614791

research-article2015

CSI0010.1177/0011392115614791Current SociologyGonalves and Costa

CS

Article

The global constitutionalization

of human rights: Overcoming
contemporary injustices or
juridifying old asymmetries?

Current Sociology Monograph

2016, Vol. 64(2) 311331
The Author(s) 2015
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DOI: 10.1177/0011392115614791
csi.sagepub.com

Guilherme Leite Gonalves

Rio de Janeiro State University, Brazil

Srgio Costa

Freie Universitt Berlin, Germany

Abstract
Recent decades are marked by an impressive expansion of actors and legal structures
intended to globally extend a certain Western catalog of human rights. Recently, too,
legal scholars have developed concepts to justify normatively the expansion of human
rights (e.g. Habermas, Walker, Koskenniemi). This article reviews recent legal literature
on global constitutionalization of human rights to reveal its blind spots, at two levels:
i) the reaffirmation of European precedency for establishing the sources of human
rights and ii) a lack of sociological tools for describing interpenetrations between law,
power and social inequalities. In order to empirically illustrate these objections, the
article analyses the recent global expansion of human rights of minorities, using two
examples: cases treated by the Inter-American Court of Human Rights and the Brazilian
legalization of ancestral territories of afro-descendants. Finally, the article argues for a
decentered perspective that (at the local level) connects human rights with concrete
claims for justice.
Keywords
Global constitutionalism, human rights, postcolonial societies, power asymmetries

Corresponding author:
Guilherme Leite Gonalves, Rio de Janeiro State University, Rua So Francisco Xavier, 524 Maracan, Rio
de Janeiro, 20550-900, Brazil.
Email: guilherme.leite@uerj.br

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Introduction
The traditional model of international law, harking back many centuries to the Treaty of
Westphalia, is no longer capable of facing the challenges of conflict regulation in our
contemporary world. Such a model is based on competing national states as subjects of
international order,1 thus excluding multiple actors and processes that do not fall under
the direct responsibility of national states despite taking part in international disputes.
These actors include multilateral agencies, government organizations, multinational
companies, and other transnational private actors, such as religious or sportive institutions (Fischer-Lescano and Teubner, 2006).
Equally widespread is the perception that the traditional model of international law
fails to provide solutions based on international cooperation rather than on competition.
This is evident, for instance, in the efforts to enforce the observance of human rights and
to solve large-scale environmental problems.
Despite this common diagnosis, the existing proposals to combat the deficiencies of
international law differ profoundly. This article pays special attention to one particular
approach within the discussion on international law, namely, global constitutionalism.
This program began to take shape during the late 1990s, following NATOs military
intervention in Kosovo. Despite lacking the required mandate from the United Nations,
this intervention was considered inevitable and successful by many scholars, exposing
the contradictions between the traditional model of international law and the opportunity
for the West especially Europe to effectively contribute to world peace and globally
uphold human rights.
The theoretical-philosophical foundations of global constitutionalism overall are
heavily influenced by neo-Kantianism, as exemplified by the late works of German
social thinker Jrgen Habermas (Mller, 2012; Schwbel, 2011). Accordingly, legal
scholars and political scientists in Western Europe and North America developed a set of
justifications and proposals that, though internally heterogeneous, as a whole constituted
a rigorous reform program for international law, especially for the enforcement and guarantee of human rights in all societies worldwide.
Global constitutionalism indeed has palpable political merits. However, as developed
until now, it exhibits severe theoretical and practical problems, particularly in two areas:
the constitution of its sources and the inadequate evaluation of its social impact. In the
case of the former, by failing to take into account the historical imbalances in the epistemic formation of human rights, global constitutionalism risks reinforcing and contributing to the political asymmetries between the different world regions. In terms of social
impact, global constitutionalism lacks a sociological analysis of power to understand
positive law not as a univocal instrument of social conduct regulation, but as a signifier
whose decodification and interpretation are always mediated through existing power and
material inequalities.
In this article we develop these two critical arguments along five steps. The first section summarizes the central approaches to global constitutionalism and the cardinal blind
spots they present. We then proceed to discuss a specific case in which the global juridification of human rights has reached a relatively advanced stage, namely, the cultural
rights of minorities. In the fourth section, we present two particular cases where the
rights of minorities have been implemented: two decisions of the Inter-American Court

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of Human Rights regarding the Maroon peoples of Suriname and the legal recognition of
ancestral territories of Afro-descendants (quilombos) in Brazil. Though these cases are
rather specific, they illustrate the deficiencies of global constitutionalism on the two
aforementioned levels: the asymmetry in the creation of the sources of law and the controversial impacts of its implementation. Finally, the conclusion reconstructs the central
thesis based on a combination of the specific arguments developed in each of the articles
individual sections.

Global constitutionalization of human rights

Despite representing diverse standpoints, proponents of global constitutionalism as a
whole explicitly distance themselves from at least four influential positions in the political
and academic debates on the global expansion of human rights. The first of these positions, so-called realist, is largely substantiated from Carl Schmitts reflections on international law. Realists are skeptical about overcoming existing power politics and believe
the emergence of rights without war is impossible, given that war is a legitimate act in the
relations between national states (see Odysseos and Petito, 2006, among others).
The second position is embodied by the Pax Americana, the security doctrine adopted
by the United States following the invasion of Iraq and the defeat of Saddam Hussein in
2003. Both realists and defenders of the Pax Americana consider international law powerless and ineffectual. Thus, according to the Pax Americana, the supposed universalization of human rights must be guaranteed by the superpower, whose history of
unconditional adhesion to liberty values would authorize it and express its vocation to be
a global diffuser of human rights. Global constitutionalists oppose the American hegemony. They claim that the American strategy did not aim for a legitimate reform of international law; instead, the hegemonic superpower holds itself above the legal constrictions
(Habermas, 2004: 115; Walker, 2007: 220221).
The third position supports a global governance, guaranteed by the cooperation of
actors in various fields and based on informal processes that are not included in the body
of international law, but are supposedly universalized and legitimized through the efficiency of their results. Global constitutionalists believe that this kind of appeal to nonformalization and output-legitimization of international interventions has led to new
imbalances that favor the most powerful actors and national states in the world order. As
opposed to informal global governance, they defend a culture of formalism to face and
overcome the culture of dynamism that invariably leads to the fragmentation of international law and the obliteration of its normative force (Koskenniemi, 2004: 500501;
2006: 13).
Finally, the fourth position is represented by global administrative law and maintains
that different forms of intervention and regulation in the international arena must be
converted into a uniform specialized legal framework to direct and limit the actions of
governments, even in domestic matters (see, among others, Kingsbury etal., 2004).
Although global constitutionalism and global administrative law share a common
ground, that is, a liberal legal model, they differ in scope and depth. Whereas global
constitutionalism is interested in large-scale affairs such as world peace, the unrestricted
respect of human rights, and the philosophical-theoretical justification of its positions,

