For the first part of this post, see here

3.     Emerging insights: strategic uses of human rights

Anthropological accounts of rights-based discourses have shown the ways in which people come to see themselves as legal subjects through the process of claiming rights (Friederic, 2013; Merry, 2003, 2006a), even if not always with advantageous results. Overall, the subject of rights continues to be construed, in the context of late capitalism, as an autonomous male individual, expected to “empower” himself and to defend his interests, if required, through adversarial litigation. Feminist legal theory has long interrogated the liberal legal subject (Hunter, 2013; Lacey, 1998; Smart, 1989), a critique that can take on new dimensions through the lens of decolonial theories, which unveil how the imposition of gendered and racialised subjectivities is deployed in a capitalist society (Lugones, 2010; Mendoza, 2016).

The paradigm of the colonial-liberal legal subject has been identified in the experiences of survivors of VAW who formally file a complaint. They are thereby expected to become empowered and advance criminal trials in order to access justice, as burdensome and risky as legal proceedings may be (Goodmark, 2021; Maier, 2008; Tapia Tapia, 2021). My current research is showing that this is also true for the families of incarcerated persons who attempt to use the legal apparatus to obtain benefits for their loved ones, or reparations after the prison massacres. For the most part, legal processes are cumbersome and violent for those without the financial and social capital that is required to succeed in bureaucracy and litigation. Nevertheless, I am also encountering cases where law, and the language of human rights, are strategically used to achieve certain collective purposes that marginalised communities project.

In the pilot phase of my field work, I have interviewed a number of persons who are building alternative approaches to anti-violence work, and practising a kind of “popular human rights” or “human rights from below”. I have met some of them years ago, through politicised processes aiming at counteracting the state’s narrative on carceral violence. It is important to highlight that the praxis of these collectives is “steeped” in awareness of the limits of law and rights-based discourses, and that they do not appeal to carceral punishment. I thus regard the tactical use they make of human rights language as subversive and counter-hegemonic.

For reasons of space, I will only focus on the work of one organisation in this piece: the Comité Permanente por la Defensa de los Derechos Humanos, CDH [Standing Committee for the Defence of Human Rights] based in Guayaquil.^[1] I am conducting interviews with Fernando Bastias, who is in charge of the strategic litigation at CDH. I have known him for a few years and participated in some of CDH’s processes, including a popular court they organised to assess the state’s responsibility in the prison massacres. Fernando has been involved in supporting the relatives of the prison riot’s victims, and has also led long-term processes that include accompanying survivors of discrimination, violence, and dispossession within marginalised communities.

Among the various fascinating patterns that are emerging from a preliminary analysis of the knowledge that the organisers are sharing with me, I have found one transversal idea-praxis, which is clearly illustrated by Fernando and CDH’s work.

4. Human rights as tools for community organisation

Fernando Bastias will soon finish his dissertation to qualify as a lawyer. He self-identifies as a “traitor to the patriarchy”. Although he is quite young, he already has extensive experience of strategically using legal tools to counteract state violence. One of the most interesting processes that Fernando is involved with is Socio Vivienda —originally introduced as a social housing project—, an impoverished neighbourhood in Guayaquil that is considered violent and unsafe, and has been militarised several times. Hardship and precariousness have also propitiated the imprisonment of many young men from the area. One of the main struggles of this community is to obtain the title deeds to their homes, which has been an issue of dispute with the government for many years. Fernando is supporting a campaign that brought the community together around the objective of making themselves heard by the authorities. During the meetings, the neighbours realised that many of their needs and demands match the human rights that Fernando was pointing to, such as the right to decent housing. In Fernando’s words:

[what I do is] write it all down in a blackboard. And I say “this is a violation of rights, this is another one, this is another one, and this is another one”. So [the community] knows the scenarios of injustice; and that has been very interesting for me, because at the beginning, of course, you enter Law School and you say to yourself that you are in an elite career… you are the one with the solutions at hand. So, of course, you say to yourself, well, I’m going to give [the community] the solution […]. But then you realise that the power, or the ability to transform, or influence, or change things, is not in a law student or a lawyer, it is in the organisational capacity of the people who suffer violations of rights. So, when I understood that, I said well, I am here more as a person who offers tools and encourages things that have already been organised for a long time, and nothing more. They needed like… a platform, some names, and words for rights being violated… for who is responsible? Who should be in charge of this? (personal communication, November 18, 2022).

