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1. Universalism and the Conceptual Limits to Human Rights

I n t h e p o s t – w or l d wa r i i cold war context of 1948, the recently formed United Nations adopted a Universal Declaration of Human Rights (UDHR) to help instill a global sense of community founded in the principle of humanism. Yet even before its formal adop- tion, the idea of any UDHR was confronted with questions of how to know a universal tenet of human rights from a particular cultural ex - pression. While this post–World War II–era context provides the for- mal origin of contemporary human rights language and frameworks, the concept of universal principles evoked in the UDHR echoes the philosophical and political projects of empire building that deWned the nineteenth century, rooted in modern regimes of knowledge. The question of universalism at the heart of contemporary human rights debates is informed by this legacy of empire and colonialism, which naturalized the so-called progressiveness of certain political, economic, and epistemic principles under the banner of the universal.

Despite the displacement of formal colonial governments and the rise of independence movements during the early twentieth-century human rights era, the systems of knowledge that enabled colonialism, transatlantic slavery, and Euro-American empire building remain intact. This is evident in the way human rights agendas continue to fall into the trap of reproducing troubling representations of “others.” This operation of human rights has been critiqued as taking place in vari- ous human rights sites, from the plight of the Roma in Europe,1 to the representation of African women in debates concerning female geni- tal surgeries,2 to the veiling of Muslim women.3 The representational impact of colonial logics and frameworks continues to plague inter- national discourses from development to human rights. This chapter attempts to answer why human rights continues to offer a site where (neo) colonial relationships of power are rehearsed and suggests that the reasons are embedded in the conceptualizing of universalism against

Hua, Julietta. Trafficking Women’s Human Rights, University of Minnesota Press, 2011. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/utoronto/detail.action?docID=784158. Created from utoronto on 2018-08-04 09:35:55.

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2 Universalism and the Conceptual Limits to Human Rights

a notion of cultural relativism, where (cultural) difference becomes both the condition of universalism’s possibility and a threat to its exis- tence. Universalism is deWned here as a distinctly modern concept that regulates descriptions of both social and scientiWc life.

This problematic of difference lies at the crux of human rights debates around how to deWne universal principles and how to repre- sent the varied victims of abuses. Both the question of how to ensure respect for (cultural) difference and how to keep from reifying con- structions of third world backwardness have been answered in part by inclusionary strategies like translation and cross-cultural dialogue that advocate representation of all so-named culturally particular views and previously marginalized players. However, the crux of the problem of difference comes before the question of accurate and equal repre- sentation; it lies rather at the moment of the conferring of subjectivity and humanity, a moment that (ontologically) precedes representation, though the representational moment helps constitute the conditions attached to the conferring of subjectivity.

Inclusion reproduces, though not without contradictions, the con- ditions of subjectivity instituted in modern, post-Enlightenment regimes of knowledge. These conditions of subjectivity establish an enabling negation—an “other” against which the modern man is constituted. Modern regimes of power are also instituted through the juridical realm and continue to inform contemporary understandings of humanity, subjectivity, and the law. Representation and inclusion are thus strate- gies limited in their ability to intervene in the workings of power that produce (neo)colonial regimes because these strategies assume univer- sality; that is, these strategies assume that with greater representation and more inclusion, we will be able to more accurately locate universal principles of humanity. Rather, universalism itself needs to be denatu- ralized and understood as a modern concept that helps structure how we know and understand human rights.

Human rights seem unable to leave behind the onto-epistemological conditions that result in the re-presentation of colonial logics casting third world peoples and practices as less advanced and therefore less capable of enacting human rights principles. This chapter addresses the conceptual and theoretical workings of the writing of human rights and its subject. By situating feminist debates grappling with the question of whether and to what extent the notion of women’s rights can serve as

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the basis for a shared international agenda, the chapter establishes the paradox of universalism. Last, the chapter situates this paradox within an epistemological context that confers universality through the juridi- cal frame, which then works to naturalize colonial logics. Understanding and examining how we come to know what we know is, in other words, central to addressing the paradox of human rights that leaves human rights rehearsing and reifying, rather than addressing and correcting uneven relationships of power.

The Conditions of Universality

The UDHR established and enumerated the rights all persons are en - titled to by virtue of being human. Drafted by eighteen members of the United Nations Commission on Human Rights, chaired by Eleanor Roosevelt, and written in response to the atrocities of World War II, the declaration is described by the United Nations as a “living docu- ment” that has “stood the test of time and resisted attacks based on ‘relativism.’”4 One year before the 1948 adoption of the UDHR, the board of the American Anthropological Association re leased the fol- lowing statement regarding the challenge of relativity associated with drafting the UDHR:

Respect for differences between cultures is validated by the scientiWc fact that no technique of qualitatively evaluating cultures has been discovered. . . . Stan- dards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole.5

Coming out of the relativist turn, the statement of the Anthropological Association afWrms the work of Franz Boaz that attempted to shift evo- lutionary notions of human difference (as racial science and the science of man) away from seeing difference as innate and biological to seeing difference as cultural. Advocating an understanding of difference that foregrounded culture as a matter of consciousness, the relativist turn, established through Boaz’s work and crystallized in the Anthropolog- ical Association’s statement, maintains universalism but locates it in the universal existence of culture and cultural systems. In essence, uni- versalism is deWned as both the many cultural systems differentiating

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peoples and as more than the sum of these cultural systems. Mindful of the importance of cultural relativism, the authors and supporters of the UDHR thus emphasize that the document’s articles are not reXec- tive of the “beliefs or moral codes of one culture” but are instead uni- versal; it is a document that “belongs to all of us” in similar ways that all of us belong to culture.6

The historical signiWcance of these two documents reveals how talk around human rights emerges with and through discussions regarding cultural relativism. As the drafters of the UDHR worked to conceptu- alize a statement of rights that was broad and yet also applicable to a variety of national, legal, and cultural contexts, they also contributed to an important conversation around Eurocentrism and representa- tional ethics. For the Anthropological Association, the risks of any Dec- laration of Human Rights rest in the possibility that under the guise of the universal, the declaration would implicitly evaluate cultures against the cultural norms represented in the declaration. In other words, the concerns of the Anthropological Association were about whether a universal declaration would be able to maintain relativism. This con- text deWnes human rights and universalism as concepts constituted through difference and particularity. That is, the idea of universalism for both cultural relativists and advocates of a universal declaration is deWned by the equitable representation of (cultural) differences, leav- ing universalism in the paradoxical position of inventing and maintain- ing (culturally particular) “others” while also needing to absorb them.

