The title of my new book may seem perplexing. Human rights are widely associated with life affirming social benefits and freedoms. They are said to be enjoyed in democracies, and indeed human rights are often how liberal governments distinguish themselves from autocracies. From the franchise to impartial social justice, freedom of expression to the right to the fundamentals of life, Western liberal scholars and politicians have projected human rights as indicators of inevitable human progress. The suggestion that one of the preeminent achievements of liberalism is colonial seems uncharitable, especially now when several nations are ruled by nationalistic populists who have a contempt for human rights.
My title is not a reiteration of the charge that the finger pointing about human rights problems from Western middle classes and political elites is a continuation of a colonial mindset – although that charge is not entirely unfounded. Instead, I refer to the notion that human rights are infused with colonial attitudes because in their formulation in texts and laws, and in their recognition and enforcement in civil society, exceptions to the much vaunted principles were, and continue to be, routinely made. Indeed, exceptions by which non-Europeans were excluded from rights were built into the philosophical treatises on human rights as well as the more prosaic texts produced by governments and international bodies. Furthermore, the civic institutions that have administered human rights often have had no intention of applying such rights to everyone.
This is ironic since human rights call for universal application, recognising specific, sometimes ‘inalienable’, rights that are conferred to people either as individuals or collectives. Broad rights to equality, liberty, freedom, legal protections and private property are decreed in the official documents and extolled by liberal theorists. While many of these rights have been realized, violations recognised, and processes of ameliorative justice pursued and won, there is still a large gap between what is pronounced and the force that is given to universal application. One of the most important reasons for the existence of this gap is the authoritative depiction of non-European peoples as culturally and biologically inferior. In ‘liberalism’s founding text’,John Locke’s Second Treatise on Government, asserted that American Indians do not to qualify for private property rights. This right, a crucial one given the continual waves of English migration, was for Locke a prerogative of culturally superior colonial farmers. Being all hunters in his erroneous view, indigenous peoples could not claim property in their land as a right since they did not ‘improve the soil’.
What if the State is Racist?
Through the concept of the social contract, Locke conceived of popular consent to the authority of ‘political society’ or the state, which in turn confers human rights on subject populations. The idea of consent through a social contract is embodied in liberal thought and tracts such as the American Declaration of Independence and the French Declaration of Rights of 1791. But what if, as is currently being said through the Black Lives Matter and other social movements, the state was and is racist? What if it achieved its authority by violent occupation, duplicity and enslavement? What if these activities were legitimated by the belief in the inherent inferiority of non-Europeans? What if, as Frantz Fanon argued quoting from a WHO booklet of the 1950s, the normal African is perceived by significant liberal institutions as a ‘lobotomized European’?
The colonialism of human rights advances the idea that authoritative constructions of Afro-descended and indigenous peoples as being sub-Europeans fuels a longer history of non-universal human rights. Today the tension between the realities of differential human rights and liberal claims to universalism is now out in the open as the current impacts of past wrongdoing are being brought forth. The exceptions, exclusions and denials of human rights that occurred simultaneous with colonialism and enslavement have metastasized into new realms of de facto non-universality, and these are apparent to even the most casual observer.
In the US and Britain it has long been known that black people, for example, are not accorded the same rights as whites in employment, housing, education, criminal justice, and the right to life itself – the public spheres in which such rights are supposedly enjoyed. It did not only take the senseless killing of George Floyd by Minneapolis police officers in May 2020 to know that the sets of rights officially granted to African Americans as a group are not only inferior to those granted to whites as a group, but that violations of supposedly universal human rights have been of no consequence when perpetrated by largely white authorities on black people. As the narrator of Attica Locke’s Bluebird, Bluebirdtells readers, ‘for every story about a black mother, sister, wife, husband, father or brother crying over a man who was locked up for something he didn’t do, there was a black mother, sister, wife, husband, father or brother crying over the murder of a loved one for which no one has been locked up.’
In 2018 activists, journalists and private individuals exposed the British Home Office targeting people who had arrived following the Windrush migration from former British slave plantation colonies in the Caribbean in the mid 20th century. Accused as being illegal immigrants, these now elderly people had accompanied their parents who were recruited to work in Britain’s public services after the ravages of World War 2. Many of them were, after successive immigration acts, denied rights to employment and healthcare after paying taxes over decades of service to the UK. Key evidence of their legitimate status, such as the original landing slips, were destroyed by the Home Office in 2010. Many victims of the Windrush scandal have still not received the promised government apologies and several have died since it erupted.At the time of writing, there have been massive delays in disbursing the compensation payments pledged two years ago.
The colonialism of human rights is reflected in the ongoing global mobilization against police murders of black people, demanding the removal of statues of national heroes whose heroism was connected to slavery and colonialism, and in the growing choruses for schools to cease teaching histories omitting the racism which has permeated national social, cultural and political life. Current social movements are revealing that human rights were never really intended for vast swathes of national populations, and simply update the invidious distinctions between colonizer and colonized, enslaver and enslaved. The real fear of many of those in power in Britain and the US is that the past will interrogate the liberal democracy that legitimates their rule, and ultimately that the telling of the truth will accuse them also. The victims as well as journalists, activists and scholars are showing how the past is folded into the present. The reclaimed memories offer dignity and some glimmer of justice.
