116 Mand Koskenniemi In this way, you may be compelled—in order lo advance the cultural politics d, 'Europe'—lo choose a purely strategic attitude towards rights. Even as you krt that rights defer to policy, you cannot disclose this, as you would then seem to* dcrmine what others (mistakenly) believe one of your most beneficial gifts i0fj manity (a non-polilical and universal rights rhetoric). It is hard to think of such attitude as a beneficial basis from which to engage other cultures or to inaugura* iranscultural sphere of politics. The question would then not be so much which rights we have, or should have, h what it takes to develop politics in which deviating conceptions of the good whether or not expressed in rights language—can be debated and realized withofl having to assume that they arc taken seriously only if they can lay claim lo an a-pa litical absoluteness that is connoted by rights as trumps. r t 4 r The Legacies of Injustice and Fear: A uropean Approach to Human Rights and their Effects on Political Culture KLAUS GÜNTHER I. EUROPEAN HUMAN RIGHTS AND THE POLITICAL CULTURE OF A COLLECTIVE MEMORY OF INJUSTICE AND FEAR k for a European approach to human rights is ambivalent. If the question is cr the genesis, nature, and scope of human rights are essentially European, one immediately into the endless debate about universalis!» versus particularism of "*n rights. Obviously, the question docs not aim at a European approach to n rights as the expression of a particular historical culture which should be ex- ed loall different cultures of the world. Instead ofthis, thequcstion seems toaim pccilic European contribution to human rights which arc already considered to 'd for all human beings, as is declared in the Universal Declaration of Human i ô ask the question in this way of course does not mean that one could avoid the ■blem of cultural relativism. Every European approach and every European conation to human rights has lo keep in mind that the idea of universal human rights itself a particular European idea and that it has a long history of misreading, se-vc interpretation, and wrong application. The idea of universal human rights, as lias the history of its selective realization, is therefore deeply rooted in European "ory and culture. To say that ali human beings arc created equal and that every Jimaii being is provided by nature with inalienable rights presupposes something pit is common to all human beings as human beings. It is still the language of the Shristian religion. The idea that all human beings arc equal was interpreted by the Christians on the basis of a belief in a God who is the creator of human beings, and BuO has created them according to his own image. This reading of universality already included particularity, because it referred primarily to those human beings who believed in the Christian God, and il excluded all those who did not. After ' Inivcisal Declaration of Human Rights, adopted by GA Res 217 A (Ml) 1948. In United Nations. A Compilation ofInternational Instruments U 994) i. pan 1.1. Hg Klaus Günther secularization, these presuppositions were often interpreted in a specific way which led to an exclusion of certain human beings who lacked certain features from the realm of human rights. Kor example, if reason was considered as the fundamental common feature of human beings, and women were regarded as human beings who lacked the full capacity of reason, then it seemed to be only natural to exclude women, at least in pari, from the protection of human rights.2 And if the common feature of all human beings was interpreted according to the standards of the west> ern, European-American 'civilization', then it seemed to follow that members of other cultures lack certain capabilities and competences which were considered a$ necessary for a human being to be a bearer of human rights. Thus, it was the experi. encc of the people who were colonized by European States that made the experience that universalism can turn into cultural, economical, and political hegemony. The-consequences arc often dramatic. Human rights, interpreted and treated in this way, give a licence to draw a distinction between human beings who are under the protection of human rights and beings who are considered as not being completely human, and who therefore have no rights at all. Furthermore, it seems to be that this licence also givesa right to discriminate, expropriate, cha.se, imprison, torture, tape, and kill those dehumanized men, women, and children. The violation of human rights docs not begin with their explicit negation and rejection, but with their implicit neutralization—at first with perceiving a human being as somebody who does not in all respects belong to the community of human beings, and secondly with the right to treat them as something which does not deserve the protection of human rights. 'We', living in the rather secure milieu of Western Europe, have no reason at all to feel superior not merely with regard to our own history. Mow difficult it can be here and now to avoid exclusionary distinctions based on dehumanizing images of human beings becomes clear for 'us', if wc look at our attitudes towards those human beings who—according to 'our' point of view—are or behave as if they were barbaric, who are considered as perpetrators of human rights, or who allegedly 'abuse' human rights for their own private interests. Foreigners or asylum seekers/ from poor countries belong to this category, or certain criminals—not to mention. the asylum seeker as a criminal. When we look at a television or newspaper report about a man who sexually abused and killed a child, or when wc listen to politicians,1 describing a wealthy drug dealer, or a Mafia boss, then we can sometimes obse'"J how human beings are presented as non-members of the community of human ings. The implicit question which follows is: should these people have human righ' Let us imagine the extreme case of an enemy of human rights. Are human beings whff command, organize, or execute genocide really human beings who deserve to be tectcd by human rights; for example, by a fair trial and a kind of punishment whi respects Protocol No. 6 of the European Convention on Human Rights (ECHR^ (Abolition of the Death Penalty)? On a low level of self-observation we can easif discover in our own imagination at least some categories of human beings whieffi provoke a reaction of dchumanization already in our perception. Before wc arg 1 ľoi sudí an interpretation of Aft. I of the Universal Declaration and iis critique See C. Brellierť "Universal Human Righu'.inC. Bretheilonand G Ponion{eds.),ß/oEa//,ö/tiK-.v(1996KquotcdUO"V German translation in U. Beck {cůX Perspektiven der Wellgesellschaft 11998). 265). Human Rig/us and Political Culture 119 as about the legitimacy of a claim which is raised by a foreigner who refers lo his or her human rights, we should carefully look at our perception and imagination of Hie other. Even the more subtle versions of universalism cannot completely avoid a dehumanizing misreading. The attempt to look for and to accept differences, to crea tc new human rights for members of minorities and for the protection of different cultural identities, is still in danger of simply extending the European reading of human rights. This is true as long as the differences arc marked, described, and considered from the point of view of our own identity. The interest in differences does not naturally turn into equal concern and respect for the Other. As the example of 'Orientalism' has demonstrated, an interest in the Exotic Other can satisfy needs of our own cultural identity.' As the contemporary debates about the academic field of Area Studies (like Chinese or Indian studies) demonstrate, one can never be sure that the interest in differences does not serve some strategic interests in self-maintenance long as (he other is not regarded as someone with whom one has to enter in a dia Jogue among equals.4 II. SIMPLE AND COMPLEX UNIVERSALISM order to deal with these problems, one could, as Richard Rorly suggests, reject v kind of 'foundational' thinking and justification of human rights, and turn to cnlimcntalityVThis means to tell stories about people suffering from pain, huiuil- *ion, and injustice, tike 'Uncle Tom's Cabin', in order to convince others of the uc of human rights. Instead of this, I would like to pursue the idea of entering into ' logue with the other instead of describing and marking differences from one's ji point of view. To distinguish these two approaches more adequately. I suggest "tinguishing between two kinds of universalism: simple or Archirnedian versus —plcx universalism- Simple universalism is abstract, cpistemic. and essentia list. It upposcs general common features of human beings which can be observed and gnized and which arc considered as prc-given. It uses them as a criterion for ex- ■on and inclusion; it applies them like a litmus paper in chemistry in order to dis- •:sh between acid and base. It has some similarities with Michael Walter's al concept of'covering law universalism'. which consists in a simple extension «wie culture's law to other cultures'' Complex universalism is not epislcmic, i.e. \cd on pretended knowledge of properties which can be observed or ascribed. plcx universalism goes a step further. It makes the step from difference to dia- ', and therefore it refers to human beings who are speaking and acting—to their jprmance of voice and agency. If one takes this step seriously, it forces us to make E Síid, Orientalism. Weilern Conceptions of ihr Orient (2nd edn-, 1995). >R. Heilhrunn, The New* From Everywhere' (1996) Lingua Fran-v49-56. ft. Rorty. 'Human Rights, Rationality, and Sentimentality', in S Shuie and S. Hi>rley(eds.). On It Rightsi 1993). 111-34. t. Vah», Tv»'o Kinds i>f Universalism*. Tanner Lectures on Human Values (Gentian translaiion: ArlcndolJi|ivcrsali«nus'(l990)7Soft>7oi»IO. 120 Klaus Günther an important shift in the discourse on human rights. What is at stake is not (his or that particular human right, its content, and itsclaim to universal validity and recognition. Instead, complex universalism focuses on the question whether human rights can be traced back and linked with the voice and agency oľindividuals. The context and procedure of the formation of human rights become more important than a particular human right. This kind of universalism is procedural and deliberative. The procedural element consists in the inclusion of every single individual who raises his or her voice. What will in the end be recognized as a human right does then not depend on certain properties of the person, but on the procedure of common will-formation, in which every human being is equally included. Of course, a complex universalism which starts with human beings who have a voice and who can say 'yes' or'no'will also include more or less severe conflicts about what should be regarded as a human right that is universally valid. But what matters here is that the conflict is not considered and treated as an obstacle to will-formation, but as an enabling condition or a medium. Conflict and dissent presuppose and provoke good reasons, by which every' opponent could be convinced—provided that common will-format i on by arguing about reasons is regarded as an alternative to violence. This is the deliberative clement of complex universalism. To look for convincing arguments in order to overcome a dissent also includes the procedural element that every single participant in the conflict has to be recognized as an equal human being who has a 'right to voice' and who has a right to participate in a procedure which consists of an exchange and critique of reasons. The kind of difference which is important here is not the one which I discover, when I compare myself to the Other, but the difference which I realize when the Other says 'no', the difference o(dissent. It forces us to dc-ccnlrc our own point of view. Bin this is, of course, not enough. Neither 