Thus one way that the drafters of the UDHR attempted to address the need for cultural relativism was to include and represent a variety of rights that would together make up a set of universal principles. The articulation of these principles begins with a Wrst generation of rights modeled after (and both theoretically and linguistically similar to) the tradition set forth in the English Bill of Rights (1689).7 These state- ments read in familiar ways to the United States Constitution, naming rights to which individuals are entitled by virtue of being reasoned and self-conscious:

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. . . . Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,

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national or social origin, property, birth or other status. . . . Article 3. Every- one has the right to life, liberty and security of person.8

Built on the Enlightenment tradition of rational law, these rights are framed in terms of protections from state interference and encroach- ment on individual freedoms. Other articles include the right to equal- ity before the Law (Article 7), the right to be considered innocent until proven guilty (Article 11), and the right to own property (Article 17).

Given that these Wrst twenty or so articles are derivative of a liberal, Euro-American tradition, the framers of the UDHR included a second set of rights derived from socialist revolutions as well as a third set of articles that are more aspirational in nature.9 These second and third groupings of rights are framed in positive terms and require state in - tervention. Rather than envision a rights-bearing individual in need of protection from state encroachment, these rights—the right to social security (Article 22), the right to rest and leisure (Article 25), the right to education (Article 26), and so on—are framed in terms of state re - sponsibilities toward its citizenry. Furthermore, the third set of rights moves away from even the framework of the state by naming commu- nity as the organizational unit—for instance, the right to participate in the cultural life of community (Article 27) and community duties essential to free and full development (Article 29). This move away from the Enlightenment language and traditions of liberal individual- ism and the social contract is evidence of the compromises the framers made to ensure that they avoided “formulat[ing] postulates that grow out of beliefs or moral codes of one culture,” as the Anthropological Association warned.

Yet even as it seeks to represent in a relativist manner several dif- ferent approaches and ideologies to principles of humanity, the UDHR also seeks to absorb these different approaches into a universal stan- dard that privileges the dominant perspectives of the modern liberal traditions of the social contract (dominant even in terms of the num- ber of articles that privilege this frame). Advocating the UDHR as “a common standard of achievement for all peoples and all nations,” the ultimate goal of the document is to enumerate and uphold a univer- sal standard against which “all peoples and all nations” should strive. Whether the UDHR succeeds in capturing a set of rights that do not grow out of the “beliefs or moral codes of one culture” was and continues

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to be a hotly contested question, especially given that Article 1 de Wnes human beings as “endowed with reason and conscience . . . born free and equal in dignity and rights, precisely the deWnition established through Enlightenment texts.”

Furthermore, enforcing a global rule of law to ensure the princi- ples of the declaration is not an easy task. Assuming that controversy over how the document deWnes human rights is resolved, such measures to address violations still face the fact that there is no extrastate insti- tution that can enforce the document. Indeed, one key limitation of the United Nations lies in its inability to do more than place political pressure on states that choose not to comply. Thus, almost by default, the UDHR and other human rights vehicles ultimately rely on individ- ual state mechanisms for operationalization. In the case of trafWcking, despite the U.N. Protocol on Human TrafWcking and the frameworks, lenses, and concepts it deploys to deWne activities as trafWcking, states provide the units through which the protocol is mechanized. In the United States, this mechanism is the VTVPA. The degree to which the spirit of the protocol is maintained (and whether it is even adopted into state legislation at all) remains under the purview of the state, though NGOs play an important role in convincing “powerful audiences . . . that the right deserves acceptance.”10 It is the state’s claim to the force of law that gives the state the legitimacy it needs to both deploy violence and restrict freedoms necessary in the policing, prosecution, and pun- ishment of activities like trafWcking in protecting human rights.

The law offers both a tool and legitimizing force to the state, and it can only do so because the concept of the law is one mythologized around the fact that the law “transcends society yet is of society.”11 Like the concept of universalism, the law is mired in a contradiction where it is both an institution made by men even as it also surpasses human creation. Men make the law, yet the law exists as a thing beyond man’s creation. Such a formulation is a hallmark of the modern epistemolo- gies established through Enlightenment and post-Enlightenment texts. As Bruno Latour catalogs, the dual constitution of politics (the social) against nature (science) is accompanied by a second operation whereby science hides the fact that it is a construct of man and politics hides the fact that it is treated as a force of nature.12 This formulation, according to Latour, deWnes the modern. To understand the (modern) predica- ment of human rights, subsequent sections of this chapter consider the

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ways politics and the law are deWned as social products even as they func- tion as forces of nature. This continued working of law and politics, following Latour, places contemporary human rights and trafWcking squarely within modern frames.

Philosophers like John Locke rationalized a distinction between the transcendent force of law that makes it above all men and the rational application of that force that is the product of society. Rendering human development a teleology that casts man in a linear story from a savage state of nature to the moment of the social contract and onward into the unfolding of civilization, the tradition Locke helped instill estab- lishes a project of modernity, one where the subject is constituted over and against his nonmodern “others.” The law emerges as a force that is known through reason and accepted by the reasonable subject as transcendent—transcending any particular social or political context. Global “others” who did not grasp this fact were simply cast as behind. Thus at the heart of human rights are questions pertaining to the uni- versality of the law. The concept of universality, deWned as more than the sum of its particular components—a something that captures every- thing, institutes the particular even as it is also threatened by it. De - Wned in opposition to the particular, universality cannot exist without the concept of the particular where “no assertion of universality takes place apart from a cultural norm.”13 The universal operates as a mod- ern strategy of power that continues to write the “others” of the globe as “not yet,” thereby naturalizing the modern regimes of knowledge that privilege the self-knowing and rational subject. The project of human rights becomes one where those not yet exercising the freedoms asso- ciated with human rights simply need to reform cultural values, eco- nomic relations, and legal institutions—reformatory outcomes of the actualization of the kind of being (subjectivity) produced in the post- Enlightenment text.

