Counter-hegemonic approaches – mainly advanced through critical human rights and TWAIL scholars – answer to the closures in liberal human rights practices. Counter-hegemonic narratives have moved away from the euro-centric and institutional production of human rights law to recognising the contributions of formerly colonised societies in reshaping human rights ideals on autonomy. Such approaches employ anticolonial resistance through the right to self-determination and contemporary social movements to advance an emancipatory function to human rights. Counter-hegemonic approaches formulate the recognition of the excluded subjects as active actors within the reproduction of human rights. Resistance of the excluded arises as regenerative of human rights ideals beyond the closures of liberal ideals. Yet, the excluded subjects appear in counter-hegemonic approaches as recognisable through their struggles for recognition rather than through actualising their space of action.
My research disassembles the process of recognition to uncover how racism informs the understanding of agency in human rights. In doing so, I attend to the the exclusivity of qualifying for human rights protections and the racial encodings within the term ‘human’.
The process of humanisation in modernity
The process of humanisation concerns the initiation of the excluded as an addition to the ‘modern’ human order. By modern, I am referring to the New World order that came to separate the divine order and the ‘animal’. The New World order marked the expansion of Europe through colonial conquests. Perhaps one of the most notorious debates on the function of normative humanity in the New World is between Las Casas and Sepúlveda on the status of the Indians of Mexico. For Sepúlveda, Spanish settlers had the right to their expansionist desires against the Indians of Mexico and the Spanish rule is rightful in treating the Indians as inferior by nature. While for Las Casas, Spanish imperialism was a political expansion that ought to recognise those who are human enough to accept the authority of the Spanish Crown. Las Casas’ position advocates for tolerance for Indian societies and cultures that, on the one hand, treats Indians as rational beings; and on the other, it necessitates their conversion to Christianity and allegiance to the Crown. Both positions reflect an amalgamation of first, Christian metaphysical attributes – that declares all humans are worthy of salvation, but some are savages by nature; and second, ascribes the supremacy of modern, enlightenment ideals that declare the individual as a rational entity in charge of their development.
In this debate, recognition of the (selected) enslaved as humans did not rectify the arbitrary powers of the colonisers in modernity. In Scenes of Subjection, Saidiya Hartman maintains that recognition of the rights of the enslaved was not a remedy but a justification for sanctioning the un/subhuman. The rights granted to the enslaved transitioned their subjectivity to a modern form of servitude, and complemented colonial governance in advancing a civil society in which the enslaved can be criminally liable but not owners of property. The process of humanisation in modernity is grounded in sustaining racial hierarchies that demarcate one’s agencies.
Assembling a Universal Human
Modern origins of the term ‘human’ have been contested by critical approaches to human rights. In those approaches, common humanity is a contingent referent that fluctuates with different political commitments. In the shift from the theological to the politico-legal figure, the modern ‘human’ sustains a transcendence that is aspirational and referential to all societies through the (secular) rights-holder. At the same time, the modern ‘human’ substitutes the theological figure in a teleological order. The UDHR (and before that the French Declaration of the Rights of Man) initiated ‘man’ as the referential subject to acquire unalienable rights, freedoms, and protections. The universal individual of the French Declaration reflected Lockean rationality, which at the time declared the black subject as a property of the white man as the Rights of Man did not extend to the enslaved. But unlike the French Declaration, the UDHR produced a universal rhetoric to the rational subject. The connotation of ‘man’ within codified human rights instruments was no longer that of a western subject but a universal one. The contemporary function of the rights-bearing individual as ‘man’ is one of asserting a universal agency against oppression. This creates a contingency in the function of the term ‘human’ that finds its origins in a colonial function, while it evolves as a universal referent.
While the contingency remains unproblematic in critical approaches to human rights, I suggest that the contingency of the term ‘human’ becomes problematic for those who occupy the unconscious of western societies. My research looks at the racialising function of the agentic, rights-bearing individual. My argument on the process of humanisation initiates from the premise that we are still inhibited by conditions of coloniality when we think of our agencies. Humanisation cannot be reflexively neutral. As Sylvia Wynter asserts, ‘Man’ – as a universal category of human and a European invention – establishes a universalised, modern subject and is overrepresented for securing autonomy and flourishment. Wynter’s engagement proposes that the colonial origins of ‘human’ implicates the shift to the political subject. She argues ‘man’ came to reflect the ‘idea of race’ that was a useful tool for colonial governance, while race as a category of identification demarcates differences through the racialised category of the human (as ‘man’).
The continuous reiteration of Las Casas-Sepúlveda debate as one of the central debates to the origins of a universal humanism in human rights normativity has limited the potential of recognition for the excluded, who are only actors through their struggles. The debate constructs the politico-theological origins of sovereign man as the ideal human and that origin-narrative persists within the foundational genealogy of human rights law. In itself, such genealogy obstructs anti-racist work while reproducing racialising relations. The shift to a rational political subject in the Las Casas- Sepúlveda debate transformed the redemptive (theological) desires to submitting to sovereign limitations on desires and actions in modernity. This transformation erected the rational agent – as a secular entity – that inherited the European imperialist model as part of the ‘civilising’ history. The rational (European) agent became a homogenising symbol that excludes other modes of being human from its axis.
The (liberal) genealogy of ‘human’ persists in the regulative function of human rights on who qualifies for recognition as a rights-bearing individual. Perhaps within engaging with a critical assessment of the function of human rights for those excluded from the rational agent, we ought to initiate with the confinements of the universal agentic module without a promise to return to the same space of agency. My research suggests a complete scrutiny and destruction of the ‘human’ with all its racist manifestations and its invented cosmogonies of race and racism, especially when we look at the potential of anti-colonial resistance and various views on building and envisioning postcolonial conditions.
 Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (Oxford UP, 1997) 80-81
 Anna Grear, ‘“Framing the project” of international human rights law: reflections of the dysfunctional ‘family’ of the Universal Declaration’ in C. Greaty & C. Douzinas eds. The Cambridge Companion of Human Rights Law (Cambridge University Press, 2012) 18; Wendy Brown, ‘The Most We Can Hope For: Human rights and the politics of fatalism’, South Atlantic Quarterly (2004) 461,462
 Sylvia Wynter, ‘Unsettling Coloniality, of Being/Power/Truth/Freedom: Towards the Human, After Man, Its Overrepresentation – An Argument’ (2003) 3 The New Centennial Review 257-337.