I. The Peasant Rights Movement and Defining the Peasantry

For present purposes, the history of the modern international peasant movement began in the 1970s and 1980s in the face of neoliberal policies that negatively affected smallholder farming.Footnote ⁴⁷Peasant movements quickly identified actors and processes beyond national borders—namely transnational corporations (TNCs), international capital flows, and the international trade regulation they influenced—as responsible for the plight of peasants. This led peasants to internationalize as well, joining forces with likeminded organizations abroad based on the common recognition that small producers were being massively displaced by “fiat, force and finance.”Footnote ⁴⁸ Today, LVC has 182 member organizations from 81 countries around the globe and claims to represent more than 200 million peasants.Footnote ⁴⁹ LVC’s work redefines the spaces for peasant participation by drawing unity from the diversity of its member organizations and creating an avenue through which peasants can directly participate in international decision-making.Footnote ⁵⁰

Who, then, are the peasants represented by LVC and other, similar organizations?Footnote ⁵¹ LVC, at its inception, sought to reclaim the term “peasant” from its pejorative connotations in the English language. Like other stigmatized groups that have reclaimed pejorative descriptors, peasants have thus taken a term characterized by negative implications and adopted it as a “marker of solidarity” and a politicized identity.Footnote ⁵² Indeed, Annette Aurélie Desmarais has argued that this reclaiming of identity has been one of LVC’s greatest accomplishments.Footnote ⁵³

That accomplishment has translated to the UN level. The UNDROP, in its Article 1, defines a peasant as:

This definition is broad and inclusive, and goes on to explicitly include a number of other activities related to “artisanal or small-scale agriculture,” as well as indigenous, transhumant, nomadic people, the landless, and migrant and seasonal agricultural workers.Footnote ⁵⁵ The UNDROP language not only refers to peasants’ “special dependency on and attachment to the land” as a definitional element of peasantness, but also notes in its preamble that peasants disproportionately suffer from poverty, hunger, and malnutrition. They also suffer from the effects of environmental degradation and climate change and face “several factors [that] make it difficult … to make their voices heard, to defend their human rights and tenure rights.” It thereby indicates an understanding of peasants as a group that are entitled to claim rights because of their special agriculture-related dependence and exposure to negative human rights impacts—for example, their vulnerability, which is distinct from, but akin to, the close, explicitly spiritual connection to land more closely associated with the indigenous rights movement.

In this regard, it should be noted that there are clearly a number of parallels between peasant and indigenous rights movements, both in terms of their ways of organizing and in many of the rights they seek. As Priscilla Claeys and Deborah Delgado Pugley have written, both movements have global political agendas, both are concerned with climate change and access to land, and both are linked to collective identities that reposition peasants and indigenous peoples—who were both once considered anachronisms in the modern world—“as modern actors embodying the key to alternative development models” who are making claims based in the human rights framework and concerned with eking out a space of sovereignty and autonomy vis-à-vis State power.Footnote ⁵⁶ Although there may be overlaps here and a difficulty in drawing sharp distinctions, the present analysis focuses particularly on peasant rights and the peasant movement, and on its specific claims, which are largely concerned with the concepts of food sovereignty, seed sovereignty, land sovereignty, and limiting the negative impacts of neoliberalism on peasants. The premise here is that many peasants do not benefit from the protections created for indigenous peoples, and in this sense, the peasant rights movement can be understood as a way of paralleling certain protections created in the indigenous rights context for a broader group suffering parallel but not identical harms.Footnote ⁵⁷ In this regard, the argument could be made that peasants meet at least some of the elements of a definition of “peoples” as having the right to self-determination: They share a historical tradition and common economic life, arguably self-identify as a people, and have institutions to express their will for identity, for example, LVC.Footnote ⁵⁸ At the same time, peasants live all around the world, and territorial self-determination within the existing model of the nation-state is out of the question. Instead, what they are seeking is self-determination over their means of production and their livelihoods.