Representational Limits: The Paradox of Women’s Human Rights

The early 1990s saw the rise of the concept of women’s human rights in the international political arena, most notably with the 1995 United Nations Beijing Conference on Women. The 1995 conference is re - membered as a milestone event that marked the ascendance of women’s human rights on both national and international agendas, and as an

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event that evidenced the growing global call for the celebration of human diversity. Yet the project to deWne women’s human rights has a long history predating the 1995 conference—a history marked not only by the United Nations’ Decade of Women, but myriad nongovernmen- tal and grassroots organizing. These political and social projects that focus on addressing gender violence on a global scale inform and are informed by intellectual debates around feminism and the study of women. That is, academic and intellectual projects like the disciplin- ing of Women and Gender Studies that are interested in understand- ing the category woman and the concepts of gender and sexuality have been both an important outgrowth of political organizing and social movements as well as an important venue where political concerns gain ground.

The idea that there should be better attention to women’s human rights in part arose out of feminist critiques of human rights discourses that, these critiques argued, worked from androcentric assumptions about the subject of rights. Arguing that existing human rights para- digms are formulated from an unacknowledged gender and sexual bias, feminist critics argued the need to amend these frameworks to better capture gender-speciWc human rights violations like “rape (in - cluding marital rape and rape during war), domestic violence, repro- ductive freedom, the valuation of childcare and other domestic labor as work, and unequal opportunity for women and girls in education, employment, housing, credit, and health care.”14 Feminist human rights scholars like Susan Okin, Hillary Charlesworth, and Charlotte Bunch identify a possible solution to issues of androcentrism as the inclusion of women’s voices and experiences. As Charlesworth notes, “We must work to ensure that women’s voices Wnd a public audience, to reorient the boundaries of mainstream human rights law so that it incorpo- rates an understanding of the world from the perspective of the socially subjugated.”15 Coinciding with the critiques of human right’s Western (cultural) bias, these feminist critiques argue that centering women’s ex periences can highlight the ways androcentric and Eurocentric assumptions inform the deWnitions of human from which the idea of human rights works.

The focus on experience, while incredibly generative, has nonethe- less left open the question of whether there is any generic woman’s experience. As calls to center women’s experiences within human rights

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violations and gendered violence brought forth a wide variety of expe- riences, debate around the universalizing of the category (woman) brought to the forefront an old dilemma: To what extent can the cate- gory woman work as a universalizing tool through which to gain polit- ical strength? The idea of a common category can work to emphasize the need for a shared agenda across national, cultural, racial, and eco- nomic differences. At the same time, the use of woman as a tool through which to make common claims also emphasizes differences, where such a move might simply rehearse a “politics of virtue” where help is not “freely given; there must be . . . some evidence that those receiving help are in fact deserving of help,” a move that exposes the uneven relationships among women that enable some women to speak for all women.16 Women’s human rights thus simultaneously connotes the promise of solidarity across difference and the reimposition of colonial relationships, where “‘American’ feminists [are situated] as saviors and rescuers of ‘oppressed women’ elsewhere within a ‘global’ economy run by a few powerful states.”17

Patriarchy may be global in its scope, yet it is not universal in form. This has made deWning women’s human rights difWcult, as the project straddles the fact that what women’s human rights might mean for women may differ from context to context even while the driving im - petus is one that recognizes that women can share similar experiences under patriarchy. Thus third world feminists have continued to take issue with global feminisms that uncritically assume all women should desire similar goals (usually tied to freedom and other monolithic con- cepts deWned through Euro-American, often liberal, philosophical tra - ditions). Even so, third world feminists also stress the importance of recognizing the potential power of organizing around the global aspects of gender-based violence. As Vasuki Nesiah notes, the human rights framework “has been an enabling framework, internationalizing rights discourse and thereby opening space to engage with the struggles of ‘Third World’ women. On the other hand, it has been restrictive. The struggles of ‘Third World’ women have been conceptualized only within the narrow vocabulary and institutional framework of rights discourse.”18 Not recognizing the ways patriarchies are racialized and differentially constructed, or the ways feminisms can work to free some women at the cost of others enables human rights to further reassert neocolonial relationships.

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Human rights and feminisms grapple with this paradox—catego - ries of difference like woman cannot help but impose sameness across the category, even while there is a desire to recognize the particulari- ties of experiences within the category. On the one hand, such cate- gories are not arbitrary. They have been historically deployed in such ways as to create sameness and shared experiences (evident, for exam- ple, in the experience of the transatlantic slave trade that racialized people from all across Africa as black). On the other hand, Wghting against the workings of power that homogenize difference (into a uni - form, categorical understanding of women, for example) has often taken the form of emphasizing the heterogeneity within such cate- gories of difference, of demonstrating precisely the arbitrary nature of the imposition of these categories. Put a different way, the concept of universality is constituted through that of particularity, even as the con- cepts are deWned in opposition to each other. Hence conceptualizing claims to universality necessarily require the concept of particularity (against which universal claims are deWned) even as claims to univer- sality must disavow the particular. The result of this paradoxical oper- ation is evident in claims to global diversity that desire to recognize and protect difference and particularity, even as they advocate that these particularities are subordinate to a broader order of universality.

Gender violence has a global resonance, yet calls for women’s human rights or even claims made against patriarchy cannot account for the multiplicity of ways rights, patriarchy, and even woman as a cat- egory are understood and inhabited. However, abandoning calls for recognition (of women, of women’s rights) across national and cultural differences diminishes the wide-reaching impact of gender violence. Shefali Desai perhaps poses the dilemma of feminisms and human rights best when she notes:

In evaluating an Afghan woman’s refugee and asylum claim, feminist theory can embrace neither cultural relativism and send the claimant back to her country thus implying that the Taliban’s laws regulating women’s lives are merely an expression of culture, nor universalism that would grant the claimant ref - ugee status but fail to question the universality of internationally established women’s human rights standards. The former addresses critiques of feminism as merely another form of imperialism, but leaves feminism without a standard by which to “condemn abuses of women throughout the world.” . . . Meanwhile, the latter solution declares that all women suffer from patriarchal oppression and that the way out of this oppression is by applying an established set of

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human rights to the asylum claim. It offers “the promise of uniting women,” but risks the oppressive essentialism that feminist theory seeks to combat.19

Articulating a tension that lies at the heart of feminist theorizing, orga - nizing, and activism, Desai ponders the conundrum of universalism and relativism that operates on multiple scales—from the academic fem- inist debate around identity, experience, and difference to the concerns of human rights organizations working to forge connections across and between borders without privileging Western cultural lenses and priorities.

