, Mutua stresses the way in which the west generally presents them as helpless, powerless people whose naturalist attributes have been negated by the primitive and offensive actions of the state and the rampant culture therein. He proceeds to inquire into the nature of human rights reports, which routinely feature a catalogue of horrible catastrophes, coupled with a diagnostic epilogue and recommended therapies and remedies. In fairness, however, it would seem his article is also one of hyperbole. If Mutua wishes to make a charge against human rights architects as dramatising the role of human rights victims, he also does a good job in creating his rather sensational Savage Victim Saviour paradigm. Ostensibly, all human rights groups are tarnished whether it is embassies and intelligence agencies, UN peace keeping forces, relief and development NGOs, national and international human rights groups, faith groups, academics and the media. From the outset the west becomes a monolithic beast intent on expansion, always materialistic and devoid of any moral wellbeing, an apologist for previous generations, a human rights fraud. With one sweeping brush, the Great Satan comes to town!

Can we continue to see the west as the ‘Great Satan’ or as a homogenous entity devoid of the diversity that we know is eminently existent? Viewed from the vantage point of the new millennium it is not at all clear that the depictions serve us well. Amid the contemporary global flows of trade, politics, migrations, ecology and mass media, the accepted nexus of authentic culture/demarcated field/exotic locale has unravelled.18

Multiculturalism has become a common feature of a number of western states throughout the world. It cannot be that the newcomers to nations such as the United States, Germany, Britain, France, Canada and Australia (and this list is by no means exhaustive) simply leave their ‘old ways’ and values at the doorstep and yet stagnant models like the SVS prism would suggest that this is the case. We know that in all of the above countries migrations and external influences have affected everything from the food it consumes, to the medicine taken, to the management practices utilised by its organisations. Is it realistic then to see the field of human rights law as privileged?

Although purely anecdotal, the author’s own experience of the human rights corpus is far from a Eurocentric one. Even in China and Arab States there is a growing and vibrant academic community with a keen interest in international human rights law.19 At the human rights conferences and gatherings the author has attended he has been struck by the sheer diversity and incredible backgrounds of those in the room. At any given event it is not unusual to find migrants, some of which have felt the brunt of human rights abuses first hand, ex-refugees, academics (domestic and visiting), government representatives and so on. For all the appeal of Mutua’s SVS paradigm can it be that a subversive saviour complex enjoins those present?

One may make the sweeping claim, as indeed Mutua does, that human rights are synonymous with Eurocentricism and neoliberalism. Is it then fair to claim that the whole of the third world is best characterized by dictatorship or totalitarian rule? Far from being productive, generalizations of this nature fail to tackle the crucial questions, namely: How do we stop the next Hitler? How do we stop the next Pinochet? How do we stop the next Pol Pot or how do we stop the next Bin Laden?20

Thus, the field of human rights law is an increasingly flexible instrument. It can move from the human rights issues of remote Rwanda and then return to the challenges of the European Balkans. In the globalised era, people affected by human rights atrocities assertively and proactively present their cases to the rest of the world via the Internet and other mediums. These callings have acquired a new mobility. Today it is not unusual for indigenous peoples, for example, to present their tradition and human rights struggles with new-found immediacy and authority. Frustrations at working within the nation state have led some indigenous communities towards establishing international linkages and relations with other indigenous communities.21 Moreover, gone are the days where the state could censor everything (although undeniably some still try). Contemporary computer technology has rendered the flow of information a difficult commodity to regulate and this has led to the amelioration of so-called fundamental truths which hold the human rights enterprise as flawless or beyond reprimand. In contrast to the stagnant conception of the SVS metaphor, bundled up with the colonial attitudes of the nineteenth century, Stuart Hall has observed:

We know that cultural identities come from somewhere, have histories, but like everything which is historical (in this case the human rights movement) these identities undergo constant transformation. Far from being eternally fixed in some essentialised past, they are subject to the continuous ‘play’ of history, culture and power (emphasis added).22

The Eurocentric basis of the SVS metaphor does become somewhat inflated in an increasingly internationalising legal order. For instance, Shaw indicates that in the last 20 years, the former European hegemony has, to a large extent, depleted.23 Thus, the composition of, for example, both the ICJ and the Security Council of the United Nations mirror such developments. Article 9 of the ICJ statute points out that the main forms of civilisation and the principal legal systems of the world must be represented within the Court, and there is an arrangement that of the ten non-permanent seats in the Security Council five should go to Afro-Asian states and two to Latin American states. The composition of the International Law Commission has also recently been increased and structured upon geographic lines.