To be clear, the idea of peasants as capitalism’s otherFootnote ⁵⁹ and the essentialism of envisioning peasant communities as homogenous and solidary has been contested by those who see the under-theorization of stratification and divisions due to gender, age, ethnicity, and class in peasant societies as a strategic choice made to advance the peasant agenda.Footnote ⁶⁰ Others have retorted that unification is nonetheless desired and needed “to blunt the singular force and violence of commodification of land, labor, genetic resources and knowledges,”Footnote ⁶¹ linked to small producers’ tenuous hold on their land, which is an effect of WTO policy and enclosure by mass land grabs.Footnote ⁶² Philip McMichael has, in this vein, argued that peasantness “is not about categorical purity; rather, it is about a multi-faceted counter-movement feeling its way into the future.”Footnote ⁶³

Though the peasant movement does not require a strict definition of peasantness and recognizes that it does not exclusively represent peasant interests,Footnote ⁶⁴ in the interest of legal clarity and foreseeability—and in order to prevent abuses—a legal text like the UNDROP, and especially any future legally binding instruments, do require categorical purity to some, albeit not an absolute, extent. In other words, while peasantness need not be a narrow category—and self-identification as a peasant is an important element of any definitionFootnote ⁶⁵—human rights law requires human rights holders, and rights that are guaranteed to some but not others do require a way of distinguishing the two. This is one further difference between the approach to indigenous rights in the UNDRIP and the approach to peasant rights in the UNDROP, because the former operates on the basis of identification, not definition, while in the peasant context the UNDROP Working Group took great pains to craft a definition of the peasantry.

At the same time, when it comes to the issue of defining peasants, peasant representatives have emphasized that peasantness is an identity characterized by a common marginalization. The cohesion involved in this identity—the unity in diversity proclaimed by LVC—is achieved through a common, deliberatively decided strategy and what the movement calls its mística: An expression of culture and social reality that allows members to understand peasants as diverse but united through the fact that “the crisis of rural family agriculture is the same all over the world. The causes are the same, [t]he reality is the same, and the same neoliberal, or more plainly, capitalist policies have caused this crisis.”Footnote ⁶⁶ Like many other social movements—the LGBTQI rights movement, feminism, and the Civil Rights movement in the United States, for example—the peasant rights struggle contests injustice done to a particular group.Footnote ⁶⁷ This injustice is to some extent defining: Although, as stated at the outset, an in-depth analysis of identity is beyond the scope of this analysis,Footnote ⁶⁸ it can be noted that the idea of peasantness as an identity is largely premised around the idea of the negative effects of neoliberal policies specifically on peasants. The fact that peasants are particularly affected by these policies is portrayed as legitimizing their search to change them, including through human rights claims. It is therefore possible to describe LVC as an example of direct self-representation by the grassroots at the transnational level based on and organized around a common experience stemming from the negative effects of neoliberal policies. In other words, peasants’ affectedness by these policies is presented as a legitimization of their struggle against them, including of their human rights claims.

Alternatively, this can be framed as an issue of vulnerability, in the sense outlined in the Introduction to this Article and further explored below in Section D.III. In this regard, vulnerability represents a critique of formal approaches to equality and a rejection of the “neoliberal fixation on personal responsibility” in favor of a legal subject that recognizes and incorporates differences. It also serves to recognize not just the reality of human fragility, but also the fact that because of this fragility, human individuals are dependent on and embedded in social relationships and institutions such as the family, market, or State.Footnote ⁶⁹ Inequalities in access to the resources, termed “sources of resilience” by Fineman, distributed by these institutions explain why—although we are all equally vulnerable in terms of our being human—some humans are in better positions than others.Footnote ⁷⁰ Vulnerability as a critique furthermore serves to reject the individualism of applying economic modeling to manifold contexts and of framing differences between individuals as the result of individual choice, which society need not subsidize, support, or even really address.Footnote ⁷¹