Desai’s interest in refugee and asylum claims also points to the sig- niWcance of human rights as a potential site where feminist interventions and concerns might positively foster actions that reduce the day-to-day impact of gendered violence. At the same time, it opens and encour- ages theorizing of the extent to which “woman as human” is a useful claim and the extent to which any claim or call that assumes a univer- sal standard can address questions of violence. The conundrum for feminist theorizing that Desai articulates grapples with the necessity of addressing both a material violence—for Desai, one that is signiWed through the example of “the Taliban’s laws regulating women’s lives”— and a representational and epistemic one that threatens to re hearse the troubling operations of power that characterize and enable impe- rialism, colonialism, orientalism, essentialism, and so on.

Neither a claim to universal principles nor a claim to cultural rel- ativism adequately addresses the global aspect of gendered violence. Echoing concerns articulated by feminists like Uma Narayan about the inadequacy of both “the imposition of Sameness”—that is, univer- salizing claims that sisterhood is global—and an “insistence on Dif - ference” that characterized the colonial encounter,20 Desai cautions against any uncritical acceptance of feminism as divorced from impe- rial and colonial projects. However, recognizing the ways feminism can act as another site of imperial/colonial power “leaves feminism with- out a standard by which to ‘condemn abuses of women throughout the world.’” One suggestion Desai offers to manage this dilemma is to lis- ten and hear “Afghan women’s voices . . . while concurrently contextu- alizing the experiences being heard,” where Afghan women’s voices are heard even as they are contextualized as “occupy[ing] relatively privileged positions because they were in a situation where they could

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be heard.”21 While the importance of including and recognizing voices previously excluded cannot be understated, hearing and including “other” voices cannot alone serve as an end-all strategy for social jus- tice. One of the reasons why inclusion is an incomplete strategy is cap- tured in Desai’s recognition that “although more and more voices are becoming a part of women’s human rights discourse, there are voices that have not yet been heard and some that may never be heard.”22

For one, representational strategies pose difWculties in terms of mechanization because there is no end to the multitudinous voices waiting to be heard, as Desai acknowledges. These strategies of rep - resenta tional inclusion also defer interrogations into the paradox of universality that ultimately limit human rights projects. By maintaining the distinction between speaker and listener, the strategy of hearing voices risks being reduced to claims of authenticity. If the multitude of voices can never be heard, then there is a need to establish authentic voices that might be representative of a given experience. Under such assumptions, dissenting voices can easily be labeled less authentic and therefore relegated to less importance. For example, what happens when Afghan women speak both for and against Taliban practices? What happens when it is one voice that simultaneously supports and rejects the Taliban? Such positions often become untenable or dismissed as uninformed, disingenuous, or inauthentic. Thinking of these voices as simply misguided or censored is too simplistic an answer to the dilemma Desai poses. One side may argue that certain laws imposed by the Taliban regime inXict gender violence, while another side may argue that such a view comes from an ignorant position that does not appreciate different cultural norms. Both claims are true, and both sides can produce “native speakers” who attest to the validity of each side. Where, then, are human rights and feminist critiques left?

Negotiating the dilemma of human rights—the dilemma of univer- salism—through the institutional recognition of the individual voice, where one woman’s deWnition of gender violence can differ from an - other without taking away from the idea of the global aspect of patri- archy privileges liberal principles of individualism. While it is admirably diplomatic to suggest that conXicting claims around gender violence can be equally true (the Taliban inXict gendered violence, the Taliban protect women), such privileging of individual experiences and claims can stiXe arguments about the broader-reaching mechanisms of power

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that work by homogenizing and impacting communities rather than individuals. When Afghan women critique U.S. military intervention justiWed by the project of spreading women’s rights or when Afghan women support the Taliban, how can we understand these positions without reducing them to matters of individual perspective that fore- close arguments about the global inXection of gendered violence and neocolonial relationships? Answering such a question requires decon- structing the conceptual principles that are more often than not taken for granted in human rights talk, conceptual principles that privilege modern, post-Enlightenment understandings of humanity, difference, and the law.

Translating Human Rights: Negotiating Relativism

While feminist discourses have called for attentiveness to difference, this very call has then been turned around and used to reinforce the status quo, to justify patriarchal practices beneath claims to cultural relativism. For example, in the case of the Taliban, the call for diversity and attentiveness to cultural relativity has been used to justify prac- tices that inXict gendered violence. At what point is the claim to cul- tural relativism simply a rhetorical device used to maintain harmful practices? At what point are claims to cultural relativism valid in their critique of biases hidden within calls for universal principles and human rights? These questions regarding the role of relativity and particular- ity to human rights are often answered through the advocating of trans- lation as a means to respect cultural particularism while also generating a set of universal principles.

A strategy related to inclusion translation, as a means of uncover- ing shared principles across different (cultural) contexts, is limited be - cause it addresses a moment that comes too late. The fact that “trans- lation by itself can also work in full complicity with the logic of colonial expansion when translation becomes the instrument through which dominant values are transposed into the language of the subordi- nated,”23 is an effect of the conceptual terms established in the taking for granted of universalism. In other words, that translation “can also work in full complicity with the logic of colonial expansion” is a symp- tom of the modern conditions of knowledge and subjectivity through which the very notion of universality is constituted.

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What remains to be considered is the fact that the strategy of trans- lation is already circumscribed by the very conditions of power produc- ing “others” as signiWers of difference (as global particulars). Translation already assumes a kind of transparency, between the speaking subject and the act of speech—an assumption that misses the fact that speech, and strategies of representation in general, is always already mediated by the discursive conditions through which subjectivity is conferred, exempliWed most vividly in the desire to elicit the testimonies of traf - Wcking victims. In other words, the language of the subordinated is always already shaped with and through dominant values; there is no pure language of the subordinated. Rather, the language of the sub - ordinated needs to be understood as situated within a discursive land- scape shaped through the dynamic and dialectical relationship between what gets labeled as subordinate and dominant.