The influence of the non-western states has perhaps been most pronounced within the General Assembly where they constitute the majority of the 185 member states. The content and scope of the various resolutions and declarations emanating from the Assembly are proof of their impact and contain a record of their fears, hopes and concerns.24 In fact, some commentators have criticised the operation of ‘one state one vote’ enshrined in Article 18 UN Charter,25 especially when it is realised that in many cases the combined populations of two-thirds of the member states may be far less than the remaining one-third. Many members of the UN have populations of fewer than 2 million, whereas China has a population well over 1 billion.26 The argument often goes something like this: ‘Why should Nauru ostensibly enjoy the same voting rights as a populous and powerful nation such as India?’ In light of these imbalances there have been widespread calls to reform the UN so as to reflect, more accurately, current power relations.27 While these calls for reform must be welcomed, the complicated mechanisms for amendment of the Charter, coupled with the presence of the veto, make any change unlikely. Furthermore, we cannot forget that the UN is already rampant with deal brokering – a situation that is unlikely to change regardless of the alternative methods heralded. In this deal brokering process, smaller, less powerful nations often exert influence largely disproportional to their size. If the recent inability of the globally dominant U.S. to secure a Security Council Resolution to go into Iraq taught us anything, it should have taught us that being ‘big’ does not necessary equate to securing votes.

Therefore, while the power imbalances amongst states remain a fundamental concern in the human rights context28 – it cannot be maintained that the demarcations drawn by Mutua are as chronic as he would have us believe. The SVS metaphor presupposes a world in which the Third World has little input into the creation of human rights law. As can be seen, however, the Third World does participate, and that participation continues to grow. It is, in the author’s opinion, no longer realistic, nor in the interests of the Third World to portray it as a group of states devoid of any capacity to shape their human rights objectives. Increasingly it is not the western state acting as the saviour for the embroiled third world nation. To the contrary, it is the Third World nation realising that it has the potential to save itself!

For all the charges that Mutua makes concerning the SVS metaphor and the biases therein, even he is forced to concede ‘there are more undemocratic states in the Third World than in the developed West’. However, he seems to get back on track by quickly pointing out that ‘while this explains the work of INGO’s in the Third World, it does not excuse their relative inactivity on human rights violations in the West’.29 This argument overlooks the fact that many of the nations in the west possess more sophisticated municipal options for human rights redress than their Third World counterparts.30 This is not to say that the west should not be the subject of greater scrutiny – it should – but any realistic appraisal of the INGO system recognises that resources in these organisations are scarce and therefore will be by nature targeting those areas with more alarming human rights abuses.31 Again, this is not because they want to operate within the SVS paradigm, nor disrupt the local cultures within the Third World, nor some covert operation to promulgate the westernisation of the world, but rather because pragmatic decisions have been made as to where their resources might be used best.

Surprisingly, Mutua is also dismissive of INGOs and senior academics. Mutua’s criticisms of the INGO’s are damning. In brief, he contends that these are highly westernised entities and that their operations are laced with the SVS metaphor. For example, he is quick to illustrate how many of the workers within INGOs are educated in the West and therefore carry SVS biases into their human rights’ duties. There is an irony in this criticism for a quick gloss of the footnotes reveals that a number of his impressive qualifications come from those institutions most revered in the western world including Harvard – an institution perceived as the bastion of western knowledge as we know it today. Does this mean that he himself has fallen foul to the very SVS model he wishes to expose? It seems trite to argue that merely because one has been educated in the West they are rendered in incapable of exercising critical judgment or effecting their human rights obligations objectively. Contemporary education is increasingly being measured – and rightly so – by its ability to incorporate critical discussion, acknowledge power relations and to ‘turn the gaze inwards’ so to speak. It is doubtful whether those colonial worldviews permeating the 19th century and discussed by Mutua are still omnipresent today? As Glenn points out, increasing awareness in the west of the traditional character of western thought now places western thought beside, and not above other forms of thought. Increasing juxtaposition with other traditions reveals their own diversity, and measure of internal rationality. It is no longer considered scientifically or intellectually accurate, and as a consequence no longer politically correct, to speak of ‘primitive’ or ‘advanced’ societies or peoples, as western sociology and anthropology traditionally did. Particular practices must be identified, and opposed or defended. Simultaneously, western society has brought about the material conditions for increased contact amongst traditions. A process of reaction accompanies the process of globalization and development, as efforts to expand western information more frequently encounter other forms of information. All sides have a stronger sense of identity – for best or worse - and all sides are influenced by the process. They cannot remain what they were.32

