Human Rights through a Biopolitical Lens?

By Ashley Drew

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At the recent Birkbeck University;conference on critical theory of human rights law experts in the field both questioned and analysed current visualisations, perspectives and approaches to human rights in terms of their legal framework and application. An impressive and varied array of thinkers spoke including Slavoj Zizek, Costas Douzinas and Conor Gearty, to name a few. Discussions ranged from the politics of Frantz Fanon to challenging the neo-liberal capitalist paradigm of human rights. Personally, I was glad to hear a number of speakers refer to “biopolitics” in their presentations. When the conference came to a close, I was left wondering whether the frame of “biopolitics” could address the inadequacies of universality and even if this concept might provide a more meaningful approach to human rights.
Although prior use of the term exists, Michel Foucault has become most readily associated with the term “biopolitics” or “biopower”. The concept was first unveiled in The History of Sexuality: The Will to Knowledge. In the late 1970s, Foucault asserted a war at the heart of politics, which led to his biopolitical conclusion. Since then, scores of political theorists have commented and elaborated on his theory. In its essence, biopolitics describes the protection of biological life as central to sovereign power. According to Foucault, power in the modern state has experienced a shift from classical constructions of sovereignty. Traditionally, the sovereign was granted the right to “take life or let live” if and when the sovereign’s power faced opposition. Foucault describes how in modernity this right has reversed, the sovereign assumes the power to administer, preserve and develop life instead. This reallocation is aptly illustrated in Foucault’s Discipline and Punish through a history of transformations in approaches to capital punishment and penalisation.

However, Foucault proceeds by recognising a paradox in these interpretations. Modern regimes, he says, are marked by escalations of violence: “wars were never as bloody as they have been since the nineteenth century, and all things being equal, never before did regimes visit such holocausts on their own populations.” How is it that this new state will to protect life could be reconciled with the atrocities plaguing modern society, Foucault asks. He reasons that the murderous right of the sovereign returns in this reformulation of power, directed specifically at those perceived to represent “a kind of biological danger to others.” Constructed through notions of inferior and superior life, these perceptions pervade the social sphere and become most dangerous in the hands of the powerful. The consequence of these imagined understandings of life worth is that anyone identified as a “threat” to life can justifiably be condemned to death or submitted to “social death”.  “Social death” strips a person of social or political status in the name of security and prevention. Giorgio Agamben’s concept of “bare life” is similar; the person paradoxically both inside and outside of the law to whom any violent action is considered lawful.  Lacking citizenship, “bare life” can be seen in the refugee, for instance. In fact, it was Hannah Arendt, who, reflecting on the UDHR, identified how the very presence of the refugee within the borders of the nation-state signified the inability for universal human rights to be realised.

As Arendt recognised, implementation of universality poses a set of problems, which may be better explained through a biopolitical lens. In her presentation at Birkbeck, Anna Grear highlighted the intrinsic contradiction of the UDHR, which begins by affirming the status of everyone as entitled to rights and freedoms without distinction of any kind. Yet, the declaration proceeds to distinguish rights for certain vulnerable peoples, thereby acknowledging the existence of inequality. The post-UDHR proliferation of human rights treaties specifically treating the rights of particular groups also testifies to the questionable “universal” nature of the rights enshrined in it.

Different rights have the capacity to come into conflict and rights can be interpreted, manipulated and appropriated by individuals and groups for the purpose of stripping others of their human rights.  In Laura Bazzicalupo’s The Ambivalences of Biopolitics, she describes how life is safeguarded precisely through the creation and maintenance of an enemy. Otherwise what would life need to be protected from? In his speech at Birkbeck, Patrick Hanafin detailed how the woman, who asserts reproductive rights in line with self-determination, is seen as a threat to the embryo’s right to life under the law in Italy. This example demonstrates, firstly, how rights are in a seemingly perpetual conflict, and secondly, how the right for the embryo to be protected at all costs has resulted in the adoption of the woman as an “enemy” and how the embryo’s need for protection can only be sustained through this negative construction of women.
Biopolitics has the capacity to explain why rights are in conflict, how it is possible for inequalities to be the product of a rights discourse, and how the presence of an “enemy” must be imagined for human rights to be invoked at all. Human rights are essentially biopolitical; the content of all rights aim at protecting human life in one form or another.  Nevertheless, when some right is merged with a perceived biological threat then it becomes possible for “inferior” life to be subjected to “social death”.

Biopolitics proves a useful analytical tool for human rights. It acknowledges what the principles of universality cannot; namely, the power structures embedded in the human rights discourse. Biopolitics might demonstrate how a state, for instance, appropriates a human rights stance for the purpose of stripping an individual or group of rights (the “war on terror” is a good example of this). Yet, since a biopolitical analysis illustrates the paradoxical qualities of universality, this stance poses a threat to the possibility of holistic human rights. The missions of countless human rights organisations state that human rights could be a reality for everyone. We must ask ourselves what the consequence would be of replacing the fallacy of achievable universality with a more realistic vision of rights through a biopolitical lens.

About the Author:

Ashley Drew is a 2011 Research Intern at the International Council on Human Rights Policy. She recently graduated from Goldsmiths, University of London with a masters in International Studies.

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