Ian Hurd: Everything I know about International Human Rights I Learned from The Clash

In the constellation of fake holidays, International Clash Day is a new star that burns a little brighter every year. Invented in 2013, February 7th is a celebration of the British band who in the late 1970s added sharp politics to the energetic, polyglot music of punk rock. Their message embraced human rights but with a twist: they saw the rule of law as the enemy of human rights rather than its savior, and they mocked both liberals and conservatives while charting a third way.

In contrast to the nihilism of the Sex Pistols and the cartoonism of the Ramones, The Clash offered a rock ’n roll course in political philosophy. It begins with seeing where the sharp end of the state is felt by regular people. Their songs speak of people’s daily lives in the face of police, the military, courts, and laws that all carry the possibility of violence.

Joe Strummer and Mick Jones were the principal songwriters. Their song Know Your Rights amounts to a primer on the difference between rights in theory and in practice. Billed as “a public service announcement… with guitars” it tells the audience to

Know your rights

All three of them

 

Number one: you have the right not to be killed

Murder is a crime

Unless it was done by a policeman – or an aristocrat

 

Number two: you have the right to free money

As long as you don’t mind a little investigation, humiliation, and

if you cross your fingers… rehabilitation!

 

Number three: you have the right to free speech

As long as are you aren’t dumb enough to actually try it

The song comes from knowing that legal rights are interpreted and applied by the state itself. For regular people the value of these rights depends mainly on how this interpretation and application are done. To be shot a person dead on the sidewalk is presumably a wrong. But whether it’s a legal wrong depends on who did it, why, where, and to whom. The legal and political meaning of killing depends on how the state draws lines around accountability. Police badges, stand your ground laws, citizenship status, declarations of war, and skin color are formal and informal features that affect legal accountability.

The pragmatic realism of The Clash could come across as mere cynicism – that law promises one thing but delivers another – but it’s is also a foundation for a political worldview that challenges the liberal common-sense.

At the heart of the liberal view is the belief that what’s most important is following the rules. These might be rule of law or rules of global governance. The Clash remind us to ask why these rules are the rules and who do they benefit. Once we do that, the political content of the rules becomes clearer and the injunction to just ‘follow the rules’ seems less like a universal good and more like a partisan intervention in a long-running social conflict.

In Julie’s Been Working for the Drug Squad they tell of their friends caught in punitive jail sentences for casual drug offenses. The bureaucratic function of judges – to impose penalties upon rule breakers – feels indistinguishable from the politics of race, class, and power that went into making the law in the first place.

And then there came the night of the greatest ever raid

They arrested every drug that had ever been made

They took eighty-two laws

Through eighty-two doors

And they didn’t halt the pull

Till the cells were all full

‘Cause Julie’s been working for the Drug Squad

 

They put him in a cell, they said ‘you wait here’

You got the time to count all of your hair

You got fifteen years

That’s a mighty long time

The liberal faith in law believes that it protects the individual against the state. The Clash point to something else: that law serves some interests at the expense of others. Moreover, in practice it’s likely to serve the strong rather than the weak. Instead of a neutral framework that benefits everyone it is better seen as a political structure that allocates power and privilege.

If we were talking about tax law all of this would make for an uncontroversial point. It is easy to see that while tax law imposes its obligations on everyone equally it also favors some people, some kinds of income, some kinds of wealth, at the expense of others. It produces winners in society and also losers, and political fights over tax law are about who will sit in which category.

But the idea that law creates both winners and losers becomes much less popular when it moves to the world of international human rights. It is common among human rights activists to take an enchanted view of law that sees it as making only winners. It is assumed that the rules are good for everyone and so there are no losers.

On the grandest scale, good governance in world order is often seen as requiring faithful adherence to international law by all parties. If only governments were more committed to international human rights treaties then then we could be rid of torture, repression and all the rest. This is what Stephen Hopgood has called ‘Human Rights’ in the uppercase sense – the collection of treaties, states, courts, and activists who have been granted formal power to oversee, criticize, and perhaps even prosecute violations.

The Clash look instead for what Hopgood calls ‘human rights’ in the lowercase. This is the lived experience of people in relation to state violence. From this perspective, the state is likely felt as the main danger rather than a source of protection. It sees human rights as a struggle between the person and the government – it exists when you want to do something that the state wants to prevent. By persisting, you risk a baton to the back of the head, or pepper-spray to the face, or jail or death.

What is at stake here are two different views of the relationship between law and politics. On the one side, ‘Human Rights’ seeks to create centralized political and legal institutions to govern the world, on the theory that these will constrain governments violence against people. On the other, ‘human rights’ sees these as tools in the hands of the state, which are likely to create a legal framework that favors the state rather individuals. Since the state makes and interprets the law, adding more laws and legal institutions may not be regress rather than progress.

