The (mis)appropriation of human rights

Source: American Life League / OpenVerse

Human rights have always been susceptible to multiple and sometimes conflicting interpretations. Yet something distinct is now afoot: an array of efforts at concerted legal change in the human rights field has appeared in different parts of the world, on the basis of a supposedly “reformed” characterization of human rights, including in Putin’s Russia, Erdoǧan’s Turkey, Modi’s India, Brazil under Bolsonaro, and the United States under the former Trump administration, alongside developments in Uganda, Nigeria, Ghana, and elsewhere.

This “reformed” characterization includes a novel emphasis on particular rights, such as family rights and unborn rights, and an exclusion of others, such as gender equality and LGBTQI+ rights, and a highly selective use of particular sources of international human rights law while ignoring others.

In a forthcoming symposium in the International Journal of Constitutional Law, these arguments and moves are described as appropriations—and indeed as misappropriations—when they use human rights language in the service of ends that are exclusionary, repressive, or anti-pluralist in character; highly retrogressive or reversing of previous commitments; and evasive of external monitoring or accountability. 

By invoking the discourse of human rights to exclude or repress particular groups and individuals while consolidating authority and avoiding accountability, the coalitions of religious and political actors examined in the symposium case studies are misappropriating a human rights system that—despite extensive contestation and critique—has been developed over a long period around certain core values, including equal human dignity, inclusion, and accountability. 

These moves—like those recently observed at the UN Human Rights Council—seek to reverse a range of progressive achievements of the human rights system around gender, religion, property, culture, and equality. The actors who appropriate human rights in this way have propelled an illiberal agenda into international fora  like the Human Rights Council, argued for new and regressive interpretations of landmark human rights sources (the Universal Declaration of Human Rights (1948), for instance), and tried to bring their influence to bear through human rights courts and national human rights institutions, and on domestic human rights laws. 


Identifying (mis)appropriations

The human rights system is a complex and dynamic one involving ongoing interaction between domestic and local cultures, institutions, actors, practices, and values on the one hand, and the global and philosophically informed framework of norms and values on the other, in shaping the corpus of human rights. 

Given the open-ended character of so many rights provisions, it might be thought that there are few, if any, interpretative moves, whether conservative or progressive, that can be characterized as transgressing the plausible boundaries of the field. However, having scrutinized some prominent contemporary examples,  an array of nonexhaustive indicators can be proposed that help to identify the (mis)appropriation of human rights by the new global right. 

The suggested indicators focus on the following set of questions, which can be posed to any particular human rights interpretation or claim. For example, does the claim: 

  1. have an exclusionary, repressive, or anti-pluralist aim or effect, as opposed to widening inclusion or recognition;

  2. represent a departure from the existing body and sources of international human rights law, and particularly from developments postdating the Universal Declaration of Human Rights, which follow through with that instrument’s own plan for multilateral treaties to implement the declaration;

  3. attempt to create or assert a hierarchy of rights, wherein some rights are supposedly more fundamental, while others are treated as subordinate or of secondary importance;

  4. attempt to scapegoat certain groups or to identify groups or categories of persons who are said not to be entitled to claim rights;

  5. impose restrictions on civil society, whether on funding, organization, or other activities, or utilize strategic lawsuits against public participation (SLAPPs); 

  6. rely on (or is accompanied by) evidence of clear falsehood, subterfuge, “camouflage,” intentional distortion, or deliberate polarization;

  7. involve a reversal of previous rhetorical or legal strategies of the same actor (which may be suggestive of bad faith or disingenuous purpose); and/or 

  8. seek to evade or reject external monitoring or independent mechanisms of accountability.

While no one of these indicators alone is likely to definitively identify an appropriation of human rights as illiberal, pretextual, or transgressing core human rights commitments, some of them clearly represent red flags to warn of that possibility, and several of them combined strengthen the probability that that is the case. 


Populist trends and appropriated rights 

The case studies in the symposium include examples from Russia, Turkey, India, sub-Saharan Africa, and the previous administrations in Brazil and the United States. They clearly demonstrate parallel trends within a range of populist, illiberal developments around the world, and add much-needed context to the set of human rights reversals taking place. 

The case studies reveal coalitions of populist and conservative—often right-wing and sometimes authoritarian-leaning—governments, political parties, lawyers and lawyer associations, and also religious actors and business interests, who often share common intellectual influences, funding, and transnational connections. 

The studies depict the spread and intensification of claims of human rights to religious freedom, to conscience and conscientious objection, to family and parental rights and control, to culture and to property, and to the right to life of the fetus, as well as assertions that such rights sit atop a hierarchy of human rights. They also demonstrate a concerted downgrading or rejection of equality-based rights to anti-discrimination, women’s rights, the rights of religious minorities (as opposed to majorities), LGBTQI+ rights and those of migrants and refugees, as well as the rights of those harmed by climate change. 


Critiquing interpretive moves without undermining human rights

The human rights system has always encountered extensive contestation and criticism, including by those who point to their imperialist origins and their instrumental use for geopolitical and other ends. And yet despite—and also because of—this sustained critique and engagement, a broad if uneven consensus has nonetheless emerged over decades around a set of basic values, norms, and institutions. 

Today, however, under conditions of stark political polarization and the radicalization of discourses, a rather different set of claims around human rights is emerging: one that excludes, subordinates, and marginalizes rather than includes and protects, and one that creates hierarchies while avoiding any mechanisms of accountability. 

Scholars and advocates should be encouraged to examine, illuminate, and challenge these moves, lest a new and “reformed” body of ultraconservative and illiberal human rights should be the outcome.