Translation is thus an instrument that enables universality, and universality is that which underwrites modern regimes of power. Thus strategies of translation and questions of translatability come too late in the sense that they assume the very conditions of power they hope to challenge. In the example of debates surrounding Islamic law, trans- lation becomes a way to protect the idea of Islamic law (as a cultural particular) while still condemning its speciWc application. This is one way to negotiate the need to uphold cultural particularities like Islam, which shape societies as different, while still condemning this very par- ticularity for being different and thereby insisting on universalism. For example, in a 2001 congressional hearing held just after the attack on September 11, House representative Ileana Ros-Lehtinen (R-Fla.) artic- ulates the issue of Islam and cultural relativism this way:

In 1996, a heavy shroud was placed on the people of Afghanistan when the Taliban captured Kabul. Since then, the Taliban has taken the peaceful and sacred scriptures of the Prophet Muhammad, and distorted them into a rule- book of terror. . . . The Taliban is far from being students of the true Muslim faith. . . . The U.S. role is not to dictate what a post-Taliban government will look like. Our role is to empower and enable, in order to ensure that the true and unfettered voice of the Afghan people is heard loudly and clearly.24

Ros-Lethinen’s framing keeps from vilifying Islam as a whole by sug- gesting that the Taliban regime distorts the “peaceful and sacred scrip- tures.” Here the cultural particularities of Islam and Islamic law are perverted in the Taliban’s speciWc translation and interpretation of

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the Qur’an. Playing on the idea of authenticity, Ros-Lethinen’s framing negotiates particularity by implying that the true voices of the Afghan people remain unrepresented and unheard as a result of the Taliban. By suggesting that regimes like the Taliban simply translate the Qur’an in patriarchal and repressive ways, translation arguments can defer the paradox of universality by simultaneously condemning particularity while also upholding it.

The desire to maintain universality and a conception of universal human rights, and the conXict it faces in the midst of claims to rela- tivism, thus informs the move to (re)cast the issue of particularity as a matter of dialogue and translation. In another example, Abdullahi Ahmed An-Na’im notes that maintaining an international system of order situated within a (diverse) landscape of localities means that

the norms of the international system should be validated in terms of the values and institution of each culture, and also in terms of shared or similar values and institutions of all cultures. This can be achieved, I suggest, through what I call “internal discourse” within the framework of each culture, and “cross- cultural dialogue” among the various cultural traditions of the world.25

Like many others, the solution that An-Na’im proposes is one prem- ised on the belief that proper “internal” and “cross-cultural” dialogue “among the various cultural traditions of the world” will yield a more accurate sense of universal principles. For An-Na’im, each culture must engage in “internal discourse” discussing what values should be vali- dated. The inclusion of “other” voices is key here in bringing to the forefront (of their own cultures and governments, as well those of the rest of the world) those values or cultural traditions that should or should not be deemed universal. Thus critiques of cultural practices begin within the cultural community.

This is a powerful strategy in the ways it attempts to recenter de - bates around human rights and universalism on those communities that in the past had been marginalized in such decisions and discussions. However, it is also a strategy that works only with the assumption that so-called cultural communities are discrete and bounded entities, an assumption the limits of which are well documented by anthropologists and legal scholars critical of the use of culture as a (legal) defense.26

This position does not have a way to address the fact that concepts, frameworks, and value systems are not bound to (cultural, geographic)

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communities. In fact, so-called cultural actors (whether so-called in - siders or outsiders) deWne a cultural community or tradition as such through a dynamic process that works through both what is perceived to be “our” cultural tradition and what is perceived as “theirs.”

While an understandable desire, these calls to discover or establish universal principles by attempting to more accurately represent the various “contesting norms that constitute the international Weld,” work from the already presupposed and taken for granted notion of univer- sality. Rather than interrogate the production of the very concept of the universal, calls to locate universality can never adequately consider the regimes of knowledge that have instituted the universal within both the realm of transparency and the juridical frame. The solution of dialogue operates to ensure the mythic quality of universality; uni- versal principles and values guiding human rights are constructed as coming out of the social process of dialogue, even while that dialogue must already be in line with a preexisting notion of universal princi- ples. The revelation of this mythic component is subsumed into its very narrative unfolding; the notion of dialogue ensures that the threat of relativism to universal rights is rendered a moment in the issuing of uni- versality. The dilemma here is that the values validated through cross- cultural dialogue are exactly those values that enable cross-cultural dialogue. Universal principles are assumed to be transcendent; they are simply reafWrmed as universal by being reXected back through inter- nal dialogue. While this moment of mirroring and reiteration can be read as holding the potential of “contamination and displacement”27

of the original term or terms being translated, the conditions of con- tamination and displacement are already constricted. Thus, altering existing paradigms, frameworks, and mechanisms is always a rather slow, contested process of negotiation.

Modern Foundations: Human Rights and the Limits of Law

The desire to locate universal principles through translation—dialogue between different groups—presupposes the conditions of difference that are assumed to impede human rights projects. The presupposition of particularity/difference takes for granted the operations of power that write universality as a real and discoverable object rather than as a conceptual mechanism and myth that structures how human rights

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can be framed and understood. This is why debates around how to de - Wne human rights continue to replay the same conversations. How do we represent difference and different cultural values while still uphold- ing universal principles? How can we avoid establishing universal prin- ciples that normalize or take for granted a dominant (often Western) perspective? How do we avoid reestablishing colonial relationships in the quest to ensure human rights? Questions such as these, important and valid as they are, are outcomes of the taking for granted of the principle of universality as a transcendent aspiration in opposition to the (sometimes clouded) operations of particular cultural values.