'we' nor "they' speak with one voice only. It is one of the peculiar and irritating features of the current debate on cultural relativism that 'we' do not look carefully enough with whom we are talking when we are confronted with cultural differences in the human rightsdiscourse. As long as we listen to dictators only, who defend the priority of communal values over individual rights, or with members of other cultures whose representative role has an unclear legitimation, we can never be sure that we still do not continue to deal with an artificial and wrong image of the Other.7 This is also true with ourselves. We can never he sure whether our dominating contemporary reading of human rights is not the reading of the privileged classes who arc the winners of the social, political, economic, and cultural struggles in our own countries. Therefore, the procedure has to he really inclusive, particularly with regard to those who lack the capability and the courage to raise their voices. Ofcourse. even a complex universalism ofthis kind does not easily escape the danger of turning into a simple universalism. This would be the case if one linked the capability of having a voice and saying "no" again with certain features which can or * How difficult it tan be not to ignore a 'voice" which dissents from our own ideas is demonstrated hj the case ofcliloridcciomy in Africa by K Englc,'Female Subjects of Public International Law: Human Righisnnd Ihe RxoucOlhei Female', in D. Danietsenand K. Engle(eds). After Identity; A ReaderinLaw and Culture(1995), 210 28. Human Rights and Political Culture , 2, cannot be ascribed to human beings. This becomes obvious in the case of human beings who are no! able to speak or who do nof want to speak, or those who have lost Ihc courage to raise their voices. The property of having a voice was used as a criterion for inclusion or exclusion in the same way as Ihe property of having reason. A difficult case is also that of the vicarious voice, someone speaking on behalf of someone else who has no voice or who is not able to raise his or her voice. Contemporarily we are facing these problems in the cases of abortion and euthanasia: is the foetus a human being with a 'voice' which should be respected? Is someone who has irreversibly lost consciousness someone with a 'voice**' |n order to avoid these dangers. I shall argue for complex universalism in a rather complex way. 'Voice' is a feature which is self-atlributive. It can be attributed to someone by a third person, but the person to whom it is attributed also has to make use of it. He orshe has to realize that he or she has a voice, and that it is his or her own voice. As a consequence. Voice' is strictly individual, it is impossible to substitute one's own voice with the voice of somebody else. The voice of a person cannot be represented or generalized. On the other hand, 'voice' also implies an inter-subjective relationship. It requires a third person who listens and who answers. Although it is also possible to speak to oneself alone, this kind of making use of one's voice is not the prominent one. Listening and answering require at least a minimum ofmutual recognition, of taking the voice of the other seriously. Obviously, this does not go without saying. It is the first step to recognition—before I lake a position to the claim, which is raised by a speaker with his or her assertion, and before I react to what he or she has said. I have to recognize him or her as a competent speaker at a II, ia person who has something to say, and who says il. among others, tome. Since I do not listen naturally, it can be a kind of obligation only. Hut where does this obligation come from, how is it justified, and why should I accept il? The obligation must '>be derived from principles which require that each individual shall be regarded as an ■end iti itself. - These principles are explained and justified by different traditions of philosophy |and moral theory, which are deeply rooted in European history. They provide arguments for the claim of human rights to be universally valid. One tradition refers to ířatiortality as the most important element of social relationships. Rationality ans- among other things—arguing with objections raised against a proposition, inj! and testing reasons, and determining one's own position and intention ac-rding to the best reasons available. If we violate the principle ofmutual recogni-on, we violate the idea of rationality, we behave irrationally. The other tradition "fers to the emotional need of human beings to avoid pain and suffering. Ľvery umaii being's need to avoid pain and suffering, and to maximize his or her pleasure, ball be recognized equally. According to these traditions, it is rational to recognize i individual's voice, and to be recognized is a necessary condition for each indiv-I to express his or her interest in the avoidance of pain and suffering. The first ition respects the autonomy of every individual, the second the basic need of »Wry individual to avoid pain and suffering. Obviously, these two traditions are &tditicns, i,e. they express a cultural self-understanding of the people in Western iEuropo and North America. But this is not the whole story. Permanently arguing 122 Klaus Günther against objections ofethnocentrism, (he philosophical approaches, which are rooted in these traditions, meanwhile have reached a high degree of complexity.8 The procedural and deliberative approach, which 1 have presented in outline above, is one example. Although it is of course still possible to detect some hidden ethnocentric (and other exclusionary) premises of the argument, the advantage of this position consists in its capability of being open to those objections—critical self-correction is part of the claim to universalis«!. But a problem remains even if one admits that the philosophical foundation of the mutual obligation to recognize each other's voice and to listen to each other as a prerequisite of human rights is sound, and—with the proviso of further corrections-convincing for every human being, at least in the long run. It does not explain why selective misreading of universal human rights occurs again and again. Furthermore, the philosophical foundation does not help to avoid the experience of those people who arc confronted with abstract ideas only, without being able to link them to their own experience. Often, it is not their voice which is represented by human rights. Complex universalism remains too simplistic when it refers only lo those human beings who already have a voice, who are articulate, and who claim that others must listen to their voice, and to whom others arc always already listening. They are able to use human rights Tor the promotion of their interests. Human rights are then in danger of being transformed into human rights rhetoric, ai it is described in Mařiti Koskenniemi's chapter.* This is the other side of the history of misreading and selective application: the more human rights become an unproblematic part of daily political and legal practice, the more they operate with silent exclusions, ignoring suffering, needs, and interests as longas they do not fit with the scope of their application. It seems to be that the problem is not so much the philosophical foundation of the universalism of human rights, but its insufficient degree of complexity. This is more a matter of the meaning and understanding of human rights. Struggles and debates about human rights refer to claims to universalism and their foundation in moral and legal principles only on the surface—in fact, what are at stake are often questions like this: which interest shall be recognized as a matter of human rights, who shall have the power to raise a claim to human rights—e, g. should pornography be considered as a violation of women's integrity, and how should the conflict with the right to freedom of expression be solved?10 Arc those interests legitimately excluded from the scope ofapplication of human rights? In order to deal with these questions, it seems to be necessary to start with the experience of those human beings who were or are excluded. This means considering the struggle on exclusion as a central part of the meaning of human rights. The step from content to procedure has already led us to the contexts and conditions under which a claim to a human right or a claim that a human right shall be recognized is raised. The procedural element ofcomplex universalism referred to each human being's voice and the obligation to listen. The 8 Sec, asa contemporary e*amfile oľa comprehensive approach lo human rights which very convincingly ties together the two traditions, CS. Nino. The Eihicz of Unman Rights (1991). • M. Koskcnnicmi, 'The Ellcclsof Human Rights on Poittkal Culture*, in this vol. •" SceC MacKinnon, Only tVor&i\995). Human Rights and Political Culture 123 experience of exclusion then consists in the exclusion of one's voice, in thcexperienec of ignorance with regard to one's claims and needs. This is the case not only when someone raises his or her voice and nobody listens, but already and most severely when someone does not raise his or her voice at all, because he orshe lost the courage to do so, or because she considers her situation as fate which has to be endured in of silent suffering. The discourse on human rights then refers to experiences of this kind. What happens there is a long and complicated process, which begins with negative experiences like pain, suffering, and fear. These experiences lead to a loss of voice, to silent suffering, because nobody listens to the persons who try to report their suffering. Human rights discourse is a process by which these negative experiences are overcome. First, pain, suffering, and fear have to be considered as injustice and not as fate or. in the worst case, as (he victim's faiill. The situation of the excluded victim has to be rejected with the claim of injustice. This claim entails a whole pattern of concepts and practices which are linked to each other: The concept of a person, his or her intention, and his or her capacity of control, which allow for the attribution of responsibility for the pain and suffering of the victim. When the human rights discourse has reached this level, the discourse on the justification and acceptability of the victim's claim can begin. But it already requires that the victim's voice is recognized and that Ihc other participants attribute weight to his or her propositions. During the process of human fights discourse, the victim regains his or her voice which she lost after her negative experience. When her claim is accepted as justified and as a valid human right, she has completely regained voice and agency. . If one conceives of human rights discourse in this way, a supplementary meaning [ has to be added to the meaning of human rights. Human rights have to be considered | and understood as the result of a process of the loss and recovery of voice with J regard to negative experiences like pain, fear, and suffering. Because 'voice' is self-I attributing, this process is always one for the individual who is concerned, who regains her own voice and standing in her relationship to the other members of the community of human beings. By the same process these other memberschange their attitude towards the negative experience of the victim, when they recognize it as a matter of injustice instead of a matter of fate or the victim's own fault. One could describe it as a learning process by negative experiences. Then, in any case in which a human being raises a claim to a human right which is already established and generally accepted, he or she refers to the collective memory ofnegative experiences which initiated the learning process that resulted in the particular human right to which he Orshe is appealing. And, by raisingsuch aclaim, or even by raising a claim to the participants of a human rights discourse that something, which hitherto was considered ; merely as fate