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global administrative law searches for practical solutions to procedures of formalization

in order to produce norms with a high grade of accountability (Rached, 2014).
The quest for the constitutionalization of international law follows the ideal of the
democratic constitutional state, even though the existing conditions for a democratic
legitimization of law in the national sphere represent the final objective and not the starting point. Accordingly, global constitutionalists recognize that world society is lacking a
political culture with the shared ethical-political dimension required for the democratic
will-formation and found at the national level (Habermas, 1998: 163).2 Nevertheless,
global constitutionalism maintains that the very process of constitutionalizing international law will create an international political community capable of integrating diverse
citizens and peoples as subjects of rights (Fassbender, 2009: 7174). In this vision of a
future regulated by cosmopolitan law, the international community would not need to use
power, violence, and war to pursue particular interests, since all interests would be subjected to the regulation of laws that are universally applicable (Habermas, 2004: 122
123; Koskenniemi, 2006: 3536; Walker, 2007: 228). The global constitutionalists admit
that this scenario is somewhat idealist, but nevertheless an idealism without illusions:
The Kantian project of constitutionalizing international law is, in truth, nourished by an
idealism without illusions. The form of modern law, as such, is constituted by an unequivocal
moral core that is perceived in the long-term as a gentle civilizer (Koskenniemi), as a gently
civilizing force in which the legal medium will be always applied as a power that is shaped
by the constitution. (Habermas, 2004: 105)

Therefore, according to global constitutionalism, the politics for the global implementation of human rights play a central role in transitioning from an international order based
on the competition between actors that instrumentalize international law to a world society regulated by a cosmopolitan law. By gathering the diverse claims of the world civil
society (Weltbrgergesellschaft), such politics would represent a mere anticipation of
the cosmopolitan future that this politics aims to promote (Habermas, 2001: 35).
In modern history, the origin of this normative ideal that aims to establish a cosmopolitan law as a politically constituted world society is attributed to the French and
American Revolutions, as well as to the model of liberal democracy inspired by both
(Habermas, 2004: 126127; see also Koskenniemi, 2006: 3135). The preference for
Western democracies as models for guiding the constitutionalization of international
relations is based on the belief that Western societies have a chronological antecedence
in the experience of modernity. Thus, other regions of the world today supposedly face
the problems of secularization and individualization that the West already confronted
during the 18th and 19th centuries: Today, other existing cultures and religions in the
world are confronted with the challenges of modernity in a similar way Europe did when
it invented human rights and the democratic constitutional state (Habermas, 1998: 181).3
The anteriority and the role as model Western societies play in the development of
modern political institutions do not necessarily imply, as proponent of global constitutionalism Walker (2007: 224225) contends, that the diversity of cultures and moral expectations inherent to a world society is completely ignored. He acknowledges the difficulties
posed by this framework as well as the problematic nature of using constitutional design

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from Europe and North America as a normative ideal for cosmopolitanism. For Walker,
these difficulties are reflected in the principal dilemmas of the project of global constitutionalization: the reconciliation between a moral universal community (binding all individuals into reciprocal obligations on the basis of a common humanitys notion) and the
recognition of cultural multiplicity, such as the creation of juridical institutions and social
values committed to this reconciliation (Walker, 2007: 225226).
Although Walker recognizes that only politics can answer whether these dilemmas
will be overcome, he maintains that the path to their solutions is set by the very normative notion of cosmopolitanism, which, as such, cannot allow for the validity of only one
single culture. The question is whether international law, constructed by and for Western
dominance, is capable of overcoming its own limitations (2007: 223).4 Walker concludes
that it would be necessary to develop a global constitutionalist program based on the
genuine universalism of cosmopolitan striving, one that is open to diversity, as opposed
to a false universalism instrumentalized by particular interests (2007: 233). He argues
that cosmopolitan law must be thought of as the optimal equilibrium between moral
universal community and cultural relativism by linking existing cultural multiplicity and
diverse moral expectations with the premise of respecting human rights. According to
Walker, the human rights initiative without the acknowledgment of cultural diversity
would be on a par with the moral discourse of the Pax Americana.
The openness of global constitutionalism to multicultural issues has been developed
as a response to the criticisms against the modern constitutionalism that emerged with
the advent of a post-national constellation (Walker, 2002: 319ff.). Among other criticisms, modern constitutionalism was charged with having a normative bias that granted
certain values, moral expectations, and cultures a privileged position, enabling the dominance of one culture over the others. Walker acknowledges that this is an aspect constitutionalism has been having difficulties with. Additionally, Walker bases his claims on
multiculturalist theory in order to show that this issue could be solved:
it is possible to forge an inter-cultural dialogue in which the culturally diverse citizens of
contemporary societies negotiate agreements on their forms of association over time in
accordance with three conventions of mutual recognition, consent and cultural continuity.
(Walker, 2002: 331, quoting James Tully)

Although Walker (2002: 354) considers it counterintuitive to believe in the possibility of

negotiation between different frameworks within a structure traditionally dominated by
one single culture, he uses Canada and Ireland as cases to show that it could be gradually
built. Nevertheless, he sustains that effectively overcoming the normative bias of constitutionalism requires a reconceptualization of the constitutional field with a more inclusive scope. State constitutionalism would have to be connected to its post-national
counterpart, thereby fostering global constitutional pluralism in which different claims to
authority and legitimacy could be articulated at various levels through the normative
discourse of constitutional law (2002: 336339). When multiculturalism serves as the
response to one of the dilemmas of constitutionalism in a post-national constellation, it
becomes an intrinsic aspect of global constitutionalism. Kymlicka (2007) described this
phenomenon as the global diffusion of multiculturalism.