So how do these ideas about addressing inequality by contesting individualism and taking into account dependence and embeddedness apply in the peasant context? First, the fact that peasants particularly depend on the land and on various resources such as water and seeds—as well as on the market—coupled with the ways in which resources, favor, and advantages are bestowed by existing institutions in a way that is disadvantageous to them, is linked to the dependence and embeddedness-related aspects of vulnerability theory.Footnote ⁷² Second, a further link can be made to the fact that much of the world’s population, in turn, depends on peasants to produce their food. When it comes to the individualism aspect, it can be argued that the pursuit of a peasant way of life is more than just an individual choice interchangeable with any other choice. This is because it is part of a context, namely, a complex web of social and institutional relationships that gives rise to structural inequalities and it therefore requires law and policy to be shaped in a way that addresses the inequalities that affect peasants in this context.Footnote ⁷³ In short, neoliberally-shaped policies and decisions are destroying the livelihoods of peasants. These peasants therefore have a right to participate in the formulation of these policies—from an affectedness perspective—and to be effectively protected against the policies’ real, lived effects in a way that examines how advantages are distributed, that promotes equality, and that protects their agency from a vulnerability perspective.

II. Peasants as Law-Makers?

It is undeniable that grassroots peasant rights organizations have had an influence on the UN’s work to draft the UNDROP. Examples of this include LVC’s own drafting of such a declaration, which kick-started the whole UNDROP process,Footnote ⁷⁴ and the inclusion of peasant representatives in five successive rounds of deliberations on the text of the UNDROP. Peasants’ involvement in the preparation of the Declaration and the consultation requirements envisioned therein, as discussed below, underscore an idea which also shaped the indigenous rights recognition process, namely that “people who are the subject of a rights document are entitled to participate in its framing.”Footnote ⁷⁵ The peasant rights movement is piggybacking on that right with clear success.Footnote ⁷⁶ In this vein, its participation in the norm-making process on the international plane would serve as evidence of the idea that affectedness generates participation rights. In this regard, this Article will not argue that because peasants are affected by the international order—and they have successfully participated in normative processes that are part of that order—there is a general right of all affected persons or peoples to participate in these processes. Instead, we can only consider this as an example of what affectedness-based participation can look like.

What, then, has the value of affectedness-based participation been to date? By bringing about an international dialogue about peasant rights on the UN level, the peasant movement has initiated and decisively shaped the development of new human rights—or at least new-ish ones, given the overlap with existing rights. In other words, the movement has taken the first step in a typical pattern for obtaining the recognition of new human rights—such as the preparation of a non-binding declaration by the UN, potentially to be followed by binding instruments later on—and has rather decisively influenced the shape those rights have ended up taking.

This, in some sense, positions LVC as a law-making, or at least a law-shaping or law-drafting, force. LVC’s success in managing to bring about and shape a process that led to the creation of new human rights norms evokes larger questions that concern the human rights framework as a whole. Where do such rights come from? Who decides what their content should be? From where do they derive their authority and legitimacy? Does the proliferation of rights dissipate the urgency and coherence of the human rights project? These questions do not have easy answers.

As stated previously, it should be noted that the idea of a non-state actor participating in normative processes is by no means unheard of under international law, or more specifically under international human rights law.Footnote ⁷⁷ Admittedly, the idea of a radical counter-establishment agricultural social movement as a law-maker, or something similar, raises questions. At the same time, this has proven to be, at least to some extent, the reality of the peasant rights process. In this regard, it is possible to invoke the argument that law is law, not only if and when it is authoritative, but also if and when it is persuasive.Footnote ⁷⁸ In other words, law must not only be created by a source that has the authority to do so—in this case the UN, which adopted the UNDROP, and leaving aside for a moment the fact that the UNDROP is a non-binding instrument—but it must also be sufficiently coherent and compelling to be considered legitimate by States and non-State actors alike.