or as the victim's own fault, shall be considered as an injustice or as the ' victim's own fault—by raising a claim that a rejection of a negative experience shall be accepted as a human right—in all these cases, the human being has to be recognized as A performative person, who hasa voice and who takesa position with regard to her negative experience in relation to others, who has standing in the eyes of the others. This is the additional meaning of human rights and human rights discourse m the theory of complex universalism. Compared to usual definitions of the concept 124 Klaus Günther of human rights, as they are for example suggested by Carlos Nino, this addition does not change these definitions. According to N ino.n human rights refer to: (i) the opportunity for the holder of the right to perform or not to perform, certain actions; (ii) the exclusion of actions of third parties which involve some harm to the holder of the right (either they deprive him of something or do him some injury); or requirements on third parties which involve a benefit for the holder of the right; (iii) the enjoyment of some good or the avoidance of some evil. What is characteriaed here as harm and injury, good and evil, and even as an opportunity to perform an action, can be traced back to negative experiences which are overcome by the recognition of human rights. In addition, it is important to emphasize a fourth element: a human right refers to the performative capacity of a person who can raise her voice in order to raise a claim.13 111. A EUROPEAN APPROACH: SUFFICIENT SENSITIVITY TO NEGATIVE EXPERIENCES This complex way of explaining complex universalism in opposition to simple uni-versalism leads us back to the question at the beginning—what could be a European contribution to human rights which docs not fall prey to the selective applications, misreadings, and exclusions which characterize the European history of human rights? The only answer which is available with regard to the requirements of complex universalism is: Europe has to take its own history of exclusionary interpretation and practice of humiin rights seriously. A European approach to human rights has to make an argument out of the European history of human rights. What matters is not the foundation of thcclaim to universalism in moral principles and discourses) but the insufficient sensitivity to negative experiences of human beings under the regime of well established and sufficiently justified human rights. Complex univers1 alism of human rights has to be sensitive to the voices of those human beings who suffer from pain and humiliation, who live with fear, and who reject it as injustice. It. makes a difference if we talk to those members of a different culture who are in power j or to those who are imprisoned, tortured, disadvantaged, or discriminated. Consequently, we have to deal with our own conception of human rights with the same at-> litudc. We should listen to the stories of those who are excluded from the exercise^ and the advantage of human rights in our own cultures, to their experiences of paint humiliation, fear, and injustice. A community becomes able to discover what is 11 Nino, noic 8 above, ai 30. " Cf.ii>/rf,ai27lT.whe(chucnlicizesihcaUcnipitodcfiiien^ilsaii;hiiiis. Nino refers lo iheimplfcťí lit>n thai rights as claims email duties by third parties—which is not true in any caw of human rights-Hck, I would emphasize the activist meaning of hghls as claims, as U suggested by Kcínberg (sec beto".1 tcxi accompanying note 35). so that Nino's critique docs not apply lu this aspect of the equation of fights as claims. Human Rights and Political Culture 125 wrong with its own one-sided, exclusive reading of human rights if it begins to trace its own conception of human rights back to its own negative experiences. If we consider our European conception of human rights as the result of a long process of negative experiences, then we become more interested in talking to the dissidents and viclims among the members of other cultures than to the officials or to the members of a majority- Of course, this approach cannot mean that any subjective experience of injustice leads to human rights. But it links the core meaning of human rights to something like a negative universality. It is Ihc universality of recognition of those who suffer now or in the past from deliberate infliction of pain, humiliation, and ufcar, and who have reason to reject it as injustice. Nobody who suffers now or in the [nasi from 'nese experiences shall be excluded from raisinghisor her voice, and everybody must listen. The advantage of such a conceptual framework is that it allows for [the consideration of a European approach to human rights which keeps in mind its .^historical and cultural dependency on negative experiences without any exclusionary consequences. It makes us sensitive lo our own past and, at the same time, makes as sensiiive to the negative experiences of others. It is because of this consciousness I Europe can affirmatively speak ofa European approach to human rights. Europe's history is a history of suppression, violence, war. and of the annihilation -f human beings and groups of human beings." In the beginning, it is the experience Buf unequal and arbitrary treatment by the political power of people who arc impris--ned indefinitely and without any legal reason. The right to be free from arbitrary unjustified imprisonment could be considered (he original basic right.M Ii ted with Arliclc 39 of the Magna Carta. Later, arbitrary imprisonment became a .ajor problem again, when it became part of the general unequal treatment of -pie by reason of their faith. As a consequence, this right was extended in the Pe-ion of Rights in 1628. and reconfirmed in the Habeas Corpus Act in 1679-At the ame time. Ihe right to freedom of conscience and of religious faith was sought as a ction against religious discrimination by the Slate. Then, it was the experience of pression and unequal treatment of people by reason of their birth. Among other alive experiences, it led to the Declaration of Independence and the Declaration Droits de ľ Homme in 1789. The fatal consequences of social, economic, and gen-incqualily arc further experiences of the nineteenth and twentieth centuries. Lintia! treatment, suppression and murder of human beings because of their elhnicily i'race', is another example of the violation of hunwn rights in ihis century. The st terrible violation of human rights took place in Germany, in the middle of estcrn Europe: the Holocaust. The Universal Declaration of Human Rights of '8 is a reaction to this atrocity. At the end of this century, one can observe a nge of attitude towards European history. We realize that Ihc European history uman rights is written in blood. And it goes on. The violation of human rights in Many of the thought» which ate mi out in this chap, ««re elaborated together with Cornelia ann in Berlin, in particular during my stay at the IVissensefiafiskoltrg in Berlin in 1995-6. Sec ismann,'Das Recht erklären. Zur gegenwärtigen Verfassung dci Menschenrechte' (1996) 29 Kritis-Jusilz 321 -35. All flaws in the argument and lack of clarity arc my responsibility. For thechaiacterizat ion of the right against arbitrary impiisonmcnt as the original basic right ('///■-dreehľ) jae M. K riele. Zuführung in die Staatslehre (1990). 151-6. 126 Klaus Günther civil wars is also a contemporary European experience. U seems lo require a major change in the conception of human rights. From the Magna Carta to the Universal Declaration, (he State—be it the State of the medieval or absolutislic monarch or the modern nation State—was at once the protector and the violator of human rights, the State was the addressee. Today, injustice and Tear are experienced not merely as a result ofthe arbitrary use of slate power, but also of the abuse of private power or the power of para-state organizations, like the war lords in former Yugoslavia or in some regions of Africa. This brief and cursory European history of human rights has already led several authors to the conclusion that human rights have to do with negative historical experiences and collective traumata.15 They are embedded in a memory of injustice and fear. Of course, this memory is not explicitly incorporated in the text of human rights. But it forms an important, perhaps even the most important, part of the political culture in which these rights arc accepted and criticized, given, claimed, interpreted, applied, and enforced. If you want to know what is meant by 'human dignity' or 'equal concern and respect' for every human being, you can either look at various kinds of legal definitions, at a huge record of legal cases, or you can think of the German Gestapo torturing a political opponent or the Holocaust of the European Jews. Human beings differ in wealth, gender, ethnicity, and other properties, but what they all have in common is the experience of pain and humiliation.16 H is this experience which gives us a feeling of belonging together, even if we are different. It is difficult to draw a concrete political consequence from this link between human rights and the memory of injustice and fear. At the end of this century, when we look back at European history and begin to interpret it within the framework of human rights, then the focus shifts from political and social history, from the national history of different European countries, to the history of injustice and fear within these different countries, and between them- -and to the individuals who had to suffer from violations of their rights or those who were responsible for their violation. A consequence would be lo discover this history of injustice and fear as a common European history, and to maintain and to keep its memory, to discover that it is a memory that is shaved by all people in Europe. The articulation, shaping, and reconstruction of this memory arc, and can only be, a collective work in progress, a project that will never end. It has to be undertaken by the people themselves, as a part of their collective self-understanding and identity. But it is also a matter of education,of historical research, and of public reasoning and deliberation. Asa consequence, the rights of freedom of information and expression have to be defended. It seems that we still have not uncovered all cases of violations, that there arc still a lot of experiences of injustice and fear which are not made public and are not part of the collective memory. A perhaps surprising concrete consequence may be IS E. Demütiger. Mentdxnrechit und Giwirfgewŕi(l994).89;S. Brugger.'Surfen der Begründung de' Menschenrechte* (1992) Der Staat 19-38; E. Riedel. 