The Tension Between Group Rights and Human Rights: A Multidisciplinary Approach (Human Rights Law in Perspective)

THE TENSION BETWEEN GROUP RIGHTS AND HUMAN RIGHTS The discussion of group rights, while always a part of the human rights discourse, has been gaining importance in the past decade. This discussion, which remains fundamental to a full realisation by the international community of its international human rights goals, requires careful analysis and empirical research. The present volume offers a great deal of material for both. It makes a strong case in favour of a multidisciplinary approach to human rights and explores the origins and social, anthropological and legal/ political dimensions of human rights and internationally recognised group rights. It explores legal issues such as the reservations to international treaties and methodological questions, including the question of deliberative processes which allow seemingly absolute requirements of human rights to be reconciled with culturally sensitive norms prevailing within various groups. The discussion continues by looking at specific contexts, including the situations of women, school communities, ethnic and linguistic minorities, migrant communities and impoverished groups. The final part of the volume examines the ‘state of play’ of human rights and group rights in international law, in international relations and in the context of internationally sponsored development policies. Here the authors offer a meticulous and critical presentation of the legal regulation of human rights and group rights and point to numerous weaknesses which continue to exist and which call for additional work by legal thinkers and practitioners. Volume 13: Human Rights Law in Perspective

Human Rights Law in Perspective General Editor: Colin Harvey The language of human rights figures prominently in legal and political debates at the national, regional and international levels. In the UK the Human Rights Act 1998 has generated considerable interest in the law of human rights. It will continue to provoke much debate in the legal community and the search for original insights and new materials will intensify. The aim of this series is to provide a forum for scholarly reflection on all aspects of the law of human rights. The series will encourage work which engages with the theoretical, comparative and international dimensions of human rights law. The primary aim is to publish over time books which offer an insight into human rights law in its contextual setting. The objective is to promote an understanding of the nature and impact of human rights law. The series is inclusive, in the sense that all perspectives in legal scholarship are welcome. It will incorporate the work of new and established scholars. Human Rights Law in Perspective is not confined to consideration of the UK. It will strive to reflect comparative, regional and international perspectives. Work which focuses on human rights law in other states will therefore be included in this series. The intention is to offer an inclusive intellectual home for significant scholarly contributions to human rights law. Volume 1 Importing the Law in Post-Communist Transitions Catherine Dupré Volume 2 The Development of the Positive Obligations Under the European Convention on Human Rights by the European Court of Human Rights Alastair Mowbray Volume 3 Human Rights Brought Home: Socio-Legal Studies of Human Rights in the National Context Edited by Simon Halliday and Patrick Schmidt Volume 4 Corporations and Transnational Human Rights Litigation Sarah Joseph Volume 5 Human Rights in the Community: Rights as Agents for Change Edited by Colin Harvey Volume 6 Human Rights, Culture and the Rule of Law Jessica Almqvist Volume 7 Property and the Human Rights Act 1988 Tom Allen

Volume 8

Gender, Culture and Human Rights Siobhán Mullally Volume 9 Monetary Remedies for Breach of Human Rights: A Comparative Study Lisa Tortell Volume 10 Judicial Review, Socio-Economic Rights and the Human Rights Act Ellie Palmer Volume 11 The Role of National Human Rights Institutions at the International and Regional Levels Rachel Murray Volume 12 Terrorism and the Limitation of Rights: The ECHR and the US Constitution Stefan Sottiaux

To Han and Estelle

The Tension Between Group Rights and Human Rights A Multidisciplinary Approach Edited by Koen De Feyter and George Pavlakos

OXFORD AND PORTLAND, OREGON 2008

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Contents List of Contributors ...................................................................................xi Abbreviations ..........................................................................................xiii Introduction: Group Rights and Human Rights ........................................1 DANILO TÜRK Part I. The Multidisciplinary Approach to Rights ..................................... 9 1. In Defence of a Multidisciplinary Approach to Human Rights ...........11 KOEN DE FEYTER Part II. Origins of Rights (Genealogical Approaches) .............................. 39 2. On the Sociological Instrumentality of Human Rights and Minority Rights ..................................................................................41 GERRIT-BARTUS DIELISSEN 3. Human Rights and the Anthropological Perspectives on the Dynamics of Cultural Differences .......................................................71 M CALLARI GALLI 4. The Development of Minority Rights in Europe .................................89 LISANNE WILKEN Part III. Are Rights Universal? .............................................................. 105 5. Gender Equality and Group Rights: Negotiating Just Multicultural Arrangements ..............................................................107 SIOBHÁN MULLALLY 6. Let’s Talk: Dealing with Difference in Human Rights Law ................131 RORY O’CONNELL 7. Non-Individualism and Rights ..........................................................147 GEORGE PAVLAKOS Part IV. Rights in Context ..................................................................... 173 8. Are Women Human? Prostitution and the Search for the Right Rights......................................................................................175 REBECCA PATES

x Contents 9. School Communities and Children’s Rights.....................................193 GIOVANNA GUERZONI AND DANIELA SOCI 10. Citizenship: Anthropological Approaches to Migration and Social Exclusion ..............................................................................207 BRUNO RICCIO AND GIUSEPPE SCANDURRA 11. Supporting Minority Rights: Inter-Group Determinants and Consequences .................................................................................221 ANCA MINESCU Part V. Rights in a Global World .......................................................... 243 12. The Protection of Groups and Group Rights in Europe ..................245 STEPHAN BREITENMOSER 13. International Human Rights Law in Theory and Practice ...............271 JEAN ALLAIN 14. Human Rights and International Relations .....................................287 NICOLA CATELLANI 15. Human Rights and Development Policies: Some Critical Issues regarding the Idea of ‘Community’ in the Development Field .........295 FEDERICA TARABUSI AND IVO GIUSEPPE PAZZAGLI Index..................................................................................................... 309

List of Contributors Jean Allain is Senior Lecturer in International Law at the School of Law, Queen’s University Belfast. Stephan Breitenmoser is Professor of European Law at the Faculty of Law, University of Basel, and Judge at the Swiss Federal Tribunal of Administrative Law. Matilde Callari Galli is Professor emerita of Cultural Anthropology at the Department of Education, University of Bologna. Nicola Catelani is based at the Institute for Central Eastern and Balkan Europe, University of Bologna. He holds a PhD in political science from the London School of Economics. Gerrit-Bartus Dielissen is Professor of Sociology at the Department of Interdisciplinary Social Science, Utrecht University. Koen De Feyter is Professor of International Law at the Faculty of Laws, University of Antwerp. Giovanna Guerzoni is Lecturer in Cultural Anthropology at the Department of Education, University of Bologna. Anca Minescu is a PhD Researcher, Department of Interdisciplinary Social Science, Utrecht University. Siobhán Mullally is Senior Lecturer in Law at the Faculty of Law, University College Cork. Rory O’Connell is Senior Lecturer in Human Rights at the School of Law, Queen’s University Belfast. Rebecca Pates is Professor of Political Science at the School of Politics, University of Leipzig. George Pavlakos holds a Research Chair in Globalisation and Legal Theory at the Faculty of Laws, University of Antwerp and is Sometime Professor of Globalisation and Legal Theory at the School of Law, University of Glasgow.

xii List of Contributors Ivo Giuseppe Pazzagli is Lecturer in Cultural Anthropology at the Department of Education, University of Bologna. Bruno Riccio is Lecturer in Cultural Anthropology at the Department of Education, University of Bologna. Giuseppe Scandurra is Adjunct Faculty Member in Cultural Anthropology at the Department of Education, University of Bologna. Daniela Soci is Adjunct Faculty Member in Cultural Anthropology at the Department of Education, University of Bologna. Federica Tarabusi is Adjunct Faculty Member in Cultural Anthropology at the Department of Education, University of Bologna. Danilo Türk is the President of the Republic of Slovenia. Lisanne Wilken is Lecturer in Anthropology at the Institute of History and Area Studies, Aarhus University.

Abbreviations CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CERD Convention on the Elimination of Racial Discrimination ECHR European Convention on Human Rights ECSR European Committee of Social Rights ECtHR European Court of Human Rights ESC European Social Charter HDR Human Development Report HRC UN Human Rights Committee ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights OSCE Organisation for Security and Co-operation in Europe POP planning education officer UDHR Universal Declaration of Human Rights

Introduction: Group Rights and Human Rights DANILO TÜRK

T

here was a time when the narrative of international action for human rights had to be simple and straightforward. The Universal Declaration of Human Rights was drafted during such a time. During the preparation of the Universal Declaration its authors were aware of the far-reaching nature of the project and of its complexity, as well as of the need to proceed without undue hesitation. They were warned by philosophers, anthropologists and sceptical political thinkers that no global philosophical base existed for the Universal Declaration and that, paradoxically, what did exist was a variety of cultures with vastly different codes of social organisation, while at the same time the ideological split between the East and the West allowed for very little agreement on the essence and priorities of human rights. Nevertheless, the authors chose the path of optimism and activism and pushed ahead with the Declaration. They understood that what was required at that time was a simple and straightforward approach. There were good reasons for such a choice. The Second World War was fresh in people’s memories. The knowledge that the seeds of the war had been planted when totalitarian rule and denial of human rights had prevailed in the critically important countries in Europe was still clear in the conscience of the time. The Universal Declaration of Human Rights was not motivated by the desire of the West to dominate the world but by the need of the West to save itself from the dangers resulting from its own vices—totalitarianism, racism and unbridled sovereignty of undemocratic states. Firewalls had to be constructed against those vices and human rights were accepted as the essential protection against the repetition of recent history. In order for human rights to serve that purpose they had to be given great prominence and accepted as inherent in all human beings, equal and universal. Not surprisingly, all of these qualities are emphasised in the first preambular paragraph to the Universal Declaration. These were supremely optimistic assumptions. But the Universal Declaration is not only an historic document expressing an unprecedented faith in human dignity and optimism about the prospect of improvement of the human condition. It also recognised the complexity

2 Danilo Türk and long-term nature regarding action for human rights. A good example of the realism of the Declaration is reflected in its Article 28 providing that: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised.

The Universal Declaration thus recognised that there is a long way between the declaration of human rights and their full realisation, and that the path to the realisation of rights leads through the establishment of an adequate social and international order. The question of what constitutes such an order and how it should be constructed was left for subsequent action and has, indeed, become a major characteristic of human rights discourse in the decades that followed. That action took various forms. At the international level, an emphasis was placed on international treaties and the treaty implementation bodies and on the establishment of ever-more demanding procedures for the implementation of human rights. Indirectly, a variety of international structures gradually internalised the human rights standards and helped to construct an improved international order. At the national level, the content of the Universal Declaration of Human Rights shaped the development of constitutional systems. Human rights have become an indispensable part of the legal systems and have made a profound impact on the ‘social orders’ of a large number of countries around the world. All this has certainly been an improvement of very significant proportion. One of the most fundamental issues in the process of realisation of human rights is expressed in relationships between the individual and the community and between the individual and a variety of social groups in which the individual exists. Human rights are essentially the rights of individuals: they have to be; only a firm status of the individual, defined in the terms of human rights, can protect the individual against oppression of the group or the society as a whole. But no individual lives in a vacuum, everyone belongs to more than one social group and to the society as a whole. His or her ‘right to belong’ is an essential feature of the realisation of his or her human rights. It is axiomatic that the ‘full realisation’ of human rights proclaimed in the Universal Declaration requires careful balancing of the rights of the individual and the social and cultural norms existing within the relevant groups. Legal recognition of groups and their rights and status historically predate efforts to achieve a comprehensive enactment of human rights. In the past, a number of international treaties addressed the status of religious, and later ethnic and national, minorities and had given legal expression to protection of particular groups (protected minorities) against the power of the states in which they lived. This regulation was initially motivated, not by human rights concerns but by the need to find a necessary complement to territorial arrangements, so that international stability could be maintained. When territorial arrangements resulted in the creation of

Introduction: Group Rights and Human Rights 3 minorities it became necessary to define the minority’s status, their rights and protection. Not all the situations which necessitated minority protection were regulated in this manner and international law never developed a coherent international system for minorities. Nevertheless, during the period between the two World Wars a significant number of international treaties in Europe provided for the protection of minorities. This gave rise to a semblance of a system. The legal evolution in this context was not insignificant. An example of that evolution was the recognition of the need for special measures in favour of minorities (in fields such as language and education) with a view to establishing equality in fact between the persons belonging to minorities and other members of society. However, as a whole, the arrangements historically developed were not sufficiently effective. During the period between the two World Wars, some among them (concerning in particular German minorities in Central Europe) became the object of political manipulation which contributed to instability and, later, to the outbreak of war. Little wonder, therefore, that the protection of national minorities enjoyed little support in the creation of the post-Second World War system. The proposals to insert provisions for the protection of national minorities in the Universal Declaration of Human Rights were rejected and the subsequent International Covenant on Civil and Political Rights contains only a weak provision on the rights of persons belonging to ethnic, religious or linguistic minorities. The general resentment to address the issues of minorities as part of the general development of international law and human rights lasted well into the period following the ending of the Cold War. But even the latest efforts of the Council of Europe and the United Nations in the 1990s have failed to create an effective system. The provisions on protection of minorities continue to be weak, the treaties containing such provisions are not widely accepted and the international declarations on the subject remain vague. The historical experience of international regulation of group rights is, therefore, not encouraging. This evolution at the level of international law reflects a deeper social reality. Managing the issues which involve national, ethnic and religious minorities remains sensitive and has not yielded adequate results internationally. The same can be said about the legal regulation of the majority of other social groups whose importance for the actual realisation of human rights is beyond doubt. The collective dimension of human rights has generally eluded the efforts of international legislators. An example which reaffirms such a conclusion is the international discussion on the rights of indigenous peoples. These peoples generally reject being assimilated into the notion of ‘minority’—a natural attitude given that many among them represent a significant part of entire populations of states and are, in some cases, in fact, the ethnic majorities in their respective countries. Nevertheless, the case law of the Human Rights

4 Danilo Türk Committee and the practice of other international bodies have recognised their entitlement, as a minimum, to the rights of minorities. But even this minimalist approach has started to develop only recently and has addressed only some among the major concerns of indigenous peoples. Their larger agenda, expressed in the process of drafting the declaration on the rights of indigenous peoples, has stalled several times, most recently in 2006 at the level of the UN General Assembly. Its ultimate success is still uncertain. Obviously, the issue of indigenous peoples carries with it specific problems, most notably the issue of self-determination which continues to elicit fears of undermining the territorial integrity of states. But even in areas where such fundamental political problems do not exist, such as the area of land rights, there has been relatively little progress. In short, observing the question of individual and group rights from a perspective of international legal regulation leads to the conclusion that while the issue is, in essence, historically known and well studied, it eludes efforts to provide it with effective legal regulation at the international level. From the point of view of international law the question of group rights remains largely an issue of policy and the margin of discretion available to states continues to be very wide. For this reason international law and, perhaps, law more generally does not capture the richness of relations within groups and among groups in a complex society. The texture of legal regulation, which can be very sophisticated with regard to issues defining the relationship between the individual and the state (for example, in the area of fair trial rights or the right to freedom of expression) remains less developed with regard to the issues affecting the relationship between the individual and his or her group, such as the issues of domestic violence or traditional practices affecting the wellbeing of women and girls. Even less clarity exists in the domain of collective rights of different groups. Here, the diversity of groups itself may pose problems: the status and rights of indigenous or historically established groups are likely to be better defined than those of the groups resulting from current or recent immigration. The cultural distance between various immigrant groups and the majority population may vary and a single system of legal rules is difficult to devise and even more difficult to apply in a coherent manner. And again, the government of the country concerned can opt for policies which are defined by the necessary attention to individual rights without entering deeply (or at all) into the realm of group rights. Such an approach might be perceived as prudent or even necessary given the complexity of the issues at hand and the individualist legal interpretation of human rights. This situation calls for an interdisciplinary approach. Issues of human rights cannot be left to lawyers alone. Policy formulation and subsequent legal regulation require a solid understanding of the social reality or (in the terminology used by lawyers) a solid factual foundation. Sociological analysis is particularly valuable here because it can help us to understand how human rights function in a complex social reality and how their effectiveness can be

Introduction: Group Rights and Human Rights 5 improved. Political science analysis can help us understand circumstances in which individuals’ human rights cannot function because of oppression of entire groups. In some of these situations self-determination and independent statehood become the only solution; or, more accurately, a necessary condition for effective enjoyment and full realisation of individual human rights. An important aspect of situations which suggest such a conclusion is the need for a full and sophisticated understanding of political circumstances. Not all claims for self-determination are conducive to greater effectiveness of human rights. Independent statehood may be desired and even legitimate but still not achievable politically. While decolonisation had been a necessary condition for effective enjoyment of human rights, a satisfactory level of respect for and realisation of human rights after decolonisation has in many instances not been achieved. An analyst addressing human rights issues in this kind of situation necessarily has to draw from a number of disciplines to reach convincing conclusions regarding the priorities of the human rights agenda at a given time. Sociology is particularly valuable among those disciplines necessary for analysis and policy-making in the field of human rights. This is because human rights norms are, in general, formulated in an abstract fashion and emphasise the prescriptive aspect, while the descriptive element remains relatively weak. It is necessary to develop a good understanding of the situations that human rights prescriptions are supposed to address in order to give human rights norms adequate interpretation and effect. Policy-making and legislation that is expected to give human rights a more specific legal content can be successful only within the descriptive narrative which sociological analysis can provide. Part of that narrative necessarily has to relate to the situation of social groups defined by economic and social status, ethnicity, religion and other factors. This is precisely where human rights norms need the most assistance. Another perspective that becomes valuable in the process of realisation of human rights is that offered by anthropology. It is important to pay adequate attention to the issue of culture and the cultural identity of social groups. Some groups may and others may not fall within the neat concept of ethnic or religious communities, but all are still defined by culture. Physical migration and lack of upward social mobility can be important factors in defining the identity of some of the groups. These groups have to be understood with reference to their cultural identity, which often requires careful local research and sensitivity with regard to their positioning in a wider society. In such situations the cultural context, once understood, can help to properly contextualise the human rights priorities which need to be included in the policy-making. The doctrine of human rights needs to be thought through in the light of conclusions reached in the process of anthropological analysis conducted at the local level and involving the groups in question themselves.

6 Danilo Türk Thinking about social groups with the proper understanding of political/ politological, sociological and anthropological dimensions is necessary for the purpose of policy-making in the process of realisation of human rights. It is interesting to compare the contemporary multidisciplinary approach with the historical experience of protection of national, ethnic and religious minorities. Protection of minorities as developed in Europe in the twentieth century continues to be relevant. In some situations business remains unfinished (for example, in the area of language rights) and the provisions for the official use of minority languages require permanent efforts for their realisations. In other situations, new needs lead to new forms of coexistence and mutual cultural permeation between minorities and the majority population. The role of NGOs, in particular those established by the minorities themselves, is becoming more important and should be given serious and critical thought. NGOs which have developed their profiles in the struggle for minority rights may, once their basic objectives are achieved, require redefinition and develop new priorities aiming at multicultural dialogue and development of new forms of coexistence between different groups. An approach to human rights which focuses on the realisation of these rights in the sociopolitical context and is conducted with the necessary cultural sensitivity can also help in the thinking on the meaning of universality of human rights. Universality need not be a ‘context free’ legal or philosophical concept. It can actually recognise the necessary ‘margin of appreciation’ and interpret human rights in a manner which does justice to cultural sensitivity and dignity of cultures—the actual agents of human dignity in many situations. A contextualised discussion of universality of human rights necessarily requires acceptance of differences among different situations and recognition of importance of cultural identities of the relevant groups. However, in approaching the issue of universality from this angle it is necessary to keep in mind a sense of hierarchy. The ‘margin of appreciation’ cannot be allowed to turn into an ‘escape clause’, allowing the basic precepts of human rights (such as the right not to be subjected to torture or inhuman or degrading treatment or the rights to physical integrity and personal safety) to be circumvented. While a contextualised approach to universality is helpful, it must not turn into an exercise of total cultural relativism. Here, the standards enshrined in international human rights instruments and their interpretation by international supervisory bodies can help. In a particularly sensitive area such as the prevention of discrimination against women, it is important not to allow international standards to be diluted by a practice of reservations which contravene the object and purpose of the international standards themselves. Another aspect which requires attention in any discussion on individual rights and group rights and on abstract and contextualised universality of human rights lies in the fact that groups are not homogenous. Therefore, the recognition of the relevance of social groups for the realisation of

Introduction: Group Rights and Human Rights 7 human rights has to include the understanding that, within the group itself, there might be dissent or difference of opinion which needs to be taken into account in devising policy. The margin of appreciation in the interpretation of universal human rights should take the reality of social groups into account but should not lose sight of the fact that within a group itself there could be different opinions concerning cultural or religious traditions. There are no generally applicable formulae to deal with these issues. The solution lies in process rather than in substantive norms. The need for a deliberative and democratic dialogue is essential for dealing with these situations. And again, when a person belonging to a group deviates from the group’s culture and insists on his or her human rights (such as the right to freedom of thought, conscience and religion, freedom of expression or freedom of movement) the presumption in favour of individual’s human rights must prevail over the cultural identity of the group. Hypotheses like the ones suggested above require careful discussion and empirical research. The present volume offers a great deal of material for both. It makes a strong case in favour of a multidisciplinary approach to human rights and explores the origins and social, anthropological and legal/political dimensions of human rights and the internationally recognised group rights. On that basis, a discussion on the universality of human rights takes place. It explores legal issues such as the reservations to international treaties and methodological questions, including the question of deliberative processes which allow seemingly absolute requirements of human rights to be reconciled with culturally sensitive norms prevailing within various groups. This part of the discussion ends with a philosophical reflection on the universality of human rights focusing on the issue of the legitimating role of human rights in contemporary normative discourses. Given that the content of human rights norms is not precisely defined, these norms are themselves subjected to the practice of universalisation. It is important that such a practice strengthens the liberating effect of human rights and maintains their legitimating function. Based on such general considerations, the discussion in the present volume continues with a focus on specific contexts which include the situations of women, school communities, ethnic and linguistic minorities, migrant communities and impoverished groups. These insights help us to understand some of the specific circumstances in which the realisation of human rights takes place and in which the variety of group identities plays an important role in shaping the actual reach of human rights. The final part of the volume discusses the current ‘state of play’ of human rights and group rights in international law, in international relations and in the context of internationally sponsored development policies. This part of the discussion offers a meticulous and critical presentation of the legal regulation of human rights and group rights and points to numerous weaknesses which continue to exist and which call for additional work by legal thinkers

8 Danilo Türk and practitioners. It also shows that the international relations discussion on human rights remains relatively weak and dominated by non-human rights considerations. Similarly, the international development policy processes which have, at the level of proclamation, included human rights in policy pronouncements still have a long way to go to incorporate human rights and group rights adequately into actual development practice. The discussion of group rights, while always a part of the human rights discourse, has been gaining importance in the past decade or so. This is not, as the present volume shows, a result of a normative evolution but rather of the needs felt in increasingly complex societies and of the questions raised as to whether the normative world of human rights can offer meaningful solutions to deal with the issues arising in this context. The path to such solutions is likely to be long and will not yield results simply on the basis of a legal exegesis. The narrative of human rights is becoming more sophisticated and capable of achieving the objective of the full realisation of human rights—proclaimed in the Universal Declaration of Human Rights almost 60 years ago—closer to reality.

Part I

The Multidisciplinary Approach to Rights

1 In Defence of a Multidisciplinary Approach to Human Rights KOEN DE FEYTER

KNOWLEDGE THROUGH DISCIPLINE

I

n order to master knowledge, science approaches disciplines in terms of divisions. If one wants to answer the question: ‘who is a child?’ the usual scientific approach is to divide the question into smaller disciplinary questions. This allows answers that are sufficiently precise and meaningful, ie of practical use, to be provided. Depending on the discipline, the response may consider the stage of physical development of the person, maturity of behaviour, societal perceptions, or Article 1 of the Convention on the Rights of the Child.1 Immediately, the limitations of a disciplinary approach become clear. None of these responses fully catches our real-life experience of children. Each discipline favours a different kind of evidence in order to define a child. Deciding which of the perspectives should prevail probably varies with the problem at hand—whether she has the flu, refuses to go to bed, wants to earn money, or wishes to live with her mother rather than her father. Article 1 of the Convention on the Rights of the Child has many merits, but deciding what medicine my youngest son should take is not one of them. A discipline thus allows certain types of evidence to be singled out, while other aspects of the object of study can be left aside because they are not relevant within the disciplinary framework, and should be dealt with elsewhere, and by others. Reality is complex, but the disciplinary lens allows us to make sense of it, and to act on specific problems: ‘Disciplinary boundaries are of utility in advancing knowledge, because “each discipline throws light on a set of variables precisely because other factors are assumed to be external”’.2

1 See Convention on the Rights of the Child (20 November 1989), Art 1: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. 2 R Bank and D Lehmkuhl, ‘Law and Politics and Migration Research’ in M Bommes and E Moravska (eds), Reflections on Migration Research: Constructions, Omissions and Promises of Interdisciplinarity (Aldershot, Ashgate, 2004), p 16.

12 Koen De Feyter Depending on the problem, society turns to a different professional—a paediatrician, a social worker, a lawyer—who has specific expertise to offer. There is no general expectation that each expert knows the other expert’s field, even if all experts share the same object of study. Experts in one category may confer with experts in the other category, but they mainly talk among themselves. Disciplines create ‘communities of competency’3 that share a specific set of goals, concepts, skills and methodologies. Vick points out4 that distinctions between areas of knowledge are essentially a social construction, strengthened by disciplinary education as a prerequisite for entry into a professional career. Once boundaries are settled, disciplines evolve their own modes of discourse. New information needs are processed through a set of preexisting cognitive structures. Disciplines also maintain order and control; they are a power structure through which decisions on inclusion or exclusion are made. Disciplines exercise discipline, and are essentially self-regenerating. Communities of competency thrive at universities. In the words of Canadian political philosopher Ralston Saul, a university is: A place in which civilization’s knowledge is divided up into exclusive territories. The principal occupation of the academic community is to invent dialects sufficiently hermetic to prevent knowledge from passing between territories. By maintaining a constant flow of written material among the specialists of each group they are able to assert the acceptable technique of communication intended to prevent communications. This in turn establishes a standard which allows them to dismiss those who seek to communicate through generally accessible language as dilettantes, deformers or populisers.5

At the same time, academics tend to celebrate individualism. Talk about duties owed to the faculty and collective research is met with disgruntled appeals to academic freedom. As Cervantes once remarked in a completely different context: ‘It’s one thing to praise discipline, and another to submit to it’. So, inevitably, the insistence on disciplinary divisions creates a counter-reaction, most visibly through the setting up of educational programmes (particularly at the Bachelor level) that defy disciplinary boundaries, and refer back (at least rhetorically) to historical ideas of unity and synthesis of knowledge. Reese points out that in practice, multidisciplinary educational programmes are often limited to offering a taste of many disciplines. Integration is not attempted. He picks out ‘Cultural Studies’ as an example of an educational programme built on ‘an amalgam of methods and points of view’: The chimerical and spectral term ‘cultural studies’ is often invoked to describe an allied group of approaches and attitudes. As Patrick Brantlinger asserted, ‘cultural 3 The concept is borrowed from T Reese, ‘Mapping Interdisciplinarity’ (1995) 77 Art Bulletin 544. 4 DW Vick, ‘Interdisciplinarity and the Discipline of Law’ (2004) 31 Journal of Law and Society 167. 5 JR Saul, Doubter’s Companion: a Dictionary of Aggressive Common Sense (Toronto, Penguin, 1994), p 301.

In Defence of a Multidisciplinary Approach to Human Rights 13 studies is conceived not as a tightly coherent, unified movement with a fixed agenda, but as a loosely coherent group of tendencies, issues, and questions … [It] does not reflect a single ‘field’ theory, or methodology, but makes use of several—Marxism, feminism, deconstruction, psychoanalysis, ethnology.6

A different kind of pressure on disciplinary divisions came from the business world that urged the academic community to offer more general skills training, and particularly skills not connected to the specific discipline. Students of medicine should learn how to show empathy with patients, lawyers should be able to negotiate and take classes on speaking in public, and everyone should have multiple languages and master IT. But the push to move beyond disciplinary boundaries is not limited to the field of education. It also extends to research. In her classic book on Interdisciplinarity, Klein offers the following list of objectives that interdisciplinarity seeks to achieve: Educators, researchers, and practitioners have all turned to interdisciplinary work in order to accomplish a range of objectives: — — — — —

to to to to to

answer complex questions; address broad issues; explore disciplinary and professional relations; solve problems that are beyond the scope of any one discipline; achieve unity of knowledge, whether on a limited or grand scale.7

In theory, a clear distinction can be drawn between interdisciplinarity and multidisciplinarity. Multidisciplinarity refers to the sum total of knowledge derived from different disciplines on a given subject. As a minimum, multidisciplinary work requires ‘the mutual awareness of other (sub) disciplines’ onthologies, epistemological assumptions and methodologies as indispensable preconditions for reaping the benefits of cooperation across disciplinary boundaries’.8 Integration is key to an interdisciplinary approach. This may consist of the use of a methodology that somehow escapes disciplinary limitations, and catches reality more fully, or of the development of a grand theory on a specific issue that is disconnected from any specific discipline, but is based on an amalgam of methods and findings. Real research ventures, educational programmes or strategies may defy easy classification under either label. Even multidisciplinarity brings many risks. Most scholars only engage in multidisciplinary work after completing a disciplinary training. In practice, multidisciplinarity then means opening up to insights from disciplines that one is almost inevitably less familiar with. Klabbers notes that interdisciplinarity 6

Reese, n 3 above. JT Klein, Interdisciplinarity: History, Theory and Practice (Detroit, Wayne State University Press, 1990), p 11. 8 Bank and Lehmkuhl, n 2 above, p 2. 7

14 Koen De Feyter ‘often presumes a flat, one-dimensional vision of the discipline-to-relate-with’.9 This happens, for instance, when for the sake of expediency international relations theory is reduced to a single school of thought, such as realism, or to a significant author within that school (say Morgenthau or Huntington). A similar problem arises when concepts are borrowed from another discipline without the rigour that the discipline itself requires. A relevant example is the widespread use of the notion of ‘generations’ of human rights in legal and political science-oriented research. Civil and political rights are referred to as the first generation of human rights. Economic, social and cultural rights are the second generation. Collective rights constitute the third. The term ‘generation’ is borrowed from history: the implication is that the historical development of human rights went through three successive phases. Historians, however, point out that during previous centuries this linear development of human rights never happened.10 Talk about generations of human rights became popular during the Cold War period because it served the agendas of different geopolitical groups. Perceiving of civil and political rights as the first generation allowed their importance to be stressed. Ironically, during the Cold War period itself, the different categories of human rights developed at a different pace at the international level, precisely because of the impact of the ideological divisions between East and West, and North and South. Talk of ‘generations’ of rights declined again after the Cold War when, at the 1993 World Conference on human rights, the United Nations officially proclaimed the equal importance of all human rights. An appeal to multidisciplinarity may serve an agenda that would be more difficult to achieve if disciplinary rigour applied. The remainder of this text will discuss the merits of a multidisciplinary approach to human rights. The starting point, however, will be law. There are two arguments for starting with law. An objective argument is that after 1945, law became the dominant human rights discipline, for reasons set out below. Multidisciplinarity in human rights mainly emerged as a critique of an exclusively legal approach. It therefore makes sense to first explain what that legal approach consists of. Subjectively, my own training is as a lawyer. Law, and in particular international law, determines my perspective on multidisciplinarity.11 It may be useful to briefly offer a flat one-dimensional view of law as a discipline before moving into the area of human rights. Dictionaries define law as a collection of rules of general application that govern the relationships between human beings and can be enforced by an authority. Lawyers

9 J Klabbers, ‘The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity’ (2005) 1 Journal of International Law and International Relations 37. 10 Compare M Freeman, Human Rights (Cambridge, Polity Press, 2002), p 39. 11 The choice for ‘multidisciplinarity’ rather than ‘interdisciplinarity’ in the title of this chapter reflects this limitation.

In Defence of a Multidisciplinary Approach to Human Rights 15 mainly work with text (where the law can be found). Methodologically, the essence of the discipline is to use ‘particular interpretive tools and critical techniques in order to systemise and evaluate legal rules and generate recommendations as to what legal rules should be’.12 Interpretation is of particular importance because although laws are generally applicable, they need to be applied to specific instances of infinite variety. LEGALISATION OF HUMAN RIGHTS AS PROGRESS

The inclusion of references to human rights in the UN Charter and the subsequent adoption by the United Nations of the Universal Declaration of Human Rights (UDHR) in December 1948 served as the starting point for the legalisation of human rights at the international level. Human rights violations became an issue of legitimate international concern to which, if the violations were sufficiently serious, the defence of domestic sovereignty was of no avail. The Universal Declaration has had, in the words of Richard Falk, ‘an extraordinary cumulative impact on the role of human rights in international political life’.13 The adoption of the UDHR boosted the idea that human rights were of universal validity, and the text still enjoys wide support in both governmental and civil society circles. The Universal Declaration has acted as a ‘persuasive, liberating force for individuals and groups’14 even in contexts unforeseen by the drafters of the text (such as decolonisation). In law, the Universal Declaration was a non-binding resolution of the UN General Assembly, but it set the direction for the standard setting and monitoring activities of the United Nations in the field of human rights. International human rights law developed out of the UDHR. The United Nations currently identifies seven core international human rights treaties that are binding on the states that become a party to them.15 With 12 DW Vick, ‘Interdisciplinarity and the Discipline of Law’ (2004) 31 Journal of Law and Society 165. 13 R Falk, Human Rights Horizons (London, Routledge, 2000), p 53. 14 J Lindgren Alves, ‘The Declaration of Human Rights in Post-modernity’ (2000) 22 Human Rights Quarterly 500. 15 The core international human rights treaties are: International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965 (173 states parties); International Covenant on Civil and Political Rights, 16 December 1966 (160 states parties); International Covenant on Economic, Social and Cultural Rights, 16 December 1966 (155 states parties); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18 December 1979 (185 states parties); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984 (144 states parties); Convention on the Rights of the Child, 20 November 1989 (193 states parties); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 18 December 1990 (35 states parties). Status of ratification on 6 December 2006, except CEDAW, status of ratification on 2 November 2006 and Migrant Workers’ Convention, status of ratification on 25 January 2007.

16 Koen De Feyter the exception of the Migrant Workers’ Convention, the treaties have been widely ratified. Non-ratifying states are still bound by human rights law to the extent that human rights have become part of customary international law. Both the International Court of Justice and the international criminal tribunals have asserted in their case law that (a number of) human rights have achieved the status of international customary law.16 The normative development of international human rights law still continues (the International Convention on the Rights of Persons with Disabilities was adopted on 13 December 2006, and the International Convention on the Protection of all Persons from Enforced Disappearance was adopted on 6 February 2007), but it can safely be said that a comprehensive body of international human rights law now exists that entails binding obligations for all states. The human rights treaties provide for committees of experts that monitor the implementation of the treaty provisions by their states parties. Some of these monitoring bodies dispose of individual complaint procedures that produce non-binding decisions. The development of these procedures has contributed to the recognition that individuals now enjoy (limited) international legal personality, ie that they hold rights and duties directly under international law that they can enforce autonomously. The UN Charter-based political bodies, which consist not of individual experts but of governments, complement the treaty monitoring bodies. For decades the most important among these bodies was the UN Commission on Human Rights. On 15 March 2006, the UN Human Rights Council replaced this body.17 Since 1993, the High Commissioner for Human Rights has served as the principal UN official with responsibility for human rights. Canadian national, Louise Arbour, currently holds the post. Her office provides administrative and substantive support to the treaty monitoring bodies and the UN Charter-based bodies, but it also has the more substantial tasks of supporting human rights at the domestic level, and of mainstreaming human rights in the whole of the United Nations system (including at the UN Security Council and the UN specialised agencies, many of which have ‘some concern’ for human rights, but not necessarily consistent policies). Developments at the international level coincided with the legalisation of human rights at the regional level (in the context of regional intergovernmental organisations, such as the Council of Europe, the Organisation of

16 See J Oraa, ‘The Universal Declaration of Human Rights’ in F Gomez and K De Feyter (eds), International Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto, 2006). 17 For a handbook on the new body, see M Abraham, A New Chapter for Human Rights: a Handbook on Issues of Transition from the Commission on Human Rights to the Human Rights Council (International Service for Human Rights and Friedrich Ebert Stiftung, 2006).

In Defence of a Multidisciplinary Approach to Human Rights 17 American States and the African Union) and at the domestic level (human rights were included in numerous domestic constitutions and in national legislation). The building of a global legal architecture, including norms and institutions at various levels of regulation, constituted tremendous progress for human rights. As Donnelly points out, the demands of most human rights advocates and victims today still typically involve direct or indirect appeals for effective legal protection or redress.18 Law brought enforceability to human rights in many parts of the world. Individuals who felt that their rights were violated could stand up for themselves in court instead of having to rely on benevolence. Those entrusted with providing protection became accountable. The process of legalisation of human rights also established law as the dominant discipline in human rights. Many lawyers perceive of legalisation as the final phase in the development of human rights. Legalisation perfected human rights. They moved from the realm of ideas to the world of practical solutions. As codification and confidence progressed, the argument emerged that only legal rights could qualify as human rights. Human rights that could not be enforced through law were not rights at all; they were mere claims. Lawyers taking this line were at least implicitly declaring other disciplines irrelevant, or at best of secondary importance to human rights. In Donnelly’s words: Law interacts with but it is also distinct from both morality and politics … Legal norms ordinarily trump not only mere preferences but appeals to social utility … It is thus of immense practical importance that virtually all states have accepted human rights as a matter of positive international legal right.19

The essence of the legal art of human rights consists of the application of human rights law to a specific case. A human rights lawyer confronted with an individual complaint alleging a violation (usually by the state) goes through a number of steps in order to assess whether the law was violated in the specific instance. Nowak describes the process as follows:20 Scope of application—does the measure that is complained of involve a human right as defined in the applicable law? Interference—does the measure interfere with a human right? Justification—are there grounds for justifying interference, and if there are, has the proportionality principle been respected (does the measure not go too far even if the aim of the restriction was legitimate)? Without justification (lawful restriction), an interference amounts to a violation. 18 J Donnelly, ‘The Virtues of Legalization’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006), p 77. 19 Ibid p 69. 20 M Nowak, Introduction to the International Human Rights Regime (Leiden, Martinus Nijhoff, 2003), p 57.

18 Koen De Feyter Perhaps a further step could still be added: Reparation—if a violation is established, was a remedy provided to the victim resulting in adequate reparation of the damage?

Such a test can easily be applied to a situation involving a tension between individual and group rights. A government may wish to prohibit the screening of a film in an art cinema because it deems the film offensive to the feelings of the religious majority in the region, and because it fears riots will break out if the film is shown.21 Clearly, the ban falls within the scope of freedom of expression, and constitutes an interference with the individual right of the film-maker to publicly express an opinion. The government may invoke deference to majority views and the need to maintain public order. Even if that justification is accepted, the government will need to show that prohibiting the screening was really necessary to achieve the aim. Could measures less restrictive of the film-maker’s freedom not have achieved the same aim? If the government fails to convince, a violation is established, and a remedy needs to be provided. Would the delayed release of the film be sufficient or should monetary compensation also be offered to the film-maker and the owner of the cinema? Usually the person in charge of deciding these questions is a judge. Judges play an essential role in human rights law, because human rights norms tend to be formulated in general terms, and in case of a conflict between the parties on how a norm should be interpreted in a specific case, the judge will have the final say. The application of the proportionality principle in particular involves a degree of personal assessment. The profile of the judge clearly matters. Ideally, judges have been trained in human rights law, and are therefore able to successfully resolve difficult problems involving different moral standpoints, that would not easily be solved through politics.22 On the other hand, the political or societal context may also influence the judge. Context may explain why judges give divergent interpretations to the same international treaty in different domestic legal orders.23 In any case, as Freeman points out,24 giving a key role to judges is not a politically neutral choice, and the ideal judge that human rights law has in mind, may not materialise in reality.25 21 Compare Otto Preminger Institute v Austria, European Court of Human Rights, 13470/87 [1994] ECHR 26 (20 September 1994). 22 Compare B Cali and S Meckled-Garcia, ‘Introduction’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006), p 3. 23 Bank and Lehmkuhl offer the example of the diverse interpretations by national courts of the ‘refugee’ definition in the Geneva Convention relating to the Status of Refugees, 1951, and particularly the issue of whether persons persecuted by private actors come within the scope of the definition. See Bank and Lehmkuhl, n 2 above, pp 3–4. 24 M Freeman, ‘Putting Law in its Place’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006), p 49. 25 For a sobering global survey of the conditions in which judges work, see S Oxner, ‘The Quality of Judges’ (2003) 1 World Bank Legal Review 307.

In Defence of a Multidisciplinary Approach to Human Rights 19 Different meanings have been attached to the term ‘group’ rights. There was no particular difficulty in achieving legal recognition of rights of specific categories of human beings. Each time, the argument was that there was a need to complement the protection available under general human rights treaties with tailored provisions providing additional protection for the relevant category. Even some of the ‘core’ treaties deal with categories of persons: women, children and migrant workers. Somewhat perplexingly, the CEDAW Convention and the Convention on the Rights of the Child are now more widely ratified than the generally applicable human rights covenants. Additional human rights instruments deal with refugees, victims of trafficking, older persons, human rights defenders, and so on. The list will no doubt continue to expand. Some controversy remains about why some categories are singled out and others not, about whether the effect of singling out a category makes it more difficult for members of that category to access general human rights protection, and on whether the inflation of special regimes undermines the general applicability of human rights. Far less progress has been achieved in the legal recognition of collective rights at the international level. The right to self-determination makes a proud appearance as common Article 1 of the 1966 International Covenants, where it is defined as the right of a people: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.26

In post-colonial practice, the right to self-determination has been understood (with a few high profile exceptions like the Blacks in South Africa during the apartheid regime and the Palestinians) as the right of a population of an existing state to be protected against foreign domination, rather than as the right of a group sharing common characteristics to set up a state or to autonomy within a state. In the 1970s and 1980s, a proposed new category of collective solidarity rights was much discussed.27 These rights would have included not only the domestic state as the duty holder in human rights, but the international community as a whole—hence the reference to solidarity. The right to development stems from this tradition and has achieved a degree of legal recognition. The right to development is also part of the UN High Commissioner’s brief, but its precise implications remain as controversial as ever.28 26

International Covenant on Civil and Political Rights, 19 December 1966, Art 1, para 1. For the start of the discussion, see K Vasak, ‘Le droit international des droits de l’homme’ (1972) 51 Revue des Droits de l’Homme 43, and for a recent assessment see F Gomez, ‘International Protection of Human Rights’ in F Gomez and K De Feyter (eds), International Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto, 2006), p 35. 28 Compare K De Feyter, Human Rights: Social Justice in the Age of the Market (London, Zed Books, 2005), pp 111–14. 27

20 Koen De Feyter Discussions on minority rights and rights of indigenous peoples are certainly alive, also in the context of whether the right to self-determination should apply to groups within states. Collective rights of groups go beyond individual human rights in that they directly challenge territorial divisions among states, or within states. Collective rights of groups are not primarily about limitations or duties that the state needs to take into account when exercising authority, but about whether the state is entitled to exercise authority at all. Precisely because they often imply a direct challenge to the authority of the state, it should come as no surprise that the community of states in its capacity as international legislator has been reluctant to give much legal recognition to this category of rights. PERSPECTIVES ON HUMAN RIGHTS LAW FROM OTHER DISCIPLINES

Explaining the Limits of Law Lack of Compliance Lack of compliance is a major problem in human rights law. There is a gap between the norms that are proclaimed and their actual implementation. The legal discipline can offer a partial explanation of why this is so. Human rights norms can be evaluated. Their weaknesses can be discovered. Recommendations can be formulated as to how wording can be improved. Any student of human rights law will establish very quickly that international human rights treaties include norms that are imprecise or conditional, and that international monitoring mechanisms provide few remedies. There is no legal reason why these flaws could not be remedied. Dispute settlement bodies in international trade law, for instance, routinely impose legally binding decisions and sanctions in case of non-compliance. Nevertheless, disciplines other than law offer more in-depth explanations of why problems of compliance arise at a particular regulatory level. They identify factors from outside the legal sphere: while the lawyer looks at the letter and system of the law and therefore at the visible outcome, the political scientist looks at the processes which led there instead, the politics lying behind it, and how things work in practice, reflecting a large variety of influential factors.29

A real understanding of compliance problems in international human rights requires building on insights from international relations theory, for the simple reason that international human rights law is a product of the international relations between states. It is a principle of international law that states can only be bound by their own consent, and thus cannot be forced to ratify international human rights treaties. But it is international relations 29

Bank and Lehmkuhl, n 2 above, p 6.

In Defence of a Multidisciplinary Approach to Human Rights 21 theory that explains why states undertake international commitments or refuse to do so, why other states insist on compliance or not, and whether states are vulnerable to such pressure or not. Those factors are essential in understanding the selectivity of the United Nations’ political human rights bodies, or the weaknesses of the wording and the monitoring mechanisms in the treaties: There is a continuous attempt to balance the interests identified by human rights claims with the interests of political community, the State and nation. That continuous attempt is characteristic of international human rights law. It is also the source of discrepancy between human rights ideals and international human rights law.30

Insights from international relations theory are essential in order to assess objectively what the international human rights regime can and cannot achieve: not in order to ‘sell out to the realists’31 but in order to devise a human rights strategy that uses the different regulatory levels as effectively as possible. Sociology is traditionally concerned with understanding similarities and differences in the way societies develop. These are made clear through cross-cultural comparison and by identifying variables that impact on and explain social action. Human rights gradually became sufficiently significant to be studied as a variable: an external (part of the international environment that influences how societies develop) or internal (a value supported by domestic social groups) factor that influenced social action at the domestic level. When sociologists turn to human rights as a study object, their interest is in the social construction of rights, ie they will point out that human rights are historically situated and contextually bound: Rights are neither self-generated nor self-enforcing, but rather summarise, make concrete, and depend for much of any protective effectiveness they may possess on the nature of wider sets of social relations and developments within them.32

Sociologists are therefore also able to offer explanations of why human rights compliance varies in different societies. In her study on abuse of personal integrity rights in three societies (Cuba, El Salvador and Nicaragua), Gomez describes her methodology as ‘comparative-historical sociology’. This involves the use of analytical historic narrative allowing her to sequence and order historical events, which can be studied for their causal significance. The comparative component aims at defining the limitations 30 S Meckled Garcia and B Cali, ‘Lost in Translation’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006), p 25. 31 J Klabbers, ‘The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity’ (2005) 1 Journal of International Law and International Relations 41. 32 A Woodiwiss, ‘The Law Cannot be Enough’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006), p 37.

22 Koen De Feyter of theory generalisation and establishing an empirical basis for policymaking.33 Gomez identifies both internal and external factors that explain shifts in degree and types of abuse over time. The external factors include geopolitical shifts, external support of abusive regimes, external threats, international peace initiatives and international normative criticism. The internal factors include internal threats and pressures, sudden and undemocratic regime changes and state fragmentation.34 Although law is relevant in framing some of these factors (laws can facilitate international criticism, formally protect territorial integrity and democracy, etc.), the significance of law is not highlighted. Rather than law, the key concept used in the study to explain change in behaviour is ‘pressure’ that is ‘conceptualised as operating on a continuum which ranges from “threat” to “support”’,35 and can be internal as well as external. Another more recent sociological contribution focuses on the effectiveness of global human rights campaigns by transnational advocacy networks.36 Interestingly, the scope of this research may well extend beyond how such networks impact on domestic society, and focus instead on the global ‘society’, ie on how social interaction takes place at the international level. As a consequence of globalisation, global social spaces have now become a valid object of sociological or anthropological research.37 Studies on how civil society campaigns influence international standard setting or the creation of new international institutions38 are a good example of this type of research. O’Byrne makes a conscious effort to analyse various human rights problems, such as genocide, from a multidisciplinary perspective.39 No doubt a valid starting point for a study on genocide is the legal definition contained in the 1948 UN Genocide Convention:40 In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group;

33 M Gomez, Human Rights in Cuba, El Salvador, and Nicaragua: a Sociological Perspective on Human Rights Abuse (London, Routledge, 2003), pp 85–8. 34 Ibid pp 184–91. 35 Ibid p 92. 36 A term coined by M Keck and K Sikkink in their Activists Beyond Borders (Ithaca, Cornell University Press, 1998). 37 For an interesting example of such an approach, see Engle Merry’s analysis of global human rights negotiations in S Engle Merry, Human Rights and Gender Violence (Chicago, University of Chicago Press, 2006), pp 36–71. 38 See eg P Gready (ed), Fighting for Human Rights (London, Routledge, 2004). 39 DJ O’Byrne, Human Rights: an Introduction (Harlow, Pearson, 2003). 40 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, Art 2.

In Defence of a Multidisciplinary Approach to Human Rights 23 (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

Clearly, the legal prohibition of genocide did not prevent the occurrence of a number of genocides after the Second World War, even if states ratifying the Convention were under a legal obligation to prevent genocide.41 A legal critique of the Convention may show that the international definition omits social and political groups as victims of genocide (the mass killings perpetrated by the Khmer Rouge in Cambodia were ideologically driven) and that a monitoring mechanism is completely absent.42 But as O’Byrne points out, an explanation of why genocide occurs requires going beyond the defects of the Convention. The genealogy of genocides needs to be traced over time. An insight into theories of human nature is necessary in order to understand the psychology of perpetrators. A study of the nature of societies will explain under what conditions they develop a capacity for genocide.43 These conditions include scarcity and unequal distribution of resources, with rival groups competing to achieve control, and thus point to the usefulness of a political economy44 analysis. It also follows that only a multidisciplinary strategy is able to address the prevention of genocide in a meaningful way. Limited Impact of Litigation The preferred strategy for establishing violations and ensuring reparation in human rights law is the litigation of individual claims. Assessments of violations depend on an analysis of the specificities of the individual case under review. Not only are human rights formulated as individual rights, access to procedures both at the domestic and at the international level that provide remedies are open primarily to individual claimants, even if the purpose of the complaint is to highlight the plight of a community or a structural cause of violations (such as gender discrimination or poverty). The individualisation of human rights claims does not facilitate dealing with group matters. The complaints procedure attached to the International Covenant on Civil and Political Rights (ICCPR) offers a case in point. While the Covenant includes the collective right to self-determination, the UN Human Rights Committee (the ICCPR monitoring body) has held that only

41

Ibid Art 8. The Statute of the International Criminal Court was adopted in 1998, 40 years after the Genocide Convention. 43 O’Byrne, n 39 above, pp 299–336. 44 Political economy focuses on the interaction between the market and the state, both at domestic and international levels. 42

24 Koen De Feyter individuals claiming violations of their individual human rights can access the complaints procedure under the Optional Protocol to the ICCPR.45 It is therefore impossible to argue a violation of the right to self-determination before the complaints procedure of the UN Human Rights Committee. Although decisions by courts or monitoring bodies establishing a violation may award individual damages to the plaintiff, they will usually not consider the collective dimensions of the complaint: The European Court’s case law unreservedly adheres to these traditional views. Even in the cases of gross violations with a discriminatory connotation against a specific group of people (such as the destruction of houses and villages of Kurds in the South-East of Turkey), the Court adopts a strict individualistic approach to financial compensation and it never has awarded damages to a community of people or to a village as such.46

Any positive impact on the community will have to occur indirectly, by way of a trickle-down effect that the publicity attached to the case may generate. In the end, governmental action in favour of the community as a whole, or in favour of those in similar situations, may or may not take place. Judicial bodies sometimes order that appropriate legislative reform should be undertaken in order to avoid a repetition of the violation, but such orders usually leave a wide margin of discretion to the executive. The repercussions of the Grootboom decision of the South African Constitutional Court offer a good illustration. The Grootboom judgment received enormous attention at the international level as a breakthrough case on the justiciability of economic, social and cultural rights. The case was brought by 900 people who had erected dwellings on vacant land that was privately owned. When faced with eviction, they brought a complaint before the Constitutional Court based on the right to housing, which is guaranteed by the South African Constitution. According to the Constitutional Court, the Constitution did not oblige the state to provide basic shelter immediately upon demand, but it did require a housing programme with measures that were reasonable both in their conception and implementation. It was unreasonable

45 See eg Lubicon Lake Band v Canada, UN Human Rights Committee, Communication No 167/1984 (26 March 1990) UN Doc Supp No 40 (A/45/40) at 1The Committee added that there was no objection to ‘a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights’. The case involved indigenous people in Canada who argued that their right to self-determination was violated by commercial logging activities on their territory to which they had not consented. 46 H Rombouts, P Sardaro and S Vandeginste, ‘The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights’ in K De Feyter, S Parmentier, M Bossuyt and P Lemmens (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Antwerp, Intersentia, 2005), p 391. For a rare example of a collective compensation award, see M Nowak, ‘Reparation by the Human Rights Chamber for Bosnia and Herzegovina’ in K De Feyter, S Parmentier, M Bossuyt and P Lemmens (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Antwerp, Intersentia, 2005), p 254.

In Defence of a Multidisciplinary Approach to Human Rights 25 that the nationwide housing programme failed to recognise that the state must provide relief for those in desperate need.47 Although very important in principle, the practical impact of that judgment both for the community and the society at large remained limited, primarily because the Court refrained from ordering concrete measures or from identifying a branch of the government responsible for implementation. A newspaper journalist who visited the area four yours later found that the living conditions of the community were as inhuman as they were at the time of the judgment. None of the state authorities at any of the different levels took full responsibility for implementing the judgment.48 In addition, according to a recent study, the Court’s intervention did little to change access to basic emergency shelter in South Africa generally.49 Arguably, the Constitutional Court should have taken a more proactive stance and should have awarded more coercive relief, but nevertheless limits remain as to the remit of judicial organs (as opposed to legislative and executive organs) to set policy. Clearly, the impact of litigating cases on the human rights situation in the society at large varies. Legal victories in human rights cases may be of symbolic value, and of immediate practical use only to the individual claimant. The impact on society as a whole depends on politics and social action, not on the judgment as such. Some have argued that establishing accountability for individual human rights violations can even be counter-productive from a human rights point of view, because a focus on individual violations may create the false impression that structural causes underlying the violations are addressed, and impede real action. Mamdani thus developed the argument that it is less important for the future of human rights in post-genocide Rwanda to hold perpetrators of human rights violations accountable than to transform the racist and hierarchical structure of the Rwandan government and society.50 Legalisation as Closure Another critique of the legalisation of human rights is that it reduces the content of human rights to their legal definition. Although it is clearly advantageous to the victim that she is able to argue human rights in law, care should be taken not to define human rights in terms of their legal content alone.

47 Republic of South Africa and others v Irene Grootboom and others, Constitutional Court of South Africa, Case No CCT 11/00.2000 (11) BCLR 1169. 48 See B Schoonakker, ‘Treated with Contempt’, Sunday Times (South Africa), 21 March 2004. 49 R Dixon, Creating Dialogue about Socio-Economic Rights: Strong v. Weak-form Judicial Review Revisited, Working Paper no 3 (New York, NYU School of Law, 2006), p 2. 50 M Mamdani, When Victims Become Killers: Colonialism, Nativism and Genocide in Rwanda (Princeton, Princeton University Press, 2001), pp 270–6.

26 Koen De Feyter Both the UN Charter and the Universal Declaration of Human Rights avoid taking a position on the philosophical origin of human rights. The large majority of those involved in drafting the texts agreed on a common understanding of human rights, but their philosophical justifications varied. The Preamble to the UN Charter acknowledges that the source of human rights lies outside international law by reaffirming faith in fundamental human rights, rather than simply providing for them. Similarly, the Universal Declaration’s Preamble refers to the ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family’. On the one hand, it is important that the documents recognise that law is not the source of human rights, because this allows further normative development in human rights. By failing to identify the source of human rights, however, the documents give no direction to this process, leaving the field wide open to power politics. Freeman thus perceives of the Universal Declaration and the subsequent legalisation of human rights as an attempted point of closure of the debate on the philosophical justification of human rights. Ignoring the philosophical origin of human rights is a problem, however, ‘because if the concept of human right has no philosophical justification, then its claim to have moral force is unfounded’.51 In reality, as codification progressed, the earlier norms set the direction. Proposals on new (aspects of) human rights had to fit within the confines of existing legal norms, and within the confines of existing legal techniques. There is no philosophical reason why only states (and not corporations, for instance) should have human rights obligations, but in current international law technically only states can ratify treaties containing legal obligations, which explains why the whole international protection system is based on the state as the duty holder, even if in practice many other actors may abuse human rights. For Baxi, the adoption of the Universal Declaration was of great importance, because it meant recognition by the international community of those whose suffered abuse, regardless of where they were. He conceives of peoples and communities as the primary authors of human rights. Their resistance to (abusive) power: at a second order level [is] translated into standards and norms adopted by a community of states. In the making of human rights it is the local that translates into global languages the reality of their aspiration for a just world.52

At the same time, the Universal Declaration was the starting point of a codification process based on negotiations among governments (who have

51

M Freeman, Human Rights (Cambridge, Polity Press, 2002), p 42. U Baxi, The Future of Human Rights (New Delhi, Oxford University Press, 2002), p 101. 52

In Defence of a Multidisciplinary Approach to Human Rights 27 legislative power in international law). The adoption of international norms created a distance between those experiencing abuse, and those deciding whether that abuse qualified as a human rights violation: when read sociologically, the coverage, content, inclusions and exclusions of rights texts tell us not only who is protected against what, but also the sort of people and the aspects of social relations that are especially valued (or not) by the governmental body responsible for constructing, approving and enforcing the regime.53

Governmental negotiations on human rights reflect the same power relations that determine the whole of international relations, and so outcomes will reflect the interest of hegemonic states. The search for broad coalitions also leads to an international human rights law that focuses on the lowest common denominator. The result is that human rights: As they are now predominantly understood … are a kind of Esperanto, which can hardly become the everyday language of human dignity across the globe.54

In the increasingly complex UN human rights architecture, very little remained of the bottom-up process of rights discovery that Baxi celebrates, so much so that rediscovering peoples and communities as primary authors (a process I have described elsewhere as localising human rights)55 is now a major challenge for the global human rights system, at least if the local relevance of human rights to Everyman is to improve. Poor communities may not recognise what they define as their primary human rights needs in international human rights law as it stands today. They may prefer ‘some other language of resistance’ in their attempt to achieve human dignity: social movements pose a central challenge to international law in several areas. First, they seek to displace the liberal theory of international politics with a ‘cultural politics’ that seeks alternative visions of modernity and development by emphasising rights to identity, territory and autonomy. Second, they show that the mainstream human-rights discourse is extremely limited which does not have the cognitive ability to ‘see’ much of the resistance of social movements. Engaging with the theory and practice of social movements is necessary to convert humanrights discourse from its narrow, state-centred, elitist basis to a grassroots-oriented practice of the subalterns.56

53

Woodiwiss, n 32 above, p 33. B De Sousa Santos, ‘Towards a Multicultural Conception of Human Rights’ in F Gomez and K De Feyter (eds), International Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto, 2006), p 69. 55 K De Feyter, ‘Localizing Human Rights’ in W Benedek, K De Feyter and F Marrella (eds), Economic Globalisation and Human Rights (Cambridge, Cambridge University Press, 2007), p 67–92. 56 B Rajagopol, International Law from Below (Cambridge, Cambridge University Press, 2003), p 271. 54

28 Koen De Feyter So it would seem that from a social justice perspective, there are two possible options: either reinterpreting human rights so as to open them up to human rights needs as locally perceived (with local perceptions to be established on the basis of social science research), or accepting the limitations of the human rights discourse and invoking other concepts to achieve a dignified life for more people. Such other concepts could include notions like (global) justice, solidarity, equity,57 and so on. Nevertheless, some groups are able to connect local agendas even to current international human rights law. In a fascinating account on the struggle of the Ogoni to achieve participation in oil exploitation in Nigeria, Bob58 shows that the reframing by the Ogoni of their claims in terms of human rights and environmental policies was essential in raising international awareness about their plight. The original Ogoni agenda was drafted in response to the domestic political context and focused on achieving political autonomy in Nigeria. Internationally, this was not a popular cause. Only when Ogoni organisations started highlighting environmental abuses caused by a major transnational corporation, and the violence used by Nigerian security forces against Ogoni opponents, were they able to put the Ogoni issue on the international agenda, first of major non-governmental organisations, and subsequently of the international community as a whole. Similarly, gender-based NGOs in India until the 1980s framed their activities in terms of ‘social work’ or ‘economic development’. The same NGOs now use the language of ‘violence against women’ and ‘human rights’. The change came about as a consequence of global networking; the use of human rights terminology enabled the groups to connect to UN organised conferences, coalitions working on women’s rights, and international donor agencies. Singh59 points out that there is a risk in reframing local issues in this way, namely a loss of identity for the organisation and a loss of control:

57 Note that even the European Union’s draft Constitutional Treaty (29 October 2004) offers a catalogue of values next to human rights on which its internal and external policies are based: ‘Article I-2 The Union’s Values: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. The 2006 World Bank Development Report advocates taking explicit account of equity in determining development priorities: public action should aim to expand the opportunities of those who, in the absence of policy interventions, have the least resources, voice, and capabilities. See World Bank, World Development Report 2006: Equity and Development (Washington, World Bank, 2005). 58 C Bob, ‘Globalization and the Social Construction of Human Rights Campaigns’ in A Brysk (ed), Globalization and Human Rights (Berkeley, University of California Press, 2002). 59 JP Singh, ‘Transnational, National or Local? Gender-based NGOs and Information Networks in India’ in S MacLean, F Quadir and T Shaw (eds), Crises of Governance in Asia and Africa (Aldershot, Ashgate, 2001).

In Defence of a Multidisciplinary Approach to Human Rights 29 the change in vocabulary influences the development of the group’s agenda, and may make it much more vulnerable to external influence (eg by donors that push their own preferences). Community organisations need to be strategic in the use they make of international human rights law, in order not to become irrelevant to issues that have important local, but little global, relevance or appeal. On the other hand, if international human rights law is to become more inclusive in terms of the protection it offers, it needs to open up more to human rights needs as defined by local communities. From a methodological perspective, much can already be achieved by interpreting existing human rights norms in the light of data collected through social science methods on how these norms relate to the living conditions of the relevant communities and how the communities themselves perceive of them. The final section of this chapter takes up this issue. Opening Up Law Articles 31 to 33 of the Vienna Convention on the Law of Treaties provides rules on how treaties are interpreted in international law.60 The Convention establishes a hierarchy of interpretative methods. According to the Vienna Convention, primacy should be given to the ordinary meaning of the text when such a reading leads to a reasonable result. The ‘ordinary’ meaning is the meaning as understood by the relevant disciplinary community, traditionally defined as the community of (international) lawyers.61

60 Vienna Convention on the Law of Treaties, 22 May 1969: ‘Art 31 General Rule of Interpretation: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended’. ‘Art 32 Supplementary Means of Interpretation: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable’. 61 D Vagts, ‘Interpretation and the New American Ways of Law Reading’ (1993) 4 European Journal of International Law 484, 507–8.

30 Koen De Feyter A special meaning can be given, if it can be shown that the parties that negotiated the agreement intended such meaning. The original intent of the drafters can also be taken into account to clarify the content of a provision. For multilateral treaties, like the human rights treaties, this may not be easy, as the intentions of the drafters may have differed; it is very possible that agreement was only arrived at because various interpretations of the text were possible. If sufficient time has elapsed since the adoption of the text, it may be preferable to take into account the meaning that contemporaries give to the text. Finally, a teleological method may be also be used, ie an interpretation reflecting the aim and purpose of the text. A teleological method allows much more flexibility, but as Vagts explains, it stands low in the hierarchy, because of the principle of international treaty law that states can only be bound by their consent. Consent is clear when a literal or intentional interpretation is used, but less sure when the courts use a teleological method.62 The traditional interpretive techniques in international law are deferential to states—too deferential for the purposes of human rights protection. Nevertheless, it is possible to argue an alternative approach that still uses the traditional techniques. In order to determine the ‘ordinary meaning’ of a human rights provision, use can be made not only of the expertise of the legal disciplinary community, but also of social scientists that can clarify how the relevant society perceives of the goods that rights protect (such as ‘family’, ‘privacy’, or ‘adequate living conditions’). It can also be argued that the aim of human rights treaties is to provide effective protection to all, and that therefore provisions of human rights treaties should be interpreted in such a way that they best achieve this result in the specific community under review. In 1981, the Indian Supreme Court faced a claim brought by a group of pavement dwellers in the city of Bombay who faced evictions from the streets and deportation to their places of origin outside the city by the municipal authorities.63 The pavement dwellers argued that the evictions were a violation of their right to life. Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. The Supreme Court found that the right to livelihood was a facet of the right to life, since no person could live without the means of livelihood. In order to determine whether the evictions of the slum dwellers would lead to deprivation of their livelihood, the Court turned to ‘empirical data compiled by agencies, official and nonofficial’.64 The Court found: 62 63 64

Ibid. Olga Tellis v Bombay Municipal Corporation, Supreme Court of India, 10 July 1985. Ibid para 2.3.

In Defence of a Multidisciplinary Approach to Human Rights 31 In the instant case, it is clear from the various expert studies that one of the main reasons of the emergence and growth of squatter-settlements in big Metropolitan cities like Bombay, is the availability of job opportunities, which are lacking in the rural sector. The undisputed fact that even after eviction, the squatters return to the cities affords proof of that position. These facts constitute empirical evidence to justify the conclusion that persons in the position of petitioners live in slums and on pavements because they have small jobs to nurse in the city and there is nowhere else to live. Evidently, they choose a pavement or a slum in the vicinity of their place of work, the time otherwise taken in commuting and its cost being forbidding for their slender means. To lose the pavement or the slum is to lose the job. The conclusion, therefore, in terms of the constitutional phraseology is that the eviction of the petitioners will lead to deprivation of their livelihood and consequently to the deprivation of life.65

For the group under consideration (nearly half of Bombay’s population) the right to life meant the right to live on the pavement. The finding was not based on the intention of the drafters of the Constitution, but on an analysis of the reality of living conditions in Bombay. Many would consider those living conditions degrading, but living on the pavement was essential to access an income. It could be objected that the Court’s decision was not based on an international treaty, but on the Constitution, and that it may be easier for a domestic court to assess local living conditions than for an international tribunal. It is certainly true that localisation of human rights implies that local content is given to a human rights norm in the domestic legal system that does not necessarily translate into regional or global interpretations of the same norm. On the other hand, from a substantive point of view, the Court could have easily reached the same conclusion had the case been brought under Article 6 of the ICCPR.66 In addition, nothing prevents regional or international courts from calling local witnesses or experts, or from analysing relevant domestic studies. The Awas Tingni community, a group situated in Nicaragua’s North Atlantic coastal region, claimed that Nicaragua had violated the American Convention on Human Rights by granting concessions to a Korean timber company for logging on the community’s traditional lands. After extensive domestic proceedings, the case went before the Inter-American Court of Human Rights. The Inter-American Court approached the issue from the angle of the right to property. Ironically, the right to property

65 Ibid. The Court also confirmed, however, that the Constitution did not put an absolute embargo on the deprivation of life. It only required that the procedure for the deprivation of life must be fair, just and reasonable. The Court then set a number of conditions that the procedure needed to satisfy, but refrained from ordering a moratorium of evictions until alternative settlement was provided. 66 ICCPR, Art 6(1) reads: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’.

32 Koen De Feyter is a controversial human right: it does not appear in the International Human Rights Covenants, primarily because it protects the rights of those who have property, but grants few entitlements to those who have none. Article 21 of the Inter-American Convention simply states: Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.

The legal question before the Court was whether this ostensibly individual right to property could be interpreted in such a way as to protect the collective claim to land of an indigenous community. The Inter-American Convention on Human Rights includes a specific provision on interpretation. Article 29(b) of the Convention played a role in the Court’s decision: Article 29. Restrictions Regarding Interpretation No provision of this Convention shall be interpreted as …: b. restricting the enjoyment or exercise of any right or freedom recognised by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party;67

In the Court’s view, Article 29(b) ‘prohibits a restrictive interpretation’68 of the rights in the Convention. Although the Court pays lip service to the preparatory work carried out for the Convention, it primarily argues that ‘international human rights treaties are living instruments, the interpretation of which should be adapted to changes over time, and, in particular, to present-day conditions’.69 By applying ‘an evolutionary interpretation’ the Court found ‘that article 21 of the Convention protects the right to property in the sense that it comprises, among other things, the rights of members of indigenous communities within the framework of communal possession, a form of property also recognised by Nicaragua’s Political Constitution’.70 In order to arrive at this finding, the Court heard some of the community leaders, but also a number of anthropologists as witnesses and experts.71 The anthropologists gave evidence on a wide range of issues.72 One witness had visited the area in order to assist the community in mapping the

67

American Convention on Human Rights, 22 November 1969, Art 29(b). Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, 21 August 2001, para 148. 69 Ibid para 146. 70 Ibid. 71 They were invariably called not by the government, but by the American Commission that had brought the case to the Court, after having investigated the original complaint by the Community, and having found in their favour. For a full analysis of the case, see S Anaya and C Grossman, ‘The Case of Awas Tigni v Nicaragua: a New Step in the International Law of Indigenous Peoples’ (2002) 19 Arizona Journal of International and Comparative Law 1. 72 For a transcript of the oral pleadings, see 19 Arizona Journal of International and Comparative Law. The journal published a full special issue on the Awas Tingni case. 68

In Defence of a Multidisciplinary Approach to Human Rights 33 lands they used and was questioned on how boundaries with neighbouring communities could be decided. Others were asked about the forms of exploitation of the soil in the area, and whether the community recognised individual forms of appropriation. The response was: It is a communal system, but inside the communal system there is individual usufructory use. This means that one cannot sell or rent the territory to people from outside the community. However, inside the community, certain individuals use a lot.73

The anthropologists agreed that the community considered the land as communal (also because they engaged in rotational subsistence farming that was almost semi-nomadic), but that internally, the community had mechanisms to assign possible use and occupation to its own members that did not allow alienation to others from outside the community. When the agricultural cycle of a cultivation plot ended, the plot reverted to the community.74 The system was embedded in indigenous customary law, which was not codified, but consisted of real practices that were carried out in different communities.75 Expert Rodolfo Stavenhagen was explicitly asked how indigenous peoples handled the tension between human rights and group rights: Of course, as you have indicated, because they are human rights, they are essentially human and belong to the human person. However, in certain conditions, in certain circumstances, in certain historic contexts, the rights of the human person are guaranteed and can be fully exercised only if the rights are recognised of the collectivity and the community to which this person belongs from birth, and of which he is a part, and which gives him the necessary elements to be able to feel fully realised as a human being. That also means a social and a cultural being … I consider that … the international community … has the challenge to develop new concepts and new norms that, without in any way injuring or encroaching on the human rights of the person, of the individual, on the contrary, would enrich them by recognising the social and cultural reality in which these violations occur.76

In its judgment, the Court relied heavily on the evidence brought by the anthropologists: 149. Given the characteristics of the instant case, it is necessary to understand the concept of property in indigenous communities. Among indigenous communities, there is a communal tradition as demonstrated by their communal form of collective ownership of their lands, in the sense that ownership is not centred in the individual but rather in the group and in the community. By virtue of the fact of their very existence, indigenous communities have the right to live freely on their own territories; the close relationship that the communities have with the land must be recognised and understood as a foundation for their cultures, spiritual 73 74 75 76

19 Arizona Journal of International and Comparative Law 171. Ibid 242. Ibid 184. Ibid.

34 Koen De Feyter life, cultural integrity and economic survival. For indigenous communities, the relationship with the land is not merely one of possession and production, but also a material and spiritual element that they should fully enjoy, as well as a means through which to preserve their cultural heritage and pass it on to future generations … 151. The customary law of indigenous peoples should especially be taken into account because of the effects that flow from it. As a product of custom, possession of land should suffice to entitle indigenous communities without title to their land to obtain official recognition and registration of their rights of ownership. 152. As already mentioned, Nicaragua recognises communal property of indigenous peoples, but it has not established the specific procedure for putting into practice that recognition, and hence there has been no issuance of titles of this type since 1990. Additionally, in the instant case, the State has not opposed the Awas Tingni Community’s proposition that it should be declared a proprietor, although there is dispute as to the size of area of that claim. 153. The Court deems that, consistent with the terms of article 5 of the Political Constitution of Nicaragua, the members of the Awas Tingni Community have a communal property right over the lands they currently inhabit, without prejudice to the rights of the neighbouring indigenous communities. However, the Court emphasises that the limits of the territory over which that property right exists have not been effectively delimited and demarcated by the State. This situation has created a climate of permanent uncertainty among the members of the Awas Tingni Community inasmuch as they do not know with certainty the geographic extension of their right of communal property, and consequently they do not know up to what point they may freely use and enjoy the corresponding resources. In this context, the Court considers that the members of the Awas Tingni Community have the right that the State, a) delimit, demarcate, and title the territory of the Community’s property; and b) cease, until this official delimitation, demarcation and titling is performed, acts which could cause agents of the State, or third parties acting with its acquiescence or tolerance, to affect the existence, value, use, or enjoyment of the resources located in the geographic area in which the Community members live and carry out their activities.77

The Court thus acknowledged that the content of the right to property, as incorporated in the regional human rights treaty, could vary according to the definition by the relevant group. The local concept of communal property, as attested to by the anthropologists, gave specific meaning to the abstract right in the treaty. It is striking that the regional court was more sensitive to the local reality than the domestic authorities involved in the situation. In any case, the judgment amply demonstrates that there is room within a legal reasoning (particularly in the context of the interpretation of text) to reflect empirical data from the social sciences. 77 Mayagna (Sumo) Awas Tingni Community v Nicaragua, Inter-American Court of Human Rights, 21 August 2001, paras 149, 151–3.