Why should these colonial divisions have such longevity?
While the liberal principles of the European Enlightenment are often swaddled in self-applause, they are too often seen in isolation from the parallel set of principles that underpinned the belief that humanity was divided so sharply into hierarchies. These doctrines were multifarious; for example, that indigenous peoples were savages and that certain peoples, especially Africans, were ‘natural slaves’. Such assumptions were translated into action as indigenous peoples were killed, dispossessed of their territories, forcibly assimilated and consigned to small tracts of land. The pattern was set in the initial English colonization of ‘New England’ with the relative indifference of the English towards the mass deaths of Indians from disease and violence in the 17th century. Over one 23 year period as much as 95% of the New England population was killed by English transmission of disease. This was, as Jill Lepore says made possible by, ‘the idea that Indians were not, in fact, truly human, or else were humans of such a vastly different race as to be considered essentially, and biologically, inferior to Europeans.’
Instead of protecting American Indians as subject populations of a democracy, the US Constitution functioned as a human rights document to empower settlers to encamp themselves on indigenous lands. It mentions Indians directly only twice; excluding them from taxation and, importantly from political representation, and giving powers to Congress to regulate trade with them. In practice, several Articles in the Bill of Rights were also not applied to Native Americans as ways of life, languages and religions were suppressed and often eradicated.
Similar beliefs legitimated plantation slavery. Implicit in the Constitution was the idea that humanity is arrayed along an ethnically differentiated continuum with human rights dispensed accordingly. This was admitted in the 3/5s compromise in the 1787 Constitution, which made enslaved people count as 3/5s of a person for the purposes of taxation and the calculation of the number of state representatives in Congress. Other passages in the Constitution, most prominently, the fugitive slave provision and a clause preventing Congress from ending the slave trade within 20 years, underpinned the legitimacy of enslavement.
Given this history, it is not surprising that today black people are routinely denied the right to life by American police. It is not surprising that legitimate British subjects who happened to be black were tracked down, criminalized, denied health care and jobs, and some hounded out of the country to be ‘repatriated’ to other countries that they hardly knew. It is no surprise that in France Muslim migrants from ex colonies have been segmented into vast suburban housing estates called banlieues in which unemployment rates of up to 40 per cent of the inhabitants has remained for most to the 21st century, and that former President Nicolas Sarkozy infamously referred to French African youth protesters as ‘rabble’ or ‘riffraff’. Similarly, it is no surprise that fundamental rights to freedom of speech and assembly were denied to Native Americans and their allies contesting the construction of the Dakota Access Pipeline. The company building this environmentally damaging project diverted it away from a white community to run it through burial sites and sacred lands guaranteed to the Sioux by treaty, and under the water supply of the Standing Rock reservation.
As the book shows, the official treatment of particular populations is linked to enduring social, political and economic expressions of colonial domination. Contemporary conflicts are layered onto uncompleted histories of racial domination, exception, differentiation and rightlessness, all of which cannot be extricated from the study of human rights. States which administer human rights are represented by institutions and personnel that embraced ideas affirming the inferior status of indigenous and enslaved persons. Because states are dedicated to the perpetuation of hegemony, neither they nor the official human rights they oversee can hold great potential for social change.
Can Human Rights be Decolonized?
To decolonize human rights is not an easy task, in part because differential human rights are themselves engrained in racist histories. I end the book by suggesting that two actions to address the morass of contradictions in which human rights stands are worth pursuing; reparative justice and indigenizing law. Reparations for the murder, rape, and pillage of colonialism and slavery are long overdue. This recompense will never atone for countless Black Americans killed by the police and lynched. It will not rectify the systemic refusal to extend human rights to African Americans. Likewise, reparations will never help realise the alternative futures that colonialism and enslavement denied to the populations of Africa, the Americas and the Caribbean. But they will signal that universal human rights have to amount to more than a statement in an official text, protocol, standard or policy document.
Reparations to indigenous peoples for their losses of land, people and culture have not been discussed seriously, and their colonization continues as state sovereignty goes largely unquestioned in the institutional orders of international and national human rights. Continuing violations are enabled by the mandatory use of national laws. Instead, as many indigenous scholars and allied activists have suggested, a dialogue which would involve the use of indigenous values, customs and laws, and that diminishes state sovereignty could help address ongoing human rights violations. An important element of the decolonization of human rights is also to affirm that laws or frameworks of common understandings of the world are transgenerational and refer to knowledge and norms formulated in the past, but which are binding on current generations. This would include the idea that all of nature has agency, and that people have a duty to respect it.
These measures would help bring the present into conversation with the past, connecting the wrongdoings of colonialism and slavery with the differential human rights doled out to so many people today.