'Menschenrechte der drillen Dimension' |I989| tuGRZ 10. '* Rorty. note 5 above. Human Rights and Political Culture 127 be following: a human right to access to thearchives ofthe State and its institutions, fhe archives have to be opened to the public, and they may never be closed! IV. WHAT FOLLOWS FROM THE POLITICAL CU LTÜRE OF THE MEMORY OF INJUSTICE AND FEAR FOR THE INTERPRETATION OF HUMAN RIGHTS? Embedded in the political culture of a memory of injustice and fear, the European concept of human rights has a hidden or supplementary meaning, which forms a art of every single human right. From a historical point of view, it becomes obvious that human rights are the result of a certain kind of interpretation ofthe experience of injustice and fear, from which he or she suffers by reason ofthe overwhelming so-I power, in most ofthe historical cases, ofthe State. A human right is the rejection a concrete historical experience of injustice and fear, caused by actions of the ate. By referring to a human right, a person articulates his or her suffering from an ffenee or a harm, and he or she claims that everybody is obliged to listen to the in-idual report of this experience. The declaration of a human right represents this perience, rejects it, and gives a conceptual framework to the interpretation of new experiences of injustice and fear, caused by actions ofthe State, in the future. This is mt performative meaning ofhuman rights. Its importance is obvious, for example, m the 'Truth Commissions' in South Africa (although this is not a European example). As a consequence, 'human rights* can never be completely and comprehensively declared. They depend on a concrete historical experience, and they come into being as a performative practice of human beings, which can never be completely transformed into positive law. Any convention or declaration ofhuman rights can he 'amended', if new experiences of injustice and fear are articulated, and if human beings begin to 'talk1 publicly about their experience. In the following, I shall give a •ttore detailed reconstruction ofthe meaning of human rights. Wie Experience of Pain and Humiliation and its Effects: The Loss of Voice and -trol core ofthe experience is suffering from pain. Among the different kinds ofpain i the pain of being tortured and bodily violated which is most obvious. This ex-ple already includes what is presupposed in the following: that it is t he Slate orati-_er overwhelming social power which causes pain by infliction of torture. Of urse, the feeling of pain is not necessarily connected with violation ofthe body. It " be painful to be captured and isolated against one's own will by armed forces or people who act under the command of the State, without knowing why, where, ' how long for. Correspondingly, people suffer from pain who lose their wives, bands, children, relatives, and friends through the intentional force of state * Ls. These experiences are often accompanied by another experience, which can 0 he suffered without bodily violation. This is the experience of humiliation and 128___________________ Klaus Günther degradation. Being raped does not merely cause pain because of ihe violation of the body, but also the humiliation of being disregarded and of not being treated as an equal human being but as something minor, as a thing» as something that could and should be thrown away. This can reach the highest degree if one loses the sense of the value of one's own life, if one gives up oneself, wishes to be not alive any more, because one cannot bear it any longer.'7 Some common features of the different grades and experiences of pain, suffering, and humiliation consist of the effects which they have for the subjects who suffer from pain and humiliation. The first and direct effect results from the mere presence of physical pain, another effect from Ihe possibility and the anticipation of its repe* tition. Against a single action of torture you can react with a scream. When the presence of pain becomes overwhelmingly intense, you lose your voice, you are reduced to your body, and to prc-linguistic forms of expression like screaming. '« When torture is not just a singular event, but when it- as usual—continues, or when the torturers say that they will come back in ten minutes, an hour, the next morning, or sometime later without your knowing exactly when, and when you begin to imagine that it might happen again then you will react with/ear of repetition. When you are in a situation which makes it impossible for you to avoid the repetition, because you are imprisoned, because you cannot or will not leave the country, or because resistance to the regime of torturers is hopeless, then the fear will become a part of your self, it will capture your mind, your plans, your actions, your social relations—your life. And even if things change so that you arc safe and certain that torture will not happen again, there remains a higher or lower degree of fear that will throw its shadow on your life. In many cases, when the fear is overwhelming, the victim becomes mute. Often, the loss of voice which is already the effect of the shocking experience of intense pain inflicted by torture is definite; you are unable to regain speech. The forward-looking fear of repetition increases the victinVsquietness and passivity. Alone with his or her awful experience and with the fear that it might happen again, the victim not only keeps quiet, but he or she behaves very cautiously in general. U is better to say nothing. It is better not to ask someone for something. It is belter not to trust other people. It is better not do something which involves a small risk. In general, reality seems to be something which just happens to the victim; he or she has the impression or the certainty of having no control at all— no control over his or her body, no control over his or her social relations, even no control over things. The victim becomes helpless.1" Of course, we never have complete control over the world outside or even overourselves, and we obviously ought not to have it. But the victim loses more; he or she loses—gradually—his or her fundamental feeling of agency, of " TodureiiOftcnanalyscdandrťjeciedftcmihepomlofvkwofnKnas victinw. Bui aspecial kin"iof torture refers to «omen only, as is demonstrated by Brethcrton, note 2 above, at 2$9ľf. '" Sec the very comprehensive desenption and analysis of the effects of torture by E. Scairy, The Body in Pain (1985), 27fr. especially al *9: '(tlhe goal of the tortuier is to make the one, the body, emphatically and ciushingly present by destroying it, and to make the other, the voice, absent by destroying it. U tsi« part this combination that makes tonure. like any experience of great physiscal pain, mimetic of death; for in death the body is emphatically present while thai more elusive pan represented by the voice issP ulaintingty absent that heavens are Created to explain its whereabouts-' ■* See the classical study of M.E.P. Seligman. Helplessness: On Depression. Development, and Death (1974). Human Rights and Political Culture 129 beingable to change something by his or her own inlentional action. Ii docs not matter what he or she docs—things will happen anyway, and he or she will not change the way in which things happen. This is already true for the initial experience of pain during torture, when the victim realizes that he or she cannot prevent the torturer's tools from intruding into his or her body, or when his or her body collapses. The vic-tirn loses his or her voice and the fundamental security of having a certain degree of control over him- or herself and his or her social and natural environment. This is the silencing and chilling effect of an experience of pain and humiliation and of the fear of its repetition. In an ironic way. it transfers agency from ihe victim to the Slate and its reprcscn la lives-—the power of Ihe Stale becomes overwhelming, because ii has monopolized agency and voice. Of course, experiences of pain and humiliation arc radically subjective and cannot in themselves be generalized. There arc also different kinds of pain and humiliation with different kinds of causes and different reactive consequences, like, for example, illness or traumata caused by natural events such as an earthquake. Apart from the fact that there is also no simple connection between physical pain and verbal corn-municaiiort, pain itself is inexpressible. It essentially resists language and objectification in language.20 From pain itself follows everything. It would be too simplistic to draw a direct line from the experience of pain to the idea of human •rights. Human cultures have different schemes of interpretation and forms of communication for the expression of pain.21 This becomes more obvious in the case of humiliation. In order to interpret a violation as a ease of humiliation, a whole pat-item of social creations and constructions is necessary, like generalised expectations. «Tiles, collective and individual identities, concepts of agency. What is and what counts as a case of humilialion is defined and interpreted within this pattern as well s the expected, obligatory, and appropriate ways of reaction like, for example, ■shame or revenge. These patterns also make possible descriptions, representations, ~nd interpretations of the victim's experience which deny its meaning as a humilia-"~n, which turn its expression in a different direction. The gap between pain and Ian-age is even deeper than between humiliation and language. There is no description iorpain which does not make use or analogies. Therefore, the social and normative Items of description and interpretation arc much more alien to the experience of in than to that of humiliation, of which they form a constitutive part. As a conse-uence. ihe danger of intentional or unintentional misdescription and misintcrpre-tinn of pain is much higher." Language as a medium of the expression of pain is Scany. note 18 above. 11 Kor different altitudes towards pain ami different consequences for the idea of human rights see Assad, *On Torture. or Cruel, Inhuman and Degrading Treatment", in RA. Wilson (ed.), Human 'is. Culture and Context (1997). 111-33. Below I will be concerned with infliction of pain against the Of Ihe victim only. 1 am conscious of the fact ihat this description of this kind of case already prcsup. ' an intcrprelivc scheme ('against one's Own will') which is in itself problematic, at least from a cu I-ist's point of view. | This is not only truť just for authoiitarian regimes which try to misrepresent the suffering of their *"s, but alüo for many kinds of commercial and professional images of suffering in modern societies. A. Klcinmaii and J. Kleinman. The Appeal of Experience; the Dismay of Images: Cultural Appro- ' ns of Suffering in Our Time*', in A. KJetnman etat (cds.), Social Suffering (1997), 1-23. E.g.. the rcializauon of image» of victims which become an important pait of the 'infotainment on the ŕ news'(at Oor'the aesthcticiz-aiion of child sexual abuse'(at II), 130 Klaus Günther highly ambivalent. Language can be used to 'unmake* the experience of pain, Tor example, in Ihe case of torture by representing it as a sign ol" the presence of power. When the state monopolizes the voice, it can talk about the pain which is deliberately inflicted on the victim, can 'justify' it or'explain' why it is necessary. The creative capacities of the human condition and imagination are necessary in order to find more adequate ways of description and interpretation which do not simply wipe out the experience of a body in pain. It is. of course, impossible to detect the one and onlyau-thenticexpression of an experience. But it is possible to distinguish between different kinds of expression and media of representation according to the degree with which (hey allow the victim's voice to make itself explicit, ľ hune Scarry distinguishes different 'arenas in which physical pain begins to enter language'.21 There is the individual who tries to find expressions and sentences besides the mere scream, or other persons who vicariously try to describe pain on behalf of the person who suffers. Another arena is the different kinds of medical discourses.2* A third one is art as a medium for the description and expression of pain. At last. Scarry refers to the letters and annual reports of Amnesty International about the victims of torture and to transcripts of personal injury trials as records of'the passage of pain into speech'." As Scarry points out. communicative arenas for the passage of pain into speech, like the Amnesty letters or the personal injury trial, have additional goals and functions. They provoke or are intended to provoke certain reactions of other people, be* cause of the report of pain. They should protest and intervene or take some legal, political, or even violent remedies in order to stop the infliction of pain. On the other hand, these records arc often based on the reports of the victim. The victim has to tell, his or her story, which becomes a part of the record. By this step, the victim begins to. regain his or her voice, and his or her voice is strengthened by the voices of others, who communicate the report. Obviously, these arenas also presuppose and make use of interpretive schemes, expectations, social rules, and cultural patterns.76 But within these patterns, human beings try to make use of their creativity with the inn lention of overcoming the experience of pain without denying, misinterpreting, mi representing it, without giving a distorted report of their experience as docs the Sta which justifies torture. Even if one admits that there is no pure and authentic d scription of pain, because every verbal description unavoidably makes use ofanal gies and metaphors, these arenas dilTcr from others in which distorted reports used to justify torturers, to legitimize the system of stale power which organizes deliberate infliction of pain. Thedifference lies in the focus on the recovery of the v tim's voice in the presence ofhis or her memory of pain, and—by further steps—i the recovery of agency and control. " Scarry, note 18 above, at 10. u Mcdkal discourse isofcouisc- as is any discourse on pain and suffering—interrelated with cult representations of suffering and wilh social and economic factors: see A. Kleinman. Writing at the .Ml g in: Discourse Bettteen Anthropology and Medicine (1996). M Scarry.nolc l8abovc.at9. For the'action files' of Amnesty International see Amnesty lnteii*i>>0 Report I99S (German edn., at 63-6). For the role ofNGOs for the passage from experiences of pain humiliation lo human rights discourse see E. Decaux. 