As mentioned, Mutua also questions the agenda of academics (of which he is one) in the human rights corpus. Although there is a great deal to be said of the ‘publish or perish’ phenomena gripping the academic world, it cannot be refuted that intellectuals like Mutua have done much to mobilize the human rights endeavour; a mobilisation process that has been impartial to various SVS biases. In this diffusion, non-European discourse has played a seminal role. Frequently non-western intellectuals are less than ready to accept western conceptions in totality and expressly attempt to avoid the onset of SVS influences by relating questions of human rights to specific national conditions. Useful contributions have not only been produced by non-western academics and human rights advocates, with cutting pieces being delivered by people from all parts of the globe. Indeed, the emphasis Mutua places on the need for human rights work to come from within may be slightly overstated. Of course, there are longstanding convictions that one cannot be objective about one’s own society,33 something that may affect all human rights workers whether western or non-western. But the issue seems to transcend this.

In an excellent anthropological piece, though one that is of immense relevance to issues at hand, Narayan has explored the questions: ‘How Native is a Native Anthropologist’ and ‘How ‘Foreign’ is a Anthropologist from Abroad?’34 A so-called ‘native anthropologist’ herself, she concludes that the extent to which anyone is an authentic insider is questionable, arguing against the fixity of a distinction between ‘native’ and ‘non-native’ anthropologists. Consistent with the argument that has been put in relation to the human rights arena she suggests that at this historical moment we may more profitably view each anthropologist in terms of shifting identities amid a field of interpenetrating communities and power relations. Thus, factors such as education, gender, sexual orientation, class, religion, race, or sheer duration of contacts may at different times outweigh the cultural identity we associate with the insider/outsider status. It is more productive, she posits, if we focus our attention on the quality of relations with the people we seek to represent in our work. Specifically, we must constantly ask ourselves: are they viewed as mere fodder for professionally self-serving statements about a generalised other, or are they accepted as subjects with voices, views, and dilemmas–people to whom we are bonded through ties of reciprocity and who may even be critical to our professional enterprise?

She notes that even as insiders or partial insiders in some contexts we are drawn closer in others we are thrust apart. Yet, in that we all belong to several communities simultaneously (not least of all the community we were born into and the community of professional academics) and submits that every anthropologist exhibits a ‘multiplex subjectivity’ entailing numerous cross-cutting identifications. Which facet of our subjectivity we nominate or are compelled to accept as a defining identity can change, depending on the context and prevailing vectors of power. In a statement that is equally befitting for the universalist/relativist human rights debate, Narayan proposes that we would be far better off in looking for the natives’ point of view to realise their visions of their worlds while at the same time acknowledging that ‘we’ do not speak from a position outside ‘their’ worlds, but are implicated in them too through fieldwork, political relations, and a variety of political flows. In this regard, the term indigenous or native is somewhat of a misnomer, for all of us are native somewhere and the majority of anthropologists (and the author would add human rights advocates) at some time deal with their own communities. 35 Rather than trying to sort out who is an authentic, genuine human rights worker and who is not, surely it is more rewarding to examine the ways in which each one of us is situate in relation to the people whose suffering we are trying to quell.

Mutua is also extremely sceptical of the importance attached to race in the human rights narrative, arguing that the SVS metaphor of human rights entails racial connotations that sustain an international hierarchy grounded in race and colour. Hence: ‘… savages and victims are generally non-white and non-western while the saviours are white …’ This is somewhat confounding for even Mutua acknowledges that it was the European and not Third World atrocities that gave rise to the human rights movements as we know it today:

While the movement has today constructed the savage and the victim as non-European, Adolph Hitler was the quintessential savage…Hitler, a white European, was the personification of evil. The Nazi regime, a white European government, was the embodiment of barbarism.