As we see, there is transformative potential, not in human rights as a legal framework, but rather in the use that people are making of this language when they organise around a collective goal. Coming from a community that is hyper-policed and stigmatised, it is worth stressing that the nature of what they claim under the rubric of human rights does not entail a punitive trade-off. Rather, these are claims with a crucial economic component that challenges the state and the elites over the monopolisation of property. Moreover, this projects the construction of a much broader right than the right to property: the right to decent housing.

The community’s appropriation of human rights vocabulary is evident in their campaigns: CDH has produced short videos showing public acts of protest carried out by Socio Vivienda neighbours. One of the most striking mottos repeated in one of the videos and seen in several banners, indicates: “Sin título no hay vivienda y sin vivienda no hay derechos” [Without deeds there is no housing and without housing there are no rights]. In the same video, in the context of a march, one of the neighbour declares: “¡Sin escrituras no hay derechos humanos!” [“No deeds, no human rights!”]. This approach is a far cry from the doctrines that view economic and social rights as “non-justiciable”. This is occurring in the context of a social housing project that never fulfilled its promises, which resulted in the literal construction of precariousness on the part of the state. Here, the protesters of Socio Vivienda do not regard human rights as formal entitlements that open the door to a criminal trial. Their scenarios are the streets, the neighbourhood, and the outskirts of government buildings. Human rights give the community a set of tools to address the authorities. At the same time, the original perspectives that are emerging from the process largely surpass human rights orthodoxy. It is not law as such, nor institutional discourse, that has enabled the community to organise. Rather, it is the appropriation or “vernacularization” (Merry, 2006b) of a terminology that is allowing people to speak about what is happening now, day by day, with a deeper sense of their own dignity.

Such emancipatory practices, which appropriate human rights language, endowing it with “unorthodox” content, suggest that penality is an element to be rigorously interrogated if human rights are to be used strategically. Many organisations and advocates, including Fernando and CDH, believe that the “gains” delivered by legal tools have more value in terms of the organisational capacities that are strengthened, than in terms of the legal outcomes that are formally produced. Although Socio Vivienda is still struggling to win at legal processes to obtain the deeds, the campaigns they are carrying out are retelling their story: a community that has long been stereotyped and excluded is now starting to be perceived as a noteworthy political actor.

5.     Looking to the future: abolitionist human rights

The uses of human rights that I have described in this short text are re-signifying legal language. To this extent, they are not “rights” in the strictly juridical sense of the word. First and foremost, I believe, they are non-penal and counter-carceral approaches that are emerging directly from popular organisation and grassroot struggles. What is important to repeat is that the way in which human rights language is appropriated by survivors of oppression, contradicts more traditional accounts of human rights, and, indeed, exceeds their liberal tone. Not only are these human rights “from below” counter-carceral, they are also frontally redistributive and very concrete in the demands they make. There is a radical emancipatory potential in these initiatives’ commitments to the present, to the current, unequal and unjust state of affairs. This connection with the materiality of the present is ontologically and epistemically different from the paradigm of law that always refers to abstract rules whose formal coherence is the priority. Instead, these are decidedly embodied approaches to justice that depart from the abstractionism and individualism of orthodox human rights, offering us the priceless hope of a continued decolonisation, in which the abolition of prisons will be critical.

References

Ávila, K., & Postay, M. E. (2012). Abolicionismo penal latinoamericano. La “no pena” regionalmente contextualizada. ¿Realismo marginal o utopía de la utopía? In M. E. Postay (Ed.), El abolicionismo penal en América Latina: imaginación no punitiva y militancia (pp. 43–58). Editores Del Puerto.

Barreto, J.-M. (2018). Decolonial Thinking and the Quest for Decolonising Human Rights. Southeast Asian Journal of Social Science, 46(4-5), 484–502.

Bottoms, & Von Hirsch. (2010). The crime preventive impact of penal sanctions. The Oxford Handbook of Empirical. https://books.google.com/books?hl=en&lr=&id=OFjkcUQ_QgMC&oi=fnd&pg=PA96&dq=von+hirsch+criminal+deterrence&ots=haqYf80aPT&sig=s1WrwGEFVLhVoGP9Ih4OcO2YFDI

Carlton, B., & Russell, E. (2018). Women Against Prison: Anti-carceral Feminist Critiques of the Prison: Women’s Imprisonment and the Politics of Abolition. In B. Carlton & E. Russell (Eds.), Resisting Carceral Violence (pp. 103–132). Palgrave Macmillan.

