Francisco-José Quintana

How can human rights contribute to institutional reconstruction? The devastation brought by the COVID-19 pandemic has exposed the precariousness of our institutional arrangements. In this context of tragic human loss, fragile economies, and mounting unemployment, to which the poorest remain the most vulnerable, the call to reimagine the organisation of our societies is as challenging as necessary. In the hope that the crisis might open up space for change, progressives have advanced significant proposals. Some of them share a number of ambitious goals including: challenging entrenched social and economic inequalities; supporting and expanding social and economic security programmes; and learning from the pandemic how to better resist the destruction of the environment. Although we might disagree on how to advance these goals, this consideration is, in our present circumstance, secondary to broadening the consensus and advancing an agenda in this direction. It is in this constructive spirit that I suggest that, to maximise the support of human rights to this agenda, a deeper engagement with their complicities with the present order is necessary.

To understand the relationship between human rights and the structure of society, legal thought is an essential tool. This is because law deals with this structure at the level of significant detail. As argued by Roberto Mangabeira Unger, it is in these details that the contradictions and deviations to dominant arrangements —including those dominant elements in human rights— lie, and these can become points of departure for new alternatives. This approach faces, however, an obstacle: the idealisation and systematisation of human rights law, as any other field of law, by scholars and practitioners. This portrays the law and their subfields as coherent and defensible systems, denying these very ambiguities and tensions and thus hindering change. I propose, therefore, to acknowledge human rights’ complicities with the present order as tensions with other discourses, practices, and structures of human rights, and change them. I want to focus on two specific tensions of crucial importance for this agenda: their relationship with the state, and with inequality.

Human rights have a two-sided relationship with the state: they both aim at protecting the individual from the state, but rely on the state to uphold them and ensure their respect. However, human rights have focused too much on “naming and shaming” states as those individually responsible for specific human rights violations and less on agendas addressing the material resources on which the essential functions of government —and, in turn, the effective enjoyment of economic, social, and cultural human rights— depends. A progressive agenda would benefit from a human rights movement less sceptical of government and deploying its language in favour of struggles for structural economic transformation. Now that more actors across the political spectrum have come to appreciate the importance of government, the context seems favourable for human rights to embrace the significance of state resources by calling for reform in areas of the global economy such as international trade, intellectual property and access to medicines, and financial regulation. Structural transformation can be gradual and one example, which has received significant attention, stands for many that would show how additional support from human rights movements is necessary: sovereign debt. Right now, debt relief is critical. But a permanent and equitable sovereign debt restructuring mechanism —which has been postponed many times— remains necessary for developing economies. A politics of human rights concerned with the material resources of states —on which the realisation of economic, social, and cultural rights depends— should be further involved in this kind of institutional debates.

The relationship between human rights and material inequality, in turn, has been the object of much analysis. Prominent critiques have recently exposed economic and social rights as concerned with sufficiency rather than equality —and thus increasing respect for them as entirely compatible with increasing inequality—, and shown how neoliberalism has contributed to and benefited from hegemonic conceptions of human rights. Many human rights activists and supporters have unsurprisingly taken issue with these critiques, especially because many of them intend to do just the opposite. For those of us who want to increase the influence of an egalitarian agenda within human rights, the crisis both demands and offers opportunities for action, by resisting (and breaking with) the neoliberal market order. Human rights should be deployed to reject the structural adjustment programmes that left marginalised groups extremely vulnerable to this pandemic and will once again be demanded by international financial institutions to pay for the economic fallout. Right now, the denunciation of the “false dilemma” between health and the economy is essential. Moving forward, a commitment towards equality will demand less deference from human rights to strategic accommodation, including in the form of uncomfortable alliances with these financial institutions. Instead, human rights movements can promote and demand the discussion of egalitarian —and not just strategically useful— economic programmes among coalitions and governments. Resistance, in turn, will remain crucial, as perhaps best illustrated today by the staunch activism of indigenous and environmental advocates.

It is a critical moment to push for structural change that can bring about egalitarian futures. The point is not merely to make sure that agendas on the table are shaped by human rights. Human rights themselves are the product of struggle and are constituted by elements pointing in different directions. The tensions between human rights and the state, and human rights and inequality, in particular, must not be dismissed, but acknowledged, in order to be driven towards not just any, but a progressive human rights politics of institutional reconstruction.

Francisco-José Quintana is a Ph.D. candidate and a Gates Cambridge scholar at the Faculty of Law, University of Cambridge. He is a founding member of the editorial collective of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional). He holds LLM degrees from Harvard Law School and the London School of Economics and was previously a Lecturer at Torcuato Di Tella University. Twitter: @quintana_fj