This argument seems antithetical to his central proposition. Frequently, human rights have been reported for what they are. Even if we are to employ his metaphor, Hitler was the quintessential savage of yesterday, Bin Laden the quintessential barbarian of today. In making this observation this does not support his notion that savages and victims are generally non-white and western, for the very foundation of the human rights movements, as he points out, stemmed from a European man in a European state to a European people (in the form of six million Jews). If Milosevic were white, pink, black or purple, he too would hopefully feel the brunt of the human rights enforcement process, not because of any aspirations for the west to be redeem its unimpressive history, or desire to be a saviour, but because his actions are quite plainly reprehensible.

A little more disturbing, is the following assertion:

… there is also a sense in which the human rights can be seen as a project for the redemption of the redeemers, in which whites who are privileged globally as people – and who have historically visited untold suffering and savage atrocities against non-whites – redeem themselves by ‘defending’ and ‘civilising’ ‘lower’ ‘unfortunate,’ and ‘inferior’ peoples.

Any such analysis must always be treated with caution. Firstly, what one’s white descendants did to non-whites, if in fact they did anything pernicious at all, has no direct nexus to his/her offspring. Whites, like any other people may engage in activities that endeavour to rightly acknowledge past injustices, indeed there may a profound sense of shame for atrocities perpetrated by their ancestors. But can we really make the logical connection that all human rights advocacy emanating from one’s white forbears is really just an exercise of redemption? A guise whereby one makes themselves feel better for doing nothing wrong other than being born white? Such an assertion is not only absurd, but serves to denigrate the scope of the human rights enterprise.

It is one of Mutua’s final claims that in the author’s opinion, results in the reactionary abandonment of all prospect of an egalitarian, democratic and just society. He states (in the South African Apartheid context):

There is in that history a strong undercurrent of white benefactors sometimes pejoratively referred to as ‘do-gooders,’ a species of human cut from an abolitionist cloth. During the darkest days of apartheid, many individual white lawyers, white law firms and white human rights organisations spoke for and defended black South Africans. Many whites became the key leaders in what was essentially a black liberation struggle. In the United States, from the earliest days of enslavement of Africans by whites up to the civil rights movement, whites often played important roles in the struggle for equality by blacks. As in South Africa, many American whites held key positions in the fight for civil rights (emphasis added).

Note his claim that we now have white ‘do-gooders’ who are not depicted as human beings, but a subhuman ‘species’ who are ‘cut from the abolitionists cloth’. Their whiteness is magnified to the extent that it becomes an unnecessary preoccupation. In this one small paragraph the word white is mentioned some eight times. Is this not Orientalism in reverse? And on what evidence are these sweeping statements of Professor Mutua made?

Not only does his argument gloss over the reality that it was blacks who so successfully lead this struggle, notably Tutu and Mandella, but it also must be asked why is this an ‘essentially black struggle’ anyway and not a struggle for the whole of humanity. The whole point of the restorative justice process with respect to Apartheid was to yield truth, closure, healing and reconciliation between blacks and whites. Restorative justice, by its very nature, is not a process which promotes a SVS metaphor for no one is saved or rescued. To the contrary it was about affirming the dignity and agency of those who have been brutalised by attending to their voices and making their voices part of the historical record. Like so many human rights struggles, real outcomes could not have been accomplished if only one party had come to the table. Moreover, restorative justice may go some way in crossing cultural divides inherent in other human rights procedures in that it has been championed by people from many different traditions, religions and cultures, from the Japanese to the Maori of New Zealand. It is worth noting that the South African Truth and Reconciliation Committee (TRC) traced the notion of restorative justice to the Judeo-Christian Tradition and to African values like ubuntu, thus providing a true example of how two traditions can meet at the divide to bring about genuine human rights outcomes. 36 A key success of the TRC process was that its hearings dramatically portrayed a newly enfranchised black majority (not the helpless victims outlined in the SVS metaphor) addressing its former oppressors with civility and with a willingness to acknowledge the others’ legitimate pain. In a moving passage from the Commission’s Report, Tutu noted:

It was not the upholders of Apartheid who introduced gross violations of human rights in this land. We would argue that what happened when 20,000 women and children died in the concentration camps during the Anglo-Boer War is a huge blot on our copy book. Indeed, if the key concept of confession, forgiveness and reconciliation are central to the message of this report, it would be wonderful if one day some representative of the British/English community said to the Afrikaners, ‘We wronged you grievously. Forgive us.’ And it would be wonderful too if someone representing the Afrikaner community responded, ‘Yes we forgive you-if you will perhaps let us tell our story, the story of our forebears and the pain that has sat for so long in the pit of our stomachs, unacknowledged by you’.37

We can therefore see that the work carried out by the TRC - as do most successful restorative justice measures - possesses a level of sophistication and maturity beyond that envisioned in the SVS framework. Far from being ‘hijacked’ by whites Professor Kiss has noted that the TRC serves as a stunning reminder of how much of the dynamism and creativity in the quest for justice is coming from the people of colour in general, and Africans in particular.38 Testimony to this is the reality that today people from around the world are looking to the South African TRC as a template for negotiating human rights, in dire contrast to the bleak, Western orientated picture painted by Mutua.