In Defence of a Multidisciplinary Approach to Human Rights 35 Goodale reflects on anthropology’s engagement with human rights since the American Anthropological Association in 1947 famously refused to endorse the idea of a universal declaration of human rights. He identifies two currents in the contemporary anthropology of human rights.78 According to the first school of thought, anthropologists should use their knowledge of specific cultural processes and meanings to reinforce specific projects for social change, to help prevent further encroachments against particularly marginalised populations, or to do both. The role played by the anthropologists in the Awas Tingni case fits very well in this model. In Goodale’s words, they argued for an expansion of the definition of human rights to increase its effectiveness for populations or cultures under threat. The second current builds on the ethnographic tradition, and perceives of human rights as a problem that must be studied empirically. The aim is to develop a comparative database that explains how human rights actually function, what they mean for different social actors, and how they relate empirically (as opposed to conceptually) to other ‘transnational assemblages’. The descriptive data produced through these studies could be used to make the implementation of human rights more effective, or not. Goodale argues that modern anthropology can thus tolerate or even encourage approaches that are either fundamentally critical of human rights regimes or politically and ethically committed to them.79 ENSURING INCLUSIVENESS OF HUMAN RIGHTS THROUGH MULTIDISCIPLINARITY

In conclusion, a multidisciplinary approach is essential to human rights research both in order to describe how human rights function, and in order to prescribe how their effectiveness could be improved. The functioning of human rights in a specific space at a specific time is dependent on a series of variables. Some are internal to the community under review. Others originate from the context (national, regional, global) in which the community operates. The variables are social, political, legal, economic… They relate to belief systems, power relations, the strength of institutions, inequality, and so on. Different disciplines offer methodological skills and substantive findings on the study of these variables. A full understanding of the functioning of human rights in a specific context can be achieved if the results of different disciplinary efforts are combined. Such an analysis may show that human rights are not effective in a specific context. Arguably, human rights are not effective when they fail to

78 M Goodale, ‘Introduction to “Anthroplogy and Human Rights in a New Key”’ (2006) 108 American Anthropologist 3. 79 Ibid 5.

36 Koen De Feyter deliver protection to large groups of people, or to a group with a specific (economic or other) status. Inevitably, a human rights strategy that wishes to address a lack of protection will need to address the same variables that have impacted on human rights in the past. Inclusiveness of human rights protection thus requires the development of a multidisciplinary strategy. SELECT BIBLIOGRAPHY Abraham, M, A New Chapter for Human Rights: a Handbook on Issues of Transition from the Commission on Human Rights to the Human Rights Council (International Service for Human Rights and Friedrich Ebert Stiftung, 2006) Anaya, S and Grossman, C, ‘The Case of Awas Tigni v Nicaragua: a New Step in the International Law of Indigenous Peoples’ (2002) 19(1) Arizona Journal of International and Comparative Law 1 Bank, R and Lehmkuhl, D, ‘Law and Politics and Migration Research’ in M Bommes and E Moravska (eds), Reflections on Migration Research: Constructions, Omissions and Promises of Interdisciplinarity (Aldershot, Ashgate, 2004) Baxi, U, The Future of Human Rights (New Delhi, Oxford University Press, 2002) Bob, C, ‘Globalization and the Social Construction of Human Rights Campaigns’ in A Brysk (ed), Globalization and Human Rights (Berkeley, University of California Press, 2002) Cali, B and Meckled-Garcia, S, ‘Introduction’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006) De Feyter, K, Human Rights: Social Justice in the Age of the Market (London, Zed Books, 2005) ——, ‘Localizing Human Rights’ in W Benedek, K De Feyter and F Marrella (eds), Economic Globalization and Human Rights (Cambridge, Cambridge University Press, 2007) De Feyter, K, Parmentier, S, Bossuyt, M and Lemmens, P (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Antwerp, Intersentia, 2005) De Sousa Santos, B, ‘Towards a Multicultural Conception of Human Rights’ in F Gomez and K De Feyter (eds), International Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto, 2006) Dixon, R, Creating Dialogue about Socio-Economic Rights: Strong v Weak-form Judicial Review Revisited, Working Paper no 3 (New York, NYU School of Law, 2006) Donnelly, J, ‘The Virtues of Legalization’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006) Engle Merry, S, Human Rights and Gender Violence (Chicago, University of Chicago Press, 2006) Falk, R, Human Rights Horizons (London, Routledge, 2000) Freeman, M, Human Rights (Cambridge, Polity Press, 2002) ——, ‘Putting Law in its Place’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006)

In Defence of a Multidisciplinary Approach to Human Rights 37 Gomez, F, ‘International Protection of Human Rights’ in F Gomez and K De Feyter (eds), International Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto, 2006) Gomez, F, and De Feyter, K (eds), International Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto, 2006) Gomez, M, Human Rights in Cuba, El Salvador, and Nicaragua: aSociological Perspective on Human Rights Abuse (London, Routledge, 2003) Goodale, M, ‘Introduction to “Anthropology and Human Rights in a New Key”’ (2006) 108 American Anthropologist 1 Gready, P (ed), Fighting for Human Rights (London, Routledge, 2004) Keck, M and Sikkink, K, Activists Beyond Borders (Ithaca, Cornell University Press, 1998) Klabbers, J, ‘The Relative Autonomy of International Law or the Forgotten Politics of Interdisciplinarity’ (2005) 1 Journal of International Law and International Relations 35 Klein, JT, Interdisciplinarity: History, Theory and Practice (Detroit, Wayne State University Press, 1990) Lindgren Alves, J, ‘The Declaration of Human Rights in Post-modernity’ (2000) 22 Human Rights Quarterly 478 Mamdani, M, When Victims Become Killers: Colonialism, Nativism and Genocide in Rwanda (Princeton, Princeton University Press, 2001) Meckled-Garcia, S and Cali, B (eds), The Legalization of Human Rights (London, Routledge, 2006) ——, ‘Lost in Translation’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006) 11 Nowak, M, Introduction to the International Human Rights Regime (Leiden, Martinus Nijhoff, 2003) ——, ‘Reparation by the Human Rights Chamber for Bosnia and Herzegovina’ in K De Feyter, S Parmentier, M Bossuyt and P Lemmens (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Antwerp, Intersentia, 2005) 245 O’Byrne, DJ, Human Rights: An Introduction (Harlow, Pearson, 2003) Oraa, J, ‘The Universal Declaration of Human Rights’ in F Gomez and K De Feyter (eds), International Protection of Human Rights: Achievements and Challenges (Deusto, University of Deusto, 2006) Oxner, S, ‘The Quality of Judges’ (2003) 1 World Bank Legal Review 307 Rajagopol, B, International Law from Below (Cambridge, Cambridge University Press, 2003) Reese, T, ‘Mapping Interdisciplinarity’ (1995) 77 Art Bulletin 544 Rombouts, H, Sardaro, P, Vandeginste, S, ‘The Right to Reparation for Victims of Gross and Systematic Violations of Human Rights’ in K De Feyter, S Parmentier, M Bossuyt and P Lemmens (eds), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Antwerp, Intersentia, 2005) Saul, JR, Doubter’s Companion: a Dictionary of Aggressive Common Sense (Toronto, Penguin, 1994) Singh, JP, ‘Transnational, National or Local? Gender-based NGOs and Information Networks in India’ in S MacLean, F Quadir and T Shaw (eds), Crises of Governance in Asia and Africa (Aldershot, Ashgate, 2001)

38 Koen De Feyter Vagts, D, ‘Interpretation and the New American Ways of Law Reading’ (1993) 4 European Journal of International Law 472 Vasak, K, ‘Le droit international des droits de l’homme’ (1972) 51 Revue des Droits de l’Homme 43 Vick, DW, ‘Interdisciplinarity and the Discipline of Law’ (2001) 31 Journal of Law and Society 163 Wilson, RA, ‘Is the Legalization of Human Rights Really the Problem?’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006) Woodiwiss, A, ‘The Law Cannot be Enough’ in S Meckled-Garcia and B Cali (eds), The Legalization of Human Rights (London, Routledge, 2006) World Bank, World Development Report 2006: Equity and Development (Washington, World Bank, 2005)

Part II

Origins of Rights (Genealogical Approaches)

2 On the Sociological Instrumentality of Human Rights and Minority Rights GERRIT-BARTUS DIELISSEN

INTRODUCTION

T

he sociological perspective can be characterised as a cultivation of what Friedrich Nietzsche once called the art of distrust, a methodological unwillingness to take the world for granted: an intellectual scepticism towards the representations of stakeholders who want us to see, read and understand reality in a particular way. When looking at the current issue of human rights and minority rights,1 one notices at the same time a growing global acceptance of and a growing resistance towards human rights and the claim to minority rights. How can we make sense of this paradox? A sociological method of contrapuntal reading may help us understand how the experience of modernity preconditions some to embrace human rights as an ultimate public good that will enable people to live peacefully together in a diverse and globalising world, while leading others to refuse the uncritical celebration of human rights as nothing but the Emperor’s New Clothes, the continuation of a well-known discourse of Western domination. A similar situation exists in relation to minority rights. Nation-states share and withhold scarce resources, be these material or symbolic goods, from particular parts of society. Minority rights then appear as part and parcel of states’ pacification politics, as part of their repertoire to manage and control ethnocultural diversity by putting into practice some sort of politics of social justice as even-handedness.2 This reality requires us to rethink the social, historical and cultural processes 1

Group rights are here understood as rights of (any) minorities. Carens speaks of the ideal of even-handedness as a sensitive balancing of competing claims for recognition and support in matters of culture and identity (J Carens, Culture, Citizenship, and Community: a Contextual Exploration of Justice as Even-handedness (New York, Oxford University Press Inc, 2000), p 12). In liberal democracies, policies should aspire for fairness rather than formal equality. History matters, numbers matter, the relative importance of the claims of the claimants matter and so do many other considerations. 2

42 Gerrit-Bartus Dielissen that shaped the contemporary debates on human and minority rights. By doing that, in the present chapter I propose a dynamic understanding of these processes, by analysing the instrumental sociologic of human and minority rights as they appeared and developed as particular products of the modernisation process and the management of modern nationstates—a development that started in the West and moved throughout the world following the Second World War. The dissemination of this project3 throughout the modern world meets enthusiastic fans, but also encounters far less receptive audiences. How can we make sense of these contradictory responses from a sociologist’s point of view? First the sociological perspective is introduced. Secondly, the development of human and minority rights is presented as a consequence of the process of modernisation. Human rights then become an expression of a type of solidarity that aims at integrating an imagined new world system.4 Minority rights appear as the next sociological step for minority groups to have their ethnocultural practices recognised and respected within the boundaries of particular nation-states. The outcomes of these local battles for recognition vary largely and are difficult to predict, since they are highly dependent on circumstances that differ from one situation to another. In two subsequent sections, what is considered (by some) to be the problematic side of human and minority rights is discussed. The chapter concludes with suggestions as to how various comments made by sceptics of human and minority rights can be dealt with and more support can be won for the defence of human and minority rights.

THE SOCIOLOGIC OF HUMAN RIGHTS AND MINORITY RIGHTS

Sociology, as a style of thought first, and as an academic discipline only much later, is in more than one way a discipline of crisis. The economic, political, social and cultural crises of the ‘Great Transformation’,5 that pushed the Western world from a traditional ‘Gemeinschaft’ into a modern

3 J Habermas, ‘Die Moderne—ein unvollendetes Projekt’ in W Hudson and W van Reijen (eds), Modernen versus Postmodernen, Buro Studium Generale (Utrecht, HES 1983), pp 21–33. 4 Structurally differentiated and ethnoculturally diverse nation-states are held together by the awareness of the mutual dependencies of their parts—even or particularly where most people never meet face to face, but know and identify with each other on the basis of a generalised belief system that allows for group differences in the acknowledgement that beyond them everyone is part of one (great) nation. 5 This phrase was popularised by its use as the title of the book by historian Karl Polanyi, The Great Transformation: the Political and Economic Origins of Our Time (Boston, Beacon Press, 1944). Though historians and sociologists would differ on an exact definition of the term, the two changes most central to the Great Transformation are the growth of modern market economies in the economic sphere, and the development of the modern nation-states

Sociological Instrumentality of Human and Minority Rights 43 ‘Gesellschaft’,6 was the soil from which sociology sprung. From a bird’s eye view this period includes the gradual emancipation of the individual from the collective and the emancipation of civil society from the state. Important milestones in this transformation were the Renaissance as the discovery and re-appreciation of man, particularly in the spheres of art and politics; the Reformation as the discovery of individual responsibility in the sphere of religion; the English Revolution as the victory of civil society and its intellectual reflection in the works of the ‘moral philosophers’;7 the Enlightenment to settle the score with the Dark Ages; the optimistic hybrid of the American and the French Revolutions (the Declaration of Independence and the democratic, anti-aristocratic movement); the traditionalist Restoration and the fear of losing Gemeinschaft; the Industrial Revolution and the various forms of socialism. These long-term developments were, for the founding fathers of sociology, their main subject of study. It was these prolonged series of crises that sociologists baptised ‘modernisation’; events that made systematic reflections upon the nature and the direction of social change inevitable. Hence, sociology was both caused by the modernisation process and found in it its first subject matter. Not only did the modernisation process trigger a style of thought that predates sociology as an academic discipline, which found its way in academia only as late as at the turn of the twentieth century,8 it also inspired its basic methodology: the systematic use of historical and cross-cultural comparisons.9 Here, time and place become important variables, heuristic aids, becoming method as it were: artificially induced crises, with the purpose of detecting and understanding similarities and differences in the

and a state-based system of international relations in the political sphere. Other changes potentially included would be the technological changes involved in the industrial revolution, advances in military technology and organisation, and the steady erosion of aristocratic privileges. Generally, the Great Transformation might be said to represent the development of modern society. 6 The German sociologist Tonniës coined this popular dichotomy in 1887. Since then sociologists use this contrast between traditional and modern societies frequently and very much as ‘ideal types’ (M Weber, ‘Die logische Struktur der idealtypischen Begriffsbildung’ in P Siebeck (ed), Gesammelte Aufsätze zur Wissenschaftslehre (Tübingen, JCB Morhr, 1982)); as analytical constructions that are never to be found as pure forms in reality, but that are used as measures to compare actual changes in the social, political and cultural spheres. 7 Ferguson, An Essay on the History of Civil Society. 8 The first chair of sociology in Europe was held by Emile Durkheim (1858–1917) at the Sorbonne, Paris in 1913. The first department of sociology, however, was opened in America at the University of Chicago where Albion Woodbury Small was appointed Head Professor of Sociology in 1892 which predates Durkheim’s appointment in France by 21 years (L Coser, Masters of Sociological Thought: Ideas in Historical and Social Context (2nd edn, New York, Harcourt Brace Jovanovich, Inc, 1977), pp 147, 379). 9 The acknowledgement that social phenomena arise and develop within specific historical and cultural contexts brings the idea of ‘probability’ into sociology and with it the relative importance of a method to account for the relationship between social action, time and space—hence the relative importance of statistics in sociological research.

44 Gerrit-Bartus Dielissen way social groups, communities, cultures or entire societies develop. Like history does with the past, sociology approaches the present to a large extent as a general science.10 It ambitiously strives for an overall and integrated understanding of social reality. It tries to reconstruct and understand social worlds as they are built and acted upon by people from within and presented to outsiders, as organisational and meaningful structures. One cannot even dream of completion of this somewhat megalomaniac project without the use of methods and knowledge taken from auxiliary disciplines that study past and present societies. There can be no sociology without the complementary insights of history, political science, anthropology, (social) psychology, geography or economics. Therefore, from its inception, sociology has been not only a general but also a multidisciplinary social science.11 Historical and cross-cultural comparisons go hand in hand with a certain degree of estrangement from the world as we know it and, as a consequence, the familiar may suddenly appear less obvious and the ways in which we are accustomed to live may be questioned, ways that we have learned to take for granted. To many this is a disturbing side-effect of ‘doing sociology’, because it tends to put into perspective and challenge people’s preferred habits. Here a third trait of sociology appears, that of being a critical science. By opening new windows to known facts, sociology may help to refresh established world-views, and to welcome change. This is why the potentially disturbing science of sociology never flourishes in totalitarian states. It is seen as ‘too darn risky’ by such regimes, viewing it as having the potential to upset the so carefully constructed and protected status quo and the vested interests therein.12 But what good can all this (sociology) bring us? This is of course a matter of intellectual taste and occasionally a topic of heated debate. The fourth, and admittedly very much contested, quality of sociology appears. That is, the potential of sociology for opinionated interventions, made by informed citizens in the public sphere. This can be described as the intellectual potential of sociology. An option that has been so sensibly phrased by the Austrian novelist Robert Musil: ‘When es Wirklichkeitssinn gibt, muss es auch Möglichkeitsinn geben’.13 It is not enough to have a sense of 10 W Lepenies, Die Drei Kulturen. Soziologie zwischen Literatur und Wissenschaft (München, Hanser, 1985), p 11. 11 H Adriaansens, ‘Een minimale systematiek’ (1983) Sociale Wetenschappen 355; I Wallerstein et al, Open the Social Sciences: Report of the Gulbenkian Commission on the Restructuring of the Social Sciences (Stanford, Stanford University Press, 1996). 12 K Mannheim, Ideology and Utopia (London, Routledge and Kegan Paul, 1979). See also RK Merton, The Sociology of Science: Theoretical and Empirical Investigations (Chicago, University of Chicago Press, 1973); P Berger and Th Luckmann, The Social Construction of Reality: a Treatise in the Sociology of Knowledge (Garden City, New York, Doubleday and Company Inc, 1967). 13 R Musil, Der Mann ohne eigenschaften (Reinbek bei Hamburg, Rowolt Verlag GmbH, 1988), p 16.

Sociological Instrumentality of Human and Minority Rights 45 reality, one should also cherish and cultivate the capacity of dreaming and work towards realising a world better than the one in which one lives right now. Though this intellectual imagination does not necessarily coincide with the sociological profession as such, the sociological habitus14 does provide the student, amateur and professional alike, with an inclination to be sceptical about what is presented as natural, eternal, necessary or a good for all (see below). At the basis of this attitude lies the study of what since August Comte (the man that gave the discipline its name) is known as the study of ‘social statics and dynamics’, of progress and order, of change and stability.15 As social scientists, we know very well that similar problems are addressed, and temporally solved, by different people in different times and in different ways, building in the process distinct universes of meaning that, if confronted with one another, easily clash. Sociology, therefore, studies how knowledge and power are related and embedded in historical specific, cultural contexts and are used by individuals in ways that best serve their particular (group) interests. From this reading all culture is ideology,16 used by various actors and stakeholders in complex games,17 to defend and legitimise chosen routes of action. A sociological perspective on the emergence, dissemination, support or resistance towards rights may complement strictly doctrinal or legal approaches to such rights. As pointed out by Koen de Feyter18 in his opening essay to this volume, lack of compliance with human rights is an

14 P Bourdieu, Science of Science and Reflexivity (Chicago, University of Chicago Press, 2004), p 53. 15 Coser, n 8 above, p 3 on August Comte (1798–1857). Comte ‘created’ sociology out of a sense of optimistic Enlightenment and the traditional quest for order. ‘Ordre et Progres’ or, according to Thomas Huxley, ‘Catholicism without Christianity’. The name sociology is a bastardised word, comprising the Latin ‘socius’ and the Greek ‘logos’. Originally Comte was playing with the thought of naming the new science of society, ‘social physics’, but this name had already been taken by the Belgian statistician Adolphe Quetelet. 16 Ideology is here understood as a system of ideas that aims at legitimising or criticising existing societal patterns of behaviour (social institutions). Karl Mannheim (Ideology and Utopia (London, Routledge and Kegan Paul, 1979), p 49) makes a distinction between two types of ideologies or as he calls them ‘distortions of reality’. The first one has the purpose of stabilising an existing order, for which he reserves the notion ‘ideology’. The second type is used to announce a future constellation, for which he uses the notion ‘utopia’. Ideologies are thus, in Mannheim’s definition, the mental fictions of the powers that are defenders of the status quo, utopias are the wishful dreams that inspire the collective action of opposing groups whose aim is to transform society. 17 The notion of a ‘game’ is made in reference to the work of George Herbert Mead (1934/1962)), but comes close to what the French sociologist and maître penseur, Pierre Bourdieu (n 14 above) calls ‘champs’, the social playground in which actors interact and compete for prizes that are considered to be of value in a particular field. These desired profits can be examples of economic, social or cultural capital, eg all kinds of forms of distinction: diplomas, degrees, titles, prestige. 18 K De Feyter, ‘In Defence of a Multidisciplinary Approach to Human Rights’ in K de Feyter and G Pavlakos (eds), The Tension Between Human Rights and Group Rights (Oxford, Hart, 2007).

46 Gerrit-Bartus Dielissen acknowledged difficulty in human rights law. Sociology may offer explanations of why human rights compliance varies over different societies and may change over time. When sociologists take human rights and minority rights as a topic of research, they point out that these rights have to be understood as historically situated and contextually bound. The 1948 Universal Declaration of Human Rights and the allocation of minority rights have been contested, both as practices and as ideologies. This will be discussed in three steps. First the origin and the instrumental use of human rights is described. Here a sketch will be given of the social evolution of a belief system that is rooted in the ontological assumption of the equality of men. The material condition(s) of such a belief system have emerged from what sociologists call the modernisation process that started in the West, but became, under the impact of globalisation, one of the strongest and one of the last remaining great narratives of our time. Supported by global institutions such as the United Nations and the International Court of Justice, and strengthened by numerous international treaties and conventions, the human rights cause has proven itself a success story, with the appeal of a civic religion, although this can be contested in the aftermath of decolonisation in the 1960s, by the new nationalisms that emerged after the collapse of communism in the 1990s, and most recently as the direct consequence of security policies that followed the global concerns on international terrorism after 9/11. In the West, incoming migration revived debates on civil rights, inclusion and the relative strength and weaknesses of our supposedly open societies. Here, multiculturalists and liberals have regular face-offs. In Central and Eastern Europe the issues of majority versus minority rights is kept on the political agenda by nationalists and their opponents, national minority movements. But first things first; how did we learn to conceive and care for others as we do for our own? This is not an intrinsic property of man or an obvious thing for people to do—it is as a matter of fact an emergent quality that only appeared as an instrumental necessity of the modernisation process. Let us now have a closer look at the socio-genesis of this miracle. Returning to the general process of modernisation, the conceptual scheme shown in Figure 2.1 may help analyse modernisation in a more specific way. The scheme is based on the work of Talcott Parsons.19 Human action may be approached from four different angles or viewpoints. First is from the structural viewpoint: people’s social roles, their interaction with other people and the patterns of interaction they develop are central. There are, however, also cultural aspects to reality: the world of ideas, beliefs, values, norms, meanings which give direction to our 19 H Adriaansens, Talcott Parsons and the Conceptual Dilemma (London, Routledge and Kegan Paul, 1980).

Sociological Instrumentality of Human and Minority Rights 47 Structure

Culture

Action

Person

Nature

Figure 2.1

Structural differentiation

Rationalistion

Individualisation

Domestication

Figure 2.2

actions. A third viewpoint of social reality is that of the person. Action may be constrained and conditioned by structural and cultural influences, but people are also individual actors, with personal preferences and strivings. The last viewpoint is that of nature, and one’s dependency on natural and biological circumstances. Almost any action can be described according to these four dimensions. Applied to modernisation, the scheme can be translated as follows: the general modernisation process may be divided into four major subprocesses or dimensions. These processes are (see Figure 2.2): — at the structural level: differentiation and specialisation; — at the cultural level: rationalisation and generalisation of meanings and values; — at the personal level: individualisation; — at the natural and biological level: domestication and alienation. Differentiation occurs when originally homogeneous parts become differentiated and specialised; the division of labour is a good example of this. Rationalisation takes place when reality becomes increasingly calculable, predictable and controllable. We look for the most efficient means to reach our goals. We speak of individualisation when individuals become increasingly separated from the collectivity. People become

48 Gerrit-Bartus Dielissen freer, more autonomous, and more independent from the social circles which formerly determined their lives to a large extent; the church, the (extended) family, the village. Lastly, domestication refers to the degree to which people control their biological and natural environment. Major technological developments achieved in human history show this increasing domestication of our natural habitat: the use of fire, the introduction of agriculture, and the use of natural energy, which made possible the use of machinery, are just a few examples. The four dimensions of modernisation are closely related. Often they occur in combinations and are interdependent, for example, rationalisation and individualisation. The interplay and sometimes uneven development of modernisation also results in paradoxes; that is, some counter-movement is born: for instance, increasing differentiation calls for new forms of integration, and if this fails to be realised, processes of demodernisation, eg religious fundamentalism, may be the result.20 Similarly domestication goes along with alienation, the introduction of new technologies may lead to alienation of the people that produce or use them. How are traditional societies structured and how do they change over time under the impact of what is presented here as the first dimension of modernisation, the gradual differentiation of previously highly integrated social structures into specialised and interdependent substructures? Social systems which are mediated and facilitated by a collective consciousness or morality that is well rooted in religious and traditional beliefs are termed ‘traditional societies’ by sociologists. People are, in a matter of speaking, ‘glued’ together by a form of solidarity that Emile Durkheim called ‘mechanical’.21 The economic base of these traditional societies is agrarian; the units of production are extended families in which the division of labour is rudimentary. Although the surplus of what is produced is bartered on local markets, most of what is produced is consumed by the producers themselves. The various segments of traditional society are units of relatively small scale and quite homogeneous in their construct. The dominant beliefs and sentiments in traditional societies are collective rather than individual, and people feel deeply attached to family and tradition. With

20 S Bruce, Fundamentalism (Cambridge, Polity Press, 2000), p 117: ‘Fundamentalism is a rational response of traditionally religious people to social, political and economical changes that downgrade and constrain the role of religion in the public world’; and at p 14: ‘Fundamentalisms arise in traditional cultures but they are not traditional in any simple sense … they are radical revisions of the past provoked by changes that threaten the continuity of the tradition. In that sense, fundamentalisms are reactive.’ ‘Fundamentalists … are movements that respond to problems created by modernization by advocating society wide obedience to some authentic and inerrant text or tradition and by seeking the political power to impose the revitalised tradition’ (p 94). 21 K Allan, Explorations in Classical Sociological Theory: Seeing the Social World (London, Pine Forge Press, 2005), pp 122–3.

Sociological Instrumentality of Human and Minority Rights 49 social positions fixed, the differences between the various social layers are steep and the sociopolitical power structure is characterised by inequality. Law is repressive overall and for the larger part constitutes penal law. Administering justice is the privileged area of religious and worldly elites. ‘Kadi Justiz’ in Islamic countries may be a close example of the way disputes are brought before courts of law and decided upon. The Kadi, being a wise and religiously high-ranking elderly (male) person, is trusted to speak by authority of his personal wisdom and settles disputes by the power bestowed upon him by tradition. All this changed in (most of) Europe from the late Middle Ages onwards, when fierce competition between warring lords (noblesse d’épée) resulted in monopolies of power, taxation and violence which paved the way for the era of absolute monarchies.22 Court societies appeared all over Western and Southern Europe. Once independent knights, transformed into a noblesse de robe, gathered at the court of the most powerful among them, and having become largely dependent on this overlord, had to compete cunningly and rationally23 among each other, for the goodwill and favours of their ‘king’. It is in these centralised courts where absolute monarchs ruled that we find the beginnings of modern nation-states.24 Structural differentiation of previously autonomous areas of life, such as education, care, taxation or warfare, poses new challenges of integration and administration. With the growth of scale and production for a market, larger units of society have to be connected. Communities began to extend the local experience and a sense of unity had to be established with individuals that did not know or regularly meet each other on a face to face basis (if at all). A new sense of community had to be ‘imagined’.25 Rationalisation and a broadening of the reach of those values and norms that are considered central to the functioning of the social body, then became a necessity. In this process, value systems are stretched, they become more general, since they have to bring together more people and, increasingly, more diverse groups. As a consequence, the mores of a modernising society become more abstract: more legal and less dependent on

22

N Elias, The Civilizing Process (Oxford, Blackwell Publishers Ltd, 2000). The new figuration of a growing interdependency between once more or less autonomous knights required a new inner control that is based on the awareness of the interrelatedness of one’s personal fate with that of others (all equally dependent) on the success of the highest in rank among them. This awareness necessarily fosters a greater control over one’s emotions and makes the people involved more strategic planners of their lives and fortunes. This triggers more rational, more controlled and (in Elias’ words) more ‘civilised’ (more other directed) patterns of behaviour. 24 N Elias, The Court Society (Oxford, Blackwell Publishers Ltd, 1983). 25 Anderson refers to this process of modern state formation as ‘imagined community’ and sees in the process of print capitalism the origins of a new, national consciousness (B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, Verso, 1991). 23

50 Gerrit-Bartus Dielissen particular situations or on the whims of individual rulers. An illustration of this process of rationalisation in the area of law is the development described by Max Weber of what was known as ‘Kadi law’ (mentioned above) into codified law and impersonal forms of justice. This development is also illustrated by the growing importance of restitutive law in modern societies. Why does the individual, while becoming more autonomous, become more dependent on his fellow man and society as a whole? What may appear as an antinomy, is in fact a transformation of social solidarity, from one based on sameness into one based on heterogeneity, due to the steady growth of the division of labour and market economies.26 This new type of solidarity that fits so well the needs of modern societies, is what Durkheim calls ‘organic’ solidarity. Law is the visible symbol of any solidarity because law signifies the external aspect of the organisation of society. The general life of society cannot extend its sway without the juridical form extending its sway at the same time and in direct relation. Every precept of law can be defined as a rule of sanctioned conduct. Sanctions change with the gravity attributed to precepts, the place they hold in the public conscience and the role they play in society. Parallel to the two types of solidarity discussed by Durkheim are two kinds of law that represent them. The first, penal law, consists essentially in suffering, or demands at least a loss, inflicted on the agent. Penal law makes demands on the fortune, honour, life or liberty of the perpetrator and deprives him of something he enjoys. This is repressive law. As for the other kind of law, it does not necessarily imply suffering for the agent, but consists of returning things to how they were, the re-establishment of troubled relations to their normal state. This is what constitutes civil law, commercial law, procedural law, administrative law and constitutional law, after abstraction of the penal rules which may be found there.27 Individualisation, the third dimension of modernisation, comes about when individuals emancipate from the social collectives that previously determined their lives to a large extent. Here the writings of August Comte and Alexis de Tocqueville become relevant. Both proto-sociologists illustrate in their work how the division of labour frees the individual from traditional structures and renders him both more dependent on and equal to his fellow man. The same process increases an individual’s capability of identifying with larger, more abstract categories, recognising in others his own fate. August Comte presented his ‘law of the three stages’,28 an evolutionary model that exudes the charm of an optimistic Enlightenment way of 26 27 28

E Durkheim, The Division of Labor in Society (New York, New York Free Press, 1997). Ibid. Coser, n 8 above, pp 7–8.

Sociological Instrumentality of Human and Minority Rights 51 thinking: that as a result of insights illuminated by a positivistic (social) science, circles of identification are widened with every step in the advancement of human intellect. With the evolution of man’s capacity and confidence to think for himself, the circles of social organisation and identification also evolve, taking to heart first only the interests of the clan, then of the nation-state and finally, in modern times, working for the benevolence of the whole of mankind. De Tocqueville takes a more materialistic stand on individualisation and equality. In 1830 he visited America for nine months. What struck him most about America was the equality of living conditions there—its democracy.29 Tocqueville believed America to be a model of a future society in the making.30 The democratic revolutions seemed new to many of his contemporaries, but they were, according to de Tocqueville, not new at all, but 700 years old, gradually developing as the aristocratic power of a few feudal families began to be challenged. A kind of democratic equality first appeared in the clergy, which was open to all. Then it passed to lawyers, who checked the power of barons, and to merchants, whose wealth introduced a rival influence to that of arms. Competition between the king and the nobles led both, especially the former, to better the conditions of people, and events from the Crusades to the discovery of America were advantageous for the cause of equality. Furthermore, the Enlightenment made intelligence and education social forces to be reckoned with. Equality of living conditions is the mark of democracy, more so even than freedom. Given the choice, a democratic people will, over all, prefer equality over freedom, because they have had longer to become used to it, and have learned to appreciate the fruits that it brings.31 De Tocqueville’s understanding of the growth of human empathy and the wish to extend rights to all mankind is important for the argument put forward in this chapter. For this development the gradual equalisation of living conditions seem crucial. Mores become milder only when living conditions become more equal. In an aristocratic society, each caste has its own opinions, sentiments, rights and mores, and separate existence. Thus, those who compose the castes do not resemble everyone else, do not have the same manner of thinking or feeling and they scarcely believe themselves to be a part of the same humanity as those from other castes. Therefore they can not fully understand what the others feel, let alone sympathise with their fate. Feudal institutions render

29 A De Tocqueville, Democracy in America (Chicago, University of Chicago Press, 2000), p xxvi. 30 Ibid p xxni. De Tocqueville describes democracy very much as an ideal type (M Weber) and always in contrast to aristocracy. He constantly compares them not just as forms of government but as opposite ways of life. 31 Ibid pp 479–82 on why democratic peoples show a more ardent and more lasting love for equality than for freedom.

52 Gerrit-Bartus Dielissen one very sensitive to the ills of certain men, but not to the miseries of the human species. There is genuine liking only among people who are alike. In aristocratic societies one sees people like oneself only in the members of one’s own caste. It is only when people become more independent from one another, when ranks are almost equal, that people start to think and feel in the same way. In democratic societies people tend to be rather individualistic and rarely devote themselves to one another; but they do show a general compassion for all members of the human species.32 When each nation has its separate opinions, beliefs and laws, it considers itself as though it had formed humanity as a whole, and feels affected only by its own sorrows. It is clear that in a national’s eyes a foreigner is not the same human species as himself.33 Only as peoples become more like one another, do they show themselves reciprocally more compassionate regarding their suffering, and the laws of nations become milder. Citizens are equal before the law only within the borders of a specific nation-state, and, nowadays, within the larger circles of international treaties and conventions signed between nation-states. In principle equality of all mankind is the underlying assumption of international law and human rights treaties. Historically, the first steps in this direction were taken when absolute monarchs gave way to civil revolutions and rights become citizenship rights. Rights obtained by minority groups in a society are a special category within these citizenship rights. The logic of obtaining minority rights follows the same logic of collective action that can be observed in the case of citizenship rights, that is, they are often the haphazard or situational result of strategic struggle, strife and elaborate negotiations between subordinate and dominant groups in particular societies. According to the British social historian, TH Marshall,34 citizenship involves three sets of rights: civil, political and social rights. Marshall presents his explanation of these three sets of rights in terms of a history of the gradual and largely peaceful acquisition of such rights by the majority of the population from a benign liberal-democratic state. Less convinced of 32 Ibid p 538: De Tocqueville was shocked by the fate of enslaved Blacks on the American plantations he visited. He stated that there was no European colony in the New World where the physical conditions of Blacks were as harsh as in America. It is easy to discover that the masters see in slavery not only a fact from which they profit, but also an ill that scarcely touches them. Thus the same man who is full of humanity for those like him when they are his equals, becomes insensitive to their sorrows as soon as equality ceases. 33 There seems to be here a parallel in the current global war on terrorism in which the suspected enemy is depersonalised and presented in such abstracts as ‘evil or evil-doers’, or similarly the Russian attitude towards Chechnya: a first psychological condition to strip away or even deny the adversary’s basic human rights or the protection of international law. In more general terms we also find this lack of empathy with strangers in Sumner’s classical study Folkways (1905) where he coins the notion of ethnocentrism which he believes to be a universal syndrome. 34 TH Marshall Class, Citizenship and Social Development (Garden City, New York, Doubleday and Co, 1964).

Sociological Instrumentality of Human and Minority Rights 53 the peaceful acquisition of these rights is the sociologist Bryan Turner.35 He states boldly that no right has ever been given freely. Privileges are always fought for. Turner argues that the critical factor in the emergence of citizenship is ‘violence’, that is, the overt and conscious struggle of social groups to achieve social participation. One further feature of the emergence of citizenship under conditions of conflict, as mentioned by Turner, is the historical importance of migration, since it is migration which undermines rural, hierarchical and stable social relationships. Migration is itself frequently the outcome of various forms of violence, where the migrant seeks to escape to a new social environment. Turner assumes that any growth of citizenship presents a challenge to existing patterns of power and authority and therefore any growth of citizenship will be met with political struggles by dominant groups to preserve their advantages within the status quo. Rights will tend to be contradictory and the growth of rights for one social group may involve a contradiction of rights for others.36 Civil rights refer to legal equality. In the eighteenth century, when the modern nation-state arose from the feudal state of Absolutism, civil rights were granted to a privileged elite. Those civil rights entailed the fundamental idea of ‘equality before the law’. Such rights were gradually extended in the nineteenth and twentieth centuries. Political rights refer to the extension of the franchise. Marshall sees political rights as essential to the idea of citizenship and he sees the extension of the franchise to more and more in society as a further demonstration of the liberal-democratic state’s commitment to formal equality. Finally, there are social rights that are applied concretely in the various welfare states that have appeared in the twentieth century.37 Social rights involve ‘equality of opportunity’ to access educational, medical and welfare services. As far as Marshall is concerned, the possession of all three sets of rights is a guarantee of formal equality: a formal equality which abates the substantive and real social inequalities of class and status. For Marshall, the idea of citizenship and its three sets

35 B Turner, Citizenship and Capitalism the Debate over Reformism (London, Allen & Unwin, 1986), p 26. 36 For example, women’s right to control their own bodies has been expressed by a variety of legal developments such as abortion reform. However, the rights of women may conflict with the rights of children, especially unborn ones. 37 Esping Anderson (Three Worlds of Welfare Capitalism (Princeton, Princeton University Press, 1990)) calls this the process of de-commodification, in which people are protected from the hazards of becoming ‘individuals’ that can hardly survive outside the market in which they have to sell their labour at a price that is dictated by the laws of offer and demand. In this process man becomes a commodity himself. This dehumanising aspect of capitalist market economies has been criticised since the early days of capitalism, by political currents from the right to the left, and has resulted in social legislation to protect individuals from becoming totally dependent on the market. The implementation of such (welfare) legislation results in three different types of welfare states, each named after the political regime that supports its basic ideology: liberal, corporatist and social-democratic.

54 Gerrit-Bartus Dielissen of rights generates a formal equality which ameliorates the substantive inequalities of capitalist society. Marshall’s account of citizenship claims to be a universalistic one; that is, he claims his model of citizenship can be applied to any society, at any given time. Clearly there would be great value in establishing a universal model of citizenship since it would allow us to measure the quality, as well as the quantity, of rights and benefits across distinct societies. However, there may also be a danger in doing so. That danger lies in the fact that the assumptions and concepts of such model would be ones which could, albeit implicitly, mask (and worse, repress) differences of culture and identity between minority groups in a society or other societies as a whole. Despite the growth of international law, the focal point for and executer of rights is still to a large degree the nation-state. From that focal point the notion of citizenship becomes the historical and localised translation of basic rights. And within the nation-state battles are being fought to widen (or limit) the circles of inclusion, the entitlements that come with the position and status that various individuals, associations and minority groups have or claim. This is the ongoing struggle for recognition in democratic constitutional states.38 Many of the debates on minority rights originate in this democratisation process.39 Also from the vantage point of the fourth and last dimension of modernisation, domestication or the growing control over our natural and physical environment, human rights and, in particular, the struggle for minority rights gain importance. Michael Featherstone highlights the socalled paradox of globalisation.40 Technological innovations in transport, communication and the media make many people more mobile and bring them into contact with other cultures in ways which would have been unknown in the past. This leads some to embrace cultural diversity, creating new third cultures,41 but also results in conjuring up a wilful nostalgia for a past that may never have existed and allows others to search for an illusory purity of culture, ethnicity or race. Combined with the large-scale migration that is so characteristic of today’s world, this results (particularly but not exclusively in the West) in a renaissance of ethnic consciousness: a place of retreat where one may hope to find shelter from the presence of strangers among us, away from the cultural diversity that one cannot, or is not willing to accommodate. 38

A Honneth Kampf um Anerkennun, (Frankfurt am Main, Surhkamp, 1992). Democratisation is understood here not just as the struggle for political representation, but in the way that de Tocqueville referred to it as growing circles of inclusion and equality of living conditions. 40 M Featherstone, The Paradox of Culture and the Globalization of Diversity (Utrecht, ISOR, 1990). 41 Third cultures of which fusion and cosmopolitanism are the key words, eg fusion or benign mixtures of food, religion, music and fashion. 39

Sociological Instrumentality of Human and Minority Rights 55 Within nation-states political battles are being fought over the selective widening or restricting of circles of inclusion. These struggles can be captured under the umbrella notion of the struggle for minority rights. Such battles are initiated by indigenous groups or by relative newcomers, the immigrant populations with full legal status but with a desire for more exclusive recognition of religious or (sub)cultural practices. Here, multicultural and liberal approaches to minority rights find themselves often at opposite sides in the discourse on how to respond fairly to demands to have ethnocultural differences recognised. To sum up, the conceptualisation and broad acceptance of the grand narrative of humanism and the global respect of human rights only became possible as a consequence of the modernisation process that called for new ways of integrating a complex world of interdependent nation-states. The general and universal phrasing of a type of solidarity that promised to recognise and respect the universality of all humans as free and equal became appealing, because of the growing awareness of the interdependencies and hence the shared interests of a global community of nation-states and peoples. But with the recognition of this common vulnerability and mutual dependencies also comes the need for recognition of national and regional differences: an ethnocultural diversity that has to be addressed in ways that appear reasonable and fair to both the minorities and to the national majority. WHAT IS CONTESTED IN HUMAN RIGHTS?

Social life is to a high degree encoded, and though we find pride and, as modern people, more and more identity in our individuality, we still conduct our daily lives predominantly cruising on our culturally programmed42 automatic pilot. People are rule followers43 and most of what we think, feel, like and do is institutionalised behaviour.44 Meaningful action is everyday knowledge put into practice. In this way we account for and justify our actions to ourselves and others, making them sensible and to a certain degree predictable. Behaviour then becomes functional and rewarding in the social system(s) or stages on which it is performed. From this perspective, morality 42 Individual freedom is always freedom from something, which tends to be the collective, culture or group (norms) of which the individual is part. Hence freedom without any constraint is a nihilistic utopia. The challenge therefore is not how to obtain absolute freedom (which seems an immature and infantile whimsy) but how to match individual liberties with group membership, societal responsibility and accountability. 43 L Wittgenstein, Philosophical Investigations (Oxford, Blackwell, 2001). 44 A Zijderveld, The Institutional Imperative: the Interface of Institutions and Networks (Amsterdam, Amsterdam University Press, 2000); see also P Berger and Th Luckmann, The Social Construction of Reality: a Treatise in the Sociology of Knowledge (Garden City, New York, Doubleday and Company Inc, 1967).

56 Gerrit-Bartus Dielissen is not a matter of truth but a matter of validity. It reveals itself as nothing more, or less for that matter, than a man-made construct, bound, like the people that are constrained by it, to time and cultural specific contexts. Culture and history, and the interactive ways in which they are produced and constantly rewritten, therefore, do matter and do make a difference to people. Today’s world is a global village in which communities have a history with each other. Colonialism, decolonisation and neo-colonialism link and mark contemporary international relations. The same goes for the shared (but likely differently evaluated) experiences of communism, the Cold War, the collapse of communism and its aftermath.45 Globalisation spreads modernisation but often does so in an uneven way, sometimes evoking growing inequalities, anomie, and acute experiences of loss of community: the lack of transparency of one’s own society, of a common destiny, the heart-felt absence of justice in human relations or the erosion of people’s chances to make something out of their lives. Hampered, modernisation works against the building of local and international trust and strengthens distrust in the intentions of others, even more strongly when it is related to the ascribed motives and actions of a powerful outsider—especially if this coincides with the image of a monolithically defined West. An overall scepsis towards the intentions of Western nations is what unites the minds of those critics who are suspicious of human rights, in relation to its claim to universality in particular. Are human rights, they would argue, not a Western invention? A product and ideology that has its roots in Europe’s history and therefore reflects Eurocentric ideals: individual freedom (at the expense of community), proclaiming the (public) irrelevance of religion, and the pursuit of individual happiness and wellbeing as the highest purpose in life? A belief system that found a historical high (or low?) in the French Revolution that, quite literally, shortened the Ancien Regimes’ privileges? From then the interests of the (petit) bourgeoisie, the commercial middle classes, have become the benchmark of all that is considered good, beautiful and decent in life. A historical and cultural specific ideal that would gradually be generalised to all mankind. But with what right and to what good? Human rights are clearly prescriptive, they indicate an ‘ought to’, rather than describing what is plain for all to see: that people are not equal and are not treated in the same way, neither by their fellow man, nor by their governments and certainly not on global markets or in the bargaining pits of international politics and relations. Human rights are culturally and historically specific, but still assume a universal morality. Why should this be convincing? From a critics’ perspective it makes sense to have some doubt towards the Eurocentricity of the 1948 Universal Declaration of Human

45

F Fukuyama, The End of History and the Last Man (London, Penguin, 1992).

Sociological Instrumentality of Human and Minority Rights 57 Rights, which was not ratified until 1966, the heyday of decolonisation. Can one not read in the Declaration a subtle extension of colonialism? Certainly the measure stick of progress and civilisation is the road taken by the Western world: the protection of individual rights rather than acknowledging the rights of the collective or the community. The truth is, of course, that rights have to be interpreted and implemented within a national context.46 Access to justice is an important prerequisite of the Doctrine of Universal Human Rights, but prevailing economic conditions, especially poverty, do significantly change moral systems. Another objection made by those that criticise the Universal Declaration is its implicit stand on religion, which it considers to be something distinct from man and his life, an extracurricular activity, as it were. For many of those who live in traditional communities, though, religion is still very much a central part of their lives. Another objection is that the Universal Declaration assumes parity of gender roles. Some would claim that equality is not inherent in mankind, and that it is equity, not equality, that should be established and guaranteed. Such a reading would give room for more culturally specific expressions on how gender roles take shape. A more extreme position is taken by cultural relativists and post-modernists who believe that the human rights project should forsake its universal claims altogether. International institutions such as the United Nations should simply put more serious efforts into cultivating greater acceptance of the diversity of cultures. Instead of promoting universal, context-free human rights, the international community should work towards improving universal standards of living, for example. A specific concern is often voiced in relation to the credibility of the West, with the United States as its champion. Western nations, it is pointed out, have themselves a rather poor track record in respecting human rights or in supporting political regimes that clearly do not support such rights. This hits disproportionately hard, because the West is seen as the ‘chief constable’ of human rights. There is a persistent image of the West as a character that does not practice what it preaches in relation to human rights. Most nations will safeguard what they see as their geopolitical and economic interests, but not all nations are equally equipped to do so. Since the collapse of the USSR, the United States seems to be the only remaining world power that is able and willing to stick to its guns as regards its interests, even if there is no international mandate to do so, or if basic human rights (including those of American citizens)47 are infringed or violated. These policies clearly harm the human rights cause, and serve 46 A reality that was acknowledged in the 1993 World Conference on Human Rights in Vienna, which resulted in the so-called Vienna Declaration. 47 The Homeland Security Act of 2002 gives the US government far-reaching authority to interfere in the civil liberties of its citizens.

58 Gerrit-Bartus Dielissen to confirm the picture of the West as a ‘two-faced civilization’. Of course, in this iconoclastic representation of the ‘West versus the rest’ all nuance is lost. As noted by the American foreign policy commentator, Robert Kagan, a gap is growing between what once was conceived of as the great transatlantic alliance: Europe and the United States.48 The changing and ever more opposing ways in which Europe and the United States relate to international law and the confidence and efforts each is willing to put in international conflict resolution and peace-building institutions49 is evident. This has become even more apparent in the war on terrorism, the invasions of Iraq and Afghanistan, and the cases of human rights violations that sprung from such. The examples of Abu Graib, Guatanamo Bay and the secret American detention centres in Central and Eastern Europe, do not invoke much faith in the moral standards of the only remaining world power. Practices such as these fuel the ‘why?, how? and where to?’ of the occidentalist stands of critics of the West, with fundamentalist groups, such as Al-Qaeda, in the front seat. Much of the radicalisation of young Muslims in the West, turned fundamentalist despite, or maybe because of, the relatively good positions in which they find themselves, should be attributed to the combined effects of failed integration and persisting global inequalities, and what is seen as the (co)responsibility of the hypocritical foreign policies of the countries of which they themselves are part.50 The assessment of where most radical fundamentalist ideologies51 themselves have their roots—a veiled but nevertheless all too commonplace (power) interest of local elites and political factions—might be correct, but it does not contradict the equally valid observation that there is clear and present discomfort among many engaged believers about social injustices, people with whom significant parts of our societies identify. Unless Western

48 R Kagan, Of Paradise and Power: America and Europe in the New World Order (New York, Vintage Books, 2004), p 7. 49 When the United States was weak, it practiced strategies of indirection, strategies of weakness; now that the United States is powerful, it behaves as powerful nations do, much like when the European great powers were strong and they (still) believed in strength and martial glory (Kagan, n 48 above, pp 10–11). 50 The effect of this assessment is a state of mind that can be characterised as cognitive dissonant: a twisted, most uncomfortable condition that fills one with guilt and resentment; a situation out of which some see only one consistent escape, that of bringing their actions in consonance with their reading of reality: the effect is often volatile and (self)destructive. 51 I Buruma and A Margalit (Occidentalism: the West in the Eyes of its Enemies (New York, Penguin Press, 2004)) have argued that occidentalism or the negative evaluation of Western modernisation is not oriental in origin at all. Contrary to popular belief or what one may expect from the sources that currently use the occidentalistic rhetoric (outside of Europe, manifested as a rejection of all the values—although not necessarily the technology or goods that are produced as a result of Western ‘machine civilization’—that the West represents) it actually originates in the West and is the product of Western Romanticism with its nostalgic dreams of a pure and eternal traditional society in which good old values such as community, honour and sacrifice for higher purposes are still very much alive.

Sociological Instrumentality of Human and Minority Rights 59 countries are willing to acknowledge those facts and are willing to review their selective presence in cases where human rights are at stake, the war on international terrorism will not be won and more human rights violations will likely be the result. Thus, three particular criticisms of the Universal Declaration of Human Rights have been identified. The first one argues in favour of a less Eurocentric focus, a debate that began in the late 1960s and has, to a large extent, been accommodated for by various UN declarations since. The sharp edges of these debates have been blunted by the accommodations of the late twentieth century, most explicitly in the Vienna Declaration of 1993, which acknowledged that human rights are universal but have to be understood and implemented by taking into consideration different national, cultural, historical and religious contexts. The second corner from where a critique on the human rights project has been launched is more fundamental and cannot easily be met halfway. Here, cultural relativists and post-modernists take a principled stance in reifying cultural diversity and moral abstinence. The best that the international community can strive for is a more equal distribution of the wealth of nations. Lastly, there is the critique of occidentalists that have a troubled relationship with modernisation that they equate to Westernisation and oppose as a form of cultural imperialism. From their point of view, human rights appear not simply as culturally biased, but as a tool of the West to measure and judge societies that walk a more traditional or collectivist path to social justice. Western morality is questioned because of the double standards it seems to adopt when relating to non-Western cultures. WHAT IS ‘THE BUZZ’ ABOUT MINORITY RIGHTS?

A number of factors that emerged in the 1990s make clear that tensions arising from ethnocultural diversity within nation-states are not solved automatically in the process of socioeconomic and political modernisation.52 Flourishing Western democracies are confronted with nativist backlashes against immigrants and refugees; some even experience an ongoing threat of succession, examples of which can be seen from Quebec to Scotland and from Flanders to Catalonia.53 Newly born nation-states in Central and Eastern Europe are wrestling with national minorities within the newly drawn borders. Cases of political mobilisation of indigenous people, from the invention of a transnational Inuit ethnicity in the Arctic to

52 E Gellner, Nations and Nationalism (Oxford, Blackwell, 1983); W Kymlicka, ‘Nationbuilding and Minority Rights: Comparing West and East’ (2000) 26 Journal of Ethnic and Migration Studies 183; Carens (2005). 53 Kymlicka, n 52 above, p 184.

60 Gerrit-Bartus Dielissen an almost continent-wide pan-ethnic Indian identity in the Amazon, present powerful illustrations of the so-called ‘Barth effect’.54 Fredrik Barth defined ethnic groups as forms of social organisation that are the result of group-environment interaction,55 indicating that social organisation gives meaning to culture and not the other way around. Therefore, the study of ethnocultural groups should focus on the boundaries that existed prior to the identities assigned by the group itself or by its neighbours. Social scientists ought to examine how and why these boundaries are elaborated and maintained between groups, instead of inventorying the cultural traits that supposedly make each ethnocultural minority unique.56 With this distinction, analyses can be made of the different paths chosen by ethnocultural groups to participate in their surrounding social systems. According to Barth,57 such paths are either the acceptance of minority status or the re-enhancement of ethnocultural identity. The latter option has been the starting point of indigenous nativist movements, ethnocultural pressure groups and ethnic political parties. It has also caused new nation-states to emerge. This new perspective has also altered the relationship between social scientists and the ethnocultural groups they study. Ethnocultural groups have ceased to be just informants. They have become political players. Political and legal interventions are always to be found in situations where majority positions are challenged and some sort of accommodation for the rights of ethnocultural minorities has to be found. The specific need, kind and direction of these interventions are the result of the workings of an intricate dynamic between: (1) the mobilisation, organisation and regulation of sentiments of minorities and majorities; (2) the existing opportunity structure (the state, voluntary associations in the public domain, scholarly and public discourses) that define and control legitimate ways in which debates, struggles and negotiations relating to the positioning of ethnocultural minorities can be addressed; and (3) the way that ethnocultural justice is understood, socially constructed and, finally, delivered in the granting (or denial) of minority rights. Today, nation-states all over the globe are confronted with problems of how to govern and manage ethnocultural diversity in a fair and just way. 54 F Morin and B Saladin D’Anglure, ‘Ethnicity as a Political Tool for Indigeneous Peoples’ in C Govers and H Vermeulen (eds), The Politics of Ethnics Consciousness (London, Macmillian, 1997). 55 F Barth, Ethnic Groups and Boundaries: the Social Organization of Culture Difference (Boston, Little Brown, 1969). 56 Morin and Saladin D’Anglure, n 54 above, p 160–1. 57 Barth, n 55 above, p 33.

Sociological Instrumentality of Human and Minority Rights 61 These challenges are the direct effect of migration, nation building, and minority emancipation movements that strive for (some kind of) public recognition of their cultural differences and practices.58 A crucial factor in the assessment of minorities’ claims to particular group rights is the matching of the perceptions of the majority with those of the minorities. Little support for minority rights can be expected when the majority perceives the presence of minority group(s) as a threat to their economical or cultural interests. Quillian found that prejudice against immigrants in the European Union is largely a function of group position and the relative size of the subordinate group.59 If the size of the subordinate group increases, so does the perceived group threat since the dominant group(s) fear that their prerogatives are threatened. Another important condition of successful or failing claims to minority rights is the role played by elites from or in support of particular minority groups. Do the elites feel personally or collectively wronged and deprived of what they consider legitimate ways to success within the larger society? Are they convinced, in the case of national minorities, that they are given (no) fair chances to leadership and recognition on a national or regional scale?60 Or, particularly in the case of immigrant groups, are their feelings substantiated by the political instincts of ethnic entrepreneurs, who feel that ample opportunity and motive exists to push successfully for the acknowledgement or extension of special rights for the ethnocultural group(s), on whose behalf they speak and that they are able to mobilise, organise and lead? Of course, there are many other factors in this strategic game. The relative importance of the claims, history, numbers and territorial concentration of the minority groups, as well as the reference to a publicly acknowledged theory of justice, are all significant.61 Rainer Bauböck states that the need for cultural recognition arises from what he calls the ethnicisation of immigrant minorities.62 He presents a fairly comprehensive taxonomy of eight types of minority rights which are 58 The topics of recognition can vary from language claims; the right to have religiously denominated schools (Catholic, Jewish, Islamic); the tolerance of cultural practices such as particular burial rituals, polygamy, (female) circumcision; to the inclusion of (more) minorities’ religious holidays in the national calendar; eg in 2006, labour unions in the Netherlands voted against a proposition to officially include non-Christian holidays in the national calendar. 59 L Quillian, ‘Prejudice as a Response to Perceived Group Threat: Population Composition and Anti-Immigrant and Racial Prejudice in Europe’ (1995) 60 American Sociological Review 586, 607. 60 E Gellner (Nations and Nationalism (Oxford, Blackwell, 1983)) argues that irredentist movements are often led by elites that feel deprived of opportunities to success and leadership within the given national power structure. They mobilise minorities, and strive for regional independence or even succession if that serves their personal instrumental interests best. 61 J Carens, Culture, Citizenship, and Community: a Contextual Exploration of Justice as Even-handedness (New York, Oxford University Press Inc, 2000), p 84. 62 R Baubock, ‘Cultural Minority Rights for Immigrants’ (1996) 30 International Migration Review 203, 228.

62 Gerrit-Bartus Dielissen of relevance to immigrant minorities. Spelling out the logic of such claims does not imply that they are normatively valid for all minorities or in all national and societal contexts. But each of these rights can be defended in some contexts: (a) the right to equality (one should not create groups of second class citizens within a society); (b) individual negative liberties (freedoms that do not infringe basic rights of other citizens, eg freedom of religious worship, education in one’s own language, religion or culture, political association); (c) individual protection from discrimination; (d) rights to public resources for cultural reproduction (eg blasphemy laws, the rights to the use of minority languages in public broadcasting, courts, schools, etc; the granting of such rights often depends on the general constitutional framework of a state and the numerical strength and territorial concentration of the minority group); (e) collective protection from discrimination (structural discrimination, eg remnants from past systems of slavery or racial segregation); (f) special political representation (eg proportional representation systems, consultative commissions of minorities in administrative bodies); (g) collective autonomy (eg within a federal state); and finally (h) the right to secession or national self-determination. The taxonomy builds up from those rights that are most easy to grant, from individual to collective rights, to rights that are more conditional and more difficult to grant within liberal democracies. Furthermore, the rights listed at the beginning of that taxonomy are easier for immigrant groups to claim than the latter ones, which are more the domain of national minorities with a territorial concentration.63 Small immigrant minorities will probably fail to qualify for many of these rights. Once immigrant groups have become an intergenerational ethnic minority, immigrants and their offspring have often no other choice than to accept the institutions of the host society as the framework for their integration. They might try to change these institutions though, in such a way that they reflect the transnational context which shapes the immigrant experience and which may lead to the public acknowledgement of the transformation of the receiving society into a multicultural one. In the sphere of the opportunity structure, the myth of state neutrality is the hardest one to level.64 It is commonly believed that the state should not be partisan with respect to ethnocultural differences and should treat culture in the same way as religion; that is, as something to which citizens give a place in their private life, surely not a concern of the state, as long as the

63 Though the struggles of national minorities for recognition follows a patterned dynamic, the outcome may differ from situation to situation. National minorities may aim for full selfdetermination within the borders of a territory of their own, but may (have to) settle, due to situational constraints, to become a semi-autonomous part of a federal state, or they may (have to) settle for recognition of specific cultural rights, such as language rights. 64 Kymlicka, n 52 above, p 185.

Sociological Instrumentality of Human and Minority Rights 63 rights of others are respected. As a historical fact this is clearly nonsense. In the process of nation building, states have always attempted to diffuse a single societal culture, namely that of the dominant group. To pursue this aim, liberal democracies have been selectively repressive of ethnocultural diversity, particularly of minority nationalisms, rather than neutral. In the case of past and present examples of nation building, the collective aim of the majority has often been quite blunt in refusing group rights to ethnocultural minorities. The public culture never has been and most likely never will be neutral.65 What is relevant, though, is the argumentation behind state interventions. For the nationalising state, the reason for such intervention lies quite obviously in the collective interest of the majority to establish a new national identity. Within existing liberal democratic societies, the debates on what the justification should be for granting special rights, if any, to ethnocultural minorities are waged between libertarians and multiculturalists. Francis Fukuyama called the historical absence of group rights in liberal theory a serious default.66 Thomas Hobbes, John Locke, Jean-Jacques Rousseau and the American Founding Fathers only spoke about the liberties of individuals. The rights of individual citizens had to be protected against the power of the state and later against the hazards of the market. How to deal with group rights was not something to which they had given much thought. Classical liberalism was a theory that was based on the ideas of the Enlightenment and the historical experience of France, Great Britain and the United States. These were all nations which were at the time ethnically and religiously relatively homogenous societies (the position of black slaves in the United States not taken into consideration). Hence, group rights were not a political concern in these societies at that time. Overall though, liberal democracies tend to be tolerant towards ethnocultural minorities and are reasonably well equipped to accommodate cultural differences or ethnic pluralism within their borders. At the same time, libertarians do not hesitate to argue that democratic states should not be afraid to impose certain cultural values on its citizens. This is in their view not an execution of cultural imperialism, but a necessary respect for democratic core values. To refrain from underlining the importance of equality would simply advertise a wrong kind of political correctness. In general, though, minority rights are regarded by liberals with suspicion. For libertarians, they put the subject of rights wrongly: that is, minority rights benefit the collective, the ethnic community, over the autonomous individual. Since liberal thought assumes that open societies are in principle well equipped to handle plurality and diversity, they are mostly in favour of granting temporary group rights,

65 66

Carens, n 61 above, p 101. F Fukuyama, The Future of Democracy, Culture and Immigration (Nexus Lecture 2005).

64 Gerrit-Bartus Dielissen for as long as they are needed to compensate structurally disadvantaged groups.67 Multiculturalists make a principled distinction between national minorities and immigrant groups.68 National minorities are groups that formed complete and functioning societies in their historic homelands prior to being incorporated into a larger society. According to multiculturalists there is no moral basis for majorities to reject the legitimacy of liberal forms of minority nationalism. Provided such views are shared, this assumption predicts an increase in the number of ‘multination’ (federal) states rather than nation-states. Immigrants are understood as groups formed by the decision of individuals and families to leave their original homeland and emigrate to another society. Typically, such decisions are made for economic reasons. Over time, immigrants and their descendants may give rise to ethnic communities with various degrees of internal cohesion and organisation. In Kymlicka’s view, immigrants have come voluntarily to their host societies and in choosing to come they have agreed to waive group differentiated (minority) rights.69 They can, however, claim equal access to mainstream society, language training and protection from discrimination and prejudice. Mostly, immigrants do not resist majority policies to integrate them; what they do try to do, though, is to renegotiate the terms of such integration. Immigrants are demanding a more tolerant, two-way or multicultural approach to integration, that would allow them to keep various aspects of their ethnic heritage. Moreover, the institutions of the dominant society, multiculturalists argue, should be adapted to provide greater recognition and accommodation of the various ethnic identities of immigrant groups. Multiculturalists believe it unnecessary and unfair to pressure immigrants into assimilation, particularly since the demands of immigrant groups are directed at revising the terms of integration, not at abandoning them. National integration of immigrants should therefore be a pluralist and tolerant one, and should happen in a ‘thin’ sense, involving institutional and linguistic integration but still leaving maximum room for the expression of individual and collective differences.70 In practice, many democratic nation-states adopt yet another stance in dealing with demands of minorities, by applying a kind of contextual

67 B Barry, Culture and Equality: an Egalitarian Critique of Multiculturalism (Cambridge, Polity Press, 2003), p 13. 68 Kymlicka, n 52 above, p 187; and within the immigrant groups sometimes a distinction is made between those who have acquired citizens’ status and those that, for various reasons, have not been able to, eg because they reside in the host country illegally. The latter are addressed by Kymlicka as ‘metics’. 69 W Kymlicka, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1995), p 114. The exception is some group specific rights, so-called ‘poly-ethnic rights’, such as cultural dress codes or exemptions from Sunday closing laws. 70 Kymlicka, n 52 above, p 195.

Sociological Instrumentality of Human and Minority Rights 65 approach to justice.71 In order to determine what justice requires in a particular case, this pragmatic position requires one to immerse oneself in the details of a particular case and make context sensitive judgements, rather than relying primarily on abstract, general principles. BUILDING SUPPORT FOR HUMAN RIGHTS AND MINORITY RIGHTS

A new ghost is haunting the collective consciousness of many in the West and beyond. The malaise of modernity,72 a phrase coined by Charles Taylor in reference to the shrinking of moral frameworks, is feared to weaken the support of the last remaining grand narrative of our time: the widely ratified Universal Declaration of Human Rights. Guilt over a colonial past, doubt over the very existence of a fixed hierarchy of values, incredulity towards meta-narratives and scepticism over political selectiveness in acting against human rights violations, do not exactly create the solid ground needed from which one can successfully bridge the gap between believers and nonbelievers. Are we then facing a ‘Kampf der Götter’—a battle of Gods—a stand-off between opposing world-views, or is there enough manoeuvring space for both culture and universalism of human rights? I believe there is—provided one is willing to face others’ fears. In the last few decades some have expressed a fear of Westernisation, of which the Universal Declaration would be a subtle instrument. The acceptance of the Vienna Convention of 1993, with its acknowledgement of the relevance of historical and cultural contexts in which human rights have to be interpreted and implemented, has, however, removed much of this concern. In cases where human rights violations are defended by references to ‘internal justice’ or cultural practices upon which outsiders have neither the knowledge nor the right to make judgements, much depends on the quality of intercultural dialogue and the power of diplomacy. In ongoing conversations, explanations must be provided as to the why, for whom and whereto of cultural practices that seem to be in tension with human rights. In doing so, one may pay heed to what Nobel laureate Amartya Sen stated so emphatically,73 namely that culture and diversity are of no value by themselves simply because they exist. There are, sadly, plenty of examples in which peoples’ basic rights are violated with the poor excuse that that is merely part of a group’s cultural heritage. Precisely because human rights are not a matter of truth but an issue of validity, and exactly because they are not a matter of description but an issue of prescription (an ‘ought to’), genuine human interest, consistency

71 72 73

Carens, n 61 above, pp 13–14. C Taylor, The Malaise of Modernity (Ontario, Stoddart, 1991). A Sen, Identity and Violence: the Illusion of Destiny (New York, WW Norton, 2006).

66 Gerrit-Bartus Dielissen and intercultural dialogue are essential to get the message across. The Universal Declaration does contain a belief system and a tool for social change with an enormous ‘people appeal’: since who does not want to be treated with respect, have their dignity honoured and a fair chance to a decent, healthy and educated life, and all that within the comfortable borders of one’s own cultural backyard? However, the cause of human rights is not always an easy road to follow, particularly not where one’s consciousness and the implementation of such rights leads one to cut across national borders and the interest groups therein. When this happens, the Universal Declaration can work as a tool of change, particularly for those that are not in power, and have a legitimate expectation to be supported and protected by international law, politics, the media and, most importantly, by the civic courage and active solidarity of their fellow man. Human rights, and indeed minority rights, came about as modern day action schemes: tools intended to aid peaceful integration in the face of complex relations between ethnoculturally diverse groups of people and communities. And that is precisely why they have a future. It would be easy if there was a clear divide between individual rights and group rights, if they could be conceived of as two mutually exclusive opposites, of which one should be preferred over the other. But sociocultural realities are more complex then that. A sociological reading of the history and development of the two types of rights invites one to transcend an absolute division by showing from case to case how rights always represent interests and therefore that specific claims should always be argued for publicly and ultimately be grounded in collectively agreed practices of justice. The legitimacy of (any) rights lies in the community and the public discourses therein that aim to uphold or modify them. Sociologists believe there is ample evidence that no rights are truly written in stone: that rights are merely the consolidation of heart-felt and negotiated concerns of people, and that as such rights constitute a moving equilibrium. One can only promote respectful ways of struggling through claims to get rights acknowledged. Here, a heavy responsibility rests on the international community of nations that have signed and ratified the Universal Declaration of Human Rights and the Vienna Declaration.74 However, no human rights agenda can succeed without fighting persisting inequalities in fair and consistent ways. In this ongoing campaign, the best service social scientists can today provide the international community

74 Though predominantly seen as an epitaph of individual rights, the Universal Declaration of Human Rights identifies several rights that presuppose membership of social categories such as gender, political parties or religious groups. The Vienna Declaration, with its acknowledgement that rights only make sense when interpreted and implemented within specific cultural contexts, suggests that the division between individual and group rights can be understood as significantly less absolute.