'The Role of Civil Society', in this vol. ** For a contemporary account of the different discourses on and cultural representations of sulP sec Kleinman ei at. note 22 above, at p. xxvi. 'Introduction': 'we have gone beyond the point »here subject of suffering can be examined as a single theme or a uniform experience* Human Rights and Political Culture 131 ' The Distinction between M is/or time and Injustice Ifies to reconstruct ihe way in which the victim regains his or her voice and trol, one could tell a meaningful story about the emergence of a sense of injustice, -t of all, pain is not regarded as something that just happened because it had to open. The pain does not result from a disease or from an accident, and it is not be-' the reach or human intervention, like an earthquake. Il is not like the pain ich one suffers from toothache or from a stone which falls on one's feet, and not ^n from another person who unintenionally, by accident, steps on one's feci, mong ihe causes of pain arc olher human beings, who acted deliberately, with rywlcdge of the consequences, and who inflicted pain intentionally.3' This is obvt-s in Ihe example of torture. The infliction of pain by torture implies human beings i arc acting deliberately, who intentionally act m certain ways, or make use of trumeiits because of their propeny of producing pain. The anonymous and itc power of the State becomes present in the deliberate and intentional aC-of its torturers who arc acting under its command. The first fundamental dis-ition which is implied in the interpretive scheme is the distinction between nature fate on the one hand and meaningful human actions on the other, Wal other concepts are included in this fundamental distinction. If the causes ;iin are attributed to meaningful human actions, a concept of the person is piled according lo which he or she can build his or her own aims and intentions, n control his or her actions according to an intention, who has a voice and py orconirol of him' or herself- and of the world outside. In general, a person in ornial psychic state who is not coerced by anybody else is regarded as being able 'Ulan intentional action; for example, an intentional infliction of pain. Despite e conflicts aboul the appropriate interpretation of the meaning of an action, de-all (he explanations, justifications, and excuses which are offered by torturers government officials, according to which the 'strong interrogation' was 'un-fidately unavoidable', and despite all the hierarchies among those who give or-d those who execute (hem, there arc at least some persons who have voice and •I, and who, consequently, could have avoided the torture. Because certain oľpain, like those inflicted by lorlure. can be interpreled as effects of avoid-lingful human actions, it is possible to take a position on this action, to say r 'no' to it. One can reject the intention to inflicl pain, and one can claim lhal rrespondirtg action should be avoided. By this step, a human being begins to his or her voice. He or she docs not quietly accept a fate, but is able to say 'no' tilings which happened to him or her. To reject an intention like the infliction by lorlure and to claim (hat its execution can and shall be avoided means ,is unjust lo do it. If the action is avoidable, it can be rejected and imputed to •»distinction between suffering caused By 'nature' and by intentional human action is of course W**" Furthermore, Ihe causes of illness and the kind of nealnwnl are linked with social anange- *•* structures \thich arc again dependent on intentional human actions and omissions; e .g. Ihedif- Bgw between poor and rich or ihc distribution and organisation of heiillH care. See A Young. ^BN and the Origins of Traumatic Memory '.and P Farmer, 'On Suffering andStructural Violence »from Below', both m Kleinman etat., nole 22 above. a( 245-84. 132 Klaus Günther the torturers and those members of the government who gave the command, and they can be regarded and treated as responsible for an act of injustice. This kind of rejection, which includes a judgement about the injustice of the act done and an attribution of responsibility to the actor, entails a specific meaning for the victim. It means that the infliction of pain was neither a matter of nature and fate nor the victim's fault. To consider damage as the result of one's own fault is also a reason to keep quiet— because, for example, one feels ashamed of one's own inability to anticipate and (o avoid dangerous situations. As long as the victim interprets her situation as her own fault, she will have no reason to raise her voice and to say 'no'. In the best case, she will look for some strategy for avoiding the risk that bad things happen again. She will be unable to regain her voice unless she stops feeling responsible for the pain she suffers from and attributes responsibility to those who acted intentionally and who could have avoided their intentional action, i.e. the commanders and their executioners. The fundamental distinction between nature, fate, and meaningful human action can be extended to the distinction between misfortune and injustice.26 The victim not only regains his or her voice by saying 'no' to the things that happened to him or her, but is now also able to address him- or herself to someone who is responsible for the things which happened, and to others who should accept the claim of injustice. The concept of injustice is related to expectations and norms as well as to rules of imputation of unjust actions to persons who are held responsible for them. The distinction between misfortune and injustice is neither pre-given nor invariable. What is considered as something that just happens, for which nobody is responsible and which has to be borne by the victim him- or herself, depends on human ability to intervene in the world and, most of all. on the social interpretations of the world. A prominent example of the first requirement is genetic engineering. As long as the genes of an individual human being were simply inherited by his or her parents and, therefore, so to speak, given by nature without any opportunity of changing them, his or her genetic equipment with all its consequences for his or her life was nothing more than fate, misfortune, or luck. Nobody could be held responsible for his or her genetic equipment. To ihe extent that it is now and will in future be possible to alter genes by genetic engineering, the genetic equipment becomes a matter of intentional human intervention, of justice and injustice, and of responsibility. A prominent example of the second requirement is poverty. Is it the result of wrong decisions by the individual, i.e. the victim's fault, or is it the fate of an anonymous market—or is it something that could be prevented by political decisions, legal rules, and social institutions? The answer to this question depends not only on human ability to intervene in the world, but also on the social interpretations of individual achievement, of the interdependence between individuals and society. No matter how the question ought to be answered, the assertion that somethingis unjust and that someone is responsible for U changes the communicative arena. It is at least possible to argue about the borderline between misfortune and injustice. If it is in general possible to react to meaningful social actions by taking a position and " ForthedisUnclionbcPMCTmisfortuncaiKlinjusto 1 (German edn. 1997.67IT.). Human Rights and Political Culture 133 f saying 'yes' or 'no' to them, then it is also possible to put social arrangements, social I structures, institutions, laws, rules, and conventions, as far as they are constituted by Band consist of meaningful human actions, into question and under the demand of m justification. It at least makes sense to claim that negative discrimination and social »exclusion by reason of gender, race, religion, or other human properties arc not a misfortune and not the victim's own fault, but injustice. This is, of course, the result of a long history full of conflicts and obstacles. It is part of European history that is0me people began at some time not to take social exclusion by reason of birth as given by nature orby God, but demanded that any such exclusion be justified. In this Iregard, gender or race makes no difference to the critique of social exclusion. p- The demand for justification is of course ambivalent. It is possible to justify negal-jbve discrimination and social exclusion. It is even possible to have a law that justifies Iiis of the State which are done with the aim of «elusion, expropriation, cx-jn, or even the annihilation of minorities. It is possible to have a law that torture or the killing of a citizen who illegally crosses the border in order to ie country. The claim that such actions are unjust and the demand of tion could easily be answered by saying that there is a law that justifies them, ísequence. the assertion of injustice and the demand of justification have to ded to (he justifications which are offered for such atrocities, less to say people differ very much one from another in what they believe to justice. Ón the one hand, the experience and interpretation of injustice arc y subjective, on theothcrhand, in particular in pluralistic societies with a cer-;ree of cultural relativism, there are different convictions about what is just, ic primary rules, according to which one could identify an action as a matter tiee.2* Together with the ambiguity of primary rules and norms, which can used to justify torture and to legitimize an oppressive system of power, the ion between injustice and misfortune and the demand of justification have to ided to the rules and norms themselves. What matters is the recognition of dividual as an equal participant in the political process which leads to a deci-primary legal rules. To regain (or to preserve) voice and control does also lal one has the power and the ability to criticize and to amend the rules of jus-is is the most important effect of human rights on political culture, ther or not a negative experience will be considered as an injustice, with its acnt rejection according to a valid human right, depends of course on Ihe uiii-rinciples according to which a judgement on such an experience jsmade. This c, for example, a principle of role-exchange.'0 A negative experience is an in-ifeverybody who takes the perspective of the victim rejects her experience as slice. There are similar principles, like the categorical imperative, utilitarian les or the procedure suggested by discourse ethics, which comes close to the taking each human being's voice seriously.