It would seem, therefore, that Mutua has even construed the role of the Good Samaritan as being one rooted in the SVS metaphor. His article then, virtually rejects all prospects of altruism, or at least questions the motives for such activity. And yet surely the person handing out food in war torn Afghanistan, western or not western is doing a good thing? Can we really say that either side is aligned to a savage or a saviour, even if we do resort to such outmoded and arbitrary categories? It may be that some people engaged in human rights enterprises do so because such activities give them a sense of satisfaction or usefulness and it must be asked: is there really something wrong with that? But this does not hold that they want to be a saviour or some kind of divinity status. For chances are no one will remember them when they die in the name of another, as was the case for Jesus Christ or other celebrated saviours throughout history.

4. Conclusion

All of the great traditions, of which the human rights tradition is one, generate opposition within aimed at the improvement or transformation of that tradition. Even after his rather scathing critique of the human rights enterprise, Mutua appears to assure us that his work is not rooted in nihilism and offers, in the author’s opinion, one of his most constructive arguments. He states:

The idea of human rights – the quest to craft a universal bundle of attributes with which all societies must endow all human beings is a noble one. The problem with the current bundle of attributes lies in their inadequacy, incompleteness and wrong-headedness. There is little doubt that there is much to celebrate in the human rights corpus just as there is much to quarrel with. In this exercise a sober evaluation of the current human rights corpus and its language is not an option – it is required.

The problem here, though, is that Mutua has exceeded even his own calling. He has not just provided a sober evaluation; he has virtually destroyed the human rights entity, as we know it today. Thus, INGOs are not to be trusted, nor are senior academics. Arguably, even the lady handing out food amidst gun battles in Iraq is also complicit in the subversive SVS metaphor.

As long as the SVS metaphor is seen as the staring and end point of analysis, research and public policy, the result is usually to polarize the distinction - the western human rights worker becomes more western – the Third World worker more ‘Third World’ - and limits the human encounter between different cultures, traditions and societies. 39 No longer do we have ordinary human rights workers. Instead we are presented with human rights saviours (European men in shining armour) coming to save the victims (the helpless women from the Third World). Far from being either accurate or productive, this fallacy accelerates the polarisation process in a field where cohesion is needed more than ever.

Accordingly, Mutua’s article, while both engaging and challenging is unnecessarily and unrealistically grim. In painting the Savage, Victim, and Saviour metaphor Mutua engages in a process of reverse ‘Orientalism’, effectively employing the very othering process he seeks to expose. The SVS metaphor has very much been ameliorated, if not completely redefined by the Third World itself, the forces of globalization and the increasing interdependence of many of the dominant world traditions. Although Mutua must be commended for walking the plank of political correctness – a walk that is too seldom taken by those in our profession - an argument which holds that the whole human rights corpus runs rampant with a SVS metaphor is unequivocally nihilistic. For Mutua essentially suggests that no one can be trusted: The UN, INGOs, senior academics and even the politically and ideologically neutral human rights worker handing out food during serious times of conflict. In this regard, we are left with the reactionary abandonment of all prospect of an egalitarian, democratic and just society – a proposition that needs to be challenged for the welfare of all.

Endnotes

1 Mutua, Makua (2001) ‘Savages, Victims, and Saviours: The Metaphor of Human Rights’ Harvard International Law Journal, 42 (1), pp 201-245.

2 Conkey, Margaret W (1993) ‘Men and Women in Prehistory: An Archaeological Challenge’ in Brettell, Caroline B and Sargent, Carolyn F (eds) in Gender in Cross-Cultural Perspective 41, p 44.

3 Anghie, A (1999) ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth - Century International Law,’ Harvard International Law Journal 40, pp 1–41.