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However, the attention to cultural diversity and the terms advocated by Walker and
detailed by Kymlicka which will be discussed further below do not expunge the
existing imperialist traces in the constitutionalization of international law. It would be
naive to believe that imperialism could be avoided simply by including other cultures
in a program whose episteme, justification, and institutional model of inspiration are
intrinsically imperialistic, to the extent that this program does not take into consideration
the historical and contemporary disputes and contradictions in the development of human
rights. This European narrative is essentially constructed in opposition to the US global
political hegemony. It is a narrative that does not reflect the experience and knowledge
spanning at least 500 years of struggles in various regions of the world against the
maladies of colonialism, slavery, the Cold War, and the humanitarian interventions
spearheaded by Europeans and later by US Americans.5 In this context, Barretos (2012)
critical stance against hegemonic discourses on human rights represents a poignant and
fitting reaction to the general formulations of global constitutionalism:
By framing human rights in conceptions of history based exclusively in European milestones,
the theory of rights remains within a Eurocentric horizon of understanding. Having been born
out of the experiences of bourgeois revolution, European theories deal mainly with relations
between state and society, or between governments and individuals, putting aside the
problematic of interactions between empires and colonies. (Barreto, 2012: 4)

By assuming the historical precedence of Europe in creating a rule of law and of human
rights, global constitutionalism is clearly founded on a nationalist interpretation of modern
history. This interpretation is heavily contested by the paradigm of global history, which
acknowledges the simultaneous nexus between the material and social modernization of
Europe and of former European colonies. Hence, other regions of the world are not
undergoing European modernization stages with delay. In their own ways, these regions
have faced the challenges of the modern condition at the same time and at the same pace
as European societies, that is, in the realm of entangled modern history (Conrad and
Randeria, 2002). Therefore, the claim of the monopoly of defending cosmopolitan law
by the global constitutionalists is a clear epistemic continuity of 18th-century European
thinking and its exclusivitys aim to the global definition of modernity (Chakrabarty,
2000).
In addition to its problematic sources, global constitutionalism commits a crucial
error in its sociological evaluation by believing that the existence of a global constitutional order per se would lead to a substantial change in the balance of world powers,
such that actors who currently rely on the politics of power accumulation or use violence
as a method for imposing their interests would be forced to bow to the normative and
regulatory constrictions of the cosmopolitan international law. Rather, on the level of
national states where the enforcement of positive law is much more effective than in
the presence of a global constitution without a world state the interpretation and
application of laws would not eliminate the established asymmetries; on the contrary,
they would reflect the existing power games.
This point is related to Greensteins classification of the different forms of power,
presented in a study of the South African transition to democracy:

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social power (access by individuals and groups to resources and control over their allocation),
institutional power (strategies employed by groups and institutions in exercising administrative
and legal authority), and discursive power (shaping social, political and cultural agendas
through contestations over meanings). (Greenstein, 2003: 1)

According to Greenstein, changes in the behavioral patterns of social actors are only
effective when accompanied by a joint shift of power relations on these three levels and
this only occurs if legal improvements are accompanied by social mobilizations which
reinforce law from the bottom (Greenstein, 2004). At this point, Greensteins observations concerning the expansion of political and social rights in South African transition
to democratization converge with different studies on activism for reinforcing human
and womens rights also in consolidated democracies, as the contributions compiled by
Armaline etal. (2011) show very well. Based on different case studies located in the
USA, these authors conclude:
it seems more prudent and empirically accurate to conceptualize the human rights enterprise
as democratization movement against structured, imposed hierarchies, where the struggle to
define and realize universal human rights practice might be better defined as a struggle between
more or less powerful groups and the mechanisms that ensure power and resources for the very
few. (2011: 253)

Ignoring this vast literature based on accurate empirical observations, supporters of

global constitutionalism claim that a world constitutional order would not even represent
a change at the level of legal authority. Instead, cosmopolitan international law, without
positive coercive force, would at best mean a shift of discursive power: Something like
a constitutional vocabulary is needed to articulate it [injustice] as a scandal insofar as it
violates the equal dignity and autonomy of human beings (Koskenniemi, 2006: 3536).
The lack of discussion and of alternatives to foster change in other dimensions of power
in world politics, such as social and institutional dimensions, reveals the constricting
limitations within the sociological analysis of global constitutionalism. Were it not for
the importance of the authors who support it, the ideas disseminated by global constitutionalism should be approached strictly in terms of their analytical range as political
platforms of a social movement that strives for a better future, yet fails to adequately
assess the political difficulties to achieve it.
Since global constitutionalists have not yet developed analytical instruments to
explore interactions between discursive power, social inequalities, and institutional
changes, they misinterpret the global expansion of certain discourses on justice, as if it
would automatically lead to power shifts within the legal and social spheres. They fail to
comprehend that discursive moves in favor of minorities and subaltern groups only
impact society as a whole if followed by a reduction of power asymmetries at the legal
and social levels.
In the next topics, we develop the aforementioned thesis related to the two problems
identified within the global constitutionalism project: the constitution of its sources
and the absence of a sociological analysis of power. These problems become visible
when the program of global constitutionalization of human rights expands from the
EuropeanNorth American axis into other regions of the world. Acknowledging and

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including the others comes forth above all in the cases of cultural rights expansion
and the introduction of a multicultural global constitutionalization of human rights.
Nevertheless, instead of providing solutions, this movement reinforces the persisting
problems in the aforementioned areas, as we will show. As the global constitutional
framework on human rights expands to other regions of the world without considering
the historical experiences or the role of law in local and international power relations,
the implementation of its measures in these regions leads to a reconfiguration of negotiation scenarios and inequalities, clashing with the juridical optimism and idealist
hopes of global constitutionalists.