Sociological Instrumentality of Human and Minority Rights 67 of man, is to show over and again how the fates of people in today’s world are irreversibly intertwined. For there can be no true empathy or lasting engagement between people who apparently can afford not to care for one other. SELECT BIBLIOGRAPHY Adriaansens, H, Talcott Parsons and the Conceptual Dilemma (London, Routledge and Kegan Paul, 1980) ——, ‘Een minimale systematiek’ (1983) Sociale Wetenschappen 355 Allan, K, Explorations in Classical Sociological Theory: Seeing the Social World (London, Pine Forge Press, 2005) Anderson, B, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, Verso, 1991) Barry, B, Culture and Equality: an Egalitarian Critique of Multiculturalism (Cambridge, Polity Press, 2003) Barth, F, Ethnic Groups and Boundaries: the Social Organization of Culture Difference (Boston, Little Brown, 1969) Baubock, R, ‘Cultural Minority Rights for Immigrants’ (1996) 30 International Migration Review 203 Berger, P and Luckmann, Th, The Social Construction of Reality: a Treatise in the Sociology of Knowledge, (Garden City, New York, Doubleday and Company Inc, 1967) Bourdieu, P, The Logic of Practice (Stanford, Stanford University Press, 1990) ——, Science of Science and Reflexivity (Chicago, University of Chicago Press, 2004) Braudel, F, ‘Geschiedenis en sociologie’ in Geschiedschrijving (Ecrits sur L’histoire) (Baarn, Ambo BV, 1979) Bruce, S, Fundamentalism (Cambridge, Polity Press, 2000) Buruma, I and Margalit, A, Occidentalism: the West in the Eyes of its Enemies (New York, Penguin, 2004) Carens, J, Culture, Citizenship, and Community: a Contextual Exploration of Justice as Even-handedness (New York, Oxford University Press Inc, 2000) Carens, J, ‘On Belonging. What We Owe People Who Stay’, 2005 Summer Boston Review Coser, L, Masters of Sociological Thought: Ideas in Historical and Social Context (2nd edn, New York, Harcourt Brace Jovanovich Inc, 1977) De Feyter, K, ‘In Defence of a Multidisciplinary Approach to Human Rights’ in K de Feyter and G Pavlakos (eds), The Tension Between Human Rights and Group Rights (Oxford, Hart, 2007) De Tocqueville, A Democracy in America (Chicago, University of Chicago Press, 2000). Diamond, J, Guns, Germs, and Steel: the Fates of Human Societies (New York, WW Norton and Co, 1999) Durkheim, E, The Division of Labor in Society (New York, New York Free Press, 1997). Elias, N, The Court Society (Oxford, Blackwell Publishers Ltd, 1983) ——, The Civilizing Process (Oxford, Blackwell Publishers Ltd, 2000) Esping-Anderson, G, Three Worlds of Welfare Capitalism (Princeton, Princeton University Press, 1990)

68 Gerrit-Bartus Dielissen Featherstone, M, The Paradox of Culture and the Globalization of Diversity (Utrecht, ISOR, 1990) ——, ‘Global and Local Cultures’ (1991) 9 Vrijetijd en Samenleving 43 Ferguson, A, An Essay on the History of Civil Society (Georg Olms Verlag, Hildesheim, 2000) Fukuyama, F, The End of History and the Last Man (London, Penguin, 1992) ——, The Future of Democracy, Culture and Immigration (Nexus Lecture, 2005) Gellner, E, Nations and Nationalism (Oxford, Blackwell, 1983) Govers, C and Vermeulen, H (eds), The Politics of Ethnic Consciousness (London, Macmillian, 1997) Habermas, J, ‘Die Moderne—ein unvollendetes Projekt’ in W Hudson and W van Reijen (eds), Modernen versus Postmodernen, Buro Studium Generale (Utrecht, HES 1983) Honneth, A, Kampf um Anerkennung (Frankfurt am Main, Surhkamp, 1992) Kagan, R, Of Paradise and Power: America and Europe in the New World Order (New York, Vintage Books, 2004) Kymlicka, W, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford, Oxford University Press, 1995) ——, ‘Nation-building and Minority Rights: Comparing West and East’ (2000) 26 Journal of Ethnic and Migration Studies 183 Lepenies, W, Die Drei Kulturen: Soziologie zwischen Literatur und Wissenschaft (München, Hanser, 1985) Mannheim, K, Ideology and Utopia (London, Routledge and Kegan Paul, 1979). Marshall, TH, Class, Citizenship and Social Development (Garden City, New York, Doubleday and Co, 1964) Mead, G, Mind, Self and Society: From the Standpoint of a Social Behaviorist (Chicago, University of Chicago Press, 1962) Merton, RK, The Sociology of Science: Theoretical and Empirical Investigations (Chicago, University of Chicago Press, 1973) Morin, F and Saladin D’Anglure, B, ‘Ethnicity as a Political Tool for Indigeneous Peoples’ in C Govers and H Vermeulen (eds), The Politics of Ethnics Consciousness (London, Macmillian, 1997) Musil, R, Der Mann ohne eigenschaften (Reinbek bei Hamburg, Rowolt Verlag GmbH, 1988) Polanyi, K, The Great Transformation: the Political and Economic Origins of our Time (Boston, Beacon Press, 1944) Quillian, L, ‘Prejudice as a Response to Perceived Group Threat: Population Composition and Anti-Immigrant and Racial Prejudice in Europe’ (1995) 60 American Sociological Review 586 Romein, J, ‘De Europese geschiedenis als afwijking van het Algemeen Menselijk Patroon’ in Historische lijnen en patronen (Amsterdam, Querido’s Uitgeverij BV, 1976) Said, E, Orientalism: Western Conceptions of the Orient (London, Penguin, 1995). Sen, A, Identity and Violence: the Illusion of Destiny (New York, WW Norton, 2006) Sumner, W, ‘The Universal Syndrome of Ethnocentrism’ in Folkways (Boston, MA Ginn & Co, 1906) Taylor, C, The Malaise of Modernity (Ontario, Stoddart, 1991)

Sociological Instrumentality of Human and Minority Rights 69 Turner, B, Citizenship and Capitalism: the Debate over Reformism (London, Allen and Unwin, 1986) Wallerstein, I et al, Open the Social Sciences: Report of the Gulbenkian Commission on the Restructuring of the Social Sciences (Stanford, Stanford University Press, 1996) Weber, M, ‘Die logische Struktur der idealtypischen Begriffsbildung’ in P Siebeck (ed), Gesammelte Aufsätze zur Wissenschaftslehre (Tübingen, JCB Morhr, 1982) Wittgenstein, L, Philosophical Investigations (Oxford, Blackwell, 2001) Zijderveld, A, The Institutional Imperative: the Interface of Institutions and Networks (Amsterdam, Amsterdam University Press, 2000)

3 Human Rights and the Anthropological Perspectives on the Dynamics of Cultural Differences M CALLARI GALLI

SOME GENERAL ORIENTATIONS OF THE DISCIPLINE

I

n the first half of the twentieth century, anthropologists regarded transnational processes with suspicion (migratory movements, ethnic diasporas, tourism) because of certain factors inherent in the epistemological principles of the discipline, schematised as follows: — a strong emphasis on local research; — a methodology extremely attentive to particular contexts from which broader comparisons might be extrapolated; — great attention to and interest in the theoretical propositions of the concept of culture; — intense political commitment to protecting the groups studied from any kind of cultural or political imperialism. Emphasising these positions has led many anthropologists to take strongly critical stances in the past with regard to universal values and transnational processes such as human rights. Evidence of this can be found in the 1947 presentation to the United Nations of Melville Herskovits (a famous anthropologist and president of the American Anthropological Association) of a proposal requesting that, in the new world order that was being projected in the Universal Declaration of Human Rights, not only should the dignity of the individual be respected, but also that of each individual culture. This radically relativist position raised culture to the level of a supreme ethical value, identifying it as the source of every moral rule and right. Herskovits’ position was rejected by the UN Commission and was strongly criticised by anthropologists and others: it was felt that his optimistic vision that identified moral good with cultural processes of any kind,

72 M Callari Galli and separated them from economic and political forms, found no support in the history, past and present, of the relations between different cultures. Today we are becoming ever more painfully aware of just how many crimes have been and continue to be committed in the name of the superiority of this or that culture, and of the extent to which cultural differences may engender deep hatreds and divisions. For some decades following Herskovits’ proposal, anthropology expressed concern for human rights more at the level of individual researchers than as an overall discipline. From the 1980s, anthropology began to organically combine its commitment to defending the interests of the people whom it studied with ideas taken from the burgeoning human rights movements. During that decade a social critique of rights and legal processes was developed within the discipline, influenced by Clifford Geertz. His reflections on law and rights1 argue that law is a distinct form of imagining the real, and that law reduces social narratives to a skeleton, since whatever the law seeks, it is not the ‘whole story’. In 1988, TE Downing and G Kushner edited a volume entitled Human Rights and Anthropology in which many authors suggested that anthropology should contribute to the understanding of human rights and cultural diversity by showing how conceptions of rights function in different cultures and how cultures incorporate external ideas. According to CR Barnett, the recognition of cultural difference should not rule out intervention in other cultures but, rather, it imposes the obligation to respect the context within which that intervention is to be carried out. Again, PL Doughty pointed out that in Latin America, the concept of ‘citizenship’ had traditionally been defined so as to exclude indigenous peoples, with the result that these peoples had become victims of gross human rights violations and that anthropologists had ignored state policies towards cultural difference, thereby committing a scientific and moral error. Lastly, J Schirmer emphasised the cultural character of human rights and argued that the question for anthropologists was not that of the relation between universalism and relativism, but rather of the relation between human rights culture and other cultures.2 E Messer, some years later, argued that anthropology should no longer study ‘cultures’ as local, isolated entities but as part of an interactive and interdependent global system of cultures. According to her, the debate between universalism and relativism can be transcended by recognising that cultures change and that human rights must be implemented in a world of cultural diversity, so that anthropologists can help the human rights cause 1 C Geertz, ‘Fact and Law in Comparative Perspective’ in Local Knowledge: Further Essays in Interpretative Anthropology (New York, Basic Books, 1983). 2 TE Downing and G Kushner (eds), Human Rights and Anthropology (Cambridge, MA, Cultural Survive, 1988).

Human Rights and the Anthropological Perspectives 73 by clarifying the relations between international human rights law and particular cultures.3 The last anthropologist I wish to quote is R Wilson for whom the task of anthropology is to put the human back into human rights. He complains that the discourse of legal positivism and sociopolitical realism favoured by governments and NGOs misrepresents the subjective experiences of the victims of human rights violations; consequently, from a moral point of view, these are questionable features of a highly moralistic discourse. The abstract universalism of human rights discourse often ignores local contexts and thereby misunderstands the social and cultural dimensions of conflicts over rights. Human rights law speaks in a clear and certain voice whereas the human rights experience is complex and uncertain. In order to move beyond subjectivity to objectivity, human rights discourse, paradoxically, dehumanises its subjects.4 LIGHT AND SHADOW IN THE APPLICATION OF HUMAN RIGHTS IN CONTEMPORARINESS

Careful examination of the initial situation in which human rights were applied will immediately highlight a host of difficulties and contradictions: the thorniest problem to be solved concerned which role to assign to cultural differences that may produce beliefs and viewpoints in opposition to the fundamental values and practices of daily life. I think it would be useful to map the ambiguities, the continual omissions and reservations that make up the silent pattern of the rhetoric of human rights—let us say, their hidden discourse: useful so that it may be referred to in the critical discussion undertaken in this chapter, starting from the anthropology of contemporariness and based on its epistemological and methodological principles. Potential conflicts exist in the shadows among civic, political and social rights. Moreover, while, from the 1960s, the processes of decolonisation were inspired by the Universal Declaration of Human Rights, the historical reality of colonisation remained in the shadow. In the same shadow, the reality of women’s lives—unequal and different—remained and women’s movements would fight for decades to secure rights for females, and to have such rights considered as human rights, overcoming the opposition between public and private, individual and collective, difference and

3 E Messer, ‘Anthropology and human rights’ (1993) 22 Annual Review of Anthropology 221; E Messer, ‘Pluralist Approaches to Human Rights’ (1997) 53 Journal of Anthropological Research 293. 4 R Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives (London, Pluto Press, 1997); R Wilson and JP Mitchell (eds), Human Rights in Global Perspective (London, Routledge, 2003).

74 M Callari Galli equality. It is not by chance that these two primary omissions are today the most important objections to the rights grammar expressed by both feminist and post-colonial movements. The subsequent history of human rights is also full of light and shadow: in the shadow lies the use of human rights to bring ‘the enemy’ into disrepute during the time of the Cold War, as well as in relations between the United States and Central and South America: above all the transformation of the inclusive and universalistic capability of human rights into Western imperialism must be remembered. This accusation is repeated by those people, governments and cultures that oppose Westernisation; and today this point is becoming more and more relevant since the rhetoric of human rights is under the armed control of the most powerful nation of the world, which claims to impose respect for such rights on the rest of the globalised world. Are we thus facing a clash of universalism and relativism?

UNIVERSALISM AND RELATIVISM

If, in analysing the relationship between the two, we assume a standpoint of mestizo processes, of hybridisation, it is possible to identify the limits of the relativism that, very naively in the first decades of the twentieth century, many anthropologists sought to exalt in defence of minority values and lifestyles that were threatened by principles and ideologies so different as to be oppressive and inimical, even while they claimed to be the only ‘human’ ones—just, universal principles that would provide for future paradises. Relativism (the same relativism that had led Melville Herskovits to propose that the 1948 Declaration of Human Rights should contain an article regarding the respect for cultures), risked, in its generous but unrealistic defence, confining each culture to its own boundaries: above all, it denied the possibility that anthropology and the social sciences might identify theoretical and methodological tools with which to study the great changes that were already looming in the mid-twentieth century and which would invest the cultures of the entire world with the most energetic dynamics. Yet within the theoretical scheme that studies cultural contacts in terms of mestizo processes, certain relativistic orientations must be preserved and their paths followed. Such ‘relativism’ is so new with respect to previous definitions of the term that it should perhaps be replaced with a different term more relevant to its new contents: a term that would show how the complexity of our society necessitates an alternance of universalism and relativism—universal horizons at the level of objectives, and contextual (and therefore relativistic) articulations at the level of practices. This preeminence of contexts obliges every human being to feel insecure, to doubt the validity of cultural expressions loaded with certainty and universally

Human Rights and the Anthropological Perspectives 75 valid principles; it is the pre-eminence of contexts that leads us to live and to choose our route through life in a piecemeal fashion, following specific orientations of contemporariness. It is easy to speak of universal values in the abstract: no one would question the importance of liberty, equality, fraternity. The problems arise when we move from affirmations of general principles to examining the practices and policies inspired by them. How can fraternity be developed among groups supporting opposed principles and lifestyles? How can equality be guaranteed in a world where resources are owned by a restricted minority determined not to cede them and to defend them with every means possible? It is difficult nowadays to design concrete political measures starting out from abstract principles and entities. Perhaps it would be easier to abandon faith in universal, eternal principles and concentrate on commitments and policies to be implemented in communities, of different dimensions, with fluid, ill-defined boundaries, sometimes scattered over wide territories and lacking continuity, but momentarily sharing common ideals. To abandon faith in universal, eternal principles does not entail committing oneself to nihilism or pursuing one’s own individual interests moment by moment. On the contrary, it involves identifying new paradigms that remind the collectivity that contemporariness requires the establishment of new social relations, new interactions, new bonds that will replace the struggle between groups that hate each other because of their belief in religious tenets or cultural models or lifestyles they hold to be superior and seek to affirm universally. The relativism of contemporariness demands that we implement new forms of mediation between different cultures, that we achieve negotiation between systems that support opposed interests, that we combat all forms of fundamentalism, that we foster dialogue between the differences, that we strive for comparison and agreement in place of conflict and tension. As the entire history of humanity reminds us, an individual armed with absolute truths is always a potential assassin. Let me give a brief example to clarify my meaning. Human rights may be understood as general orientations, as forms of communication necessary for reflection on their continual violation, in order to highlight them. But they are in fact specific contexts that must guide us in establishing the possible steps so that human rights may somehow, to some extent, become part of daily experience. Absolute universalism is defended by the supporters of the view which aims to unconditionally legitimate the rhetoric of human rights and the values of some democracies which defend that rhetoric. In this case, too, the reality is much more complex. First, since such rhetoric is subtended by brute military force it loses all its purity of purpose: the wars of the last decades—Gulf, Kosovo, Afghanistan, Iraq—can be seen as an ongoing perversion, or degeneration, of the noble idea of peace maintained by rights into a statement of rights through war.

76 M Callari Galli And this perversion cannot be considered a methodological detail that leaves the notion of the export of rights and democracy untouched: instead, it perverts the very nature of the 1948 Universal Declaration—the significance of democracy, the value of human rights and the balance among international relations are completely upset, demanding that political action and rights should change by seeking new relations and new alliances.

The Explosion of Terrorism in Contemporariness The path to this new way of considering democracy and human rights is neither simple nor straightforward: after the promise of 1948 that the world would renounce violence and war, in that same Western world the horror has returned in the shape of war, torture and the violation of human rights. The same ambivalence makes it difficult to balance the defence of human rights with a world torn apart and scarred by terrorism: many violations of civic and political rights seem to be necessary in order to protect our lives and our peaceful lifestyle, threatened by continuous faceless terrorist outrages. Again, how can human rights be respected when faced with the need to obtain the information required to unmask criminal designs to overturn the hard-won co-existence within our societies and between different societies? It is hard to find clear-cut responses to these dramatic questions, but one prospect (perhaps utopian but at least indicative of possible new directions) does appear in the report submitted by the then UN Secretary-General, Kofi Annan in March 2005 to the General Assembly, entitled In Larger Freedom: Towards Development, Security and Human Rights for All. The Executive Summary of the report notes: the world must advance the causes of security, development and human rights together, otherwise none will succeed. Humanity will not enjoy security without development, it will not enjoy development without security, and will not enjoy either without respect for human rights … Hence, the cause of larger freedom can only be advanced by broad, deep and sustained global collaboration among states.

The response to terrorism ought to be based on a holistic and interrelated understanding of human security, rights and development. It should always be within the framework of human rights and the rule of law. The domestic and international legal framework being put in place as a response to terrorism is desirable. But what is not acceptable is individual states resorting to unilateral actions that are not justified within the international law framework, or committing acts that violate the Geneva Conventions or the Convention Against Torture. Use of force should not be the sole response in the ‘war on terror’. Individual states, while passing counter-terrorism legislation, ought to take

Human Rights and the Anthropological Perspectives 77 into consideration human rights implications and the potential for abuse by law enforcement authorities. The fact that young people in different parts of the world are ready to die for a cause (however illegitimate it may be) shows that there is something fundamentally wrong. In these circumstances, there is a more urgent need for the international community to help in building societies based on principles of democracy, good governance, human rights and development so that they do not serve as recruiting grounds for terrorists. But this need for democracy, good government, and the spread of human rights and development requires precise and circumstantiated knowledge of the various political, economic and cultural situations of the societies in which intervention is to be made. And this knowledge must underpin the programmes and proposals for the interventions to be developed at the different levels. The diffusion of culture and technology, peculiar to Western societies, demonstrates that they do not anticipate people failing to take account of the contamination they undergo in transference and in grafting. To invoke the spread of democracy means to be aware of the application of the parliamentary system, in countries that feature social divisions rooted in a structure of society that privileges age or wealth hierarchies, ignores values like self-determination and individual freedom and favours the representativeness of the family group. Such system rarely provides for mediation among the different interests represented but reinforces the domination of groups already wielding power over all the others. In many African and Asian countries, the diffusion of education along the Western model has led, on the one hand, to a strengthening of the traditional elites that have, often totally, identified themselves with Western models, and, on the other, to a coagulation of anti-Western integralist movements among students who have been excluded by the elites from participating in the economic, technological and political processes that determine a country’s choices. Intervention in the educational, economic and political field would have to be based on precise, scientifically correct analyses of the social and cultural contexts upon which to graft models. The competences of the social sciences should be availed of much more than they are at present, especially those of the anthropological disciplines—their data collected not merely by anthropologists in bush jacket and sun helmet as was the case in the past but also (and especially) by ‘native’ anthropologists; the latter, present today in schools and universities throughout the world, should accompany and support all the programmes aimed at establishing relations and understanding between countries of different levels of development. The partnership between developing and developed countries should be based on a sense of common humanity so that threats of all kinds are jointly addressed. Countries forming such partnerships should consider the notion of ‘larger freedom’: it is important to recognise that the fight against terrorism should not be given any undue priority, which would lead to the neglect of other

78 M Callari Galli equally important issues relating to development and governance. The counter-terrorism laws and practices that are being developed should be based on greater respect for human rights and should be within the framework of the rule of law. A state’s domestic commitment to its constitution and laws should be protected in the fight against terrorism so that civil liberties are not undermined. Larger freedom is about ensuring that people have a variety of choice in their life. These choices are possible only if their security, development and human rights are assured. Values of non-violence and fraternity are essential to the progress of societies and for the common good of humanity. The present state of anti-terrorism efforts worldwide has given little assurance to people who live without any hope of development and whose human rights are continually violated.

CULTURAL DYNAMICS OF CONTEMPORARINESS

Today, our planet bears witness to incessant transverse movements— migrations, diasporas, shifting of capital, wars, various forms of tourism, electronic communications—that produce new articulations of cultural differences between peoples; and their representation can no longer follow the map established by a centuries-old tradition of study. Groups and individuals must increasingly face and experience processes in which the economic globalisation of markets and cultural homogenisation accompany new social and cultural divisions and the revitalisation of traditional localisms. While the possession of a village or a hill may still involve a fight to the death, it is also true that the combination of ‘one territory/one group/one culture’ that for decades guided the policies of governments and the studies of social sciences now seems to fragment under the impact of the processes of deterritorialisation. This combination has also been eroded by the theoretical and practical stances taken in the name of human rights which, as a result of their universalism, have cast doubt on the real and symbolic boundaries of the nation-state, a process aided by television and Internet broadcasts, the creation of supranational military forces and the organisation of transnational labour. To many, the world looks at once wider and smaller, certainly not able to be reduced to a set of human groups encapsulated in ‘small, isolated and homogeneous’ cultures, to use a formula laid down by the anthropological method of the previous century. And the anthropology of contemporariness increasingly focuses on an attempt to understand the potential destiny of local identities, of local cultures, and the structure that will be assumed by the infinite localisms that continually interface with the dizzying processes of globalisation. On the one hand, a possible outcome may be glimpsed in the destruction of cultural specificities, overwhelmed by the globalisation of the markets and by consumerism, and by the emergence at the world level of a genuine cultural homogenisation that will lead to the

Human Rights and the Anthropological Perspectives 79 Westernisation of the entire planet; but it also seems possible that globalism is not identified with a full adherence to Western culture but that, rather, by giving rise to a series of processes of ‘indigenisation’ of its cultural motifs, it is actually causing an increase in cultural differentiations, at new rates, and is bringing about new elaborations of local identities, reterritorialising the processes of deterritorialisation.5 The process of globalisation has completely changed the relation between time and space, and the history of our time has a rhythm that we could not previously have foreseen: the difficulties of making any prediction renders it difficult, in turn, to delineate stable norms and juridical principles. The extraordinary transformations in communications among cultures and people require us to rethink the very logic of universalism. The question is whether to include what up until now has been excluded: in the global scenario times and spaces overlap, frontiers and identities break up and multiply, the functions of nations overshadow functions of supranational sovereignty in such a way that the logic of universalism elaborated in the past no longer works. The tension between the principle of equality and the principle of difference becomes so sharp that it demands a different logic: a ‘universalism of difference’ is most likely needed to sit in opposition to the principle of identity. In the looming state of risk in which democracy now finds itself, no time can afford to be lost: we must plan within the entropic effects generated by what has been called ‘rights inflation’, that is the extension of the concept of human rights to an ill-defined number of issues. This has led to an increase in requests and in the subjects who can advance such requests; it has encouraged automatic translation of expectations into rights that are very often difficult to uphold in the absence of adequate tools of governance. Because of the primary omissions, because of the changing time in which we live, and because of the new fluid relations established between different groups of people across the continents, the grammar of human rights has to be planned with new modalities that must be experienced by all of the different nations, cultures and people. MARGINALITY AND RESPECT OF HUMAN RIGHTS

The socioeconomic rights defined in the 1948 Universal Declaration of Human Rights set out minimum standards of entitlements to be enjoyed by all individuals and households globally. Yet, by the end of the twentieth century, the realisation of the standards embodied in those clauses remained more of an aspiration than a reality, even in some of the world’s richest countries. As 5 A Appadurai, Modernity at Large (Minneapolis, University of Minnesota Press, 1997); JX Inda and R Rosaldo (eds), The Anthropology of Globalization (Malden, Blackwell, 2002).

80 M Callari Galli John Gledhill writes, by 1995, when the UN Copenhagen Summit reiterated that poverty and social development were central to the global agenda, it had become all too clear that there was a fundamental problem in basing any new ‘war’ on global poverty on the terrain of the politics of rights.6 In fact, there are many cases of poverty and underdevelopment, and such cases, as pointed out above, are generally inhomogeneous from one area to another, even among groups belonging to the same area. Indeed, the very concept of underdevelopment and its geographic concentration—and hence the definition and localisation of poverty—now appears far more complex than it did in the past, and requires indicators other than strictly economic ones, eg quality of life and individual wellbeing; possibility of access to education, healthcare and per capita resources; lack of respect for human rights; lack of political rights and of democratic pursuit of civic life. The concept of the ‘southern half of the world’ has, in some ways, lost its monolithic character and no longer seems entirely relevant, insofar as some countries which previously belonged to the ‘southern’ world and the underdeveloped area of the globe, have now achieved a good GDP and good growth rates and are dealing reasonably well with problems such as famine, in such a way as to overturn the traditional league tables of industrialisation. I refer here to China, India, the oil-producing countries, the so-called ‘four dragons’ of South Korea, Singapore, Hong Kong and Taiwan. In contrast, however, success has not touched a great many ‘southern world’ countries. Those countries’ situation has worsened alarmingly, as recorded in the 2002 Report on Human Development: the Quality of Democracy: the richest 20 per cent of the world currently benefits from 82.7 per cent of the wealth produced, while the poorest 20 per cent receives a scant 1.4 per cent of that wealth. With such a wealth of factors, profoundly diverse but each having an effect on previous certainties concerning widespread and shared economic growth, any analysis of social development or poverty must abandon the strictly economic factors and focus instead on factors of social inequality, giving pride of place to human persons, their material and non-material needs, and the environments in which they live and move. In the view of Amartya Sen, to be poor means not only having no money but also (if not indeed primarily) not being able to achieve the essential functions of human life: nourishment, clothing, shelter, healthy living, but also including having high expectations from life, such as the expectation of education, secure work, participation in social and political life, and respect for human rights. 6 J Gledhill, ‘Rights and the Poor’ in R Wilson and JP Mitchell (eds), Human Rights in Global Perspective (London, Routledge, 2003).

Human Rights and the Anthropological Perspectives 81 Emigration and Human Rights A great number of studies performed over the past few decades have shown how migration flows converging on various European countries have been concentrated mainly in metropolitan areas: in the United Kingdom at the end of the twentieth century, 43 per cent of all immigrants were to be found in Greater London, accounting for 14 per cent of the capital’s population. Similar phenomena can be observed in Germany (Berlin, Frankfurt, Hamburg) and France, where immigrants accounted for 14 per cent of the population of Greater Paris, 13 per cent of Lyon and 9 per cent of Marseille. This high concentration of immigration in urban areas creates tension as regards the settlement of the ‘alien’ in the ‘reception’ areas and also produces negative outcomes in the economic, social and cultural development of the settlement areas that in mass-media language are systematically defined as ‘marginal urban sectors’. Marginality, as currently used, means ‘marginalisation’, ‘decay’, ‘poverty’. It is extremely important to urgently clarify the causes of this decay, to explore the map of the activities of the immigrants, their levels of settlement, the violations for which they are responsible: for we need circumstantiated knowledge of the relations they have with the host state’s institutions, and such institutions with them, if the respect of rights, of all rights—those embodied in International Conventions and those laid down in constitutions, in the laws and in the tradition of the juridical and social culture of the various countries to which they come to live—are to be guaranteed for all. The existence of such a mixture of ‘ethnicities’, ‘minorities’ and ‘nationalities’ diverse and differentiated but co-existing within one and the same territory, leads to the acting-out of specificities and characteristics and engenders conflict. Any study of such differences and marginalities leads irrevocably to focusing on the birth and existence of conflicts, dispensing with the vision of multiculturalness as harmonious community. In addition, within the metropolitan and urban panorama, the conception of community itself breaks down in the face of people’s mobility, ideas, goods, and the fluidity of their interactions—as though there were no communities, but rather, sets of networks, sometimes overlapping, sometimes melding, but more often appearing devoid of consistent linkages: networks of families, of friends, religious networks, political ones and economic ones. The very idea of citizenship within this conceptual and methodological perspective needs to be revised and rethought: citizenship can no longer be conceived as a generic formal membership that takes no account of the subjectivity of the individuals to whom it is applied or to whom it is denied. When civil, political and social rights are not guaranteed because they are not considered to be inherent to the subject, but are granted according to laws made prior to certain situations being created, human rights lose their significance and become inapplicable. Which human rights are guaranteed

82 M Callari Galli to the ‘refugees’ crowded into camps, which to the immigrants of the European metropolises and cities lacking any economic means, ‘moonlight’ workers, dwelling in the city outskirts and the downgraded districts? In such cases, citizenship should be differently articulated and made more adaptable to situations peculiar to different groups—perhaps granted in a limited and partial way but at least acknowledged as the primary right to social visibility. The scenario of contemporariness, with its mixtures of transversality and deterritorialisation, of sociocultural dislocations and extreme localisms, demands extensive changes in the study and the policies of intercultural relations: if we are to make any active contribution in a transnational world, populated by cultures that are less and less dependent on unitary and cohesive models of culture and education, we need to conceive of new tools with which to address the newly articulated, complex collective experiences, and these are, in many respects, more similar to one another than we are ready to believe. Every time we undertake to examine or to carry out an encounter with a different culture, we should reject the idea that we face a locally elaborated culture made up of a consistent system of repetitive, self-reproducing practices that have remained untouched by outside influences and attractions. In that way, human rights might provide a language upon which to build lines of communication for possible common orientations. We should recall more often that, in spite of the many voices that accuse human rights of being agents of ‘cultural imperialism’, the doctrine of human rights has been adopted by many groups and minorities as a weapon against the arrogance of their governments and of Western economic policies. CONTRIBUTION OF ETHNOGRAPHY TO A PLURALISTIC APPROACH TO HUMAN RIGHTS IN A MULTICULTURAL WORLD

From the date of the Universal Declaration of Human Rights in 1948, the world has witnessed an ongoing multiplication of emerging states, many of them in conflict with one another, as well as dealing with internal regional conflict. Groups make continual and increasing requests to oversee their own development; the world teems with movements—of goods, individuals, groups, images, information—with a strongly transnational character; the number of NGOs trying to bridge the gap between the declarations of principle of human rights and the practical implementation of such rights has grown. In such a new world order, it has become imperative to identify and analyse the different cultural and religious perspectives on human rights. Ethnography can make a contribution towards dealing with these problems, both through its epistemological positions and its methodologies and techniques.

Human Rights and the Anthropological Perspectives 83 The changes in the articulation of the differences that have come about in contemporariness have altered the theoretical approaches and the methodological perspectives that were employed in ethnography during the first decades of the twentieth century. Those approaches and perspectives were based on empathetic processes that linked the observer with the observed, but at the same time, both in practice and in the construction of the final text, ethnography was entirely aimed at collecting data that were considered to be objective manifestations, in relation to which the subjectivity of the researcher was supposed to be nullified. Today, however, ethnographic description takes on a much more problematic dimension, inserting the hypothesis of a direct correspondence between representation and experience: in the encounters in the ‘field’ as well as in the elaboration of the text, the aspects of dialogue and interpretation of the ethnographic experience are in the foreground. Ethnography, then, is no longer a mere representation of the data collected by the researcher, but rather a construction performed by the researcher together with the cultural witnesses chosen, giving utterance to all the subjectivities encountered in the process. This new dimension of ethnography, with its aptness to collect cultural narratives, renders it ideal, with regard to human rights, for the task of ensuring the satisfaction of a new right among the groups and individuals, the ‘right to narrate’, as identified and described by Homi Bhabha. In a contribution to the Oxford Amnesty Lecture of 2003, Bhabha interpreted that right as the right of individuals and social groups to tell stories that create their own ‘web of history’, challenging and providing alternatives to those customs and conventions that currently dominate social discourse: Bhabha’s articulation of this right is occasioned by a broader discussion of the implications of multiculturalism and its linked claims of cultural respect and recognition. Rejecting the dominant assumption that only the culture of ‘whole societies’ is worthy of respect, Bhabha defends the ethical importance, in a globalised context, and the increasing practical significance of what Charles Taylor has described as the ‘partial milieux’—partial or minority cultures. The right to narrate both recognises and protects the vital role that minority cultures play in modern societies as ‘moving signs of civic life’.7 An Intercultural Approach Starting from Local Cultures With the close attention that it pays to the rhythms of daily life, ethnography is able to anchor human rights in the social and moral spaces shared by

7 H Bhabha, ‘On Writing Rights’ in MJ Gibney (ed), Globalizing Rights (New York, Oxford University Press, 2003).

84 M Callari Galli the collectivity, and to provide materials to create a human ontology that does not rely on principles elaborated by the Western world, but emerges from ethnographic observations that reveal moral attitudes towards human dignity as shared at intercultural level. Ethnography does not focus on describing the ‘passivity’ of the victims of human rights violations; but gives a central place to the daily acts of resistance against abuses and offences. It thus becomes possible to identify the general dynamics of the changes in values that occur in the social practices of those who rebel against the violation of their rights, independently of the variables linked to the different contexts from which data and accounts emerge. The need and the desire to abandon research focused on small, isolated, homogeneous cultures have led to numerous attempts to construct new forms of ethnographic research and new kinds of anthropological reflection. In this regard, there has been, in recent years, an increase in ethnographic studies devoted to global institutions, the processes of globalisation, diaspora populations and transnational flows. Many such studies have addressed the relations between human rights and transnational processes and institutions; they provide interesting levels of comparison between the ways in which human rights, in different areas, link with transnational religious traditions such as Buddhism or Islam.8 Intercultural studies also highlight the importance of connecting human rights violations and the reaction to them with the characteristics of the contexts in which they occur. Thus, the claim to rights of liberty of religion put forward by Islamics in Macedonia, Indonesia and South Africa can be compared with one another, since they occur in states that have structures, disciplinary powers and positions within the global economy analogous with or similar to one another; whereas it would seem less productive to compare requests for respect of rights made by the native populations of Canada with those of the native populations of Bangladesh. Comparative studies of the different legal approaches to human rights are still very rare; however, a series of studies has investigated the ways in which local standards and practices support or conflict with international norms. Anthropologists who have worked in South America have tried to underline the apparent contradiction between legal principles and practices peculiar to communities, on the one hand, and the universal safeguards of individual rights on the other. One particular category of rights concerning community control over land, resources and the right of each community 8 JR Bowen, Shari’a, State, and Social Norms in France and Indonesia, Paper no 3 (Leiden, Institute for the Study of Islam in the Modern World, 2002); MA Mills, ‘This Turbulent Priest: Contesting Religious Rights and the State in the Tibetan Shugden Controversy’ in R Wilson and JP Mitchell (eds), Human Rights in Global Perspectives (London, Routledge, 2003).

Human Rights and the Anthropological Perspectives 85 to directly manage its own development may be in diametric contrast and conflict with state or inter-state notions of sovereignty and individual property rights, thereby creating ambiguous behaviour which may even lead to open conflict. Scholars of African situations have investigated the cultural contexts of local customs, such as the mutilation of female genital organs and the unequal access for women to land, food or medical treatment, and this has provided a cue for analysing the numerous cases where cultural orientations and human rights clash. Such research into how local communities perceive notions and practices connected with human rights supplies the evidence necessary to identify where, when and how local cultural practices and ideas support the aims of international law, by embedding those aims in the culture. Where local practices and principles appear to deviate from international standards, anthropologists look for the cultural reasons underlying these divergences and often seek to identify practices and policies that may help to establish a certain congruence between the local law and international law. Some Suggestions for an Ethnographic Study of Human Rights The interpretations of human rights are rooted in individual biographies, in community histories, in the power relations that characterise the different groupings that make up a community. All of these elements are part of the protocol of any anthropological research, and every anthropologist knows that their relation with the formal version, with the official level, must never be taken for granted but must, instead, be investigated and laid bare. Again, while African and Asian operators may make use of human rights language in putting forward their claims, it cannot be assumed that they consider those human rights in the same sense as the meaning ascribed to them at juridical level. It should always be borne in mind that the doctrine of human rights is reworked and transformed by the different contexts in which it is applied, regardless of whether such contexts are Western or not. In using the ethnographic method to understand the effectiveness of human rights it must always be remembered that the key to a comparative analysis can be found, not in a particular group of ‘rights’, but rather in the social categories that are included in, or excluded from, the protection afforded by those particular rights. Even if it is accepted that ethnography, in forgoing any claim to completeness, partially encompasses transnational relations, the problem of how to conceptualise the relation that exists between global and local remains. This relation may be conceived of as a ‘network of networks’, a mosaic branching out in all directions, a model of connections that intermesh and overlap in a pluralistic and changeable way.

86 M Callari Galli The task of the anthropologist in following this perspective might be not only to supply methodological and technical tools for research, but also to study the interaction of the legal processes that operate at the different levels: this could include a study of how human rights law gives shape and pattern to local normative systems, and how the latter, in turn, contend with transnational law or, alternatively, appropriate such law into those systems. Anthropologists might also study how social actors develop different ways of using transnational law in their national tribunals in order to construct a case as a ‘case of violation of human rights’; and how the local tribunal, in turn, tries to oppose the usurpation of its power by the international courts. In this way, the study of human rights becomes an ethnographic exploration of how normative discourses based on law are produced, translated and rendered material in a variety of contexts. By penetrating to a more exemplificative level of possible ethnographic practices, anthropologists can contribute to clarifying the notions of human rights in specific cultural contexts, analysing the contexts within which the concepts of person and individual, so important for the articulation of human rights, leave certain categories of individuals unprotected. At the same time, ethnographic data may be of value in devising educational material to link emotional aspects and feelings with the rational level of human rights. Anthropological research into the ‘rights’ and ‘duties’ present in the different societies can be of great help in modelling the rhetoric of human rights and the tools for advocating them. By identifying the cultural and familial notions regarding practices in infant nutrition, in hygiene and healthcare techniques, or in preparing people for work, anthropologists can highlight the places and groups where children’s rights need to be safeguarded and expanded; or, through detailed investigation, anthropological studies can provide indications for launching a series of negotiations and mediations to reduce the brutality with which weak strata of the population are exploited, where there is no possibility of eliminating such exploitation altogether. And groups working on human rights in different contexts worldwide should be enabled to move in safety among the multiple diversities that characterise institutions, customs and practices. SELECT BIBLIOGRAPHY Albinati, E, Il ritorno: Diario di una missione in Afghanistan (Milano, Mondadori, 2002) Appadurai, A, Modernity at Large (Minneapolis, University of Minnesota Press, 1997) Arendt, H, Origins of Totalitarianism (London, Allen & Unwin, 1967) Bhabha, H, ‘On Writing Rights’ in MJ Gibney (ed), Globalizing Rights (New York, Oxford University Press, 2003)

Human Rights and the Anthropological Perspectives 87 Bowen, JR, Shari’a, State, and Social Norms in France and Indonesia, Paper no 3 (Leiden, Institute for the Study of Islam in the Modern World, 2002) Callari Galli, M, In Cambogia (Roma, Meltemi, 1966) ——, Antropologia per insegnare (Milano, Mondadori, 2000) ——, ‘La “fusione degli orizzonti”’ (2000) IV 1 Pluriverso 74/81 ——, Antropologia senza confini. Percorsi nella contemporaneità (Palermo, Sellerio, 2005) Callari Galli, M and Guerzoni, G, ‘I diritti dimenticati’ (1999) IV 3 Pluriverso 51/91 Callari Galli, M, Cambi, F and Ceruti, M, Formare alla complessità (Milano, Carocci, 2003) Downing, TE and Kushner, G (eds), Human Rights and Anthropology (Cambridge, MA, Cultural Survive, 1988) Geertz, C, ‘Fact and Law in Comparative Perspective’ in Local Knowledge: Further Essays in Interpretative Anthropology (New York, Basic Books, 1983) Gledhill, J, ‘Rights and the Poor’ in R Wilson and JP Mitchell (eds), Human Rights in Global Perspective (London, Routledge, 2003) Harrison, G, I fondamenti antropologi dei diritti umani (Roma, Meltemi, 2002) Herskovits, M, ‘Statement on Human Rights’ (1947) 49 American Anthropologist 539–43 Ignatieff, M, The Warrior’s Honour: Ethnic War and the Modern Conscience (London, Vintage, 1999) Inda, JX and Rosaldo, R (eds), The Anthropology of Globalization (Malden, Blackwell, 2002) Messer, E, ‘Anthropology and Human Rights’ (1993) 22 Annual Review of Anthropology 221 ——, ‘Pluralist Approaches to Human Rights’ (1997) 53 Journal of Anthropological Research 293 Mills, MA, ‘This Turbulent Priest: Contesting Religious Rights and the State in the Tibetan Shugden Controversy’ in R Wilson and JP Mitchell (eds), Human Rights in Global Perspectives (London, Routledge, 2003) Papisca, A, ‘Diritti umani per lo statuto internazionale del migrante’ (1990) Pace, diritti dell’uomo, diritti dei popoli 93 Preis, B, ‘Human Rights as Cultural Practise: an Anthropological Critique’ (1996) 18 Human Rights Quarterly 286–315 Sassen, S, Globalization and its Discontents (New York, New Press, 1995) Sen, A, ‘Population, Delusion and Reality’ (1994) New York Review of Books 62 Staerckle, C, Clemente, A and Doise, W, ‘Representation of Human Rights across Different National Contexts: the Role of Democratic and non-Democratic Populations and Governments’ (1998) 28 European Journal of Social Psychology 207–26 Taylor, C, ‘The Politics of Recognition’ in A Gutmann (ed), Multiculturalism: Examining the Politics of Recognition (Princeton, Princeton University Press, 1994) Wilson, R (ed), Human Rights, Culture and Context: Anthropological Perspectives (London, Pluto Press, 1997) Wilson, R and JP Mitchell (eds), Human Rights in Global Perspective (London, Routledge, 2003) Zolla, E, Lo stupore infantile (Milano, Adelphi, 1994)

4 The Development of Minority Rights in Europe LISANNE WILKEN

S

ince the end of the Cold War there has been a significant increase in minority rights provisions, not least in Europe. In 1992 the Council of Europe1 adopted its European Charter for Regional or Minority Languages2 and in 1995 it adopted the Framework Convention for the Protection of National Minorities in Europe.3 In 1992 the Organisation for Security and Cooperation in Europe decided to establish a post on High Commissioner for National Minorities, and in 2004 the European Union included ‘respect for minority rights’ in its Draft Constitution for the European Union.4 The growth in minority rights provisions at the international level have been matched by an equal growth in minority rights provisions at national levels. At the turn of the century many European states adopted new minority provisions or extended those they had.5 The growth in minority rights provisions since the end of the Cold War is remarkable. Since the end of the Second World War, both international organisations and Western European states have generally been reluctant to adopt minority rights. This reluctance is usually linked to memories of the interwar period, when Hitler used the presence of German minorities outside of the Third Reich as an excuse for interfering in the internal affairs

1 The United Nations also adopted a minority declaration in 1992: Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. 2 The Language Charter entered into force in 1998, when it had been ratified by the required five countries. 3 The Framework Convention entered into force in 1998 after it had been ratified by the required five countries. The Convention is the first legally binding multilateral instrument devoted to the protection of minorities and is regarded as the most comprehensive international standard in the field of minority rights so far. 4 The Draft Constitution was later and for other reasons rejected by the Netherlands and France in 2005. 5 L Wilken, Enhed I Mangfoldighed? Eurovisioner og Minoriteter [Unity in Diversity? Eurovisions and Minorities] (Århus University Press, 2001).

90 Lisanne Wilken of other states and in some instances invading them.6 It is also linked to the fact that some minorities are known to have collaborated with invading Nazis during the war in order to gain independence from the states to which they belonged. After the war it was not considered a good idea to grant minority groups too much independence and recognition.7 When explaining the reintroduction of minority rights following the Cold War, focus is often directed at security politics. The instability in Eastern Europe after the Cold War, the civil wars and ethnic cleansings in the Balkans throughout the 1990s and the prospect of integrating Eastern European countries into the European Union have been identified as the primary factors which made legal protection of minorities imperative once more.8 The focus on security politics and legislation, however, reveals only part of the story of the re-emergence of minority rights in Europe. Another part of the story can be explored by focusing on the role played by minority NGOs. Since the end of the Second World War a number of different minority NGOs have lobbied international organisations in an attempt to regain recognition and rights in national and international politics. These minority NGOs and their relationship with international organisations adds an interesting dimension to the reintroduction of the issue of minority rights in Europe. It suggests that the reintroduction of minority rights may be more complex than can be acknowledged by simply looking at the changed security situation following the Cold War. Minority rights were not simply reintroduced. They were reintroduced in a specific form and directed at a specific kind of minorities; minority rights in Europe is at present primarily concerned with linguistic minorities with a territorial and/or historical belonging in Europe. Indeed, in some instances they are actually concerned only with minority languages.9 If we want to understand not only why minority rights were reintroduced, but also why they were reintroduced in this specific form, we need to supplement normative and legal approaches to minority rights with historical and sociological approaches. As pointed out by De Feyter in this volume, whereas different disciplines offer different perspectives on human and minority rights, none of them are capable of grasping the entire topic in all of its complexity. In the case of minority rights in Europe, the legal and normative perspectives are obviously important, but they fail to incorporate the contextual and active role of minority agents in the reintroduction of minority rights during the 1990s. 6 D Ó Riagáin, ‘Many Tongues but One Voice: a Personal Overview of the Role of the European Bureau for Lesser Used Languages in Promoting Europe’s Regional and Minority Languages’ in CC O’Reilley (ed), Language, Ethnicity and the State, vol 1, Minority Languages in the European Union (Basingstoke and New York, Palgrave, 2001). 7 Ibid. 8 JJ Preece, ‘Minority Rights in Europe: from Westphalia to Helsinki’ (1997) 23 Review of International Studies 75. 9 Wilken, n 5 above.

The Development of Minority Rights in Europe 91 This chapter attempts to reconstruct part of the story of the development of minority rights in Europe by focussing on minority NGOs in the post-war era. The different strategies that minority NGOs have applied in their attempt to influence international policies are explored and the reasons why some have been more successful than others are considered. In this way I hope to contribute to an understanding of the historical process of developing minority rights in Europe, which does not simply see minorities as passive objects for rights conferred upon them by institutions and governments, but which also sees minorities—or at least their representatives—as strategic agents who have attempted to influence the ‘game of policy making’ in post-war Europe. I also hope to contribute to a multidisciplinary approach to the topic as discussed by De Feyter. This chapter begins with a brief recollection of the history of minority rights in Europe. This will first and foremost serve as a context for understanding both the absence of minority rights during the Cold War and the re-emergence of rights during the 1990s. The strategies of two NGOs in post-war Europe in relation to international organisations are then discussed and their representation of minorities compared.10 The analysis presented is inspired by the work of the late French sociologist, Pierre Bourdieu, in particular, by his concepts of field, doxa, strategies and games. A very rough introduction to the concepts used in the chapter is provided below. MINORITY RIGHTS: DEFINING THE FIELD

A precondition for the work presented in this chapter is that policy-making can be understood with reference to Pierre Bourdieu’s concept of a field. A field, according to Bourdieu, is a social arena within which strategic agents engage in a struggle over something that they find worth struggling for.11 The struggle can be described by the metaphor of a game.12 This means that agents engage in the struggle to win something: influence, power, recognition or control over land, for instance. But it also means that they have different possibilities of winning. Winning ‘a game’ has only a little to do with luck and a lot to do with strategies,12a abilities to read the game and the other 10 The chapter is based on a previous study carried out by the author on minority nationalistic movements and NGOs in the European Union during the 1980s and 1990s: Wilken, n 5 above, based on material from international institutions and on published work by other scholars and representatives of minority NGOs. 11 P Bourdieu, Sociology in Question (London, Sage Publications, 1993), p 72. 12 P Bourdieu, In Other Words: Essays Towards a Reflexive Sociology (Cambridge, Polity Press, 1990). 12a I am aware that my use of the concept of strategies sounds more calculated than Bourdieu defined it. This will be dealt with elsewhere.

92 Lisanne Wilken players, assets relevant for the game and with what Bourdieu calls ‘a feel for the game’.13 Bourdieu calls the assets that agents have ‘capitals’.14 The capital relevant for the field in which minority rights are at stake might best be defined as symbolic capital related to political and symbolic power. Political power is related to the power of states. Symbolic power is related to the right to define the ‘political landscape’ and thus the right to define who can have self-determination or political representation.15 The struggle over minority rights is inscribed in the struggle over territorial control and political power in Europe. Minorities may be seen both as objects and agents in that struggle. Insofar as many minorities live on territories that are disputed and often claimed by more than one state, minorities are objects in the way that they may get rights as part of a strategic attempt to secure peace between two states or to prevent invasion or irredentist claims. Minorities are also agents insofar as they may attempt to claim rights for themselves—self-determination or the right to education in their own language, for instance. In order for minorities to get rights or to claim rights they need to exist in a recognisable and legitimate form. According to Bourdieu, social collectives are not simply objective entities which exist in and by themselves; rather, they are arbitrary and need to be classified and represented in order to be recognised. The classification and representation may change according to time and social context.16 Minorities in the seventeenth century, for instance, were classified differently than minorities in the interwar period. Being represented in the relevant way is one criterion for entering the struggle for minority rights. Another criterion is to have representatives who have a feel for the game and who can maximise the limited amount of capital that minorities (by definition) have in the political game. According to Bourdieu, a field is defined by doxa, which refer to the underlying premises that make the struggle in the field possible. Only agents who accept the doxa of the field can participate in the struggle of that field.17 Thus, minorities cannot claim rights by ignoring existing power relations. Even if their struggle has the ultimate purpose of changing the relations in the field, they have to play with the rules rather than against them. The struggles in all fields are the products of history, of previous struggles and of the more or less inspired moves by previous agents. Therefore, a historical context is helpful in attempts to make sense of current struggles. 13

P Bourdieu, Practical Reasons: On a Theory of Action (Stanford University Press, 1998),

p 76. 14 P Bourdieu, ‘The Forms of Capital’ in JG Henderson (ed), Handbook of Theory and Research for the Sociology of Education (New York, Greenwood Press, 1986). 15 P Bourdieu, Language and Symbolic Power (Cambridge, Polity Press, 1991). 16 P Bourdieu, Distinction: a Social Critique of the Judgement of Taste (Cambridge, MA, Harvard University Press, 1984), p 169. 17 P Bourdieu, Sociology in Question (London, Sage Publications, 1993), p 73.

The Development of Minority Rights in Europe 93 The next section gives a very brief historical context for the development of minority rights in Europe. MINORITY RIGHTS IN AN HISTORICAL PERSPECTIVE

There is a long history of minority rights in Europe. In the following section I shall attempt to outline this history by highlighting three significant moments: the Congress of Westphalia in 1648 which was one of the first attempts to settle the question of minority rights by an international assembly in Europe; the Congress of Vienna in 1815 which was the first international event that referred to national minorities; and the interwar period, when a minority rights regime was developed within the League of Nations. The purpose of this section is to give the reader an idea about how minority rights have been important historically and why minority rights became problematic after the Second World War. This is the context which frames minority rights struggles today. The Congress of Westphalia concluded the Thirty Year War in Europe.18 It is mostly interesting in this context because it conferred rights on minorities. The peace-negotiating parties at Westphalia agreed to secure rights for those primarily Protestant minorities whose territories were ‘redistributed’ among the sovereigns of Europe and who ended up as subjects under new sovereigns.19 While the Congress of Westphalia did not promote tolerance for religious freedom, it did attempt to re-establish peace by securing rights for those minority groups who could pose a threat to it.20 In the seventeenth century, religion was the most important factor for group identification and, therefore, both a stake in the struggle over power and the significant defining criterion for minorities.21 One hundred and seventy-five years later at the Congress of Vienna, national identity had gained momentum, which meant that national rather than religious minorities were promised rights.22 The change from a primarily religious to a primarily national foundation for power struggles is linked to the American and French revolutions and to the influence of philosophers like Johan Gottfried Herder and Wilhelm von Humboldt.23 The American and French revolutions firmly tied the concept of sovereignty to the concept of nation, and Herder and von Humboldt (among others) popularised the

18

See eg Preece, n 8 above. Ibid; A Alcock, A History of the Protection of Regional Cultural Minorities in Europe (Basingstoke, Macmillan, 2000). 20 Preece, n 8 above. 21 Ibid. 22 Ibid. 23 Alcock, n 19 above; IBF Kormoss, ‘Mapping Minorities: a Challenge for Research’ (1993) 30 GeoJournal 202. 19

94 Lisanne Wilken nation as organic entities with hearts and souls.24 The revolutions and the philosophical influence from Romantic philosophy changed the perceptions of the political landscape in Europe and altered the stakes in the struggle over power. One of the more important stakes became a claim to nationhood in the Romantic sense of having a language, a culture and a history. This, on the one hand, led to struggles over the right to define languages25 and, on the other hand, reframed the premises for defining minorities. At the Congress of Berlin in 1878, protection of minorities had become one of the conditions for recognising new states by the international system.26 These changes created a new framework for the struggle for minority rights. If states needed to secure their minorities in order to get recognition, then other minorities might claim self-determination or autonomy within the existing state system. At the peace conference in Paris after the First World War, minority rights were linked to international security politics. As the American President Wilson who presided over the peace conference together with the British Prime Minister Lloyd George formulated it: ‘Nothing is more susceptible to trouble the peace of the world than the treatment of minorities’.27 Wilson was also one of the co-architects of the League of Nations, which became the framework for an elaborate minority rights regime28 which conferred rights primarily on minorities in Eastern and Central Europe.29 The League of Nations is interesting for two different reasons. One is that the League became what could be termed an opportunity structure for minority representatives who lobbied the institutions and representatives of the League in order to draw attention to their claims and conditions. In this way the international organisation of the League of Nations made it possible for minorities’ political representatives to claim a more powerful position in the political struggle for recognition and rights. Another reason is that the minority rights and protection system created by the League of Nations is often seen as the most important reason why international and European organisations after the Second World War did not reinstate minority rights. It is generally believed that the League’s minority protection system paved the way for the Third Reich’s exploitation of German minorities in Europe outside of Germany.30 It is also argued 24 B Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (Verso, 1983), p 133. 25 M Billig, Banal Nationalism (Sage Publications, 1995). 26 Preece, n 8 above, p 77. 27 Wilson, 1919, quoted by Alcock, n 19 above. 28 Although the League of Nation’s Covenant did not contain any provisions protecting minorities, the League’s system incorporated treaties that protected designated minorities. 29 M Mazover, ‘Minorities and the League of Nations in Interwar Europe’ (1997) 126 Daedalus; P De Azcárade and E E Brooke, League of Nations and National Minorities: an Experiment (Carnegie Endowment for International Peace, 1945). 30 Mazover, n 29 above.

The Development of Minority Rights in Europe 95 that those minority movements that collaborated with invading Nazis in order to secure rights for themselves excluded themselves from further participation in the political struggle over power and recognition in Europe after the war. Bourdieu31 has pointed out that all fields distinguish between legitimate and illegitimate ways of participating in the struggles of a field and that only agents who struggle by legitimate means are recognised as participants in a field. Using Nazi occupation as an opportunity to gain independence or self-determination was not considered legitimate by the victorious parties after the Second World War. This may explain some of the reluctance to create separate rights for minorities. At any rate, the international institutions that were established after the war in order to help secure peace in Europe and the world primarily adopted general and individual human rights rather than specific and group-related minority rights. In 1948 the newly created United Nations adopted the Universal Declaration of Human Rights. This declaration did not include specific minority provisions. Instead it set up a system which promoted individual human rights and antidiscrimination. Contrary to minority rights which secure for minorities the right to practice their culture, religion or language, for example, antidiscrimination means that people should enjoy equal treatment despite such differences. The same was the case with the Council of Europe which was set up in 1949. In 1950 the Council of Europe adopted its Convention for the Protection of Human Rights and Fundamental Freedoms, which also focused on individual human rights and anti-discrimination. Over the years, both the United Nations and the Council of Europe have adopted some provisions which aim specifically at minorities; however, until the end of the Cold War these were few and far between. Over the years there have been numerous attempts to influence both national and international bodies in order to get them to adopt minority rights. Different minority NGOs have lobbied national governments and international organisations in order to gain official and legal recognition. And even if it might appear as if they have not been very successful, given the fact that very few minority rights have been adopted until recently, it is interesting to look at the different ways in which they have attempted to promote minority rights. Studying the strategies of minority NGOs in relation to national and international bodies, looking at their different representations of minorities and comparing these to the minority rights that have recently been adopted may tell us a lot about what is and what is not possible at given times; and also give us an insight into what is generally taken for granted concerning the cultural and political landscape of Europe. In the following section I shall consider two European minority NGOs and 31

Bourdieu, n 12 above.

96 Lisanne Wilken discuss their representations and strategies. They have been selected among several different European minority NGOs32 by the following criteria: they have originated in different times, they represent minorities in different ways and they have managed to influence the international order to different degrees. I start with a brief discussion of the challenge of NGOs and then I introduce the two NGOs. INTRODUCING NGOs

The term NGO (non-governmental organisation) came into currency in 1945 in relation to the construction of the United Nations. The groups that were labelled NGOs in the UN system were not in themselves new. In the League of Nations, for instance, there were references to ‘private organisations’ or ‘international agencies’ which were consulted as expert advisors. It was groups like these which were recognised as NGOs with certain consultative status in the UN system. Similar groups were recognised in other international contexts, for instance in the Council of Europe, however here the term ‘advisory group’ or ‘expert group’ is much more commonly used.33 The term NGO spread from the specific international political arena in the 1970s and became a label for very different types of bodies. Today there is no generally accepted definition of NGOs, however according to Peter Willets, there are a number of things that NGOs cannot be: NGOs cannot be directly controlled by governments; NGOs cannot be political parties; NGOs cannot be profit-making; and NGOs must not be associated with criminal acts, in particular with violence.34 In order to act as expert advisors for international organisations, NGOs need legitimacy from above and below. International organisations need to recognise a given NGO as a legitimate representative for the interests it promotes, and the NGO should not be challenged too much by the people it claims to represent. What characterises the NGOs introduced below is that they attempt to represent very different groups of people from very different economic, political and social backgrounds, each of which is likely to contain economic, social and political differences. One of the challenges for the NGOs is to define what the different groups have in common. Another challenge is to define a common goal for them.

32 See eg Council of Europe (ed), Committee of Experts on Issues relating to the Protection of National Minorities: Presentations made by NGOs Having Expertise in the field of Protection of Minorities, DH-MIN (98) 4. Addendum 4 (Strasburg, Council of Europe Publishing, 1999). 33 P Willets, ‘What is a Non-Governmental Organization?’ (2002) UNESCO Encyclopedia of Life Support Systems, art 1.44.3.7. 34 Ibid.

The Development of Minority Rights in Europe 97 In the following section I shall introduce two different minority NGOs that have done this in different ways. I am particularly interested in the way that they represent minorities and in the strategies they use to influence the policies of international organisations. FEDERAL UNION OF EUROPEAN NATIONALITIES (FUEN)

FUEN35 was founded in Paris in 1949 as an organisation promoting the interests of minorities and regions in Europe. It came into being at around the same time as the Council of Europe and appears to have been well connected with some of the representatives in the Council of Europe who worked to get minority rights included in the European Convention for the Protection of Human Rights and Fundamental Freedoms.36 However, FUEN faced an uphill battle. In the aftermath of the Second World War, Europe did not offer a friendly environment for minorities or their political aspirations.37 Even if there was in fact an interest for minorities among some politicians working to establish international organisations, it was difficult to represent this interest in the Declarations and Conventions outlining the premises for international cooperation. The initial aim of FUEN was to become an organisation representing minorities and regions in Europe in order to secure them some degree of self-determination. In this way, FUEN continued the line from the interwar period, where self-determination had been a goal for many minorities in Europe.38 It was, however, difficult to find support for this approach, both among minority populations and among states. First, it proved difficult to find common grounds for the very many different groups that could be defined as minorities. The difficulties related both to the actual differences between the groups and what they strived for at the national level and to the question of the legitimacy of the organisation itself. Not all minority movements in Europe saw FUEN as a legitimate representative for minority interests. This affected the claims that FUEN could make, but it also affected its resources. FUEN’s finances are based on membership fees, which means that it is directly dependent on recognition from the groups it claims to represent. Secondly, in the aftermath of the Second World War it was difficult to convince international organisations to include self-determination for minorities as a general principle in international treaties. In the period after the war, it was generally believed that the minority provisions adopted by 35

For an extensive analysis of FUEN, see Kühl 2000. J Kühl, The Federal Union of European Nationalities. An Outline History 1949–1999. (Aabenraa, Institut for Grænseregionsforskning, 2000). 37 Ó Riagáin, n 6 above, p 20. 38 Kühl 2000, n 36 above 36

98 Lisanne Wilken the League of Nations were one of the contributing reasons for the outbreak of the Second World War. Individual human rights based on principles of non-discrimination appeared to be a much safer option. Thirdly, FUEN was sometimes accused of being a cover for a German take-over of Europe.39 German minorities were not initially accepted as members of FUEN.40 However, as FUEN lost ground in Western Europe and turned to Eastern Europe, it became oversubscribed by German minorities.41 FUEN did manage to make an impact as an important minority NGO in the 1990s; however, for a long time it was seen as the minority NGO that was not successful. For instance, in A Dictionary of European History and Politics, Derek Urwin wrote: Federal Union of European Nationalities (FUEN) failed to develop a strong body, primarily perhaps because there was no single target to which it could address its demands.42

However, FUEN’s failure was more likely a failure to adapt to the post-war climate. Even if self-determination for minorities was compatible with the federal ambitions of many post-war European politicians, it did invoke the image of the interwar period and of the League of Nations system, which was considered a failed experiment. FUEN’s failure to make an impact after the war did not mean that minority rights were an impossible battle. This can be seen by exploring another minority NGO which applied an altogether different strategy. In the following section it is argued that the reintroduction of minority rights in Europe in the specific form owe a lot to a group of minority representatives in and around the European Parliament. Before that, a few important changes that happened in Europe during the 1960s and 1970s will be outlined. THE ETHNIC REVIVAL

FUEN was the first international framework for minority cooperation in post-war Europe. But as peace was established and the division of Europe had become a fact, several other fora for minority cooperation came into being, especially during the 1960s and 1970s, a period which is usually known as one of ethnic revival.43 While many minority movements in the 39

Ibid. R Arquint, ‘The Work of the Federal Union of European Nationalities (FUEN)’ in Council of Europe, n 32 above, p 3. 41 Kühl 2000, n 36 above 42 DW Urwin, A Dictionary of European History and Politics 1945–1995 (Pearson UK, 1996), p 176. 43 J Rex, Ethnic Minorities in the Modern Nation State (London, Macmillan, 1996). 40

The Development of Minority Rights in Europe 99 1960s were inward-looking and most interested in their own political and cultural destiny, during the 1970s a number of both formal and informal networks were created among movements representing minorities in Western Europe. Looking at the attempts to establish cooperation among representatives for minority movements in Europe during the 1970s revealed the kind of challenges the foundation of international minority NGOs faced. First, there was a general lack of knowledge about which minority groups existed in Europe. This results from the fact that, since the end of the war, there had been very little official interest in minorities in Europe, and from the fact that there were several different ways of defining minorities. Minorities could thus be national minorities like the German minority in Denmark and the Slovene minority in Italy; they could be micro-nations like the Welsh, the Scots and the Catalans; and they could be linguistic groups like the Catalan-speakers of Sardinia or the Mirandese of Portugal, who did not want self-determination but did want some kind of recognition.44 Secondly, there was a dispute about the legitimacy of certain groups and their representatives. This may be illustrated by the following quotation from an article entitled ‘My Europe’ by Welsh nationalist Phil Williams. Williams is describing how the Welsh nationalist party, Plaid Cymru, changed from one primarily interested in the Celtic fringe of Britain and Northern France to one engaged in European cooperation, and noting the difficulties the party faced: Even more deplorable [than the Welsh nationalist party’s refusal to support Spanish minorities in the 1970s] was the attitude of SNP45 … At one Plaid Cymru conference we had our usual delegates from the SNP and a delegation from the PNV.46 The leading SNP delegates refused to sit on the same platform as the Basques on the curious grounds that the SNP was a major party and it would weaken the image of the party to be seen associating with such ‘unimportant riff-raff’! At the same conference we also had a delegation from Vlaanderen (Flanders), led by Willy Kuijper.47 Until then we had been very diffident about links with Volksunie.48 People had said that it was a very right-wing party. It was a very salutary lesson when Willy Kuijper told me that Volksunie had been very diffident about making contact with Plaid Cymru. People had said that Plaid Cymru was a very right-wing party.49 44

Wilken, n 5 above. Scottish Nationalist Party. 46 Basque nationalist party. 47 The Conference to which Williams is referring took place in the late 1970s. The Flemish Willy Kuijper later played an important role for minorities in the European Parliament and, when he resigned, the Welsh nationalist Siân Edwards called him ‘MEP for Wales—and all other small, submerged or voiceless nations in Europe’ (S Edwards, ‘Changing Colours of the Rainbow’ (1989) 23 Radical Wales). 48 Flemish nationalist party. 49 P Williams, ‘My Europe’ (1989) 19 Radical Wales 10–11. 45

100 Lisanne Wilken In spite of the confusion about which groups should be counted as minorities and which representatives should be considered legitimate, a few political coalitions among minority movements developed in Western Europe. Their main concern was the EC and the effects of European integration on minority populations.50 When free elections were introduced to the European Parliament in 1979, several minority nationalist parties had representatives elected, and by lobbying from without and pressing from within, Western European minorities managed to put themselves on the European Union’s agenda. The following section discusses how this presence in the European Parliament gave way to a new strategy among minority representatives. EUROPEAN BUREAU FOR LESSER-USED LANGUAGES (EBLUL)

In 1979 two different motions for minority resolutions were tabled in the European Parliament, the Arfé motion on a Charter for Ethnic Minorities and the Hume motion calling for a Bill of Rights of the Regional Languages and Cultures in the Community.51 As Ó Riagáin has pointed out, there was an important difference between these two motions. While the Arfé motion demanded autonomy for ethnic and linguistic minorities and thus followed the traditional path of claiming rights in Europe, the Hume motion claimed that minorities contributed to a diversity that was one of ‘the main sources of the vitality, richness and originality of European civilisation’.52 According to John Hume, MEP, who tabled the second motion, an approach based on demands for autonomy would not stand a chance as a foundation for a European minority policy, whereas one based on support for minority languages just might.53 Hume’s assessment appears to have been correct. In 1981 the European Parliament passed its first resolution in support of minority languages and in 1982 it decided to allocate a small amount of money to support minority languages.54 What is interesting in this context is the fact that minority languages (rather than minority groups, for instance) became the target for support.55 50

Wilken, n 5 above. Ó Riagáin, n 6 above, p 22. 52 Ibid. 53 Ibid p 23. 54 As Adam Biscoe (‘The European Union and Minority Nations’ in Cumper and Wheatley (eds), Minority Rights in the ‘New’ Europe (Kluwer Law International, 1999)) has stated, this money was originally meant for Amnesty International which refused to take money directly from the European Parliament. So the money was instead allocated to support for minorities in the EC. From 1982 till 1998, the European Parliament has allocated money to support for ‘lesser used languages’. This was stopped in 1998 when the European Court of Justice found that the Parliament’s support for EBLUL and other NGOs were not in accordance with the Parliament’s jurisdiction (A Favell, The Europeanisation of Immigration Politics (1998) available at www.sscnet.ucla.edu/soc/faculty/favell/EIOP-C&C.htm). 55 Kormoss, n 23 above, p 205. 51

The Development of Minority Rights in Europe 101 In 1983, the European Bureau for Lesser Used Languages (EBLUL) was founded.56 This primarily EU-funded Bureau functions as an NGO representing minority languages and their speakers in the European Union. This way of presenting minority interests has proven to be much more digestible than FUEN’s more explicit reference to minority groups. This may be because it not only points out the interest of minorities in preserving their languages and cultures, but also appeals to majorities who may be interested in a common European heritage of cultural and linguistic diversity.57 Even if FUEN has recently returned to the game as a recognised NGO with the Council of Europe, EBLUL has been much more influential than FUEN. EBLUL addresses the United Nations, the European Union, the Council of Europe and OSCE. Representatives from EBLUL were involved in drafting the Council of Europe’ Framework Convention on the Protection of National Minorities and the European Charter for Regional or Minority Languages; and it was consulted on the United Nations’ Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.58 An interesting implication of the influence of EBLUL is that minority interest in Europe is today primarily defined as an interest in language preservation. This does not mean that minorities only get linguistic rights—clearly minorities in Western Europe have much more self-determination today than they did 20 or 30 years ago. However, it does mean that minority rights and recognition include languages, even in the cases where language has not traditionally been part of the minority’s claims.59 MINORITY RIGHTS IN EUROPE: DIFFERENCES AND SAMENESS

In this chapter I have argued a number of different points. First I have argued that the conceptualisation of minorities in Europe has changed over the past hundreds of years: from religious to national to linguistic minorities. This may seem like a trivial point, but it has important implications. Secondly, I have argued that the memories of the interwar period created a specific and very difficult context for minorities in Europe after the war. As the section on FUEN highlights, it was next to impossible for international minority NGOs to get claims for self-determination or autonomy acknowledged in the period after the war. Most scholars therefore move directly from the establishment of a human rights regime after the war to the security situation after the end of the Cold War in order to explain the re-emergence of minority rights in Europe. 56

Ó Riagáin, n 6 above, p 27. B Brezigar, ‘The Work of the European Bureau for Lesser Used Languages (EBLUL)’ in Council of Europe, n 32 above, p 6. 58 Ibid p 7; Ó Riagáin, n 6 above, pp 34–6. 59 See Wilken, n 5 above. 57

102 Lisanne Wilken However, a third point I make in this chapter is that in order to understand the linguistic turn that minority rights took in the 1990s, it is necessary to acknowledge the strategic reformulation of minorities’ interests by minority representatives in and around the European Parliament in the 1980s. It is with the realisation that self-determination will not stand a chance as the foundation for the formulation of a European minority policy but that a focus on language might (not least because language plays such a prominent role in a European understanding of culture) that the linguistic minority rights of the 1990s were shaped. The chapter thus argues that important changes have happened during the ongoing struggle over minority rights in Europe. However, it is important to realise that under all the changes one condition appears to be unchallenged. The political struggle over minority rights which is inscribed in the struggle over the right to define the political and cultural landscape in Europe is only concerned with autochthonous European populations. The minority rights of the interwar period and the minority rights of the 1990s are only concerned with population groups who are historically and (for the most part) territorially rooted in Europe. None of the newer immigrant minorities have been included so far. In this way, the changes in the field of minority rights cover a permanent unchanging condition which is rarely questioned and therefore may be defined as a doxa of the field: that a claim to rights is ultimately dependent on a claim to territory or at least to history. SELECT BIBLIOGRAPHY Alcock, A, A History of the Protection of Regional Cultural Minorities in Europe (Basingstoke, Macmillan, 2000) Anderson, B, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London, Verso, 1983) Arquint, R, ‘The Work of the Federal Union of European Nationalities (FUEN)’ in Council of Europe (ed), Committee of Experts on Issues relating to the Protection of National Minorities: Presentations made by NGOs Having Expertise in the field of Protection of Minorities, DH-MIN (98) 4. Addendum 4 (Strasburg, Council of Europe Publishing, 1999) Billig, M, Banal Nationalism (London, Sage Publications, 1995) Biscoe, A, ‘The European Union and Minority Nations’ in P Cumper and S Wheatley (eds), Minority Rights in the ‘New’ Europe (The Hague, Kluwer Law International, 1999) Bourdieu, P, Distinction: a Social Critique of the Judgement of Taste (Cambridge, MA, Harvard University Press, 1984) ——, ‘The Forms of Capital’ in JG Henderson (ed), Handbook of Theory and Research for the Sociology of Education (New York, Greenwood Press, 1986) ——, In Other Words: Essays Towards a Reflexive Sociology (Cambridge, Polity Press, 1990)

The Development of Minority Rights in Europe 103 ——, Language and Symbolic Power (Cambridge, Polity Press, 1991) ——, Sociology in Question (London, Sage Publications, 1993) ——, Practical Reasons: On a Theory of Action (Stanford University Press, 1998) Brezigar, B, ‘The Work of the European Bureau for Lesser Used Languages (EBLUL)’ in Council of Europe (ed), Committee of Experts on Issues relating to the Protection of National Minorities: Presentations made by NGOs Having Expertise in the field of Protection of Minorities, DH-MIN (98) 4. Addendum 4 (Strasburg, Council of Europe Publishing, 1999) Council of Europe (ed), Committee of Experts on Issues relating to the Protection of National Minorities: Presentations made by NGOs Having Expertise in the field of Protection of Minorities, DH-MIN (98) 4. Addendum 4 (Strasburg, Council of Europe Publishing, 1999) De Azcárade, P and Brooke, EE, League of Nations and National Minorities: an Experiment (Washington, Carnegie Endowment for International Peace, 1945) Edwards, S, ‘Changing Colours of the Rainbow’ (1989) 23 Radical Wales Favell, A, The Europeanisation of Immigration Politics (1998) available at www. sscnet.ucla.edu/soc/faculty/favell/EIOP-C&C.htm Kormoss, IBF, ‘Mapping Minorities: a Challenge for Research’ (1993) 30 GeoJournal 202 Mazover, M, ‘Minorities and the League of Nations in Interwar Europe’ (1997) 126 Daedalus Ó Riagáin, D, ‘Many Tongues but One Voice: a Personal Overview of the Role of the European Bureau for Lesser Used Languages in Promoting Europe’s Regional and Minority Languages’ in CC O’Reilley (ed), Language, Ethnicity and the State, vol 1, Minority Languages in the European Union (Basingstoke and New York, Palgrave, 2001) Preece, JJ, ‘Minority Rights in Europe: from Westphalia to Helsinki’ (1997) 23 Review of International Studies 75 Rex, J, Ethnic Minorities in the Modern Nation State (London, Macmillan, 1996) Urwin, DW, A Dictionary of European History and Politics 1945–1995 (New York: Longman, 1996) Wilken, L, Enhed I Mangfoldighed? Eurovisioner og Minoriteter [Unity in Diversity? Eurovisions and Minorities] (Århus University Press, 2001) Willets, P, ‘What is a Non-Governmental Organization?’ (2002) UNESCO Encyclopedia of Life Support Systems art 1.44.3.7 Williams, P, ‘My Europe’ (1989) 19 Radical Wales 10

Part III

Are Rights Universal?

5 Gender Equality and Group Rights: Negotiating Just Multicultural Arrangements SIOBHÁN MULLALLY

W

ithin multicultural states the conflicting claims that arise between the pursuit of gender equality and the protection of group rights raise particularly intractable questions.1 Multicultural disputes frequently touch on the roles and status ascribed to women and children. Feminism has struggled with the politics of multiculturalism, concerned, on the one hand, to recognise the significance of religious, cultural and other differences, and, on the other hand, reluctant to yield to claims that seek to privatise the pursuit of gender equality. The ‘rifts of intercultural difference’ are most keenly felt along the boundaries demarcating the public from the private sphere.2 These boundaries, of course, are deeply gendered. In recent years, liberal feminism has tended to dismiss multicultural politics as ‘bad for women’3 or as an, ‘excuse for bad behaviour’. Dismissing multiculturalism as an oppositional force, however, denies the possibility of arriving at just multicultural arrangements—arrangements that both define the limits of reasonable pluralism and recognise the significance of religious and cultural differences. This chapter examines attempts within feminism to negotiate religious-cultural differences, highlighting potential strategies

1 For a recent discussion of these conflicting claims, see S Mullally, Gender, Culture and Human Rights: Reclaiming Universalism (Oxford, Hart Publishing, 2006); L Volp, ‘Feminism Versus Multiculturalism’ (2001) 101 Colum L Rev 1181. 2 S Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992), p 83. 3 SM Okin, ‘Is Multiculturalism Bad for Women?’ in J Cohen, J Howard and M Nussbaum (eds), Is Multiculturalism Bad for Women? Susan Moller Okin with Respondents (Princeton, Princeton University Press, 1999). For further discussions on the tensions that arise between feminism and the politics of multiculturalism, see A Phillips, Which Equalities Matter? (London, Polity Press, 1999); M Nussbaum, Sex and Social Justice (Oxford, Oxford University Press, 1999); U Narayan, Dislocating Cultures: Identities, Traditions and Third World Feminism (London, Routledge, 1997). A Phillips, Multiculturalism without Culture (Princeton, Princeton University Press, 2007).