4 Ibid.

5 Ibid, p 23.

6 Ibid, p 25.

7 Ibid, p 31.

8 Webber, Jeremy (1995) ‘Relations of Force and Relations of Justice: The Emergence of Normative Community Between Colonists and Aboriginal Peoples’Osgoode Hall Law Journal 33, pp 623-660.

9 Anghie, supra note 3 at 42.

10 Collier, Michael M (2003) ‘The United States and Multilateralism 2001-2003:?A Mid-Term Assessment:?The Bush Administration's Reaction to September 11: A Multilateral Voice or a Multilateral Veil?’ Berkeley Journal of International Law 21, pp 715, 729.

11 De Brennan, Sebastian ‘The Internationalization of Terrorism: Winning the War While Preserving Democratic Rights: A Balance Gone Wrong Australian International Law Journal (under review). These days good international citizenship is a matter of national self-interest. With the world as close and interdependent as it now is, and with crises in ‘faraway countries of which we know little’ is capable of generating major problems elsewhere (with refugee outflows, health pandemics, terrorism, narcotics, drug trafficking, organised crime and the like), it is strongly arguable that it is in every country’s interest to contribute co-operatively to the resolution of such problems, quite apart from the humanitarian imperative to do so. See ICISS (2001) The Responsibility to Protect: Research, Bibliography and Background (Ottawa: IDRC), p 36.

12 Webber, supra note 8, p 635.

13 Webber, ibid points out that even murders were pardoned, so as to ensure the continuance of good relations.

14 See also Keesing, Roger M (1985) ‘Kwaio Women Speak: The Micropolitics of Autobiography in a Solomon Island Society’ American Anthropologist, 87 (1), p 28, regarding the Kwaio people’s resistance to westernisation.

15 Said, Edward W (1978) Orientalism (New York: Vintage Books), pp 1-49.

16 Ibid.

17 Incidentally, I wonder if similar charges could be made against the ‘Orientals’ during the height of the Ottoman Empire – a colonial expedition in which those in the Oriental world were the imperialists.

18 Narayan, Kirin (1997) ‘How Native Is a ‘Native’ Anthropologist?’ in Lamphere, Louise et al (eds) Situated Lives: Gender and Culture in Everyday Life, (London and New York: Routledge).

19 Ghai, Yash (1993) ‘Asian Perspectives on Human Rights’, Hong Kong Law Journal 23 (3), p 353.

20 It is worth noting that these individuals come from all walks of life and are not non-western individuals only.

21 On international mobilisation by indigenous groups see: Tuhiwai Smith, Linda (1999) Decolonizing Methodologies: Research and Indigenous Peoples, (London and New York: Zed Books), pp 112-115.

22 Narayan, supra note 18, p 29.

23 Shaw, Malcolm N (1997) International Law, 4th ed., (Cambridge: Cambridge University Press), p 34.

24 Ibid.

25 Articles 108 and 109 of the Charter, which require inter alia the consent of all of the permanent members to any amendment or alteration of the Charter.

26 Shaw, supra note 23, pp 826-827.

27 For an interesting discussion on how this might be achieved, see Okafor, Obiora Chinedu (1997) ‘The Global Process of Legitimation and the Legitimacy of Global Governance’ Arizona Journal of International and Comparative Law, 14 (1), pp 126-140.

28 See Byers, Michael (1999) Custom, Power and the Power of Rules (Cambridge: Cambridge University Press), pp 35-50.

29 This argument has also been put cogently by Tomaševski, Katrina (2000) Responding to Human Rights Violations, 1946-1999 (The Hague: Martinus Nijhoff), pp 369-390.

30 On this see Farer, Tom (1997) (excerpt) ‘The Rise of the Inter-American Human Rights Regime’ Human Rights Quarterly, 19 (3), pp 517-520.

31 We cannot, of course, forget that the conditions created by the west often contribute to the atrocities in the Third World. For example, the conditions created by multinational enterprises (MNCs) have been linked to human rights abuses. In a conspicuous omission, Mutua does not deal with western MNCs. The fact that 51 of the 100 largest economies in the world 51 are corporations; 49 are nations (in terms of corporate sales and GDP), means that a more realistic appraisal of the human rights landscape warrants their inclusion. On the influence of multinationals generally see: Andersen, Sarah and Cavanagh, John (undated). ‘Top 200: The Rise of Corporate Global Power’. Washington DC: Institute for Policy Studies. Available at: http://www.ips-dc.org/reports/top200text.htm.