The constitutionalization of human rights in Latin America

and the Caribbean: Dilemmas of liberal multiculturalism6
Human rights violation and protection in Latin America and the Caribbean generally
reflect the social, racial, ethnic, and gender hierarchies found in the region. Therefore,
while the rights of local elites are normally guaranteed, the poor, mostly of indigenous or
Afro-descendent origin, are confronted with systematic violations of their personal and
moral integrity. These inequalities are reflected in social indicators concerning access to
education, healthcare or security as well as in contact with the police, agents of the judiciary, and public sector employees (Human Rights Watch, 2015).
Over the past three decades, newly introduced constitutional reforms, legal measures,
and public policies of varied scope and character have been crucial in advancing the
global constitutionalization of human rights in Latin America. The adoption of these
measures was stimulated by international changes, particularly the strengthening of the
multicultural agenda of multilateral organizations and the expansion of political networks and transnational social movements that defend the rights of minority groups.
In this context, international organizations such as the World Bank and the International
Labor Organization (ILO) and bilateral cooperation agencies operating in Latin America
induce local governments to protect the cultural rights of indigenous peoples, Afrodescendants, and other groups considered culturally threatened. In the realm of international conventions and summit conferences, it is worth noting the impact of ILO Convention
169, the UN Conference against Racism held in Durban in 2001, and of the UN Declaration
on the Rights of Indigenous Peoples of 2007 (Briones, 2005; French, 2010).
On a regional level, the Inter-American Commission on Human Rights should be
highlighted. In the realm of the Inter-American Court on Human Rights and its internal
departments such as the Rapporteurship on the Rights of Indigenous Peoples, created
in 1990, and the Rapporteurship on the Rights of Afro-Descendants and against Racial
Discrimination, created in 2005 the Commission sought to guarantee the execution and
implementation of international agreements and conventions in its member countries
(Gngora-Mera, 2012; Olmos, 2010).
These conventions, resolutions, and instruments were created as most Latin American
and Caribbean countries experienced internal processes of redemocratization after
decades of military rule. In most cases, the new democratically elected governments
adopted the guarantees and rights established internationally, thus creating unprecedented domestic benefits for indigenous groups or descendants of ancestral or traditional

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populations. They involve, for example, property demarcation and the concession of
deeds, special public health programs, bilingual education, etc.
The importance of cultural rights in Latin America and the Caribbean is unquestionable, given the history of oppression, enslavement, dispossession, and forced assimilation
of indigenous peoples, Afro-descendants, and other minorities in the region. Nevertheless,
currently implemented laws and policies for the protection of cultural minorities contain
serious limitations. Following our general criticism of global constitutionalism presented
above, we emphasize these deficiencies at two levels: in the epistemic sources of contemporary policies and in their myopia for existing social and power inequalities.
Concerning their sources, these policies reproduce a congenital malformation
observed in the incorporation of cultural issues in the agenda of international organizations, that is, the exclusive orientation on concepts coined during the first wave of liberal multiculturalism (Kymlicka, 2007: 51).
For liberal multiculturalists, cultural differences do not have untouchable intrinsic
value. Cultural traditions and repertoires are only valued because they provide important
references for individual choices. For liberals, the maintenance of cultural diversity only
makes sense when individuals recognize themselves in the cultural repertoires and use
these repertoires to exercise their individual autonomy, based on their own judgments
and preferences (Kymlicka, 1995). According to liberal multiculturalists, cultural belonging provides individuals significant choices about how to conduct their lives, in the sense
that familiarity with a culture indicates the limits of what it is reasonable to desire.
Multilateral organizations and regulations have incorporated these general assumptions about cultural identity (Kymlicka, 2007) ignoring the severe criticism suffered
by liberal multiculturalism since the 1990s. Especially relevant are critical arguments
developed by postcolonial studies (see, for example, Bhabha, 1994; Gilroy, 2004) since
the concepts of contingent identification and difference developed in this realm challenge
liberal multiculturalism at a critical point: they question the existence of ontological
identities and their possibility of political representation. When ethnic minorities or any
other socio-cultural groups present themselves in the public sphere as an identity unit,
this is not the public presentation of something that previously exists at the societal level,
but a circumstantial and contingent political construction of differences. At another time,
this same group can articulate other differences, based on other discourses.
In the case of Latin America and the Caribbean, various authors (e.g. Bocarejo, 2014;
French, 2010; Walsh, 2009) convincingly show how indigenous and Afro-descendent
movements and identities that re-emerged in the 1990s can only be suitably interpreted
by considering the multiple interactions between these movements and the discourses
and actions of transnational networks of social movements, in addition to the presence of
international and multilateral agencies of cooperation and development. Even if the discourses of indigenous or Afro-Latin American movements emphasize a reference to the
authenticity of the identity constructions that they represent, their rise can only be seen
within a context of political opportunities in the national and transnational realm.
The objective of these studies is not to de-authorize the demands of these movements,
but to show that their legitimacy cannot be deduced from their degree of fidelity to an
authentic ancestral identity. To the contrary: these movements are legitimized by their
capacity to articulate contemporary claims for justice.

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Another risk implicit in the politics of the preservation of fixed cultural identities,
as proposed by liberal multiculturalism, is that of othering (Spivak, 1985). It involves
constructing the image of other cultures as the inverted representation of what is
described as ones own culture. Even when the intention is to recognize and respect
this other culture, the processes of othering lead to the creation of dichotomous constructions, in the realm of which the other condenses all that which the idealized us
is not. If the us is represented as rational, modern, and individual, the other is necessarily the opposite: ancestral, traditional, irrational, and collective. In this context, one
ignores the semantic and historic interdependencies necessarily existing between the
us and the other.
Beyond their problematic sources, cultural rights recently incorporated into several
constitutions in Latin America and the Caribbean seem to assume that cultural differences und rights have an isolated existence, exterior or prior to social and power relations. It is ignored that cultural differences are always enunciated from the particular
position of a group or individual in a local, national, and global structure of social and
political inequalities. Consequently, implemented cultural rights interact with existing
power asymmetries. This implies:
1. That the effectivity of minority rights depends on power negotiations with open
and contingent results. Contrary to expectations of global constitutionalists, who
prophesized an automatic empowerment of minorities after the introduction of
their legal protection, empirical studies demonstrate that the protective impact of
these measures depends on power correlations at the local level. In cases characterized by extreme asymmetries, in which minorities do not have access to social,
institutional, and discursive power, cultural rights remain innocuous. Legal
improvements only have positive impacts when minorities are already politically
articulated or supported by powerful brokers (NGOs, scientific communities,
etc.) and their claims do not directly confront the interests of more powerful
actors (Costa, 2012).
2. That cultural rights are used by potential holders functionally, according to
their concrete necessities. Different studies emphasize the temporal coincidence of the introduction of cultural rights and of structural readjustment policies according to the neoliberal agenda in Latin America and the Caribbean. In
a context marked by reduced state spending, cultural diversity programs constituted an exception, as they offered access to public resources not available to
other social policies. This structure of political opportunities enables population groups previously identified as poor peasants or urban workers to rearticulate themselves politically and emphasize their ethnicity in the public realm
(Briones, 2005). In these cases, multicultural rights create the very minorities
they are supposed to protect.
In order to elucidate our criticism of the constitutionalization of multicultural
rights in Latin America at these two levels the level of their epistemic sources and
the myopia to power relations we briefly present two empirical cases studied in
previous contributions.