The modern regime of power established in the Enlightenment and post-Enlightenment projects that sought to explain the nature of man and his difference from things, animals, and slaves posited the notion of humanity as universally deWned by his capacity to reason, his ability to exist as self-conscious, and his recognition of the rule of law. These three aspects determined the conferring of subjectivity between men as well as distinguished men from nonhuman things. As the philosophers of man reasoned about those attributes distinguishing man, they were most concerned with describing the conditions around them: the con- dition of Europe.28 The most complex society, handled by the most rational of men and demonstrating the rule of law, was located in ex - actly that place where these philosophers of man were situated: Western Europe. The writing of this subject as the model of humanity envisioned this subject as universal—a standard against which all other conscious- nesses and subjectivities could be measured. Thus one key hallmark of the modern episteme, of the paradigms of knowledge established in Enlightenment and post-Enlightenment texts on man, is an understand- ing of man (the human) as he who knows his difference from what he is not (his “others”), a formulation memorably accounted in Hegel’s reconciliation of the subject with his constitutive outside.29

Reason, in these accounts, enables self-knowing by governing (and producing) the interior mind of man, where man is situated as a self- knowing subject in his recognition of himself over the course of time (temporal scene) and against what he is not (spatial scene).30 Thus sub- jectivity is constituted, in Hegel’s work, for instance, through the inte- riority of the rational mind, which can distinguish himself from his past and future self, and through the exteriority of the distinction he can make between himself and the (nonhuman) things of nature. As

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Denise Ferriera da Silva catalogs, these premises established modern subjectivity through a moment of consolidation when man realizes that the things outside him signal a moment in the actualization of his self- consciousness and mind. It was Hegel’s rationalization of those other things of nature that enabled modern (European) men to reconcile the existence of the nonrational others of Europe (natives, slaves, colonial others) as “enabling others” that only existed to afWrm the humanity of the self-knowing subject. Hence non-Europeans were established as the less rational “others” of Europe, who exist within this Wguring only to enable the actualization of modern, enlightened rationality: “A cen- tral promise of Enlightenment and Western modernity is that conXicts between knowledge and power can be overcome by grounding claims to and the exercise of authority in reason. . . . [Reason] operates iden- tically in each subject and it can grasp laws that are objectively true.” 31

This writing of the post-Enlightenment European subject as a univer- sal standard of mankind is enabled through the conceptualizing of the rule of law as both a product of men’s actions (social) even as it exists above and beyond the scope of the society of men (transcendent). So long as the law and reason are transcendent and all, even global “oth- ers,” are subject to them, the particular project of European moder- nity could write its own legal systems as global models.

The universalizing of the project of European modernity can also be apprehended by understanding the ways the law negotiated the con- tradictions of the social contract and freedom. For Locke and others, the absolute state of freedom or nature is always imagined to be in con- stant negotiation with the desire for peace—a peace that cannot be instituted without governance (which draws its legitimacy from Law).32

Natural rights are thus always sacriWced to some extent to ensure civil society, whether this sacriWce happens out of fear of anarchy or out of desire for peace. This understanding of society establishes the law as crucial to negotiating civil society, to negotiating freedom for peace (or mutual freedom). The law’s mythological aspect as universal and beyond man’s creation ensures the idea of freedom; man is subject to the law, but because the law is not man’s creation, he remains free. At the same time, man’s laws are necessary to maintain peace, for instance to keep men from killing each other, which cannot happen without sac - riWcing freedom. Thus the law restricts freedom to ensure freedom. His - torically, this contradiction of freedom at the heart of social contract

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theories has justiWed slavery and colonialism, where the freedoms of some (the enslaved, the colonized, the native) were viewed as necessar- ily repressed or forfeited for the beneWt of peace. In other words, slav- ery is not necessarily antithetical to freedom, given the contradiction of freedom instituted through modern knowledge. Thus the story of the social contract hinges on the simultaneous writing in and writing out of an “other” that represents a state of man before the reasoned apprehension of laws.

The majority of work on human rights generated out of disciplines like political science and international relations deWnes human rights in terms of the struggle and negotiation of the state (civil society) with natural law/rights (human rights). In this context, human rights are deWned as universal, moral, ethical, natural rights—rights that extend beyond the state or the contracts of the civil society. Charlotte Bunch describes human rights “as inalienable,” rights that “no one can volun- tarily abdicate . . . since those are rights which we have by virtue of being human.” 33 In this sense, human rights as natural rights are beyond the legitimate governance of the state where the state can only ensure their protection, but cannot restrict their exercise. Human rights thus produce a global context beyond the boundaries of the state and always already assume the human as subject to (state) juridical governance.

The law thus works as the precondition to global civil society, and it is the function of the law as simultaneously man’s creation and not man’s creation that institutes human rights as a modern project. In order to reconcile the “contradiction between [law’s] autonomy and law’s social dependence,” the law must be elevated to the realm of myth and given a mythological quality in its “transcendence of its own myth of origin where it is imperiously set against certain ‘others’ who con- centrate the qualities it opposes.”34 The move to rationalize law as both a socially interpreted set of rules as well as a universal force necessi- tates a Wgure (an “other”) that stands before the law, both in the tem- poral and epistemological sense. The possibility that this premodern enabling other might eventually learn to properly apprehend human rights and join global civil society reconciles the law as both particu- lar (social) and universal (transcendent).35 It is the possibility of the “other’s” inclusion into the (correct) legal systems—into civilization and human rights—that makes possible the contradictory aspects of the law. Thus the conditions that enable the “other” are not dismantled

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in the inclusionary moment; rather, the inclusionary moment is simply another chapter in a modern regime of knowledge. Problematic rela- tions of power and privilege remain because the strategy of inclusion cannot dismantle, because it is a part of the actualization of, the very operations of modern subject formation that constitute difference/par- ticularity in the Wrst place. Even while the law is deWnitive to the modern narrative and enables the power and authority of modern knowledge, it is also able to hide this constitutive relation. It is the universal and transcendent deWnition of the law that operates to deWne human rights as a moral matter beyond reproach, while the social/practical deWni- tion and deployment of the law is seen as that which must be changed (in certain cultural circumstances). So long as deWnitions of human rights assume a framework that dichotomizes it as a matter of moral law posited against culturally particular interpretations and legal systems that may or may not protect human rights, it remains limited in its abil- ity to address justice.