108 Siobhán Mullally to move beyond the feminism/multiculturalism dichotomy. Such potential can be seen, at an institutional level, in the strategies adopted by UN bodies such as the CEDAW Committee. At a normative level, the insights of discourse ethics theorists offer the potential to devise strategies that respond both to the concerns of difference feminisms and group rights advocates, without compromising on the pursuit of gender equality.

CEDAW AND THE RESERVATIONS DIALOGUE

Within international human rights law, claims to religious and cultural difference have thwarted progress towards gender equality. These claims have manifested themselves in extensive reservations to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Given commitments to safeguard minority rights, to respect rights to religious freedom and to distinct cultural identities, UN human rights bodies encounter both normative and practical difficulties in responding to conflicting claims. These difficulties are particularly evident in attempts to respond to the reservations entered by states to CEDAW. Progress towards the effective implementation of CEDAW has been greatly hindered by the sweeping reservations entered by states. More then 90 per cent of the world’s states have ratified the Convention. This near universal participation has been achieved, however, at a considerable cost. More than half of the states parties to the Convention have entered reservations or declarations, limiting the scope of the Convention and also limiting the mandate of the CEDAW committee.4 Many states have entered sweeping reservations to article 2, the core obligation of the Convention, making it difficult to ascertain what obligations, if any, are being undertaken by those states. Underpinning these reservations is a desire to limit the scope of international law and to reclaim the specificity of gendered identities. The shift towards a cosmopolitan order is disrupted and women’s human rights are proclaimed, yet again, as private, cultural, domestic affairs. It is not just the number or scope of the reservations that poses a problem, however. It is the justification given by states for ‘opting out’. States have appealed to religious beliefs and practices, to the requirements of Islam,5

4 See generally, ‘Statement on Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’, adopted by the Committee on the Elimination of Discrimination Against Women, Report of the Committee on the Elimination of Discrimination Against Women (18th and 19th Sessions), GAOR Supplement No 38 (UN Doc A/53/38/Rev1), ch 1. 5 Reservations specifically invoking the Shari’ah include Bangladesh, Egypt, Iraq, Kuwait, Libya, Malaysia, Maldives, Mauritania, Morocco, Saudia Arabia, Syrian Arab Republic, United Arab Emirates. Many other states have entered reservations that do not specifically invoke the Shari’ah but can be understood as appealing to the requirements of the Shari’ah

Gender Equality and Group Rights 109 to distinct constitutional traditions protecting the private sphere6 (as in the United States) and to the need to respect the practices and beliefs of distinct religious communities.7 Over the last decade, the rise of identity politics, coupled with the discourse of post-coloniality and anti-imperialism, has given added strength to the claims of reserving states. Assertions of religious-cultural difference appear as acts of resistance against the imperialising impulse of universalistic claims. From this perspective, the disruption and fragmentation resulting from reservations to human rights treaties is inevitable.8 As Iris Marion Young says, ‘The totalizing movement always leaves a remainder’.9 The reservations dialogue poses a challenge to feminists, many of whom have moved away from universalistic claims and urged scepticism about the tools and methods of international human rights law. Rather than expanding the scope of international human rights law, much of contemporary feminist theory urges a return to the local, arguing that universalistic discourses deny the significance of religious, cultural and other differences between women. At the same time, women’s rights activists in many parts of the world continue to appeal to the tools and principles of international human rights law to support their claims. This gap between feminist theory and practice signals a problem within feminism. Feminist theory has always been closely allied to the practical struggle to achieve justice and equality for women. The growing gap between feminist theory and the daily struggles of the women’s movement is troubling. In the context of the reservations dialogue, engaging in a process of normative reconstruction requires us to challenge the boundaries set by states and their right to ‘opt out’ of human rights treaties in the name of religious beliefs or cultural traditions. More than legal regulation is needed, however, if such challenges are to be successful. The orthodox solutions to treaty reservations, the blunt application of an ‘object and purpose’ test and severability clauses, will do little to to justify ‘opting out’. See eg, the reservations entered by Pakistan, Tunisia, Niger. The initial reservations entered by Turkey to articles of the Convention concerning family relations (specifically Arts 15 and 16), were subsequently withdrawn in September 1999. The full text of these reservations is available at www.un.org/womenwatch/daw/cedaw/reservations-country. htm#N19 6 See Statements by Senator Jesse Helms, Senate Foreign Relations Committee. The United States, under the Carter administration, signed CEDAW on 17 July 1980, but has not yet ratified the Convention. The Senate Foreign Relations committee held hearings in 1994 and 2002 and voted favourably each time to send the treaty to the Senate floor. Since that time, for various political reasons, the Senate has not voted on this treaty. 7 See eg the reservations entered by Singapore and India, available at www.un.org/womenwatch/daw/cedaw/reservations-country.htm#N19 8 J Flax, Thinking Fragments: Psychoanalysis, Feminism, and Postmodernism in the Contemporary West (Berkeley, University of California Press, 1990), p 32. 9 IM Young, ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory’ in S Benhabib and D Cornell (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, University of Minnesota Press, 1986), p 57.

110 Siobhán Mullally contribute to a feminist process of reconstructing human rights law. Formal legal tests to determine the permissibility of a reservation or the legal consequences of a finding of impermissibility leave the fundamental questions unanswered, ie, what are the limits of reasonable pluralism and is it reasonable to ‘opt out’ of human rights standards in the name of religion, culture or tradition or domestic laws and customs? On the fiftieth anniversary of the Universal Declaration of Human Rights, CEDAW issued a statement highlighting the adverse impact of reservations on international human rights law.10 The Committee’s statement highlights the threat that reservations pose to the entire human rights regime, the limits such reservations place on the efficacy of international human rights standards and the mandate of treaty monitoring bodies. The CEDAW Committee has, in recent years, adopted a strong universalistic stance towards women’s human rights, rejecting appeals to religiouscultural beliefs that seek to justify inequalities in domestic law and practice. The UN Special Rapporteur on religious intolerance has also supported this universalistic stance, holding that religious norms relating to the status of women are dynamic and should not be put forward as a justification for reservations to CEDAW or other treaties.11 This universalist stance is mirrored in legal instruments such as the 1993 Vienna Declaration and Programme of Action, the 1993 Declaration on the Elimination of Violence Against Women12 and the Beijing Declaration and Platform for Action.13 The Vienna Declaration and Programme of Action states that ‘the universal

10 See n 4 above. At its sixth meeting, CEDAW adopted General Recommendation No 4, which expresses concern at ‘the significant number of reservations that appeared to be incompatible with the object and purpose of the Convention’. General Recommendation No 4, Report of the Committee on the Elimination of Discrimination Against Women (Sixth Session) 42 GAOR Supp No 38, para 579 (UN Doc A/42/38 (1987)). CEDAW also requested the United Nations to ‘promote or undertake studies on the status of women under Islamic laws and customs and in particular on the status and equality of women in the family … taking into consideration the principle of El Ijtihad in Islam’. The request provoked considerable controversy at ECOSOC’s next meeting and lead to further accusations of cultural imperialism and religious intolerance. Bangladesh’s delegate to ECOSOC urged ‘the greatest caution in using the Convention as a pretext for doctrinaire attacks on Islam’. (These comments were made following CEDAW’s criticisms of Bangladesh’s initial report under the Convention.) As a result of this controversy, ECOSOC recommended in its Resolution 1987/3 to the General Assembly that no further action be taken on CEDAW’s request. See also General Recommendation No 20 (11th session, 1992), Reservations to the Convention, GAOR Supp No 38 (UN Doc A/47/38); General Recommendation No 21 (13th session, 1994), Equality in marriage and family relations, GAOR 49th Session Supp No 38 (UN Doc A/49/38), paras 41–4. 11 See generally, UN Special Rapporteur on Religious Intolerance, Civil and Political Rights, including Religious Intolerance (Report submitted by Abdelfattah Amor, Special Rapporteur, in accordance with Commission on Human Rights Resolution 2000/33) (UN Doc E/CN.4/2001/63, 13 February 2001), paras 186–7 and 473–6. See also UN Doc E/CN.4/2002/73, paras 53–8. 12 Adopted 20 December 1993, GA Res 48/104 (UN Doc A/48/29). 13 Adopted 25 June 1993 (UN Doc A/CONF.157/23).

Gender Equality and Group Rights 111 nature of these rights and freedoms is beyond question’. The Declaration continues: While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.14

This commitment to the universality of human rights is reiterated in the Beijing Platform for Action.15 The Political Declaration adopted as part of the Beijing plus five review process, affirms the commitment to achieving universal ratification of CEDAW. The Secretary-General’s Beijing plus ten review calls for ‘urgent efforts’ to achieve universal ratification of CEDAW and withdrawal of reservations.16 The Political Declaration adopted at the forty-ninth session of the UN Commission on the Status of Women, 2005, marking the Beijing plus ten review process, does not restate any commitment to universal ratification of CEDAW, but notes simply that the Beijing Declaration and Platform and the standards set by CEDAW are ‘mutually reinforcing’.17 Ensuring that the commitments made at Beijing were safeguarded was a significant step in itself, reflecting the ongoing fragility of international standards on women’s human rights. Against this background, the problem of reservations to CEDAW persists. CEDAW prohibits discrimination against women ‘in all fields’ and imposes a duty on states parties to eliminate discrimination by any person, organisation or enterprise.18 Article 5 takes the prohibition on discrimination even further. States have a duty not only to repeal discriminatory laws, but also to challenge patterns of behaviour that perpetuate gendered stereotypes. Article 16 provides that women and men are to be treated as equals in all matters concerning the legal regulation of marriage and family relations. There are and continue to be many omissions from the text of the Convention, some of which have been overcome through the constructive interpretations applied by the CEDAW Committee. Taken together, the text of the Convention and the ‘jurisprudence’ of the Committee give us an international instrument that is potentially very far-reaching indeed. As gender equality is increasingly mainstreamed into the work of other

14 UN World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted 25 June 1993, Part 1, para 5. 15 Fourth World Conference on Women, Declaration and Platform for Action, 15 September 1995 (UN Doc A/CONF177/20, 1995), para 9. 16 Women 2000: Gender Equality, Development and Peace for the 21st Century, Report of the Secretary-General on the review of the implementation of the Beijing Platform for Action and the outcome documents of the special session of the General Assembly (UN Doc E/CN.6/2005/2), para 403. 17 Commission on the Status of Women, 49th Session, 28 February–11 March 2005 (UN Doc E/CN.6/2005/L.1). 18 CEDAW, Art 2(e).

112 Siobhán Mullally human rights treaty bodies, notably the Human Rights Committee,19 the scope of international human rights law has greatly expanded, holding out greater possibility for the transformation of domestic laws. Reservations, however, seek to limit this transformative potential and the scope of international human rights standards. This transformative potential is limited, in particular, by general reservations that seek to make a treaty obligation subject to conformity with something outside of the treaty, such as religious doctrine or domestic laws and customs. In such cases, states parties and the monitoring bodies are essentially being asked ‘to sign a blank cheque’.20 There is likely to be ongoing disagreement as to the content of the proposed alternative canon of interpretation, as where different adherents of the same religious group disagree on the meaning or scope of a particular doctrine. Where a general reservation appeals to domestic laws and customs, further uncertainties are created as such laws and customs may vary over time.21 Reservations to Article 2 of CEDAW (the core norm of obligation) pose a particularly ‘acute problem’ for CEDAW.22 A number of states have specifically ‘reserved’ on Article 2.23 Others states have entered reservations that do not invoke any specific provision of CEDAW but are broad enough to encompass Article 2.24 Saudi Arabia states that in case of contradiction

19 See ICCPR General Comment No 28, Equality of rights between men and women (Art 3), 29 March 2000 (CCPR/C/21/Rev.1/Add.10). 20 See F Hampson, Reservations to Human Rights Treaties: Final Working Paper (SubCommission on the Promotion and Protection of Human Rights, 56th Session, E/CN.4/ Sub.2/2004/42, 19 July 2004), para 56. 21 Ibid. 22 See generally ‘Statement on Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women’, adopted by the Committee on the Elimination of Discrimination Against Women, Report of the Committee on the Elimination of Discrimination Against Women (Eighteenth and Nineteenth sessions) G.A.O.R. Supplement No.38 (A/53/38/ Rev.1) ch1, para 10. 23 See reservations entered by Algeria, Bangladesh, Bahamas, Democratic People’s Republic of Korea, Egypt, Iraq, Lesotho, Libya, Malaysia (subsequently withdrew reservation to Art 2(f)), Morocco (Interpretive Declaration), New Zealand (Cook Islands), Niger, Singapore, Syrian Arab Republic, United Arab Emirates. The full text of reservations to CEDAW is available at www.un.org/womenwatch/daw/cedaw/reservations-country.htm On ratification, Bangladesh entered a reservation stating: ‘The Government of the People’s Republic of Bangladesh does not consider as binding upon itself the provisions of articles 2, 13(a) and 16(1)(c) and (f) as they conflict with Shari’a law based on Holy Quran and Sunna’. Objections to these reservations were entered by Germany, Mexico, the Netherlands and Sweden. On 23 July 1997, the Government of Bangladesh notified the Secretary-General that it had decided to withdraw the reservations made upon accession to Arts 13(a) and 16(f). The reservations are in stark contrast to the closing statements made by the Prime Minister of Bangladesh, Ms Khaled Zia, at the Fourth World Conference on Women in Beijing, 1995, where she reiterated her country’s commitment to the goals and objectives of the Nairobi Forward-looking Strategies and affirmed that the teachings and tenets of Islam could contribute positively to the realisation of equality, development and peace. Nowhere did she suggest that the teachings of Islam were in tension with the Beijing Declaration and Platform for Action or CEDAW itself. 24 See reservations entered by Algeria, Bangladesh, Egypt, Iraq, Libya, Malaysia, Maldives, Morocco, Pakistan, Saudia Arabia, Tunisia, Turkey.

Gender Equality and Group Rights 113 between any term of the Convention and the norms of Islamic law, ‘the Kingdom is not under an obligation to observe the contradictory terms of the Convention’.25 Pakistan’s ratification of the Convention was accompanied by a declaration stating that accession was subject to the provisions of its Constitution. General reservations such as these envisage an enduring inconsistency between state law and practice and the requirements of the Convention. State sovereignty and the defence of domestic jurisdiction reappears, this time in the guise of an unyielding assertion of difference. The divisions between the public and the private that the Convention seeks to overcome are reasserted. Reserving states adopt a Rawlsian strategy, distinguishing between the public and domestic spheres. The distinctions made are highly gendered, revealing a reluctance to apply the tests of justice to those spheres most closely associated with women’s daily struggles—the family and intimate relations within the domestic sphere. The reassertion of a division between the public and the private can also be seen in the reservations entered to Article 16 of CEDAW and the specificity that is claimed for family life. Article 16 of the Convention guarantees the right to equality in all matters relating to marriage and family relations. When finally adopted, Article 16 represented a significant breakthrough in international human rights law. It brought family relations within the scope of international law, making visible the human rights violations that occur within the domestic sphere and naming them as such. The reservations entered by states parties to the Convention, however, have relegated the domestic sphere, yet again, to the penumbra of human rights law. The CEDAW Committee has noted ‘with alarm’ the number of states that have entered reservations to the whole or part of Article 16.26 Many have invoked the requirements of religious law as a justification for ‘opting out’ of the requirements of equal treatment in marriage and family relations. Kuwait has declared itself not bound by Article 16(f), in as much as it conflicts with the provisions of the Shari’ah, Islam being the official religion of the state.27

25 A number of states have objected to Saudia Arabia’s general reservation, including Denmark, Ireland, Norway, Sweden, Portugal, France, Germany, the Netherlands, Spain and the United Kingdom. Saudia Arabia has entered a similar reservation to the Convention on the Rights of the Child, with respect to all articles ‘as are in conflict with the provisions of Islamic law’. 26 The following states have entered specific reservations to Art 16: Algeria, Bahamas, Bangladesh, Egypt, France, India, Iraq, Ireland, Israel, Jordan, Kuwait, Lebanon, Libya, Luxembourg, Malaysia (reservations to Art 16(b), (d), (e) and (h) withdrawn on 6 February 1998), Mauritius, Maldives, Malta, Morocco, Niger, Korea, Iraq, Syrian Arab Republic, Switzerland, Thailand, Tunisia, Turkey, United Arab Emirates, United Kingdom. A number of other states have entered general reservations that do not specifically refer to Art 16 but are broad enough to include that article. See eg the reservations entered by Mauritania and Pakistan. 27 Kuwait has also entered the following reservations to the Convention: ‘Article 7(a): The Government of Kuwait enters a reservation regarding article 7(a), inasmuch as the provision contained in that paragraph conflicts with the Kuwaiti Electoral Act, under which the right

114 Siobhán Mullally Israel has reserved on the application of Article 16, ‘to the extent that the laws on personal status which are binding on the various religious communities in Israel do not conform with the provisions of that article’.28 On ratifying CEDAW, India entered an interpretive declaration stating that it would apply Articles 5 and 16 only to the extent that they conformed with its policy of ‘non-interference in the personal affairs of any Community without its initiative and consent’.29 Along with Article 16, Article 9, concerning women’s equal rights to acquire, change or retain their nationality, is one of the most heavily reserved provisions of CEDAW.30 Again, these reservations reflect the extent to which gender identities have become intertwined with states’ concerns to define and to delimit national identities.31

to be eligible for election and to vote is restricted to males’. ‘Article 9, paragraph 2: The Government of Kuwait reserves its right not to implement the provision contained in article 9, paragraph 2, of the Convention, inasmuch as it runs counter to the Kuwaiti Nationality Act, which stipulates that a child’s nationality shall be determined by that of his father’. Kuwait Interpretative Declaration regarding Art 2, para 2, and Art 3: ‘Although the Government of Kuwait endorses the worthy principles embodied in article 2, paragraph 2, and article 3 as consistent with the provisions of the Kuwait Constitution in general and of its article 29 in particular, it declares that the rights to which the articles refer must be exercised within the limits set by Kuwaiti law’. On ratifying the Convention on the Rights of the Child, Kuwait entered the following general reservation: ‘[Kuwait expresses] reservations on all provisions of the Convention that are incompatible with the laws of Islamic Shari’a and the local statutes in effect’. 28 Israel has also entered a reservation to Art 7(b) of the Convention: ‘concerning the appointment of women to serve as judges of religious courts where this is prohibited by the laws of any of the religious communities in Israel. Otherwise, the said article is fully implemented in Israel, in view of the fact that women take a prominent part in all aspects of public life’. 29 The full text of the Declaration reads: ‘(i) With regard to articles 5(a) and 16(1) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that it shall abide by and ensure these provisions in conformity with its policy of non-interference in the personal affairs of any Community without its initiative and consent. (ii) With regard to article 16(2) of the Convention on the Elimination of All Forms of Discrimination Against Women, the Government of the Republic of India declares that though in principle it fully supports the principle of compulsory registration of marriages, it is not practical in a vast country like India with its variety of customs, religions and level of literacy’. See also Concluding Observations of the Committee on the Elimination of Discrimination Against Women: India (01/02/2000, UN Doc A/55/38), paras 30–90, at para 40. Unlike other states parties to the UN Convention on the Rights of the Child, India has not entered a reservation or declaration invoking religious-cultural claims. The declaration submitted on ratification refers only to the question of child labour and the need for progressive reform in this area. 30 See the reservations and declarations entered by Algeria, Bahamas, Democratic People’s Republic of Korea, Egypt, Iraq, Jordan, Kuwait, Lebanon, Malaysia, Morocco, Republic of Korea, Saudia Arabia, Syrian Arab Republic, Tunisia, Turkey, United Arab Emirates, United Kingdom. 31 For a broader discussion on the relevance of gender to nationality laws, see K Knop, ‘Relational Nationality: On Gender and Nationality in International Law’ in TA Aleinikoff and D Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Washington, DC, Carnegie Endowment, 2001), p 89.

Gender Equality and Group Rights 115 States have also entered reservations to provisions touching on the domestic sphere in other human rights treaties, though not with any degree of consistency.32 Algeria, for example, has entered an interpretive declaration to the provisions of Article 23, paragraph 4 of the International Covenant on Civil and Political Rights (ICCPR), regarding the rights and responsibilities of spouses as to marriage, during marriage and at its dissolution, stating that these provisions should in no way impair the ‘essential foundations’ of the Algerian legal system.33 Kuwait has entered an interpretative declaration regarding Articles 2(1) and 3 of the ICCPR, endorsing the ‘worthy principles’ embodied in both articles, but noting that the rights contained therein must be exercised within the limits set by Kuwaiti law. With regard to Article 23, Kuwait declares that in case of any conflict with Kuwaiti law, national law will be applied. Other states entering reservations to Article 23 include Kuwait; Mauritania and the United Kingdom. States parties’ failure to comply with the requirements of Article 23 has been highlighted in recent years by the Human Rights Committee, reflecting a greater integration of gender equality into the mainstream human rights treaties.34 The extensive reservations entered to the Convention on the Rights of the Child (CRC) mirror those entered to CEDAW and reflect the reluctance of states to apply human rights standards to the family or to acknowledge the obligations arising from economic and social rights claims. 35 32 See the chart of reservations to human rights treaties produced at the 53rd Session of the Sub Commission on the Promotion and Protection of Human Rights (UN Doc E/CN.4/ Sub.2/2002/34). 33 See Concluding Observations of the Human Rights Committee: Algeria (18/08/98, CCPR/C/79/Add.95), para 13. Reservations to Art 23 have been entered by Algeria, Kuwait, Mauritania and the United Kingdom. See also Kuwait’s reservation to Art 25(b) of the ICCPR, which seeks to restrict the Covenant’s right of citizens to vote and to be elected, making it subject to provisions in Kuwaiti law that bar women from voting and standing for office and severely limit the rights of naturalised citizens. The reservation asserts: ‘The Government of Kuwait wishes to formulate a reservation with regard to article 25(b). The provisions of this paragraph conflict with the Kuwaiti electoral law, which restricts the right to stand and vote in elections to males. It further declares that the provisions of the article shall not apply to members of the armed forces or the police’. The text of Art 25(b) explicitly prohibits restriction of the right to vote and to be elected on the basis of discrimination prohibited in Art 2 of the Covenant: ‘Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: .... (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors’. 34 See eg Concluding Observations of the Human Rights Committee: Mali (16/04/2003, CCPR/CO/77/MLI), para 10; Concluding Observations of the Human Rights Committee: Togo (1/11/2002, CCPR/CO/76/TGO28), para 21; Concluding Observations of the Human Rights Committee: Guatemala (27/08/2001, CCPR/CO/72/GTM), para 24; Concluding Observations of the Human Rights Committee: Syrian Arab Republic (24/04/2001, CCPR/ CO/71/SYR), para 20. See also ICCPR General Comment No 19, Protection of the family, the right to marriage and equality of the spouses (Art 23), 27 July 1990. 35 As with CEDAW, the issue of reproductive rights and the right to have access to safe abortions remains disputed. The ninth preambular paragraph of the CRC refers to the child’s right to legal protection before as well as after birth, reiterating the third preambular paragraph to

116 Siobhán Mullally In these reservations and declarations, we see a decision by states to accord priority to the laws and practices of religious communities, regardless of their compatibility with international human rights standards on gender equality. Individuals are defined first and foremost as group members, with duties and obligations qua members of a group or community. As in Rawls’s Law of Peoples,36 there is a reluctance to challenge the claims of communities or to limit their demands in the name of safeguarding equality. We also see an essentialising of difference in these claims. The personal laws of religious communities are presumed to form a coherent, static, unified body of rules. Any scrutiny in the name of safeguarding individual rights and guarding against the imposition of ‘internal restrictions’ (to borrow Kymlicka’s term)37 is denied. So also is the possibility of difference or dissent within communities. There is no room for the recognition of more egalitarian interpretations of religious norms and no requirement of a right of exit for those with dissenting views. The limits of one’s rights are defined by one’s religious-cultural membership. Reserving states deny difference in other ways. In the reservations entered by Egypt, Algeria and Morrocco to CEDAW, we see an attempt to retain a strict binary division between male and female and a reluctance to blur these categories. In a declaration entered to Article 2 of CEDAW, Morocco expresses its readiness to comply with the provisions of this article, provided that they do not conflict with the Morrocan Personal Code, which, it states, derives primarily from the Shari’ah and accords women human rights that differ from men, so as to ‘strike a balance between the spouses’, and, ‘to preserve the coherence of family life’.38 At the time of drafting the Convention, Morrocco expressed similar concerns, arguing that to guarantee equal rights for women and men in marriage and family relations would affect the ‘psychic and moral balance of children’.39 Egypt’s reservation to Article 16 of CEDAW states that the Islamic Shari’ah accords women rights that are, ‘equivalent to those of their spouses so as to the Declaration on the Rights of the Child. The Working Group on the Convention included an interpretive statement in the travaux preparatoires, to the effect that the ninth preambular paragraph did not have any bearing on the definition of the child as a human being in Art 1 of the Convention. It also rejected a draft savings clause providing that nothing in the Convention should affect any provisions more conducive to the rights of the child before as well as after birth. The definition of a child continues to remain controversial. See eg Reservations and Declarations entered by Argentina, Ecuador, Guatemala, the Holy See, available at www. unhchr.ch/html/menu3/b/treaty15_asp.htm 36

J Rawls, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999). See W Kymlicka, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford, Clarendon Press, 1995), esp ch 4. 38 For the full text of the reservation see UN Treaty Collection and n 5 above. 39 See generally, N Burrows, ‘The 1979 Convention on the Elimination of All Forms of Discrimination Against Women’ (1985) 419 Netherlands International Law Review 450. See also L Rehof, Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (London, Martinus Nijhoff, 1993). 37

Gender Equality and Group Rights 117 ensure a just balance between them’.40 Underpinning these reservations is an appeal to the ideology of ‘separate spheres’,41 and an attempt to essentialise the binary divisions between male and female. Similar appeals have been made by the Holy See. In its reservation to the Beijing Declaration and Platform for Action, the Holy See invokes Pope John Paul II’s ‘Letter to Women’, which emphasises the complementarity of gender roles and the specificity of being male and female.42 Preserving this specificity is necessary, the Holy See argues, to ensure the ‘wellbeing’ and the ‘true advancement of women’.43 A concern to maintain strict binary divisions between male and female is also evident in the definition of gender included in the Rome Statute of the International Criminal Court at the behest of the Holy See and other states.44 The current Pope, Benedicte XVI, previously served as prefect of the Congregation for the Doctrine of the Faith and is widely credited with reinforcing conservative views on gender and sexuality throughout the teachings of the Roman Catholic Church and the politics of the Holy See within the United Nations. In carrying out its monitoring role, the CEDAW Committee has adopted an increasingly universalistic stance, challenging religious-cultural claims made by states. It has highlighted the political nature of appeals to Islam made by reserving states and the possibility of more egalitarian interpretations of Islam, giving support to subaltern voices within reserving states. This universalistic stance can also be seen in the Committee’s General Recommendation No 21, adopted in response to the number of reservations to Article 16. The Recommendation affirms the status of Article 16 as

40 See n 2 above. See also the reservation entered by Iraq to Art 2, which provides: ‘Approval of and accession to this Convention shall not mean that the Republic of Iraq is bound by the provisions of article 2, paragraphs (f) and (g), of article 9, paragraphs 1 and 2, nor of article 16 of the Convention. The reservation to this last-mentioned article shall be without prejudice to the provisions of the Islamic Shari’ah according women rights equivalent to the rights of their spouses so as to ensure a just balance between them. Iraq also enters a reservation to article 29, paragraph 1, of this Convention with regard to the principle of international arbitration in connection with the interpretation or application of this Convention’. See objections entered by Germany, Israel, Mexico, the Netherlands, Sweden. 41 One of the most well-known expressions of the separate spheres ideology is to be found in Justice Bradley’s concurring opinion in the US Supreme Court decision, Bradwell v Illinois, 83 US 130, 141 (1873): ‘Civil law as well as nature herself, has always recognised a wide difference in the respective spheres and destinies of man and woman’, and again, the ‘paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother’. 42 In its written statement on the Declaration and Platform for Action, the Holy See also refers to the ‘wellbeing of women’ and the ‘true advancement of women’. Beijing Declaration and Platform for Action, adopted on 15 September 1995 (UN Doc A/CONF.177/20 (1995) and UN Doc A/CONF.177/20/Add 1 (1995)), p 157, ‘Reservations and statements of interpretation’, para 11. 43 Ibid. 44 See Rome Statute for an International Criminal Court, Art 7(3): ‘For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above’.

118 Siobhán Mullally a core principle of CEDAW and calls on states to ‘resolutely discourage’ any notions of gender inequality that are rooted in private law or custom, and to ‘gradually progress’ to a stage where reservations will be withdrawn.45 Rejecting fundamentalist or other extremist views that encourage a return to ‘old values and traditions’, the Committee concluded that reservations to Article 16, whether lodged for traditional, religious or cultural reasons, were incompatible with the Convention and therefore impermissible.46 NEGOTIATING COMPLEX DIALOGUES

‘The negotiation of complex cultural dialogues in a global civilisation is now our lot.’47 So concludes Seyla Benhabib. Reservations to CEDAW raise all the difficulties of such a complex dialogue. For feminism, they raise the question of how to negotiate cultural claims, claims to group differentiated citizenship or to differences that seek to deny the universal legitimacy of human rights norms. Yielding to the reservations entered by states returns us to a state-centred conception of international law, leading to conflicts with the universalistic claims of human rights norms. It also leaves women within reserving states vulnerable to the claims of particular communities. While states claim a right to opt out, women within reserving states may not have any such right of exit. International human rights law has expanded to reach domains previously labelled as private, and solely within the domestic jurisdiction of the state. This expansion, however, has met with assertions of state sovereignty and has come into conflict with claims to self-determination and the sovereign equality of all states. The reservations dialogue surrounding CEDAW highlights the willingness of states to hide behind the rhetoric of a politics of recognition and to invoke religious-cultural differences so as to limit and constrain the pursuit of gender equality. As consciousness of international human rights standards develops worldwide, particularistic identities rooted in religion, ethnicity or nationhood are asserted with increasing ferocity. Gender identities become intertwined with national identities, leading to a kind of ‘trafficking in women’. We see this in the reservations dialogue surrounding CEDAW. States sign up to and ratify the Convention, but assert their distinct claims to difference by privatising women’s human rights claims that threaten to redefine the boundaries of public and private, and/or of nationhood. Reserving states frequently invoke a singular ‘ethnos’ to

45

See n 10 above. See CEDAW General Recommendation 21 above n 10, para 17. 47 S Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, Princeton University Press, 2002). The application of Benhabib’s ‘dual-track approach’ to conflicting rights claims is discussed in greater detail in Mullally, n 1 above. 46

Gender Equality and Group Rights 119 support their claims to a distinct national identity. The rise of identity politics and the discourse of post-coloniality gives support to such claims, particularly when entered by newly independent states. However, identity politics also leads to fragmentation within collectivities. Every nationalist movement has within itself a marginalised other. Appeals to a singular ‘ethnos’ become more difficult to sustain once we recognise the conflicting claims that arise within communities. Legal regulation, in itself, does not capture the need for an ‘enlarged mentality’—what Benhabib refers to as the broadening of our horizons, through political and moral struggle. While legal regulation may provide us with a modus vivendi between states, it is unlikely to lead to an acceptance and effective enforcement of human rights norms at national level. A dualtrack approach to cultural conflicts draws on deliberative models of democracy and takes us beyond the limits of legal regulation, introducing the idea of an expanded moral-political dialogue taking place at international, national and local levels. The limits of law are highlighted in Koen De Feyter’s essay in this volume, which highlights the need for an integrated, holistic approach to cultural conflicts, recognising the importance of process and ongoing dialogic structures.48 We see the beginnings of such a dialogue in the CEDAW Committee’s constructive engagement with reserving states. In commenting on Egypt’s reports submitted under CEDAW, the Committee calls on Egypt to withdraw its reservations to Articles 2, 9(2) and 16, and specifically acknowledges the efforts of the Egyptian National Council for Women in also seeking a withdrawal.49 The appeal to the local, though rooted in international standards, gives added support to this call and recognises the importance of a cultural mediation of human rights norms. It also seeks to begin a process of dialogue at national level, drawing on the expanded scope of international human rights standards to support this process. We see a similar attempt at constructive engagement with Libya. In its comments on Libya’s initial report, the Committee called on Libya to withdraw its general reservation to the Convention, to take a leading role in its interpretation of the Shari’ah and to review its interpretation of the Quran in the light of the Convention’s prohibition of discrimination.50 In the Committee’s view, the evolution of the Shari’ah in Libya had come to a standstill. The Committee called on Libya to proceed to an interpretation of the Shari’ah that was ‘permissible’ and that did not ‘block the advancement of women’.51 The possibility of more egalitarian

48

See K De Feyter, Chapter 1. Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Egypt (02/02/2001, UN Doc A/56/38), paras 312–58, para 326. 50 Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Libyan Arab Jamahiriya (12/4/94, UN Doc A/49/38), paras 126–85. 51 Ibid para 132. 49

120 Siobhán Mullally interpretations of Islam is recognised and the attempt by the state to block the transformation of domestic law is denied. Again we see the Committee attempting to open up a process of dialogue around domestic laws and, in particular, around the requirements of the Shari’ah. The possibility of transformation, of course, requires an openness to change on the part of the state and an equality of participation in the processes of change and reform. This is where the limits laid down by human rights principles come into play. Cosmopolitanism and the dual-track approach have implications for how we create just multicultural arrangements within states. Feminism has struggled with the politics of multiculturalism, concerned, on the one hand, to recognise the significance of religious, cultural and other differences, and, on the other hand, reluctant to yield to claims that seek to privatise the pursuit of gender equality. As we saw with Rawlsian political liberalism, the accommodation of religious differences risks subordinating gender equality to communal claims. Discourse ethics attempts to create what Habermas has described as ‘difference-sensitive’ models of inclusion—models of inclusion that draw on a commitment to universal norms, while at the same time recognising the importance of religious, cultural and other differences. In The Claims of Culture,52 Benhabib explores the feminism–multiculturalism debate, focusing, in particular, on multicultural disputes that touch on the roles and status ascribed to women and children. These disputes reveal the gendered divisions between the public and the private that continue to surface in the assertion of cultural claims. Cultural differences are accommodated by reinforcing traditional liberal divisions between the public and the private. As Benhabib points out, the ‘rifts of intercultural difference are most deeply felt along the boundaries demarcating the public from the private sphere’.53 In place of this ‘defensive liberalism’,54 the dual-track approach is intended to do justice both to women’s aspirations for equality and freedom and to the legitimate plurality of human cultures. The core moral principles of equal moral respect and egalitarian reciprocity define the limits of reasonable pluralism and provide the parameters within which just multicultural arrangements can develop. Building on these core moral principles, Benhabib sets out three key tests that any multicultural arrangement must satisfy. These are: (a) egalitarian reciprocity; (b) voluntary self-ascription; (c) freedom of exit and association.55 The first, egalitarian reciprocity, requires that members of minority communities should not be granted lesser civil, political, economic and cultural rights simply because of their membership status. 52 53 54 55

Benhabib, n 47 above. Benhabib, n 2 above, p 83. See Benhabib, n 47 above, p 101. Ibid p 130.

Gender Equality and Group Rights 121 Any other arrangement serves only to shield inequalities within groups, yielding to patriarchal claims and the demands of cultural conservatives. The second requirement, voluntary self-ascription, recognises the importance of individual autonomy. An individual’s group membership must permit the most extensive form of self-ascription and self-identification to ensure the priority of individual autonomy. Self-ascription may often be contested, leading potentially to a denial of one’s right to membership (as in the Sandra Lovelace case in Canada),56 or conversely to a denial of one’s right to ‘opt out’ (as in the application of Muslim Personal Law to Muslim women in India, who had sought the enforcement of the general provisions of the Criminal Procedure Code, regardless of their religious affiliation). This leads to Benhabib’s third and final requirement, that of freedom of exit and association. Again, the protection of individual autonomy requires recognition of the right to exit and to disassociate from the group. Of course, exit may bring with it a loss of certain privileges. Such loss, however, may be subject to legal regulation and, in particular, to the requirement of non-discrimination. Without such regulation, we end up with the kind of discrimination evident in cases such as Santa Clara Pueblo v Martinez,57 where a Santa Clara court upheld an ordinance granting member status to the children of men marrying outside of the Pueblo, while excluding the children of women who did so.58 The extent to which the politics of multiculturalism may lead to a ‘trafficking in women’ was evident in the Sandra Lovelace case before the UN Human Rights Committee. On marrying a non-Indian, Sandra Lovelace ceased to be a member of the Tobique Band, and by the application of the Indian Act 1970, she also lost her status as a Maliseet Indian.59 This loss of status led to a denial of

56 An example of such a denial can be seen in Lovelace v Canada, Communication No 24/1977, GAOR 36th Session, Supp No 40 (UN Doc A/36/40 (1981)), p 166 (merits). For analyses of the UN Human Rights Committee’s decision, see K Knop, Diversity and SelfDetermination in International Law (Cambridge, Cambridge University Press, 2002), p 358. 57 98 US 1670 (1978). This ruling upheld a Santa Clara ordinance granting member status to the children of men who married outside of the tribe while excluding the children of women who did so. The children of Julia Martinez, a Pueblo woman who married a Navajo man, were prevented from gaining title to her Pueblo-administered public housing. 58 The enactment of the Muslim Women (Protection on Divorce) Act in India, in response to the Shah Bano judgment which allowed Muslim women to seek the protection of general laws (rather than those applicable only to the Muslim community), can be seen as another example. 59 Indian Act, RSC 1970 c I–6, s 12(1)(b). Section 12(1)(b) reads as follows: ‘12(1) The following persons are not entitled to be registered [as Indians], namely ... (b) a woman who has married a person who is not an Indian’. In Canada AG v Lavell [1974] SCR 1349, the Canadian Supreme Court found that s 12(1)(b) did not violate the equality guarantee set out in the Canadian Bill of Rights. In a dissenting judgment, Justice Laskin described the impact of the Act as ‘statutory banishment’ (ibid para 1386). The Attorney General’s position was supported by the majority of indigenous organisations. The Lavell judgment led to the formation of the Native Women’s Association of Canada. See K Knop, n 56 above, p 365.

122 Siobhán Mullally her right to live on a reserve and to access federal assistance programmes that were restricted to those with Indian status. No such consequences followed on the marriage of an Indian man to a non-Indian woman. Lovelace petitioned the UN Human Rights Committee, challenging Canada’s compliance with the ICCPR, arguing that the Indian Act denied both her right to equality before the law (Article 26) and her right to partake of her culture in community with others (Article 27). However, because she had lost her Indian status before the ICCPR and First Optional Protocol came into effect in Canada on 19 August 1976, the Human Rights Committee declined to consider whether the Covenant’s guarantees of non-discrimination on grounds of sex had been violated.60 The Committee’s reasoning turned, instead, on the scope of Article 27 of the Covenant and the continuing denial of Lovelace’s right to enjoy her culture in community with others. In her submissions to the Committee, Lovelace challenged the Canadian government’s claim to have followed patrilineal Indian traditions in legislating for Indian status.61 Although the Canadian government’s position was supported by the majority of indigenous organisations in Canada, Lovelace argued that Maliseet society was, in fact, matrilineal. The matrilineal nature of Maliseet society, however, had been distorted and forgotten through the experience of colonialism. As Knop argues, the Indian Act legislated ‘not indigenous custom, but European patriarchy’.62 Lovelace’s arguments combined an insider methodology, appealing to the possibilities of resistance within Maliseet traditions, with an appeal to the international norm of non-discrimination protected by the ICCPR. The Committee concluded that Lovelace’s rights under Article 27 were violated by the Indian Act. In arriving at this conclusion they emphasised Lovelace’s cultural attachment to the Maliseet band. Ultimately, the Committee held that the rights of persons belonging to minorities, as protected under Article 27 of the ICCPR, must be interpreted in the light of other provisions, including the right to equality between women and men as protected

60 See See Lovelace v Canada above n 56 para 18. In her communication, Lovelace claimed to be a victim of a violation of the rights guaranteed in Arts 2(1), 3, 23(1) and (4), 26 and 27 of the ICCPR. On the alleged violation of Art 23, the Committee held that the rights aimed at protecting family life and children were only indirectly at stake and, therefore, there was no need to consider the arguments concerning Art 23. In her analysis of the Lovelace case, Anne Bayefsky argues that this finding was mistaken. The Committee, she says, should have focused on the continuing effect of the discriminatory legislation and avoided the temporal difficulties. See A Bayefsky, ‘The Human Rights Committee and the Case of Sandra Lovelace’ (1982) 20 Canadian Yearbook of International Law 244. 61 Lovelace v Canada, Communication No 24/1977, GAOR 36th Session, Supp No 40 (UN Doc A/36/40 (1981)), p 166 (merits), p 167. For a discussion of the Lovelace case in the context of self-determination, see Knop, n 56 above, pp 358–72. 62 Ibid p 364. See also Knop, n 31 above, discussing a similar argument made with regard to the Shuswap Nation in British Columbia in the case of RL v Canada, Communication No 359/1989, GAOR 47th Session, Supp No 40 (UN Doc A/47/40 (1994)), pp 358–9.

Gender Equality and Group Rights 123 by Articles 2, 3 and 26 of the ICCPR.63 The denial of Lovelace’s status was not reasonably or objectively justifiable and was not, in the Committee’s view, necessary to protect the continued viability and welfare of the minority community as a whole. If it were necessary, it is not clear from the Committee’s findings whether the discriminatory element of the Act would still have been fatal. Given the absolute nature of the restriction imposed it is unlikely to have survived the reasonableness test.64 The Human Rights Committee’s discussion of minority rights highlights an important gender dimension that is often ignored by advocates of multiculturalism, that is, that Lovelace’s right to cultural membership and to enjoy her culture in community with others was denied by the application of discriminatory laws. Lovelace’s self-determination, her definition of her ‘minority self’, to borrow Knop’s term, was denied by the codification of a patrilineal tradition in federal legislation. The case of Leyla S¸ahin65 also raises questions concerning the intersection of gender equality, religious freedom and cultural identity. In 1998, Leyla S¸ahin, a medical student, was dismissed from a state university in Istanbul, because she was wearing a hijab (Islamic headscarf) on campus, in contravention of University regulations. The European Court of Human Rights, in its final Grand Chamber Judgment of 10 November 2005, denied Leyla S¸ahin’s claim that her right to religious freedom had been

63 Lovelace v Canada, Communication No 24/1977, GAOR 36th Session, Supp No 40 (UN Doc A/36/40 (1981)), p 166 (merits), paras 16–17. For information on Canada’s response to the views of the Human Rights Committee, see Lovelace v Canada, Communication No 24/1977, 6 June 1983 (UN Doc Supp No 40, A/38/40 (1983)), p 249 (information from Canada on measures taken). Following on from the decision of the Human Rights Committee, Bill C-31 was enacted in 1985, amending the Indian Act, so as to bring it into conformity both with the ICCPR and the Canadian Charter of Fundamental Rights and Freedoms. See Department of Indian Affairs, The Elimination of Sex Discrimination from the Indian Act (Ottawa, Department of Indian Affairs 1982), pp v, 21. For a discussion of the issues related to Bill C-31 from the perspective of reinstated women, see The Tobique Women’s Group and J Silman (eds), Enough is Enough: Aboriginal Women Speak Out (Toronto, Women’s Press, 1988). Canada’s response to the views of the Human Rights Committee reflects a concern both to maintain a sense of belonging amongst aboriginal peoples of Canada and to eliminate sex discrimination. Bill C-31 not only brought the Indian Act into conformity with the guarantees of sex equality in the Canadian Charter of Fundamental Rights and Freedoms, it also introduced measures to increase the autonomy of Indian bands. Part IV of the Constitution Act, 1982, entitled ‘Constitutional Conference’, requires Canada to convene a constitutional conference on matters affecting native peoples, thus ensuring the participation of affected groups in the process of reform. See generally, Department of Indian Affairs and Northern Development, The Impacts of the 1985 Amendments to the Indian Act (Bill C-31) (Canada, Ottowa, 1990); www.abo-peoples.org/programs/c-31.html 64 In Kitok v Sweden, Communication No 197/1985, GAOR 43rd Session, Supp No 40 (UN Doc A/43/40 (1988)), p 221, the Human Rights Committee upheld a restriction on the right to reindeer-herding for the Sami population of Sweden. The restriction was found necessary to protect scarce resources and did not lead to a denial of Sami status. 65 Leyla S¸ahin v Turkey, Application no 44774/98, Judgment, 10 November 2005.

124 Siobhán Mullally violated by the Turkish authorities’ refusal to allow her to wear the hijab while attending a state university. The Court’s rationale concedes that prohibiting the wearing of the hijab constitutes interference with the human right to freedom of religion, in this case interference with Leyla S¸ahin’s right to manifest her religion in public by observing what she perceived as an Islamic dress standard. But interference is not always and not necessarily a violation. The European Convention of Human Rights (ECHR) permits states to impose restrictions on the manifestation of religion if the following requirements are met: the restriction is prescribed by law; the restriction is imposed by the state in pursuit of one or more public interest grounds, ie public safety, protection of public order, health or morals, or protection of the rights and freedoms of others; and the restriction is ‘necessary in a democratic society’, ie it constitutes a proportionate response to a pressing social need. In the case of Leyla S¸ahin v Turkey, a majority of 16 out of 17 Grand Chamber judges, found that a governmental ban in Turkey against wearing the headscarf was a necessary and proportionate response to a pressing social need. In arriving at its conclusion, the Court appealed to the doctrine of a margin of appreciation and found that the state’s interference was ‘justified in principle and proportionate to the aim pursued’ (para 122). The single dissenting judge, Françoise Tukens, rejected the appeal to the margin of appreciation doctrine, noting that no other member state of the Council of Europe had prohibited the wearing of the headscarf by Muslim students at University level. The majority’s reasoning, in her view, abdicated responsibility for the protection of human rights (dissenting opinion, para 3). In her view, the majority judgment applied the principles of secularism and equality so as to restrict freedom. In contrast, she argued that the principles of secularism, equality and freedom ought to be harmonised and not applied in conflict. This possibility remained despite threats from ‘extremist movements’, which she concluded could not be a reason to restrict the wearing of the headscarf: ‘Merely wearing the headscarf cannot be associated with fundamentalism and it is vital to distinguish between those who wear the headscarf and “extremists” who seek to impose the headscarf as they do other religious symbols’ (dissenting opinion, para 10). The failure to harmonise the principles of secularism, equality and freedom, in this case, reflects a reluctance to engage with religious difference, and a denial of Leyla S¸ahin’s claim to a distinct cultural identity. The case raises challenging questions for feminist movements, presenting an apparent conflict between equality and autonomy. The denial of individual autonomy by the state and ultimately by the European Court represents an appeal to perfectionism, an appeal that, applying Benhabib’s test for a just multicultural arrangement, goes beyond the limits of permissible regulation. The state in this case,as in the Lovelace case, denies the applicant the possibility of individual self-determination.

Gender Equality and Group Rights 125 CONCLUDING REMARKS

Benhabib’s key principles, of course, cannot accommodate communitarian claims that deny the priority of individual autonomy. Her dual-track model is, therefore, open to the kinds of criticisms that are targeted at Will Kymlicka’s model of multicultural citizenship, that is, it fails to cast off the traditions of liberal democratic societies.66 However, denying the priority of individual autonomy leaves women vulnerable to the unending claims of family, community, nation. As Benhabib and Cornell have pointed out, ‘situated females often find it impossible to recognise their true selves amidst the constitutive roles that attach to their person’.67 The principles outlined by Benhabib are designed to avoid the so-called ‘paradox of multicultural vulnerability’, where women become the bearers of culture, the repository of traditions.68 All too often, multicultural arrangements lead to a kind of ‘traffic in women’, where the men of majority and minority communities signal their respect for difference by shielding the patriarchal claims of the other. The requirements imposed by the dual-track model deny the legitimacy of such ‘trafficking’. Legal regulation or the assertion of universal norms is unlikely, however, to overcome the tensions between feminism and multicultural politics. Susan Okin has famously concluded that multiculturalism is ‘bad for women’. Drawing on her roots in Rawlsian liberalism, she rejects appeals to the significance of cultural differences, arguing that many of the world’s traditions or cultures are ‘quite distinctively patriarchal’.69 She refuses to yield to assertions of cultural difference or to sacrifice her commitment to liberal political principles. Okin’s dismissal of multicultural politics has attracted heated responses. The problem is not in her refusal to yield, per se, but rather in her failure to engage with cultural claims. She seems to presume that non-Western (non-liberal) cultures exist in a time warp, with no local traditions of protest, no indigenous feminist

66 See generally, M Malik, ‘Communal Goods as Human Rights’ in C Gearty and A Tomkins (eds), Understanding Human Rights (London, Mansell, 1996), p 138; C Joppke and S Lukes, Multicultural Questions (Oxford, Oxford University Press, 1999). As a liberal, Kymlicka is committed to the overriding priority of individual autonomy within any multicultural arrangement. He seeks to contain the politics of difference within the constraints of liberal justice. See W Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford, Oxford University Press, 2001), p 44. For him, the aim of group-specific rights is to promote equality as between groups. Group members must be free, however, to question and reject ascribed identities. It is this commitment to individual autonomy, to a freedom to opt in or out of cultural membership, that leads to disagreement. 67 S Benhabib and D Cornell (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, University of Minnesota Press, 1986), p 12. 68 A Shachar, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’ (2000) 35 Harvard Civil Rights–Civil Liberties Law Review 387. See also A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge University Press, 2001). 69 Okin, n 3 above, p 14.

126 Siobhán Mullally movements, no sources of political or cultural contestation. As Homi K Bhabha points out, ‘her monolithic distinction between the West (liberal) and the Rest, seems to consign the South to a kind of premodern customary society devoid of the complex problems of late modernity’.70 Okin fails to engage with the ‘exotic other female’.71 Her gaze is cast from a point that is resolutely from above and elsewhere. Okin’s views have been dismissed as reflecting those of ‘western patriarchal feminism’, a feminism that is ‘burdened with immigrant problems and the human rights conflicts which they engender’.72 Her feminism fails to recognise the need for dialogue, contestation and ongoing negotiation. This dismissal of cultural claims does little to support feminist movements that cannot claim the support of a liberal-democratic state. In Okin’s writings, Third World and minority women appear only as passive victims of violence and persecution. In her dismissal of multiculturalism, there is, yet again, an essentialising of difference. Diane Otto points out that this essentialising of difference recurs throughout the theory and practice of human rights, with familiar gender tropes (of women as mother, wife and victim) underpinning the construction of the subject of human rights law.73 She argues that we need to understand gender identities as the ‘hybrid result of choices and desires’. She also recognises, however, that appeals to hybridity risk erasing the very core of female subjectivity that makes agency possible and that defines the limits within which ‘reinvention’ takes place. The dual-track approach proposed by Benhabib’s discourse ethics attempts to overcome the essentialising tendencies of Okin’s liberalism, while at the same town providing for the possibility of a hybridity of gender identities. It does so by insisting on the importance of public contestation, negotiation and an ongoing moral conversation. The emphasis on dialogue and negotiation allows feminist movements to combine ‘insider methodologies’ that renegotiate religious-cultural traditions from within, with a universalist normative framework that legitimises the pursuit of gender equality. This approach avoids the ‘balkanisation’ effect of multicultural politics and goes beyond creating a modus vivendi between diverse communities. As such, it takes us beyond liberal models of multicultural accommodation such as that proposed by Will Kymlicka. For Kymlicka, the role of a multicultural arrangement is to accommodate a societal culture within a liberal 70 HK Bhabha, ‘Liberalism’s Sacred Cow’ in J Cohen, J Howard, and M Nussbaum (eds), Is Multiculturalism Bad for Women: Susan Moller Okin with Respondents (Princeton, NJ, Princeton University Press, 1999), pp 79–84. 71 K Engle, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’ (1992) 26 New England Law Review 1509. 72 A Al-Hibri, ‘Is Western Patriarchal Feminism Good for Third World/Minority Women?’ in Cohen, Howard and Nussbaum, n 3 above, p 41. 73 D Otto, ‘Disconcerting “Masculinities”: Reinventing the Subject of International Human Rights’ in D Buss and A Manji (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005).

Gender Equality and Group Rights 127 democratic state, and to define the limits of reasonable pluralism with reference to prevailing liberal norms. This may include recognising group rights to autonomy or self-government and allowing for group differentiated citizenship. However, while Kymlicka’s proposals allow for the creation of a modus vivendi between diverse cultural groups, they do little to create a ‘sense of belonging’ for minority groups, or to promote greater intercultural understanding between groups. Ultimately, such a modus vivendi leads to the creation of multicultural enclaves. This so-called ‘balkanisation effect’ of group rights contributes to the isolation of women within minority groups, reinforcing gendered divisions between the public and the private and doing little to reconcile the conflicting claims of feminism and multiculturalism. Kymlicka also takes culture as a given, failing to recognise the significance of subaltern voices or strands of resistance within groups. His concept of a societal culture suggests a coherent unified set of norms and practices that define a ‘way of life’, across the full range of human activities. But, as Benhabib points out, there are no such societal cultures. There is no single organising principle that encompasses both public and private spheres for distinct cultural groups. Any human society, at any given point in time, is composed of multiple material and symbolic practices, each reflecting different histories of struggle. Kymlicka’s discussion of societal cultures commits the logical error of pars pro toto (‘substituting the part for the whole’), thereby contributing to a politics of recognition that takes cultures as organic unified entities. Kymlicka values societal cultures, because they give people access to a range of meaningful options. However, some cultures do not provide their members with a range of options, and do not permit their members to revise their conceptions of the good. In such cases, it is unclear what we are supposed to make of the relationship between cultural membership and the realisation of individual freedom, or what the precise value of societal cultures is. In contrast, the dual-track model proposed by Benhabib clearly values requirements of justice and equality ahead of ‘culture’ as such. The dual-track approach proposed by Benhabib offers us a way of creating space for differences, within the limits of a just multicultural state and a cosmopolitan world order. Rather than appealing to the exclusiveness of a single ‘ethnos’, discourse ethics appeals instead to ‘communities of planetary interdependence’ and to the moral ideals of humanity and international solidarity.74 This appeal to humanity is not an appeal to a common essence or to some intrinsic nature. Rather, it is an appeal to a regulative ideal that defines a vision of human solidarity and community. It is this vision that underpins the dual-track approach and Benhabib’s discussion of cultural claims. 74 S Benhabib, ‘Cultural Complexity, Moral Interdependence, and the Global Dialogical Community’ in M Nussbaum and J Glover (eds), Women, Culture and Development (Oxford, Clarendon Press, 1995), pp 235–55.

128 Siobhán Mullally As we see in Susan Okin’s writings, feminism and the politics of multiculturalism have become increasingly polarised. This polarisation does little to assist women struggling for greater equality within diverse cultural communities. Rather than the kind of oppositional stance that we see in Okin’s work, a dual-track approach points to the need to engage in an ongoing moral conversation, informed by the universal norms of equal moral respect and egalitarian reciprocity. Such dialogues can be risky and unpredictable. They may lead to further polarisation or to greater intercultural understanding. Ultimately, the goal is to arrive at just multicultural arrangements, to create a sense of belonging for diverse communities and to demand the inclusion of the ‘other’.75 Many of the essays in this book explore the tensions that can arise when addressing the claims of collectivities, specifically when presented as claims to group rights or group differentiated citizenship. The claims of collectivities may conflict with the rights of the individual, as the discussion of reservations to human rights treaties shows. The question then is how to resolve such conflicts without denying the normative significance of cultural, religious or group differences. I have argued that ultimately the safeguarding of individual autonomy must take priority, when conflicts with group rights claims arise. However, rather than contributing to a further polarisation of debates between feminism and proponents of multiculturalism, I have argued that a dual-track approach is required. The dual-track approach, I think, fits well with the holistic perspective presented in this collection. From the perspective of method, it highlights the limits of legal method and the necessity of moving beyond and thinking outside of the realm of the legal. SELECT BIBLIOGRAPHY Al-Hibri, A, ‘Is Western Patriarchal Feminism Good for Third World/Minority Women?’ in J Cohen, J Howard and M Nussbaum (eds), Is Multiculturalism Bad for Women? Susan Moller Okin with Respondents (Princeton, Princeton University Press, 1999) Bhabha, H K ,‘Liberalism’s Sacred Cow’ in J Cohen, J Howard, and M Nussbaum (eds), Is Multiculturalism Bad for Women: Susan Moller Okin with Respondents (Princeton, NJ, Princeton University Press, 1999), pp 79–84 Benhabib, S, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge, Polity Press, 1992) ——, ‘Cultural Complexity, Moral Interdependence, and the Global Dialogical Community’ in M Nussbaum and J Glover (eds), Women, Culture and Development (Oxford, Clarendon Press, 1995), p 235 ——, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, Princeton University Press, 2002) 75

J Habermas, Postnational Constellation: Political Essays (Cambridge, Polity Press, 2001).

Gender Equality and Group Rights 129 Benhabib, S and Cornell, D (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, University of Minnesota Press, 1986) Burrows, N, ‘The 1979 Convention on the Elimination of All Forms of Discrimination Against Women’ (1985) 419 Netherlands International Law Review 450 Department of Indian Affairs, The Elimination of Sex Discrimination from the Indian Act (Ottawa, Department of Indian Affairs, 1982) Engle, K, ‘Female Subjects of Public International Law: Human Rights and the Exotic Other Female’ (1992) 26 New England Law Review 1509 Flax, J, Thinking Fragments: Psychoanalysis, Feminism, and Postmodernism in the Contemporary West (Berkeley, University of California Press, 1990) Habermas, J, Postnational Constellation: Political Essays (Cambridge, Polity Press, 2001) Joppke, C and Lukes, S, Multicultural Questions (Oxford, Oxford University Press, 1999) Knop, K, ‘Relational Nationality: On Gender and Nationality in International Law’ in TA Aleinikoff and D Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Washington, DC, Carnegie Endowment, 2001), p 89 ——, Diversity and Self-Determination in International Law (Cambridge, Cambridge University Press, 2002) Kymlicka, W, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford, Clarendon Press, 1995) ——, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford, Oxford University Press, 2001) Malik, M, ‘Communal Goods as Human Rights’ in C Gearty and A Tomkins (eds), Understanding Human Rights (London, Mansell, 1996), p 138 Mullally, S, Gender, Culture and Human Rights: Reclaiming Universalism (Oxford, Hart Publishing, 2006) Narayan, U, Dislocating Cultures: Identities, Traditions and Third World Feminism (London, Routledge, 1997) Nussbaum, M, Sex and Social Justice (Oxford, Oxford University Press, 1999) Okin, SM, ‘Is Multiculturalism Bad for Women?’ in J Cohen, J Howard and M Nussbaum (eds), Is Multiculturalism Bad for Women? Susan Moller Okin with Respondents (Princeton, Princeton University Press, 1999) Otto, D, ‘Disconcerting “Masculinities”: Reinventing the Subject of International Human Rights’ in D Buss and A Manji (eds), International Law: Modern Feminist Perspectives (Oxford, Hart Publishing, 2005) Phillips, A, Which Equalities Matter? (London, Polity Press, 1999) Phillips, A, Multiculturalism without Culture (Princeton, Princeton University Press, 2007) Rawls, J, The Law of Peoples (Cambridge, MA, Harvard University Press, 1999) Rehof, L, Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (London, Martinus Nijhoff, 1993) Shachar, A, ‘The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority’ (2000) 35 Harvard Civil Rights—Civil Liberties Law Review 387 ——, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge, Cambridge University Press, 2001)

130 Siobhán Mullally Tobique Women’s Group and Silman, J (eds), Enough is Enough: Aboriginal Women Speak Out (Toronto, Women’s Press, 1988) Volp, L, ‘Feminism Versus Multiculturalism’ (2001) 101 Colum L Rev 1181 Young, IM, ‘Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory’ in S Benhabib and D Cornell (eds), Feminism as Critique: On the Politics of Gender (Minneapolis, University of Minnesota Press, 1986)

6 Let’s Talk: Dealing with Difference in Human Rights Law RORY O’CONNELL

H

uman rights law proclaims an arrant nonsense: that all persons are the same, and have the same rights. From the late eighteenth century French and American documents, to the words of the Universal Declaration on Human Rights, the universalist claim is made that all individuals are entitled to the same rights without arbitrary distinctions based on status. Yet this revolutionary claim, which has overturned political regimes and confounded conventions, has itself been criticised. The criticisms have often come from a non-legal disciplinary background— anthropology, philosophy, sociology or others. Sceptics, post-modernists, feminists, cultural relativists and multiculturalists argue that this universalist view is too simple, or even invidious and oppressive and should be rejected. This chapter explores the universalist pretensions of human rights; the criticisms of this universalism; the legal modification of the simple universalist claim; and, finally, discusses a proposal to resolve some of the tensions between these views. UNIVERSALIST CLAIMS

The late eighteenth century revolutionary documents were explicit in their universalism. The 1776 American Declaration of Independence holds ‘these truths to be self-evident, that all men are created equal’, while the 1789 Declaration of the Rights of Man and of the Citizen affirms that all men are born and live free and equal in rights.1 Whilst for the next 150 years human rights remained predominantly within the exclusive competence of the state, the Second World War changed that. After the Holocaust, the representatives of 58 state-members of the United Nations debated a text that 1 But see SM Singham, ‘Betwixt Cattle and Men: Jews, Blacks, and Women, and the Declaration of Rights and Man.’ in D Van Kley (ed), The French Idea of Freedom: the Old Regime and the Declaration of Rights of 1789 (Stanford, Stanford University Press, 1996).

132 Rory O’Connell would not be binding in international law, but would have profound moral force: the 1948 Universal Declaration on Human Rights (UDHR). The initial work on the drafting of that document was done by a multinational team comprising American, Canadian, French, Lebanese and Chinese representatives. The final text was adopted unanimously with eight abstentions (from South Africa, Saudi Arabia and six socialist states). The Declaration echoes the universalism of the earlier texts: Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In the aftermath of the Holocaust, which asserted radical differences between humans, and condemned the ‘lesser race’ to extirpation, this proclamation carries moral force. Just as the French Revolution had torn down the Estates which divided men, so the UDHR rejected divisions between humans and asserted their equal rights. The drafters of the Declaration were aware that there were important differences between persons. From the experience of the interwar minorities treaties, they were aware that these differences could give rise to problems, but they pursued the universalism of the Declaration as a solution, rather than emphasising differences and perhaps fomenting unrest, even schism. The idea was that if everyone was granted the same rights, on an equal basis, this should respect everyone and reduce the possibility of discord. These rights to free expression, freedom of religion, etc protected the right to be different on a non-discriminatory basis and, by virtue of the right to association, the right to be different in a group. The UN General Assembly, by the same resolution which adopted the Declaration, decided that the question of minority rights was too complicated and delicate, and referred the matter of minority rights to the Commission on Human Rights for a more thorough study.2 The General Assembly also called for work to be done on drafting a binding legal document—a treaty or convention—which would give effect to the rights in the Declaration. That recommendation was not implemented until 1966. Regional human rights instruments emerged in the meantime, which again embraced the universalism of the Declaration. The 1948 American Declaration of the Rights and Duties of Man (which preceded the Universal Declaration) is universalistic: even the cultural right in Article 13 is expressed as the ‘right to take part in the cultural life of the community’—no reference to minority cultures. The 2

GA res 217(III) (1948).

Dealing with Difference in Human Rights Law 133 1950 European Convention on Human Rights is a good example: it does not refer to minority rights,3 and states that ‘Everyone’ has the rights therein specified and this universalism is copper-fastened with a non-discrimination clause in Article 14. In 1966, two UN Covenants were adopted to create legally binding obligations to protect rights. The Universal Declaration was the subject of a Cold War schism between civil and political rights, on the one hand, and economic, social and cultural rights, on the other hand, leading to two Covenants; the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). As we will see, although those Covenants generally echo the universalist language of the original Declaration,4 they do make some concessions. CRITICISMS OF UNIVERSALISM

The UDHR announces that everyone has the same rights to be enjoyed without distinctions. This universalism was no sooner pronounced than it was criticised. From different perspectives (sceptics, cultural relativists, post-modernists and multiculturalists) the argument is made that we cannot simply assert that difference is irrelevant. Indeed, the attempt to impose the same norm is castigated as domination rather than being emancipatory. The challenge comes in different guises. Strikingly, the Declaration largely ignores the question of national identity in announcing rights. The Declaration is silent about the right to self-determination which played such a part in the aftermath of the First World War. This was especially noteworthy as two of the permanent five members of the Security Council controlled large Empires, while another of the permanent five states (Russia) quickly acquired control over two of the other socialist states which had abstained in the vote on the adoption of the UDHR. Yet the UDHR is seemingly silent on colonialism and the right to self-determination. For much of the second half of the twentieth century, various cultural relativist camps, often drawing on anthropological work, criticised the assumption that such norms are universally valid: particular contexts may change everything. This argument can even be made in respect of the most seemingly basic rights. Take the prohibition of torture, inhuman and degrading treatment (or in the language of the US Constitution, the prohibition of 3 Except for a brief reference in Art 14 to non-discrimination on grounds of ‘association with a national minority’. 4 Both Covenants limited their universalist claims as regards non-nationals. ICESCR Art 2, allowed developing countries to determine to what extent non-nationals should benefit from economic rights, whilst ICCPR, Art 25’s right to take part in public affairs is limited to ‘citizens’.

134 Rory O’Connell cruel and unusual punishment), for example: Steiner and Alston cite the aboriginal practice of ‘spearing’ which would unquestionably be termed ‘cruel and unusual’ or ‘inhuman and degrading’ in North America or Western Europe, yet it is arguably regarded by Australian aboriginal peoples as more humane than imprisonment.5 Similar arguments may be made about mutilation as practised in some countries supposedly under Islamic law; or about practices of female genital mutilation in some African countries; or about cosmetic surgery in Western countries. These disagreements are not merely at the UN level. Despite the Council of Europe being for a long time a club dominated by states in Western Europe, who might be assumed to share a similar cultural background, cultural relativism has dogged decisions of the Strasbourg institutions. One famous example is Tyrer v United Kingdom, where the practice of corporal punishment, inflicted after a judicial decision on a minor in the Isle of Man, was found to constitute ‘degrading treatment’ and so was absolutely banned under Article 3 of the ECHR.6 The UK judge on the European Court dissented, noting that corporal punishment had been a regular part of the school culture when he was growing up. Multiculturalism Though the cultural relativism arguments tend to focus on claims by states that it is unjustifiable moral imperialism, this is not the only, or even the most interesting, problem posed for human rights by reason of differences. As philosophers, anthropologists, sociologists and others teach us,7 identities frequently do not correspond perfectly to national boundaries: religions, cultures, ethnicities, linguistic groups (etc) exist both within national boundaries and across them in this multicultural globalised world.8 One cannot ignore the many controversies and disputes which have centred around questions of identity and group difference in recent years: controversies over blasphemous cartoons in Denmark; wearing of religious garments in Turkey, France and the United Kingdom; universal civil laws in India; language rights in Belgium (and Canada, United States, France, Ghana Northern Ireland, etc) and rights of nomadic communities across Europe. This is not to mention the conflicts which seem to be rooted at least partly in differences of identity and which have afflicted Northern

5 The impact of imprisonment on aboriginal individuals was highlighted in a recent decision of the Human Rights Committee: Brough v Australia, Communication No 1184/2003, 27 April 2006. 6 Tyrer v United Kingdom (1978) 2 EHRR 1. 7 See eg IM Young, Justice and the Politics of Difference (New Jersey, Princeton University Press, 1990). 8 See generally the chapters in Part V of this volume.

Dealing with Difference in Human Rights Law 135 Ireland, Cyprus, the former Yugoslavia, Rwanda and today threaten the stability of Iraq. A further consideration needs to be born in mind. The ‘war on terrorism’ since 11 September 2001 has often involved compromises in relation to human rights. Whilst some limits on rights may be justifiable in the interests of public security, one of the most worrying aspects of these security measures is their discriminatory appearance, often seeming to target ‘suspect communities’, specifically foreigners, those of Arabic origin or those of the Islamic faith. The discriminatory aspect of the war on terrorism has led to very strong pronouncements by human rights bodies9 and to domestic scrutiny of community relations.10 As these examples demonstrate, issues of identity, difference and minorities, emerge in many different guises in multicultural states. Some demands made by minorities are simple negative claims against the state: the freedom to be allowed to use one’s own language, to practice one’s own religion. Other times the claim is for one of non-discriminatory treatment: driving while Black (or Arab) should not be a reason for suspicion. Yet often the claim is more controversial: the negative liberty can only be practised (or non-discrimination respected) if a minority’s members are allowed an exemption from general laws which are pursuing valid public interests.11 This may entail exemption from general laws (eg) requiring the wearing of motorcycle helmets, prohibiting the display of daggers in public, requiring shops to close on a certain day of the week, requiring employees to work on a certain day of the week, prohibiting certain forms of slaughter of animals, exemption from general rules on land use and planning, rules requiring the wearing of a school uniform. A further stage is reached when the demand evolves from a negative one to a positive claim for state assistance, for instance, requests for state assistance in providing minority schools, or producing state documents in minority languages, or providing accommodation facilities to pursue a nomadic lifestyle. Beyond this there may be demands for certain forms of territorial or political autonomy. Some of these claims may also involve limiting some persons’ rights, either members of the group or persons who are not members of the group (eg requiring the use of the French language exclusively on public signs in Quebec limits the rights of Anglophone citizens; banning non-members of certain groups from a territory interferes with their liberty of movement). At the most extreme, there is the possibility of secession. 9 ECRI General Policy Recommendation No 8 (2004) on combating racism while fighting terrorism; UN High Commissioner for Human Rights, Joint Statement of 17 Special Rapporteurs on Human Rights and Terrorism (E/CN.4/2004/4, 2004), annex 1. 10 See the UK Parliament’s Home Affairs Select Committee, Terrorism and Community Relations (London, House of Commons, 2005). 11 The political philosopher Brian Barry has recently poured scorn on such exemption policies: Culture and Equality: an Egalitarian Critique of Multiculturalism (Harvard University Press, 2001).

136 Rory O’Connell The UN member states in 1948 were undoubtedly correct to recognise that the issue of minorities (one aspect of these connected problems) was too difficult and delicate to handle in a universalistic document. It is a legitimate question to pose whether human rights law has the intellectual resources to respond to these questions. The texts of human rights law have moved on from the simple universalism of the 1948 UDHR, without renouncing that claim.12 QUALIFICATIONS OF THE UNIVERSALITY OF THE UNIVERSAL DECLARATION

Group Rights? Peoples’ Rights and the Rights of Indigenous Peoples If the UDHR was silent on the question of national identity, the treaties implementing the UDHR were not. In breaking this silence, the Covenants introduce a right of one particular group, a ‘people’. This introduces one understanding of the idea of a ‘group right’, that it is a right which belongs to a group or collectivity as such. Despite their tendentious nature,13 peoples’ rights have been recognised in different texts, most notably common Article 1 ICESCR/ICCPR on the right of a people to self-determination. Other peoples’ rights (eg development, health and peace) have been recognised in UN Declarations but also in the African Charter of Human and Peoples’ Rights. Yet, what is meant by even the best established of these peoples’ rights— the right to self-determination—is not certain. The definition of a ‘people’ is notoriously unclear. Whilst in the time of decolonisation the concept of the people’s right to self-determination entailed the independence of colonised territories, this is not such a relevant problem today. But perhaps the requirements of self-determination themselves are changing, and it can include processes short of independence which may be relevant to peoples in multinational or even multicultural states. A ‘people’ is different in international human rights law from the idea of an ‘indigenous people’ or ‘indigenous population’, yet here too there have been developments where group rights in the sense of a right belonging to a group or collectivity have been recognised. The International Labour Organisation has a treaty on the rights of indigenous and tribal peoples, while in 2006 the UN Human Rights Council recommended that the General Assembly adopt a Declaration on the rights of indigenous peoples,

12 Though some think that human rights law has conceded too much to the relativists: M Ignatieff, Human Rights as Politics and Idolatry (Princeton, Princeton University Press, 2001). 13 C Tomuschat, Human Rights: Between Idealism and Realism, Collected Courses of the Academy of European Law (Oxford, Oxford University Press, 2003), p 48.