So what is the relevance of LVC’s participation for the legitimacy of the UNDROP and other, binding peasant rights instruments that could conceivably follow? The present Article will not argue that LVC has a formal law-making status and admits that it would be rather difficult to make this argument. Instead, it submits that, at this point, and while LVC’s claims do not have normative force on their own, LVC has taken such a powerful position in the peasant rights sphere that the drafters of a peasants’ rights instrument on the UN or any other level would struggle to defend its legitimacy without the movement’s input or blessing. In this sense, LVC’s involvement has a degree of normative force because it bolsters the legitimacy of any project on peasant rights. This allows it to have an influence on what Jean d’Aspremont has called law-makers’ law-ascertainment, or the methods through which rules of international law are identified and formalized.Footnote ⁷⁹

This is not the only example of stakeholder involvement in human rights law-making or law-evolving processes. As noted above, such involvement is by no means unusual. The involvement of disability rights groups in the recognition of specific human rights relating to persons living with a disability and of indigenous movements in the recognition of indigenous peoples’ rights are clear examples. What is exceptional here—and what this Article aims to flag—is the extent of LVC’s involvement and representativeness and the indispensability of its support, which may at least in part be due to its presentation of a united and unwavering vision for peasant human rights in the relevant law-making process. The term “law-ascertainment” fits well here because, in much of this process, there is a sense that peasant human rights already exist, that the peasant movement knows what they are, and that the UN is simply ascertaining what these rights are by formally recognizing them, with peasants’ support. In addition, as will be discussed below, it is striking that much of the peasant rights discourse is framed in terms of sovereignty—over land, seeds, and food—thereby at least conceptually impinging on the State’s sovereign domain.

I. Peasantness as Critique

Framing any claims as human rights claims means to some extent accepting the constraints imposed by the liberal underpinnings of these rights—their Western, individualist basis, their focus on State obligations—as opposed to those of private actors or TNCs—and their emphasis of economic liberty.Footnote ⁸⁰ But there are also a number of advantages to rights framing: It not only has a uniting power, and can legitimize and lend visibility to the claims in question,Footnote ⁸¹ but it also represents an opportunity to challenge human rights law’s constraints and problems. The peasant movement has brought such a challenge by making claims that promise to expand the very foundations of rights, from individual to collective, from State-oriented to addressed to all relevant actors, from based on economic liberty to premised on resource-sharing, accessibility, inclusivity, and sustainability, from something that is created top-down to an entitlement that is demanded bottom-up, from shaped by patriarchy to gender-equal and inclusive.Footnote ⁸² It can now certainly be argued that peasantness—like indigenous identity—is being used to push back against globalization, cultural uniformity, the effects of colonialism, and corporate exploitation.Footnote ⁸³ In this sense, peasant rights claims are being used to counter homogenized ideas about the human rights subject.

By highlighting fundamental imbalances in the global order—which have not been successfully contested by means of international human rights law to date—the peasant movement has formulated a critique of neoliberalism that reflects some of the same interests as the TWAIL critique of international law. These interests include the aim to lend a voice to a systemically underrepresented point of view, to encourage solidarity among those underrepresented actors, and to address the effects of globalization on self-determination.Footnote ⁸⁴ The peasant critique furthermore transcends the North-South debate and hones in on the imbalances of power that characterize neoliberalism, including the supremacy of capital vis-à-vis labor. In this context, it can be noted that Balakrishnan Rajagopal has argued that while the so-called third world was, in the 1960s and 1970s, made up of newly independent and developing States, today it is represented largely by social movements.Footnote ⁸⁵ Thus, it is now the “effervescent and troublesome cauldron of peasants, women, environmentalists, human rights activists, indigenous people, religious activists, and other individuals” that challenges injustice and inequality.Footnote ⁸⁶ In this sense, the peasant critique of existing human rights protections can be understood as a main ingredient in this cauldron and as a new frontier of TWAIL.