*1 But these principles can be • a wry sensitive description of tftc experience of being a victim of injustice, see: ib'd. (GeniWn 3 grateful io Robert Altfxy for urging mc to make (his point clear. , e.g-, C.S. Nino and K. Alexy, T'iskurstheoric und Menschenrechte', in R. Alexy. Recht. Ver-í*wM( IMS), 127 -64; J. Habermas. Betwen Facii arulNomut(Gwman cdn. ľakiiiitäiund Cel-•3). rfiap. 3>. 134 Klaus Günther applied to a negative experience only after it is already considered as a discourse on justice and injustice and noi as fate or the victim's own fault. These principles cannot substitute (he requirement of an increasing and sufficient sensitivity to negative experiences and their potential meaning as a matter of injustice. V. THE EFFECTS OF HUMAN RIGHTS ON POLITICAL CULTURE The idea of human rights emerges from the rejection of pain and humiliation, caused by the state or by an overwhelming social power, as an injustice. But the reconstruction of human rights as resulting from negative experiences like suffering from pain and humiliation focuses on other aspects loo. What matters here is not so much the propositional content of a human right and its justification, but the way in which a victim regains voice and control facing a negative experience like pain and humiliation inflicted by I he state. One step is the interpretive scheme, according to which suffering from pain is not misfortune—to which one can only adapt—and not the victim's own fault. It allows the victim to insist on his or her experience and to reject all misinterpretations and pseudo-justifications or excuses for the infliction of pain or for degrading treatment. But this is of course not the whole story. The victim would not be able to regain voice and control if nobody listened to his or her report of a negative experience, if nobody cared about it, or if everybody denied thai it is really a negative experience, or, finally, if everybody considered it as a misfortune or as the victim's own fault. Whereas the latter reactions presuppose that the opponent has al least listened, although he or she denies what the victim claimed, the former reactions consist of mere ignorance. The victim becomes marginalized, because his or her voice is considered as having no meaning or simply as disturbing. What is necessary here—and this seems to be the decisive move -is that the victim is taken seriously, that others listen to his or her voice. Listening here implies of course more than the behaviour of a Nazi or Stalinist judge in a show trial. It means, first of all, that the story of the victim counts, that it has considerable weight with regard to the question whether his or her painful and humiliating treatment is an injustice." When this move of recognition of the victim's voice is extended to all human beings, something like the idea of human dignity is established. One cannot deny that i he history which led to t he principle that human beings have to recognize each other as persons who have a voice which counts and has weight is a long and complicated one, which is full of hindrances and obstacles.n In addition, 'voice' hasalso to be understood metaphorically, because this concept has also to be applied to those who 11 Often, the victim's voice obtains weight indirectly, us is demonstrated by (he examples of widows and relatives in Argentina or Guatemala, who do not stop searching for their husbands and kin who were killed during the time of dictatorship, and publicly asking questions about their fate. M Contemporary examples of the difficulties of establishing a public forum fot the expression of experiences of pain and humiliation are the cases of rape and sexual abuse during the civil war in forme" Yugoslavia. Sec K. MacKinnon. 'Crimes of War, Crimes of Peace*, in Shute and Hurley, note 5 above, al 81 110. W : Human Rights and Political Culture I 35 í are mute or to future generations. With these additions in mind, one could say thai I the claim which is raised by a victim who gives a report on his or her experience of K pain and humiliation is that nobody shall be excluded from the realm of human be-L jngs who take each other seriously by listening to each other and by each attributing »weight to what the other says. The victim is now regarded by others and understands M bim- or herself as somebody «ho has preferences and intentions, who has agency I and control, and who can raise claims and demand justifications. From nowon.it is ^Rjnpossible to treat him or her as a mere object of one's own interests only, and he or r she sees him- or herself with different eyes. 11( is by ihis step that the idea of equal human righls comes into being. But instead pf focusing on the propositional content of ihe right—for example, Ariicle 5 of the Universal Declaration of Human Rights -I have tried lo look at Ihe process in n>hich a victim of injustice regains voice and control. Tlic idea of human righls is ř something like an abbreviation of this process by which ihe victim overcomes a neg-rativc experience of pain or humiliation with their consequences of muteness, passivity, and helplessness. The propositional conieni of a human right depends on the kind of social practice which is experienced as painful and humiliating, like torture, arbiirary imprisonment, exclusion from basic social goods. In the background of f these righls are always individuals who suffer, who have fear, who raise Iheir voices, who claim that oihcrs shall listen to Iheir report of their negative experience, and I who demand juslification and reject the justifications for (he kind of social practice rwhich produces these negative experiences- This reconslruction is even more true in [those cases where individuals claim to have human rights which are slill not recognized and established. Here, Ihe individual is not able lo claim a righl which already jeontainsa symbolic abbreviation of the past waysoui of Ihe shadows o( pain and hu-jmiliaiíon, bul he or she has to go on (be long path of recognition of his or her experience of injustice. , Joel Fcinberg has explained the concept of rights wilh regard to their activist and Bperl'orniaiive role and meaning. Looking for a distinctive feature of a righl, which distinguishes rights from other entitlements, he discovers ihe internal link between ■Attain rights and claims.3* Claim-rights are ihe strongest kind of righls, because Rfcy entail corresponding duties of others. The possibility of claiming links an ab-islracl and general righl lo the concrete situation of a person who raises a claim to t have this right. For every right there is a right to claim in appropriate circumstances Bhat one has lhal righl. To claim a righl is like asserting something tool hers wiih the iclaim thai it shall be acecpied. 'To claim that one has a righi... is to assert in such a panncr as to demand or insist that what is asserted be recognized.'3S Feinberg pays foariicular attention to this activist meaning of claiming, because it is Ihe feature ■of the concept of a right which is importanl for (he social ideality and ihe self-Jcrslanding of Ihe person who raises a claim io a right. 'Why is the righl lo de-nd recognition of one's righls so importanl? The reason, I think, is that if one In the tradition of Roman civil law, (he relationship land difference} bf Iween rights and claims was £t first introduced by Winscheid in (lie nineteenth century $.'■ F*™*»««. Dunes. Rights, and Claims', in J. Feinbcrg. Kigh/S. Jus/ice. and the Bounds of Liberty 136 Klaus Günther begged, pleaded, or prayed for recognilion merely, at best one would receive a kind of beneficent treatment easily confused with the acknowledgement of rights, bul in fact altogether foreign and deadly lo it.*3* This explains why and how rights are the medium in which the victim becomes able to regain voice and control in the presence of pain and humiliation. In his reconstruction of the activity of claiming as the salient feature of rights. Fein-berg distinguishes two different meanings of 'claiming' with regard to rights. It makes sense to say lhal a person is 'making a legal claim to' a right as well as to say that a person is 'claiming that' he or she has a right. The first meaning of claiming refers lo rights which one already has, for example, those given by a legal system which already entails abstract individual rights which can be claimed by a person in a concrete case if he or she is qualified (by the appropriate circumstances) lo make this claim. A more definite case is Ihe claim lo a title which follows from a person's right that is already recognized and (legally) confirmed. These are the usual ways in which a right becomes the right of a person in a concrete situation, in which it becomes something like a 'real' right lhal is exercised by Ihe person who has it. with real legal consequences. For this reason, Fcinberg attributes to the activily of claiming a performative meaning: '|l]cgally speaking, making claim lo can itself make things happen. This sense of "claiming", then, might well be called "the performative sense". The legal power to claim (pcrformativcly) one's right or the things lo which one has a right seems lo be essential to the very nolion of a right.'" On the other hand, a person can claim that he or she has a right, although and because he or she does not have il. because, for example, il is nol presupposed by the rules of a legal system. Here, it is ihe content that matters. Feinbcrg calls this kind of activity 'proposilional claiming'. Whereas a claim lo a right can be raised by Ihe person who has [his right only, the claim that one has a right can also be raised by others. As a German citizen, I can (currently) raise the claim that foreigners should have a voting right in parliamentary elections, and if it were the case thai a legal rule existed which provided foreigners with such a right, then only a foreigner could make a claim to his or her voting right. As Fcinberg points out. the former content-oriented kind of claiming has social consequences too, bul they are different from (he legal consequences of the exercise of a righl: '(t]o claim that one has righls is lo make an assertion lhal one has them, and to make it in such a manner as to demand or in1' sist thai Ihey be recognized*.,s This kind of claiming does not differ from ihe general; claim lo recognition and acceptance, which is raised for Ihe proposilional content of every sincere assertion, like the truth claim which is raised for the assertion lhal '(ill is raining here and now*. With this kind of claim, a speaker addresses him- or hcrsel to a hearer, he or she enters inlo a communicative space: 'part of the point of propo sitional claiming is to make sure people listen'."' If this interpretation is correct, o' could say lhat proposilional claiming also entails performative claiming. To cla' that I have a righl Ihen has the performative meaning lhat I am willing to enler in ** J. Fcinberg. "Duties. Righls, and Claims', in J. Fcinberg. Righis. Justice and lbe Bounds of Liber (1980). 141. " J. Feinberg, The Nature and Value of Rights', in Fcinberg. note 35 above, al 150. m Ibid. " Ibid. Human Rights and Political Culture 137 the communicative space where I want to be taken seriously, where my voice has a weight, where others listen lo me and argue about my claim by demanding and gi v- i jng justifications. In a constitutional democracy, this communicalive space is called m* public sphere. | Feinbcrg's interpretation of the activily of claiming is relevant for the reconstruc-? aon of the idea of human righls which I am suggesting here. In Ihe case of human * fights, ihe claim to a human right is as important as Ihe claim that one has a human 'light. Performative churning prevents the viclim from losing voice and control with regard to a concrete situation in which she suffers pain or humiliation. He or she can claim a right which she already has. 