Dealing with Difference in Human Rights Law 137 which would include the rights of an indigenous people as a collectivity, including the right to self-determination Responding to Cultural Relativism A second manner in which the simple universalism of the UDHR has been modified is by the compromise made between the UDHR and cultural relativism. Whilst cultural relativism arguments were frequently made in the second half of the twentieth century, the result of the exchange often tended (unsurprisingly) to weaken both extreme universalism and extreme relativism.14 In this debate, the views of non-legal disciplines such as anthropology did not merely highlight the problems with universalism, but also stressed the dangers of a simplistic cultural relativism which would reify, and indeed petrify, a culture. An attempt to reconcile these different concerns was made in 1993. After the end of the Cold War, 171 states sent representatives to a World Conference on Human Rights in Vienna, attended by human rights experts and activists. This resulted in the Vienna Declaration of 1993 which sought to reaffirm the faith of the world community in human rights, and to incorporate some of the different strands in human rights thought that had emerged in the previous 45 years. In particular, it addressed the cultural relativism debate and proclaimed: 5. All human rights are universal, indivisible and interdependent and interrelated … While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. (Emphasis added).

This clause expressed a general consensus that there was a middle path to be steered between any sort of simple universalism and any rejection of universal norms. It would express the idea that universal human rights norms are valid (universally) but have to be interpreted or implemented with an eye to the particularities of any given national context, or, in the words of the Vienna Declaration, ‘historical, cultural and religious backgrounds’. To declare the desirability of achieving a compromise between universal norms and particular contexts is easily done. What is not so easy is to explain how this might be operationalised.15 One possible approach is that developed by the European Court of Human Rights when interpreting and applying the 1950 European Convention on 14 For a philosophical and jurisprudential analysis, see G Pavlakos, Chapter 7; for an anthropological view, see M Callari Galli, Chapter 3. 15 One excellent example of how it might be operationalised is the Inter-American Court of Human Rights decision in Mayagna (Sumo) Awas Tingni Community v Nicaragua, 21 August 2001, discussed by K De Feyter, Chapter 1.

138 Rory O’Connell Human Rights. The European Court has developed a doctrine to cope with cultural differences between the 46 members states of the Council of Europe. This is a doctrine know as the margin of appreciation. This doctrine serves many purposes, allowing the European Court to accord a degree of discretion or deference to an individual state. This margin doctrine is invoked in many different types of cases, such as when national security is at stake, or sensitive decisions about the political system are involved, or when there are issues which are difficult for the judges based in Strasbourg to assess (eg planning), or there is complex balancing of interests to be done. One key feature in deciding whether to accord a generous margin of appreciation to a state is whether there is a common European standard across the states of the Council of Europe. These differences may be down to cultural, ethical or religious differences. This argument has been made successfully in several cases. In instances where a public authority has sought to restrict free expression on grounds of protecting public morality, or where material is deemed to be blasphemous, then the European Court has indicated that it recognises that the divergence between states on these matters justifies a generous margin of appreciation.16 In a case from France, it was held, by four votes to three, that France could deny a gay man a right to adopt a child, as this was within its margin of appreciation. The Court’s majority expressly based this on the lack of a ‘common ground’ among member states.17 A further case demonstrates the margin of appreciation doctrine in operation. Ireland bans paid religious advertising on radio and television. The Court pointed to the lack of European standards on this question and accepted the relevance of the particular contexts of Ireland, including the dominance of one specific faith, and the divisive nature of religion in Northern Ireland. The state’s ban appeared as a proportionate restriction in these contexts.18 Finally, the much discussed case of Leyla S¸ahin saw the Turkish ban on religious headscarfs at Istanbul University upheld. The European Court reiterated its support for the principles of pluralism and tolerance, noting that these often required a balancing of rights ‘based on dialogue and a spirit of compromise’ and so rights sometimes had to be restricted to protect the rights of others. This consideration was especially important in the area of church-state relations, where again the Court noted that there was no ‘uniform conception’ of church-state relations in Europe: ‘Rules in this sphere will consequently vary from one country to another according to national traditions’.19 This margin of appreciation doctrine can therefore be seen as one way of operationalising the Vienna Declaration’s reference to universal norms 16 17 18 19

Muller v Switzerland (1991) 13 EHRR 212. Frette v France (2004) 38 EHRR 439 (27 February 2002). Murphy v Ireland (2004) 38 EHRR 212 . Leyla S¸ahin v Turkey, Application No 44774/98, 15 November 2005.

Dealing with Difference in Human Rights Law 139 taking into account particular contexts. However, we must note that this doctrine is disputed. Strong advocates of human rights will be critical of this ‘get-out’ clause for the state, and we need look no further than the dissenters in Frette who felt that the European Court of Human Rights should be at the forefront of promoting equality. Further, the margin doctrine is a very imprecise instrument. As the dissenters in Frette again noted, it is difficult to reconcile a string of important decisions upholding the right of gay men and lesbians to equality with the decision allowing a gay man to be denied the right to adopt. Perhaps the most telling criticism of the margin of appreciation doctrine is that it only captures the problems with one type of difference, differences which coincide with the boundaries of a state. Applying the margin of appreciation concept in this context would often result in the upholding of general national laws at the expense of minority practices, eg would result in the upholding of laws banning certain forms of ritual slaughter of animals20 or planning laws which impinge on the interests of nomadic groups.21 If this was all that human rights law could do, then the accusation that national states were being protected rather than human rights being upheld would be difficult to refute, as the margin of appreciation doctrine says little about the common situation where there are differences within the state. How do we achieve a balance between universal rights and particular contexts when the differences are within a state? Group Rights? Non-discrimination and Vulnerable Groups Since the 1948 Universal Declaration, equality and non-discrimination have been central to international human rights law. Whilst those values are considered important in that document, later texts emphasise them even more. Rather than being satisfied with saying rights should be non-discriminatory, international human rights law recognises that we need to address difference more explicitly and has developed a series of conventions aimed at non-discrimination. There was considerable impetus for this during the 1960s as the process of decolonisation was under way, and the newly independent states identified racism and apartheid as serious evils. The first of the treaties to address non-discrimination was the 1965 Convention on the Elimination of Racial Discrimination (CERD), a text which preceded the binding treaties of the ICCPR and ICESCR. 20 Cha’are Shalom Ve Tsedek v France, Application No 27417/95, 27 June 2000. The situation might well be different where a specific religion is targeted by such measures allegedly based on animal welfare considerations, as addressed in the US Supreme Court case of Church of Lukumi Bibalu Aye v City of Hileah, 508 US 502 (1993). 21 Chapman v United Kingdom (2001) 33 EHRR 399, at para 91.

140 Rory O’Connell Whilst CERD is expressed in the language of non-discrimination, later UN treaties recognised that equality was not just a question of nondiscrimination, but of protecting certain groups who were vulnerable to having their rights violated: see the 1979 Convention on the Elimination of Discrimination Against Women, the 1989 Convention on the Rights of the Child, the 1990 Convention on the Rights of Migrant Workers, and the 2007 Convention on the Rights of Persons with Disabilities. This trend is continuing today with the United Nations working on a text on the rights of indigenous peoples (but proposals for a treaty to prevent discrimination on grounds of sexual orientation have run into difficulties in the United Nations). These treaties proclaim equality not in the sense of formally identical treatment, but a more substantive equality to participate equally in the enjoyment of rights and freedoms. Sometimes this will require recognising differences, and indeed the treaties often specifically authorise special measures to promote equality even though this involves recognising the differences (affirmative action or positive discrimination: eg Article 2.2 CERD, Article 4 CEDAW). In recognising that members of certain groups are especially liable to have their rights violated, and may require ‘temporary special measures’ to ensure equality, or may even require special rights, human rights law is recognising that the rights of an individual cannot be protected without considering the group to which the individual belongs (eg women, migrant workers or children). This is a different sense of ‘group right’ from that in the example of peoples’ rights. These treaties are also the site of disagreement about how to deal with difference: CEDAW in particular has been the subject of many reservations which may be seen as reflecting cultural relativism arguments,22 while many of the comments about proposals on sexual orientation betray divergent ethical and cultural attitudes to sexuality. The development of non-discrimination principles may be one effective solution to problems posed by group rights claims in multicultural societies. If, for instance, the state funds the private religious schools of one faith, then non-discrimination would require funding for other private religious schools of other faiths.23 If the law grants local authorities the right to eject persons from halting sites for gypsies without any judicial oversight, but

22 Algeria has a reservation to protect its family code; Bahrain, Bangladesh, Brunei, Egypt, Iraq, Mauritania, Morocco, Oman, Saudi Arabia and the UAE, among others, have reservations to protect Islamic law. Many other countries have more specific reservations and declarations (the United Kingdom has a lengthy list) while some countries have not even signed the Convention, most notably the United States. 23 Thus the UN Human Rights Committee ruled that provision in Ontario for the funding of Catholic schools but no other religious schools was discriminatory under ICCPR, Art 26: Waldmann v Canada, Communication No 694/1996: Canada, 11 May 1999 (CCPR/C/67/ D/694/1996).

Dealing with Difference in Human Rights Law 141 requires such oversight in other cases of local authority tenants, then there is clearly discrimination.24 Group Rights? Rights of Persons Belonging to Minorities The concepts of equality and non-discrimination are not the only human rights approaches to dealing with difference. The recognition of minority rights clearly allows questions of the politics of identity and multiculturalism to intrude into human rights law. Yet such ‘minority rights’ are invariably qualified in international human rights law. Even the language used is indicative of this: human rights law speaks of the rights of persons belonging to minorities and not the rights of minorities itself. This may indicate a presumption that only human individuals should be rights holders (though in fact human rights law recognises corporations (‘legal persons’) and the ‘people’ as rights holders). States are understandably chary of minority claims which may endanger the national sense of identity and even the territorial integrity of the state. And there is a genuine problem of the minorities within a minority: tolerating a minority is fine, but what of the situation where a minority is oppressing an internal minority?25 Article 27 of the ICCPR begins this process of recognising minority rights. Article 27 states that: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

The tentative language of this guarantee of minority rights is striking: it refers to the rights of persons belong to minorities and not the right of a minority as a group. (Despite this tentative language, some countries still objected: France entered a reservation or declaration to Article 27 rejecting the idea there were minorities in France.)26 Further, the right seems to be expressed as a mere negative liberty to non-interference by the state. The body in charge of monitoring the implementation of the ICCPR, the Human Rights Committee (HRC), has added a gloss. The HRC stresses that the right can be invoked by migrants and visitors to the state, and that, despite its negative formulation, the right must be guaranteed and that may entail positive measures to ensure that neither the state nor non-state actors

24 So said the European Court of Human Rights in Connors v United Kingdom (2004) 40 EHRR 189, though basing its decision on ECHR, Art 8’s right to a home, rather than Art 14 (non-discrimination). 25 Lovelace v Canada [1981] 1 Selected Decisions under the Optional Protocol 83 (30 July 1981). 26 Guesdon v France, Communication No 219/1986: France, 23 August 1990 (CCPR/C/39/ D/219/1986).

142 Rory O’Connell violate the right. In particular, the state may be obliged to take positive steps to protect the identity of a minority and the possibility to enjoy and practise their language, culture and religion.27 The United Nations further developed this notion in a 1992 declaration of the General Assembly.28 The Declaration specifies the right to participate in public decisions affecting the minority, to maintain contacts with members of the minority group across national boundaries. It urges states to create ‘favourable conditions’ for minorities to enjoy their culture. This Declaration is not formally binding in international law and, indicating the sensitivities in this area, has a clause ensuring that the rights of minorities should not be used to imperil the territorial integrity of states. The United Nations continues to be interested in minority issues, with a Working Group on Minorities being formed in 1995 and an independent expert on minority rights being appointed in 2005.29 It is not just the United Nations which is active in the field of minority rights. Following the end of the Cold War, the democratisation of Eastern Europe and the emergence of new states in Europe, minority rights became more important in the European human rights frameworks, discussed elsewhere in this volume.30 Perhaps most strikingly, and for a lawyer most excitingly, the European Convention on Human Rights has been the site of a ‘burgeoning’ jurisprudence on minority rights, despite the relative absence of minority rights from the text of the Convention.31 Thus, the European Court of Human Rights has held that rules on national service and the penalties for non-compliance with this duty must make reasonable exceptions for religious minorities.32 It has also recognised that housing and planning policy should take into account the lifestyles of nomadic minorities.33 The rights of persons belonging to minorities allows for multiculturalism to be recognised as part of human rights law. If these very qualified statements were to be taken seriously then we should be recognising group differentiated rights to enjoy culture, participate in society, associate (including across borders), speak a language, and have distinct education facilities. As noted earlier, doctrines like the margin of appreciation are not much help for this type of problem. Yet there may be a clue to a solution in one brief comment from the Leyla S¸ahin case, noting that a balance of rights 27

ICCPR General Comment No 23, The rights of minorities (Art 27), 8 April 1994. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (A/RES/47/135, 1992). 29 See www.ohchr.org for details. 30 See J Allain, Chapter 13, S Breitenmoser, Chapter 12 and L Wilken, Chapter 4. 31 G Gilbert, ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights’ (2002) 24 Human Rights Quarterly 736. 32 Thlimmenos v Greece (2001) 31 EHRR 411. Nevertheless, in more cases decisions do not favour minorities, whether it be on the wearing of veils in Turkish schools or permission to use particular methods of ritual slaughter in France. 33 Chapman v United Kingdom (2001) 33 EHRR 399. 28

Dealing with Difference in Human Rights Law 143 must be ‘based on dialogue and a spirit of compromise’ and great respect accorded to the democratic decision-making process (emphasis added). RIGHTS, RELATIVISM AND DEMOCRATIC DIALOGUE

Human rights law has focused much more on democracy since 1989 than it did during the Cold War era. In both the Universal Declaration and the 1966 ICCPR, democracy was indirectly referred to as a right.34 However, the right to democracy was sidelined at that time. Unsurprisingly perhaps, in the context of an ideological confrontation between people’s democracies and liberal democracies, human rights lawyers shied away from a right which would require them to scrutinise political structures and practices.35 The dissolution of this tension with the fall of the Berlin Wall meant that more attention could be focused on democracy; indeed it became a matter of practical concern in dealing with the democratisation process in former socialist countries. This renewed interest in democracy was expressed in the aforementioned 1993 Vienna Declaration: Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives … the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal … The international community should support the strengthening and promoting of democracy, development and respect for human rights.

Might this renewed interest in democracy offer guidance in dealing with the problems posed by difference? There are some examples in national and international human rights law of how this might work. At the level of the European human rights system, the European Court of Human Rights has introduced a notion of participation in cases where difficult balances must be struck between competing rights and public interests, especially those involving use of land. The need for members of a minority to be offered opportunities for participation or consultation in decision processes was stressed in the cases on rights of nomads in the United Kingdom, where the European Court of Human Rights noted that travellers and gypsies could take advantage of procedures to make their position clear before final decisions on planning and land use were made.

34

UDHR, Art 21 and ICCPR, Art 25. This was true at the world level. Regionally, the context was different, and democracy is a value which is upheld throughout the text of the 1950 European Convention on Human Rights. 35

144 Rory O’Connell One possible example of how this might work is seen in a recent decision of the UK House of Lords. The Denbigh High School case concerned a dispute about a student who wished to wear a ‘long coatlike garment known as a jilbab’ to school.36 She refused to wear one of the approved uniforms which other Muslim women wore, a shalwar kameeze. The House of Lords was impressed with the school’s care in designing its uniform policy: it consulted on what would be an appropriate uniform for Muslim students, and communicated its policy clearly to prospective students and their families. When challenged by this student the school again took advice but considered that its uniform policy, which had been successful for some years, should be maintained. The school reported that some Muslim students resisted the introduction of the jilbab and that the school feared introducing it would highlight or even encourage religious distinctions among Muslim students. It is also of significance, perhaps, that many of the persons involved in running this school were themselves of the Muslim faith. What is impressive about this situation is the care taken by the school to consult in order to strike a balance which would respect the interests of all equally. This is the sort of dialogue which deliberative democrats might see as an example of good democratic practice in a multicultural setting. A further example of how attention to democracy is important comes from a case before the UN Human Rights Committee.37 The Maori complainants alleged that a deal struck between the New Zealand government and Maori negotiators infringed their rights to pursue their culture, including the right to engage in traditional economic and social activity (fishing). The HRC noted that the question was whether rights under Article 27 were being excessively limited, that these rights could include practices of an economic nature, and that such practices could evolve and change with new technology. In deciding whether the new regulations amounted to an acceptable regulation of minority rights it was crucial to ascertain whether the minority had an opportunity to participate in the decision-making process. In this case, the New Zealand government had acted after a complex process of consultation in which it appeared the majority of Maori supported the new regulations. The process took on board Maori sensitivities and included provision for regulations to protect customary activities. The combination of broad consultation and maintaining safeguards for Maori interests was sufficient to prevent a violation of Article 27. These two instances highlight the importance of democratic consultation. Democratic consultation is especially apt to questions of group rights 36 R (on the application of Begum) v Denbigh High School [2006] UKHL 15, 22 March 2006. 37 Mahuika v New Zealand, Communication No 547/1993: New Zealand, 15 November 2000 (CCPR/C/70/D/547/1993).

Dealing with Difference in Human Rights Law 145 because groups are not homogenous, and cannot be defined by reference to one unalterable cultural or religious practice.38 There are disagreements among Muslims over the most suitable clothing for women; there are disagreements among Maori over how best to protect their cultural, social and economic heritage. Democratic consultation allows for these differences to emerge and be debated both within the group and within wider society.39 These differences within the minority community reflect the frequent complexity of group rights disputes which may require compromises from members of both the minority and majority communities. The complexity of these situations is such that simple prescriptions are not likely to offer sufficiently nuanced solutions. Such solutions are likely to emerge only as part of a process of consultation and deliberation which exposes practices to analysis and suggests possible solutions. This, at least, is the hope of deliberative democrats. CONCLUSION

We have seen how the universal claims of individual human rights announced most notably in the Universal Declaration have been subject to challenges based on cultural relativism and multiculturalism and noted how human rights law has evolved in response to those challenges. In this process of challenge and legal evolution, the benefits of multidisciplinary studies becomes clear. Non-legal disciplines have been critical in highlighting the difficulties with both extreme universalism and an excessive cultural relativism. The legal response to cultural relativism has been to recognise that universal norms need to be concretised in particular contexts. As noted by Koen De Feyter in Chapter 1, insights from other disciplines may be helpful in interpreting universal rules in particular contexts. We also noted the possibility of using a legal doctrine such as the margin of appreciation in this context, but stressed the dangers of relying on the margin of appreciation to achieve this compromise. We especially noted that such a doctrine does not readily assist with the problem of multicultural tensions within (and across) national boundaries. We suggested there that a focus on democratic or deliberative discourse (an idea borrowed from political philosophers) is one way to resolve these dilemmas, and we may refer back the notion of deliberative democracy to the earlier problem of cultural relativism. Resolving tensions between individual and group rights will not be done easily by always favouring the individual or the group interest, but much can be done by 38 AI Eisenberg and J Spinner-Halev, Minorities Within Minorities: Equality, Rights, and Diversity (Cambridge/New York, Cambridge University Press, 2004). 39 See S Mullally, Gender, Culture and Human Rights (Oxford, Hart, 2006) and also in Chapter 5.

146 Rory O’Connell promoting principles of non-discrimination, substantive and contextualised interpretations of rights and a democratic discourse on the understanding of rights. At the end of the day, we may well be different from each other, and often do not even understand each other, but we can at the least continue to engage in dialogue. SELECT BIBLIOGRAPHY Benhabib, S, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, Princeton University Press, 2002) Donnelly, J, Universal Human Rights in Theory and Practice (Ithaca, Cornell University Press, 2002) Eisenberg, AI and Spinner-Halev, J, Minorities Within Minorities: Equality, Rights, and Diversity (Cambridge/New York, Cambridge University Press, 2004) Habermas, J, Post-National Constellations (Cambridge, Polity Press, 2001) Ignatieff, M and Gutmann, A, Human Rights as Politics and Idolatry (Princeton, Princeton University Press, 2001) Singham, SM, ‘Betwixt Cattle and Men: Jews, Blacks, and Women, and the Declaration of Rights and Man’ in D Van Kley (ed), The French Idea of Freedom: the Old Regime and the Declaration of Rights of 1789 (Stanford, Stanford University Press, 1996) Steiner, H and Alston, P, International Human Rights in Context (Oxford, Oxford University Press, 2000) Young, IM, Justice and the Politics of Difference (Princeton, Princeton University Press, 1990)

7 Non-Individualism and Rights GEORGE PAVLAKOS*

INTRODUCTION

T

he pivotal legitimating role rights play in contemporary political discourses derives from their function as justificatory reasons in public contexts of action and deliberation.1 In fulfilling this role, rights fall within the idea of public justification enshrined in the philosophical tradition of political liberalism from Mill to Rawls. Yet, recent communitarian critiques of liberalism have questioned the role traditionally ascribed to rights on a number of points: first, in suggesting that rights are products of collective action, those views argue for a structural transformation of rights: far from corresponding to universal claims of individuals, as liberal theory teaches us, their content derives from the values of particular collectives or communities. From this it follows, secondly, that we need to revise our perception of who the bearers of rights are: contrary to the traditional liberal conception, which allowed only individual agents to benefit from rights, groups and other collectives should be considered possible candidates (especially with respect to claims of recognition in modern multicultural communities). Finally, we are warned that we should be extremely sceptical when it comes to the universal validity of rights. Far from constituting universal claims, rights, in being products of particular communities, are confined to specific cultures. Resting on this premise, it is further submitted that what liberal philosophers took all along to be universal claims pertaining to each and every human being may actually turn out to be a cultural construction whose scope is confined to post-enlightenment Western societies.

* Funding for this chapter has been generously provided by the Alexander von Humboldt Stiftung. A longer version of the paper has been published as ‘Non-Individualism, Rights, and Practical Reason’ in (2008) 21 Ratio Juris 66. The author acknowledges the kind permission of Blackwell Publishing to reprint the relevant portions. 1 In what follows I take justification with reasons to pertain as much to action as to deliberation. To that extent I consider speech to constitute a level of action. Far from being new, this view has long been defended in philosophical circles. The most prominent example is the so-called speech acts theory (developed by Austin and later Searle) but also the most recent discourse theory which was put forward by Habermas.

148 George Pavlakos This chapter aims to affirm the structural changes of rights, albeit without following the bulk of communitarian critiques in their rejection of the normative significance of rights and their role as sources of legitimacy. Most notably, it puts forward the thesis that the communitarian critique, if marshalled properly, amounts to a passage from rights as private reasons to rights as public reasons. Rights retain their justificatory role as reasons for action even after their transformation into public reasons (in fact it is especially then that they retain this power, or so this chapter claims). The order of the discussion unfolds as follows: after laying down some general requirements for something to constitute a normative reason for action, the chapter proceeds to illustrate the weaknesses of an individualist conception of reasons akin to the one pertaining to liberalism. In a further step, an alternative non-individualist explanation is put forward, one that borrows a number of insights from the debate on individualism in contemporary philosophy of mind and language; non-individualism in this context is the view that, in order for rights to constitute normative reasons, they must be conceived of as arising from a public practice which is responsive to reasons (ie reflective). In conclusion, it is argued that all those who partake of such a practice acquire the status of persons. Personhood is a normative concept that cuts across the divide between individuals and communities and, for that reason, can play the role of alleviating potential tensions arising between those two concepts.2 It should be noted, finally, that throughout the chapter the discussion remains at a relatively abstract level with a view to delivering a general theoretical argument, which goes beyond particular theories and authors. As a result, references to concrete works have been confined to footnote material. CONDITIONS OF NORMATIVITY

In the first instance, it is of relevance to assess the conditions for something to constitute a normative reason. Exploring such conditions aims at illuminating the circumstances under which rights may retain their character as standards that may feature in justifications of action and deliberation. The first condition is normative relevance, in other words, the affinity reasons must bear to subjects of action and deliberation (agents). For the purposes of the present discussion this affinity can be simplified as the 2 Although this is a very important point for current debates on rights it will be addressed only en passant in this chapter. I hope to develop this point further on a future occasion when I will have time to engage in more detail with the relevant literature. The abstract nature of this chapter allows me to cordon off this theme, since any discussion of it would require a more concrete engagement with particular theories, a task that would render this chapter far too lengthy.

Non-Individualism and Rights 149 capacity reasons must possess to motivate agents. A second condition is to be found in the requirement of objectivity. Disregarding the plethora of topics potentially falling under this subject, two will be highlighted in the present context: stability and externality. Reasons must be relatively stable and, at the same time, retain a relative distance with respect to the context of deliberation/action in which they are employed. Let us ponder on each of the two conditions in turn. Condition of Normative Relevance First, a few words on normative relevance as a motivational force. For any normative reason to develop a regulatory capacity over deliberation and action, it is essential that such reason be connected to them. Such connection requires an explanation of how reasons feature in the make-up of agents who are the source of arguments and actions. In this context, a theory is called for which would guarantee the proposed connection by constructing agents and reasons at the same level. There is a great temptation to conceive of such a connection at the psychophysical level: along these lines agency is nothing but the collection of a certain type of mental states of individuals. In the history of ideas such views have been associated with the philosophy of utilitarianism. Utilitarian theory attempts to conceive of reasons as psychological (mental) states expressing desires or other interests, more or less well-defined.3 Such individualistic conceptions confine reasons to private entities. However, creating a private vocabulary for reasons leads to an inability to communicate standards within collective practices of deliberation/action. As a result, reasons are deprived of their regulatory (or normative) force. A similar result is obtained from an ultrarationalist conception of reasons: in this context, reasons are constructed as absolute mental formulae that possess an idealised, perpetual content which purports to regulate each and every situation.4 To this picture is attached an idealised conception of individuals as absolutely rational agents who partake of those formulae. Once again, the connection between reasons and agents results from the privileged access they have to their mental vocabularies. It is not necessary that the connection between reasons and agents be explained at the level of individuals’ mental inventory; in fact, this is a misunderstanding which, unless dispelled, is bound to jeopardise the

3 For a similar reconstruction of Utilitarianism, see the recent paper by AS Laden, ‘Evaluating Social Reasons: Hobbes versus Hegel’ (2005) 102 Journal of Philosophy 327. 4 This is more or less the philosophy of Platonism. Here, reasons resemble rigid rails that extend to the future in an a priori manner, allowing us to predict the right answer/action for any possible situation. The futility of this view, which is otherwise very important for the history of ideas, should be obvious.

150 George Pavlakos requirement of normativity.5 Instead, it is possible to advance a normative understanding of reasons that escapes the impasse of individualist explanations. This line of reasoning borrows elements from the philosophies of Kant and, later, Wittgenstein who, notwithstanding differences in detail, may be interpreted as pursuing a common line of argument for the existence of a more basic layer of normativity that underwrites reasons as well as agents. This level of normativity cannot be reconstructed by reference to mental states of individuals but needs to be located in public practices of action and deliberation.6 Public practices bring home the aspect of normativity by establishing a conceptual link between individuals and reasons: membership in practices of deliberation and action subjects individuals to public reasons for acting and judging. Subjection of this type upgrades individuals to agents capable of responding to reasons.7 Thus, within the realm of public practices, individuals are constituted as persons by virtue of their being linked to reasons. Failing to do so would result in slipping to a subnormative level where action and deliberation dissolve into either psychophysical characteristics of bodies or empty formulae of the mind. Condition of Objectivity The second condition of normativity is objectivity. Objectivity comprises the requirements of stability and externality, both being conducive to the identification of reasons with a relative certainty.8 Reasons remain stable when they retain their content across a number of situations and contexts. On the other hand, externality commands that reasons retain a relative distance vis-à-vis the various contexts of action/deliberation. Such distance is valuable in allowing agents to criticise, improve or even revise those contexts. Objectivity, in either of its aspects, need not be conceived of in rigid terms. It is not required, in other words, either that reasons remain unchangeable or that they be a priori, as in independent of any context of application. Extreme rigidity is detrimental because it renders reasons unworkable as normative guidelines. This is common to all rigid standards, for such standards fail to live up to the dynamism of actual contexts of practical action and deliberation and, as a result, break down. Standards which break down, however, are prone to invite indeterminacy and scepticism as regards the domain in which they are employed. Typically, rigid formulations of objectivity are the result of individualist conceptions of reasons. In conceiving of reasons as mental entities (be they 5

See below regarding individualism and the private conception of rights. See below regarding non-individualism and the public conception of rights. 7 The concept of the person will be introduced below to denote such reason-responsive agents. 8 I borrow the two conditions from Laden, n 3 above. 6

Non-Individualism and Rights 151 psychological states or a priori formulae) individualist conceptions give rise to a dualist ontology of reasons that is prone to lead to indeterminacy and scepticism. Dualism in this context signifies a division between, on the one hand, what is in minds and can be readily known by agents and, on the other, what is outside minds and may remain elusive for ever.9 While individuals are relatively confident about what is in their heads, they might end up engaging in hopeless efforts to determine what can be shared with other minds in terms of reasons for deliberation and action. As a result, insistence on conceiving of reasons as all-too-certain mental constructs is bound to lead to extreme forms of scepticism, where it becomes impossible to determine what is normatively required outside the mental realm of individuals. This inability causes loss of normativity and retreat to the subnormative level that was warned against above. Notably, individualism and the attendant effect of dualism has in recent years been criticised as giving rise to a dualism between conceptual scheme and content. This is the idea that there exists a stable parameter (conceptual scheme) available to minds which plays the role of an interpretive matrix through which individuals interpret their surroundings. This view leads to the problematic conclusion that there are as many conceptual schemes as there are persons. Yet, no sooner than the plurality of conceptual schemes has been granted, than the sceptic can argue that any reason we put forward to support an interpretation is merely a subjective construct which undermines the idea of objectivity. But if all we are left with are subjective interpretations, how can we remain confident that our reasons are genuine, let alone shared by others? Contra-positively, a more workable conception of objectivity requires that reasons be more fluctuant, capable of adjusting to particular contexts of application, albeit ones that are held together by reference to a shared practice. Here the two conditions of objectivity are sufficiently satisfied: on the one hand, stability, although somehow relativised, is still at hand, for it attaches to the continuity of a practice. On the other, externality is still available, for even though it is no longer an option to entertain an Archimedean point of view, it is possible to assess reasons by comparing our beliefs about what constitutes a reason, with the public space of reasons marked out by practices.10 This non-individualist strategy of casting reasons is much more durable than the strong perception of objectivity that 9 For recent criticisms of individualism in the realm of legal and moral philosophy, see N Stavropoulos, Objectivity in Law (Oxford, Clarendon Press, 1996); DO Brink, Moral Realism and the Foundations of Ethics (Cambridge, Cambridge University Press, 1989) and R Schafer-Landau, Moral Realism. A Defence (Oxford, Clarendon Press, 2003). 10 In the fourth section of this chapter concerning non-individualism and the public conception of rights, we shall see that there is a further meaning of externality put forward by non-individualists: one set of reasons may be assessed by reference to another set, by switching between different practices.

152 George Pavlakos individualism solicits. Its strength lies in its ability to combine objectivity with a certain amount of fallibilism:11 practices, in being public, already establish a connection between minds to the effect that they prevent the mind-world gap from opening. Anything that may potentially be understood by minds as being a reason exists already outside them, in a public space of which all minds partake. To that extent the condition of externality turns into the much more modest claim that reasons occupy a public point of view which lies over and above subjective states of individuals. That said, reasons can never become elusive or unknowable for, on the nonindividualist model, minds are constitutively embedded in practices. On the other hand, reasons are not perfect but evolve along with the practice that generates them: sometimes agents may discover that what they thought all along to be a reason turns out not to be one, or that it is in need of modification in the light of some aspect of the practice they had yet failed to consider (or, again, in the light of a set of competing reasons belonging to another practice). To that extent, the stability of reasons is not absolute but resembles more an inertia12 which ensures a smooth transition to new or even different formulations of reasons. In the end, sacrificing a portion of the objectivity of the individual point of view may disarm the devastating attack of scepticism. In the following two sections, I set out to discuss the individualist and non-individualist conceptions of rights with a view to demonstrating that it is only the latter that manages to live up to our reasonable intuitions about the justificatory function of rights as normative reasons. INDIVIDUALISM AND THE PRIVATE CONCEPTION OF RIGHTS

The individualist conception of rights arises from a number of powerful interpretations of the individual prompted by the anthropocentricism of the philosophy of Enlightenment. In their efforts to supersede theological and other metaphysical interpretations of human nature and societal formations, philosophers after Hobbes relocated the epicentre of philosophical enquiry from god and nature to human subjects. In moral and political philosophy, this shift gave rise to an understanding of normative reasons that involved a strong reference to the special characteristics of individuals. We may distinguish between two large categories of individualist interpretations of reasons, depending on upon which understanding of the individual each of them relies. 11 Most remarkably, scepticism is most effective where there is no room for fallibility, for the latter is capable of explaining away the doubt sceptics implant in strong conceptions of objectivity. For more on scepticism, see T Williamson, Knowledge and its Limits (Oxford, Oxford University Press, 2000), ch 8. 12 See Laden, n 3 above.

Non-Individualism and Rights 153 On the one hand, there are idealist interpretations; these rest on a representation of individuals as embodying a perpetual ideal: far from being understood in their societal and natural contexts, individuals are conceived of as embodiments of an abstract and perfectly rational subject that is disjoined from any particular characteristics, such as pertaining to a member of a group, a community or a political formation. In this context rights are understood as fixed universal standards that pertain to subjects so conceived, possessing uniform content irrespective of the particular situation in which they are evoked, or the social context which produced them. On the other hand, there is a more pragmatic interpretation which builds on the psychophysical characteristics of individuals: their mental states, inclinations and interests. What matters most in this interpretation are the particular characteristics of subjects which are deemed determinant of the content of reasons, usually along the lines of a hedonistic calculus.13 Both versions of individualist interpretations of rights fail to represent them as normative reasons for action. First and foremost, they fail on the level of objectivity. It is rather difficult to see, on either the idealist or pragmatic interpretations, how any of the properties that are deemed relevant may be communicated to agents in a manner that is normatively efficacious, along the lines sketched earlier.14 In the case of idealism, the problem arises with respect to the possibility of communicating an a priori formula which lies over and above the cognitive capacities of any particular individual or group of individuals (ie community). As remarked earlier,15 such strong presuppositions are bound to undermine any prospect for objectivity and, instead, invite indeterminacy and scepticism. At the same time, reference to the persons’ psychophysical states will not amount to much more. Owing to their subjective character, such states tend to be too fluctuant for consolidating normative contents that could be communicated to agents in a manner that would fulfil the conditions of stability and externality required by objectivity. One possible strategy for retrieving objectivity with regard to individualist reasons is to recast such reasons as mental states pertaining to entire collectives.16 Disregarding any metaphysical and ontological complexities which saddle such a project, there is a more straightforward source of scepticism to be found: if we create a new type of subject from the collective, say a super-subject, how would this connect with individuals? Once again, the problem of indeterminacy arises, for the same problems pertaining to the effort to communicate private mental states reappear when we try to communicate the states of a super-subject—unless, of course, we assume

13 This version of individualism comprises most utilitarian projects in moral and political philosophy; see Laden, n 3 above. 14 See above regarding the condition of objectivity. 15 Ibid. See also the discussion below on shallow communitarianism. 16 For this suggestion, see Laden, n 3 above.

154 George Pavlakos those states to be mere aggregates of individual mental states, in which case we are running in circles with no hope of escaping the conundrum in the first place. Far from suggesting that we should give up hope, these difficulties underline the urgency for addressing the public or collective aspect of rights. Individualist explications are not only flawed but are furthermore highly detrimental because of their tendency to obliterate an entire class of public or social reasons usually associated with rights discourse. Such reasons arise with respect to the various social roles we occupy as a result of our membership in various collectives. Those range from roles in the family to roles which agents acquire as a result of their membership in groups, associations, nations and states. In filtering such roles through the viewpoint of individuals, individualism suspends the validity of social reasons on reasons individualistically conceived and, as a result, deprives them of their normative authority. When, due to the shortcomings of individualism, the latter fail to be normative we also lose hold of the former. Were this irreversible, our normative lives would look radically impoverished. Fortunately, as I shall argue below, individualism is not the only option for understanding rights-based reasons. Moving on from the failure of individualism to account for objectivity, to its failure to account for reasons’ normative force, the following remarks must be made: reasons individualistically conceived fall below the threshold of normativity in virtue of their failure to motivate agents. As remarked earlier,17 for anything to constitute a reason for action, it must be capable of standing in a motivational relation to an agent by presenting them with a reason to act. Conversely, individualist reasons, be they psychophysical states or idealist abstractions, fall short of aligning themselves with a normative self-understanding of agents, such that would require them to act on reasons. The properties such reasons select as being normatively relevant actually fail to rise above the subnormative level of empty idealisations or contingent facts about individuals’ psychophysical states. Most notably, such properties, inert of normativity, must be combined with genuine normative reasons in order to develop any motivational power. In fact, not infrequently, individualist theories themselves commit the fallacy of evoking such genuine normative reasons over and above individualist reasons with a view to re-establishing normativity. In this vein, hedonistic philosophies often distinguish between genuine and non-genuine desires. While the former constitute proper normative reason, the latter correspond to states that are not genuinely normative but, at most, relate to causal triggers for action (such as instincts or cravings).18 However, no sooner has the distinction

17 See above regarding the condition of normative relevance; also below on the loss of normativity: the subnormative level. 18 See Laden, n 3 above, p 350.

Non-Individualism and Rights 155 been introduced, than one realises that what actually constitutes a motivational reason is not what the hedonist labels ‘genuine desire’ but, instead, the criterion she uses for arriving at her distinction; in which case, of course, the hedonist explication of reasons goes overboard. Mutatis mutandis, the same goes for abstract idealist constructions: these must remain empty of motivational capacity insofar as they embody a formula that is inaccessible to agents and, thus, empty of any substantive evaluations. In view of the above, it should not come as a surprise that individualist explications of rights have been attacked from many directions. Most prominent amongst such criticisms have been communitarian attacks that emphasise the need to conceive of rights as public standards arising from the membership in a collective. Although not every communitarian view succeeds in its attempt to account for the normativity of rights, the idea of rights as public reasons turns out to be particularly fruitful for a normative account of rights, as argued in the next section. NON-INDIVIDUALISM AND THE PUBLIC CONCEPTION OF RIGHTS

In this section the basic tenets of a non-individualist conception of rights are set out. The starting point for this is a listing of communitarian critiques of rights. In the present context, ‘communitarian’ stands for any movement in legal and political philosophy which questions individualist paradigms of rights by arguing that membership in a group, a practice or a community is what determines the content of rights.19 Such communitarian critiques have frequently been cast in terms of ideological criticisms, not always succeeding to rise above the level of a set of amorphous polemical remarks. Most notably, their failure results from a lack of a normative understanding of reasons and the agents who handle them. In what follows, I shall reserve the term ‘shallow communitarianism’ to characterise any such theory. Although, ultimately, shallow communitarianism fails, it possesses a considerable amount of negative value, for it can teach us a lot about what an adequate account of rights should avoid. In contra-distinction, I shall take up a second type of non-individualism in respect of rights, which I shall call the ‘practice theory of reasons’ or simply the ‘practice theory’. The practice theory uses most of the basic intuitions of the communitarian critique but moves beyond it, in that it attempts to advance a normative non-individualist conception of rights, as opposed to slipping to a subnormative level. Although the latter utilises much from communitarian critiques, its aim is to work out an 19 For the present purposes I take communitarian critiques to comprise feminist, Marxist and other critical theories which argue that normative contents (reasons, rules and principles) cannot be understood in isolation from agents’ membership in some social group (be it gender, class, or other). For a brief conspectus of communitarianism, see, G Pavlakos, ‘Communitarianism’ in New Oxford Companion to Law (Oxford, Oxford University Press, 2008).

156 George Pavlakos understanding of non-individualism that is normatively efficacious. The practice theory, as opposed to shallow communitarianism, gives us reason to hold on to the legitimating power of rights as normative reasons. Shallow Communitarianism Mental Constructs and Indeterminacy Its valuable critical stance notwithstanding, shallow communitarianism remains open to the same criticisms that it advances against individualist models of rights. First, it may fail to provide an adequate ground for switching from the individual to the collective point of view. In particular, it is unclear whether communitarian reasons manage to add up to anything more than mental constructs akin to individualist reasons. When objectivity as a condition of normativity was discussed earlier, it was pointed out that private mental constructs are futile as reasons for action and deliberation, since the inability to share them with others effects indeterminacy and scepticism. However, a critique of rights as individualist reasons must explain how and if collective (or social) reasons can be shared amongst agents. Shallow communitarianism has little to offer in this respect, since its propositions usually remain at the level of rhetorical argument. To begin with, there is little in shallow communitarian ideas that guarantees that the collective is not itself a mental construct (‘community’, ‘woman’, ‘man’, ‘nation’, and so on), but is in fact one that is merely juxtaposed in a polemical way to liberal idealisations. Usually such constructs are supposed to explain what it ‘really means’ to belong to a particular collective, as opposed to the simplifying generalisations of liberal theory, and to lay down reliable guidelines for spelling out normative claims. However, there is nothing in those accounts to rule out the possibility that such collectives are not themselves another type of mental construct, merely purporting to replace old ones. Such a possibility evokes anew the danger of dualism and the concomitant loss of determinacy and objectivity.20 Loss of Normativity: the Subnormative Level Notwithstanding the inability of communitarian reasons qua mental constructs to escape indeterminacy, there is a deeper and more devastating threat

20 See above regarding the condition of objectivity. This possibility remains open even if collectives are explicated as aggregates of their members. This strategy has been most commonly exploited by utilitarian philosophies who argue that collective normative reasons must be validated from individuals’ point of view (see on this, Laden, n 3 above, pp 333–5). Clearly, here, the dualism that saddles the individuals’ viewpoint resurfaces at the level of collective reasons, with all of the familiar problems arising.

Non-Individualism and Rights 157 for communitarian perceptions of rights. This relates to the way that communitarian critiques conceive of the social group, membership of which is supposed to reinforce the non-individualist interpretation of rights. Usually such theories insist on constructing membership on the level of descriptive facts, be they of a psychological or another nature, the result being that such facts fail to explain why this kind of membership might amount to normative or action-guiding force as regards deliberation and/or agency. Typical examples here are gender-based explications of rights, which build their interpretation on an exaggeration of the psychophysical components of genders (eg physical characteristics or other ‘special’ interests pertaining to each gender). The same holds for communitarian critiques which focus on particular empirical characteristics of social groups (like religion, culture or some other ‘collective’ feature), and then attempt to draw normative conclusions from those. A further example pertains to some positivist explanations of rights in legal theory and philosophy.21 Here, rights are defined with the help of a complex social rule which operates as a general formula to identify a series of factors that must be obtained for a normative reason to come in force. Such factors include acts of officials, parliamentary procedures and the case law of certain courts. The main flaw in all of the above conceptions of rights is their failure to explain how reasons acquire normative force. If membership of a community is dependent on achieving certain factors then it is not possible for the category of membership to set any normative standards for deliberation and action. I shall here demonstrate this point in more detail by criticising the two most common forms of communitarian argument. The first argument derives from claiming that a reason is whatever we can predict people in the community will treat as a standard for deliberation and action. The dimension of prediction is supposed to provide for regularity which aims to re-establish the normative content of reasons.22 Obviously, such an argument will be defective as long as it is supplemented with an insufficient criterion of prediction: if the criterion is the reason itself then the argument is circular. If, on the other hand, the criterion of prediction can be set apart from the reason predicted by virtue of its standing on a distinct, non-normative level, then it may stand, at most, in a causal relation with the reason. But proclaiming a non-normative basis for a normative reason will effect a slip into the subnormative level and the deterioration of the justificatory role of rights.

21 Although I have Herbert Hart’s version of positivism in mind, I believe that his analysis is mutatis mutandis representative of most contemporary forms of legal positivism. As regards Hart’s analysis the most relevant texts are his The Concept of Law (2nd edn, Oxford, Clarendon Press, 1994), chs 5 and 6. 22 This is the view defended by legal realism and some contemporary versions of Critical Legal Studies.

158 George Pavlakos The second argument claims that something is a reason insofar as it has been validated by the community. The notion of validity is more sophisticated than that of prediction. It rests on the idea that the fact of acceptance by a community confers normativity on reasons.23 A typical concomitant of this idea is the existence of a non-normative test for identifying the community whose acceptance confers normativity on reasons. Such a test is based on a series of factual criteria that purport to place conditions of membership on the reason-giving community. Suppose, for instance, that I am pondering my duties as a parent. The first step is to consider the set of reasons families accept as valid standards of action and deliberation. The next step is to identify conditions for family membership (eg degree of relationship, biological links, and so on) and decide whether I fall under them. In this setting, the normative force of those reasons depends on the facticity of their acceptance by the relevant collective (family) plus a series of criteria of ‘familyhood’. The principal problem of such a conception is that it purports to substitute a formal test of community membership for a more principled analysis of how and why reasons are accepted by that community.24 It does this as follows. The validity conception assumes reasons to be generated at a very basic level from the fact that a community endorses them. In being basic, this act of acceptance/endorsement is a non-analysable feature of normativity, or of what makes reasons standards for action and deliberation. However, such a view is problematic insofar as it renders reasons dependent upon what a community happens to think or do at a given time; which in a sense implies that the community can never be in error. But such a statement would most definitely run against our intuition that normative reasons possess a degree of stability and externality that raises them above the most particular of contexts. So, where can a firmer foundation for reasons be found? Unless one were to retreat to private mental states or idealised stereotypes were obtained,25 the next possible point of reference is the set of conditions that bring about membership in a community. Such conditions have the obvious advantage of affording a high degree of determinability, due to their descriptive character. By confining ourselves to criteria of membership, the validity conception is able to identify the space of reasons with certainty: ie the practice of the community to which those criteria relate. What is more, one need not go in detail into an analysis of why and how communities validate reasons. It suffices that they do so. Another advantage of this view is that it renders reasons extremely flexible, for it allows them to

23 This idea lies at the core of conventionalism: that normativity arises from a convention whose core characteristics are non-normative (random). 24 A principled analysis of acceptance would be required for a demonstration of the normative relevance of reasons, as was pointed out earlier in the introduction. 25 See the introduction above.

Non-Individualism and Rights 159 adjust to the ways the community adapts to new situations. To put it in a nutshell, the validity conception explains normativity by delegating it to a membership formula that is in essence descriptive. The problem with any such formulae is that, inasmuch as they are disjoined from the reasons that the community accepts as valid standards for action and deliberation, they are likely to be empty. Instead of being capable of offering a normative foundation suitable for motivating agents, they end up representing a random collection of factors which are unable to support the idea of normativity and justification required by thinking and acting for a reason. Notably, the most common symptom of this pathology are so-called hard cases: these are cases where the community is at odds about the content of a reason, as a result of the unprincipled understanding of the process of validation. To revisit the example of parenthood, a hard case would arise if the membership formula excluded same-sex couples where the issue at hand concerned the right of parents to adopt children. As long as this right is considered on a validity basis, it would be hard to arrive at a principled solution, other than quoting or repeating the elements of the membership formula. But would our doing so constitute a genuine instance of deliberation/action? In this and similar cases, the difference between acting/thinking for a reason and acting/thinking for no reason (which equates to no acting/thinking at all!) is not that clear at all. Orienting oneself to validity might make one aware that there is nothing left with which one can align one’s reasoning and acting. The Practice Theory In contra-distinction, the practice theory represents an understanding of non-individualism which aims to preserve the normativity of reasons: what is sought here is a conception of reasons that may conceive of their normativity in a principled manner. In steering this course, the practice theory purports to escape the Scylla of individualism and the Charybdis of shallow communitarianism. While the menacing face of the Scylla consists in the failure of individualism to communicate normative standards conceived of as abstract constructs, the devastating Charybdis of shallow communitarianism disables normativity insofar as, instead of conceiving of reasons as a matter of reflective knowledge, it makes them a matter of uncritical (random) acceptance or convention on behalf of the community in question. An attempt to restore the lost normativity of reasons would probably call for a lengthy line of reasoning. For the purposes of this introductory essay, I shall confine myself to a rough outline, albeit one that lays down all the steps of the argument, leaving an in-depth analysis of each one of them for another occasion. What marks the practice theory as a ‘healthy’ version of non-individualism is its ability to conceive of reasons in a normative manner. As previously

160 George Pavlakos pointed out, normativity poses two requirements: motivational relevance and objectivity. The practice theory aims to live up to the challenge of both of these conditions by connecting reasons to public practices of deliberation and action. Such practices preserve objectivity because they do away with the scheme-content dualism pertaining to communitarian constructions of subjects of rights; on the other hand, practices preserve normative relevance since, in contrast to prediction- or validity- based understandings of community, they remain responsive to reasons in a manner that is irreducible to any other type of descriptive, non-normative facts (be they conventions, predictive data or other). To that extent, it would not be an exaggeration to argue that normativity is gained through publicity. Finally, in conceiving reasons and agents at the same level, practices forge a normative understanding of agents as persons (see below). Objectivity First, some remarks on the ability of public practices to guarantee objectivity. This ability springs from a decisive rejection of dualism in the form of the scheme-content dichotomy touched upon earlier. One way to conceive of the dichotomy is as a distance between two domains: the domain where reasons are cognised and the domain in which reasons are applied. On this reading, while reasons (be they mental constructs, rational formulae or interest-related justifications) can be cognised with reference to a distinct realm, their application requires a separate intellectual process, consisting in the matching of cognised reasons with actual situations that are in need of regulation.26 Such a picture is doomed to failure, since any criteria that are conceived of outside of the domain they purport to regulate are bound to lead to radical indeterminacy and the eventual breakdown of the purported regulation. This is the result of almost any effort to restore a link between criteria/standards conceived of independently of a domain and that domain.27 Wittgenstein has famously located this difficulty in the effort to generate additional criteria or standards, which are themselves not open to ambiguity, and, as a result, capable of pulling off the trick of connecting the original criteria with the domain they purport to regulate. He argues that any such effort is bound to lead to a regression of interpretations, for there are no self-interpreting standards; thus, there will be need each time for new criteria which represent an external ground for making the required 26 Here, regulation has a broader meaning that also encompasses conceptual regulation, ie understanding/grasping. See also the discussion of T Williamson in his ‘Knowledge, Context, and the Agent’s Point of View’ in G Preyer and G Peter (eds), Contextualism in Philosophy (Oxford, Clarendon Press, 2005), ch 4. 27 One can imagine various degrees of complexity depending on the ontology of the stipulated criteria: if eg those are mental states, such as individual or collective interests, they need first to be communicated to other agents and, secondly, to be connected to the case at hand.

Non-Individualism and Rights 161 connection.28 This impasse pertains to individualist reasons as much as communitarian ones, since in both cases reasons are incapable of interpreting themselves; therefore they stand in need of connections with further criteria of determination. Contra-positively, practice is in a position to dispose of a dualist understanding of criteria, albeit without discarding the notion of criteria as normative standards capable of generating objective (or interpersonal) judgements. This is rendered possible by the fact that the space of criteria, and therefore reasons, becomes public in a constitutive manner. What is meant by this is that nothing individuals perceive as a reason can be so perceived independently of a public practice. An alternative way to make the same point is to say that reasons no longer require some internal mental component to be matched with the public space of communication and action, for their appreciation already implies participation in a public space which is shared between the members of a collective.29 Two consequences are worth mentioning in this context: first, that the content of our reason-relating mental states (beliefs, memories, desires, etc) cannot be conceived of independently of practices. My belief in reason R, far from arising from the matching of a mental component with the world, is shaped as a result of my partaking of a public practice of depicting reasons of the relevant kind. Linked to it is the further consequence that there is no Archimedean or final point of view (be it internal or external to minds) for validating reasons outside the practice that depicts them. Far form leading to circularity, this point brings home a new kind of objectivity: as the locus of reasons’ authority shifts from minds to the public space of practices, the possibility of error, criticism, improvement and correction is preserved in the space that separates less good from better understandings of the practice. This space can be represented through the dimension of ‘depth’ as one that pertains to practices: in being deep, practices are not readily fathomable by the subjects who partake of them;30 in other

28 The same problem has arisen at the most abstract level of the problem of connecting universals and particulars: this is what Plato first identified as the third man argument: seeking to specify what properties (universals) connect with the particular objects that have them. For an excellent analysis and a most illuminating survey of the problem in the history of ideas, see D Davidson, Truth and Predication (Cambridge MA, Belknap Press, 2005), ch 4. 29 This rests on the philosophical view that mental states (beliefs, etc) acquire their contents as a result of a practice of rule-following (see L Wittgenstein, Philosophical Investigations (3rd rev edn, Oxford, Blackwell Publishing, 2001); S Kripke, Naming and Necessity (Oxford, Blackwell Publishing, 1980); J McDowell, ‘Wittgenstein on Following a Rule’ in A Miller and C Wright (eds), Rule-Following and Meaning (Chesham, Acumen, 2002)). 30 This does not yet imply that the full depth of a practice is beyond the capacity of knowledge of the agents that partake of that practice: such a view would imply that practices are (at some level at least) hopelessly elusive, a claim that leads head on to radical indeterminacy and scepticism (see G Pavlakos, Our Knowledge of the Law: Objectivity and Practice in Legal Theory (Oxford/Oregon, Hart Publishing, 2007), ch 1).

162 George Pavlakos words, it will always be possible upon careful reflection to ‘discover’ that what someone (or even the community as a whole) perceived all along as a valid reason for action/deliberation is not actually one, or is one in need of revision/improvement.31 Two reasons contribute to the dimension of depth: first, the fact that practices add up to more than the mere aggregate of individual viewpoints (had the opposite been true, then it would have been possible to represent the point of the practice just by adding up individual viewpoints in a linear manner). Secondly, what makes practices deep is a factor of complexity: practices are complex to the extent that they do not come on their own but are linked together with a multitude of other practices (often purporting to regulate the same subject matter from a different point of view) forming an extensive network of action and deliberation.32 It follows that, although there is no external point of view for the evaluation of reasons, the point of view of practice still allows for a degree of objectivity (externality and stability). In fact this type of objectivity (call it internal objectivity) might be more effective than the more robust, albeit highly fragile, objectivity relating to the individual point of view: there the measure of correctness for reasons was confined to an idealised viewpoint whose access remained a privilege of individuals; here, no one (not even an entire community) can claim access to the ‘whole truth’. In demarcating a normative (public) space, practices rise above particular individuals or aggregates thereof, the result being that there remains a lot of room for discovery and improvement as regards rights-based reasons for action and deliberation. Normative Relevance Most importantly, the rejection of dualism and the attendant avoidance of indeterminacy lead to a fresh understanding of practice and community, avoiding interpretations that fall below the threshold of normativity into the subnormative level of description and prediction. No sooner are reasons plugged into the public space of practices than it transpires that what is basic, and therefore not analysable in respect of practices, are not factors

31 For this ‘rationalist’ view of objectivity (one soliciting the possibility to reconstruct criteria of correctness without leaving the particular context of their application), see R Dworkin, Taking Rights Seriously (London, Duckworth, 1977), pp 159–68; also T Burge, ‘Frege on Sense and Linguistic Meaning’ reprinted in idem, Truth, Thought, Reason (Oxford, Clarendon Press, 2006). 32 Most notably, all such practices are circumscribed by the most general practice of language. This ensures for the ‘communication’ between different types and levels of practice within a linguistic community but also for the translatability of practices across communities. See D Davidson, ‘On the Very Idea of a Conceptual Scheme’ reprinted in idem, Inquiries into Truth and Interpretation (Oxford, Clarendon Press, 1984); and Pavlakos, n 31 above, chs 2–4.

Non-Individualism and Rights 163 of validation or other prediction-generating data along the lines of shallow communitarianism but (more interestingly so) is the ability of agents to respond to reasons. On this understanding, practice is elevated to a reflective activity which requires agents to adduce reasons for the justification of their thoughts and actions. Any other analysis of practice (such as recognition, convention, etc) fails to preserve reflexivity as a result of its need to appeal to bridging criteria that purport to connect agents with practice. Such criteria, however, are doomed to lead to a regression of interpretations that would undermine the reflective (or normative) character of practice. Furthermore, holding on to subnormative criteria is bound to undermine any normative conception of community. For such a conception requires that the community generate a practice whose participants are engaged in reflective reason-giving. Remove the reflective dimension and community becomes devoid of any normative meaning, such that could generate a conception of rights capable of delivering legitimacy and justification in legal and political discourse. A most apposite concept for capturing the normativity (qua reflectivity) of practice is that of the rule. For in order to make best sense of the fact that our concepts are not formed randomly as a result of a mechanic activity but, instead, in a principled manner, as part of a process of responding to reasons, it comes as an immense help to conceive of the practice(s) that shape those concepts as embodying a normative pattern, a rule. Looked at against the background of such normative patterns, agents appear to be acting for a reason as a result of their following the rule of the relevant practice. Thus, partaking of a practice means that one makes the rule of the practice a standard for one’s own agency. The rule indicates when one has a reason for doing33 something or for refraining from it. In this manner, a connection between reasons and action is established: when a reason is established, one is compelled to act in a certain way. In the absence of that reason, some other action might be relevant. Along these lines, rule-following becomes most apposite for illustrating the normative character of practices, since it best captures the fundamental character of doing something for a reason (ie fundamental in that it is not possible to go below that level of analysis). It would seem then that, at long last, we have gained a better means for formulating what distinguishes normative from non-normative, as in predictive or validity-based, conceptions of practice: A conception of practice is normative if and only if it exemplifies the idea of rule-following.

Thus, the preservation of a normative conception of practice and the kind of reasons it generates requires that rule-following be placed at the most fundamental level of practice. Any departure from it (towards criteria that 33

Doing comprises judging here.

164 George Pavlakos purport to regulate practice from outside, such as individualist, predictive or validity-based) amounts to a breakdown of normativity. Adjacent to this reconstruction of communal practice is a normative explication of agency as personhood: here, as a result of partaking of a rule-governed practice of action and deliberation, agents are upgraded to persons. In this context, personhood is a property that derives from the ability to contemplate reasons and act/think upon them, rather than a collection of a number of psychophysical features of individuals. In this regard, there is room for further elaboration of the conception of the person: in the absence of an ultimate, external point of view capable of representing the ideal person, the features of personhood have to be located within practice, in the special interaction between reasons and agents. In the following section, two pivotal aspects of personhood are focused upon: on the one hand, the capacity to partake of reflective rule-following is demonstrated as bestowing on agents a thin layer of autonomy. On the other hand, the idea is put forward that agents capable of rule-following possess absolute value, or are valuable in themselves. In this latter aspect, agents become autonomous in a robust manner. Notably, the robust notion of autonomy does not arise until agents capable of rule-following engage in moral, legal or other evaluative practices. Be that as it may, evaluative practices are responsible only for the fully-fledged content of autonomy, not for its core meaning. The latter, as recorded, is already available in the most general formulation of the idea of rule-following, irrespective of any practice undertaking concrete evaluations. A most interesting feature of personhood lies in its capacity to mitigate the tension between communities and individuals. Persons, as opposed to individuals, do not stand antagonistically to communities, for they are already ‘inscribed’ within a normative explication of rights; ie in order to conceive of rights as normative propositions, we have to point at a public practice whose participants are equipped with autonomy, by virtue of their capacity to make normative sense of that practice. It follows that, by the time one comes to ‘see’ or ‘perceive’ anything as a right, one has already internalised any normative constraints that personhood might entail. In the end, given that a normative understanding of rights requires that individuals and communities be reconciled with one another, there is really no tension between them.

PERSONS AND COMMUNITIES

The shift from understanding rights as private reasons to conceiving of them as public reasons effects a much deeper transformation of our understanding of agents and their status, one that goes beyond the individualcommunity divide. This transformation is brought home via the concept of

Non-Individualism and Rights 165 the person. Despite being a feature of individuals, personhood is a normative concept which is linked with a non-individualist conception of reasons. As such it bridges the gap between individuals and communities34 and reaffirms the pivotal justificatory role of rights in contemporary normative discourses. Roughly put, agents acquire the status of persons by virtue of their capacity to handle reasons.35 This capacity renders them bearers of normative value for, in handling reasons, they become absolutely valuable, or valuable in themselves. This transformation, as it were, takes place in two stages. To begin with, conceiving of practice as rule-governed gives rise to an understanding of agents, who partake of that practice, as autonomous in a minimalist sense. Expanding on this minimalist idea of autonomy one can, in a further step, show that the idea of rule-following effects a fully-fledged notion of autonomy, one that is capable of underpinning a robust conception of personhood. As noted above, this possibility becomes available only with respect to evaluative or prescriptive discourses. There, the activity of rule-following points at universalisation as a requirement of normative validity, one that upgrades agents to persons by bestowing inherent value on them (persons as ends-in-themselves). Rule-following and Minimal Autonomy In what ways does agents’ capacity to handle reasons affect their status? In previous pages, the non-individualist reading of reasons prompted us to reject individualist as well as communitarian explanations of rights. Of key importance in this move has been the realisation that such conceptions, in eschewing a normative explication of reasons, run the danger of falling below the threshold of normativity, ending up engaging in one or another project of descriptive analysis. In contrast, the non-individualist reading that was advanced in their place makes the role of public practices prominent in constituting instances of reflective activity, ie activity that is performed in accord with a rule.36 No sooner have we moved from non-normative to normative explications of reasons, than reason-giving subjects cease to be either individuals or aggregates of individuals (as in the case of shallow communities).37 This 34 Albeit with communities that are understood to partake in normative public practices, as opposed to those imagined by shallow communitarianism. 35 Handling any kind of reason is not sufficient on its own for rendering agents valuable in themselves. It is only through handling reasons which are specifically practical that agents acquire absolute value, or so I shall argue below. That said, it is almost trivial to say that, insofar as agents deal interchangeably with practical and non-practical reasons, they retain their moral status throughout. 36 Because agents are involved in this activity they end up partaking of reasons. 37 See above regarding individualism and the private conception of rights.

166 George Pavlakos is best illustrated in the light of the notion of the rule introduced in the previous section. Rules are especially apposite for thinking of agents as autonomous, albeit in a very minimal sense, owing to their kinship with such concepts as freedom and responsibility. Succinctly put, rules imply that agents are left with a range of choices as regards their application. Choice entails freedom to the extent that agents can exercise their discretion with regard to the various possible applications of the rule. Theirs, however, is a bounded freedom, for agents, in exercising their discretion, remain answerable vis-à-vis the rule. In other words, agents assume responsibility for their choice and, to that extent, are prepared to accept criticism or, at least, feel it appropriate that they be under an obligation to offer reasons for their choice. It is in this interplay of freedom and responsibility that autonomy substantiates. Notably, this minimal notion of autonomy, or something close to it, was highlighted by Kant in his Grundzuege der Metaphysik der Sitten [Groundwork of the Metaphysics of Morals]38 when he comments on the capacity to judge. Its thin status notwithstanding, the wider implications of a minimal notion of autonomy should not be underestimated: it may serve to establish a more fully-fledged conception of autonomy. Notably, this is the case when we step into the realm of practical reasons. There, agents use practical reasons in order to evaluate various states of affairs. Consequently, insofar as they are handling practical reasons, agents acquire the status of an author and a recipient of value. Postponing a more precise formulation of the content of that value for the next section of this chapter, it suffices now to point out that agents, insofar as they are bestowed with value, may be deemed valuable-in-themselves. Being valuable in oneself is, at least if we follow the tradition in line with Kant’s philosophy, the defining characteristic of persons.39 This conception of persons already goes a long way towards bridging the gap between individuals and communities: Given that rule-following is a public practice, persons are not hopelessly individualist, for that which makes them persons (ie the reflective activity of rule-following) is fundamentally public. On the other hand, communities cease to be mere aggregates of individuals which need to be reconciled with one another; conversely, they become synergies of persons who possess a normative self-understanding in virtue of their capacity to handle reasons. Moreover, such reasons may,

38 For the relevant passages, see I Kant, Groundwork for the Metaphysics of Morals (TE Hill Jr and A Zweig (eds), Oxford, Oxford University Press, 2002), paras 4:447, 4:453–4:454. 39 ‘The person’, here, is a normative conception, as opposed to the biological or otherwise psychological individual: ‘the person’ is the subject of rule-following, ie the subject that can engage with normative reasons emanating from a practice which is embedded within a collective.

Non-Individualism and Rights 167 from time to time, dictate that the boundaries of the ‘community’ be shifted or that the subjects of rights and duties be redefined.40 Universalisation and Autonomy There is, at the same time, a more substantive meaning of personhood that is linked to the fact that persons are bearers of value. Two characteristics are relevant in this context: first, the value of persons is absolute, in the sense that they cannot be subjected to or defined through other values. Secondly, by virtue of being valuable in an absolute manner (ie valuable-inthemselves) persons function as a litmus test for reasons: not every reason that can be depicted in a public practice may claim normative authority. The first point concerns the nature/content of the value pertaining to persons. The second relates to the limits set by the valuable character of persons on the content of practical reasons. The importance of that second point notwithstanding, the following discussion deals only with the first.41 To illustrate the absolute value of persons we need to relate the idea of rule-following to the capacity to universalise practical reasons.42 As we know from Kant’s works, agents capable of universalisation possess value by virtue of that capacity.43 Roughly speaking, Kant takes the principle of universalisation to demonstrate the rational character of practical reason, from which it follows that anyone capable of rational thinking is also capable of practical reasoning. However, given that practical reasoning is the means for predicating the value of states of affairs, it would follow that there is no other source of value external to rational thinkers. Hence, by virtue of their being the only and last instance of practical reasoning, rational deliberators are rendered the source of all value, which is to say, they are absolutely valuable.44 This is captured succinctly by Kant in the formulation of the humanity formula:45 So act that you use humanity, as much in your own person as in the person of every other, always at the same time as end and never merely as a means.

40 This remark touches upon debates about who can be a bearer of rights. Of great relevance here are debates on group rights: they seem to involve a choice between an independent grounding of group rights or, instead, a collectivist interpretation of individual rights (see, eg, the right to partake of a linguistic community). 41 An informative discussion of the constraints imposed by the concept of the person may be found in the context of discourse theory and in particular the work of Robert Alexy. 42 Thus, our argument as regards the absolute value of persons is confined to practical reasons. It may be possible, nonetheless, to argue that all types of reasons are practical by virtue of their link with public practices. Even though such argument may be possible, however, it will not be taken up in the present context. 43 This is the so-called formula of humanity, according to which persons are ends-inthemselves, see Kant, n 38 above, para 4:429. 44 One prominent contemporary defender of this line of argument is C Korsgaard, The Sources of Normativity (Cambridge, Cambridge University Press, 1996). 45 Kant, n 38 above, para 4:429.

168 George Pavlakos In view of the above, showing that persons possess absolute value merely requires one to argue for the truth of the thesis that rule-following relates to, or entails, a principle of universalisation.46 In other words, if it turns out that the public practices which give rise to action-guiding reasons involve an instance of universalisation, then those who partake of such practices would possess absolute value. But is it possible to argue for a link between universalisation and the idea of rule-following? (Lest any misunderstanding arise, the reader should be reminded anew that in tackling this question the focus is strictly on practices that generate practical reasons). According to a recent influential interpretation,47 Kant chooses the principle of universalisation as the supreme principle of morality because it is particularly apt in accounting for the absolute normative character of practical reason. This is the requirement that an act is correct only if it is backed by reasons that are inherently normative, ie they are not reducible to any other non-normative criteria.48 Most notably, Kant attempts to capture normativity through the notion of duty. He argues that, unless acts are performed out of duty, they cannot be bestowed with moral worth (ie they are not correct). The notion of duty is further explicated through the law-like structure of principles. It is the law-like form that may give rise to duties, since it is that which captures the essence of normativity. Thus, acting out of duty means acting on the basis of a law-like principle because that principle so commands. A further consequence of this requirement is that which gives an act its value is not its consequence but the motive enshrined in the principle. Conversely, if the value of an act depended on its effects then the act would not conform to the principle but to whatever random outcomes follow from it. But then, it would not have been performed out of duty. The thrust of this argument is that in order to understand agency in normative terms we need to relate its motives to a principle that is intrinsically normative. Kant famously goes to great lengths to demonstrate that there exists only one principle which can fulfil the requirements of normativity. In his Groundwork of the Metaphysics of Morals he formulates this principle as a formal rule of universalisation:49 Act only in accordance with that maxim through which you at the same time can will that it become a universal law. 46 As a result the connection between the principle of universalisation and the humanity formula will be taken as a given; however, it should be noted that such a connection is far from uncontroversial: rather than being commonly accepted by philosophers, the transition from the former to the latter has been the object of heated debate. Conversely, for a solid defence of the connection, see Korsgaard, above n 44. 47 See SJ Kerstein, Kant’s Search for the Supreme Principle of Morality (Cambridge, Cambridge University Press, 2002), ch 4. 48 See the open-question argument put forward by GE Moore: were we to reduce those reasons to such non-normative criteria, we would need to provide a further reason or metareason in whose light such reasons would regain normative significance; GE Moore, Principia Ethica (Cambridge, Cambridge University Press, 1968). See also the recent discussion by W Fitzpatrick, ‘The Practical Turn in Ethical Theory’ in (2005) 115 Ethics 651. 49 Kant, n 38 above, para 4:421.

Non-Individualism and Rights 169 This is, then, how universalisation, or the notion that practical reasons are normative through and through (in connecting with a principle that is intrinsically normative), relates to rule-following: Kant’s explication of the normativity of practical reasons relates the specific to the general with respect to the explication of normativity based on rule-following. With regard to the latter, reasons (practical and non-practical alike) remain normative by virtue of their connection with a public practice of rule-following. Yet Kant’s reconstruction of the concept of duty offers a more specific explanation of the normativity of practical reasons: it states that those reasons must be related to the law-like structure of a formal principle of universalisation. Once this relation has been illustrated, it is a small step to arguing that any public practice generating practical reasons must be understood as a public practice of universalisation. Such transformation of the understanding of normativity, aside from illustrating the absolute value of those who partake of any practice of practical reasoning, also shows the notion of universalisation in the best possible light. While the Kantian law of universalisation may conceal a normative test that is hopelessly private insofar as it is hidden in the heads of individuals, integrating universalisation into public practice renders it a powerful notion which can account for the normativity of reasons.50 The explication of normative reasons, resting on public practices of universalisation, guarantees the continuity of practical reason. Although practical reasons are generated in different contexts by distinct practices (law, morality, ethics, etc) the idea of universalisation helps to bring out the rationale which is common to all of them. Thus, despite differences between various types of reasons (be they legal, moral or otherwise practical) it is possible to relate them to one another as a result of their being instances or outcomes of a practice of universalisation.51 In substantive terms, this results in a claim that all such reasons must respect the idea of personhood, which attaches to any practice of universalisation. To that extent, the idea that agents who partake of a public practice of universalisation are absolutely valuable constitutes a material constraint vis-à-vis the content of practical reasons: no reason that infringes upon the absolute value of persons may 50 For an account of the requirements of normativity, see the introduction above. Such an explication of normativity as being based on a public practice of universalisation that is essentially deliberative has been developed by discourse-ethics within moral philosophy and the discourse theory of law with respect to legal theory. Those theories accept that an action is correct when it is justified through a valid reason. Reasons are valid when they can be accepted on the basis of a general discursive test of universalisation. In contrast to the model developed in this chapter, discourse theory does not explicitly address the issue of rule-following and practice. I believe that this could easily be supplemented so that the theory would avoid the accusation of individualism. 51 This seems to be in tune with the idea that law is a special case of practical reasoning, which is an increasingly common thesis amongst non-positivist legal theories. See eg R Alexy, The Argument from Injustice (Oxford, Clarendon Press, 2002); R Dworkin, Justice in Robes (Cambridge, MA, Harvard University Press, 2006), ‘Introduction’; Stavropoulos, n 9 above.