To what extent does this critique demand the recognition of new rights, as opposed to reiterating existing ones? There are many rather evident overlaps between peasant rights and existing rights such as the right to food, health, just and favorable conditions of work, social security, an adequate standard of living, non-discrimination, and housing. In addition, the UN has recognized the right to water,Footnote ⁸⁷ and there is also the aforementioned overlap with indigenous rights and the idea of resource sovereignty,Footnote ⁸⁸ along with a potential argument to be made concerning the right to self-determination. In other words, many of the rights claims made by peasants do not go beyond—or far beyond—existing rights as interpreted today by the relevant bodies, and some simply restate these rights specifically for peasants. But, there are some claims that do transcend the current mainstream normative framework. Thus, the idea of a right to land is a relative novelty, as is the right to seeds or to food sovereignty. Therefore, it is possible to speak here of “new-ish” rights claims. Even when there are overlaps with existing rights, for example, between the right to food and the right to food sovereignty, formulating these claims as separate from existing rights is significant, because it allows peasants to shape their meaning and gain leverage concerning their content and application.

II. The Added Value of Affectedness-Based Arguments

The question here is whether basing rights claims on affectedness really adds something to the peasant rights struggle. Certainly, the existence of the UNDROP project implies a recognition of the human rights-related problems facing peasants, and their involvement in the project indicates an institutional willingness to hear the affected. Generally speaking, however, affectedness comes more substantively into play when it comes to participatory or consultation rights, as a way of delineating the scope of these rights.

The UNDROP contains a number of references to affectedness, or the state of being affected. Thus, it contains a general obligation of States to consult peasants and other rural workers before making decisions that may affect them—including international agreements—and to do so “through their own representative institutions”; this should be done while “taking into consideration existing power imbalances between different parties and ensuring active, free, effective, meaningful and informed participation of individuals and groups in associated decision-making processes.”Footnote ⁸⁹ The Declaration also provides for a peasant right to “active and free participation … in the preparation and implementation of policies, programmes and projects that may affect their lives, land and livelihoods”Footnote ⁹⁰ and “the right to seek, receive, develop and impart information, including information about factors that may affect the production, processing, marketing and distribution of their products.”Footnote ⁹¹

What is particularly striking, in this regard, is what is missing. The requirements of FPIC that were present in earlier versions of the UNDROPFootnote ⁹² have now been struck from the text. Although they may to some extent be covered in substance elsewhere in the UNDROP, the failure to explicitly include FPIC requirements carries meaning.Footnote ⁹³ The worry here, from a peasant rights perspective, is that participation in and of itself—without a need to obtain peasants’ consent, and thus without granting peasants a veto right over decisions that affect them—will not lead to better outcomes for peasants and may actually be harmful to their agenda by serving to tranquilize dissent.Footnote ⁹⁴

The idea of affectedness as a method of placing the affected on more equal footing with the State relates to LVC’s use of the language of food sovereignty, which raises a provocative implication. Indeed, in the context of human rights law, references to sovereignty generally refer to the sovereignty of the State over its territory. Instead of simply trying to create State obligations to regulate land in a certain way—for example, to adequately protect peasant farmers—this approach places the same sovereign power with the peasants themselves as, it seems, both human rights subjects and the knowers of the morally true content of these human rights, undistorted by trade interests. Peasant representatives have made clear that this is not an attack on State sovereignty over territory, but a call for empowerment.Footnote ⁹⁵ At the same time, this type of empowerment does not follow the traditional human rights approach of protecting individuals from abuses of State power but instead shifts decision-making from the State to individuals, in effect claiming a decision-making sphere free of the State. In other words, the food sovereignty claim buttresses participation demands by evoking a decision-making or veto right of the most affected—in this case, food producers and consumers—as a group.Footnote ⁹⁶ In doing so, it encapsulates the usefulness of reliance on affectedness for the peasant rights movement.Footnote ⁹⁷ This usefulness also has some limits, however. In particular, in addition to jettisoning the protections granted by existing human rights and potentially homogenizing the group in receipt of participation rights,Footnote ⁹⁸ it does not say all that much about how approaches to food should be substantively reshaped in order to better serve peasant producers, food consumers, and the environment.