In the context of human rights, the law is often assumed a universal tool (that is, a tool that all humans recognize) that can, when perverted, violate human rights, or, when deployed, properly protect them. This fundamental assumption about the transparency of the law is one that also restricts understanding the limits of the law itself. So long as human rights assumes the frame of the social contract and natural law (law as surpassing human creation), which is posited against rational law (law as human creation), it remains decidedly trapped to rehearse and re - enact (neo)colonial relationships. So long as human rights assumes a framing that deWnes universalism as both the sum of and more than the sum of its particular (cultural) components, it remains mired in the modern condition, left to ask the same questions again and again: “Is this universal? Can we discover universal principles through translating across particular cultural contexts?” What needs to be better addressed in discussions of human right is the way human rights assumes and in - stitutes modern regimes of knowledge and subjectivity. This chapter attempts to make a compelling argument for why such work is necessary.

Attending to Absences

These conceptual foundations are evident in the ways they structure rep- resentations of human rights abuses like sex trafWcking. To demonstrate

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the ways assumptions around human rights enacting subjectivities are reXected in the framing of antitrafWcking representations and are shaped by such representations, the chapter concludes by considering an antitrafWcking United Nations OfWce of Drugs and Crime–produced public service announcement (PSA), “Open Your Eyes to Human Traf - Wcking” (2008).36 The most recent of a series of antitrafWcking an - nouncements (“Cleaning Woman,” 1998, 2003; “Work Abroad,” 2001; “Better Future,” 2002; “Telephone,” 2003), “Open Your Eyes” was re - leased as part of the Global Initiative to Fight Human TrafWcking, and it demonstrates the ways the taking for granted of modern and liberal principles restricts the ways human rights can be represented.

“Open Your Eyes” begins with an image of an older white man walk- ing down the streets of an outdoor marketplace. The speciWc locale of the marketplace is ambiguous, though it is represented as a multicultural space where white, black, and brown bodies provide the background. The white male protagonist is shown shopping at the various market stalls. His Wrst encounter is one where he sees an overweight white man, standing and eating french fries and a sandwich in a greedy manner, as food falls onto the sidewalk. This man is presented as unkempt, from the food stains on his clothes to his unshaven face. Behind him are two men, one white and one black, both skeletal in frame, lifting and mov- ing boxes. The camera pans suggest that the two men working in the background work for the overweight man in the foreground. As the scene shifts, the two skeletal men are depicted eating the dropped food left on the sidewalk by the now absent overweight man.

In the next encounter, the announcement depicts the protagonist smiling at a young black boy, who is sitting on the sidewalk panhandling. The protagonist then nods to acknowledge another older white man whom he passes as he walks down the street. After nodding back to the protagonist, this other white man forcefully grabs the arm of the sitting black child as he scoops the money into his plate and takes the boy away. In the protagonist’s Wnal encounter, he watches from a distance another older white man in a business suit talking to a woman in the doorway of a small business. Inside the building is a younger woman sitting on a chair, looking forlorn. Both women are nonwhite, perhaps Central South Asian. As the protagonist looks on, the other white man ex changes bills with the woman and walks into the room with the girl, closing the door behind him. While the earlier scenes present the protagonist smiling

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and enjoying himself, in the Wnal scene, he glances over his shoulder with a concerned look, suggesting that he has Wnally opened his eyes. The announcement ends in a white screen with text reading “open your eyes to human trafWcking,” leaving the viewer to wonder what, if any- thing, the protagonist might do. The announcement contains no dia- logue, and the only text that accompanies it reads, “It’s a hidden crime. It’s happening all around us,” ending in the Wnal sentence, “Open your eyes to human trafWcking.” The music accompanying the announcement is the refrain to “Wonderful Life,” a 1987 song by British pop band Black, which sings, “No need to run or hide; it’s a wonderful, wonder- ful life. No need to laugh or cry; it’s a wonderful, wonderful life.”

Creating a clear distinction between the (human rights) actor hold- ing the potential for change and the passive victims waiting for help, viewers are assumed to identify and sympathize with the white older man who is the announcement’s protagonist. That the protagonist is marked (through race, mobility, dress) as similar to the trafWckers and victimizers allows the announcement to draw a moral distinction be - tween the at-Wrst-unaware protagonist and his criminal counterparts. The victims depicted in the announcement represent the widely circu- lated assumptions around the different kinds of victims trafWcked for different forms of labor: men trafWcking for bonded labor, children trafWcked for various types of exploitation, and women trafWcked for sexual labor. It is the Wnal moment, when the announcement’s protag- onist witnesses the girl trafWcked for sex, that he begins to question what he has been looking at but not seeing. The announcement, which never suggests what leads the victims into their condition as trafWcked subject, works to prioritize the moral lens in representing and under- standing trafWcking, which asks the privileged presumed Wrst world traveler to “open his eyes.”

While there is only one female victim represented in this announce- ment, read together with the other PSAs, particularly “Cleaning Woman” and “Telephone,” the signiWcance of the racial and national frames distinguishing female victims of sex trafWcking implied in the announce- ments points to the conditions attached to how human rights subjec- tivities can be framed. “Cleaning Woman” is an announcement similar to “Open Your Eyes” in that it is directed toward white, presumed Wrst world subjects (whether they might potentially help rescue victims or ex - ploit them).37 It appeals to a sense of moral obligations among women

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to help save (racially, nationally) other women who are victimized through sex traf Wcking. “Telephone” is the only PSA directed toward the trafWcked subject and depicts three characters, one African, one Asian, and one Latin American woman, who are sex-trafWcking victims breaking free and calling a United Nations help line. “Cleaning Woman” and “Telephone,” as PSAs speciWcally addressing sex trafWcking, were aired on American Forces Network, a television station dedicated to U.S. armed-service personnel stationed abroad in places like South Korea. This message is in line with U.S. Department of Defense docu- ments that chronicle the efforts undertaken to implement a zero toler- ance policy on trafWcking, which includes “training . . . for every mili- tary person that goes overseas, educating him on this [trafWcking for sexual labor] issue.”38 Amid criticism that militarism abroad partici- pates in, rather than combats, trafWcking activities by fueling demand for sexual services, the U.S. Department of Defense has undertaken this high-proWle zero-tolerance campaign issued in 2002 by President Bush.39 As part of these mea sures, the effort in South Korea is coupled with the U.N. public service announcements.