170 George Pavlakos be permitted. Such infringement would be assumed to take place any time persons were prevented from partaking of the practice of universalisation, or even when reasons for action would consistently fail to satisfy a public test of universalisation. In that respect the concept of personhood, as one that is intertwined with the idea of universalisation, cements practical reason, by grouping together the various types of practical reasons. CONCLUSION

This chapter began by diagnosing a crisis in the legitimating role of rights in contemporary normative discourse. Subsequently, it was argued that that crisis arises from a philosophical confusion surrounding the role of rights as normative reasons. In dispelling the confusion, an account of reasons was put forward that attempted to capture the normativity of such reasons by relating reasons to a reflective public practice. Two key outcomes were identified as a result of this explication: first, that normative practices are instances of rulefollowing; and secondly, that agents partaking of normative practices possess absolute value (ie acquire the status of persons). In light of this explication, rights acquire the status of the most general reasons that purport to guarantee the content of personhood by specifying and safeguarding conditions which enable agents to participate in public practices of universalisation. Truth be told, rights are far from well-defined formulae, as they themselves are subjected to a practice of universalisation, whose outcomes are not given a priori. However, the content of rights cannot remain random but must conform to the minimum requirement that those who partake of public practices possess absolute value (ie enjoy the status of persons). It follows that rights must be capable of guaranteeing the status of persons so conceived, which is to say, they must be able to guarantee that agents may continue to be free and equal participants in a public practice of generating normative reasons. In undertaking this task, rights retain their central legitimating role in contemporary normative debates on justice and good government. SELECT BIBLIOGRAPHY Alexy, R, The Argument from Injustice (Oxford, Clarendon Press, 2002) Burge, T, ‘Frege on Sense and Linguistic Meaning’ reprinted in idem, Truth, Thought, Reason (Oxford, Clarendon Press, 2006) Davidson, D, Truth and Predication (Cambridge MA, Belknap Press, 2005) ——, ‘On the Very Idea of a Conceptual Scheme’ reprinted in D Davidson, Inquiries into Truth and Interpretation (Oxford, Clarendon Press, 1984) Dworkin, R, Taking Rights Seriously (London, Duckworth, 1977) ——, Justice in Robes (Cambridge, MA, Harvard University Press, 2006) Fitzpatrick, W, ‘The Practical Turn in Ethical Theory’ in (2005) 115 Ethics 651

Non-Individualism and Rights 171 Hart, HLA, The Concept of Law (2nd edn, Oxford, Clarendon Press, 1994) Kant, I, Groundwork for the Metaphysics of Morals (TE Hill Jr and A Zweig (eds), Oxford, Oxford University Press, 2002) Kerstein, SJ, Kant’s Search for the Supreme Principle of Morality (Cambridge, Cambridge University Press, 2002) Korsgaard, C, The Sources of Normativity (Cambridge, Cambridge University Press, 1996 Kripke, S, Naming and Necessity (Oxford, Blackwell Publishing, 1980) Laden, AS, ‘Evaluating Social Reasons: Hobbes versus Hegel’ (2005) 102 Journal of Philosophy 327 McDowell, SJ, ‘Wittgenstein on Following a Rule’ in A Miller and C Wright (eds), Rule-Following and Meaning (Chesham, Acumen, 2002) Moore, GE, Principia Ethica (Cambridge, Cambridge University Press, 1968) Pavlakos, G, Our Knowledge of the Law: Objectivity and Practice in Legal Theory (Oxford/Oregon, Hart Publishing, 2007) ——, ‘Communitarianism’ in New Oxford Companion to Law (Oxford, Oxford University Press, 2008) Stavropoulos, N, Objectivity in Law (Oxford, Clarendon Press, 1996) Williamson, T, Knowledge and its Limits (Oxford, Oxford University Press, 2000) ——, ‘Knowledge, Context, and the Agent’s Point of View’ in G Preyer and G Peter (eds), Contextualism in Philosophy (Oxford, Clarendon Press, 2005), ch 4 Wittgenstein, L, Philosophical Investigations (3rd rev edn, Oxford, Blackwell Publishing, 2001)

Part IV

Rights in Context

8 Are Women Human? Prostitution and the Search for the Right Rights REBECCA PATES

PROSTITUTION AND WOMEN’S RIGHTS

I

n 2002, a new type of exploitation racket that would affect hundreds of thousands of women was introduced in Germany. Women providing sexual services were now to be ‘pimped by the state’, ie, to register as business holders, pay into the pension, unemployment and health insurance schemes and finally enter the realm of the ‘respectable professions’. This new exploitation—or access to respectability, depending on one’s standpoint—was achieved by changes in a law concerning prostitution: the law-makers wanted to align the law with public opinion, they said, by aligning the profession with others, and giving sexual service providers the rights they had long been due. The new law, generally called ProstG (short for Prostitutionsgesetz, ie, Prostitution law), brought German federal legislation in line with demands by prostitutes’ lobbying organisations. They had argued that the short, miserable and poor lives women in prostitution often led were due to their low status and particularly their economic and social situation. Some hold the state directly responsible for women’s plight, at least in the sense that it is complicit in its perpetuation, as the feminist jurist Catharine MacKinnon argued in her recent book Are Women Human?:1 The abuse of the women described was not official in the narrow sense at the time it happened, but its cover-up, legitimization, and legalization after the fact were openly so. The lack of effective remedy was entirely official. The abuse was done, at the very least, with official impunity and legalized disregard. The abuse is systematic and known, the disregard is official and organized, and the effective governmental tolerance is a matter of law and policy.2

1 C MacKinnon, Are Women Human? And Other International Dialogues (Cambridge, MA, Belknap, 2006). 2 Ibid p 25.

176 Rebecca Pates If it is the state’s function to safeguard its subjects against human rights violations, the state’s complicity in human rights violations against women means that in fact (if not in law) women are not considered human, MacKinnon argues.3 Thus, if women are to be elevated to the status of ‘real’ human beings, the state and its institutions must start to improve on their record in serving women. As Koen De Feyter has argued in Chapter 1, this could mean a number of different things, even if we are agreed that the state’s duties to women are tied to the conferring of rights. Notably, the type of right to be conferred can range from political (eg representation in public institutions), to economic (eg concerning welfare reforms targeted at single mothers), to social (eg ensuring access to social security for disadvantaged women). For MacKinnon, it means the state must start to implement a social rights programme targeted specifically at women, as it is the social (rather than the political) sphere in which women’s rights are abrogated with the greatest injurious effects on them. What the conferring of economic and social rights means concretely is that equality and non-discrimination are extended to minorities and women; it includes access to employment opportunities, safe working conditions, social security, healthcare, education and an adequate standard of living. As arguably economic and social rights issues affect women differentially, a legislature interested in remedying women’s lot should improve the general implementation of social and economic rights. These rights are particularly crucial for women, because women are in many cultures relegated to the private sphere, and the private is a space in which public authorities rarely intervene. The extension of social rights to prostitutes in Germany was the focus of an intensive lobbying campaign by the professional sex workers’ association Hydra, although they came to a very different conclusion than MacKinnon. They have argued that social rights for prostitutes does not entail the prohibition of the activity, but the extension of social services usually offered to wage earners to those offering sexual services. What this shows is that applying human rights to women is no simple matter. First, the debate on prostitutes’ social rights highlights that conferring rights on

3 MacKinnon’s argument is highly controversial. It could of course be the case that the theories of law and its practice do not coincide. Some critics have gone further, however: It has been argued that MacKinnon is committing a category mistake in her argument: the group of women may be being treated less well than the concept of human rights requires, and thus, as not-quite-human, but that is not to say that the concept ‘woman’ is that of someone who is not human. C King, ‘Category Errors’ (2006) 26 TLS. If MacKinnon’s argumentation were seen as a species of ‘static nominalism’ (I Hacking, ‘Making Up People’ (2006) 28 LRB 23), it might be more persuasive. Static nominalism is the view that classifications of individuals affect the people classified by changing them (intentionally or not). Thus, people classified as having no human rights might behave, and engender behaviour in others, commensurate with this low status. In contrast to MacKinnon, I am not here assuming that women are a group, but prostitutes are treated as a group, even if not in the usual sense used in the term of ‘group rights’.

Prostitution and the Search for the Right Rights 177 a particular social group does not lead to obvious policy implications by a simple deductive process. Secondly, we shall see that the attempt to confer human rights on women implies policies that in turn contribute to the gendering of women and men: depending on how a right is applied to women, they will, through processes of ‘dynamic nominalism’ (Hacking), undergo different processes of personhood. ‘Dynamic nominalism’ refers to a process by which the subjects of classifications react to their being classified in such a way as to, in turn, affect the classifications. As Nietzsche put it in the Gay Sciences: There is something that causes me the greatest difficulty, and continues to do so without relief: unspeakably more depends on what things are called than on what they are … Creating new names and assessments and apparent truths is enough to create new ‘things’.4

Ian Hacking has showed dynamic nominalism in the healthcare sector. In his study on people with multiple personality disorders, he showed that as the tendency of professionals to classify clients as having multiple personalities grew, the tendency of patients so classified to develop more personalities, and to identify with the classification, grew exponentially. This is not to say that those patients ‘were not’ so classifiable, or incorrectly classified, but first, that they would not have been so classifiable at different times in history or in different cultures,5 and secondly, that classifications are part of a ‘looping effect’ that help to produce the subjects so classified. The looping effect has been the subject of many gender theories, for gender is not the result of a biological imperative (although certain socially relevant biological attributes do, of course, as a rule correlate with the dichotomously thought chromosomal, endocrinical and external sex). Rather, people do not have a gender, but are gendered through a culturally and historically (and class, culture, ethnicity and religion-specific) set of processes. Again, this is not to say that women ‘are not’ women, but that they cannot but react to the classifications open to them within their particular context. I shall try to show the gap between rights discourses, their legal implementation, and their implementation by state employees with regards to those classified as working in the sex trade. The German sex workers’ lobbyists Hydra had argued that the provision of sexual services is based on the right to self-determination, ie, the right to non-interference in terms of deciding what to do with one’s body. The German legislature conceded the point, and the law on the exploitation of prostitutes (that prohibited the facilitation of prostitution and made brothel managers legally culpable for providing acceptable working conditions, 4 Quoted from F Nietzsche, The Gay Science, translated by W Kaufmann (NY, Random House, 1974) Aphorism 58 in I Hacking, n 3 above. 5 I Hacking, Rewriting the Soul: Multiple Personality and the Politics of Memory (Princeton, Princeton University Press, 1998).

178 Rebecca Pates for example) was concomitantly changed in 2002. Living off the proceeds of prostitution is now only punishable by law if the prostitution occurs against the woman’s will, ie, ‘when the prostitutes are “kept” in a situation of dependency and through pressure hindered from developing their selfdetermination or independence’.6 This argument is not specific to Germany, a French sex workers’ lobby group has argued similarly: the right to one’s body must be defended, and passive soliciting must in no case be criminalised. Situations where sex and material gain are connected abound in social life: interest-based marriages, exchange of sexual favours for professional advantage follow a similar logic to prostitution, without the same visibility.7

In these arguments, sex workers’ lobby groups thus defend two sorts of rights: a liberty right, which is a right that protects freedom of movement, belief, expression and association, and thus, the right to determine what type of services to perform, even if these seem unpalatable, immoral or inimical to a person’s development in the eyes of others. Just as there is no prohibition of teachers exchanging ideas with students for financial gain, there should be no prohibition of exchanging bodily fluids with customers for similar reasons. Secondly, the lobby groups argue that sex workers’ equality rights should be respected—equality rights guarantee equality before the law, non-discrimination and equal citizenship. As the state does not as a rule intervene in the choices adults make as to whom they choose to exchange sexual favours with, nor for what reasons they do so, the pursuit of financial gain through sexual services should not be intervened in either. So the German and French prostitutes’ lobby groups argued that prohibitive practices be abrogated in order for these two groups of rights to be rightfully extended to prostitutes. In Germany, legislators were swayed by these arguments, and the new law on the recognition of prostitution was intended to align prostitution with other legal professional activities while advancing prostitutes’ liberty and equality rights. Despite the lobbyists’ juridical success in Germany, the goal of elevating women’s status as rights bearers is often understood as having quite the opposite implications; not everybody agrees that these new ‘achievements’ contribute to the improvement of women’s rights. The strongest way the objection to the new law has been put is by a Swedish government publication, claiming that the German state is strengthening the lack of rights of all women through furthering (rather than minimising) the stigmatisation of prostitutes: Prostitution is an aspect of male violence against women and children. It is officially acknowledged as a form of exploitation of women and children

6 ProstG Explanatory Statement, Drucksache 14/5958 (Berlin, Deutscher Bundestag, 2001), p 5. 7 Collectif femmes de droits, droits de femmes, Manifesto (Paris, nd).

Prostitution and the Search for the Right Rights 179 that constitutes a significant social problem, which is harmful not only to the individual prostituted woman or child, but also to society at large … Gender equality will remain unattainable as long as men buy, sell and exploit women and children by prostituting them.8

This argumentation too makes use of rights-based arguments, but from this perspective, sex work is not an issue of social or economic but of security rights that protect people against crimes such as murder, massacre, torture and rape, activities it is the duty of government to protect against: for prostitution is demeaning to all women, and each time ‘a woman is bought’,9 all women are thereby degraded by the reproduction of a relation of subordination and domination. Each is unwittingly participating in the ‘micro-enactment’ of a social hierarchy, even though she may be believed to have consented to the action itself. Thus (so the argument continues), if the right to equality is to have any meaning at all, the state must ensure that the micro-enactments in gender hierarchies be prevented. Hence, all members of society must be prevented from engaging in this sort of activity in order to guarantee all women’s security and the termination of systemic relations of domination. One problem with this argument is that if prostitution is akin to a violation of security rights, it is puzzling that so many women would claim to be engaging in prostitution, if not as a profession, then at least as part of what they sometimes do in order to earn a living, voluntarily. Thus, an explanation has to be given as to why women think they choose ‘to be harmed’. One option is to argue that agreement to prostitution is a symptom of their prior exploitation, as MacKinnon argues elsewhere: Women who are compromised, cajoled, pressured, tricked, blackmailed, or outright forced into sex … often respond to the unspeakable humiliation … by claiming that sexuality as their own. Faced with no alternative, the strategy to acquire self-respect and pride is: I choose it.10

The prostitutes’ rights associations are, according to MacKinnon, thus involved in a classic case of Sartrian bad faith: they know that they are unwittingly supporting their own oppression but are denying it. Whether the Swedish or the German perspectives are correct is not to the point here. This example serves to show that we can find types of rights that make each side’s claims (in favour of the ‘normalisation’ or the prohibition

8 M Jacobson, ‘Why Do Men Buy Sex?’ (2002) 1 Nordic Institute for Women’s Studies and Gender Research Magazine 24. 9 This argument is always put in the passive, as women are deemed victims of patriarchy, rather than freely choosing agents; for a justification of this, see eg S Jeffreys, The Idea of Prostitution (Melbourne, Spinifex, 1997). 10 C MacKinnon, Towards a Feminist Theory of the State (Cambridge, MA, Harvard University Press, 1989), p 149. See also Jeffreys, n 9 above.

180 Rebecca Pates of sex work) seem defensible.11 It seems, then, that rights discourse is very much en vogue, that governments and lobby groups can explain what they do in terms of rights, but also (as this case makes clear) the harshest and the most liberal sex laws in Europe can be defended within the discourse of human rights about which the governments in principle agree. If human rights can imply a proposition and its opposite, does this make rights discourse communicatively meaningless, perhaps a means to establish oneself as well-meaning without any concrete implications? SE Merry has recently shown that rights function as universalist propositions, which, like other law-like rules, have to be ‘translated’12 in order to be applied. Application of rules require that the cases or classes of issues to which the rights rules are to be applied are subject to classifications, problematisations, theories of causation and the sense of purpose of the administrators.13 Examples of classifications are culturally and historically specific, as D Kulick has shown in the example of Sweden with regard to male clients of sex workers. Sweden passed a law in 1999 prohibiting the purchase of sexual services. The discussion around sexuality that led to this prohibition had involved a substantive view on ‘good’ sexuality and the concomitant pathologisation of men who purchase sexual services and of women who offer them. D Kulick had argued that the Swedish laws produced classifications according to which ‘sex workers are traumatised victims; clients are psychologically disturbed men’.14 He argued that this was but a further development that had started with the pathologisation of gay men in the nineteenth century, when a certain type of behaviour through being subject to investigation by experts became unintelligible and was reduced to a psychological aberration. M Foucault argued that through professional scrutiny, homosexuality had changed from a temporary aberration of behaviour to ‘a species’ with ‘a personage, a past, a case history, and a childhood, in addition to being a type of life, a life form’.15 According to Kulick, clients of sex workers have also become a species due to the intense expert scrutiny of their behaviour. The classification of female prostitutes in the Swedish model is thus a classification of a group of women as (not necessarily innocent) victims (and perpetuators) of patriarchy.

11 Other than the three types of right mentioned in the text, there are political rights, due process rights and welfare rights. The extension of welfare rights to prostitutes was one of the main stated aims of the German Prostitution Law. 12 SE Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago/London: Chicago University Press, 2006). 13 According to M Valverde and N Rose, the analysis of problematisation means asking ‘how does a particular problem … come to emerge as a target for government, and what role is played by institutions, functionaries, and calculations in this?’: M Valverde and N Rose, ‘Governed by Law’ (1998) 7 Social and Legal Studies 545. 14 D Kulick, ‘Four Hundred Thousand Swedish Perverts’ (2005) 11 GLQ 226. 15 M Foucault, The History of Sexuality I (Harmondsworth, Pelican, 1981), p 43.

Prostitution and the Search for the Right Rights 181 This classification is quite distinct from the German classification of sex workers. The German juridical stance amounts to the view that women are self-determining agents who choose to engage in sex work as they might have chosen to become secretaries or childcare workers, although they need to be particularly protected against the possibility of exploitation (hence the only partial abrogation of pimping laws). In order to elicit the changes in the profession’s status, the new law changes the terms in which participants in these services are referred to: the words ‘prostitute’ and ‘john’ (‘Freier’) are eliminated; we now only have ‘providers of sexual acts’ and ‘clients’.16 If Hacking’s thesis of dynamic nominalism is correct, we can thus expect German sexual services to have a tendency towards professionalisation, thus, for more members of the middle classes to enter the profession,17 and for sex work in Sweden to be chosen by members of more marginalised population groups. RIGHTS AS A CULTURAL (POLITICAL) PRAXIS

Classifications of persons are a prerequisite for the applicability of rights, as people first have to be classified as bearers of certain rights before they can be applied to them. But there are further intricacies in the application of rights. If legal anthropologist SE Merry is right, the law of human rights is a cultural practice: it consists, first, in a legal system that articulates normative visions of a just society; secondly, in a local application of these visions mediated through local cultural understandings and actions.18 The major convention governing women’s rights is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It was developed during the 1960s and 1970s and put into force in 1981. By 2004, it had been ratified by 178 countries, indicating widespread global support: Human rights policies reflect international consensus, and even though they are not legally binding, they exert considerable moral force. The way human rights conventions come about are through a process in which consensus is sought, a process that boils down to debates about

16 M von Galen, Rechtsfragen der Prostitution (München, Beck Juristischer Verlag, 2005). 17 There are some indications that such a tendency is in fact taking place in the United States after decades of movies providing the classification of sex work as respectable work, at least as long as it is engaged in for a brief duration. The Hollywood version of sex work (Working Girls, Flashdance, Pretty Woman) shows upwardly mobile working women who are portrayed as independent and pragmatic, and there have been a slew of books by college graduates depicting their lives in the trade: Heidi Mattson, Ivy League Stripper, Shawna Kenney, I was a Teenage Dominatrix, Jeanette Angell, Call Girl: Confessions of an Ivy League Lady of Pleasure … 18 Merry n 12 above, pp 228–9.

182 Rebecca Pates phrases. The outcome is a long and convoluted sentence, such as the following: [governments should take action to] create and maintain a non-discriminatory and gender-sensitive legal environment by reviewing legislation with a view to striving to remove discriminatory provisions as soon as possible, preferably by 2005, and eliminating legislative gaps that leave women and girls without protection of their rights and without effective recourse against gender-based discrimination.19

The phrase is remarkably vague and convoluted, but it is precisely its relative meaninglessness that is a prerequisite for the possibility of consensus; for its emptiness means that a single document can be agreed upon despite considerable disparities in opinions about women’s roles in society and the state’s role in guaranteeing their safety. In practice, consensus occurs not when all agree, but when no further objections are raised: Word-smithing produced a single document despite gaping disparities in views about women’s place in society. The surface of the text papers over intractable differences.20

Reaching consensus comes at the cost of clear sets of rights, and yet it is necessary because human rights law is law without sanctions: the United Nations has little power to coerce submission as there is no international mechanism for sanctioning states which violate the policy recommendations of UN documents. Thus, decisions are effective only if they have been reached by consensus. The policies then set important standards for prestige and enhancing trade and aid relations. The outcome of the consensual process is that proposals are added to one another, producing repetitive and unwieldy texts, to qualify strong sentences, and to change timelines of action to vague recommendations. Another implication is that some issues are effectively blocked by a few countries from inclusion in the conventions, such as reproductive and sexual rights and the recognition of sexual diversity. These sets of issues are, as a rule, opposed by the Vatican (which, while not a country, has a seat on the United Nations) in an alliance with the global South and, recently, the United States: women’s rights and gay rights are seen to threaten family values, and these in turn are fundamental to religion and ‘culture’. The general rules arrived at through the UN process then have to be applied locally, to particular issues. This local application has to proceed through a translation process. First, the abstract issues of human rights need to be applied to local problems, using local conceptions and narratives. Secondly, structural conditions have to be amended to allow for

19 20

A/RES/S-23/3: 21, para 68(b). Merry, n 12 above, p 42.

Prostitution and the Search for the Right Rights 183 human rights complaints to be heard, investigated, and the problems solved. Thirdly, ‘the target population is also redefined’,21 and I take it that it was MacKinnon’s point that this does not happen in a satisfactory enough fashion. New groups of people are now deemed proper ‘targets’ for state intervention: the inclusion of violence against women in the list of offences, for example, has allowed for states to intervene in domestic affairs on behalf of women, whereas domestic arrangements had hitherto been deemed to be a purely private matter. Similarly, the granting of liberty rights to prostitutes allows for entirely new forms of state intervention in the realm of prostitution: rather than the state fining, relocating and retraining them, it can now make sex service providers register as professionals, pay income tax, pay for their health, work and social insurance. Rather than being clients of social workers they are a now sought after clientele of trade unions. Rather than being parts of narratives of oppression and exploitation, the ‘profession’ is now increasingly portrayed in popular culture as a viable option for the middles classes. LOCAL EPISTEMOLOGIES AND CREATIVE HYBRIDITY

Rights might be granted by UN conventions that have to be ratified by individual governments, but they are necessarily implemented locally, generally by local state officials (police officers, healthcare and social service providers, prosecutors, etc). That general rules cannot be applied in terms of a mechanistic ‘if-then’ process has been shown by legal anthropologists: there is always some leeway in the interpretation of laws. Thus, processes of implementation are always also processes of localisation: depending on the context, a ‘text’ (such as the ProstG, or a CEDAW right) can evoke different reactions: Minor officials produce quick judgments about what disorders will or will not be tolerated by creatively combining a bit of second-hand expert knowledge with a job-based sense of customary norms and a more or less intuitive sense of what the ‘public good’ requires in particular cases.22

This combination of communal norms and expert knowledge has been called ‘creative hybridity’23 and will produce different interpretations of the laws based on different assumptions about communal norms, as well as different degrees and types of expert knowledge. They also depend on ‘culture’.

21

Ibid p 136. M Valverde, Law’s Dream of a Common Knowledge (Princeton, Princeton University Press, 2003), p 53. 23 D Moore and M Valverde, ‘Maidens at Risk’ (2000) 29 Economy and Society 527. 22

184 Rebecca Pates NUANCES OF ‘CULTURE’

Human rights discourse comes about through prior understandings of values that are immanent to an international culture of well-educated participants in UN discussions. These understandings include ‘cultural’ values, and yet, in turn, human rights culture is to influence ‘culture’ at a local level. As Merry has pointed out, the term ‘culture’ is used in two ways in UN debates, depending on the goal of the speaker: First, the term is used in arguments against the granting of certain rights as being against the customs, traditions or culture of a particular state that are presented as essential to the continued existence of that state; for example, if rights are to challenge women’s subordinate position in the family or the workplace, those whom this threatens will argue that established hierarchies will be disturbed and national identity jeopardised. It is the German romantic notion of culture at play, as expressive of Volksgeist24 that is deemed to be the basis for a fundamental right to indigenous sovereignty. Culture is seen as fundamentally unchangeable. The second use of the term ‘culture’ refers to the habits, thoughts and customs of rural or urban minorities that are represented as repressive and that can be superseded by the culture of human rights. Here, ‘culture’ is used in an evolutionary sense, as a means to move ethnically defined subjects to the realm of right-bearing modernity.25 As historians have shown,26 tradition is often created for political purposes. In this use of the term, it is sometimes used as a way of racialising minorities without using racial terms.27 But the third meaning of culture is just that it is a set of beliefs, values, practices, including institutional arrangements, political structures and legal regulations that are hybrid and changeable, negotiated in political battles, and changes as institutional arrangements change.28 In this third sense, laws are both expressions of a culture and a way of changing it, and a way of explaining differences in Swedish and German law. For in this view of culture, the interpretations of ‘rights’ are in both cases correct: there are, however, no rights ‘as such’, before interpretation at a local level. Everything global takes place locally: as B Latour has pointed out, when there is talk of ‘global’ structures, you can usually ask in which 24 N Elias, The Civilising Process: the History of Manners and State Formation and Civilisation (Oxford, Blackwells, 1978), p 3–9. 25 L Volpp, ‘Blaming Culture for Bad Behaviour’ (2000) 12 Yale Journal of Law and Humanities 110; JL Comaroff, ‘Reflections on the Colonial State, in South Africa and Elsewhere’ (1998) 4 Social Identities 63. 26 E Hobsbawm and T Ranger (eds), The Invention of Tradition (Cambridge, Cambridge University Press, 1983). 27 Volpp, n 25 above. 28 P Chabal and J-P Daloz, Culture Troubles: Politics and the Interpretation of Meaning (London, Hurst, 2006).

Prostitution and the Search for the Right Rights 185 office the decisions take place.29 So rights are necessarily local, and so are women. DOING GENDER, DOING ETHNICITIES

MacKinnon had claimed that in terms of being treated as such, women are not human. What, then, makes a woman? After women’s equal participation in the political and social had been legally established in most European and North American countries after the Second World War, scholars interested in women’s equality noted that all was not well: the declarations of legal equality had not born fruit. Thus, in the 1980s, theories concerning ‘politics of difference’ of women from men predominated: women were deemed to have a different ethics from men (C Gilligan), to have different psychologies (N Chodorow), different interests (Marxist feminists, eg M Barrett), and due to these (valuable, if undervalued) differences, women were deemed not to be so much in need of equal treatment, as that would use the male as norm for women, a norm that would perpetuate their inequalities. If, for example, all employees are to be treated equally, and only women become pregnant, then the mandate of equal treatment would not allow for special consideration for pregnant women, as that would imply unequal treatment. The implications are, however, strong generalisations often sliding into a type of universalism about women’s nature, which have been strongly criticised in the light of anthropological and sociological evidence of the social and historical specificity of gender. If all women are demure, then either non-demure women are not ‘real women’, which renders gender theory moot, or it becomes impossible to generalise about ‘what women are really like’. Even though such generalisations are to be avoided, gender scholars have tried to explain the ubiquity of women’s differential status across societies. Women, it was clear, were similar to each other in one respect (biological difference, ‘sex’) and different from each other in others (cultural difference from men and from women in other classes, cultures, eras, ethnicities, religions, etc, ‘gender’). Thus, not only are women not different as such, but they are not mere victims of a patriarchal plot: rather, women and men are not passively gendered, but participate in the process of ‘being’ men or women. There are two main theories concerning the manner in which such a process of becoming women or men is deemed to work:30 the ‘discursive

29 B Latour, Reassembling the Social: an Introduction to Actor-Network Theory (Oxford, Oxford University Press, 2005). 30 M Weber, ‘Soziale Konstruktion von Geschlecht: Entwicklung der Debatte’ in H RichterAppelt and A Hill (eds), Geschlecht zwischen Spiel und Zwang (Gießen, Psychosozial-Verlag, 2004), p 44.

186 Rebecca Pates theory’ and the ‘doing gender’ theory. The discursive theory is usually a form of nominalist theory according to which the social world is produced through language, and according to which there is no extra-linguistic reality.31 This is not to say that there are ‘no such things’ as women, men or natural differences between them. It is to say that the proper question is how they come to be: whether they are the way they are in a manner that could be described as beyond society, as supra-historical and universal, or whether they are integral parts of a particular way of life.32 Proponents of the ‘doing gender’ theory33 argue that gender is not something we have, but something that is the outcome of everyday interactions and judgements. Either way, it does not make sense to ask what the differences are between the genders. What needs to be asked is how differentiations among the genders are made. In order to analyse the politics of human rights with regard to gender, we need to investigate what they purport to change, ie, at the classifications that come about, on the one hand, and how the administrators of law in fact understand these classifications in practice, as it is in the local that the global must be sought.34 CLASSIFICATIONS AND LOCALISATIONS

So how are genders produced through the German prostitution law? Are more rights conferred to a group of people to whom rights had previously been withheld? In other words: did the change in laws have any noteworthy impact from a human rights perspective? We might not care too much about prostitutes, but recall that this is a test for the practicability of legal change: a lobby group had identified a particular social problem and had recourse to human rights discourses in order to remedy the social problem. I have showed how the rights perspective need not have been successful in the sense intended by the lobby group at the legislative level. The lobby group (to the dismay of Swedish and American law-makers) was, however, successful, a law was passed, and it guaranteed rights to a group of people that had hitherto been devoid of these rights. What needs to be investigated, then, is whether the theoretical granting of rights led as a matter of fact to these people having more rights than they had previously had.

31 The discursive theory tends to be attributed principally to Foucault, n 15 above; J Butler, Gender Trouble (London, Routledge, 1993); S Hirschauer, ‘Konstruktivismus und Essentialismus. Zur Soziologie des Geschlechterunterschieds und der Homosexualität’ (1992) 5 Zeitschrift für Sexualforschung 331. 32 Hirschauer, n 31 above, p 334. 33 H Garfinkel, Studies in Ethnomethodology (Englewood Cliffs, Prentice Hall, 1967); C West and D Zimmermann, ‘Doing Gender’ in J Lorber and S Farrell (eds) The Social Construction of Gender (Newbury Park, CA, Sage, 1991). 34 Merry, n 12 above; Valverde, n 22 above.

Prostitution and the Search for the Right Rights 187 I have shown how laws usually operate through classifications, and that classifications of people in the realm of the sex industry might lead to different identities because of the looping effect. The law at issue here is as such gender neutral, so that it does not perpetuate any classifications pertaining to the extreme vulnerability of women or the social dominance of men (in contradistinction to the Swedish law on prostitution summarised above). In the course of our research projects, we have found, however, that the juridical deregulation of the sex industry has led to an increased regulation of women in the sex industry, partly because the law was applied only to women. Police officers, public order officers, internal revenue officers, social workers and public health department employees who deal with prostitutes have stated in interviews that the law is meant for female prostitutes. ‘The state’ does not in practice classify men as prostitutes at all. Indeed, most officers acknowledged that they knew of male prostitution that occurred in their territory that met the usual criteria for a legal intervention to be legally required; that is, sexual acts occuring in public and causing irritation; those occurring in proximity to a school; where clients are wont to harass neighbours; or there is a regular littering of condoms. If these criteria are met by female prostitutes, a slew of interventions is common: public order officers issue tickets, police officers move them along or check their identities, social workers and public health department employees seek them out, and so on. None of this occurs when the prostitutes are men: Even though all the usual reasons apply that permit state intervention, the officers claim ‘we only go there, we only react if there are complaints. We wouldn’t go there voluntarily’. Women, on the other had, are monitored very closely, and very willingly so. Raids on bordellos always elicit particularly enthusiastic volunteering on behalf of the tax officers, for example: Well I mean, here at the office I am always grateful and so far we have never had a problem with the colleagues. It happens to be an interesting subject and we have never had to force anyone to do an extra shift. Well, if there had not been enough volunteers, we could have said, ‘well, you do have to do this, you know’ but it has been no problem at all: the young people are very motivated and we can put our teams together [for a raid on bordellos] with no problem.35

The contrast between the highly motivated civil service employees who like to raid bordellos with female prostitutes and their extreme reluctance to assess situations in which male prostitution takes place is a telling gendering of the application of the law.

35 The interviews quoted here were conducted after the introduction of the ProstG as part of a research project called ‘The Administration of Prostitution’ funded by Saxony’s HWPProgramme (2004–06) at Leipzig University’s Political Science Department.

188 Rebecca Pates As I mentioned earlier, given the language of the ProstG, one might expect that the classifications of prostitutes is at least (insofar as the prostitute is working within the confines of the law, ie has proper working papers, and so on) partially one of professionalisation. Why should female sex workers be regulated at all after the introduction of a law that was to establish the normalcy of their trade? The law prescribes that people who provide sexual services be treated by law like other employees,36 except that safeguards are built in that are meant to put up barriers to their exploitation (this is not so for workers in the garment industry, teaching or secretarial work). In contrast to earlier law, prostitutes are not ‘saved from prostitution’ but are ‘saved in prostitution’, ie the best possible working conditions are supposed to apply to them. The implication is that sex workers are to be safeguarded against ‘exploitation or undue influence’, which means that women’s social and economic independence must not be inhibited. Thus, not the service provision itself is regulated, but the manner in which the services are to be provided.37 So they are to be treated as separate but equal. Equal treatment is clearly not yet the case; the logics used by the regulating officers just do not permit actions that would, in their mind, promote the ‘pimping by the state’: prostitution is just not seen as a job choice as legitimate as being a baker, geographer or politician, none of which tend to carry the causal stories told by the officers concerning the reasons for prostitution. The manner in which the regulation takes place is specific to the place in which the women predominantly work: the three main options in the towns investigated in our project are the street, a bordello or private apartments. Most women work in the latter, and the latter are completely unregulated as they are considered to be locations in which citizens’ private business takes place. In one town, the official estimate was that there were 10 to 15 street prostitutes, about 30 women working out of bordellos and about 430 women working out of apartments. Women on the street are asked to move on, their identities are registered, and they are issued a restraining order for that street and fined in case of recidivism. Women in bordellos are the subject of tax investigations, checks on their migration status, health checks, and general interest on behalf of the investigating officers. Only locals can be found in street prostitution (because of the intensity of the official scrutiny). Locals are treated very differently from ‘foreigners’ (for which purpose only some people count as ‘foreigners’, namely women from visible minorities or women from non-EU countries). There are (according to the main 36 Although this is not explicitly stated in the law, the intention of the law-giver allows for his interpretation. For a discussion, see von Galen, n 16 above, p 12, quoting MP BrandtElsweier from the Protocol of the Bundestag debate. 37 von Galen, n 16 above, p 104.

Prostitution and the Search for the Right Rights 189 discourses prevalent) two types of women who prostitute themselves who are German: the (morally, physically and socially) destitute, and amateurs who are ‘really’ students, housewives or sex obsessed. The former cannot help themselves, often because of drug use: the destitute … junkies … most of them can’t really think properly ... I used to tell them what they could do differently, that for example if they really have to ‘do it’, they should do it in a house, but they can’t follow ... I tell them that if they really have to do it, they should go inside, do it in a house, they need check-ups. There they might be checked by physicians. But they aren’t in a position where they can follow what I’m saying. That is why it is complicated.

The regulators show these street workers a decidedly paternalistic attitude, wanting to change their behaviour for their own good, worrying about the women not being able to take ‘the right decisions’ by themselves, wanting to help them improve their lives, etc. The women working out of apartments or bordellos, on the other hand, are considered to be amateurs that can only be regulated where they operate in the public sphere (ie bordellos, saunas, adult clubs, and so on). Insofar as they stay in the ‘private’ sphere of their apartments, they remain completely unregulated. If the women are ‘foreign’ in the sense stated above, our research has shown that they also fall into two main groups: migrants who are professionals in the field, and provide ‘special services’ for clients with eccentric tastes, and ‘young girls’ who are victims of their innocent desire to work for a better life abroad and who ‘sadly’ do not admit to having been trafficked.38 So within the practice of regulating public spaces, gendering and ethnicising takes place: the Germans on the street are helped, against their will; the foreigners in service establishments who are deemed attractive are detained in order to give them time to reflect on their possible involvement in trafficking; and those in flats are left to their own devices, as people who are in no need of regulation or help. Thus, the different social spaces correlate with different social classifications, and the classifications imply different types of regulation of the subjects involved. If the theory of dynamic nominalism is correct, the possibilities of reaction of those thus regulated are limited by the actions and discourses of the state agents. Thus, the conferring of rights cannot always be effective: not only must the rights discourses be translated into the vernacular, but also, the rights discourse must in principle be understandable to the state officials in charge. In the case briefly outlined here, the state officials had different classificatory schemes than the German law provided possibilities for, so that they just ignored it entirely. 38 There seem to be two exceptions to this rule, Thai women and Sinti women; Thais are said to be here in order to find marriage partners, and Sinti women are categorised as offerings services ‘for Turks’.

190 Rebecca Pates The implication is that in some cases at least, the application of human rights (pace Merry) to groups that had not been ascribed them before might not actually make much of a difference. This does not, of course, serve to prove that human rights ought not be applied to women; but the details of the case can serve to show that because of the looping effect, great care must be taken as to what classifications are made by the new regulations, on the one hand, and whether local administrators of these laws are up to the task of taking on these new classifications. In the German case of the ProstG, the law was framed in a gender-neutral manner, and in a language aiming at the possibility of professionalising a hitherto marginalised group. In effect, local administrators resisted this professionalisation, and instead took it upon themselves to ethnicise the women they wanted to control, thus proving that their (now legally dubious) regulative interventions were justified by the matter at hand: the women were just not capable of looking after themselves, caused a nuisance and had to be forced to help themselves. In this case, the provision of actual social services to prostitutes would have been more helpful than the conferring of rights that then cannot be applied by an administration unwilling to categorise anew. SELECT BIBLIOGRAPHY Butler, J, Gender Trouble (London, Routledge, 1993) Chabal, P and Daloz, J-P, Culture Troubles: Politics and the Interpretation of Meaning (London, Hurst, 2006) Comaroff, JL, ‘Reflections on the Colonial State, in South Africa and Elsewhere’ (1998) 4 Social Identities Elias, N, The Civilising Process: the History of Manners and State Formation and Civilisation (Oxford, Blackwells, 1978) Foucault, M, The History of Sexuality I (Harmondsworth, Pelican, 1981) Garfinkel, H, Studies in Ethnomenthodology (Englewood Cliffs, Prentice Hall, 1967) Hacking, I, Rewriting the Soul: Multiple Personality and the Politics of Memory (Princeton, Princeton University Press, 1998) ——, ‘Making Up People’ 28 LRB 23 Hirschauer, S, ‘Konstruktivismus und Essentialismus. Zur Soziologie des Geschlechterunterschieds und der Homosexualität’ 5 Zeitschrift für Sexualforschung 331 Hobsbawm, E and Ranger, T (eds), The Invention of Tradition (Cambridge, Cambridge University Press, 1983) Jacobson, M, ‘Why Do Men Buy Sex?’ (2002) 1 Nordic Institute for Women’s Studies and Gender Research Magazine 24 Jeffreys, S, The Idea of Prostitution (Melbourne, Spinifex, 1997) King, C, ‘Category Errors’ (2006) 26 TLS Kulick, D, ‘Four Hundred Thousand Swedish Perverts’ 11 GLQ 226 Latour, B, Reassembling the Social: an Introduction to Actor-Network Theory (Oxford, Oxford University Press, 2005)

Prostitution and the Search for the Right Rights 191 MacKinnon, C, Towards a Feminist Theory of the State (Cambridge, MA, Harvard University Press, 1989) ——, Are Women Human? And Other International Dialogues (Cambridge, MA, Belknap, 2006) Merry, SE, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago/London: Chicago University Press, 2006) Moore, D and Valverde, M, ‘Maidens at Risk’ (2000) 29 Economy and Society Valverde, M, Law’s Dream of a Common Knowledge (Princeton, Princeton University Press, 2003) Valverde, M and Rose, N, ‘Governed by Law’ (1998) 7 Social and Legal Studies 545 Volpp, L, ‘Blaming Culture for Bad Behaviour’ (2000) 12 Yale Journal of Law and Humanities von Galen, M, Rechtsfragen der Prostitution (München, Beck Juristischer Verlag, 2005) Weber, M, ‘Soziale Konstruktion von Geschlecht: Entwicklung der Debatte’ in H Richter-Appelt and A Hill (eds), Geschlecht zwischen Spiel und Zwang (Gießen, Psychosozial-Verlag, 2004), p 44 West, C and Zimmermann, D, ‘Doing Gender’ in J Lorber and S Farrell (eds), (1991)

9 School Communities and Children’s Rights GIOVANNA GUERZONI AND DANIELA SOCI

INTRODUCTION

I

n today’s anthropological debate, the concepts of culture and identity have gone through a thorough critical revision. In the contemporary world, cultures can no longer be considered as ‘isolated worlds’. Identities are constructed by means of fragments that feed on different spaces and encounters, since they are processes characterised by multiple factors, such as migration experiences, mobility, and by the cultural jumble, both real and virtual (ie mass media). This chapter describes an experience of education in human rights by means of the theoretical perspective of analysis of human rights’ anthropology. This perspective focuses on the importance of an ethnographic reading of the processes of both safeguarding and empowering of human rights. From this point of view, the educational contexts stand as spaces of encounter and fusion of different ‘cultures’, not merely reducible to the presence of foreign pupils in such contexts. According to the teachers taking part in the Project, ‘Adopt a Right’, to realise a truly intercultural school implies creating new educational models capable of negotiating individual rights (ie the right to education) and group rights, such as the right to multiple identity belongings; the right to the culture of origin, but also to the culture of the nation in which the child is brought up and to that of the multicultural world in which he lives; as well as the right to actively participate in the school community itself. The Project promoted different experiences of education in human rights. The teachers taking part in the Project considered human rights as a valuable instrument to negotiate individual and group rights precisely because of the specific nature of the educational contexts themselves. This chapter describes the experiences realised thanks to the Project and makes an evaluation of both positive and critical aspects in the practices of negotiation of those individual and group rights that have been promoted.

194 Giovanna Guerzoni and Daniela Soci AN ETHNOGRAPHY OF HUMAN RIGHTS IN EDUCATIONAL CONTEXTS

To consider the practices and representations of human rights as experienced by pupils and their teachers in some Italian schools entails understanding the relations, and the negotiation processes connected with them, between different cultures existing in educational contexts. The reference is to institutional culture, traceable in different ‘documents’ (ministerial programme, planning educational offer (POP)) of the individual educational districts, the didactic planning related to particular programmes; the culture connected with the education processes carried out by the teachers, which is visible in the didactic planning performed by the teachers through the school year; the cultures of the pupils implemented through ongoing daily mediation between specific histories and identities and cultures learnt/performed ‘within the school’ and ‘outside the school’ (family, culture of origin, but also living a plurality of other social contexts, from sport to religion, to amusement spaces, to the media, etc). And these processes intermesh with the re-elaboration of a culture at least partly shared, which makes the peer group a specific community (a ‘form of life’)1 emerging in the educational context. The perspective of analysis of this chapter (and of the research-action to which it refers) aims to privilege an ethnographic point of view on human rights in the educational world. On the one hand, we do not intend to resume the extensive debate of epistemological nature that has focused on the nature of the ethnographic text and the anthropological method linked with that—a discussion that has occupied the scientific community of anthropologists over the past few decades;2 we wish, however, to underline certain aspects of it, ie those closely related with the context and experience dealt with here. In our view, an ethnographic practice on human rights in the educational world—one able to take up the ‘challenges’ of a reading necessary from below the paradigm of human rights—is needed today, and is also of importance in several respects. First, it has been widely argued that the historical and cultural ‘density’ of human rights does not concern the fact that they may constitute shared and desirable goals, but consists, rather, in their purely political dimension;3 if so, then the paths of interpretation and analysis, like that of ethnographic practice, would appear to be the paths of choice with respect to a reality undergoing deep and rapid social and cultural changes. The ‘cultural dislocation’ often reported by the educational world requires new categories of interpretation in order to explore in detail

1

L Wittgenstein, Ricerche filosofiche (Torino, Einaudi, 1967). J Clifford and G Marcus, Writing Culture: Poetics and Politics of Ethnography (University of California Press, 1986). 3 N Bobbio, L’età dei diritti (Torino, Einaudi, 1990). 2

School Communities and Children’s Rights 195 the processes of change or of resistance currently ongoing and enacted by different groups and communities; they must be able to focus on detailed analyses regarding the new configuration of social networks and identities, capable of interpreting the imaginaries and representations that traverse contemporary contexts, including those enacted by new human rights practices that obtain in specific situations like education. In other words, the starting point of any ethnographic reading entails, perhaps, leaving aside the ‘absolute foundations’ of human rights in order to address their political dimensions, ie the ways and forms in which specific communities think and implement concrete situations in order to guarantee fundamental rights. As Norberto Bobbio put it some years ago: the basic problem regarding human rights is, today, not so much to justify them as to protect them. This is not a philosophical problem, but a political one.4

And the argument for a necessary approach regarding the sociocultural situation of today stems from the political root of anthropology as the science of cultural differences. Secondly, an ethnographic reading of an experience of education in human rights in educational contexts demands that we focus on the forms of representation of the data collected in terms (as Matilde Callari Galli reminds us in Chapter 3) of a ‘construction together with the chosen cultural witnesses, giving expression to all the subjectivities it encounters’.5 An ethnography that gathers cultural narratives does not consist merely in a right to narrate on the part of different individuals and groups qua subjects of rights; it also enables work on the level of a right/duty to reinterpret the charters of rights in relation to the subjectivities and the interactions that enact them. The point is to narrate the rights, to provide them with local contents and practices, to reinvent the rights by giving expression to a process of specification of the rights: this is what qualifies, in particular, the multicultural contexts, where action in respect of the other and policies of recognition are closely linked. The multicultural educational contexts highlight the need for new practices of coexistence where the themes of dignity, liberty and equality in an ethnographic reading highlight the space of a process of crisis and resistance to the modalities expressed by Western thought and the enactment of forms through which they are newly shared and rewritten. These are cultural forms and models that must be attended to and studied ethnographically, that show how it is the very multicultural dimension that informs, on the one hand, the social space of what we called contemporariness and, on the other, constitutes the space of crisis but also the practices of resistance and cultural innovation of the paradigm of human rights. 4 5

Ibid p 16. See M Callari Galli, Chapter 3.

196 Giovanna Guerzoni and Daniela Soci Moreover, any ethnographic analysis, however ‘local’ it may be, belongs, in contemporariness, within processes that are necessarily transverse, global, characterised by instability and in different profiles from the cultural differences. To conduct an ethnographic reading of the practices of human rights in educational contexts involves situating these practices within the global and transverse processes defined by contemporary nomadism: on the one hand, the extensive actual mobility of individuals, goods and communities; on the other, the fact of being immersed in a complex and pervasive communicative space (mass media, television and new technologies applied to communication) that is of necessity mestizo and, at the same time, marked by the ostentation and consumption of cultural difference.6 Practices and narrations on human rights are enacted by subjects and communities immersed in this nomadism, at once real and virtual, that are peculiar to our contemporariness. The centrality of the multicultural space is projected on the theme of human rights, causing a crisis in its underpinning dimensions. The perceptions of violations of human rights, or what is considered relative to the sense of dignity, or the sense of justice, or the practices of liberty, are conceived and enacted in a context of ongoing confrontation between different ‘points of view’, whose cultural distance, however, appears redefined by living, for example, in an identical communicative space, new urban settings, new forms of work and of relation with time, communitary space and processes of identity construction.7 Narrating rights in multicultural contexts means narrating space continually negotiated between ourselves and others, a space that is, in reality, deeply compromised by the structural violence of more wide-ranging social and cultural processes. Thirdly, the ethnographic approach postulates the centrality of the dimension of experience; human rights become ‘thinkable’ (ie, they are configured as cultural representations that mediate in interpreting and acting on reality)8 since they are conceived and enacted in the space of specific interactions. Making an experience of human rights consists in connecting those rights with specific relational dimensions, so that in educational contexts the cognitive dimension of human rights appears inseparable from their being enacted in the space of experience, within histories characterised by the interface between individuals, historic communities and different identities. To speak of human rights thus means assigning a crucial dimension to the

6 M Callari Galli, Antropologia per insegnare (Milano, Bruno Mondadori, 2000); M Callari Galli, Nomadismi Contemporanei (Rimini, Guaraldi, 2003); M Callari Galli, Antropologia senza confini (Palermo, Sellerio, 2005); M Augé, Storie del presente (Milano, il Saggiatore, 1997); Z Bauman, La società dell’incertezza (Bologna, il Mulino, 1999); U Beck, La società cosmopolita (Bologna, il Mulino, 2003). 7 M Callari Galli, Nomadismi Contemporanei (Rimini, Guaraldi, 2003). 8 W Doise, La forza delle idee (Bologna, il Mulino, 2002).

School Communities and Children’s Rights 197 level of relations and the historicity of each relation. So, the ethnographic approach to ‘making an experience’ of human rights in the educational context involves experiencing a systemic process that implies the ongoing negotiation of meanings and practices (in a multicultural sense) of human rights. Such negotiation is based on the co-construction of shared practices and representations in which a legitimate place is taken by different points of view, deeply critical attitudes, spaces of resistance and contradiction, fractures, crises. Add to this the assumption of a divergent thinking, among whose characteristics of a shared dimension are the relationality and sense of process in constructing together, but also the acceptance of crisis, instability, conflict as dimensions of the dialogue—a space that is, indeed, ‘fusion of horizons’9 without negating self and other-than-self: in this sense, a manyvoiced ethnographic account, that seeks new forms of recounting itself which are, of necessity, partial and plural, but are no less authentic: It is not a matter of finding the absolute foundation—sublime but hopeless task—but, from one time to another, the various possible foundations. Otherwise, also this quest for possible foundations … will have no historical importance unless accompanied by the study of the conditions, the means and the situations in which one right or another can be realized. Such study is the task of the historical and social sciences.10

We are in debt to Melville Herskovits for having so lucidly (and unmindful of the pitfalls of a radical thinking) posed the dilemma between universalism and relativism of human rights in a global context. In such a context, education appears as one of the ‘territories’ and ‘laboratories’ of confrontation between the need to guarantee universal rights, including the right to education, and respect for the differences in, and the ways historically and culturally associated with, interpreting the values promoted at universalistic level: a right to education which (in the Convention on the Rights of the Child 1989) includes the right to difference only if comprised in the right to recognise cultural plurality.11 The Convention looks at actions and assessments of contexts from the viewpoint of the superior interests of minors and emphasises the universal plan of human rights and how it is inextricably linked with the specific conditions of children. Regarding the translation of the charters’ rights in the educational context, the Convention has also attempted to reinterpret the relationship between the specifics of that which is in a different cultural context. In the Research-Action Project-experience, only an awareness of tensions in the relationship between local and global are presented in specific context, such as the multicultural society as well as contemporary

9 10 11

M Callari Galli, Antropologia senza confini (Palermo, Sellerio, 2005). Bobbio, n 3 above. G Harrison, I fondamenti antropologici dei diritti umani (Roma, Meltemi, 2001).

198 Giovanna Guerzoni and Daniela Soci Italian society. This perspective, which also involved the plan for children’s rights in the contemporary world, proposes the implementation of rights in specific contexts. RESEARCH-ACTION PROJECT ‘ADOPT A RIGHT’, EMILIA-ROMAGNA, ITALY (2002–06)

The Research-Action Project ‘Adopt a Right’12 is a national project promoted by the Ministry of Education and Scientific Research, coordinated, at local level, by the Regional School Direction13 and involving the participation of an inter-institutional group made up from the Department of Educational Sciences of the University of Bologna, the Emilia-Romagna Region, the IRRE, CDLei (Municipality of Bologna), and Memo (Municipality of Modena). The Project has involved more than 100 schools of all kinds and levels (from infant school to upper secondary) of the Emilia-Romagna region organised in four territorial groups (Bologna-Ferrara; Modena; Parma-Piacenza; Forlì-Cesena-Rimini). The Project has alternated common activities at regional level with annual activities divided into several encounters managed independently by the individual territorial groups. At the initial stage, the Project consisted of two types of activity integrated with one another: a training activity aimed at teachers (focusing on the research-action method, and on the topic of human rights in contemporariness, especially in relation to education for human rights, children’s rights and the ethnography of human rights in educational contexts) and an elaboration-experimentation activity, supervised by scientific coordinators, involving classroom activities on human rights. In the second stage of the Project, the groups conducted ongoing discussions on the activities performed, on the forms of education for human rights in educational contexts, on the ways for documenting the paths and projects that had been implemented of education for human rights, and on the documentation both of the path followed and on that of the research: training (training the trainers as well as training within their own classes), and the processes of implementation of human rights in the educational contexts (ethnography of human rights in educational contexts). At the operative level, the Project aims inter alia: to promote a greater knowledge of children’s rights in the educational world, implementing training of teachers and opportunities for events for pupils; also, to stimulate the elaboration/experimentation of teaching packages, experiences and projects of education for human rights, for educational contexts and

12

At ss 2002–06. Coordination of the Research-Action Project ‘Adopt a Right’, Rosanna Facchini (Regional School Direction, MIUR); coordination of the course, Elviana Amati. 13

School Communities and Children’s Rights 199 specific socio-cultural situations, on the objectives and themes central to the character of rights carried out by the teachers taking part in the project and by their classes; and to organise ‘supervision’ and ongoing reflection on the ways and practices of education for human rights in educational contexts, ensuring a close relation between theoretical space, educational and teaching projects and ethnographic analysis (itself an affirmation of a culture of human rights); lastly, to promote the experimentation of new qualitative forms of documentation of the experiences of education for human rights performed in the classes taking part in the project. Five per cent of children in Italy are ‘foreign’ (2005/2006, see Ministry of Public Education, 2006); in Emilia Romagna, the figure is 8.4 per cent (2004/2005, Region Emilia Romagna, 2006). Obviously, the local dimensions of the phenomenon are extremely important: it is the distribution of foreign children that makes each context different from all the rest. There are classrooms in which there are just a few foreign pupils, while in others they may make up 70 per cent or 80 per cent of the overall class composition. Moreover, it is necessary to consider the presence of foreign children in Italian schools within the more general process of stabilisation of migrant communities that has been taking place over recent years; the statistical data show in fact a meaningful increase in family reunification.14 In the classes involved in the Project (2002–06), the quantitative presence of foreign children is taken into consideration from school to school. Overall, it can be stated, hypothetically, that foreign pupils comprise about 6 per cent of the total number of pupils in schools. Similarly, it is important to emphasise that the Project aims to depict the multicultural dimension as a comprehensive process that concerns both the present and the future of the young generation, and not merely as a simple project target.

A SCHOOL OF RIGHTS: POTENTIALS AND CONTRADICTIONS IN EDUCATING FOR HUMAN RIGHTS IN THE EDUCATIONAL CONTEXT

It is not possible to narrate the experience of ‘Adopt a Right’ without somehow referring to the more general context in which Italian education finds itself in recent years: lack of space forbids a sufficient analysis of the situation here, but it has certainly influenced the Project. In recent times, Italian education has been undergoing a long phase of sociocultural transition, an upheaval, involving deep transformations in a social and cultural sense for pupils and their families, as shown by the presence of migrant pupils in the classroom. This is the case at all levels of education 14 Ministry of Public Education, Region Emilia Romagna, University of Bologna, CDLei Municipality of Bologna, Project ‘Adopt a Right’ (2002–2006). Also available on the web site: www.regione.emilia-romagna.it.

200 Giovanna Guerzoni and Daniela Soci (whereas the first migrant phase was characterised by the presence of foreign pupils mostly in primary schools, the presence of unaccompanied pupils, etc). Added to this is the increasing emergence of forms of illiteracy and social and psychosocial malaise among children and adolescents, the many cases of violence inside schools, plus the gradual process of isolation, reported by some as forms of ‘segregation’ at the intergenerational level, and more generally at the social level. Also to be noted are the difficulties experienced by parents who attempt to combine work and family commitments in a context in which jobs are becoming more and more precarious. This coincides with a long stage of reform of the Italian education system, which has been opposed here and there in political and social debate and in popular protest; and it has been accompanied by cuts in funding for public education, ‘freezing’ of full-time schools, and a thorough revision of the working methods of teaching staff. The reports of the teachers who have taken part in the ‘Adopt a Right’ Project underline perplexity, uncertainty and preoccupation in a process that, in many ways, is felt as undermining the experiences gained by the militant school. Schools have to face new challenges presented by the recognition of children’s rights. The starting point of the Project experience was the need to propose approaches to the knowledge of human rights felt by the teachers participating in the Project. However, the intrinsic limits of a kind of teaching which exclusively concerns the cognitive aspect of transmission of knowledge were emphasised.15 The awareness of human rights becomes complex knowledge: not so much, or not only, because of the rights defined by the conventions but especially because it is a recognition of one’s own rights; it is a handing over of the instruments which allow reality to be interpreted and which are able to assess whether rights proclaimed on paper are upheld in fact. It also means to affirm the emergence of new needs. Anthropological studies, focusing on processes of enculturation, have brought to light links between formal and informal aspects and between the dimension of the explicit and the dimension of the implicit, hidden in the transmission of knowledge. In the same way, educational practices are triggered by symbolic representations and universes where different models of generational relationships are expressed. The adult encourages certain kinds of behaviour but at the same time sets significant limits which transform the child by defining his/her identity and belonging. It is self-evident that speaking of children’s rights and education means taking up different challenges and tasks. The teachers taking part in the

15 AM Gianotti, ‘Alcune riflessioni’ in M Callari Galli, G Guerzoni, B Riccio, (eds) Culture e conflitto (Rimini, Guaraldi, 2005) 167–72.

School Communities and Children’s Rights 201 Project, who had begun courses regarding rights in the last few years, seemed to be quite aware of this. The human rights awareness project, as seen in the school experiences related by Project participants, must be put into practice in educational contexts; if it is not, it will be rapidly forgotten. Rather than schools that just talk and divulge information about human and children’s rights, there should be schools where these rights are enshrined, schools that agree to change their own ways and methods and be transformed in the light of the new dimensions of identity and subjective interchange proposed by the European Convention on Human Rights; schools which rethink their own way of dealing with the relation between local and global and which follow it by welcoming the presence of children from different cultural, religious and ethnic backgrounds. The themes chosen by the teachers participating in the Project were: the right/duty of living together in a civil society; the right to grow up (interpreted as the analysis of a violation: the exploitation of children in the workplace worldwide); the right to health; the right to be respected for one’s own cultural identity/the duty to acknowledge the right of others to cultural diversity. All these themes bear witness to an interest in human rights originating in issues arising in schools regarding intercultural relationships. Thus, the schools taking part in the Project have worked on themes including (to name but a few): ‘Equality in diversity’, ‘Identity, culture and children’s rights’, ‘Being equal in diversity’. The variety of paths, projects and actions worked out in the teaching practices by the teachers within the Research-Action Project shows the dual purpose of educating in human rights, on the one hand, and, on the other, of rethinking the school settings as educational spaces for the diffusion and the enculturation of human rights, thus of operating through ‘communities of practice’ prompted by human rights. One example involves the pupils of a lower secondary school who have developed an autonomous reflection about human rights (namely the right to freedom, to love and to peace) through the organisation and the production of a theatrical performance.16 In the account of this experience by the pupils, new perspectives and a new awareness about the rights taken into consideration can be clearly observed—‘love is stronger than hate and disparities’—together with a deeper meditation about the ‘self’, about the own way of relating to differences, about the processes of negotiation and rethinking of the ‘other’, which emerged in the everyday common work: At the beginning we hated one another, but later, by going to the drama workshop, we have learnt to know one another. 16 The school mentioned is Villa Clelia lower-secondary school, in the Imola district, Province of Bologna. The teacher involved is Maria Di Ciaula who carried out a project on ‘The Right to Love’ through a drama workshop, 2005–06.

202 Giovanna Guerzoni and Daniela Soci This case (in many ways paradigmatic of the progress of other experiences within ‘Adopt a Right’) suggests that sharing a common objective and constituting a ‘community of practice’ contribute to develop the awareness of human rights and of the values and human relationships related to them; this sort of empowerment process involves not only the cognitive level but rather the interacting body, and could be consolidated as a kind of habitus.17 In structuring spaces, times, teaching strategies and educational paths, with the aim of overcoming a unity/difference antithesis, the schools become genuine ‘laboratories’ for human rights. And the activities involved, which once sought to bring out the diversity by emphasising the particularity of every pupil, now aim to highlight the aspects of equality and cultural communality. The identity/difference relation goes to the very heart of what is the crucial question for educational institutions of training of identity. If school is to train individuals so that they become competent to participate in social life, it is evident that where the social dimension appears to expand to the point where it comprises the entire world system, the perspectives and goals of education need to be reformulated. The presence of foreign children in the classroom enhances those themes which are at the centre of children’s and adolescents’ interests as they become more and more detached from their land of origin, more ‘global’. The teachers are impelled to find a way both of interpreting this reality made up of differences and of negotiating between the different needs of adults and children, boys and girls, children with different histories and backgrounds. The children’s rights education procedures on which the Project has concentrated have emphasised the importance of a different teaching approach where the teacher is more in tune with the emotional dimension of the class. The teacher is a mediator between the different cultures and histories that make up the class and becomes interpreter of and witness to those rights and even of the contradictions between them (between a context’s universal and specific level, between demands for rights and their violation, etc). This work with teachers has provided us with, first and foremost, a reflection on the profession itself as well as on the teaching model. The Project takes into consideration the various ways educational contexts can be observed regarding the issue of human rights. Observing the outcomes of educational approaches to human rights or observing how much an educational context responds to children’s rights, includes the teacher as part of a process in which the adoption of children’s rights practices involves and modifies the meaning of the teaching profession, as well as the rights and duties of the teacher. If learning takes place within a ‘community of

17

P Bourdieu, Per una teoria della pratica (Milano, Cortina, 2003).

School Communities and Children’s Rights 203 practice’18 through mechanisms such as mimesis, repetition, routine, the assumption of roles, then learning is the result of processes of social intermediation and coordination. This is true at both cognitive and social levels, but also at the emotional level.19 In this sense, learning coincides with participation in a community understood as ‘shared space’ and with respect to which different subjects participate in a differentiated way: One learns not because one wants to or has to learn certain contents, but as the result of the effort to belong to a community, to become a competent member of it, socialised with its values.20

In human rights education this means becoming competent members of a community that places human rights at the centre of its values and actions. This is why human rights lead to rethinking the organisation and structure of school. Lastly, as far as teaching methods are concerned, considerations have been made and materials have been elaborated which have accentuated the ‘transversal’ dimension: no longer a lesson on human rights education but a rewriting of the syllabus in the light of human rights. This transversality should also link together different schools at different levels or the institutional dimension with non-scholastic dimensions present in an area. In the Convention on the Rights of the Child and also the experience of education for human rights present in the Project, we have a model of education by encounters and confrontations: a new model of teaching/learning that, in recognising otherness, considers it to be on an equal level with the ‘other’ child: a child whose identity is the outcome of enculturation, of a multiple identity, able to valorise his/her own origins and own cultural context and to be vigilant when faced with the prejudices and stereotypes that surround every human group; a child who, as it were, ‘squints’, being able to root him or herself in a specific culture as well as able to live the dislocation and confrontation with the ‘others’ in a multicultural society; a child enjoying a ‘learning aimed at a future as a universal man, inhabiting the planet of multiplicity’.21 The experience of ‘Adopt a Right’ highlights the central importance of reflecting on the concept and practice of citizenship; for citizenship is not a ‘blind culture’, not a natural condition that binds the individual to the state, but has strong connotations of a cultural kind.22 Therefore it cannot

18 E Wenger, Communities of Practice: Learning, Meaning, and Identity (Cambridge, Cambridge University Press, 1998); C Grasseni and F Ronzon, Pratiche e cognizione (Roma, Meltemi, 2004). 19 P Dumouchel 1996. 20 Grasseni and Ronzon, Ibid p 64. 21 Harrison, n 11 above. 22 NM Craith, ‘Culture and Citizenship in Europe: Questions for Anthropologists’ (2004) 12 Social Anthropology 289.

204 Giovanna Guerzoni and Daniela Soci be assumed to be merely a formal condition that regulates the set of rights and duties of the individual but is, rather, something rooted in the daily life of persons and their relations through ‘a set of practices’. In the close relation between individual and community, the ways of participation and resistance to participation in its ‘traditional’ forms enacted by the new subjects of rights (children, young persons, migrants, etc) make it compulsory to rethink the relation between citizenship and cultural rights.23 Kymlicka’s hypothesis of a model of ‘multicultural citizenship’24 linking the affirmation of universal human rights regardless of the group of membership with the specificity of rights differentiated according to group, opens the way to a consideration that in the educational contexts could be negotiated with the need to identify a common and shared space for dialogue. Faced with idea of the education on human rights which we can define as ‘idealised’ human rights, the teachers participating in the ResearchAction Project propose a model of education on human rights defined by the specifics of real situations in which teacher and students are working. In situations where it is necessary to reach decision-making positions (facing problems of migration, multiculturalism, etc), human rights provide a scheme of reference which facilitates the negotiation of different individual or collective needs in sociocultural contexts. The ‘passion’ for human rights has its origins in concrete situations where the dignity and fate of every human being are at stake. SELECT BIBLIOGRAPHY An-Na’im, Abdullahi, A, Human Rights in Cross-cultural Perspectives: a Quest for Consensus (Philadelphia, University of Pennsylvania Press, 1992) Appadurai, A, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis, University of Minnesota Press, 1996) Archibugi, D and Beetham, D, Diritti umani e Democrazia cosmopolita (Milano, Feltrinelli, 1998) Augé, M, Storie del presente (Milano, il Saggiatore, 1997) Bauman, Z, La società dell’incertezza (Bologna, il Mulino, 1999) Beck, U, La società cosmopolita (Bologna, il Mulino, 2003) Bennet, JH, ‘Science and Human Rights: Reason and Action’ (1949) 51 American Anthropologist 329 Berthoud, G, Vers une anthropologie générale: modernité et alterité (Genéve, Droz, 1992) Bobbio, N, L’età dei diritti (Torino, Einaudi, 1990) Bourdieu, P, Per una teoria della pratica, Milano, Cortina (2003) Callari Galli, M, ‘Rubrica su I Diritti Umani’ (1995–98) Pluriverso

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A Touraine, Pourrons-nous vivre ensemble? Égaux et différents (Paris, Fayard, 1997). W Kymlicka, La cittadinanza multiculturale (Bologna, il Mulino, 2003).

School Communities and Children’s Rights 205 ——, ‘Diritti umani e antropologia della contemporaneità’ (1999) 3 Focus su I diritti dimenticati (Pluriverso) 55–9 ——, Antropologia per insegnare (Milano, Bruno Mondadori, 2000) ——, Nomadismi Contemporanei (Rimini, Guaraldi, 2003) ——, (ed), La tv dei bambini, i bambini della tv (Bologna, BUP, 2004) ——, Antropologia senza confini (Palermo, Sellerio, 2005) Callari Galli, M, Ceruti, M and Pievani, T, Pensare la diversità (Roma, Meltemi, 1998) Callari Galli, M and Guerzoni, G, (eds), ‘I diritti dimenticati’ (1999) 3 Focus (Pluriverso) 52–91 Callari Galli M, Guerzoni, G and Riccio, B (eds), Culture e conflitto (Rimini, Guaraldi, 2005) Callari Galli, M and Harrison, G (eds), Se i bambini stanno a guardare (Bologna, Clueb, 1999) Cassese, A, I diritti umani nel mondo contemporaneo (Roma-Bari, Laterza, 1994) Clifford, J and Marcus, G, Writing Culture: Poetics and Politics of Ethnography (University of California Press, 1986) Craith, NM, ‘Culture and Citizenship in Europe: Questions for Anthropologists’ (2004) 12 Social Anthropology 289 Delmas-Marty, M, Le flou du droit. Du code pénal aux droits de l’homme (Paris, PUF, 1989) ——, Vers un droit commun de l’humanité (Paris, Textuel, 1996) Doise, W, ‘Human Rights Studied as Transcultural Normative Social Representations’ (1999) 29 European Journal of Social Psychology 1 ——, La forza delle idee (Bologna, il Mulino, 2002) Donnaruma, A (ed), Educazione alla comprensione dei diritti umani nella società contemporanea (Roma, Quaderni PRODOCS, 1988) Drerup, A (ed), Il tempo dei diritti: piccolo ideario per l’educazione ai diritti umani (San Domenico Fiesole, ECP, 1996) Emiliani, F and Molinari, L, ‘I diritti dei bambini’ (1999) 155 Psicologia Contemporanea 41 Gianotti, AM, ‘Alcune riflessioni’ in Callari Galli, Guerzoni G, Riccio B, (eds) Culture e conflitto (Rimini, Guaraldi, 2005) 167–72 Giliberti, G, Diritti umani: un percorso storico (Bologna, Thema, 1990) Grasseni, C and Ronzon, F, Pratiche e cognizione (Roma, Meltemi, 2004) Guerzoni, G, ‘Cittadini apolidi. I diritti nell’era dei mondi interdipendenti’ in Callari Galli M and Guerzoni G (eds) 3 Focus su I diritti dimenticati (Pluriverso, 1999) 60–62 ——, ‘Educare ai diritti umani nella societá contemporanea: una lettura antropologica’ in R Facchini (ed), Cittadinanza attiva e diritti umani (Napoli, Tecnodid, 2006) Harrison, G, I fondamenti antropologici dei diritti umani (Roma, Meltemi, 2001) Herskovits, M, ‘Statement on Human Rights’ (1947) 49 American Anthropologist 539 Kymlicka, W, La cittadinanza multiculturale (Bologna, Il Mulino, 2003) Levi-Strauss, C, Razza e Storia e altri studi di antropologia (P Caruso (ed), Torino, Einaudi, 1967) ——, Lo sguardo da lontano (Torino, Einaudi, 1984) Messer, E, ‘Anthropology and Human Rights’ (1993) 22 Annual Review of Anthropology 221

206 Giovanna Guerzoni and Daniela Soci Ministry of Public Education, Region Emilia Romagna, University of Bologna, CDLei Municipality of Bologna, Project ‘Adopt a Right’ (2002–2006) Neveu C, Rapport, N, Ouroussof, A, Toren, C and Craith, MN, ‘Discussion: Anthropology and Citizenship’ ( 2005) 13 Social Anthropology 199 ONU, Droits de l’homme. Recueil d’instruments internationaux (Organisations des Nations Unies pour l’Education, la Science et la Culture, Paris, 1988) Preis, AB, ‘Human Rights as Cultural Practice: an Anthropological Critique’ (1996) 18 Human Rights Quarterly 286 Santiemma, A (ed), Diritti umani: riflessioni e prospettive antropologiche (Roma, Euroma, 1998) Shute, S and Hurley, S (eds), On Human Rights (BasicBooks Harper Collins Pub, 1993) Soci, D, ‘I diritti umani nei contesti educativi’ in R Facchini (ed), Cittadinanza attiva e diritti umani (Napoli Tecnodid, 2006) Staerklé, C, Clémence, A and Doise, W, ‘Representation of Human Rights across Different National Contexts: the Role of Democratic and Non-democratic Populations and Governments’ (1998) 28 European Journal of Social Psychology 207 Tentori, T, ‘Contributi antropologici allo studio dei diritti dell’uomo: considerazioni e ricerche’ (1993) 31 Paradigmi 221 Touraine, A, ‘Post’ (1991) 12 FOR—Rivista AIF per la formazione 6 ——, Pourrons-nous vivre ensemble? Egaux et différents (Paris, Fayard, 1997) Turner, T and Nagengast, C (eds), ‘Universal Human Rights versus Cultural Relativity’ (1997) 53 Journal Anthropological Research 3 Washburn, WE, ‘Cultural Relativism, Human Rights and the AAA’ (1987) 89 American Anthropologist 939 Wenger, E, Communities of Practice: Learning, Meaning, and Identity (Cambridge, Cambridge University Press, 1998) Weil, S, L’enraciment. Prélude à une déclaration des devoirs envers l’être humain (Paris, Éditions Gallimard, 1949) Wilson, R (ed), Human Rights, Culture and Context: Anthropological Perspectives (London, Pluto Press, 1996) Wittgenstein, L, Ricerche filosofiche (Torino, Einaudi, 1967) Zagrebelsky, G, Il diritto mite. Leggi diritti giustizia (Torino, Einaudi, 1993)

10 Citizenship: Anthropological Approaches to Migration and Social Exclusion BRUNO RICCIO AND GIUSEPPE SCANDURRA

INTRODUCTION

T

his chapter focuses on the connections between the transformation of citizenship, the diversification of poverty and the development of transnational ways of migrating. As a result of the emergence of new poverties, the methods of impoverishment are characterised by a deep individualisation, so that it is possible to observe different life situations, forms of privation that go beyond ordinary economic deprivation. Furthermore, new methods of migrating and of managing difference within multicultural configurations have led some scholars to speculate on new paths for claiming and granting rights. However, human rights discourses tend to reify the complex and ambivalent social and cultural processes through which rights are negotiated, realised or denied within specific contexts. In some cases there is a noticeable gap between the provision and the realisation of rights, which is often affected by negotiation between individuals and groups. Such negotiation is influenced in many ways by the representation (symbolic as well as political) of social and migrant minorities. We shall stress the importance of disaggregating both migrant as well as poor ‘communities’. Poor persons do not constitute a homogenous group and migrant groups are characterised by multiple and differing biographical and social trajectories. Taking into account the experiences of social practitioners implementing policies towards migrants, and the case of the street lawyers providing legal support to the homeless in Bologna, we shall discuss the problem of essentialism and sedentarism informing many institutional practices and the implementation of rights. For instance, these rights are often denied to people who live in conditions of extreme precariousness because they do not hold a certificate of residence. By considering citizenship as a problematic process in specific contexts, we seek to explore how anthropological and ethnographic approaches can contribute to the

208 Bruno Riccio and Giuseppe Scandurra analysis of the realisation of human and citizenship rights in our contemporary societies. CITIZENSHIP: A CONCEPT IN NEED OF CONTEXTUALISATION

Marshall defined citizenship as a ‘status bestowed on those who are full members of the community’1 which includes civil, political and social rights and obligations. Analytically, citizenship may be discussed as a multi-tier construct, which applies to people’s membership in a variety of collectivities: local, ethnic, national and transnational.2 The community to which Marshall implicitly referred was, unproblematically, the ‘nation’, conceived as a homogeneous cultural entity. Various anthropologists argue instead that a central question in current debates about citizenship is the extent to which ‘difference’ discriminates between citizens; whether, rather than citizens being bearers of equal rights, their ability to exercise their rights in full is affected by discrepancies in positioning of gender, culture, ethnicity, and so forth. Citizenship is often mediated by a person’s multiple and intersecting identities and political subjects may be involved in more than one political community. In the light of this, some scholars stress the need to recognise the legitimacy of publicly articulated differences and insist that citizenship is always dialogical. Even among liberal democracies, there is no shared, fixed, once-and-for-all model of citizenship. On the contrary, citizenship differs between countries and is historically contingent: a negotiated and often contested order. Paradoxically, perhaps, it is marginal groups or non-citizens, those excluded from active participation in the political community, which have the most impact on citizenship as a historically evolving imaginary. For instance, migrant minorities have affected the shape and trajectories of citizenship in Western democracies.3 But if citizenship is to be redefined, non-citizens must first move into the public sphere. Indeed, they may often have to redefine the public sphere and its limits. Hence, struggles over citizenship are often struggles over the very meaning of politics and membership in the community. The contingent and emergent dimensions of citizenship are nowhere more evident than in Europe’s cities, which attract the most recent and most vulnerable citizens and non-citizens: the ethnic minorities who are portrayed by the media as anonymous migrants and refugees. Such misrepresentation can have a seriously detrimental impact 1 TH Marshall, Citizenship and Social Class (Cambridge, Cambridge University Press, 1950), p 14. 2 Yuval-Davis ‘Women, Citizenship and Difference’ Feminist Review (1997) 57: 5 quoted in P Werbner et al, New Migrants in European Gateway Cities (unpublished, 2006). 3 RD Grillo, Pluralism and the Politics of Difference (Oxford, Oxford University Press, 1997).

