Are Rights Out of Time? International Human Rights Law, Temporality, and Radical Social Change

Date01 December 2019
DOI10.1177/0964663918815729
AuthorKathryn McNeilly
Published date01 December 2019
Subject MatterArticles
Article
Are Rights Out of Time?
International Human
Rights Law, Temporality,
and Radical Social Change
Kathryn McNeilly
Queen’s University Belfast, UK
Abstract
Human rights were a defining discourse of the 20th century. The opening decades of the
twenty-first, however, have witnessed increasing claims that the time of this discourse as
an emancipatory tool is up. Focusing on international human rights law, I offer a response
to these claims. Drawing from Elizabeth Grosz, Drucilla Cornell and Judith Butler, I
propose that a productive future for this area of law in facilitating radical social change
can be envisaged by considering more closely the relationship between human rights and
temporality and by thinking through a conception of rights which is untimely. This
involves abandoning commitment to linearity, progression and predictability in under-
standing international human rights law and its development and viewing such as based
on a conception of the future that is unknown and uncontrollable, that does not pro-
gressively follow from the present, and that is open to embrace of the new.
Keywords
International human rights law, law and time, legal theory, radical social change, tempor-
ality, women’s rights
Introduction
Developments over the latter half of the 20th century have promoted the perception that
we are living in the age, or the time, of human rights (Bobbio, 1996; Henkin, 1990).
Corresponding author:
Kathryn McNeilly, School of Law, Queen’s University Belfast, Belfast, County Antrim BT7 1NN, UK.
Email: k.mcneilly@qub.ac.uk
Social & Legal Studies
2019, Vol. 28(6) 817–838
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/0964663918815729
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Human rights have proliferated in law and politics and are a central means of evaluating
the past and present, as well as driving progress for the future. This understanding has
been advanced by the United Nations (UN) and its ever-expanding catalogue of treaties;
the development of regional human rights regimes; the activity of national and interna-
tional non-governmental organizations; as well as by legislatures and courts across
jurisdictions, continents and legal systems. However, some have asked more critical
questions about this time of human rights and, specifically, about the future of rights
as a politico-legal discourse of social change (Hopgood, 2013; Mutua, 2015; Posner,
2014). The opening years of the 21st century have witnessed challenge to the ability of
human rights to make a meaningful difference in contemporary contexts of financial
collapse, changing patterns of migration, war and terror, to name a few.
The question accordingly arises, as Baxi states, ‘whether human rights languages
will ...wither away and what may take their place. Far from being unreal, th[is] question
is already heavily posed to us’ (2008: xxxv). Those who contest the value of rights in this
global landscape declare that human rights are out of time, that their time as an emanci-
patory vision for the future is up and that they are no longer the discourse of the moment
that we are living in. This is an important challenge which is waxing rather than waning
and has significant implications for the everyday work of those who practice, study,
write about and teach human rights. Accordingly, this challenge must continue to be
responded to. This is what I aim to do in the present article, with a focus on international
human rights law.
1
In doing so, I contribute to the diverse body of scholarship which,
while critical, aims to retain some future use for human rights through reimagining their
conceptual underpinnings (Balibar, 2013; de Sousa Santos, 1997; Douzinas, 2000;
Lefort, 1986: 239–272). In this contribution, I take response to this familiar contempo-
rary challenge to rights in a new direction through conversation with new theoretical
resources.
In the following, I argue that international human rights law is not out of time, but it
should be. By this I do not mean that the time of these rights has come to an end, or that
their utility has necessarily faltered. Rather, what I argue is that a productive future for
this area of law may be envisaged by considering more closely its relationship to
temporality and by actively thinking through a conception of rights that is untimely.I
use this term in the sense articulated by Elizabeth Grosz; as that which is out of step or
out of time, which goes beyond a linear and progressive relation between past, present
and future and, additionally, involves a
leap into the future without adequate preparation in the present ...a movement of
becoming-more and becoming-other, which involves the orientation to the creation of the
new, to an unknown future, what is no longer recognizable in terms of the present. (2010:
49)
Untimeliness thought in this way requires abandoning commitment to linearity, pro-
gression and predictability in understanding international human rights. In contrast, this
area of law must be apprehended as operating via a conception of the future that does not
necessarily follow progressively from the past or present, that is unknown and out of
control of the present, and that better foregrounds the continual elaboration of the new.
818 Social & Legal Studies 28(6)

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