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Rights of Maroons in Suriname and Afro-descendent

communities in Brazil
In our previous investigation (Costa and Gonalves, 2011), we analyzed four leading
cases of the Inter-American Court of Human Rights (I/A Court HR) in the context of the
rights of Afro-descendants. In all these cases, the State of Suriname was condemned for
violating the rights of persons belonging to one socio-cultural group: the Maroons.7 We
discuss two of these cases in order to illustrate the impact of global constitutionalization
of human rights in other cultures.
The first judgment analyzes an attack by the Army of Suriname on the village of
Pokigron on 31 December 1987, resulting in the murder of seven Maroons. The I/A
Court HR (1993) condemned the State of Suriname for the violation of the right to life.
To implement the reparations, the Court adopted a liberal-individual concept of human
rights without acknowledging the cultural particularities of the Maroon peoples.
The Courts decision rejected the argument that such a group would have an international juridical status as a result of the stipulation of the treaty from 1762, in which the
Dutch colonial power recognized the autonomy of the Maroons since they helped repress
the desertion of enslaved people. The judges sustained that a treaty of that nature was
deemed a violation of human dignity, since it was based on the sale of deserter slaves to
the Dutch (I/A Court HR, 1993: 14). Besides that, they assumed that all persons, in addition to being members of their own families and citizens of a State, also generally belong
to intermediate communities. In practice, the obligation to pay moral compensation does
not extend to such communities, nor to the State in which the victim participated (I/A
Court HR, 1993: 21). The Maroon victims were therefore granted the legal protection
given to any individual.
The sanctions applied consisted of indemnities for moral and material damages. In
relation to the moral damages, the judges concluded that it is clear that the victims suffered moral damages, for it is characteristic of human nature that anybody subjected to
the aggression and abuse described above will experience moral suffering (I/A Court
HR, 1993: 13). The Court utilized the notions of human pain and the principle of equity
to determine the value of the reparations (I/A Court HR, 1993: 2223). Regarding the
material damages, the standard used was the income that the victims would have earned
throughout their working life had they not been killed (I/A Court HR, 1993: 2223). In
sum, the moral damage was defined using equitable criteria, whereas the material damage was calculated according to individual economic potential.
By treating the victims equally as any other Surinamese in terms of moral and physical suffering, the Courts argumentation apparently dilutes social asymmetries that are
nevertheless reconfirmed when measuring the reparations for material damage. The reparation values equivalent to the remaining working life of each victim amounted to low
sums (between US$19,986 and US$55,991) and the indemnity amount granted to the
only teenage victim (who had no labor experience to speak of) was calculated according
to the earnings of construction workers (I/A Court HR, 1993: 23).
The Courts judgment also stipulated that the payments must be made into trust funds,
specifically creating a foundation to manage the reparation sums received by the
Maroons. This measure was justified with a view to providing the beneficiaries with the

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opportunity of obtaining the best returns for the sums received in reparation (I/A Court
HR, 1993: 2728). This kind of tutelary action reinforces the social hierarchies insofar as
a particular group is deemed incapable of autonomously organizing itself according to its
own interests.
In the second case, the I/A Court HR condemned the State of Suriname for deploying
its army against a Maroon village of the Moiwanna community on 29 November 1986.
The attack resulted in the murder of 39 community members and the destruction of their
living space, forcing the survivors to flee (I/A Court HR, 2005: 32). In this case, the
Court adopted a liberal-multicultural concept of human rights, deeming the State of
Surinames actions a violation of the collective rights of the Maroons to cultural identity.
According to the Courts principal argument, the continuity of the traditional community
life would be curtailed if those responsible were not convicted. After all, (1) the States
impunity from punishment had caused humiliation in the community and disseminated
the feeling that the ancestral spirits were not at rest; (2) the failure to identify the victims
prevented funeral rituals and caused spiritual illnesses; and (3) the dispersion of the
community members disrupted the relationship between traditional land and community
(I/A Court HR, 2005: 7576). This change in the Courts orientation implicated the
legalization of the 1762 treaty between the Maroons and the Dutch colonial powers.
The multicultural concepts adopted by the Court in this case exhibit an essentialist
understanding of cultural identity. The Courts primary evidence stemmed from the testimony of anthropologist Kenneth M Bilby, who represented the Maroons as an ahistorical and monolithic community whose existence is presumed to have remained unchanged
for the last three centuries (I/A Court HR, 2005: 26).
Therefore, the protection of collective rights was derived from the representation of the
Maroons as a mystical people and predetermined by supernatural beliefs, that is, without
a rational basis. The judges maintained that all of the community members expressed
a fear of avenging spirits and that they could only live in Moiwana Village again if their
traditional lands first were purified (I/A Court HR, 2005: 49). Judge Canado Trindades
verdict characterizes the Maroon people as an ancient society of noble savages. The judge
used the mystical beliefs of the Maroons to regard the massacre perpetrated against them
in a particular, unique way (I/A Court HR, 2005: separate opinion, p. 10). This attributed
peculiarity served as the basis for specialized legal protection, because the degree of
humanization of a society is measured by the quality of taking care of those who suffer or
those whose handicap excludes the possibility of having a life like the others (I/A Court
HR, 2005: separate opinion, p. 10). Canado Trindades verdict demonstrates the dangers
of paternalism when using cultural recognition as a condition for bestowing collective
rights. This is clearly a method of othering, as described above.
In fact, this can even result in a loss of rights. Regarding the indemnification, the I/A
Court HR ruled that those harmed were not individuals but members of the Maroon community. The lump sum paid to the victims in compensation for material damages
amounted to US$3000 (I/A Court HR, 2005: 73) a laughable amount, more so because
it should cover everything the community failed to earn because of the massacre. The
same is true of the reparations for moral damages. Each victim received US$10,000 (I/A
Court HR, 2005: 76), a lesser amount than in the first case, where concepts of multiculturalism did not play a role in the Courts decision.