Anthropological Approaches to Migration and Social Exclusion 209 on the ability of citizens to exercise their rights.4 What is entirely forgotten in this debate is that today’s refugees or undocumented migrants may become tomorrow’s upright citizens. New minorities will become citizens or permanent residents, entitled to vote and put forward electoral candidates. Nevertheless, policy continues to be dictated almost exclusively by notions of migrants as ‘problems’ and by top-down attempts to define multicultural citizenship. But this in itself does not alleviate problems of residential segregation in deprived neighbourhoods, which sometimes lead to extreme cultural alienation. Although, as Soysal5 has argued, there is some evidence that human rights legislation protects non-citizens in ‘post-national’ states, this is no longer straightforwardly the case as governments attempt to exclude disguised economic migrants and admit short-stay migrants. The result has been that some incomers have almost no rights and there is a vast shadow world of undocumented migrants with even fewer rights. The increasing complexity of categories of political status and the associated rights of persons now resident in Europe, from full citizens to permanent residents who are denizens, short-term contract workers to ‘temporary’ refugees, asylum seekers and undocumented migrants, is currently testing the limits of citizenship. This range of forms of political memberships is, in a way, less evident in migrants’ daily lives which are characterised by a range of informal work opportunities. Moreover, virtually all of these new residents, whether or not they are full citizens, still have a foot in another country and commitments to a different culture and to family back home.6 Today’s itinerant global movers are ‘flexible citizens’, and often carry multiple passports.7 As we will see, personnel in charge of the implementation of rights often wonder how this impacts on migrants’ sense of belonging and their ‘loyalty’ to their newly adopted nation-state and city within which they settle. One key to the theoretical assumptions grounding research on migration and multiculturalism is that critical mass makes a difference; that the concentration of members of an ethnic group from one place of origin in large numbers in particular cities creates a nucleus around which networks and social capital can be built. At the same time, they also interact with other ethnic groups in neighbourhoods and places of worship, forming wider, multi-ethnic communities. Civil society, and indeed citizenship, are grounded in such internal and external interactions. The fact that citizenship does 4

R King and N Wood (eds), Media and Migration (London, Routledge, 2001). YN Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago, University of Chicago Press, 1994). 6 B Riccio, ‘From “Ethnic Group” to “Transnational Community”? Senegalese Migrants’ Ambivalent Experiences and Multiple Trajectories’ (2001) 27 Journal of Ethnic and Migration Studies 583–99. 7 A Ong, Flexible Citizenship: the Cultural Logics of Transnationality (Durham, Duke University Press, 1999). 5

210 Bruno Riccio and Giuseppe Scandurra not involve a fixed set of rights and responsibilities is particularly clear at present. MP Smith has recently argued for the need to adopt an ethnographic approach ‘from below’ if we are to make sense of the new transnational urbanism. He argues that a bird’s eye view is inadequate, denying agency and tending to rely entirely on ‘global narratives of epochal transformation’.8 Ethnography is particularly important for exploring the everyday political participation and social negotiation not only of citizens but of non-citizens. We need to investigate how such complex legal categorisations of citizenship and non-citizenship rights affect different social and ethnic minorities and their capacity for civic action. Not too dissimilar reflections characterise the understanding of social exclusion and poverty, another kind of non-citizenship. Any analysis of social exclusion (since we are dealing with citizens not recognised as such, especially those with no fixed residence, and immigrants living in our country, in the context of a debate on citizenship and human rights) must address specific problems relating to the politics of representation. In effect, the researcher studying these situations must consider to what extent the analyses may be used as stereotyped representations of vagabonds or, more generally, as negative descriptions of poor persons. This is why, as ethnographers, we prefer not to employ the sort of interiorising narratives that dominate the majority of the literature on poverty in Italy and elsewhere, while playing down the suffering such persons face daily in their struggle to survive. But there is a more general problem: historically, anthropologists have avoided directly addressing sensitive questions such as violence against the person, alienation, social exclusion and self-destruction. The logic of participant observation requires researchers to be physically present and personally involved, which often leads to the negative dynamics being concealed, since we need to have an empathetic relation with the persons we study: for it is easier to win the trust of the individuals of whom we write when fairly harmless problems are addressed.9 In addition, encouraging empathetic readings of the cultures or persons one studies stems from the fundamental anthropological imperative of cultural relativism, according to which, in the view of Bourgois, cultures are never either good or bad, but merely possess their own inner logic.10 This precept involving hygienising vulnerability is especially strong just now in Italy, where common sense is by now defined by the theories of individual action based on the responsibility of the victim.

8

MP Smith, Transnational Urbanism: Locating Globalization (Oxford, Blackwell, 2001)

p 24. 9 10

P Bourgois, In cerca di rispetto (Roma, Derive Aprodi, 2005). Ibid.

Anthropological Approaches to Migration and Social Exclusion 211 In this arena, we can identify two typologies of analysis that may turn out to be dangerous within the social science context: on the one hand, research that criminalises the victims, making them solely responsible for their ‘career’ within a system of political discourse where the debate on poverty tends increasingly to be polarised around the topics of ethnic membership and individual value; and studies which emphasise the importance of ‘structures’, ie conceiving the social actors as victims pure and simple, which, by omitting their practices, prevents the reader from understanding how particular mechanisms of social exclusion are generated. Anthropology may be of use, in this context, precisely to highlight the ‘ideological’ content of such discourse and the lack of analytical complexity. For, if the theory of the ‘culture of poverty’ neglects the influence exercised on individual biographies by history, culture and political-economic structures, political-economic analysis cannot be a panacea for compensating for individualistic, racist or moralising interpretations of social marginalisation: emphasis on structure frequently glosses over the fact that human beings are agents of their own history, not its passive victims.11 DISAGGREGATING COMMUNITIES

Numerous scholars argue that nowadays migrants sustain multistranded social relations that link their societies of origin and settlement, and emphasise the emergence of a social process in which migrants ‘establish social fields that cross geographic, cultural, and political borders’.12 However, we would like to emphasise the importance of disaggregating the so-called ‘migrant community’ and to urge the importance of recognising and analysing the internal tensions characterising these communities and the plurality of trajectories emerging from their transnational spaces. For instance, Riccio has shown the variability of social networks used by migrants according to different situations and has argued that transnationalism constitutes a field of contrasting and complex effects.13 This is not a system of reified transnational networks but, rather, a dynamic process of constant networking which encompasses a wide range of different and situationally varied practices within transnational spaces. For instance, Senegalese transnational migrants do not constitute a homogeneous and monolithic entity. One may distinguish, on the one hand, those who tend to enter the formal labour market with some success, but also encounter exploitation and interact with the institutions of the 11

Ibid. N Glick Schiller, L Bsch and C Szanton-Blanc (eds), Towards a Transnational Perspective on Migration (New York, New York Academy of Science, 1992); M Callari Galli (ed), Nomadismi contemporanei (Rimini, Guaraldi, 2003). 13 Riccio, n 6 above. 12

212 Bruno Riccio and Giuseppe Scandurra receiving context a great deal, not being afraid to let themselves be known. They try to organise a non-religious form of sociopolitical representation relating to the logic of the Italian associational structure, and shape their own personal networks as well as relying on the communitary networks. On the other hand, there is a majority who may also enter the labour market but tend to prefer trade, identifying the religious circles as the most fulfilling organisational form. These transnationals follow an inward-looking life strategy and tend to avoid contact with Italians; they benefit instead, spiritually as well as materially, from life within a transnational social field.14 Poor and socially excluded groups also need to be disaggregated. It is now generally accepted that the ‘poor’ no longer constitute a social class or homogeneous group but, rather, a mass of undefined contours having no self-representation and often not recognised by the system upon which they nonetheless depend.15 The people we call vagabonds, for example, account for a very small part of the heterogeneous group legally defined as having ‘no fixed abode’: hence the name ‘vagabond’ conveys a particular conception of the complex phenomenon of homelessness. Persons of no fixed abode are in a situation of dire need because, as well as having no home, they are without even a minimum income, they have broken with their family, and are often at risk of physical and mental deterioration. Vagabonds (proportionally in a minority) are distinguished within this group by their habit of collecting cardboard boxes and plastic bags often full of refuse.16 But what links these persons together? In anthropological terms, can one speak of a culture of poverty?17 The ethnographic work of Oscar Lewis, for example, hinges on the fact that the street life led by these persons represents a culture of resistance capable of elaborating a different perception of spatio-temporal reality. Hence it is not merely a form of passive, parasitic marginalisation, but should rather be viewed as a cultural mutation, since these people infringe the important value of our society that is economic production. A second type of mutation is physical: in the absence of a fixed abode, healthy management of one’s own body is not possible. Thus, the homeless also deviate from a series of hygienic and moral norms that regulate our culture.18 But it is the very concept of dwelling that changes in

14

Ibid. M Bergamaschi, Ambiente urbani e circuito della sopravvivenza (Milano, Franco Angeli, 1999). 16 F Bonadonna, Il nome del barbone: vite di strada e povertà estreme in Italia (Roma, Derive Approdi, 2001). 17 N Anderson, Il vagabondo. Sociologia dell’uomo senza fissa dimora (Roma, Donzelli, 1994); O Lewis, La cultura della povertà e altri saggi di antropologia (Bologna, Il Mulino, 1973); P Bourdieu, La misère du monde (Paris, Editions du seuil, 1993). 18 F Bonnadonna n 16 above. 15

Anthropological Approaches to Migration and Social Exclusion 213 the homeless. If having a fixed residence means, etymologically speaking, having habits, then being without a fixed residence also means assuming other habits: the street alters the perception of reality.19 At the same time, these persons in no way represent a homogeneous social group. In the Massimo Zaccarelli dormitory, where Scandurra performed a study over 15 months in order to analyse the practices of daily life of a group of inmates, all of those inmates continue to speak their dialect, contaminating it with that of their interlocutors.20 The Romans speak a little Salentino, the Campanians make an effort to use Calabrian words. The result is a southern language hard to understand. It is the idiom of the working-class districts of large cities like Naples, Palermo, Rome, Cagliari, Bari. Moreover, the anthropologist visiting those dormitories was surprised to find very young men and women. All of them have become parents before reaching majority age. At 20, many dormitory inmates have already travelled over half of Italy, have sampled almost everything in the way of drugs and alcohol, and have married, divorced and married again.21 Thus, while there is an increasing number of immigrant inmates, that of the 40-plus Italians who have lost their jobs grows exponentially. Yet, the strong presence of adults notwithstanding, as mentioned above there are large numbers of young persons hardly over the age of 20 who leave university and fail to find steady work. The presence of equal numbers of women as men is a new phenomenon, dating from the 1990s.22

THE HOMELESS IN BOLOGNA

Bologna has always contained a wealth of different groups: as a university city, a market for the townships surrounding it, a city of fairs and entertainments, a city of immigration. From the 1980s, however, each of these attributes appears to define individual groups rather than an ensemble amalgamated according to a shared common residence. Only somewhat recently have the various citizen groups accentuated their character of separate worlds. With the passing of time, many districts have become the hub of different groups and cultures: immigrants, students from outside of Bologna, persons of no fixed abode, commuting workers.23

19 F Remotti, Luoghi e corpi. Antropologia dello spazio, del tempo e del potere (Torino, Bollati Boringhieri, 1993). 20 G Scandurra, Tutti a casa. Il Caracci: etnografia dei senza fissa dimora a Bologna (Rimini, Guarladi, 2006). 21 Ibid. 22 A Roversi and C Bondi, ‘Senza fissa dimora a Bologna’ (2006) Quaderni. Città Sicure. 23 M Callari Galli, ‘Cittadinanze lacerate’ (2004) IV 7 Gomorra 15–32.

214 Bruno Riccio and Giuseppe Scandurra In this sense, we may see Bologna as containing several worlds that coexist without touching one another. The centre of the city has its own special character conferred by the arcades, not to be found in other city centres like the museified ones of Florence or Rome, where the poorest territories are often relegated to the outskirts. This aspect of Bologna renders the centre not socially homogeneous: whereas the old buildings are inhabited by common citizens, by a well-off bourgeoisie, Bologna’s arcades offer a kaleidoscope of diversity. Mendicants, homeless and immigrants stand or squat before the windows of the luxury shops, theatres and churches. In some sense, the arcades become their dwelling place, while the ‘original citizens’ pass by them, so that very different social worlds touch and coexist, even though the gaze of the inhabitants of one world does not contemplate the members of the other. The university area provides a classic setting for such coexistence. Bologna, then, encompasses a number of cities that scrutinise, touch and avoid each other, in profoundly different and asymmetric positions. Its ‘legitimate’ society, mostly composed of residents and lodgers, does not know the nomadic, ‘illegitimate’ society (workers in casual, non-guaranteed jobs, migrants, the homeless) but it continually adduces that other society, blaming it for the ongoing deterioration of the city, as a constantly impending threat.24 By no mere chance, the local elections in these last years have turned on questions of ‘legality’ and ‘security’. As from the 1990s, various citizens’ ‘anti-deterioration’ committees have sprung up and continue to appeal to the Mayor to protect them against these hordes of ‘aliens’ that generate malaise. Two decades on from their first appearance, the flows of migrants towards Italy can no longer, in effect, be considered as an exceptional phenomenon. The commune of Bologna houses some 30,000 regular immigrants (7.2 per cent of the population) who work, study and fulfil all their civic duties within the commune while lacking any political rights. These are genuine second-class citizens with no voice in the political and administrative decisions that condition their lives and professional activities. Some idea of their importance in Bologna’s economy can be gained by observing the numbers of them crowding into the buses and trains heading every morning for the outlying industrial districts, or by listening to the languages spoken on the building sites. Bologna’s historic centre has been revived, enriched with colour and trading activity thanks to the scores of small shops opened by Pakistanis, Indians, Bangladeshis and Latin Americans who provide the resident and student populations with services that would otherwise be unavailable.25 Women from Moldavia, Poland, Ukraine, Peru and the

24 A Dal Lago and E Quadrelli, La città e le ombre. Crimini, criminali, cittadini (Milano, Feltrinelli, 2003). 25 B Riccio, ‘Transnazionalità urbana. Meticciato in città ?’ in M Callari Galli, D Londei and A Soncini Fratta (eds), Il meticciato culturale. Luogo di creazione, di nuove identità o di conflitto? (Bologna, CLUEB, 2005).

Anthropological Approaches to Migration and Social Exclusion 215 Philippines fill an increasingly irreplaceable role in the care and moral and physical support of thousands of elderly persons unable to defray the costs of clinics and hospices.26 At the same time, there are growing numbers of homeless people, as we have seen, who make up an organic part of the city tissue; these ‘poor’ persons now include many Italians who have lost their jobs, students who fail to find jobs, and a large number of ‘30-somethings’ who manage, at best, to obtain small jobs on fixed-term contracts one year out of every two. To what extent are these persons considered citizens? In 2000, the city of Bologna set up a ‘Street Lawyer’ office staffed entirely by volunteers. This is designed to ensure free legal counsel and defence, in cases of potential legal controversy, for people with no fixed abode living in the city.27 During the five years since the inception of this office, the street lawyers have dealt with some 500 cases. Homeless men and women, having no residence, are unable to exercise the right to vote (those not figuring in the registers of the population residing in a commune do not appear in the electoral registers); they cannot fully benefit from the local healthcare service (those not resident have access to the public healthcare structures only through the emergency services and cannot benefit from their own general physician), nor can they regularise their position as regards a professional register (since they have no status as residents, they cannot officially be employed, thus are not registered for tax or VAT). Among the most important cases are those involving homeless people who come within the right to healthcare of the homeless in Bologna. Many of these are denied hospital admission by certain city physicians, since no kind of intervention is granted in relation to persons without residence and thus lacking healthcare coverage. Yet the right to healthcare is envisaged as a fundamental one by the Italian Constitution, under Article 32, which states: ‘The Republic shall protect health as a fundamental right of the individual’.28 Though the majority of such persons are entitled to free healthcare assistance through the National Health Service, many of them have no physician since, being without residence, they are not registered and therefore do not qualify for health coverage. Other cases have to do with the norm providing for repatriation with compulsory expulsion orders. As from September 2001, the police authorities in Bologna have intensified their on-the-spot activity, acting on express orders from the Questore (Chief of Police). The most relevant item as 26 B Riccio, ‘Le esperienze delle donne migranti nell’ambiente di lavoro e il difficile percorso verso un’organizzazione di sostegno reciproco’ in A Sgrignuoli (ed), Stereotipi e reti sociali tra lavoro e vita quotidiana. Un’analisi multiculturale della complessità di genere (Rimini, Guraldi, 2004). 27 I Diritti e la povertà, Collana Nuovamente (Bologna, Sigem, 2005). 28 A Arduini, ‘Diritto alla tutela della salute dei senza fissa dimora’ in I Diritti e la povertà, Collana Nuovamente (Bologna, Sigem, 2005).

216 Bruno Riccio and Giuseppe Scandurra regards the Compulsory Expulsion Order would seem to concern persons subjected to this procedure who fail to report elements in their defence that demonstrate positive behaviour which would show their lack of tendency or capacity to commit offences. The procedure concludes with the issue of an order for their departure from Italian territory, the Compulsory Expulsion Order. Their ‘dangerousness’ is imputed merely to their being ‘vagabonds’ and ‘idle’.29 Hence the paradox of a local administration that, even while it seeks to stem the continual influx of homeless, mainly from South to North, issues expulsion orders that compel these persons to continual transfer—in a word, to nomadism. In theory, were this practice to be adopted by all of Italy’s police departments, it would lead to a situation whereby Italian citizens of no fixed abode would have no right to stay in any commune of their own country; there are, indeed, recorded cases of people who have received an expulsion order from more than one Italian commune. While the value of the street lawyers is unquestionable, they are sometimes called upon to deal with emergency situations without having had the time and/or the cultural background needed to analyse the matter. Their discourses report infringements of rights, but contain no reference to the individual biographies of the homeless persons concerned; rather, they seek to essentialise these social actors, in such a way as to create dossiers and subdossiers of the cases, merely with the aim of resolving specific situations. In reading those dossiers, for instance, one gets the impression that, in relation to an immigrant social group (say Senegalese) or a group of homeless from South Italy, while one may intervene to defend specific universal rights, the battle to make those persons fully-fledged citizens of Bologna is in vain; for determinate patterns of values and behaviours recognised by them as cultural are inextinguishable since they are transmitted from one generation to another: the reference is to value and behaviour patterns that are recognised as ‘not belonging to Bologna’. The usefulness of anthropology then lies not so much in deconstructing the activity of those lawyers, but rather in criticising it by showing them how these people often tend to implement a ‘cultural’ behaviour according to contexts and convenience. In this regard it is worth asking ourselves how useful it is, with a view to conducting a thorough analysis, to employ concepts such as ‘homeless’ and ‘immigrant’ as closed categories referring to social groups that are more or less homogeneous, or whether it would be better to simply refer to a heterogeneous mass of women and men who are denied even universal and constitutional rights directly stemming from the more general right to ‘citizenship’, such as the right to vote and to health.

29 A Murru, ‘La misura del rimpatrio con foglio di via obbligatorio’ in I Diritti e la povertà, Collana Nuovamente (Bologna, Sigem, 2005).

Anthropological Approaches to Migration and Social Exclusion 217 As already mentioned, although it is incorrect to talk about a ‘culture of poverty’ insofar as the homeless of Bologna are concerned, it is possible to recognise some elements (in terms of needs and expectations) common to all of these people; needs and expectations which are different, in most cases, from those of the numerous Senegalese immigrants who have been living in Bologna for a considerable period of time. Even if it allows us to construct useful categories, it is nonetheless important to avoid essentialising the order of the discourse dealing with such subjects as if they were some kind of stable entities. Aware of the various types of intervention (in terms of assistance and universal rights) put into practice by social actors such as street lawyers or immigrants’ associations, those ‘outcasts’ represent themselves as ‘homeless’ or ‘non-EU immigrants’ according to the circumstances. It is not exceptional to hear of cases such as that of an Italian homeless person defining himself as a Rom immigrant just because some trade unions are campaigning for Romanian immigrants, belonging to the Rom group, to be recruited on the city’s building sites, due to the lack of Italian workers; or a North-African immigrant pretending to be ‘homeless’, aware that the communal lists for housing give priority to the ‘homeless’, rather then to ‘immigrants’, who appear only in a secondary list. TRANSNATIONAL MIGRATION AND SEDENTARIST POLICIES

The right to residence is the right most frequently invoked in cases that the street lawyers are called upon to deal with. Non-enrolment in a population register results in people not being able to enjoy the fundamental rights recognised by the Italian Constitution, such as the right to housing. Today, however, thanks to the cases taken by the street lawyers against the Commune of Bologna, homeless persons can obtain residence in the public dormitory structures: an association allowing them to register as citizens. Bologna now has some 300 extra citizens, some of whom have already found work and have embarked on the arduous route that will lead them out of the precarious situation in which they find themselves.30 The issue of housing is among the most urgent problems and a requirement for all migrants in Italy. Moreover, this is the major concern of local immigration policies. Wherever migrants live they have to confront the racist demonstrations of their potential or actual neighbours. Although many migrants are granted the permesso di soggiorno (residence permit), this affects the possibility of transnational migration. It is only when the permit is obtained and re-entry to Italy guaranteed that Senegalese can 30 A Mumolo and P Pizzi, ‘Il diritto alla residenza: la prima causa degli avvocati di strada’ in I Diritti e la povertà, Collana Nuovamente (Bologna, Sigem, 2005).

218 Bruno Riccio and Giuseppe Scandurra start going backwards and forwards between the two countries and thus manifest transnational mobility. Far from being in a post-national era, as some ‘transnational anthropologists’ seem to suggest,31 transnational organisation still needs to negotiate and deal with national and local state regulatory practices which can sometimes be exclusionary.32 As shown elsewhere,33 transnational strategies may clash with the sedentarist views which inform housing policies. Among social practitioners in charge of the implementation of housing policies for migrants one may find an ambivalent stance. The general consensus is that, in spite of difficulties in having to deal with a constant ‘turnover’ of Senegalese users because of migrants’ reliance on communitarian networks, the ability of Senegalese to accept life in big groups, with a representative dealing with the cooperatives, helped to shape the model of first reception within the receiving context. On the other hand, the various practitioners and most of the documents produced on this topic urge ‘the need to move to another stage of immigration policies and of integration’. They express the need to move on to new housing policies that focus more on small apartments for families than on big buildings (with the risk of ‘ghettoisation’ and the ‘threat’ to the locals). This shift in thinking is due also to the increase in reunions of family members. However, one of the problems stressed by practitioners themselves is that out of 1,069 Senegalese, only 50 have been joined by their families (5 per cent of Senegalese vs 37 per cent of Moroccans), which seems to indicate that the dominant Senegalese organisational mode with a strong orientation towards return and circularity suits the ‘first reception’ policy better than the second one. The lack of attachment to Italy and the transnational mobility of the Senegalese contrasts with the conceptions of immigrants expressed by the majority of social practitioners. However, those views underpin policy guidelines: ‘the general orientation is to accept people who are coming with the aim of settling for a while and to refuse the seasonal migrant who wants to street sell: he is not interesting’. Clearly, the implicit requirement of settlement expressed by those practitioners testifies to the sedentarist logic behind this work. There is a ‘sedentarist metaphysics’ underlying the policies towards migrants and the way such policies are conceived.34 Senegalese

31 A Appadurai, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis, University of Minnesota Press, 1996). 32 MP Smith, Transnational Urbanism: Locating Globalization (Oxford, Blackwell, 2001). 33 B Riccio, ‘The Italian Construction of Immigration: Sedentarist and Corporatist Narratives Facing Transnational Migration in Emilia-Romagna’ (2000) 9 Anthropological Journal on European Cultures 53–74. 34 LH Malkki, ‘National Geographic: the Rooting of Peoples and the Territorialization of National Identity among Scholars and Refugees’ in A Gupta and J Ferguson (eds), Culture, Power, Place (Durham, Duke University Press, 1997); M Callari Galli (ed), Nomadismi contemporanei (Rimini, Guaraldi, 2003).

Anthropological Approaches to Migration and Social Exclusion 219 transmigrants in the end are insufficiently ‘disciplined’ users: they fit in, to be sure, because they are able to bear the precariousness of reception policies, but they are not the ideal settler ‘to integrate’. We feel that the reason for the ubiquity of these conceptions relies also on the identificatory power of their professional practice in considering the exclusionary motives of residentiality to be natural. The sedentary mode of life and its institutionalisation through provincial residence are taken for granted because of all the administrative practices implied in such institutionalisation. In a country where, thanks to the marginalisation of migrants, their particular characteristics and potential contribution are rarely taken into account in policy decisions which reflect them, it seem increasingly necessary to overcome the tension between the new migratory mode and traditional conceptions of dwelling, although even that will not be sufficient for negotiating a potential realisation of rights for such persons. However, our aim in this chapter was to discuss the need to embrace analytically a broader conception of citizenship than that often provided by political sciences, by considering social and political incorporation as a contested and negotiated process implying different and occasionally contrasting perspectives. Certainly, citizenship is conferred by the nation-state, but the enactment of rights and social engagement often begins at local level and sometimes involves the foreign born who are not naturalised as much as the unrecorded homeless are. These examples have been adduced to show how anthropological and ethnographic explorations may contribute to enhancing the understanding of the enactment of citizenship rights by giving non-citizens a voice and by problematising the perspective held by those in charge of the implementation of such rights. SELECT BIBLIOGRAPHY Anderson, N, Il vagabondo. Sociologia dell’uomo senza fissa dimora (Roma, Donzelli, 1994) Appadurai, A, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis, University of Minnesota Press, 1996) Arduini, A, ‘Diritto alla tutela della salute dei senza fissa dimora’ in I Diritti e la povertà, Collana Nuovamente (I Quaderni (ed), Bologna, Sigem, 2005) Bergamaschi, M, Ambiente urbani e circuito della sopravvivenza (Milano, Franco Angeli, 1999) Bonadonna F, Il nome del barbone: vite di strada e povertà estreme in Italia (Roma, Derive Approdi, 2001) Bourdieu, P, La misère du monde (Paris, Editions du seuil, 1993) Bourgois, P, In cerca di rispetto (Roma, Derive Aprodi, 2005) Callari Galli, M (ed), Nomadismi contemporanei (Rimini, Guaraldi, 2003) ——, ‘Cittadinanze lacerate’ (2004) IV 7 Gomorra 15–32 Dal Lago, A and Quadrelli, E, La città e le ombre. Crimini, criminali, cittadini (Milano, Feltrinelli, 2003)

220 Bruno Riccio and Giuseppe Scandurra Glick Schiller, N, Bsch, L and Szanton-Blanc, C, (eds), Towards a Transnational Perspective on Migration (New York, NY Academy of Science, 1992) Grillo, RD, Pluralism and the Politics of Difference (Oxford, Oxford University Press, 1997) King, R and Wood, N (eds), Media and Migration (London, Routledge, 2001) Lewis, O, La cultura della povertà e altri saggi di antropologia (Bologna, Il Mulino, 1973) Malkki, LH, ‘National Geographic: the Rooting of Peoples and the Territorialization of National Identity among Scholars and Refugees’ in A Gupta and J Ferguson (eds), Culture, Power, Place (Durham, Duke University Press, 1997) Marshall, TH, Citizenship and Social Class (Cambridge, Cambridge University Press, 1950) Mumolo, A and Pizzi, P, ‘Il diritto alla residenza: la prima causa degli avvocati di strada’ in I Diritti e la povertà, Collana Nuovamente (Bologna, Sigem, 2005) Murru, A, ‘La misura del rimpatrio con foglio di via obbligatorio’ in I Diritti e la povertà, Collana Nuovamente (Bologna, Sigem, 2005) Ong, A, Flexible Citizenship: the Cultural Logics of Transnationality (Durham, Duke University Press, 1999) Remotti, F, Luoghi e corpi. Antropologia dello spazio, del tempo e del potere (Torino, Bollati Boringhieri, 1993) Riccio, B, ‘The Italian Construction of Immigration: Sedentarist and Corporatist Narratives Facing Transnational Migration in Emilia-Romagna’ (2000) 9 Anthropological Journal on European Cultures 53–74 ——, ‘From “Ethnic Group” to “Transnational Community”? Senegalese Migrants’ Ambivalent Experiences and Multiple Trajectories’ (2001) 27 Journal of Ethnic and Migration Studies 583–99 ——, ‘Le esperienze delle donne migranti nell’ambiente di lavoro e il difficile percorso verso un’organizzazione di sostegno reciproco’ in A Sgrignuoli (ed), Stereotipi e reti sociali tra lavoro e vita quotidiana. Un’analisi multiculturale della complessità di genere (Rimini, Guraldi, 2004) ——, ‘Transnazionalità urbana. Meticciato in città ?’ in M Callari Galli, D Londei and A Soncini Fratta (eds), Il meticciato culturale. Luogo di creazione, di nuove identità o di conflitto? (Bologna, CLUEB, 2005) Roversi, A and Bondi, C, ‘Senza fissa dimora a Bologna’ (2006) Quaderni Città Sicure Scandurra, G, Tutti a casa. Il Caracci: etnografia dei senza fissa dimora a Bologna (Rimini, Guarladi, 2006) Smith, MP, Transnational Urbanism: Locating Globalization (Oxford, Blackwell, 2001) Soysal, YN, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago, University of Chicago Press, 1994) Werbner, P et al, New Migrants in European Gateway Cities (unpublished, 2006) Yuval-Davis N (1997) 57 ‘Women, Citizenship and Difference’, Feminist Review 4–27

11 Supporting Minority Rights: Inter-Group Determinants and Consequences ANCA MINESCU

INTRODUCTION

The discourses on minority rights are theoretically framed by two sets of political models describing our societies. On the one hand, the liberal ideas on minority rights stress the importance of supplementing individual human rights with group specific rights, given the centrality of cultural belonging to individual identities.1 On the other hand, the political establishment of human societies according to nation-state borders, and the nationalising policies that accompany them, give emphasis to fears that minority rights will undermine the stability of the current world order.2 These perspectives combine to provide several theoretical controversies in need of empirical verification. While minority rights are about expressing and exercising one’s own culture, explaining the support for minority rights is a matter of: (a) either identifying factors that motivate the endorsement of minority rights, or (b) placing the minority rights issue in the complex settings of particular inter-group relationships. In the first category of challenges (a), three types of explanation are proposed. First, some argue that supporting minority rights results from believing in the centrality of cultural identity in individuals’ lives, and thus

1 W Kymlicka, Multicultural Citizenship (Oxford, Clarendon Press, 1995); W Kymlicka, ‘Nation-building and Minority Rights: Comparing West and East’ (2000) 26 Journal of Ethnic and Migration Studies 183. 2 C Codagnone, and V Filippov, ‘Equity, Exit and National Identity in a Multinational Federation: the “Multicultural Constitutional Patriotism” Project in Russia’ (2000) 26 Journal of Ethnic and Migration Studies 263; A Etzioni, ‘The Evils of Self-determination’ (1993) 89 Foreign Policy 21–35; GW Lapidus, ‘Ethno Nationalism and Political Stability: the Soviet Case’ in R Denber (ed), The Soviet Nationality Reader: the Disintegration in the Context (Oxford, Westview Press, Inc, 1992).

222 Anca Minescu should be highly related to one’s cultural/ethnic identity.3 Others argue for a more instrumental approach, maintaining that individuals who feel particularly vulnerable in one situation will appeal to group rights in order to improve their personal situation.4 So, it is either the psychological importance of one’s membership to the group or the instrumentality of group rights for individuals that determine support for minority rights. A third type of explanation refers to an even more general ideological stance. A meritocratic view of our democratic societies promotes individual merit rather than group rights as the basis of economic, political and social participation. Those with more meritocratic views are less likely to support minority rights. Thus, instead of cultural considerations and social identifications, or more instrumental motives, it is a meritocratic ideology that promotes opposition to minority rights.5 Because of its limited applicability to the research setting of our investigation in the Russian Federation, the meritocratic explanation is not further pursued in this chapter. In the second category of challenges (b), other authors prioritise the specific structural context and power relationships against which the discussion of minority rights takes place.6 Within the framework of a national state, where the dominant majority usually has a cultural monopoly on the social and institutional life in the state, the actual provision of minority rights becomes a political struggle.7 While on an individual level, one may agree with the basic right of individuals to express and exercise their own culture, at the group level, minority rights become a matter of power sharing and a challenge to the status quo that favours the majority to the detriment of other (minority) groups.8 The problem therefore is not only a purely ideological debate about allowing or not allowing certain rights on the basis of group membership, but is rather a structural debate about

3 M Verkuyten, ‘Ethnic Group Identification and Group Evaluation among Minority and Majority Groups: Testing the Multiculturalism Hypothesis’ (2005) 88 Journal of Personality and Social Psychology 121. 4 G Evans and A Need, ‘Explaining Ethnic Polarization over Attitudes towards Minority Rights in Eastern Europe: a Multilevel Analysis’ (2002) 31 Social Science Research 653; M Verkuyten and AA Yildiz, ‘The Endorsement of Minority Rights: the Role of Group Position, National Context and Ideological Beliefs’ (2006) 27 Political Psychology 527. 5 M Gilens, PM Sniderman and JH Kuklinski, ‘Affirmative Action and the Politics of Realignment’ (1998) 28 British Journal of Political Science 159; B Barry, Culture and Equality: an Egalitarian Critique of Multiculturalism (Cambridge, Polity Press, 2001). 6 G Massey, R Hodson and D Sekulic, ‘Ethnic Enclaves and Intolerance: the Case of Yugoslavia’ (1999) 78 Social Forces 669; G Smith, ‘Russia, Multiculturalism and Federal Justice’ (1998) 50 Europe-Asia Studies 1393. 7 Kymlicka, n 1 above; R Baubock, ‘Cultural Minority Rights for Immigrants’ (1996) 30 International Migration Review 203; ME McIntosh, ME MacIver, DG Abel and DB Nolle, ‘Minority Rights and Majority Rule: Ethnic Tolerance in Romania and Bulgaria’ (1995) 73 Social Forces 939. 8 H Blumer, ‘Race Prejudice as a Sense of Group Position’ (1958) 1 Pacific Sociological Review 3.

Supporting Minority Rights 223 preventing or not preventing the institutional legitimisation of group-based power claims. This type of concern about the status quo is built against the background of the principle of national self-determination which has laid the foundations for all modern day states since the later nineteenth century.9 Ethnic groups concentrated on a particular territory claimed and were given the right to politically control that territory in their own interest, gaining national autonomy or becoming nation-states.10 Today, national majorities are threatened by the application of the same principle of cultural/national self-determination in claims for minority rights.11 The contradiction lies in the potential of minority rights to either prevent or encourage national/territorial separatism and conflict. By institutionalising the recognition of minorities’ rights to power sharing within the borders of the nation-state, the inter-group situation may be stabilised by ensuring equal and fair representation of all groups within the political sphere.12 However, the fear is that minorities will not be satisfied with such internal arrangements and instead will continue their struggle for power by pursuing national separatism, thus threatening the territorial integrity of the nation-state.13 MINORITY RIGHTS IN THE RUSSIAN FEDERATION

In Russia, politics are closely intertwined with the sociological consequences of granting minority rights, because Russian policies of institutionalised multiculturalism provide cultural autonomy to certain ethnic groups, the so-called titular groups.14 Of 128 ethnic groups living in Russia, 41 are constitutionally defined as titular nationalities (1977 Soviet Constitution), namely ‘those groups granted territorial autonomy officially recognised and defined as indigenous communities and the only legitimate bearers of state level authority within the territory of “their” autonomy’.15 For 21 of these

9 JJ Preece, ‘National Minority Rights vs. State Sovereignty in Europe: Changing Norms in International relations?’ (1997) 3 Nations and Nationalism 345; A Kreptul, ‘The Constitutional Right of Secession in Political Theory and History’ (2003) 17 Journal of Libertarian Studies 39; R Lukic, ‘Twilight of the Federations in East Central Europe and the Soviet Union’ (1992) 45 Journal of International Affairs 576. 10 V Tishkov, Ethnicity, Nationalism and Conflict in and after the Soviet Union (London, Sage, 1997); MG Marshall, ‘States at Risk: Ethnopolitics in the Multinational States of Eastern Europe’ in TR Gurr (ed), Minorities at Risk (Washington, United States Institute of Peace Press, 1993); Lapidus, n 2 above. 11 See K De Feyter, Chapter 1. 12 Smith, n 6 above; T Rakowska-Harmstone, ‘Chickens Coming Home to Roost: a Perspective on Soviet Ethnic Relations’ (1992) 45 Journal of International Affairs 519; DL Horowitz, Ethnic Groups in Conflict (Berkeley, University of California Press, 1985). 13 Lukic, n 9 above. 14 Smith, n 6 above; Codagnone and Filippov, n 2 above. 15 Codagnone and Filippov, n 2 above, p 266.

224 Anca Minescu titular nationalities, their autonomy is extended to the level of territorially autonomous republics, which represents the highest level of self-governance within the Russian federal system. This type of ‘ethnic federalism’ originated with the Soviet Nationalities Policy around 1923, which officially institutionalised ethnicity as ‘nationality’, based on the size of the ethnic group and their historical association with a particular territory.16 This territorialisation of ethnicity and its implications with respect to the enforcement of group rights leaves 86 non-titular nationalities (6.4 per cent of Russia’s population) as well as 53 per cent of all titular nationalities who live outside their own titular republics (in all around 17 million of the total 27 million non-Russian people) without protection of their ethnocultural rights.17 In addition, concerns are raised with respect to the conditions and rights of the Russian minorities living in the titular autonomous republics, who also remain vulnerable.18 The question of minority rights is thus highly relevant in Russia, where granting various degrees of cultural autonomy and officially recognising some groups and their specific rights were means of managing the tremendous ethnic diversity. However, the ethnoterritorial principle of enforcing minority rights is problematic in two crucial aspects: first, it strengthens the borders of the autonomous units: what happens to those titular groups living outside their autonomies? And, secondly, it may cultivate the seeds for further territorial disintegration of the Federation: titular groups aim at extending their rights to self-determination up to claiming separatism from the Federation.19 Finally, the position of titular groups living in their autonomous republics best illustrates the political and social dilemmas raised by the multicultural doctrine: while it is in their interest vis-à-vis Moscow to support minority rights (to achieve more group benefits), within their own republics opposing minority rights is an important means of establishing and enforcing a dominant status and advantageous position vis-à-vis the other groups (including the Russians) living within the borders of the republics. The current research provides an empirical test to the extent to which titular groups’ and Russians’ support for minority rights is affected by the territorialisation of cultural rights, by the relative status of the groups inside and outside the autonomous republics, as well as by their identification with their ethnic groups and their subsequent perceptions of relative deprivation.

16

Tishkov, n 10 above; Rakowska-Harmstone, n 12 above; Lapidus, n 2 above. Tishkov, n 10 above; V Stepanov, ‘Ethnic Tensions and Separatism in Russia’ (2000) 26 Journal of Ethnic and Migration Studies 305. 18 Rakowska-Harmstone, n 12 above; Stepanov, n 17 above; Smith, n 6 above. 19 See Lukic, n 9 above; L Hagendoorn, H Linssen and S Tumanov, Inter-group Relations in States of the Former Soviet Union: the Perception of Russians (Hove, Psychology Press, 2001) for a discussion of the ‘domino effect’ theory. 17

Supporting Minority Rights 225 Furthermore, we investigate the strength of the association between supporting minority rights and the desire for more autonomy in the form of independence from the Federation.

SUPPORTING MINORITY RIGHTS FROM THE PERSPECTIVE OF SOCIOLOGICAL AND SOCIAL-PSYCHOLOGICAL THEORIES

We investigate if these theoretical and political controversies about minority rights are reflected in people’s attitudes towards minority rights. It is the first aim of this chapter to examine the extent to which minority rights are endorsed in the Russian Federation. Insights from sociological and socialpsychological theories are employed in order to formulate testable hypotheses. Blumer’s theory on prejudice as a sense of group position20 proposes that, based on the status of their own group in the inter-group context, people will be more or less inclined to support minority rights. The political relevance and implications of the minority rights question provide different motivations to pursue or oppose those rights whether one is in a dominant or a subordinate position. In other words, the reasons why a multicultural ideology is often embraced by subordinate groups and rejected by dominant groups are structurally determined. The institutional power and status of groups relative to each other result in an asymmetric interest in minority rights, seen as threatening by the dominant groups, but as a means to promote group interests by subordinate groups.21 This sociological perspective is helpful in providing a framework for the analysis of attitudes toward minority rights. The main claim is that one’s group position will, by definition, determine individual support for minority rights. However, this claim is only valid as long as group membership is important to the individual. Therefore, social-psychological theories are employed to provide the more specific individual mechanisms, which indicate how the effects of contextual/structural characteristics come to affect individual attitudes. Such a multidisciplinary approach makes it easier for the social scientist to analyse the way people think and approach minority rights. The two perspectives (sociological and social-psychological) employed in the current chapter situate the analysis at the individual level, leaving the larger context of the debate on group rights in the background. Naturally, the national and international environment in which individuals live largely affects their normative beliefs. Some of these factors are

20

Blumer, n 8 above. Baubock, n 7 above; Verkuyten, n 3 above; Verkuyten and Yildiz, n 4 above; P Scheepers, M Gijsberts, and M Coenders, ‘Ethnic Exclusionism in European Counties: Public Opposition to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat’ (2002) 18 European Sociological Review 17; Massey, Hodson and Sekulic, n 6 above. 21

226 Anca Minescu extensively discussed in the various chapters of this book. The focus here, however, is on how the perceptions of the individuals themselves of their inter-group situation affect their own normative beliefs about minority rights. Social identity theory,22 including self-categorisation theory, proposes the degree to which people identify with their social group as a central explanation for people’s behaviour in an inter-group situation. Categorising themselves as a member of a particular group will have important consequences on people’s attitudes and behaviours, such as manifesting ethnocentric and antagonistic biases in favour of the ingroup, and derogating and excluding outgroups.23 Self-categorisation is the central mechanism through which individuals internalise the social structure, and which makes individual attitudes responsive to the structural characteristics of the intergroup situation. Self-categorisation as a central social-psychological mechanism relating individuals to their social environment determines the extent to which people are tolerant of outgroups and therefore willing to assist them in their struggle to improve their status quo (ie supporting minority rights); or, on the contrary, intolerant and denying that any inequalities in need of remedy/ redress even exist.24 If ethnic distinctions (ethnic categorisations) are highly salient in a society, inter-group discrimination is more likely,25 and thus the issue of minority rights can become highly divisive. Often, it is the case that ethnicity is closely linked to claims for minority rights especially for subordinate groups, who can benefit the most from employing such issues in their power struggle with the dominant groups. Furthermore, the salience of ethnic categories is also related to the degree of group-based relative deprivation people perceive in their inter-group context.26 People who prioritise their ethnic group membership are more likely to compare their group to others, and thus more likely to perceive group differences in the distribution of social, cultural and political advantage.

22 H Tajfel, Social Identity and Intergroup Relations (Cambridge, Cambridge University Press, 1982). 23 N Ellemers, R Spears and B Doosje, ‘Self and Social Identity’ (2002) 53 Annual Review of Psychology 161; CW Leach, A Iyer and A Pedersen, ‘Angry Opposition to Government Redress: When the Structurally Advantaged Perceive Themselves as Relatively Deprived’ (2007) 46 (1) British Journal of Social Psychology 191–204; M Brewer, ‘The Psychology of Prejudice: Ingroup Love or Outgroup Hate?’ (1999) 55 Journal of Social Issues 429. 24 MJ Hornsey and MA Hogg, ‘Assimilation and Diversity: an Integrative Model of Subgroup Relations’ (2000) 4 Personality and Social Psychology Review 143; Leach, Iyer, and Pedersen, n 23 above; McIntosh, MacIver, Abel and Nolle, n 7 above. 25 Brewer, n 23 above; A Minescu, L Hagendoorn, and E Poppe, Types of Identification and Intergroup Differentiation in the Russian Federation (2006, under review). 26 TR Gurr, Why Men Rebel (Princeton, Princeton University Press, 1970); Leach, Iyer and Pedersen, n 23 above; McIntosh, MacIver, Abel and Nolle, n 7 above.

Supporting Minority Rights 227 Runciman27 termed the feelings and perceptions of an unjust distribution of outcomes between ingroup and outgroups as ‘fraternal deprivation’ (different from personal deprivation). It was found that perceiving disadvantage at the group level (relative fraternal deprivation) was associated to engagement in collective action to change the status quo.28 Relative deprivation reflects the psychological experience of a social structure in which groups are not treated equally, and will most likely be more central in the lives of the subordinate than of the dominant groups.29 Ethnic identification and relative deprivation are expected to play an important role in motivating individuals’ support for minority rights, a role that is further conditioned by the structural position of the groups to which these individuals belong.30 To sum up, this chapter aims to determine to what extent political controversies are reflected in individual attitudes toward minority rights, and whether those attitudes can be explained by employing specific theoretical assumptions about the role of group position, ethnic identification and perceptions of relative deprivation. By using sociological and socialpsychological theories, we systematically derive testable hypotheses on the influence of specific structural and individual factors on supporting minority rights. RESEARCH QUESTIONS

First, to what extent do people support minority rights as a normative political principle and what motivates this support? We specifically address the ‘normative’ support for minority rights, which indicates a general belief in the ideology of multiculturalism. This specification is important, because it underlies the substantive and empirical difference between normative beliefs and people’s actual experiences with minority rights. It is assumed that people’s a priori held opinions about what is the ‘right and legitimate’ way to deal with group-based claims will affect the way those people experience minority rights in their daily lives. However, in this study, we

27 WC Runciman, Relative Deprivation and Social Justice: a Study of Attitudes to Social Inequality in Twentieth Century England (Berkeley, University of California Press, 1966). 28 I Walker and TF Pettigrew, ‘Relative Deprivation Theory: an Overview and Conceptual Critique’ (1984) 23 British Journal of Social Psychology 301; S Guimond and L Dube-Simard, ‘Relative Deprivation Theory and the Quebec Nationalist Movement: the Cognition-Emotion Distinction and the Personal-Group Deprivation Issue’ (1983) 44 Journal of Personality and Social Psychology 526. 29 But see Leach, Iyer and Pedersen, n 23 above. 30 L Bobo, and VL Hutchings, ‘Perceptions of Racial Group Competition: Extending Blumer’s Theory of Group Position to a Multiracial Social Context’ (1996) 61 American Sociological Review 951; L Bobo, ‘Prejudice as Group Position: Micro-foundations of a Sociological Approach to Racism and Race Relations’ (1999) 55 Journal of Social Issues 445.

228 Anca Minescu investigate how specific individual perceptions and the inter-group situation affect the more general normative support for minority rights. The next analytical step for future research is to look into how the normative support for minority rights and other factors are related to the actual experience of these rights in more mundane situations. Hypothesis 1 proposes that group members who are in a subordinate position are more likely to normatively endorse minority rights. This prediction is based on the assumption that minority rights are seen as a means to improve the subordinate group position vis-à-vis the dominant/majority group. Thus, minority rights are seen as a threat and are therefore opposed by majorities/dominant groups,31 while they are strongly endorsed by subordinate minorities as a solution to redress their systemic disadvantage.32 In the Russian Federation, titular groups represent a numerical minority (altogether, non-Russians amount to less than 15 per cent of the total population) and compared to Russians are in a subordinate cultural, social and economic-political position. However, within their own titular autonomous republics, the status of the titular groups is greatly enhanced by their constitutional recognition, which puts even the Russians living inside these republics in a relatively disadvantaged position.33 We expect that in general, within the framework of the whole Federation, titular groups endorse minority rights more than Russians; however, this relationship should be moderated by the location of residence inside or outside the republics. Titular groups should endorse minority rights more than Russians, especially when they live outside the protective boundaries of the autonomous republics, where their subordination is salient (hypothesis 1a). At the same time, the position of status (and sometimes even numerical) dominance inside the republics should provide incentives to titular groups to oppose minority rights. In a study of several East European countries, it was found that minorities support minority rights significantly more than majorities.34 Thus, comparing titular groups as a majority/dominant group inside the republics, with titular groups living outside the republic where they are in a minority/subordinate position, we propose that the latter group will endorse minority rights significantly more than the former group (hypothesis 1b). And, similarly, Russians living outside republics (in a position of dominant majority) will endorse minority rights less than Russians living inside titular republics (hypothesis 1c).

31 P Scheepers, M Gijsberts and M Coenders, ‘Ethnic Exclusionism in European Counties: Public Opposition to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat’ (2002) 18 European Sociological Review 17; Massey, Hodson and Sekulic, n 6 above. 32 Blumer, n 8 above; Bobo and Hutchings, n 30 above; Bobo, n 30 above; Verkuyten and Yildiz, n 4 above. 33 Stepanov, n 17 above; Marshall, n 10 above. 34 Evans and Need, n 4 above.

Supporting Minority Rights 229 The ideology of multiculturalism and minority rights is protective especially of those who belong to subordinate groups.35 Membership in subordinate groups is expected to be associated with a stronger belief in the multiculturalism thesis regarding the importance of one’s cultural/ethnic identity.36 A high degree of group identification predicts taking action in the name of the group and being involved in group level strategies of redressing disadvantage.37 Hypothesis 2 proposes that identification with one’s ethnic group predicts normative support for minority rights, especially among the subordinate groups, namely the titular groups. At the same time, membership in a subordinate group may be associated with feelings of vulnerability and increased perceptions of relative deprivation.38 Thus, supporting minority rights may be of instrumental concern to those who need the protection of multicultural ideology and policies;39 in other words, the more individuals perceive their group as being relatively deprived, the more inclined they will be to pursue some form of collective action to redress the situation. Supporting minority rights can be conceived as a collective strategy to improve the ingroup status. Previous research has verified this relationship with respect to individuals’ involvement in the civil rights movement and their participation in riots,40 and also regarding individuals’ support for nationalistic movements.41 Thus, we propose that perceptions of relative deprivation are positively associated with more normative support for minority rights, and that this is the case for groups that are especially vulnerable: titular groups living outside their republics and Russians living inside titular republics (hypothesis 3). Secondly, is normative support for minority rights associated with separatist claims? Minority rights and multicultural ideology are seen to pose a threat to social cohesion by accentuating and strengthening the divisiveness of ethnic boundaries.42 Some research documents a negative association between supporting minority rights and believing in the importance of state unity, especially among minority groups.43 Thus, it seems that allowing minority rights is perceived as a path to fragmentation of the current national state. Politically, the right to cultural autonomy can be extended

35 Kymlicka, n 1 above; J Berry and R Kalin, R ‘Multicultural and Ethnic Attitudes in Canada: an Overview of the 1991 National Survey’ (1995) 27 Canadian Journal of Behavioral Science 301. 36 Verkuyten, n 3 above. 37 Ellemers, Spears and Doosje, n 23 above. 38 Blumer, n 8 above; Bobo and Hutchings, n 30 above; Bobo, n 30 above; McIntosh, MacIver, Abel and Nolle, n 7 above. 39 Berry and Kalin, n 35 above. 40 RD Vanneman and TF Pettigrew, ‘Race and Relative Deprivation in the Urban United States’ (1972) 13 Race 461; Walker and Pettigrew, n 28 above. 41 Guimond and Dube-Simard, n 28 above. 42 Barry, n 5 above; Kymlicka, n 1 above; Hornsey and Hogg, n 24 above. 43 Verkuyten and Yildiz, n 4 above.

230 Anca Minescu to a higher level into claims for complete territorial separatism, especially for groups considered as national minorities.44 It is often feared that groups who are already given rights to collective autonomy will follow their political struggle by also claiming and implementing the right to secession.45 It is expected that subordinate groups (titular groups) aiming at changing the status quo will be more likely to see separatist claims as a positive/natural extension of minority rights (hypothesis 4). However, one exploratory question remains: how does the territorialisation of minority rights in the form of cultural autonomy affect this relationship? Will the titular groups who live inside the autonomous republics feel protected by their political status and thus diminish their claims for more political power in the form of separatism? Or, on the contrary, verifying the more pessimistic views, will the association between normative support for minority rights and the support for separatism be strengthened among those who feel encouraged by territorial cultural autonomy? METHODS

The way that individuals perceive issues around the minority rights question is analysed with survey data collected in the spring of 2005. In the Russian multi-ethnic setting, inside and outside the territories of the autonomous republics, there is a ‘natural’ variation in the dominant-subordinate status of the Russian and titular groups, as well as in their group size across several republics of the Federation. The survey was conducted among 2,427 titular groups and 2,431 Russians, living inside five autonomous republics of the Russian Federation (Bashkortostan, Karelia, Komi, Yakutia, Tatarstan: around 400 of each titular group and 400 Russians living inside these republics), as well as outside these republics, in five locations (around 100 Russians and 100 titular groups: Komi in Perm, Tatars in Saratov, Karels in Tver, Bashkirs in Cheliabinsk, Yakuts in Moscow). This design was chosen to allow an analytical comparison of the attitudes of those groups living inside and outside the territories of the autonomous titular republics. At the same time, within each location, random samples of titulars and Russians were selected, in order to indirectly control contextual characteristics, while the interest of our investigation lay primarily with inter-group attitudes. The selection of the respondents was done according to an elaborated procedure aimed at achieving a random sample. Within each republic, only urban locations with a population of more than 10 per cent Russians were selected. Furthermore, a spiral was placed on top of the whole city plan in 44 45

Baubock, n 7 above; Kymlicka, n 1 above. Lukic, n 9 above; Rakowska-Harmstone, n 12 above; Stepanov, n 17 above.

Supporting Minority Rights 231 order to select 19 survey points. At each survey point (identified streets), buildings and apartments were further selected by applying random rules. Within a household the person whose birthday was closest to the interview date was selected. Both Russian and titular individuals were interviewed about their normative support for two general minority rights, phrased in the following ways: ‘Ethnic groups should be allowed to establish their own schools’ and ‘Ethnic groups should have the right to set up their political organisations’. Also, questions were asked regarding their perception of relative deprivation (‘The [titular/Russian] people have better job opportunities than the [Russians/ titular group]’; ‘The use of the ‘[indigenous/Russian] language at schools and higher educational institutions reduces the educational opportunities of the [Russians/titular group]’). The results for these two questionnaire items were combined in a mean score to provide the variable ‘relative deprivation’; the reliability coefficients (Cronbach’s alphas) for the new scale were: 0.68 for the Russians and 0.56 for the titular group. Respondents were also asked to respond to statements about their identification with their ethnic groups (for Russians: ‘It is of great importance for me to be a Russian’ and ‘I am proud to be a Russian’, and for the titular group: ‘It is of great importance for me to be regarded as a fellow [titular] person by the [titular group]’ and ‘I am proud to be regarded as a [titular] person’). Those two identification items were combined in one variable called ‘ethnic identification’ with the reliability coefficients for Russians being 0.87 and for the titular group 0.91. Finally, support for separatism of the titular republics was assessed with the responses to the statement: ‘The republic should become fully independent from Russia’. All questions could be answered on a scale from 1 (completely disagree) to 5 (completely agree).

ANALYSIS AND RESULTS

The survey data was analysed statistically (using SPSS) to provide tests for the hypotheses. In Table 11.1 the results of several analyses of variance (ANOVA) are presented, to test hypothesis 1. This type of analysis compares the mean scores on the normative support for minority rights across different groups: between titular and Russian, and between those living inside and outside the autonomous republics. Thus, the main and interaction effects of two factors: ethnic groups (Russian and titular) and location (their current residence relative to the titular republics) are tested against standard levels of significance. Separate analyses were conducted for the ‘right of ethnic groups to have their own schools’ and the ‘right of ethnic groups to have their own political organisations’, aiming to determine which group (ethnic or location-based) scores higher on supporting these goals.

232 Anca Minescu The findings largely support hypotheses 1, indicating that titular groups, as subordinate groups in the Federation, normatively support minority rights significantly more than the Russians. This is true for both rights, especially among those groups living outside the republics: titular people are more in favour of minority rights than Russians in the context of the larger Federation (F(1,4583) = 9.27, p < 0.01 for ‘right to own schools’ and F(1,4583) = 10.15, p < 0.01 for ‘right to political organisations’), while the difference is not significant inside the borders of the autonomous republics (hypothesis 1 is verified). Hypotheses 1b and 1c are only partially verified across the two types of minority rights. With respect to the ‘right to own schools’, titular people living outside their republics are significantly more in favour than titular people living inside the republics, where this right is already enforced (F(1,4583) = 13.43, p < 0.001; hypothesis 1b verified). For the Russians, there are no significant differences in support for this cultural right, probably because there are Russian schools everywhere in the Russian federation. However, regarding the ‘right to political organisations’, there is a significant difference among the Russians depending on their current residence: Russians living inside titular republics score higher on supporting this minority right than Russians living outside the republics (F(1,4583) = 22.19, p < 0.001; hypothesis 1c verified). These results indicate how normative support for minority rights is closely linked to the social reality in which individuals live. Endorsing minority rights is related to the status of one’s group, but, even more specifically, this is adapted to specific spheres of life where this status-difference is employed: the cultural one for the titular people outside their republics, and the political one for the Russians who might feel vulnerable (and insufficiently represented) inside the titular republics. Hypothesis 2 proposed an explanation for the normative support of minority rights based in particular on the importance of ethnic identification to people belonging to subordinate groups. Hypothesis 3 advanced an additional explanation, focusing on the perceptions of relative deprivation as a motivation for the normative support of minority rights. This explanation should also apply in particular to those groups who feel more vulnerable and appeal to the ideology of multiculturalism as a protection mechanism. Table 11.2 contains the results of multivariate analysis of covariance (MANCOVA) providing the concomitant test of hypotheses 2 and 3, on the two types of minority rights: ‘the right to own schools’ and ‘the right to political organisations’. This type of analysis allows for an overall test of normative support for minority rights in general (across the two types of rights) by providing a multivariate statistic (the Pillais F). At the same time, it provides independent tests for each of the two minority rights, generating coefficients for the predictor variables for each outcome variable. The analytical model contains two factors: ethnic groups and residence; two

9.27**

0.39 ns 0.00 ns 10.15**

Between inside and outside republics

Between titulars and Russians Inside republics

Between titulars and Russians Outside republics

3.38 (1.60)

22.19***

3.43 (1.54)

0.02 ns

3.98 (1.27)

Inside N = 1832

3.04 (1.56)

3.99 (1.36)

Outside N = 458

Russian

All variables measured on a scale from 1 (completely disagree) to 5 (completely agree). Higher scores indicate more normative support for the minority right. b Results of analysis of variance are reported; F value and significance levels: ***p < 0.001, **p < .001, and *p < .005, ns = non-significant difference.

a

Anova tests of differences F(1,4583)

3.43 (1.37)

0.26 ns

Between titulars and Russians Outside republics

13.43***

4.25 (1.25)

Outside N = 445

Titular

4.00 (1.32)

Inside N = 1852

Between titulars and Russians Inside republics

Between inside and outside republics

Support for right to political organisations Mean (SD)

Anova tests of differences F(1,4583)b

Support for right to own schoolsa Mean (SD)

Current Residence Relative to the titular Republics

Ethnic groups

Table 11.1: Normative Support for Minority Rights and Group Position

Supporting Minority Rights 233

234 Anca Minescu covariates as predictor variables: ethnic identification and relative deprivation; and several interaction effects between the covariates and the factors. Significant interaction terms indicate whether the effects of ethnic identification and relative deprivation on the normative support for minority rights are different between titular people and Russians (two-way interaction between the covariates and the ethnic groups factor), or between those who live inside and outside the republics (two-way interaction between the covariates and the residence factor), as well as between ethnic groups in a particular location (three-way interaction between the covariates, the ethnic factor and the residence factor). Where significant, the interaction terms are further analysed by simple slope analyses, which provide coefficients for the predictor variables for each level of the factors (for example, it indicates how ethnic identification is related to normative support for minority rights for Russians, and separately for the titular group). Hypothesis 2 is verified by our analyses: ethnic identification is significantly and positively related to the normative support for minority rights in general (Multivariate Pillais F(2,2226) = 10.99, p < 0.01), but more so for the cultural ‘right to own schools’ (Univariate F(1,4455) = 21.92, p < .001; B = 0.10) than for the political ‘right to political organisations’ (Univariate F(1,4455) = 6.01, p < 0.05; B = 0.06). Furthermore, the significant interaction term between ethnic identification and ethnic groups and the subsequent simple slope analysis revealed that this is the case only for the titular (subordinate) groups. For the Russians, the relationship between ethnic identification and their support for both minority rights is not significant. These results correspond to findings of previous research, which indicate that the multiculturalism thesis regarding the importance of ethnic/cultural identity applies differently to subordinate than to dominant groups.46 It is especially those who are in a disadvantaged position that seem to endorse a multicultural ideology, and for them ethnic identification is a reliable predictor for their support of minority rights. For the dominant groups, multiculturalism is often interpreted as a threat to the current status quo, and denying the centrality of culture and ethnicity is a way to justify the lack of support for minority rights. This seems to be the case in the Russian context as well. Hypothesis 3 is also confirmed by the results: relative deprivation is a significant predictor for the normative support for minority rights, in general (Multivariate F(2,2226) = 8.20, p < 0.001), and again more so the cultural ‘right to own schools’ (Univariate F(1,4455) = 16.17, p < 0.001; B = 0.08) than for the political ‘right to organisations’ (Univariate F(1,4455) = 6.37, p < 0.05; B = 0.06). Moreover, significant interaction effects further qualify this finding. Perceptions of relative deprivation are positively associated

46

Verkuyten, n 3 above; Verkuyten and Yildiz, n 4 above.

Supporting Minority Rights 235 with more normative support for the cultural ‘right to own schools’ for the groups that are especially vulnerable: titular groups living outside their republics (simple slope analysis of the three-way interaction between relative deprivation, ethnic groups and residence: F(1,4455) = 21.89, p < 0.001, B = 0.24) and Russians living inside titular republics (simple slope analysis: F(1,4455) = 7.41, p < 0.01, B = 0.06). The titular groups living outside their republics are also the ones for whom higher scores on relative deprivation correspond to higher support of the political ‘right to organisations’ (simple slope analysis: F(1,4455) = 15.48, p < 0.001, B = 0.25). When it comes to residence effects, irrespective of the ethnic differences, it seems that relative deprivation determines support for minority rights especially among those living outside the republics (F(1,4455) = 11.64, p < 0.01, B = 0.12 for the cultural right, and F(1,4455) = 7.41, p < 0.05, B = 0.12 for the political right). These findings indicate two aspects of the processes underlying normative support for minority rights. On the one hand, the position of one’s group in a particular political setting can amplify or reduce one’s feelings of vulnerability and perceptions of being in a relatively deprived position, and this in turn will predict one’s support or opposition to minority rights. On the other hand, normative support for minority rights is a more differentiated process than expected, or to put it differently, a particular type of minority right is associated with a particular reaction. In our analyses, the effects of ethnic identification and relative deprivation are related more strongly to the cultural ‘right to own schools’ than to the political ‘right to organisations’. This points to both the sensitivity of the cultural issues in the context of Russian-titular relationships in Russia, and also raises a methodological concern for future research with respect to the choice and variety of rights about which respondents were interviewed. Lastly, we investigated the relationship between the normative support for minority rights and support for separatism of the republic from the Russian Federation (see Table 11.3). The expectation that subordinate groups (titular groups) aiming at changing the status quo would be more likely to see separatist claims as a natural extension of minority rights (hypothesis 4) was confirmed. MANCOVA analyses were performed on each of the two minority rights. While controlling the ethnic and residence differences on supporting minority rights (two factors are introduced in the model: ethnic groups and residence), we investigated the main effect of support for separatism (the covariate predictor) and its two-way interactions with the two factors. In this way we can find out whether normative support for minority rights is positively associated with support for separatism differently for the two ethnic groups and between the two locations of the survey: inside and outside the republics. Thus, we can answer the question whether the association between normative support for minority rights and the support for

5.37* 0.99 ns 6.99** 0.17 ns 7.41** 7.53**

16.17*** 0.08 (.02) 0.29 ns −0.01 (0.01) 4.84* −0.04 (0.02) 4.80* 0.04 (0.02) 11.64** 0.12 (0.04) 14.62***

Relative deprivation Two-way interaction with ethnic groups Two-way interaction with residence Inside Outside Three-way interaction with ethnic groups and residence Inside Titulars Russians Outside Titulars Russians

0.23 ns −0.01 (0.03) 0.58 ns −0.02 (0.02) 15.48*** 0.25 (0.06) 0.12 ns −0.02 (0.06)

0.13 ns 6.37** 12.88*** 0.08 ns

7.89**

8.20*** 1.16 ns 4.08* 3.74* 6.62**

5.74** 5.40** 10.99** 11.78*** 25.19*** 0.27 ns 1.05 ns

Multivariate Pillais F(2,2226)

Across both rights

B = unstandardized regression coefficient, SE = standard error. Note: Results of multivariate analysis of co-variance are reported; Significance levels: ***p < 0.001, **p < 0.01, and *p < 0.05, ns = non-significant difference.

a

6.09* −0.24 (0.10) 10.38** 0.39 (0.12) 6.01* 0.06 (0.03) 7.93** 0.06 (0.02) 15.16*** 0.12 (0.03) 0.04 ns 0.01 (0.03) 1.98 ns −0.04 (0.02)

10.32** −0.25 (.08) 0.90 ns 0.10 (.10) 21.92*** 0.10 (0.02) 23.18*** 0.08 (0.02) 49.98*** 0.18 (0.03) 0.52 ns 0.02 (0.03) 0.94 ns −0.02 (0.02)

Ethnic groups (Titulars/Russians) Residence (inside/outside titular republics) Ethnic Identification Two-way interaction with ethnic groups Titulars Russians Two-way interaction with residence

0.00 ns −0.00 (0.02) 7.41** 0.06 (0.02) 21.89*** 0.24 (0.05) 0.00 ns −0.00 (0.05)

Univariate F(1,4455); B(SE)

Univariate F(1,4455); B(SE)a

0.06 (0.02) 0.02 (0.02) −0.06 (0.02) −0.01 (0.02) 0.12 (0.04)

Support for right to political organisations

Support for right to own schools

Table 11.2: Predicting Normative Support for Minority Rights from Ethnic Identification and Relative Deprivation

236 Anca Minescu

Supporting Minority Rights 237 separatism is strengthened or diminished for those protected by territorial cultural autonomy (namely, titular groups living inside their republics). The significant interaction between support for separatism and ethnic groups and the subsequent simple slope analysis indicates that for titular groups, supporting separatism does go hand in hand with their normative support for both the cultural and the political minority rights (the relationship with the latter unsurprisingly being stronger: F(1,3890) = 38.95, p < 0.001, B = 0.18 compared with F(1,3962) = 22.31, p < 0.001), B = 0.11 for the cultural right). For the Russians, there is also a positive relationship, but only for the political right to organisations and it is much weaker than that of the titular group (F(1,3890) = 7.10, p < .01, B = 0.11). This confirms hypothesis 4: supporting separatism is largely seen as an extension of minority rights, especially for the subordinate titular groups. To answer the more exploratory question regarding the effects of the territorialisation of the minority rights by institutionalising cultural autonomies for the titular republics, we tested the interaction effect between support for separatism and residence. It turns out that it is especially those titular respondents who live outside the protective borders of their republics who see a strong connection between separatism and minority rights: F(1,3962) = 7.43, p < 0.01, B = 0.13 for the cultural ‘right to schools’ and F(1,3890) = 17.32, p < 0.001, B = 0.23 for the political ‘right to organisations’. (Outside the republics, the question on separatism was only asked to titular respondents.) For those living inside the republics, the association between separatism and the cultural right is insignificant, and it is much weaker between separatism and the political right: F(1,3890) = 9.01, p < 0.01, B = 0.05. It seems, therefore, that the territorialisation of minority rights in Russia may have resulted in moderating the separatist claims for those who feel protected by the borders of the republics (by the rights they can exercise within these borders). For both Russians and titular people living on the territory of the autonomous republics, separatism does not seem such a natural extension of their normative support for minority rights; the association between the two is either insignificant or quite weak. However, the titulars who live outside their autonomous republics, and who feel unprotected and vulnerable because they are not allowed to easily exercise any special rights, seem to be more inclined to be more in support of separatism the more they support other minority rights. In line with previous speculation on the topic, it seems indeed that while the territorialisation of minority rights does not protect and appease the needs and claims of the titular groups living outside their own republics, it has had beneficial effects for those living within the boundaries of their cultural autonomies.47 47 Codagnone, and Filippov, n 2 above; Rakowska-Harmstone, n 12 above; Stepanov, n 17 above.

238 Anca Minescu Table 11.3: Relationship Between Support for Separatism and Normative Support for Minority Rights Support for the right to political organisations

R2 = 0.01 (1,3962)

R2 = 0.01 F(1,3890)

Support for separatism

8.71**; 0.07 (0.02)

Two-way interactions: support for separatism

MODELS

Support for the right to schools

7.34**

X Ethnic groups Titulars

22.31***; 0.11 (0.02) 0.95 ns; 0.03 (0.03)

Russians X Residence

23.14***; 0.15 (0.03) 4.29* 38.95***; 0.18 (0.03) 7.10**; 0.11 (0.04)

4.95*

9.54**

Inside (Russians and titulars)

1.68 ns 0.02 (0.01)

9.01**; 0.05 (0.02)

Outside (titulars only)

7.43**; 0.13 (0.05)

17.32***; 0.23 (0.06)

Ethnic groups

5.78*

4.66*

Residence

0.01 ns

8.49**

Results of multivariate analysis of co-variance are reported, with the F-values and corresponding significance levels: ***p < 0.001, **p < 0.01, and *p < 0.05, ns = non-significant difference. The analyses of the interaction terms between Support for separatism and Ethnic groups, and Support for separatism and Location are simple slope analyses, and results are reported for each level of the two factors.