III. Vulnerability as a Basis for Peasant Rights

When it comes to the distinction between affectedness on the one hand and vulnerability to rights impacts on the other hand, it is interesting to note that, at the first and second sessions of the Working Group on the UNDROP, the ninth preambular recital of the draft text considered that “peasants constitute a specific social group which is so vulnerable that the protection of their rights requires special measures to make sure that States respect, protect and fulfil their human rights.”Footnote ⁹⁹ By the third session of the Working Group, in the 2016 version of the draft, this recital had disappeared.Footnote ¹⁰⁰ While references to a “specific social group” were jettisoned, the idea of the vulnerability of peasants continued to permeate the discussions of the Working Group.Footnote ¹⁰¹ Ultimately—and despite repeated calls to protect peasants on the basis of their vulnerability—the 2018 Declaration instead refers to the fact that peasants and other rural workers “suffer disproportionately” from human rights impacts such as poverty and hunger, as well as the fact that “several factors” impede their ability “to make their voices heard, to defend their human rights and tenure rights, and to secure the sustainable use of the natural resources on which they depend.”Footnote ¹⁰²

So what, precisely, is vulnerability, and what does it do for human rights entitlements? As mentioned above, vulnerability language has been referred to in the relevant scholarship as a source of rights, a justification for redistribution of resources, and a heuristic device for identifying injustice. As understood by leading vulnerability scholar Martha Albertson Fineman, vulnerability as a rights-generative concept emphasizes the shared humanity of all human rights subjects and requires a State that is responsive to individuals’ material needs by providing access to certain social goods.Footnote ¹⁰³ The concept is used in various ways by a number of human rights bodies, including the UN Committee on Economic, Social and Cultural Rights (CESCR)Footnote ¹⁰⁴ and the European Court of Human Rights.Footnote ¹⁰⁵ Thus, vis-à-vis persons with disabilities, the CESCR has, for example, found that States’ obligation

Vulnerability, deployed as a basis for rights, need not necessarily portray those affected as victims or essentialize their experiences, although those risks do exist and must be accounted for.Footnote ¹⁰⁷ It can, instead, be seen as varied concrete expressions of a shared human experience that is characterized by dependence and interrelatedness, and as a pendant to resilience to harms.Footnote ¹⁰⁸ Understood in this way, vulnerability provides a framework for identifying sources of resilience and ensuring access to these resources; it can be used to contextualize people, to recognize imbalances of power, and to further substantive equality in a way that does not require the performance of a specific identity.Footnote ¹⁰⁹ It also allows for a recognition of the fact that autonomy and self-sufficiency are not intrinsic to the legal subject, but they are generated by the structures within which we are embedded.Footnote ¹¹⁰

In other words, while affectedness entails participation and a check on State discretion, vulnerability entails intensified attention to imbalances in the ways in which advantages are distributed, including the ways in which the State protects the interests of different groups and individuals. Vulnerability serves to identify inequalities and demands State action and special attention to ensuring compliance with the full range of obligations in the respect-protect-fulfill triad. It therefore has the power to definitively prohibit certain incompatible State action, while rights claims based on affectedness place the affected on more equal discursive footing with the State.

In their own ways, both vulnerability and affectedness hold promise for the recognition of new and especially of collective rights: Vulnerability, as a way to emphasize the effects of inequality and the need to ensure access to sources of resilience—which, in the peasant context, could mean land, for example—and affectedness, as a way to emphasize the need for meaningful participation.

In addition, vulnerability and affectedness arguably overlap, in the sense that the former allows for the identification of situations in which people lack a voice in various decision-making processes that concern them, thereby addressing the participation dimension of equality.Footnote ¹¹¹ This reflects the all-affected principle, that is, the understanding that all those affected—or at least affected to a given threshold or level of significance—by a given decision or policy should correctly be entitled to participate in its formation. In this regard, it should be reiterated, as stated above, that there are different interpretations of vulnerability. Some human rights bodies fail to understand vulnerability as a universal human experience and use it only as a way to identify certain groups or individuals in need of particular protection, to the detriment of those who are not considered vulnerable and possibly also of those who are.Footnote ¹¹² Thus, if the focus is not placed on universal human vulnerability but on particular vulnerabilities—for example, the vulnerability of children—then the range of addressees of vulnerability-based entitlements is narrower, and the potential for stigmatization and patronization is greater.Footnote ¹¹³ To avoid these pitfalls, vulnerability-based rights claims should incorporate an understanding of the fact that vulnerability is a universal human experience, even if it is expressed in different ways. If used in this way, vulnerability promises rights claims that are richer in substance than the focus on participation suggested by the all-affected principle.