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In this last judgment, human rights were considered an instrument of defense for
pre-existent and otherwise completely vulnerable cultures. The Court ascribed the
inflicted community members an identity that has persisted for over 300 years, deeming them incapable of addressing practical issues. Hence, the Court maintained the
same idea as in the previous case, assigning to third parties the task of managing the
amounts received for material and moral damages (I/A Court HR, 2007: 5859). After
embracing the concept of multiculturalism, however, the judges changed the nomenclature used in the first case. They established a developmental fund run by one representative of the victims, one of the state, and a third nominated by both. This
committee was to ensure the preservation of the Maroons traditional way of life (I/A
Court HR, 2007: 5859).
The second case we present relates to the rights of Afro-descendants in Brazil. The
Brazilian Constitution of 1988 was promulgated amid the political euphoria triggered by
democratization, after 21 years of civil-military dictatorship (19641985). Accordingly,
the constitutional text is highly progressive and open to the extension of political, social,
and cultural rights. Among the many guarantees established, the Constitution defines in
Article 68 of the Temporary Constitutional Provisions Act: Final ownership shall be
recognized for the remaining members of the ancient runaway slave communities
[quilombo in Brazilian Portuguese] who are occupying their lands and the state shall
grant them the respective title deeds.
According to Arrutis (2000: 103ff.) detailed reconstruction, the category quilombo
used in the constitutional text is subservient to repressive legislation of colonial origin
that to be effective made itself generic and exterior to those it addresses, relates to a historic social formation that in principle disappeared with slavery and which was characterized exactly because of a quest to be invisible before the State.
At the time of the enactment of the Brazilian Constitution in 1988, no groups
demanded to be recognized as remnants of quilombo communities. There was only an
incipient movement among rural black communities in the states of Par and
Maranho. According to Arruti, two parallel movements explain the inclusion of
Article 68 in the Constitution of 1988. On the one hand, rural workers movements
and government agencies identified the existence of irregular forms of rural land possession, including lands acquired or occupied by former slaves and on which their
descendants continued to live. On the other hand, the quilombos occupied (and continue to occupy) a privileged place in the political repertoire of the black movement
in Brazil, as they symbolize resistance to exploitation and slavery. It is, therefore, the
junction between the diffuse need to regularize land ownership and the influence of
the black movement that explains the reference to the remanescentes de quilombos
in the 1988 Constitution.
In 2003, a presidential decree established a definitive process to regularize the lands
of the remaining members of quilombo communities. According to this decree, the
recognition of the communities is established by self-identification, that is, the beneficiaries must identify themselves as quilombo descendants. The decree also defines that
the land deeds to the quilombos must not be placed in the name of individuals but in that
of the association representing the community in question. In the decree, as observed by
Arruti (2009: 85), the land assumes the connotation of an ancestral territory:

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it includes not only the land directly occupied at the specific time the deed is issued, but all
of the spaces that are part of its uses, customs and traditions and/or that have the environmental
resources needed for their maintenance and to the historic reminiscences that allow perpetuating
the memory.

In 2004, the federal government created the program Brazil Quilombola in order to
articulate the activities of 23 ministries and federal agencies related to remaining
quilombo communities (SEPPIR, 2005). According to the program, Brazil had 3524
quilombo communities that are potential targets of the programs activities, whose main
objectives are the guarantee of access to land; healthcare and education actions; construction of residences, electrification; environmental recuperation; incentives to local
development; complete provision of social programs to the quilombo families, such as
the Family Grant program; and measures for preservation and promotion of the quilombos cultural manifestations.
In parallel with the constitutional embedment and the implementation of concrete
policies, opposition to the recognition of quilombos has been growing steadily. Since the
early 2000s, conservative media have tried to delegitimize claims of quilombo communities, as a report published by leading magazine Veja (2010) with the suggestive title The
hurly-burly of opportunist anthropology paradigmatically demonstrates:
According to current laws, a community is defined by two things in order to be considered
indigenous or quilombo: a declaration by its members and an anthropological report. The majority
of these reports are produced without a rigorous scientific base and with a clear ideological
content of a left that regardless insists on abolishing capitalism, freezing lands for production.

At the institutional level, the conservative party PFL (today DEM), narrowly connected with the interests of the influential agribusiness lobby, questioned before the
Supreme Federal Court the constitutionality of the abovementioned presidential decree
of 2003. In 2012, the rapporteur accepted the thesis of unconstitutionality. However, as
of September 2015, the Court has not made a final decision in the case. By that time, only
243 quilombo communities or about 7% of all potential beneficiaries had obtained a
regular land title (Terras Quilombolas, 2015).
The constitutional recognition of quilombo communities and their territories offers
fertile material to study the ambivalences presented by concrete processes of constitutionalization of cultural rights, particularly from the perspective of political negotiations
for their implementation, as well as when reconstructed through their local impacts. As
multiculturalism entered the international agenda, in Brazil, corresponding laws were
introduced and subsequently reformulated in 2003, adapting to the criteria of ILO
Convention 169. First, they define a quilombo as a community with a territorialized and
fixed identity that had remained unchanged over the centuries. However, as our brief
reconstruction shows, quilombo is a political category whose meaning is attributed not
by past traditions but by contemporary feasibility to frame general claims for justice
(Canessa, 2007). In a context of brutal land concentration, groups previously identified
as landless rural workers or squatters rediscovered themselves as remaining members of
quilombo communities, using the new legal opportunities to obtain a land title. This

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identity reconfiguration, in part supported by anthropologists, religious agents, and

activists from the emerging movement of quilombos, evidences the political and contingent character of cultural identities.
Second, the case of quilombo law in Brazil sheds light over an aspect usually forgotten by global constitutionalists, that is, the relationship between constitutional rights and
existing political asymmetries. In order to be effectively implemented, a constitutional
article depends on an adequate conjunction of forces within the executive, the parliament, the judiciary, and also social actors able to pressure for law enforcement. As soon
as Brazilian landowners and the agribusiness entrepreneurs realized that the quilombo
law could limit their social power, they successfully employed their discursive and institutional influence to hinder the issue of new quilombo titles.