32 Glenn, P H (2000) Legal Traditions of the World (Oxford: Oxford University Press), p 30.

33 Abu-Lughod, Lila (1991) ‘Writing Against Culture’ in Fox, Richard G (ed) Recapturing Anthropology: Working in the Present (Sante Fe, NM: School of American Research Press), p 139.

34 Narayan, supra note 18 at 23-41.

35 Ibid.

36 Kiss, Elizabeth (2000) ‘Moral Ambition Within and Beyond Political Constraints: Reflections of Restorative Justice,’ in Rothberg, Robert I and Thompson, Dennis Truth v Justice: The Morality of Truth Commissions (Princeton and Oxford: Princeton University Press), pp 68-98.

37 Final Report, I, Chapter 1, para 65.

38 Kiss, supra note 36.

39 See Said, supra note 15, pp 45-46.

References

Andersen, Sarah and Cavanagh, John (undated). ‘Top 200: The Rise of Corporate Global Power’. Washington DC: Institute for Policy Studies. Available at: http://www.ips-dc.org/reports/top200text.htm.

Abu-Lughod, Lila (1991) ‘Writing Against Culture’ in Fox, Richard G (ed) Recapturing Anthropology: Working in the Present (Sante Fe, NM: School of American Research Press).

Anghie, A (1999) ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth - Century International Law,’ Harvard International Law Journal 40, pp 1–41.

Byers, Michael (1999) Custom, Power and the Power of Rules (Cambridge: Cambridge University Press).

Collier, Michael M (2003) ‘The United States and Multilateralism 2001-2003:?A Mid-Term Assessment:?The Bush Administration's Reaction to September 11: A Multilateral Voice or a Multilateral Veil?’ Berkeley Journal of International Law 21, pp 715, 729.

Conkey, Margaret W (1993) ‘Men and Women in Prehistory: An Archaeological Challenge’ in Brettell, Caroline B and Sargent, Carolyn F (eds) in Gender in Cross-Cultural Perspective 41.

De Brennan, Sebastian (under review) ‘The Internationalization of Terrorism: Winning the War While Preserving Democratic Rights: A Balance Gone Wrong Australian International Law Journal.

Farer, Tom (1997) (excerpt) ‘The Rise of the Inter-American Human Rights Regime’ Human Rights Quarterly, 19 (3), pp 517-520.

Ghai, Yash (1993) ‘Asian Perspectives on Human Rights’, Hong Kong Law Journal 23 (3), p 353.

Glenn, P H (2000) Legal Traditions of the World (Oxford: Oxford University Press), p 30.

ICISS (2001) The Responsibility to Protect: Research, Bibliography and Background (Ottawa: IDRC).

Keesing, Roger M (1985) ‘Kwaio Women Speak: The Micropolitics of Autobiography in a Solomon Island Society’ American Anthropologist, 87 (1), p 28.

Kiss, Elizabeth (2000) ‘Moral Ambition Within and Beyond Political Constraints: Reflections of Restorative Justice,’ in Rothberg, Robert I and Thompson, Dennis Truth v Justice: The Morality of Truth Commissions (Princeton and Oxford: Princeton University Press).

Mutua, Makua (2001) ‘Savages, Victims, and Saviours: The Metaphor of Human Rights’ Harvard International Law Journal, 42 (1), pp 201-245.

Narayan, Kirin (1997) ‘How Native Is a ‘Native’ Anthropologist?’ in Lamphere, Louise et al (eds) Situated Lives: Gender and Culture in Everyday Life, (London and New York: Routledge).

Okafor, Obiora Chinedu (1997) ‘The Global Process of Legitimation and the Legitimacy of Global Governance’ Arizona Journal of International and Comparative Law, 14 (1), pp 126-140.

Said, Edward W (1978) Orientalism (New York: Vintage Books).

Shaw, Malcolm N (1997) International Law, 4th ed., (Cambridge: Cambridge University Press).

Tomaševski, Katrina (2000) Responding to Human Rights Violations, 1946-1999 (The Hague: Martinus Nijhoff).

Webber, Jeremy (1995) ‘Relations of Force and Relations of Justice: The Emergence of Normative Community Between Colonists and Aboriginal Peoples’Osgoode Hall Law Journal 33, pp 623-660.