'Having rights, of course, makes claiming possible; hui il is claiming lhat gives rights their special moral significance.'40 The moral 'significance of the performative claiming lo a right consists exactly in Ihe ability to liťgaiii one's voice. 9 Having rights enables us lo 'sland up like men', lo look others in ihe eye. and lo feel in some fundamental way f he equal of everyone. To think of oneself as f he holder of righls . is no! lo be unduly bul properly proud, k» havethai minimal self-respect lhat is necessary fto be worthy of ihe love and cslecm for others. Indeed, respcci for persons (this is an in-11 i;-iMiig idea) may simply be fcspeci for iheir righls, so lhat there cannoi be ihe one wiih- , our the other; arid what is called 'human dignity' may simply be the recognizable xapaciiy lo assert claims.-1 " Of course, it happens quiie often that ihe victim has a right, but lhat she is pre-nted from making a claim to it. Proposilional claiming is much more difficult, but S'Jias a similar effect for the proponent of a human righl as performative claiming-— '"actly because of ils addilional performative meaning. The proponent of a new .'man righl at least makes claim to a right to enler inlo ihe public sphere, lo be laken řiously in his or her report of pain and humiliation. Thus, ihe proponent of a (new) ínian right always makes a claim to ihe righl (o human dignity, apart from the m thai he or she shall have a human right wilh a new proposilional content, for ample, the righl to development. II a person makes a claim loa righl or is claiming lhal he or she has a right, ihen il cs not go without saying lhat Ihe person already has or obtains Ihe right, h all de-son a third aspeel ol'claiming. According lo Fcinberg. a claim has to be justified ~lid*2 This is obvious in Ihe case of performative claiming, because a person can e a valid claim to a righl only if the right is presupposed by Ihe legal system and or she is able to demonstrate and lo prove thai the appropriate circumstances given and that the conditions are met under which Ihe claim lo ihe right is valid. *~ake a claim lo a righl then means thai one has a prima facie case of a righ l. positional claiming is, again, more difficult, because there is (still) no righl. Fein* lakes ihe example o('manifesto writers' who identify needs and argue for their gnilion as human righls. Il is intriguing, according lo Fcinberg. thai ihese promts speak of ihese righls as already given. By ihis, ihey iry lo suggest thai ihe s Ihey idenlified are already valid claims to rights. Bui il is only an effcciivc ibid. The icxr was published in 1979, but I ihinkwhaii* meant here can easily be e«cndcd lo wiimen. 138 Klaus Günther rhetorical tool lo urge the world community to recognize certain needs as valid claims to rights- and 'a powerful way of expressing the conviction that they ought to be recognized by states here and now as potential rights and consequently as determinants of present aspirations and guides to present policies'.43 Again, one can interpret this effect as the performative meaning of claiming thai one has a right. In addition, this case demonstrates how the proposal of a (new) human right can become in itself a case of performativeclaiming. The so-called manifesto writers argue as if there already were an existing right to which one could make a prima fade claim, because they refer to a 'higher law', for example, to natural law, which already entails a right which should be recognized and confirmed by a system of positive law. From their point of view, the 'new' right turns out to be an 'old' one. In this case, propositional claiming not only has the additional performative meaning of entering into the public sphere and claiming for an audience which listens, but it is also always linked to performative claiming in the strong sense, as far as it refers to a'higher law' which already entails the kind of rights to which the claim is made. By this step, the manifesto writer does more than merely express himself in a powerful way and make use of effective rhetorical skills, as Feinberg seems to suggest. By referring to 'higher law*, she gives a reason for the claim that people should have certain rights, which shall justify the claim to lecognilion. At the same time, she (races her authority, her right to a voice, back to such a 'higher law', which gives her the legal power to make a claim to the right. It is of course difficult to say what is meant by 'higher law', particularly if one addresses the world community which consists of a plurality of different cultures will) different opinions about 'higher law'. The appeal to 'natural law' was a historical European approach to justifying the claim lo rights which were not recognized by the Slate and a majority of people in a community as something which is already given by nature, so that nobody could ever deny or abolish them. This appeal also provided the proponents with power and authority in order to justify their licence to speak against a power which denied this right. The members of the Assemblée Nationale in 1789 could legitimize themselves as authors of the Declaration of the Rights of Man only by referring to an 'incontestable and irresistible authority'.44 In a similar way, the authors of the American Declaration of Independence acted in the name of'the laws of nature and in the name of God'.41 As-Gauchel, Derrida, and several other authors have pointed out, this is a case of self-authorization on the one hand and authorization in the name of some higher law and authority on the other ai the same lime. The authors of the declarations could derive their authority only from themselves—but by empowering themselves, they have put themselves under a higher aulho rit y ora higher law, which bound them from the mor ment in which they received their power. Although 'natural law' or 'God' arc no.; longer appropriate references, every contemporary claim /hat a human right, which! is not recognized yet. should be recognized, traces its performative power back t some 'higher law'. There is something like a performative circle bel ween claiming 43 J. Fcinberg, 'The Nalure and Value of Rights', in Femberg. note 35 above.al 153. 44 M. Gauchel/Mensthenrechle-, in F. Furel and M. Ozouf |eds.). Krittsthes Wörterbuch tiff Fran: Stichen Revolution. (1996), ii. 1189. " J. Dcrrida. 'Nietzsches Olobiographkľ oder Politik des Eigennamens' (1980) Fugen 67. Hwmm Rights and Political Culture 139 human right and claiming to have a human right. The political debate in the public inhere about the claim to have a right is already bound by human rights—although it is the political process which creates these rights. This is the interplay between sel f-fulc and self-authorization on the one hand, and law rule and authorization by prior [aw on the other, which is already established in conslituiional democracies and which has to be extended to human rights legislation.46 A consequence of i\m performative nalurcof human rights is that i hey a re dependent on citizens, who arc not only able, but also willing, to make use of their rights, to anticipate in the performative practice. To become 'rights in action', and not merely (book rights', they have to be used. The willingness to make use of rights can be jireatened by different political, social, economic, cultural, and individual obstacles. The experience of such threats is also a specific European experience. The effectiveness of human rights also, but not only, depends on public conventions and 'judicial institutions for the enforcement of these rights. It is also necessary that people see themselves as holders of these rights, (hal they see themselves as citizens feonscious of a community of human rights. This is a matter of political culture, pic have to be empowered and enfranchised to raise Iheir claims. As long as I am r, belong to a minority which is publicly despised and systematically disadvant-", which is excluded from communication, I lack t he courage to use my rights— n if am a holder of f hose rights. Here one can observe a kind of interplay between plilical culture and human rights. Rights to social welfare and education, rights to dividual liberty, and rights lo political participation have, apart from their specific eaninj;, the general meaning of encouraging people to consider and to treat them-"ves as well as each other as conscious subjects of human rights, as equal members ■a legal community, which is conslituted by Ihe subjects of human rights, and ;chcxisls only as long as they make use of ihcir rights. As a consequence, human ts have to be defended and strengthened not merely because they are human Is, but also because they have an effect on the European political culture which bles its citizens to make use of their righls and lo develop Ihe identity of equal .."bcrsofa community of human rights. To sum up. one could say that (he performative meaning of human rights is most -ortanl for the status and self-undersianding of the human being who articulates rt)r her negative experience of injustice and fear. If somebody refers to human fits when he or she articulates his or her experience of injuslice and fear, he or she To lo have a voice. As an interpreter ofhis or her experience, lie or she becomes ■auihor of the human rights which he or she claims lo have. Of course, a mere ex-sion ol injustice is not enough for the recognition of a violaled right. The claim e performative practice of human rights that everybody has lo listen to the jihu loop between law and politics is recognized «ven by opposing political philosophies: see 1 J\- r -JteľofceafĹavtGemancun. (íťjf:.-<,jtru//(l99l),S8).andltabemia.s.noie3lal>1ive.aichap 3. ' joini interpretation' of Derrida'i arid Habermas' account see A Wcllmcr. Menschenrechte u«d ~aiie'. in G. Lohmann and S. Goicpalti (eds 1 Philosophie def Menschenrechte í forthcoming. -Fora reconstruction of this loop in conslilutioiial democracies sec F. Michchnan. 'Can Consiitu-Pcmoťr.it.s be Legal Positivism? Or Why Constitutionalism?' t J99f>) i Constellations 293ff;0. G*r-t, Deliberative Demokratie. Zur RfkonsirUkiiondesZlrkelsnn RechtsuaaiuiXlrechlsrrzeugender 140 Klaus Günther reporl of an individual experience entails the claim that everybody can put him- or herself in the shoes of the victim. This explains why human rights are always rooted in an individual and particular historical experience, but at Ihc same time are t|e. clarcd to be rights which claim to universal recognition. Together with the claim that everybody can put him- or herself in the shoes of the victim, the person refrains from asserting a concrete identity: he or she becomes the abstract identity of a bearer 0f rights, and claims to be recognized as such a person. VI. CONTEMPORARY PROBLEMS: FROM PUBLICTO PRIVATE POWER The European approach to human rights, which consists in a complex universalis with a sufficient degree of sensitivity to negative experiences of human beings, faces at least two problems, which could even become a serious objection, because they are linked together by current developments and changes in the political culture and the institutions of human rights. The first problem results from the emphasis on negative experiences, the loss and regaining of the victim's voice, and the memory of injustice and fear as the most salient features of the political culture of human rights. Human rights arc considered by this approach from the victim's point of view. The second problem results from my primary concern in explaining complex univcrsalism as a particular European contribution to human rights. Hitherto, my primary concern has been experiences of pain and humiliation, which were caused by the State audits representatives. But contemporarily, many, perhaps most, of the negative experiences of pain and humiliation which can be legitimately rejected as cases of injustice) and serious violations of human rights are not committed by a State and its repre« | senlativcs, but by powerful social groups or by para-state organizations: war lordsl operating in civil wars who deprive people from basic resources of food and who: order or tolerate torture, rape, and genocide, as in some regions of Africa, in former Yugoslavia, or in Algeria; militant fundamentalist groups who deny basic rights to women, as in Afghanistan. Often, powerful economic organizations, like big oil companies, work together with repressive regimes in order to deny claims ofaborigf ines to their land from which they arc expropriated.47 This is the problem of violaí lions of human rights by private organizations. The emphasis on the victim's perspective can be dangerous for two reasons. FilW it lends to exclude, paradoxically, the viclim for a second time. As long as the VÍCH is labelled and treated as a victim, and as long as the victim labels him- or herself, hfl or she is kept and captured in a passive role. This becomes more obvious when the victim's claim to human rights also aims at its potential consequences: the attribution of responsibility to the perpetrators. Then, the claim to human rights is linkoj with a relationship between victim and perpetrator. Charles Taylor has observed] thai a 'discourse of accusation' which prevails in public discourse can easily becomg •* For a more deiailted account of Ihe role of corporations and non-«talc aclors sec M Kamnrnw 'Regulating Corporations and Other Non-Siaic Actor*. The ĽU Rote', in this vol. Human Righjsand Political Culture j41 ■ n"■" " "'•••ill ^-HIIU/ť 111 E-nle*. as sometimes happens in societies which have to deal with a past of state ter-1. ^sm<» As a consequence, those groups which are obsessed by their role as victim attain within the realm of the community, but dö not participate actively in it.41* This kind of exclusion and self-exclusion has lo be avoided by a practice of complex Kjversalism. The focus on negative experiences and the memory of injustice and fear willnot ^P numan beings in the passive role of victim. Instead, the pcrforma 1-jyc jneaning of the claim to human rights has to be extended to ihe role of ihe victim, rhe claim to human rights refers to the status ofan equal participant in ihediscourse Cf human rights. The role of the victim is only part of ihc memory of injustice and fear to which anyone appeals who raises a claim lo human rights, ř The other reason why ihc emphasis on the victim's perspective could be dangerous fa complex universalism has to do with ihe second problem. From the victim's per-incclivc, il makes no difference if he or she is tortured or raped by the agents of the State, by an ordinary citizen committing a crime, or by armed forces under the com-ipaittl of a war lord. Complex universalism of human rights, as is suggested here. Íhedislinction between crimes which consist in a violation of criminal laws that 'en by (he legislator of a particular State and human rights violations. The adie of this position is that it allows one to deal with all violalions of human which arc not committed by the State but by powerful social groups or para-»rga nidations. The disadvantages arc the change in the role of the State, which lircd as a consequence, and the exclusionary consequences for (he perpetra-j State was the traditional addressee of human rights. Its role was, although 'alent, clearly defined. The State was considered as Ihc pre-eminent protector nan rights as well as the prc-cminant violator. The experience of violation first—this is why all approaches to human rights Iry to demonstrate how and (uman rights are above the State and a legally constituted society, and why n rights are primarily negative rights, directed against unjustified interference : Stale. The idea that Ihe Slate is also protector of human rights emerged to-: with ihe experience thai human rights can also be jeopardized by overwhelm-cial power, for example, by an unequal distribution of primary goods which «cssary for a decent life. As soon as the negative experience of economic in-ity was declared as unjust (i.e. as not pre-given by nature, fate, or as the fault of sadvaniaged and poor), people raised their voices and made a claim to social ■ Their institutionalization depended on a kind of power which was able lo refute goods—the welfare slate. Human rights of the second and third genera-esorl *to slate as the guarantor of human rights'.50 anwhilc, private power became stronger and sironger. It increased the danger lalions of individual rights which cannol be overcome by tort law or criminal »jjThcdivision of labour between human rights, direcied against Ihe Slate, and in-ErnaMaws. which included individual rights protected by tori law and criminal law. Bans lo Cade. The Stale becomes more and more ihe vehicle for protection of the HRTayto». 'Demokratie und Ausgrenzung' (1997) |4 Transite '* Ibid. |P B. de Souse Santos, 'Toward a Multicullural Conception of Human Rights' (1997» 18 Zeitschriftpit 142 Klaus Günther people against pain and humiliation indicted by prívale power. This is the problem of third party-applicability of human rights,51 or their horizontal effectiveness in the relationships between citizens. Human rights as constitutional basic rights are inter» preted as rights which entail 'duties of protection'" (''Schulzpflichten') which arc addressed to the State, which has to act in order to protect the citizens by. for example enforcing strong criminal laws and providing an effective criminal justice system. The contemporary public debate about the enforcement of criminal law and the effectiveness of the criminal justice system, which takes place in many European countries today with regard, for example, to sexual abuse of children or organized crime often takes the victim's perspective in order to raise a claim against the Slate lo better protection against criminal offences. A further step is already taken in those cases where the nation State is too weak to cope with severe violations of human rights or where the Stale is itself the perpetrator. The suggestion of establishing an internaiional court of criminal justice transposes the idea of a 'duty lo protection against violations of human rights' from the level of the relationship between State and citizens to the level of international relations between States, powerful social groups, and individuals -individuals as potential victims and bearers of human rights. A consequence of this development is that the State and civil society, or even supranational organizations and individual human beings, begin lo merge at least lo the extent that the victim's perspective and civil society or the global society are identical. The State is no longer seen as the sole violator of human rights—although human rights in particular emerged from negative experiences with the Stale's power to punish. Arbitrary imprisonment was, as already said, the first right, the 'Ur-Grundrecht*. In Europe today, many people have fewer negative experiences and less fear with regard to the punishing State than with regard to crime. But if the victim's perspective prevails, then the danger of dchumanization emerges again; this time with regard to the perpetrator. When the distinction between civil society and Slate is blurred by the idea that human rights generally entail a 'duty to protect' people from becoming victims of human rights violations, then the human rights of the (potential) perpetrator become important too. What is necessary, then, is a balance be-, iwcen ihc human rights of the potential victims of human rights violations and the human rights of the potential perpetrators. The emphasis on ihe victim's perspective may not mean that the perpetrator has no human rights at all otherwise, the per« petrator him- or herself will become a victim, who can legitimately reject his or h negative experience (for example, torture by the police or cruel punishment) as matter of injustice and as a violation of human rights. 11 W. Kalin. 'McnschcnrechlsYtiIrágc als Gewährleistung einer objektiven Ordnung', in W. Kälin at (eds ), Aktuell* Probleme del Mensehewechissrhuizes {Current l'roblenu of Human Highly Protect H994>. 9-48. especially 32. a Dcnningcr, now 15 above, al 231t and 33. Human Rights and Political Culture 14.1 VII. CONCLUSION: THE THREAT OF 'HUMAN RIGHTS TALK' ' s Marili Kosekennieini has dcmonsiraied in his chapter.5' the institutionalization of human rights and daily human rights practice cannot ensure that human rights do not degenerate into mere talk. Such degeneration is facilitated by the abuse of Bfunan rights for olhcr purposes, economic or political, or the ideological use of juman rights for the legitimation of a status quo. This provokes the criiicism (hat Lunian rights are no more than ideology, rhetorical tools, which can be used for Ihc urpose of slopping political struggle over the ordering of social affairs. This kind of 'ricism ofhuruan rights talk is as old as ihc idea of human rights itself. The classical ics were already named by Burke, Mill, and Marx. In general, Ihc criiicism is tha i urnan rights contain an individualistic bias, (hat (hey ignore (he complexity of •rial relationships and individual needs, that they destroy collective identities, and at they insert artificial boundaries and barriers into politics, which is particularly angerous when democratic self-legislation is ai stake.54 Koskcrinicmi's critique of human rights talk can be interpreted as another argu-- t for complex universalism of human rights. Rights rhetoric can be criticized rn within (he idea of human rights, when it is traced back lo negative experiences injustice and fear, as it is suggested here. It relates human rights lo those who are cited, whose voice is not or only insufficiently represented in human rights dis-ursc and practice, and whose experiences are excluded from human rights dis-urse. This is Ihc reason complex universalism suggests making a shift from rticular human rights and their contents lo the procedures, in which each human 'ng has a right lo a voice and lo express his or her negative experiences as a matter injustice. Only ifhuman rights have ihe additional meaning of a claim torecogni-n of being an equal participant in these discourses, the division between politics * an empty and ritualized human rights talk can be avoided. Rights depend on foes, and they entrench politics at the same time. While human rights should be m in a democratic political process only, they also shape this process by presup-singand requiring that each participant shall be recognized a person with a right u voice, with a right to express his or her negative experiences and to claim th;tt :e experiences are a matter of injustice. Democratic politics give rights—and at same time, rights shape and organize the democratic process. This is why thecir-relationslup between rights and politics, as mentioned above, is necessary, dangerous development, described by Koskenniemi. cannot be halted by sirrt-ubsliiuting rights t>y politics, but only by accelcraiing the interaction between and politics. This could happen if we conceived of human rights as a memory justice and fear, which is linked wiih experiences of individuals who lost and reed their voices with regard lo negative experiences such as suffering from the in-onal infliction of pain and humiliation. Ii would make us more sensitive to ihe t exclusions of our daily human rights practice. Keeping the long history of oskennicmi, nole 9 above. the following essays: Edmimd Burke's RefieaiotU on the Revolution in Prime/, Icrcniy Ben-MWíř/m-o/frt/toiiei, and Kit rl Ma rx's 0» iW™ 7-Btmham. Hrnke and Marx on the Rightt of Man (1937). 144 Klaus iiiinílicr exclusionary readings and selective applications of human rights in mind, this could J be the message of a European approach to human rights: to encourage people to re- 1 capture their human rights by regaining their voices with regard to experiences of .1 pain and humiliation. When we begin to conceive of human rights as the legacy oľin- J justice and fear, it could happen that the univcrsalism of human rights turns out no ■ longer to be a problem. C The Human Rights Context within which the European Union Functions