Conclusions
Global constitutionalism believes in the global expansion of the constitutionalization
experience of European national states as a feasible way to reinforce the global validity
of human rights. Its main authors claim that their project is not imperialist, as it would
rather anticipate a future cosmopolitan order and exert a self-limited influence once
aware of the risks of hegemonic politics of power. Additionally, these authors maintain
that the peril of cultural imperialism could be avoided by the procedural character of the
constitutionalization agenda and by its aim to incorporate the cultural diversity inherent
in world society. They believe that the attribution of a normative meaning to constitutionalization does not precede but rather is concomitant with its global expansion, thus
enabling the inclusion of a vast cultural repertoire.
Despite the effort of global constitutionalists to overcome Eurocentrism and the colonial and imperialist bias implicated in international law, the constitutionalization of
human rights seems insufficiently equipped with measures against the reproduction of
asymmetries between different regions of the world. Essentially, global constitutionalists
use a repertoire of constitutional experiences as a source of reference that, as Barretos
(2012) work shows, consists of conflicts between individuals and states, and not histories
of resistance against colonial dominance, even though the latter comprise the most striking feature of world society.
The limited range of experiences used as precedents in the theoretical and institutional repertoire of global constitutionalism has been made evident by the global
propagation of liberal multiculturalism, as discussed above. The concept of culture
and cultural identity that guides liberal multiculturalism also propagates an ex ante
distinction between a Western us and an other, where the latter is established as the
generalized opposite of this us that, in turn, is also idealized as homogeneous. Hence,
the process of juridification of multicultural rights led by international organizations, such as the ILO and the corresponding policies adopted tend to stereotype
minorities as pre-modern, primitive, noble savages. Ironically, these minorities create
the very minorities they try to protect. As demonstrated by the I/A Court HR ruling on
the Maroons, the exoticization of the non-Western other implicit in the global expansion of liberal multiculturalism results in political and material disadvantages for
minorities.

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In terms of sociological evaluation of the possibilities of success, global constitutionalism reifies discursive power of international law to the extent that it believes that the
law can operate outside and above the existing asymmetrical power relations, equalizing
them. We have shown that even the positive law of national states has a very limited
ability to level the inequalities on three highlighted spheres of power: social, institutional, and discursive. Global constitutionalism relies on the discursive force of the normative appeal in the human rights rhetoric, yet fails to offer any methods to act against
institutional and social asymmetries. The regularization of quilombo lands demonstrates
that new rights operate on the basis of existing power structures and are only effective
when the interests of the potential beneficiaries can be imposed upon the resistance of the
affected power holders.
The quilombo case also points to a structural nexus between human rights and social
inequality that is not properly addressed by global constitutionalism. Ultimately, the
local impact of newly constitutionalized rights did not have the effect conceived by liberal multiculturalism. On the contrary, in a context marked by historical struggles for
land and the lack of social rights, dispossessed land workers reidentify themselves as
Afro-descendants.
The limitations of global constitutionalism presented in this article do not imply a
repudiation of its objectives. Rather, in view of its many merits, we seek to point out
some of the programs blind spots in order to foster a discussion of possible
solutions.
Regarding their sources, it seems critical for a program that emphasizes the global
character of contemporary problems not to be methodologically provincial in its repertory
of action.8 The modern struggle for (human) rights is not an exclusive prerogative of
European history; it is part of the entangled history of modernity in several regions of
the world. The program of global constitutionalism can offer legal and institutional
solutions to the plurality of conflicts and human right violations in world society, but
only as long as it incorporates different narratives and constitutional practices linked
not only to relations between individuals and states, but also between colonial powers
and native inhabitants, hegemonic ethnicities and the dominated, sexuality majorities
and minorities, as well as world civil society and multiple subaltern populations. The
cases discussed here show that a process of global constitutionalization of minorities
rights is already in place. However, this constitutionalization disregards the local
injunctions and experiences of coexistence with diversity.
Global constitutionalism must produce a realistic assessment of laws deployment in
the spaces of dispute for its implementation and interpretation. The cases analyzed in this
article demonstrate that the law does not operate as a computer program, shaping social
relations according to a normative appeal attributed to the law by the global constitutionalists.
Rather, the law most likely operates as a bargaining chip, whose value is negotiated in
the context of existing asymmetries of power.
Funding
This article was developed within the Research Network desigALdades.net granted by the German
Federal Ministry of Education and Research.

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Notes
1. Under the traditional model of international law, war is considered a means of conflict-resolution and form of sanction (Verdross, 1986).
2. All quotations from texts published in German, Spanish, and Portuguese were translated by
the authors of this article into English.
3. More recently, Habermas has acknowledged the lack of legitimacy and political force of
European countries in playing the role of a moral orientation for world politics, frustrating
what he expected some years ago. Even so, he continues to believe in a further unification of
Europe as a countermeasure to compensate for the decrease in importance of the European
national state: Europes role in the post-colonial world has changed not only in terms of the
questionable reputation of old imperial powers (not to speak of the aftermath of the holocaust), but also future projections based on statistical data predict that Europe will continue
to face a shrinking population, a decreasing economic importance, and waning political influence (Habermas, 2013: 9798).
4. Koskenniemi (2005: 123) has also raised this argument. The author establishes that international law is historically shaped by its instrumentalization by European and Western
countriesto ensuretheir position of overwhelming power (2005: 117). For him, this view
is related to the use of international law as a civilizing mission that has always been associated with the danger of mistaking ones preferences and interests for ones tradition
and then thinking of these as universal, a mistake we Europeans have often made (2005:
115). Nevertheless, Koskenniemi argues that, once this criticism is internalized, there are
good reasons for universalizing the European particular ideas and values that shape international law (Koskenniemi, 2004: 500; 2005: 123). Therefore, like all global constitutionalists,
Koskenniemi bets on the normative character of law, meaning that this sphere appears to
be decoupled from power asymmetries. Consequently, the author seems to beunaware that
colonialism and imperialism did and do not occur in opposition to, but in accordance with the
hegemonic rule of law (Chimni, 2004).
5. The compatibility between the semantic of international law and local struggles for justice is
crucial for enforcing human rights at the global level as current debates on vernacularization
have clearly demonstrated. Based on field observations in different world regions, proponents
of this approach state that vernacularization, understood as a dynamic process of appropriation and local adoption of transnational validity claims, directly correlates with their affinity
with local justice theories: Human rights, in general, have an aura of the universal and the
international, signifying advancement and progress and evoking the utopian goal of a universal good. Too much newness, however, is not necessarily a good thing. Our case studies
also suggest that the less familiar the idea, the less likely it is to be adopted (Levitt and Merry,
2009: 452).
6. This section as well as the fourth section reproduces and updates arguments more extensively
developed in Costa and Gonalves (2011) and Costa (2012).
7. These are Africans and their descendants who were subjected to slavery until the late 19th
century and managed to escape, founding autonomous communities within Suriname beginning in the 18th century.
8. We agree with Silva (2014: 176) that in almost every work that assumes the existence of a
global constitutionalism, the globe seems to be rather small: take decisions of some supreme
or constitutional courts of a few English speaking countries like the United Kingdom, the
United States, Canada and South Africa, add decisions of the German Constitutional Court,
and you are already entitled to speak of the globe . Therefore, the author asks: How global
is the global model [of global constitutionalism]?