The Universal Declaration of Human Rights guarantees your right to freedom of peaceful assembly and association. This is a cornerstone of uppercase Human Rights. In practice, however, it is likely that you need to acquire a permit to hold a public rally. The personal experience of this right – that is, its lowercase version – depends on the terms that the state places on these permit. In the US, local authorities regulate protests in the interests of traffic flow, pedestrian access, safety, and fairness. They may also require organizers to purchase insurance and perhaps reimburse for security. The terms of the permit, and thus whether an assembly is lawful or not, are decided by the government.

The language of law and lawfulness is seductive. It promises a well-ordered world in which formal rights are defended by formal institutions. But The Clash knew well that the law comes from the state and its most natural application is by the agents of the state in pursuit of the goals of the state. It is not about protecting the little guy.

The allure of law is strong in liberal internationalism and faithful compliance with international law is often seen as a path to good governance. Senator Cory Booker and law scholar Oona Hathaway recently criticized Secretary of State Rex Tillerson for suggesting that US troops might remain in Syria after its fight with ISIS is over. Military occupation violates international law when it is not justified as self-defense and if the US violates the UN Charter in this way it would “undermine America’s hard-earned global leadership as a champion of law-bound international action, perhaps irreparably.”[1]

The Clash tell a little of what this law-bound global leadership looks like to people in Cuba, Nicaragua, and Chile. In Washington Bullets Joe Strummer sings

Oh! mama, mama look there!

Your children are playing in that street again

Don’t you know what happened down there?

A youth of fourteen got shot down there

The kokane guns of jamdown town

The killing clowns, the blood money men

Are shooting those Washington bullets again

In the lowercase version, the lived-experience of human rights is undermined rather than protected by American military activities. Personal safety requires that people find a way to avoid getting hit by all those Washington bullets. Chinese, British, and Russian bullets are no better. Human welfare – and human rights – are threatened by the military adventures of powerful governments, regardless of whether they aim to prop up or topple local authority.

To be sure, the official institutions of Human Rights can be useful to people engaged in struggles against their state. Law and legal institutions are welcome tools for victims looking for a way to fight back or get redress for wrongs. Prisoners at Guantanamo, Evin, Wormwood Scrubs, and elsewhere search for legal paths to improve their conditions and they are sometimes successful.

But we should be honest about which way the law is looking. It encodes the interests of the state and is interpreted and applied in a manner that reflects them. This is not a novel idea – Hannah Arendt wrote Eichmann in Jerusalem to explore what happens when bad policies are legalized by the state and Judith Shklar wrote Legalism on courts’ power to decide political questions.

Today, Trump’s indifference to international human rights provokes a liberal backlash premised on nostalgia for a past that never was. The Clash might say bollocks to both of camps. Their songs offer a third way on human rights. Neither the legalism of international treaties nor the laissez faire of global capital. It is a view that they learned through experience in London in the 1970s, as squatters, buskers, and Carnivale-goers, in the face of racist gangs, police violence, and the bureaucracy of the dole.

There may be a tradeoff between Human Rights and human rights. The first empowers governments to define what people can and can’t do. The second sees state power as the source of the problem itself. To resolve the tension, The Clash offer a practical suggestion in the song Working for the Clampdown.

Kick over the walls

Cause governments to fall

How can you refuse it?

Let fury have the hour, anger can be power

Do you know that you can use it?

 

And in White Riot, they follow up to ask “Are you taking over or are you taking orders?”

For The Clash, human rights exists in the fight between the state and a person. It is personal and it is political – it comes alive in the desire of a person to do what the government does not want them do to. In that fight, the laws are likely on the side of the state and investing more power in the state and its institutions may be a backward step.

The Clash tells stories from below, of regular people who find themselves targeted by powerful institutions, and remind us to listen. Their objective – and the central premise of punk rock as a political movement – is to create space in which people can live outside the lines that are drawn for them by others and not be beaten up, jailed, disappeared or killed for it. To get there, they chart a refreshingly clear philosophy on the relationship between law and politics. On International Clash Day, turn up the volume and remember to let fury have the hour.

[1] NYT Jan 23 2018.

Ian Hurd is associate professor of political science at Northwestern University. He is the author of After Anarchy (Princeton) and International Organizations and How to Do things with International Law.