Escobar, A. (2004). Beyond the Third World: Imperial Globality, Global Coloniality and Anti-Globalisation Social Movements. Third World Quarterly, 25(1), 207–230.

Friederic, K. (2013). Violence against women and the contradictions of rights-in-practice in rural Ecuador. Latin American Perspectives, 41(1), 19–38.

Gómez Vélez, M. I., & Gómez Gómez, D. (2018). Capítulo 1. Abolicionismo decolonial: repensando las maneras de abordar el castigo. In M. Gutiérrez Quevedo & Á. M. Olarte Delgado (Eds.), Política criminal y abolicionismo, hacia una cultura restaurativa (pp. 25–74). Universidad externado de Colombia.

Goodmark, L. (2021). Gender-based violence, law reform, and the criminalization of survivors of violence. International Journal for Crime Justice and Social Democracy, 10(4), 13–25.

Grewal, K. K. (2015). International Criminal Law as a Site for Enhancing Women’s Rights? Challenges, Possibilities, Strategies. Feminist Legal Studies, 23(2), 149–165.

Hernández Castillo, R. A. (2017). Activismo legal y talleres penitenciarios. Las paradojas de la antropología juridica feminista y del trabajo cultural en espacios de reclusión. In R. A. Hernández Castillo (Ed.), Resistencias penitenciarias. Investigación activista de espacios de reclusión (pp. 51–82). Juan Pablos Editor.

Hunter, R. (2013). Contesting the dominant paradigm: feminist critiques of liberal legalism (M. Davies & V. Munro (eds.); pp. 13–30). Ashgate.

Lacey, N. (1998). Unspeakable subjects: feminist essays in legal and social theory. Hart Publishing.

Lugones, M. (2010). Toward a Decolonial Feminism. Hypatia, 25(4), 742–759.

Maier, S. L. (2008). “I have heard horrible stories . . .”: rape victim advocates’ perceptions of the revictimization of rape victims by the police and medical system. Violence against Women, 14(7), 786–808.

Mathiesen, T. (2005). Prison on Trial. Waterside Press.

McNeilly, K. (2019). Are Rights Out of Time? International Human Rights Law, Temporality, and Radical Social Change. Social & Legal Studies, 28(6), 817–838.

Mendoza, B. (2016). Coloniality of Gender and Power: From Postcoloniality to Decoloniality. In L. Disch & M. Hawkesworth (Eds.), The Oxford Handbook of Feminist Theory (p. 100). Oxford University Press.

Merry, S. E. (2003). Rights talk and the experience of law: implementing women’s human rights to protection from violence. Human Rights Quarterly, 25(2), 343–381.

Merry, S. E. (2006a). Human rights and gender violence: Translating international law into local justice. University of Chicago Press.

Merry, S. E. (2006b). Transnational Human Rights and Local Activism: Mapping the Middle. American Anthropologist, 108(1), 38–51.

Quijano, A. (2000). Colonialidad del poder y clasificación social. Journal of World-Systems Research, XI(2), 342–386.

Renzulli, I. (2021). Prison abolition: international human rights law perspectives. The International Journal of Human Rights, 26(1), 100–121.

Scott, D. (2013). Why Prison? Posing the question. In D. Scott (Ed.), Why Prison? (pp. 1–22). Cambridge University Press.

Scott, D. (2016). Regarding rights for the Other: abolitionism and human rights from below. In L. Weber, E. Fishwick, & M. Marmo (Eds.), The Routledge International Handbook of Criminology and Human Rights (pp. 50–62). Routledge.

Smart, C. (1989). Feminism and the power of law. Routledge.

Tapia Tapia, S. (2018). Feminism and penal expansion: the role of rights-based criminal law in post-neoliberal Ecuador. Feminist Legal Studies, 26(3), 285–306.

Tapia Tapia, S. (2021). Beyond Carceral Expansion: Survivors’ Experiences of Using Specialised Courts for Violence Against Women in Ecuador. Social & Legal Studies, 30(6), 848–868.

Tapia Tapia, S. (2022, June). Feminism, Violence Against Women, and Law Reform. Decolonial Lessons from Ecuador. Birmingham Law School Research Blog. https://blog.bham.ac.uk/lawresearch/2022/06/feminism-violence-against-women-and-law-reform-decolonial-lessons-from-ecuador/

 

^[1] Full ethical clearance for this phase of the project has been granted by the University of Birmingham. The persons mentioned in this text gave their full consent for their real names to be published in academic outputs, and had the opportunity to read and revise a draft of this blog post.