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Author biographies
Guilherme Leite Gonalves is Professor of Sociology of Law at the Rio de Janeiro State University
(UERJ). He is interested in social theory, particularly in issues of law, social control, and inequalities. His current research focuses on the recovery of the critique of political economy in the sociology of law. Among his recent publications are (with Judith Schacherreiter) the Zapatista struggle
for the right to land: Background, strategies and transnational dimensions, in Fischer-Lescano A
and Mller K (eds) Transnationalisation of Social Rights (Intersetia, 2016); Marx est de volta!
Um chamado pela virada materialista no campo do direito [Marx is back! A call for a turn towards
materialism on the field of law] (Revista Direito e Prxis, 2014); Il Rifugio delle Aspettative.
Saggio sulla Certezza del Diritto [The Refuge of Expectations. Essay on Legal Certainty] (Pensa
Multimedia, 2013).
Srgio Costa is Professor of Sociology at the Freie Universitt Berlin and one of the spokespersons
of desiguALdades.net, the Research Network on Interdependent Inequalities in Latin America, as
well as the editor of the book series Entangled Inequalities, published by Ashgate Publishing. He
has specialized in racism and anti-racism, social inequalities, contemporary social theory, and
postcolonial studies. His recent publications include (with Maria Backhouse and Jairo Baquero):
Between Rights and Power Asymmetries: Contemporary Struggles for Land in Brazil and
Colombia, in Fischer-Lescano A and Mller K (eds) Transnationalisation of Social Rights
(Intersetia, 2016); Protection without Redistribution? Conceptual Limitations of Policies Meant
to Reduce Race and Gender Inequalities in Brazil, in Fritz B and Lavinas L Protection Without
Redistribution? Conceptual Limitations of Policies Meant to Reduce Race and Gender Inequalities
in Brazil (Ashgate, 2015); Social Sciences and North-South-Asymmetries: Towards a Global
Sociology, in Broeck S and Juncker C (eds) PostcolonialityDecolonialityBlack Critique. Joints
and Fissures (Campus, 2014).

Rsum
Ces dernires dcennies sont marques dune expansion impressionnante des acteurs
et structures lgales ayant lintention dtendre travers le monde un certain catalogue
occidental des droits de lhomme. Rcemment aussi, des scientifiques lgaux ont dvelopps des concepts comme le constitutionalisme mondial et la socit cosmopolite dans le but de justifier la normalit de lexpansion des droits de lhomme (par
exemple, Habermas, Bogdandy, Koskenniemi). En oprant partir de dichotomies
anhistoriques (moderne/traditionnel, religieux/laque, lOccident/le Reste), cette nouvelle littrature lgitime la suprmatie Occidentale . Dans cet article, nous tablissons la revue de la rcente littrature mondiale sur les droits de lhomme dans le
monde pour rvler ses prjugs coloniaux et impriaux. Nous prsentons galement
les principales structures lgales dsignes accrotre les droits de lhomme dans le but
dattirer lattention sur leurs asymtries constitutives. Ensuite, nous abordons lanalyse
de cas traits par la Court Inter-Amricaine des Droits de lHomme pour illustrer en
quoi les dcisions lgales contribuent la reproduction des ingalits (par exemple de

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rgion, de race, dethnicitetc.). Enfin, nous soutenons une perspective dcentre qui
( un niveau local) reconnecte les droits de lhomme avec ses rclamations concrtes
en faveur de la justice.
Mots-cls
Constitutionalisme mondial, droits de lhomme, socits postcoloniales, asymtries de
pouvoir
Resumen
Las dcadas recientes han estado marcadas por una expansin impresionante de actores
y estructuras legales con el propsito de extender mundialmente un determinado catlogo de derechos humanos occidentales. Recientemente, tambin, los tericos del
derecho han desarrollado conceptos tales como constitucionalismo mundial y sociedad cosmopolita para justificar de manera normativa la propagacin de los derechos
humanos (p. ej., Habermas, Bogdandy, Koskenniemi).
Al operar con dicotomas
ahistricas como lo moderno y lo tradicional, lo religioso y lo secular, el Occidente y lo
dems, esta nueva literatura legitima la supremaca occidental. En este artculo, revisamos escritos legales recientes sobre los derechos humanos mundiales para revelar su
sesgo colonial e imperial. Con el fin de resaltar sus asimetras constitutivas, tambin
presentamos las principales estructuras legales que estn diseadas para propagar los
derechos humanos. Adems, analizamos casos tratados por la Corte Interamericana de
los Derechos Humanos para ejemplificar cmo las decisiones legales contribuyen a
reproducir las desigualdades (p. ej., por motivos de regin, raza y etnia). Por ltimo,
argumentamos a favor de una perspectiva descentrada que, a nivel local, vincule los
derechos humanos con los reclamos concretos por la justicia.
Palabras clave
Constitucionalismo global, derechos humanos, sociedades poscoloniales, asimetras de
poder

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