While there is much to laud about the DOD’s recent efforts to combat the soliciting of sexual services by service personnel stationed abroad, these efforts in large part focus on reforming individuals, a message also represented in the U.N. announcements that focus on white male and female rescuers or nonwhite individual victimized women. Rather than question the structural mechanisms behind mili- tarism that operate on and help perpetuate heteronormative regula- tory ideals around masculinity and the necessity of (state) violence,40

DOD responses to military prostitution and intimate and sexual vio- lence focus instead on reforming the moral obligations of individual soldiers (that is, good men protect women’s sexuality). Further, as Meg - hana Nayak points out in her examination of DOD efforts since the late 1980s to address sexual violence (for instance, relationship vio- lence, harassment, and rape), these efforts actually “limit sociopolitical recognition [of sexual violence] in several ways. First, sexual violence only matters to the extent that it interferes with the military’s progress in being ‘mission-ready.’ . . . Second, the actual experiences of all sur- vivors of military violence are not represented [in the existing military mechanisms to address such violence]. . . . Third, the responses fail to thoroughly and diligently understand why sexual violence occurs.”41

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In the U.N. anti-sex-trafWcking announcements, the female vic- tims are represented through their sexualized vulnerability as sex slaves marked also through their racial difference as not white. Because there is no gesture to suggest the conditions that lead to trafWcking (only the moral frame distinguishing criminals from victims and potential res- cuers), the announcements keep viewers from questioning the role of structural factors like militarism and global circulations of capital in enabling trafWcking. The victims in “Telephone,” “Cleaning Woman,” and “Open Your Eyes” are all suggested to be victims in part because they are not allowed to work as formalized members of the economy and therefore have no formal means to ensure protection from labor abuses (they are undocumented laborers, panhandlers, and sex work- ers). Coupled with the representation of criminals and exploiters as individuals (the overweight man, the other white man, the woman run- ning the brothel, and the man in the business suit), “Open Your Eyes” fails to implicate corporate capital and businesses as also enabling traf - Wcking activities. Furthermore, this framing does little to trouble the fact that undocumented labor (labor with no legal protections), whether coerced or not, has been a necessary feature that has historically en - abled capital accumulation and proWt. Put another way, if “Open Your Eyes” suggested more strongly that the protagonist’s participation in the multicultural marketplace is not so distanced from that of his antagonist counterparts who trafWc, exploit, and solicit, the represen- tation of trafWcking might shift to implicate a different set of questions: How do global mechanisms of capitalism enable and shape trafWcking activities? How do they naturalize certain forms of labor over others? How does capital accumulation depend on undocumented and unreg- ulated labor of all kinds? What makes some work legitimate but not others? Is migration ever a choice?

Thinking about trafWcking through lenses that focus on interro- gating existing (legal, human rights) paradigms for understanding migration threatens to question the structural ways current political, legal, and economic modes of relations institutionalize the need for less formal and therefore less regulated kinds of work. Rather, the focus of “Open Your Eyes” around the difference between the unaware traveler and consumer who might potentially be a rescuer and his various knowing yet morally corrupt counterparts makes trafWcking a matter of suspect cultures and individual moral capacities. The register

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of race that is sometimes used to distinguish the protagonist from the trafWcked victims (and in the case of sex trafWcking, the brothel owner negotiating with the white male john) works to gesture to the absent yet implied presence of the cultures from which the victims were traf - Wcked. While the criminal trafWckers and johns are represented in the announcement, “Open Your Eyes” suggests the there are other crimi- nals left unrepresented: people or contexts that enabled the victims to be trafWcked in the Wrst place, whether they are family members or cul- tural conditions that leave victims little choice.

These “culpable cultures” are signiWcant in that they reveal the con- ditions of inclusion and the conditions of universality42—conditions that require a difference against which subjectivity can be conferred. The victims in the announcements must be saved in order to ensure the inclusionary impulse of modernity’s universality. Yet the conditions of subjectivity offered through the announcement require an enabling negation, an “other” against which the human rights–enacting subject can be deWned. If the trafWcking victims do not represent this enabling negation, their cultural counterparts back home do. The visual logic linking these victims to the cultural community from which the traf - Wcking narrative originates ties the victims to the very cultures (of patri- archy, of poverty) that lead to victimization, thus establishing the need for outside rescue. By rendering trafWcking a matter of moral law and human rights, the inclusion of the global “others” negotiates the fun- damental dilemma of liberal theories of rights and law—the tension between universality and particularity. The “other” Wgures enable the recuperation of the myth of universality by marking the inclusion of particularity even while her victimization to a (deviant) culture (of patri- archy, of poverty, of corrupt values) signals a particularity that must be disavowed. The question is not whether and how the universal can be truly universal in the sense that it reXects more accurately the multi- tude of differences. The strategy of Wnding voices or of ac knowledg- ing the multitudinous nature of speech in an effort to un cover or even redeWne universals that are shared across difference fails to interro- gate and deconstruct the distinction between listener and speaker, and between universal and particular, which is the fundamental epistemo- logical issue constraining human rights projects.

One signiWcant drawback to connecting the limits of human rights and the law to epistemological foundations is that this approach can

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seem hopeless. It is not realistic to simply ignore the conditions of knowledge that shape how to know; ignoring these conditions leaves us with the same dilemmas, of human rights claims being used to reify neocolonial relationships, of the law working to naturalize develop- mental narratives of progress and backwardness, and of feminisms work- ing against deconstructing power relations. Yet if there is no outside to knowledge—in other words, if these regimes of knowledge always already establish the parameters through which subjects act—then changing such conditions seems an impossible task. The remaining chapters of this book acknowledge these difWculties; however difWcult and seem- ingly hopeless, altering the epistemological conditions through which we know the “real” is not an impossible task. It is a task that requires acknowledging the ways in which what is often categorically dismissed as theoretical, abstract, and ungrounded is in fact a necessary compo- nent to the so-called grounded realities of daily life. Thus how we come to know trafWcking as such, and what assumptions and frameworks shape conventional understandings of trafWcking, are questions the remainder of this book considers.

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