Human Rights was first constructed to limit states' power and sovereignty. The limiting of state power then created two separate spaces, called the Public and the Private. The Public is the space where state operates, whereas the private is the space where state cannot operate. One of the aims of human rights activism, in particular the Western-type human rights activism, is the enlargement of the Private space and the reducing of the Public space. However, for me, this type of activism can be problematic in various regards.
The first one is that the whole human rights regime, the international treaties and conventions, which is supposed to be adopted by states, depends on state sovereignty. It depends on the state willingness to adopt the human rights regime in its system. If human rights is aiming to reduce the limit of state power, the question then: how can we expect states to adopt human rights regime, if they know that this regime will cause their power to diminish? How to make states to comply to something that they clearly do not want?
The Transnational Legal Process theory tries to answer this question by pointing out the role of the domestic civil society (represented by NGOs) in the internalization of human rights norm. However, this can only be possible in a relatively democratic country, where the involvement of civil society is an essential component of legitimacy. The theory cannot answer how autocratic states can be forced to comply to human rights regime. This huge blank becomes particularly relevant when we take a look at some real life examples, such as what happening in China, or in Burma, now.
I do not have a clear answer, now. However, one of my hunches (let us call it a hunch), is probably that human rights activism should not be aimed at limiting states power on these countries, rather it should appear as if human rights can expand states power, by expanding the public and limiting the private, rather the other way around, thus enticing these autocratic states to adopt human rights regime. Again, this is not a clear answer, just a hunch. I cannot deliberate further here, because of limited space and time. I do think that more research should be done on this area.
The second problem is that this distinction can sometimes blurred the question of responsibility. Many feminist activists have pointed this problem. Their well known jargon is “the private is the political”. By that, they try to point out that the women oppression do not happen only in the public sphere, but it also happens – or it happens particularly – in the private sphere. Because it happens in the private sphere, responsibility becomes a non-issue and oppression can continue without challenge. The private sphere, which is supposed to become a place of sanctuary from states oppression, becomes the very place that human rights activists loathe: a jail, or even a torture chamber, where no one can interfere.
The third problem is related to the previous one. Recent experience has shown us that human rights violation can happen not just when states become too powerful. Now we have a notion of “failed states”, where states cannot perform its function in providing the protection of human rights. On these failed states, violation of human rights happen on daily basis. Yet even so, people know about these things, the question of who has the responsibility to protect becomes useless to ask, and the distinction of the public and the private becomes redundant. At the end of the day, even though human rights is aiming to limit states power, we still need the states, even if their function is only to enforce the distinction between the public and the private.
I am not saying that we should do away with the separation between the public and private. In certain respect, maybe we do need this distinction. We need a space where state cannot interrupt and disturb our lives. However, I think it is really important to rethink about the balance between what is public and what is private, in the context of human rights.
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