In this context—which places the emphasis on the affected humans of human rights—it is interesting to note that LVC lobbies for rights that affect all of humanity, or even go beyond humanity, for example, into the environmental arena. Thus, all humans are—due to their necessary embodiment in a physical form—dependent on sustenance through food, and the interests related to the right to food sovereignty concern us all. Also, LVC has championed and potentially broadened the concept of universality by exploring the interconnectedness of all human rights and of all living organisms on Earth.Footnote ¹¹⁴ This is a form of implicit vulnerability analysis, and the movement might therefore benefit from relying more fully on that concept, which highlights the relational and interdependent nature of embodied life dependent on material resources and the environment provided by planet Earth.Footnote ¹¹⁵

A vulnerability-based approach to peasants’ rights could, for example, present land as a source of resilience to which access must be secured in order to counter the vulnerability of the affected individuals. Loss of land by those whose livelihood depends on it, by contrast, aggravates vulnerability and requires a State response. So, too, focusing on universal, but differently-experienced and differently-manifested, human vulnerability can transcend an equality analysis based on improving the situation of one identity group and can instead help tackle systemic imbalances of power and privilege by bringing about a reexamination of accepted structures and institutions.Footnote ¹¹⁶ In other words, applying a vulnerability lens is advantageous because of its heuristic power to uncover existing imbalances and inequalities.

The universality element deserves some further attention. During the final session of the UN Working Group to draft the UNDROP—before that text was ultimately adopted by the UNGA in December 2018—the European Union representative argued against the endeavor as a whole by submitting that the recognition of new rights that would be applicable only to persons living and working in rural areas would undermine the universality of rights.Footnote ¹¹⁷ This argument had been made a month before by Rosa Freedman in a workshop concerning the expansion of human rights organized by the EU Directorate-General for External Policies.Footnote ¹¹⁸ This argument is entirely unconvincing: Human rights for specific groups have been recognized any number of times, whether it be in the context of forbidding discrimination for some aspects of identity or not for others, or when it comes to creating special instruments to address specific vulnerabilities—for example, those of children, people living with disabilities, women, and other groups. These efforts are ultimately all about ensuring human dignity for every person—universally, but in different ways and through different approaches—as required by the exigencies of specific situations, contexts, risks, and dependencies. Presenting the recognition of group-specific human rights as a zero-sum game—that is, one in which the recognition of one group’s rights entails a loss for another—favors a conservative and unevolving understanding of human rights law. That type of understanding means human rights will grow ever more woefully inadequate for responding to real and pressing issues that arise in an ever-changing world, and therefore for addressing human rights impacts brought about, for example, by international trade policies, business activities, and climate change. This is because while these issues affect humanity as a whole, they also have specific and non-negligible harmful impacts on rural people who depend on the natural world for their livelihood. If human rights are to protect real human beings, universality should not mean a stagnation of standards or a formalistic view that negates differences between various groups and individuals. Human rights law cannot manufacture equality by negating difference, and in fact, this only entrenches inequality more deeply and makes it more insidious.

In essence, a vulnerability-based analysis allows us to think normatively—wondering how human rights should be—while reflecting on the shared and messy neediness, interconnectedness, and dependency of human life. As a critique, vulnerability reveals the ways in which unequal distributions of power and existing legal structures support, facilitate, or maintain injustice and—in the human rights context—blind spots in protection. Recalling that the human rights subject must be understood as a vulnerable one in order to adequately reflect what is human means reattaching human rights law to evolving human experience and the manifold forms of real-life harms and inequalities.