Ian Hurd: Good medicine for bad politics? Rethinking the international rule of law

When an international crisis erupts it is common to hear experts say that the situation will be improved if all parties stick to international law. From the Syrian war to Burma’s massacres to Guantanamo torture, faithful compliance with the law of nations is often prescribed as the best way forward. I wrote this book because I was curious about the idea that international law is good medicine for bad policies, a kind of non-political, universal good. International law often appears like a magical machine that takes in hot disagreements about how things should unfold and produces cool solutions that serve the interests of everyone. How to do Things with International Law examines this idea with a degree of skepticism, holds it up against some empirical cases, and suggests more realistic ways of thinking about the dynamics between international politics and international law.

The standard model of international law is built on two components, one more institutional and the other more normative. On the one hand, international law is seen as providing a framework for the coexistence for governments. Laws on diplomatic immunity, non-interference across borders, and the peaceful settlement of disputes help organize inter-governmental relations and give a kind of civility to world politics. On this view, following the rules makes it possible for diplomacy and negotiation to happen. The second, normative strand adds substantive values such as a commitment to human rights, to the protection of refugees, and against nuclear proliferation. Here, following the rules is said to be important because it enhances human welfare and the other goals encoded by the law. The two strands agree that compliance with international rules is beneficial and that violations of the rules lead to international disorder at best—and violence and chaos at worst.

This represents what I see as a conventional view of the international rule of law. It is a commitment to the idea that governments should follow their legal obligations and that when they do the world is a better place. It is an ideology, in the sense noted by Shirley Scott.

My book explores the premise and the power of this ideology and its influence in global politics. I look at the presumptions that it rests on and the practices it makes possible. I see the power of international law on display in the ways that governments and others make use of legal resources and categories to understand, justify, and act in the world. This is a social power, built on the idea of the rule of law and employed by governments in the service of a wide array of goals.

The book does not aim to answer questions about why states comply with or flout the law. Instead, it asks what they do with the law – and why, and with what effects. As a methodology, this points toward looking for where international law appears in the strategies of governments. On substance, it suggests a close connection between international law and political power. International law has influence in certain situations, when powerful actors find it useful. For instance, the US gave legal arguments for why Russia’s annexation of Crimea was unlawful and therefore should not be accepted by other countries. In response, Russia gave legal arguments to sustain its behavior. Legal experts may well conclude that one side had the stronger legal argument; disagreements about interpretation and application are central to legal practices. But my curiosity comes from seeing both sides use legal arguments as political resources in defense of their preferred outcome.

The use of law to legitimize state policy is a central feature of contemporary international politics. And yet to some, the instrumental use of law is said to reveal the inappropriate politicization of law, contradicting their idea of the rule of law itself. I see it the other way around: the international rule of law is the instrumental use of law. The legalization of international politics gives legal rationalizations their political weight. Their political weight makes them important sites of contestation. In a legalized world, it makes sense for actors to contest their actions in the language of law. To borrow Helen Kinsella’s example, the line between civilian and combatant in a war zone distinguishes those who should be killed from those who should not; the line is defined by the Geneva Conventions and other legal instruments and it is brought to life (and death) as governments interpret it in relation to those whom they wish to kill. Legal categories have political valence and this makes them important resources of power and thus worth fighting over. How else to make sense of the energy that governments put into shaping rules that reflect their interests?

Recognizing the close connection between international and power politics opens a way to considering the political productivity of international law. Law is not only regulative and constraining; it is also empowering and permissive. By defining some acts as unlawful and others as lawful, it makes the former harder for governments to do (or more expensive) and the latter easier. The availability of a legal justification smoothes the way for action just as much as its unavailability impedes it. If we look at one side of this balance, we see for instance that the UN Charter outlaws the use of force by governments and limits their autonomy with respect to going to war. On the other side the Charter also authorizes them to go to war as needed for ‘self-defense’ against an armed attack. In ‘self-defense,’ the Charter creates a new legal resource with the capacity to differentiate between a lawful and an unlawful war. This is a powerful tool for governments, a means for legalizing their recourse to force, and they have used it with enthusiasm since 1945. The Charter produced something that previously didn’t exist and as a consequence changed how governments go to war, how they justify their wars, and how they think about their security in relation to external threats.

With the political productivity of international law in mind, the book shows that international law is inseparable from politics and thus from power. For powerful governments, international law puts an instrument in their tool-kit as they seek to influence what happens in the world, and for the less powerful it is a tool that they might also seek to take up when they can but may equally be a means of control whose influence they seek to escape.

There isn’t much evidence to back up the presumption that international law steers global affairs naturally toward better outcomes. How to Do Things With International Law is neither a celebration of international law nor an indictment. It offers instead a look into its practical politics, a messy world of power politics that is as full of interpretation, ambiguity, violence and contestation as any other corner of social life.

HurdIan Hurd is associate professor of political science at Northwestern University. He is the author of After Anarchy and How to Do Things with International Law.