In a 2016 op-ed in the Guardian, Lakota elder and historian LaDonna Brave Bull Allard argued that “the water protectors at Standing Rock … are fighting for our children’s rights to clean drinking water.” In a 2020 op-ed also in the Guardian, Waorani leader Nemonte Nenquimo said to the Western world, “Your civilization is killing life on earth.”
Some understandings of human rights would see these two claims as separate—the former legal and the latter ethical, the former making a claim on the state and the latter making a claim on everyone in the West. But I suggest that we can read these claims together. In other words, sometimes rights claims also ask us to rethink ethics, and other times responding to ethical demands requires establishing and protecting rights.
By placing opinion pieces in the Guardian, Allard and Nenquimo—who have defended Indigenous land rights in the (so-called) United States and Ecuador, respectively—are making claims on publics much wider than merely those in countries who have jurisdiction over their people’s treaty-bound land. Their wide-reaching claims teach us that advancing human rights can include legal struggles within states as well as ethical invitations across states.
In this way, human rights claims can be understood not only as calling for new laws, but also as requests asking ordinary people to change how they live.
To read rights claims as ethical invitations matters for three reasons.
First, it means that when our rights claims do not win legal victories, we need not consider those losses as total “failures.” Yes, legal changes matter—we do want to stop the pipeline or convince our country to join the climate treaty. At the same time, along the way we are trying to start from a shared political vocabulary (of rights) and then use that shared vocabulary to transition to a broader set of practices that are receptive both to the land on which we stand and to the others with whom we share that land.
For instance, although the Xukuru nation won a case at the Inter-American Court of Human Rights in 2018, Brazil under Jair Bolsonaro did not fully implement this victory with regard to stopping the harassment of Xukuru leaders or repatriating ancestral land to the nation. Nevertheless, the Xukuru have continued making claims to human rights. That they have done so suggests that they never viewed human rights claims as only about changing the laws of the state. It suggests that they also used rights claims to offer a broadly legible language that has linked the Xukuru struggle to other life-affirming efforts, including Occupy Wall Street and Standing Rock.
Second, to read rights claims as ethical demands shows that the critique that rights claims reflect a colonial imaginary is misguided. One version of this critique suggests that when Indigenous or other dispossessed people leverage rights claims, they have succumbed to the (colonial) political tools of the European Enlightenment and thus have lost the anti-colonial or non-Western potential that might have been contained in their societies.
But using rights claims does not mean that a people suddenly stops practicing their distinct cultural practices. Rights claims and distinct cultural practices can go together; this is what the Martinican poet and philosopher Édouard Glissant calls a “right to opacity.”
Thinking through the lens of Glissant’s “right to opacity” in my forthcoming book, I suggest that when a people uses human rights claims, that does not necessarily reflect their full political imaginary, nor does it demonstrate the ideal form of society that the community has passed down through generations. Rather, a dispossessed people often takes up rights claims to make a request on those who are implicated in their dispossession.
In making these requests, many peoples strategically start from language that is the most broadly legible to their audience. Most people in London or New York do not know the Waorani or Lakota language, much less their metaphysics. Consequently, Waorani and Lakota leaders make claims in terms that should resonate with their audience, including in the language of rights. These claims are part of a longer decolonial tradition of rights claims, which, as Steven L. B. Jensen has argued in this forum, has driven the global human rights movement.
Third and finally, the reading of rights claims as requests for some to change how they live reminds us that the law is not the principal end of political life. A victory in an international court or a reformed constitution is itself significant. But time and time again, as Derrick A. Bell Jr. stressed, court decisions struggle to effect changes in how people relate to one another.
Too often, citizens in Western countries act as if once the gavel strikes the sound block, justice has been achieved. To read rights claims as requests does not let us off the hook so easily. It means that while we readers of the Guardian or Open Global Rights certainly can celebrate court and policy victories, we ultimately need to be more reflexive about how we live our lives in a very ordinary, everyday sense.
In making such reflections, we might find that justice looks not only like a new law inked in the halls of power, but also like taking it upon ourselves to divest from our university- or NGO-provided “green” portfolios, whose environmental, social, and governance (ESG) stocks still have holdings in oil and gas. We might have to abandon “respectability” and “professionalism” at work because our presentable suits and ties are often made by enslaved children. We might advocate for public transit instead of buying an electric car, whose battery requires lithium mined on Indigenous land.
And we might have to say no to our friends who invite us to vacation in Vanuatu because we have started to see that the International Court of Justice’s clarification regarding states’ obligations to protect the climate is not just a legal question. It also has to do with how Pacific Islanders are asking the world to understand and respond to its land and water.
Perhaps it is only through ethical refusals that we can hold open the imaginaries we have asked the law itself to safeguard for too long.