CONCLUSIONS AND DISCUSSION

The results of our investigation indicate that individual attitudes towards minority rights do reflect the political stance on these issues. However, this process is not straightforward and can be predicted by employing classic sociological and social-psychological models. The normative support for minority rights is conditioned to a great extent by the relative position of groups in society, leading those who are in a subordinate position to invoke minority rights more than the dominant groups. Our analyses reveal that the specific type of disadvantage experienced by a group defines status relationships (the subordinate/dominant positions), and thus influences the normative support for specific minority rights differently. On the one hand, titular groups are mostly threatened by cultural extinction, and, as a consequence, living outside the protective boundaries of their republics makes them more supportive of cultural rights. On the other hand, Russians living on the titular-controlled territories of the republics feel more vulnerable politically, and thus support political rights more strongly than the Russians living within the larger context of the Federation. Normative support for minority rights is also related to the importance people place on their belonging to an ethnic/minority group, and this is especially the case for subordinate groups, such as the titular groups in Russia.

Supporting Minority Rights 239 At the same time, people’s perceptions that their group is relatively disadvantaged fuel their support for minority rights, indicating the strategic use of minority rights as a means to improve one’s status in the inter-group context. Perceptions of relative deprivation have a stimulating effect in particular among those who are structurally at a relative disadvantage: titular groups living outside their republics (where they lack the legal and political protection offered by the republican borders), but also, interestingly, Russians living inside titular republics (where local laws are especially geared to the advancement and protection of the titular groups, to the detriment of other ethnic groups). Thus, we conclude that the impact of psychological factors (ethnic identification and perceptions of relative deprivation) is further conditioned by the reality of the inter-group situation, namely the subordinate or dominant position of one’s group. The role the inter-group context plays in affecting support for minority rights is a clear indication of the instrumental and calculative approach people have towards minority rights. Considerations of group position, which (in the Russian context) are greatly determined by the political status of territorial autonomies attributed to the titular republics, also affect the association between supporting minority rights and separatism. The social consequence of institutionalising minority rights on a territorial (republican) basis is that titular groups living inside their republics are not so quick to extend their support for minority rights to separatism. However, titular groups living outside their republics feel more vulnerable and seem to be more radical and quick to manifest a stronger association between normative support for cultural and political rights and supporting separatism. It seems that the autonomy arrangements have provided those inside the republics with a solution for the improvement of their group position. In this study we employed theoretical insights to analyse the empirical reality of Russian-titular inter-group relationships regarding the controversial issue of minority rights. In a systematic effort, we identified specific patterns of normative support for minority rights, as well as crucial social psychological and sociological factors that can explain this normative support. Understanding the social consequences of specific policies as well as their social-psychological interpretations has implications for both the theoretical refinement of explanatory models and for the identification of the politically relevant public opinions about minority rights. The classic sociological principle relating structural dis-/advantage between dominant and subordinate groups to intergroup power struggles48 should be further specified according to the constitutional arrangements that make the same groups feel culturally or politically vulnerable in one setting, but not in another. Additionally, the degree to which individuals internalise and respond to the political arrangements that institutionalise group rights is remarkable. And it is even more remarkable that 48

Blumer, n 8 above.

240 Anca Minescu for the same ethnic group (the titular populations or the Russians) the same provisions can both reassure and threaten the status quo.49 Overall, one can expect that subordinate groups who can appeal to minority rights for the advancement of their status will more readily subscribe to the discourses of multiculturalism than dominant groups who may feel threatened by this. To activate the support of subordinate groups, appealing to their ethnic/group identity and indicating the degree of relative deprivation experienced by the group is almost a guaranteed path to a successful mobilisation. Furthermore, it seems that institutionalising multiculturalism with arrangements of territorial autonomy prevents further claims to separatism among those who live protected by these laws within the designated borders of privilege. But, in contrast, those living outside these borders are left unprotected and vulnerable; they are the ones who would more readily pursue the more extreme minority right option of separatism. The current results also point to the difficulties of managing ethnic diversity, by showing how political controversies and structural group positions affect individuals’ normative support for minority rights. Given the collective nature of such rights (as opposed to the individual human rights), it seems unsurprising that considerations of an inter-group nature affect people’s normative beliefs. The contributions of sociology and social psychology to the understanding of the minority rights issue consist exactly in emphasising which group- or individual-level factors can be addressed in order to enhance more positive inter-group attitudes. However, as the present analysis reveals, general predictions need to be specified to the context of the particular political situation, in which minority rights become contested in the power struggle between groups. The subordinate or dominant status is defined by ethnicity in Russia, but more importantly it is also conditioned by the political (territorial and administrative) entitlements associated with a particular ethnicity. In this way, paradoxically, while in the Federation titular groups are at a disadvantage within the Federation as a whole, within their republics, they assume a dominant position. Equally, Russians may find themselves struggling for their rights within the autonomous republics. In the end, minority rights seem to be embraced at certain times by those who can strategically use them in their inter-group power struggles. SELECT BIBLIOGRAPHY Barry, B, Culture and Equality: an Egalitarian Critique of Multiculturalism (Cambridge, Polity Press, 2001) Baubock, R, ‘Cultural Minority Rights for Immigrants’ (1996) 30 International Migration Review 203

49

Codagnone, and Filippov, n 2 above; Stepanov, n 17 above.

Supporting Minority Rights 241 Berry, J and Kalin, R, ‘Multicultural and Ethnic Attitudes in Canada: an Overview of the 1991 National Survey’ (1995) 27 Canadian Journal of Behavioral Science 301 Blumer, H, ‘Race Prejudice as a Sense of Group Position’ (1958) 1 Pacific Sociological Review 3 Bobo, L and Hutchings, VL, ‘Perceptions of Racial Group Competition: Extending Blumer’s Theory of Group Position to a Multiracial Social Context’ (1996) 61 American Sociological Review 951 ——, ‘Prejudice as Group Position: Micro-foundations of a Sociological Approach to Racism and Race Relations’ (1999) 55 Journal of Social Issues 445 Brewer, M, ‘The Psychology of Prejudice: Ingroup Love or Outgroup Hate?’ (1999) 55 Journal of Social Issues 429 Codagnone, C and Filippov, V, ‘Equity, Exit and National Identity in a Multinational Federation: the “Multicultural Constitutional Patriotism” Project in Russia’ (2000) 26 Journal of Ethnic and Migration Studies 263 Ellemers, N, Spears, R and Doosje, B, ‘Self and Social Identity’ (2002) 53 Annual Review of Psychology 161 Etzioni, A, ‘The Evils of Self-determination’ (1993) 89 Foreign Policy 21–35 Evans, G and Need, A, ‘Explaining Ethnic Polarisation over Attitudes towards Minority Rights in Eastern Europe: a Multilevel Analysis’ (2002) 31 Social Science Research 653 Gilens, M, Sniderman, PM and Kuklinski, JH, ‘Affirmative Action and the Politics of Realignment’ (1998) 28 British Journal of Political Science 159 Guimond, S and Dube-Simard, L, ‘Relative Deprivation Theory and the Quebec Nationalist Movement: the Cognition-Emotion Distinction and the Personal-Group Deprivation Issue’ (1983) 44 Journal of Personality and Social Psychology 526 Gurr, TR, Why Men Rebel (Princeton, Princeton University Press, 1970) Hagendoorn, L, Linssen, H and Tumanov, S, Inter-group Relations in States of the Former Soviet Union: the Perception of Russians (Hove, Psychology Press, 2001) Hornsey, MJ and Hogg, MA, ‘Assimilation and Diversity: an Integrative Model of Subgroup Relations’ (2000) 4 Personality and Social Psychology Review 143 Horowitz, DL, Ethnic Groups in Conflict (Berkeley, University of California Press, 1985) Kreptul, A, ‘The Constitutional Right of Secession in Political Theory and History’ (2003) 17 Journal of Libertarian Studies 39 Kymlicka, W, Multicultural Citizenship (Oxford, Clarendon Press, 1995) ——, ‘Nation-building and Minority Rights: Comparing West and East’ (2000) 26 Journal of Ethnic and Migration Studies 183 Lapidus, GW, ‘Ethno Nationalism and Political Stability: the Soviet Case’ in R Denber (ed), The Soviet Nationality Reader: the Disintegration in the Context (Oxford, Westview Press, Inc, 1992) Leach, CW, Iyer, A, and Pedersen, P, ‘Angry Opposition to Government Redress: when the Structurally Advantaged Perceive Themselves as Relatively Deprived’ (2007) 46 (1) British Journal of Social Psychology 191–204 Lukic, R, ‘Twilight of the Federations in East Central Europe and the Soviet Union’ (1992) 45 Journal of International Affairs 576 Marshall, MG, ‘States at Risk: Ethnopolitics in the Multinational States of Eastern Europe’ in TR Gurr (ed), Minorities at Risk (Washington, United States Institute of Peace Press, 1993)

242 Anca Minescu Massey, G, Hodson, R and Sekulic, D, ‘Ethnic Enclaves and Intolerance: the Case of Yugoslavia’ (1999) 78 Social Forces 669 McIntosh, ME, MacIver, ME, Abel, DG and Nolle, DB, ‘Minority Rights and Majority Rule: Ethnic Tolerance in Romania and Bulgaria’ (1995) 73 Social Forces 939 Minescu, A, Hagendoorn, L and Poppe, E, Types of Identification and Intergroup Differentiation in the Russian Federation (2008) 63 Journal of Social Issues 321 Preece, JJ, ‘National Minority Rights vs. State Sovereignty in Europe: Changing Norms in International Relations?’ (1997) 3 Nations and Nationalism 345 Rakowska-Harmstone, T, ‘Chickens Coming Home to Roost: a Perspective on Soviet Ethnic Relations’ (1992) 45 Journal of International Affairs 519 Runciman, WC, Relative Deprivation and Social Justice: a Study of Attitudes to Social Inequality in Twentieth Century England (Berkeley, University of California Press, 1966) Scheepers, P, Gijsberts, M, and Coenders, M, ‘Ethnic Exclusionism in European Counties: Public Opposition to Civil Rights for Legal Migrants as a Response to Perceived Ethnic Threat’ (2002) 18 European Sociological Review 17 Smith, G, ‘Russia, Multiculturalism and Federal Justice’ (1998) 50 Europe-Asia Studies 1393 Stepanov, V, ‘Ethnic Tensions and Separatism in Russia’ (2000) 26 Journal of Ethnic and Migration Studies 305 Tajfel, H, Social Identity and Intergroup Relations (Cambridge, Cambridge University Press, 1982) Tishkov, V, Ethnicity, Nationalism and Conflict in and after the Soviet Union (London, Sage, 1997) Vanneman, RD and Pettigrew, TF, ‘Race and Relative Deprivation in the Urban United States’ (1972) 13 Race 461 Verkuyten, M, ‘Ethnic Group Identification and Group Evaluation among Minority and Majority Groups: Testing the Multiculturalism Hypothesis’ (2005) 88 Journal of Personality and Social Psychology 121 Verkuyten, M and Yildiz, AA, ‘The Endorsement of Minority Rights: the Role of Group Position, National Context and Ideological Beliefs’ (2006) 27 Political Psychology 527 Walker, I and Pettigrew, TF, ‘Relative Deprivation Theory: an Overview and Conceptual Critique’ (1984) 23 British Journal of Social Psychology 301

Part V

Rights in a Global World

12 The Protection of Groups and Group Rights in Europe STEPHAN BREITENMOSER*

INTRODUCTION

T

he position of the individual in contemporary international law has undergone a most remarkable development in the few last decades. Until the proclamation of the United Nations Charter in 1945 the main participants in international law were states and international organisations.1 Thus, individuals had no rights on the international level and no standing before international institutions and courts. As an exception, individuals could receive diplomatic protection through their home state, but this form of protection was and still is the prerogative of a state towards its nationals, and not a right of the individual. Therefore, diplomatic protection2 can only be formally claimed and given by a state in its own interest, and not by individuals or a group of individuals, in respect of an injury suffered by one of its nationals.3 Since 1945, the individual has been acknowledged in various universal4 and regional conventions5 as a subject of international law in the sense of an actor in the international sphere.6 In a second phase, individuals

* I would like to thank lic iur Chiara Piras, research assistant at the Faculty of Law at the University of Basel, for her valuable help. 1 EPIL II (1995) Encyclopaedia of Public International Law 957. 2 EPIL I (1992) 1045. 3 EPIL II (1995) 957. 4 See the Charter of the United Nations (1945), the Universal Declaration of Human Rights (1948), the UN Convention relating to the Status of Refugees (1951), the International Covenant on Civil and Political Rights (ICCPR) (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the UN Convention on Racial Discrimination (1966), the UN Convention on the Elimination of All Forms of Discrimination Against Women (1981), the UN Convention on the Rights of the Child (1989). 5 K Hailbronner, ‘Der Staat und der Einzelne als Völkerrechtssubjekt’ in WG Vitzthum (ed), Völkerrecht (1997). 6 I Cameron, An Introduction to the European Convention on Human Rights (Uppsala, Iustus Förlag, 1998), p 17.

246 Stephan Breitenmoser were gradually enabled to pursue those rights before international institutions and courts,7 and they may also, in relation to certain criminal acts, be legally responsible before national and international criminal courts.8 During those two phases, members of ethnic, religious and linguistic groups and minorities were protected by general prohibitions of discrimination.9 In a third phase, the protection of human rights was broadened and strengthened as a result of an evolving and dynamic jurisprudence by universal and regional committees and courts.10 New rights, which were also applicable to members of groups and minorities, were recognised and, later, positive obligations of states to provide a preventive protection for every individual as well as for members of groups and minorities were developed.11 In 1993, after the end of the Cold War, human rights were recognised as universal and inseparable, and some fundamental rights were even accepted as being ius cogens.12 This chapter presents an overview of the existing instruments directly or indirectly protecting group and minority rights in Europe.

INDIVIDUAL VERSUS COLLECTIVE RIGHTS

Both human rights on the international level and constitutional rights on the municipal level13 are primarily individual rights which give protection to a single natural or legal person.14 In recent times, entities and groups of individuals may also pledge a complaint before national and international courts and institutions. Within this second category two modes of protection can be distinguished: (1) the protection of the collective rights of a group, and (2) the protection of individuals belonging to a group.15 However, the latter mode of protection is, in fact, merely an enlargement of traditional individual rights.

7

Ibid. I Brownlie, Principles of Public International Law (5th edn, Oxford, Oxford University Press, 1998), p 565. 9 Eg ICCPR, Art 26, EPIL I (1992) 1079. 10 Such as the European Court of Human Rights, UN Human Rights Committee, Bodies of the American Convention on Human Rights (1969) and the African Charter of Human and Peoples’ Rights (1981). 11 W Kälin and J Künzli, Universeller Menschenrechtsschutz (Helbing & Lichtenhahn, 2005), p 117. 12 Ie for members of groups and minorities, important prohibitions of discrimination and the right to self-determination. 13 Hailbronner, n 5 above, p 194. 14 See S Hobe and O Kimminich, Einführung in das Völkerrecht (8th edn, Stuttgart, UTB, 2004), p 160. 15 E Riedel, ‘Group Rights and Collective Aspects of Individual Human Rights’ in W Kalin (ed), Current Problems of Human Rights Protection (CF Muller, 1994). 8

The Protection of Groups and Group Rights in Europe 247 Protection of the Group Itself The recognition and enforcement of the collective rights of a group remains the topic of vivid discussion in the academic community. The predominant view in academic literature remains opposed to the idea of collective or group rights. The basic argument lies in the fact that the historical notion of human rights seeks to protect the individual from the state. However, gradually, adherents of the opposite view, namely that collective or group rights should be seen as a new and specific category of human rights, are beginning to be more audible.16 Examples of such collective rights are, in particular, (a) the right to self-determination17 and (b) development18 of peoples, as well as (c) the prohibition of discrimination.19 The rights to self-determination and to development of peoples are considered part of the third generation of the collective rights of peoples (of the South)20 and are primarily interpreted as colonial peoples’ right to political independence.21 The third generation finds its normative expression in the 1981 African Charter on Human and Peoples’ Rights.22 (a) The rights of groups become very prominent in connection with the principle, or right, of self-determination, which is defined as the right of cohesive national groups to choose for themselves a form of political organisation as well as their relation to other groups. Since 1945, developments in the United Nations have strengthened this position and this right is generally seen as a legal principle.23 (b) The discussion in connection with peoples’ right to development has been revived by the claim of inseparability of development and human rights.24 The same problem arises in connection with the 16

See ibid p 64. See EPIL IV (2000) 364; Hobe and Kimminich, n 14 above, p 111; D Brühl-Moser, Die Entwicklung des Selbstbestimmungsrechts der Völker unter besonderer Berücksichtigung seines innerstaatlich-demokratischen Aspekts und seiner Bedeutung für den Minderheitenschutz (1994), p 3; S Oeter, ‘Selbstbestimmungsrecht im Wandel, Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und “vorzeitige” Anerkennung’ (1992) 52 ZaöRV 741. 18 See H Scharpenack, Das Recht auf Entwicklung (1996), p 98; P Slinn, ‘The International Law of Development: a Millenium Subject or a Relict of the Twentieth Century?’ in W Benedek, H Isak and R Kicker (eds), Development and Developing International and European Law (Frankfurt, Peter Lang, 1999). 19 EPIL I (1992) 1079. 20 The three generations or dimensions of human rights developed during the Cold War are civil and political rights as a first dimension; economic, social and cultural rights as the second dimension; and collective rights as a third dimension: E Riedel, ‘Menschenrechte der dritten Dimension’ (1989) EuGRZ 11. 21 M Nowak, Introduction to the International Human Rights Regime (Brill Academic Publishers, 2003), p 23. 22 P Kunig, ‘The Protection of Human Rights by International Law in Africa’ (1982) 25 German Yearbook of International Law 138. 23 Brownlie, n 8 above, p 599. 24 A Barthel, Entwicklung und Menschenrechte: das Recht aus Entwicklung als Menschenrecht (1986), p 61. 17

248 Stephan Breitenmoser right to the use of shared freshwater, which creates a new challenge for the international community. States have to consider collective actions to ensure the use of collective goods without any political boundaries.25 (c) The UN Charter, which entered into force in 1945, contains a significant number of references to ‘human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’. These general provisions for the prohibition of discrimination have provided the background for a substantial body of multilateral conventions and practices by the organs of the United Nations.26 By 1965, at the latest, it was possible to conclude that the principle of respect and protection of human rights had become recognised as a legal standard.27 Protection of Individuals Belonging to a Group After having exhausted all national court remedies according to the local remedy rule,28 individuals belonging to a group who feel that their rights have been violated may either apply to an independent court or to a committee of independent experts. While such committees exist primarily on the universal level of the United Nations and its conventions, the European,29 American30 and African states31 have created regional conventions and courts. A third possibility would be a state application to these courts,32 a route which has, however, been remarkably underused because of diplomatic restraint or considerateness.33 In practice, the possibility of an application procedure for individuals before an independent international court and the right given to individuals and organisations to challenge the Contracting Parties is the real value, and the reason for the effectiveness, of the European Convention on Human 25 E Benvenisti, ‘Collective Action in the Utilization of Shared Freshwater: the Challenges of International Water Resource Law’ (1996) AJIL 384. 26 See n 4 above. 27 Brownlie, n 8 above, p 602. 28 See P Leach, Taking a Case to the European Court of Human Rights (2nd edn, Oxford, Oxford University Press, 2005), p 134. 29 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), amended by 14 Protocols (1951–2006). The ECtHR was established in 1998 as a court on a permanent basis by Amendment No 11 to the ECHR. 30 American Convention on Human Rights (1969). The Inter-American Court of Human Rights is a permanent body and an autonomous organ of the Organisation of American States. 31 African Charter on Human and Peoples’ Rights (1981) (so-called Banjul Charter). 32 ME Villiger, Handbuch der Europäischen Menschenrechtskonvention (2nd edn, 1999), p 118; see F Matscher, ‘Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der Europäischen Konvention für Menschenrechte’ in B-C Funk (ed), Der neue Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich (2002). 33 Leach, n 28 above, p 16.

The Protection of Groups and Group Rights in Europe 249 Rights (ECHR).34 It is up to the states to secure the rights and freedoms defined in the ECHR within their jurisdiction. This means that nationality and place of residence are irrelevant to the right to complain to the court regarding violations of the ECHR, reflecting the obligation in Article 1 of the ECHR on the Contracting Parties to secure ECHR rights for everyone on their territory.35 Members of groups can (provided they meet the application criteria) also submit their claims before the European Court of Human Rights (ECtHR) in Strasbourg.36 INDIVIDUAL APPLICATIONS ACCORDING TO ECHR, ARTICLE 34

Article 34 of the ECHR is the main provision of that Convention concerning the admissibility criteria for applications addressed to the ECtHR. It states that the Court may receive applications from ‘any person, nongovernmental organization or group of individuals’.37 For a legal person (eg an association or trade organisation) to act for its members without claiming a violation of its own rights (but arguing that the collective rights of the members have been violated), it is essential that the organisation can prove its entitlement to represent its members as well as the identity of the affected members.38 Otherwise, the application will be seen as anonymous and will be declared inadmissible on this ground alone. After all, under such circumstances the grouping of individual applications is concerned.39 Different Types of Applicants In accordance with ECHR, Article 34, an applicant bringing a claim before the ECtHR must claim to be the victim of a violation of one or more Convention rights. The Court will only consider the particular circumstances of each case and will not permit abstract challenges (actio popularis),40 nor will the Court admit hypothetical breaches.41 The test applied by the 34 Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No 005. 35 Leach, n 28 above, p 118. 36 Ibid p 5. 37 See A Haefliger and F Schürmann (eds), Die Europäische Menschenrechtskonvention und die Schweiz (2nd edn, 1999), p 388; T Buergenthal, International Human Rights in a Nutshell (3rd edn, West Publishing Co, 2002), p 133. 38 See A Peters, Einführung in die Europäische Menschenrechtskonvention (Munich, CH Beck, 2003), p 232; P Van Dijk and GJH Van Hoof, Theory and Practice of the European Convention on Human Rights (The Hague, Kluwer Law, 1998), p 46. 39 C Grabenwarter, Europäische Menschenrechtskonvention (2005), p 68. 40 Lindsay and others v United Kingdom, 17 January 1997, 31699/94, (1997) 23 EHRR CD199 (the application, claiming to represent more than 1 million people in Northern Ireland, was declared inadmissible under the provisions of the ECHR). 41 Buckley v United Kingdom, 25 September 1996, 20348/92, EHRR 1996-IV, 1271.

250 Stephan Breitenmoser ECtHR is that the applicant must show that he or she has been personally or directly affected by the alleged violation of the ECHR.42 Yet, Article 34 may permit an applicant to complain that the law itself violates his or her rights as provided for by the ECHR, even if there has been no specific measure implemented against them. Thus, potential victims of Convention violations must show the Court that there is a real personal risk of being directly affected by the violation. Those considered to be at risk fall into various categories,43 including those at risk of criminal prosecution.44 An individual who is not directly affected by a particular measure or omission may nevertheless have been ‘indirectly’ affected by the violation of the Convention rights of another person, eg family members of a person subject to a deportation decision.45 Examples of Group-related Applications to the European Court of Human Rights According to ECHR, Article 34, individuals, groups of individuals, nongovernmental organisations (NGOs), companies, shareholders, trusts, professional associations, trade unions, political parties and religious organisations may all submit applications to the ECtHR.46 Groups of Individuals In Guerra and others v Italy,47 40 inhabitants of an Italian town brought an application under ECHR, Articles 2, 8 and 10 complaining of the risks of pollution or a major accident at a chemical factory a kilometre away. In the case of Balmer-Schafroth v Switzerland,48 10 applicants living in the vicinity of a nuclear power plant at Muhleberg challenged the granting of an operating licence, invoking ECHR, Articles 2, 6(1), 8 and 13.49 Companies and Shareholders In Sunday Times v United Kingdom,50 the publisher, editor and a group of journalists from the Sunday Times invoked ECHR, Article 10 in challenging 42

Leach, n 28 above, p 62. Dudgeon v United Kingdom, 24 February 1983, 7525/76, A/59, and Norris v Ireland, 26 October 1988, 10581/83, A/142, and Modison v Cyprus, 22 April 1993, 15070/89, A/259, concerned domestic legislation criminalising homosexual acts. 44 Leach, n 28 above, p 126. 45 Ibid p 129. 46 Ibid p 115. 47 Guerra and others v Italy, 19 February 1998, 14967/89, EHRR 1998-I, 210. 48 Balmer-Schafroth v Switzerland, 26 August 1997, 22110/93, EHRR 1997-IV, 1346. 49 See also Hatton and others v United Kingdom, 7 August 2003, 36022/97, EHRR 2003VIII, 189 and Fadeyeva v Russia, 9 June 2005, 55723/00. 50 Sunday Times v United Kingdom, 26 November 1991, 13166/87, A/217. 43

The Protection of Groups and Group Rights in Europe 251 the obtaining of an injunction by the Attorney General which prevented the publication of articles concerning the drug Thalidomine, which was the subject of legal proceedings. Trade Unions In Swedish Engine Drivers’ Union v Sweden,51 the applicant union challenged the system of collective bargaining which could only be carried out with the State Employees’ Union, invoking ECHR, Articles 11, 13 and 14. Religious Bodies In Canea Catholic Church v Greece,52 the church challenged a Greek civil court’s refusal to acknowledge that it has legal personality, resulting in it being unable to take legal proceedings, invoking ECHR, Articles 6(1), 9, 14 and Article 1 of Protocol 1. Non-governmental Organisations In Rai, Allmond and ‘Negotiate Now’ v United Kingdom,53 the applicant organisation, which sought to promote peace in Northern Ireland, challenged the refusal to permit a rally in Trafalgar Square, invoking ECHR, Articles 9, 10, 11, 13 and 18. Political Parties In Freedom and Democracy Party (Özdep) v Turkey,54 the applicant political party complained about its dissolution by the Constitutional Court and the banning of its leaders from holding similar office in any other political party, invoking ECHR, Articles 9, 10, 11 and 14. Minority Rights The protection of minorities is a further historical antecedent of international human rights protection, which is also closely related to the protection power of national states. Ethnic, linguistic and religious minorities developed as new borders were drawn between states in the aftermaths of war.55 51

Swedish Engine Drivers’ Union v Sweden, 25 April 1996, 5614/72, EHRR 1996-II, 637. Canea Catholic Church v Greece, 16 December 1997, 25528/94, Reports 1997-VIII, 2843. 53 Rai, Allmond and ‘Negotiate Now’ v United Kingdom, 6 April 1995, 25522/94, (1995) 19 EHRR CD 93. 54 Freedom and Democracy Party v Turkey, 8 December 1999, 23885/94, 1999-VIII, 293. 55 Nowak, n 21 above, p 18. 52

252 Stephan Breitenmoser Protection of Minority Rights and the Development of Such Protection Efforts to furnish an internationally accepted guarantee of the protection of minority rights are made on both a universal and regional level, especially in Europe, and such efforts began even before 1945. The League of Nations’ politically motivated system of protection of minority rights after the First World War was the first phase in the attempt to establish a universal protection of minority rights: The victorious forces of that war attempted to control tensions between minorities, which were provoked by the new borders and states, by signing peace treaties under which the newly created states agreed to grant certain minimum rights to their national minorities.56 In a second phase, the protection of minorities developed within the measures taken for the protection of human rights after the Second World War. However, even the general prohibition of discrimination in Article 27 of the International Covenant on Civil and Political Rights was based on an individual approach which negated the existence of group rights.57 In a third phase, minority rights were recognised as non-binding within the measures adopted by the United Nations for the protection of groups. This was because the majority of states still feared that the acceptance of collective minority rights would be the first step towards the acceptance of a general right to self-determination,58 leading inevitably to further ambitions of autonomy and secession.59 Although nowadays the protection of minorities by bilateral and multilateral treaties is generally recognised,60 there is no universally valid definition of ‘minority’, either on the international or on the European level.61 Nevertheless, there is a common understanding of the objective and subjective elements of affiliation to a minority, which were presented to the United Nations for the first time by Francesco Capotorti in 1978.62 The Parliamentary Assembly of the Council of Europe specified its own definition

56 See P Thornberry and M Estebenez (eds), Minority Rights in Europe (Strasbourg, Council of Europe Publishing, 2004). 57 See S Breitenmoser, B Riemer and C Seitz (eds), Praxis des Europarechts–Grundrechtsschutz (Schulthess, 2006), p 422 et seq. 58 See J Castellino, International Law and Self-Determination (The Hague, Kluwer Law International, 2000), p 75. 59 See EPIL III (1997) 410. 60 A Bloed and P Van Dijk (eds), Protection of Minority Rights through Bilateral Treaties (The Hague, Kluwer Law International, 2000); Thornberry and Estebenez, n 56 above; T Malloy, National Minority Rights in Europe (Oxford, Oxford University Press, 2005). 61 See JA Frowein and Roland Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention’ (1999) ZaöRV 649. 62 F Capotorti, Étude des droits des personnes appartenant aux minorités ethniques, religieuses et linguistiques (Doc E /CN. 4/Sub. 2/1979/384, Publications des Nations Unies, Genève, 1979).

The Protection of Groups and Group Rights in Europe 253 of the characteristics of minorities in its recommendation 1201 of 199363 on an additional protocol to the ECHR on the protection of the rights of national minorities.64 The basic element of any definition of minorities is constituted by the distinctive features of minorities when compared to the majority of the inhabitants of a given state. A minority is a group which is numerically inferior to the rest of the population of a state and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population and who, if only implicitly, maintain a sense of solidarity directed towards preserving their culture, traditions, religion or language.65 In the absence of legal remedies and enforceability of the prevailing definition of minorities, a great number of states (even in Europe) deny the existence of such minorities on their national territories. The fear is that if they were to achieve a stronger position, those minorities would then rely on their right of self-determination66 and therefore on an advanced right to autonomy and secession, which would question the effective national borders. The ECHR, considered the most important instrument of the Council of Europe, provides only indirectly for the protection of minorities67 under Article 14,68 freedom from discrimination,69 and Protocol No 12 to the ECHR.70 Initially, the intention was to include the protection of minorities 63 Parliamentary Assembly of the Council of Europe, Recommendation 1201 (1993) (1) on an additional protocol on the rights of national minorities to the European Convention on Human Rights. 64 ‘For the purposes of this Convention, the expression “national minority” refers to a group of persons in a State who (a) reside on the territory of that State and are citizens thereof, (b) maintain longstanding, firm and lasting ties with that State, (c) display distinctive ethnic, cultural, religious or linguistic characteristics, (d) are sufficiently representative, although smaller in number than the rest of the population of that State or of a region of that State, (e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language.’ 65 EPIL III (1997) 411. 66 EPIL IV (2000) 364. 67 C Hillgruber, ‘Minderheitenschutz im Rahmen der Europäischen Menschenrechtskonvention-Stand und Entwicklung’ in D Blumenwitz and G Gornig (eds), Minderheiten- und Volksgruppenrechte in Theorie und Praxis (Köln, Wiss U Pol, 1993); R Hofmann, ‘Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems’ (1997) 40 German Yearbook of International Law 356. 68 ECHR, Art 14: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. 69 J Fawcett, ‘The International Protection of Minorities’ in Minority Rights, Group Report No 41 (1979); I Diaconu, Minorities from Non-Discrimination to Identity (Bucuresti, Lumina Lex, 2004). 70 Art 1 of Protocol No 12 to the ECHR: ‘(1) The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority,

254 Stephan Breitenmoser in a separate Protocol. In 1993, a great number of Member States rejected this approach, fearing that a submission to the ECtHR would narrow their sovereign latitude of judgement. Nevertheless, recommendation 1201 of the Parliamentary Assembly in support of an additional protocol, in particular Articles 10 and 11 thereof, has been very important. In addition, cooperation between the European Council and the European Union is essential since the member states of both organisations have to fulfil the criteria of the Copenhagen Summit which also provide for the protection of minorities.71 For many years now, proposals have been made for the formation of a court for the protection of minority rights.72 Considering the subsidiary character of the ECHR, the protection of group rights through such a court would require that the court acts as a court or tribunal of first instance, until the national legislator implements the development(s) of its jurisprudence.73 Protection of Minorities by the Organisation for Security and Co-operation in Europe (OSCE) The protection of human and minority rights through the OSCE74 is known as the ‘human dimension’. It consists of a number of tools which monitor the implementation of commitments made by participating states in the field of human rights and democracy.75 That protection is composed of two instruments: the Vienna and Moscow Mechanisms, the latter partly constituting a further elaboration of the Vienna Mechanism. The Vienna Mechanism allows participating states, through an established set of procedures, to raise questions relating to the human dimension situation in other OSCE states. If the information provided appears insufficient, there is the possibility to inform other OSCE participating states, as well as bilateral negotiations.76 The Moscow property, birth or other status. (2) No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1’. 71

Conclusions of the Copenhagen Summit of 22 June 1993, SN 180/1/93, 13. A Verstichel, ‘Recent Developments in the UN Human Rights Committee’s Approach to Minorities, with a Focus on Effective Participation’ (2005) 12 International Journal on Minority and Group Rights 25. 73 S Breitenmoser and D Richter, ‘Die Verwirklichung der KSZE-Grundsätze zum Schutze nationaler Minderheiten durch Organleihe bei der EMRK’ (1991) EuGRZ 141. 74 Before the Budapest Conference in 1994, the abbreviation was CSCE (Conference on Security and Cooperation in Europe). 75 See J Binder, The Human Dimension of the OSCE: From Recommendation to Implementation (Vienna, Verlag, 2001); A Bloed, ‘The OSCE and the Issues of National Minorities’ in E Phillip and A Rosas (eds), Universal Minority Rights (Turku, Abo Akademi, 1995). 76 M Harris, Human Rights Monitoring and the CSCE: a Perspective from Budapest (HM, 1995), p 18. 72

The Protection of Groups and Group Rights in Europe 255 Mechanism builds on this and provides for the additional possibility for participating states to establish ad hoc missions of independent experts to assist in the resolution of a specific human dimension problem, either on their own territory or in other OSCE participating states. The Office of the OSCE High Commissioner on National Minorities was established in 1992 to identify and seek early resolution of ethnic tensions that might endanger peace, stability or friendly relations between OSCE participating states.77 The High Commissioner’s task is to provide for an ‘early warning’ and, if appropriate, an ‘early action’ at the earliest possible stage with regard to tensions involving national minority issues, which in the judgement of the High Commissioner have the potential to develop into a conflict within the OSCE area.78 PROTECTION OF GROUPS BY THE COUNCIL OF EUROPE

Notwithstanding the above-mentioned limitation concerning the protection of groups in the procedure before the ECtHR, the ECHR itself contains a number of rights that are vital for members of different groups in order to preserve and protect their affiliation to these groups. Protection of Group Members in the ECHR ECHR, Article 14 (Prohibition of Discrimination) The general principle of equality and non-discrimination is a fundamental element of international human rights law. Within the Convention system, the relevant provision in this respect is ECHR, Article 14. It prohibits any discrimination on ‘any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. However, the protection provided by Article 14 with regard to equality and non-discrimination is limited in comparison with the corresponding provisions of other international instruments.79 The principal reason is that ECHR, Article 14, unlike similar provisions in other instruments, does not contain an independent prohibition of discrimination. It prohibits discrimination only with regard to the ‘enjoyment of the rights and freedoms’ set forth in the Convention.80

77 A Rönquist, ‘The Functions of the OSCE High Commissionar on National Minorities with Special Regard to Conflict Prevention’ in E Klein (ed), The Institution of a Commissioner for Human Rights and Minorities and the Prevention of Human Rights Violations (1995). 78 Breitenmoser, Riemer and Seitz, n 57 above, p 390. 79 Eg Universal Declaration of Human Rights, Art 7 or ICCPR, Art 26. 80 Council of Europe, Explanatory Report on Protocol 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No 177), p 1.

256 Stephan Breitenmoser The prohibition in Article 14 is clearly an accessory to other, substantive guarantees in the ECHR. Because it complements the substantive provisions of the Convention and Protocols, it enjoys a status of an auxiliary provision and has also been seen as a ‘parasitic’ provision.81 ECHR, Article 14 safeguards individuals and groups of individuals, placed in similar situations, from discrimination in the enjoyment of the rights and freedoms set forth in other provisions of the Convention. Thus, Article 14 is very frequently invoked by applicants and the court very often deals with allegations under this article.82 Under the principle of equality, equal situations must be treated equally and unequal situations differently. A failure to do so would amount to discrimination. Therefore, discrimination is an act that makes distinctions or introduces limitations of a discriminatory character where the criteria employed have no reasonable and adequate relationship with the qualification used. In other words, discrimination may be established if the differential treatment has no ‘objective and reasonable justification’ or if proportionality between the aim sought and the means employed is lacking.83 Not every distinction has to be regarded as discriminatory, but every limitation needs a legitimate objective and reasonable justification.84 Discrimination on the Basis of Language In the Belgian Linguistic case,85 the ECtHR found a breach of ECHR, Article 8 in combination with violations of Article 14 and Protocol No 1, Article 2. The applicants, French-speaking inhabitants of the surroundings of Brussels, submitted six applications, both on their own behalf and on behalf of their under-aged children, against the Kingdom of Belgium. The applicants argued that provisions of the Belgian linguistic legislation relating to education violated the requirements of the Convention and its Protocol No 1. They wanted their children to be educated in French. The Brussels regional area belongs to the part of Belgium considered by law as Dutch-speaking. They complained that the Belgian state did not provide or subsidise French-language education in the municipalities where the applicants lived and did not allow the applicants’ children to attend the French classes which existed in certain places. The ECtHR held that only one provision of the Act of 1963, concerning access to the French-language schools existing in the six communes in the regional area of Brussels, did 81 L Wildhaber, Protection against Discrimination under the European Convention on Human Rights: a Second-Class Guarantee? (Riga, Graduate School of Law, 2001). 82 M Tsatsa-Nikolovska, Non-discrimination: a Human Right: Seminar Marking the Entry into Force of Protocol No 12 to the European Convention on Human Rights (2005), p 26. 83 Ibid p 29. 84 Grabenwarter, n 39 above, p 431. 85 Belgian Linguistic case, 23 July 1968, 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, A/6.

The Protection of Groups and Group Rights in Europe 257 not comply with the requirements of ECHR, Article 14 read in conjunction with the first sentence of Protocol No 1, Article 2. It reserved, for the applicants concerned, the right, should the occasion arise, to apply for just satisfaction in regard to this particular point. Discrimination on the Ground of Sex86 In Petrovic v Austria,87 the applicant, an Austrian national, was denied a parental leave allowance to look after his child. The applicant brought a claim of discrimination under ECHR, Article 8, as well as Article 14 in conjunction with Article 8. The ECtHR held that there was no violation of Article 14 in conjunction with Article 8. A concurring opinion argued that equality of treatment between men and women under the ECHR did not require that they be treated absolutely alike under tax and economic provisions; rights such as parental leave were indisputably inspired by the biological and psychological bond between mother and child, especially in the period following birth. ECHR, Article 8 (Right to Respect for Private and Family Life) ECHR, Article 8 provides a right to respect for a person’s private and family life, his home and his correspondence, subject to certain restrictions that are in accordance with the law and necessary in a democratic society. This article clearly provides a right to be free of unlawful searches. Since a definition is lacking, the rights laid down in this provision cannot be clearly distinguished from each other. Such circumstances were taken into account by the doctrine and jurisprudence in the areas of family and marriage law, where a distinction between the terms has often been dropped. Instead, the composite term of private and family life has been adopted.88 There is no exhaustive classification and containment of the four protected rights that permit a dynamic case law of the ECtHR. Consequently, it leads to an expansion of the protected rights in ECHR, Article 8(1). Article 8 is vital for members of groups to protect their affiliation to the group and to respect their distinctions. Private Life in Connection with Homosexuality In Dudgeon v United Kingdom,89 the applicant was a shipping clerk and gay activist living in Belfast, Northern Ireland, where he was interrogated by the Royal Ulster Constabulary about his sexual activities. The ECtHR agreed with 86 87 88 89

EPIL IV (2000) 390. Petrovic v Austria, 27 March 1998, 20458/92, EHRR 1998-II, 579. Breitenmoser, Riemer and Seitz, n 57 above, p 49. Dudgeon v United Kingdom, 22 October 1981, 7525/76, A /45.

258 Stephan Breitenmoser the Commission that the criminalisation in Northern Ireland of homosexual acts between consenting adults was a violation of ECHR, Article 8. Adoption by Homosexuals France,90

the applicant, a French national, alleged a violation by In Fretté v France of Article 8 in conjunction with Articles 14 and 6. The Paris Social Services, Child Welfare and Health Department opened a social inquiry into the applicant’s request for approval to adopt a child. During the interview with a psychologist from the Department, the applicant revealed that he was a homosexual. The Paris Social Services Department rejected his request for authorisation to adopt indicating that, among other aspects, the applicant’s ‘choice of lifestyle’ did not seem to be one that would provide a child a suitable home. The ECtHR held that the decision to reject the applicant’s application for authorisation pursued a legitimate aim, namely to protect the health and rights of children who could be involved in an adoption procedure. Taking into account the broad margin of discretion to be left to states and the need to protect children’s best interests, the Court concluded that the refusal to authorise adoption did not infringe the principle of proportionality.91 Private Life in Connection with Transsexuality In Christine Goodwin v United Kingdom,92 the applicant, a post-operative male to female transsexual, claimed that she faced sexual harassment at work during and following her gender re-assignment. She also alleged that the fact that she kept the same national insurance number meant that her employer had been able to discover that she previously worked for them under another name and gender, with resulting embarrassment and humiliation. The ECtHR found a violation of ECHR, Article 8 (right to respect for private and family life); a violation of Article 12 (right to marry and to found a family); and did not find a violation of Article 13 (right to an effective remedy). It found that no separate issue had arisen under article 14 (prohibition of discrimination).93 ECHR, Article 9 (Freedom of Thought, Conscience and Religion) According to ECHR, Article 9, everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change

90

Fretté v France, 26 February 2002, 36515/97, Reports 2002-I, 345. Breitenmoser, Riemer and Seitz, n 57 above, p 53. 92 Christine Goodwin v United Kingdom, 11 July 2002, 28957/95, EHRR 2002-VI, 1. 93 See also Cossey v United Kingdom, 27 September 1990, 10843/84, A/184, and Rees v United Kingdom, 17 October 1986, 9532/81, A/106. 91

The Protection of Groups and Group Rights in Europe 259 one’s religion or belief and a freedom to manifest ones religion or belief in worship, teaching, practice and observance, either alone or in a community with others, in public or privately. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.94 That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.95 In Cha’are Shalom ve Tsedek v France,96 the ECtHR found no violation of ECHR, Articles 9 or 14 (the two provisions were examined together). The case concerns the situation of a minority within a minority. The applicant association was an Orthodox Jewish liturgical association wishing to secure ritual slaughter according to the standards of its particular conviction, standards not satisfied (in their view) by the ritual slaughter performed by ‘mainstream’ Jewish organisations in France under the umbrella of the Jewish Consistorial Association of Paris (ACIP). The applicant association argued that the fact that the French state would not grant them an authorisation for a ritual slaughter violated both Articles 9 and 14 since such authorisation had been granted to the ACIP. The ECHR does not guarantee as such the right of minorities to be recognised. However, if recognition and privileges have been granted to one religious group, church, conviction or other minority institution, this should be done on a non-discriminatory basis. The ECtHR confirmed that ritual slaughter comes within the ambit of the right to religion and it pronounced that ‘by establishing an exception to the principle that animals must be stunned before slaughter, French law gave practical effect to a positive undertaking on the State’s part intended to ensure effective respect for freedom of religion’. The Court did not find an interference with Article 9 (by 12 votes to 5). ECHR, Article 11 (Freedom of Assembly and Association) ECHR, Article 11 protects the right to form or join a political party or another group, and the right to belong to a trade union. This includes the right to protest peacefully by holding meetings and demonstrations. It also 94 Breitenmoser, Riemer and Seitz, n 57 above, p 76; B Kaufmann, Das Problem der Glaubens- und Überzeugungsfreiheit im Völkerrecht (Dissertation, Zurich, Schulthess, 1989), p 250. 95 Buscarini and others v San Marino, 18 February 1999, 24645/94, EHRR 1999-I, 605. 96 Cha’are Shalom ve Tsedek v France, 27 June 2000, 27417/95, EHRR 2000-VII, 231.

260 Stephan Breitenmoser means that the police may have to act to protect people holding a meeting or demonstration from anyone trying to stop it.97 The right to join a trade union excludes police officers, soldiers and some other groups who work for the government. Article 11 also guarantees the right to refuse to join a union. Article 11 contains one of the most important rights in connection with the protection of groups and group rights. In fact, the ECtHR has had many applications claiming a violation of Article 11 in connection with the prohibition of political parties in Turkey.98 The right to form parties and groups is one of the fundamentals of every group activity. The protection of this right is vital for their existence. In the joint cases of Sorensen and Rasmussen v Denmark,99 two employees were required to become members of a specified trade union as a condition for their employment with their respective employers. These requirements were set out in their terms of employment and duly accepted by both. They subsequently sought to challenge this practice, referred to as ‘closed-shop agreements’, where typically an employer undertook to employ only members of a specified trade union with which they had a collective agreement. The ECtHR qualified this as an unlawful restriction of their rights to individual freedom of association under ECHR, Article 11. ECHR, Protocol No 12 Protocol No 12 to the ECHR100 will bring considerable improvements with regard to the protection of human rights (adopted by the Committee of Ministers in June 2000 and entered into force on 1 April 2005). This Protocol contains a general and free-standing prohibition of discrimination. Unlike ECHR, Article 14, Protocol No 12 is not accessory to other substantive guarantees in the Convention. It contains an umbrella guarantee, which applies throughout the law and all areas of public activity. The general prohibition of discrimination provides a flexible framework which leaves room for national courts and the ECtHR to apply the basic nondiscrimination principle in specific contexts. Thus, Protocol No 12 usefully complements and informs the application of the national legislation.101 Far

97

Breitenmoser, Riemer and Seitz, n 57 above, p 86. United Communist Party of Turkey and others v Turkey, 30 January 1998, 19392/92, EHRR 1998-I, 1. 99 Sorensen and Rasmussen v Denmark, 11 January 2006, 52562/99 and 52620/99. 100 Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No 177. 101 P-H Imber, ‘Foreword’ in M Tsatsa-Nikolovska, Non-discrimination: a Human Right: Seminar Marking the Entry into Force of Protocol No 12 to the European Convention on Human Rights (2005). 98

The Protection of Groups and Group Rights in Europe 261 from being revolutionary, Protocol No 12 simply fills an important gap in the Convention’s collective guarantee.102 As an additional Protocol, it does not amend or abrogate Article 14 of the Convention, which will therefore continue to be applied, including to states that are parties to the Protocol. Consequently, there is an overlap between the two provisions. In accordance with ECHR, Article 32, any further question of interpretation concerning the precise relationship between those provisions falls within the jurisdiction of the ECtHR.103 Protection of Groups in the European Social Charter The European Social Charter (ESC)104 (an agreement for the harmonisation of social rights and the promotion of the expansion of national social and economic human rights) belongs to the conventions realised by the Council of Europe. The rights guaranteed by the Charter concern all individuals in their daily life. Even though individuals are not allowed to invoke the rights protected by the ESC, the signification of the Charter should not be underestimated, since the political and moral reputation of a state can be seriously damaged by failure to comply with it. As a guide for the interpretation of national and international jurisprudence, the Charter is highly valued. Instead of having a juridical system of enforcement, each year the states parties submit a report indicating how they implement the ESC in law and practice. Each report concerns some of the accepted provisions of the Charter. The European Committee of Social Rights (ECSR) examines the reports and decides whether or not the situations in the countries concerned are in conformity with the Charter. Its decisions, known as ‘conclusions’, are published every year. If a state takes no action on an ECSR decision to the effect that it does not comply with the Charter, the Committee of Ministers addresses a recommendation to that state, asking it to change the situation in law or in practice. The Committee of Ministers’ work is prepared by a governmental committee comprising representatives of the governments of the states, parties to the ESC, assisted by observers representing European employers’ organisations and trade unions.105 The collective complaint procedure established by the Protocol of 1995, which came into force in 1998, provides the opportunity for complaints 102

Ibid. Council of Europe, n 80 above, p 6. 104 European Social Charter, ETS No 035, adopted on 18 October 1961 and revised in 1996. Following its revision, the 1996 revised European Social Charter, which came into force in 1999, is gradually replacing the initial 1961 Treaty. 105 European Trade Union Confederation (ETUC), the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the International Organisation of Employers (IOE). 103

262 Stephan Breitenmoser of violations of the Charter to be lodged with the ECSR by employers’ organisations and trade unions in the country concerned, as well as NGOs with participative status within the Council of Europe. The Contracting Parties recognise the right of those organisations to lodge a complaint alleging unsatisfactory application of the ESC by a Contracting Party. The designation as a ‘collective complaint’ expresses the fact that no individual can be an applicant, but only the above-mentioned organisations.106 The notion ‘collective’ refers here to the object of the complaint, which is not so clear in the wording of the Protocol. The intention of the authors of the Protocol was to make sure that the subject of the complaint would never be any individual case. The possibilities provided by the collective complaint procedure are provided in addition to those of the traditional report system.107 European Charter for Regional or Minority Languages The European Charter for Regional or Minority Languages108 was badly received by the states concerned and, thus, entered into force as late as 1998. Its aim is to protect linguistic diversity as an essential element of the European cultural heritage based on a set of state obligations. Its international monitoring system is limited to a simple reporting procedure before the Committee of Ministers, assisted by a special Committee of Experts.109 In Article 1 of that Charter, regional or minority languages are defined as languages that are ‘traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State’s population; and are different from the official language(s) of that State’. European Framework Convention for the Protection of National Minorities The European Framework Convention for the Protection of National Minorities110 of 1995 is the first international agreement dedicated to a general and global protection of members of national minorities. It was established to find a compromise between states adhering to a traditional protection of minorities, and obliging them to take specific positive measures to protect 106 Breitenmoser, Riemer and Seitz, n 57 above, p 150 et seq; Buergenthal, n 37 above, p 181. 107 K Grillberger, ‘Die Kollektivbeschwerde nach der Europäischen Sozialcharta’ in W Geppert, C Klein and R Leutner (eds), Sozialpolitik ist Gesellschaftspolitik (Vienna, MANZ’sche, 2001). 108 European Charter for Regional or Minority Languages, ETS No 148. 109 Nowak, n 21 above, p 181. 110 Framework Convention for the Protection of National Minorities, ETS No 157.

The Protection of Groups and Group Rights in Europe 263 their minorities. The state obligations and the monitoring mechanism of this Framework Convention are rather weak. First, it is only a ‘framework agreement’, whose provisions are quite vague—not even the term ‘national minorities’ is defined. Secondly, there may be rights for minorities set out in the Convention; however, state obligations to protect minorities against the majority through positive measures are practically non-existent. Thirdly, the monitoring system does not draw on the judicial legal remedies of the ECHR but on the reporting system of the ESC, which is weak by comparison and has the Committee of Ministers acting as the final political decision-making body. Despite these restrictions, the Advisory Committee has so far tried to take an independent and critical position on various state reports and has actually succeeded in making the system modestly efficient. Another positive sign is the fact that most European states, including non-member states of the Council of Europe, have ratified the Framework Convention.111 PROTECTION OF GROUPS BY THE EUROPEAN UNION

Prohibition of Discrimination in the Law of the European Union Within the European Union, the European Council has issued several Directives to define Articles 12 and 13 of the EC Treaty. The Directives constitute a significant body of measures that ensure equal treatment and the prohibition of discrimination in the European Union: — implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin;112 — establishment of a general framework for equal treatment in employment and occupation;113 — amendment to the Council Directive114 on equal treatment for men and women in employment and vocational training;115 — Council Decision116 establishing a Community action programme to fight against discrimination (2001 to 2006). European Charter of Fundamental Rights The European Charter of Fundamental Rights117 was solemnly proclaimed by the European Parliament, the Council of the European Union and the European Commission in December 2000 in Nice.

111 112 113 114 115 116 117

Nowak, n 21 above, p 181. Council Directive 2000/43/EC, [2000] OJ L180/22. Council Directive 2000/78/EC, [2000] OJ L303/16. Council Directive 76/207/EEC, [1976] OJ L39/40. Parliament and Council Directive 2002/73/EC, [2002] OJ L269/15. Council Decision of 27 November 2000, [2000] OJ L303/23. European Charter of Fundamental Rights 2000/C 364/01, [2000] OJ C364/1.

264 Stephan Breitenmoser The Charter lays out the fundamental rights of citizens of the European Union. For the citizen, the Charter points out in a visible way the status of human rights built by European jurisprudence. The Preamble to the Charter reflects the ideals and principles which are the common heritage of the European Union, as well as human dignity, freedom, equality and solidarity, the principles of democracy and the rule of law as fundamentals for the peoples of Europe to build and share a peaceful future. The Charter is the latest catalogue of measures concerning human rights and freedoms in Europe. It contains human, economic and social rights of the EU citizen as well as of all other people living on EU territory. However, the Charter does not provide any legal remedy in case of a breach of the rights contained therein. The citizen can only use the action of nullity given by Article 230(4) of the EC Treaty.118 With regard to group rights, the following provisions are relevant: — — — — — — — —

118

Article Article Article Article Article Article Article Article

7 (respect for private and family life); 10 (freedom of thought, conscience and religion);119 12 (freedom of assembly and of association);120 20 (equality before the law); 21 (non-discrimination);121 22 (cultural, religious and linguistic diversity);122 25 (the rights of the elderly); 26 (integration of persons with disabilities);

Breitenmoser, Riemer and Seitz, n 57 above, p 297. Explanations relating to the Charter of Fundamental Rights of the European Union, Convent 49, 11 October 2000, p 12: ‘The right guaranteed in paragraph 1 corresponds to the right guaranteed in Art 9 of the ECHR and, in accordance with Art 52 para 3 of the Charter, has the same meaning and scope. Limitations must therefore respect Art 9 para 2 of the Convention, which reads as follows: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’. 120 Ibid p 14: ‘The meaning of the provisions of para 1 is the same as that of the ECHR, but their scope is wider since they apply at all levels including the European level. In accordance with Art 52 para 3 of the Charter, limitations on that right may not exceed those considered legitimate by virtue of Art 11 para 2 of the ECHR. This right is also based on article 11 of the Community Charter of the Fundamental Social Rights of Workers. Para 2 of this article corresponds to Art 191 of the Treaty establishing the European Community’. 121 Ibid p 22: ‘Para 1 draws on Art 13 of the EC Treaty, Art 14 of the ECHR and Art 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. Insofar as this corresponds to Art 14 of the ECHR, it applies in compliance with it. Para 2 corresponds to Art 12 of the EC Treaty and must be applied in compliance with the Treaty’. 122 Ibid p 23: ‘This article is based on Art 6 of the Treaty on European Union and on Art 151 paras 1 and 4 of the EC Treaty concerning culture. It is also inspired by the declaration No 11 to the Final Act of the Amsterdam Treaty on the status of churches and non-confessional organisations’. 119

The Protection of Groups and Group Rights in Europe 265 — Article 27 (workers’ right to information and consultation within the undertaking); — Article 28 (right of collective bargaining and action);123 — Article 38 (consumer protection). Protection of Minorities in the European Union In the context of the European Union, the competence for the protection of minority rights lies with the Member States. Nevertheless, the European Parliament has adopted measures which call upon the Member States to facilitate regional languages and cultures. A European Bureau for Lesserused Languages was also created, in Dublin, under a Parliament resolution. In its external relations, the European Union has for many years pursued the protection of minority rights as human rights. New association agreements contain the obligation to ameliorate the protection of minorities. Article 6 of the EU Treaty obliges the Member States to respect human rights and fundamental freedoms, which include the protection of minorities. Article 22 of the European Charter of Fundamental Rights states that the European Union shall respect the cultural, religious and linguistic diversity within Europe. The citizen cannot take any individual rights under this article. Article 151(1) and (4) of the EC Treaty states that ‘the Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore and shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures’. In particular, the general provisions of Articles 13 and 12 of the EC Treaty empower the Council to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. Furthermore, there is a close collaboration between the European Union and the European Council in the area of the protection of minorities that has been concluded with a common programme between the European Commission and the European Council for National Minorities.124 There is also an agreement between the European Community and the European 123 Ibid p 27: ‘This article is based on Art 6 of the European Social Charter and on the Community Charter of the Fundamental Social Rights of Workers (points 12 to 14). The right of collective action was recognised by the European Court of Human Rights as one of the elements of trade union rights laid down by Art 11 of the ECHR. As regards the appropriate levels at which collective negotiation might take place, see the explanation given for the above article. Collective action, including strike action, comes under national laws and practices, including the question of whether it may be carried out in parallel in several Member States’. 124 Working Document of the European Commission, 22 May 2001, SEC(2001)801, p 50.

266 Stephan Breitenmoser Council for the creation of a close collaboration between the European Monitoring Centre on Racism and Xenophobia (EUMC) and the European Council. A further collaboration between the European Union and the European Council also exists in respect of the stability pact for South-East Europe, which has been agreed in connection with the Kosovo crisis.125 The stability pact also aims at protecting minorities in connection with the stabilisation of the region.126 In Bickel and Franz,127 before the European Court of Justice (ECJ), the applicant Mr Bickel, a lorry driver of Austrian nationality, was resident at Nüziders in Austria. On 15 February 1994, while driving his lorry at Castelbello in the Trentino-Alto Adige Region of Italy, he was stopped by a carabinieri patrol and charged with driving while under the influence of alcohol. Mr Franz, a German national resident at Peissenberg in Germany, visited the Trentino-Alto Adige as a tourist. In the course of a customs inspection, he was found to be in possession of a type of knife that was prohibited. In each case, the accused made a declaration in the presence of the District Magistrate of Bolzano that he had no knowledge of the Italian language and, relying on rules concerning the protection of the German-speaking community of the Province of Bolzano, requested that the proceedings be conducted in German. The ECJ pointed out that the right conferred by national rules to have criminal proceedings conducted in a language other than the principal language of the state concerned falls within the scope of the EC Treaty and must comply with Article 6 thereof. Article 6 of the EC Treaty precludes national rules which, in respect of a particular language other than the principal language of the Member State concerned, confer on citizens whose language is that particular language and who are resident in a defined area the right to require that criminal proceedings be conducted in that language, without conferring the same right on nationals of other Member States travelling or staying in that area, and whose language is the same. CONCLUSIONS

The efforts of the international community to protect and raise the standard of group and minority rights have been gradually enforced over the last few decades. The protection of collective or group rights as such, or of individuals belonging or representing a group or a minority, shows a

125 Common Position of 17 May 1999, 1999/345/CFSP, concerning the Stability Pact for South-Eastern Europe. 126 Breitenmoser, Riemer and Seitz, n 57 above, p 197. 127 Case C-274/96 Bickel and Franz[1998] ECR I-7637.

The Protection of Groups and Group Rights in Europe 267 similar, but time-delayed development of several years in comparison with the protection of human rights. As is the case with human rights, group and minority rights seem to be most developed in Europe thanks to the active role both of the Council of Europe and the European Union. A first phase of codification of group and minority rights into conventions and agreements began in the late 1980s and has not yet been completed. For example, there is still no clear and undisputed definition of minorities. In the last few decades, several proposals have been made for the creation of a new international court for the protection of minority rights in Europe. Nevertheless, group and minority rights are gradually beginning to be recognised and applied by national and international norms and institutions. In Europe, several conventions contain a reporting system with bodies and committees of independent experts. In addition, treaty provisions protecting human rights may be invoked by several individuals together or by legal persons in judicial proceedings before courts. Just how long the respective phases are going to last is open to debate, but an extensive interpretation of the individual application according to ECHR, Article 34 can already be seen as a vital improvement of an effective and judicial protection of the therein mentioned groups and minorities. Obviously, the adoption of Protocol No 12 to the ECHR also brings an important fortification of the protection of groups and minorities from all forms of unjustified discrimination. However, since this new Protocol has been ratified by only a small number of states, the ECtHR has not yet been able to apply it in its evolving and dynamic jurisprudence. SELECT BIBLIOGRAPHY Barthel, A, Entwicklung und Menschenrechte: das Recht aus Entwicklung als Menschenrecht (1986) Benvenisti, E, ‘Collective Action in the Utilization of Shared Freshwater: the Challenges of International Water Resource Law’ (1996) AJIL 384 Binder, J, The Human Dimension of the OSCE: From Recommendation to Implementation (Vienna, Verlag, 2001) Bloed, A, ‘The OSCE and the Issues of National Minorities’ in E Phillip and A Rosas (eds), Universal Minority Rights (Turku, Abo Akademi, 1995) Bloed, A and Van Dijk, P (eds), Protection of Minority Rights through Bilateral Treaties (The Hague, Kluwer Law International, 2000) Breitenmoser, S and Richter, D, ‘Die Verwirklichung der KSZE-Grundsätze zum Schutze nationaler Minderheiten durch Organleihe bei der EMRK’ (1991) EuGRZ 141 Breitenmoser, S, Riemer, B and Seitz, C (eds), Praxis des Europarechts– Grundrechtsschutz (Schulthess, 2006) Brownlie, I, Principles of Public International Law (5th edn, Oxford, Oxford University Press, 1998)

268 Stephan Breitenmoser Brühl-Moser, D, Die Entwicklung des Selbstbestimmungsrechts der Völker unter besonderer Berücksichtigung seines innerstaatlich-demokratischen Aspekts und seiner Bedeutung für den Minderheitenschutz (1994) Buergenthal, T, International Human Rights in a Nutshell (3rd edn, West Publishing Co, 2002) Cameron, I, An Introduction to the European Convention on Human Rights (Uppsala, Iustus Förlag, 1998) Castellino, J, International Law and Self-Determination (The Hague, Kluwer Law International, 2000) Diaconu, I, Minorities from Non-Discrimination to Identity (Bucuresti, Lumina Lex, 2004) Fawcett, J, ‘The International Protection of Minorities’ in Minority Rights, Group Report No 41 (1979) Frowein, JA and Bank, R, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention’ (1999) ZaöRV 649 Grabenwarter, C, Europäische Menschenrechtskonvention (2005) Grillberger, K, ‘Die Kollektivbeschwerde nach der Europäischen Sozialcharta’ in W Geppert, C Klein and R Leutner (eds), Sozialpolitik ist Gesellschaftspolitik (Vienna, MANZ’sche, 2001) Haefliger, A and Schürmann, F (eds), Die Europäische Menschenrechtskonvention und die Schweiz (2nd edn, 1999) Hailbronner, K, ‘Der Staat und der Einzelne als Völkerrechtssubjekt’ in WG Vitzthum (ed), Völkerrecht (1997) Harris, M, Human Rights Monitoring and the CSCE: a Perspective from Budapest (HM, 1995) Hillgruber, C, ‘Minderheitenschutz im Rahmen der Europäischen Menschenrechtskonvention-Stand und Entwicklung’ in D Blumenwitz and G Gornig (eds), Minderheiten- und Volksgruppenrechte in Theorie und Praxis (Köln, Wiss U Pol, 1993) Hobe, S and Kimminich, O, Einführung in das Völkerrecht (8th edn, Stuttgart, UTB, 2004) Hofmann, R, ‘Minority Rights: Individual or Group Rights? A Comparative View on European Legal Systems’ (1997) 40 German Yearbook of International Law 356 Imber, P-H, ‘Foreword’ in M Tsatsa-Nikolovska, Non-discrimination: a Human Right: Seminar Marking the Entry into Force of Protocol No 12 to the European Convention on Human Rights (2005) Kälin, W and Künzli, J, Universeller Menschenrechtsschutz (Helbing & Lichtenhahn, 2005) Kaufmann, B, Das Problem der Glaubens- und Überzeugungsfreiheit im Völkerrecht (Dissertation, Zurich, Schulthess, 1989) Kunig, P, ‘The Protection of Human Rights by International Law in Africa’ (1982) 25 German Yearbook of International Law 138 Leach, P, Taking a Case to the European Court of Human Rights (2nd edn, Oxford, Oxford University Press, 2005) Malloy, T, National Minority Rights in Europe (Oxford, Oxford University Press, 2005)

The Protection of Groups and Group Rights in Europe 269 Matscher, F, ‘Kollektive Garantie der Grundrechte und die Staatenbeschwerde nach der Europäischen Konvention für Menschenrechte’ in B-C Funk (ed), Der neue Rechtsstaat vor neuen Herausforderungen, Festschrift für Ludwig Adamovich (2002) Nowak, M, Introduction to the International Human Rights Regime (Brill Academic Publishers, 2003) Oeter, S, ‘Selbstbestimmungsrecht im Wandel, Überlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und “vorzeitige” Anerkennung’ (1992) 52 ZaöRV 741 Peters, A, Einführung in die Europäische Menschenrechtskonvention (Munich, CH Beck, 2003) Riedel, E, ‘Menschenrechte der dritten Dimension’ (1989) EuGRZ 11 ——, ‘Group Rights and Collective Aspects of Individual Human Rights’ in W Kalin (ed), Current Problems of Human Rights Protection (CF Muller, 1994) Rönquist, A, ‘The Functions of the OSCE High Commissionar on National Minorities with Special Regard to Conflict Prevention’ in E Klein (ed), The Institution of a Commissioner for Human Rights and Minorities and the Prevention of Human Rights Violations (1995) Scharpenack, H, Das Recht auf Entwicklung (1996) Slinn, P, ‘The International Law of Development: a Millenium Subject or a Relict of the Twentieth Century?’ in W Benedek, H Isak and R Kicker (eds), Development and Developing International and European Law (Frankfurt, Peter Lang, 1999). Thornberry, P and Estebenez, M (eds), Minority Rights in Europe (Strasbourg, Council of Europe Publishing, 2004) Tsatsa-Nikolovska, M, Non-discrimination: a Human Right: Seminar Marking the Entry into Force of Protocol No 12 to the European Convention on Human Rights (2005) Van Dijk, P and Van Hoof, GJH, Theory and Practice of the European Convention on Human Rights (The Hague, Kluwer Law, 1998) Verstichel, A, ‘Recent Developments in the UN Human Rights Committee’s Approach to Minorities, with a Focus on Effective Participation’ (2005) 12 International Journal on Minority and Group Rights 25 Villiger, ME, Handbuch der Europäischen Menschenrechtskonvention (2nd edn, 1999) Wildhaber, L, Protection against Discrimination under the European Convention on Human Rights: a Second-Class Guarantee? (Riga, Graduate School of Law, 2001)

13 International Human Rights Law in Theory and Practice JEAN ALLAIN

I

t has taken two hundred years for states to tame the beast unleashed during the French Revolution: that which we call ‘rights’. This notion, manifest in the slogan ‘Liberté, Equalité, Fraternité’, challenged the European establishment, by mobilising a French people’s army to protect the revolution and, through the Napoleonic Wars, to threaten the royal prerogatives of European ruling elites. The successes of the anti-slavery and peace movements of the nineteenth century demonstrated that states had at that time yet to come to grips with the ideological power vested in populist movements grounded in the notion of ‘rights’. It was only in the wake of the Second World War that states, collectively, understood that the means of controlling the ideology of rights was to grant such rights; but on their terms and in their interests. Thus, the 1948 Universal Declaration of Human Rights, while recognising the ‘inherent dignity’ and ‘inalienable rights of all members of the human family’, also recognised that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’. Thus, for the international community of states, human rights were to be accorded as a type of a pressure-valve that could regulate the extent to which individuals might be protected from the abuse of states: they were not to be a social good established in absolute terms. In fact, for states, the approach to international human rights law was antithetical to the concept itself: international human rights remain above all crafted in the interests of the state. At the international level, the nature of the anarchic legal system allows states much more leeway to construct human rights in their image as opposed to those they are meant to protect—the individual. This chapter considers the gap that exists between international human rights law as it is and international human rights law as it ought to be—or as Koen De Feyter notes in Chapter 1, the move ‘from the realm of ideas to the world of practical solutions’—as a means of demonstrating the manner in which states have

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created an international human rights legal regime that reflects their interests. What the present study seeks to explore is the fundamental paradox of international human rights law: that the entities which are meant to protect rights and legislate them into existence are those that violate the same-said rights. Consideration thus falls to the gap between the ‘ought’ and the ‘is’ of international human rights law, through an examination of both the United Nations system of human rights promotion and the regional systems of human rights protection (African, European and Inter-American) so as to demonstrate the manner in which this fundamental paradox has created a system which is quite divorced from the ideal type and ultimately services the interest of states, at the expense of protecting the rights of individuals. What emerges is a willingness of states to privilege individual rights over group rights; civil and political rights over social and economic rights; and, above all, the dictates of the state over the rights of human beings. The starting place to consider the effectiveness of any law is to consider its impact. Starting from this premise, the question which is posed is this: can we say that international human rights law has had an overall positive effect since its introduction? In essence, this research question seeks to take as its starting point the promise of the 1948 Universal Declaration of Human Rights—‘the ought’—and consider the manner in which it has been translated into law: the ‘is’. The Universal Declaration starts thus: Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

As laid out, the Universal Declaration is radically egalitarian, declaring that human rights are endowed by virtue of one’s humanity, which is vested in reason and conscience; and, as a result, the Declaration states that all are to be considered equal in dignity and in rights. In adopting the Universal Declaration, the UN General Assembly stated that it was to be ‘a common standard of achievement for all peoples and all nations’. If we are to take the international community of states at its word, then we must accept at face value their 1993 Declaration made in Vienna, that ‘all human rights are universal, indivisible and interdependent and interrelated’1 and consider that civil and political rights such as free speech and the prohibition against torture have the same standing 1 United Nations World Conference on Human Rights, Vienna Declaration and Programme for Action, 1993.

International Human Rights Law in Theory and Practice 273 in law as social and economic rights such as the right to an adequate standard of living or right to work. But what of this ‘common standard of achievement’ today? Is the human race more egalitarian today than it was in the aftermath of the Second World War: if not, has the gap between rich and poor narrowed as a result of international human rights which mandate an adequate standard of living including a right to food, shelter and health? If, as will be shown, that gap has actually grown, then how has the regime of international human rights law failed? It is this gap between the ‘ought’ and the ‘is’ that will be considered so as to demonstrate the manner in which international human rights law privileges certain structures of power manifest in the state that, in essence, reinforce the status quo rather than seeking to challenge and redress it. STATE OF THE HUMAN RACE

Before considering the legal regime of international human rights, let us first turn to the state of development of the human race. Are we, as a human race, better off today then we were in 1948 and the promise of the Universal Declaration; or in 1950 with the European Convention of Human Rights; or in 1966, when the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights were signed; or in 1969 with the American Convention on Human Rights; or in 1981 with the African Charter on Human and Peoples’ Rights? The United Nations Human Development Programme has, since 1990, been providing an annual index of the ‘state of the world’, considering indicators such as infant mortality, life expectancy and literacy to gauge the state of human development. Since then, it has been able to compare and to evaluate the progress which has been made, and to demonstrate in a number of fundamental ways the manner in which the gap between rich and poor continues to grow. The 2005 UN Human Development Report, notes for instance that for: most of the world’s poorest countries the past decade has continued a disheartening trend: not only have they failed to reduce poverty, but they are falling further behind rich countries. Measured at the extremes, the gap between the average citizen in the richest and in the poorest countries is wide and getting wider. In 1990 the average American was 38 times richer than the average Tanzanian. Today the average American is 61 times richer.2

Granted, as the quote indicates, this example is an extreme; yet in real terms, the gap between rich and poor states, between the rich and poor people within states, which is already large, continues to widen: One in five people in the world—more than 1 billion people—still survive on less than $1 a day, a level of poverty so abject that it threatens survival. Another 2 United Nations Development Programme, Human Development Report 2005, International Cooperation at the Crossroads: Aid, Trade and Security in an Unequal World (2005), pp 36–7.

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1.5 billion people live on $1–$2 a day. More than 40% of the world’s population constitute, in effect, a global underclass, faced daily with the reality or the threat of extreme poverty.

This is in contrast to a world of prosperity, where ‘on average, people born in a developing country today can anticipate being wealthier, healthier and better educated than their parents’ generation’.3 The 2005 UN Human Development Report notes the fundamental issue in the starkest of terms: ‘We may live in a world where universal rights proclaim that all people are of equal worth—but where you are born in the world dictates your life chances’.4 While there have been successes in reducing poverty, this has been driven by the ‘extraordinary success of East Asia, particularly China’: At the other end of the spectrum, Sub-Saharan Africa had almost 100 million more people living on less than $1 a day in 2001 than in 1990. South Asia reduced the incidence of poverty, though not the absolute number of poor people. Latin America and the Middle East registered no progress, while Central and Eastern Europe and the CIS experienced a dramatic increase in poverty. The number of people living on less than $2 a day in Central and Eastern Europe and the CIS rose from 23 million in 1990 to 93 million in 2001, or from 5% to 20%.5

The 2005 Human Development Report is also of interest because it does not only look back on the past 15 years of development but seeks to look to the future and to the UN Millennium Development Goals, whereby states have committed themselves to the aim of halving extreme poverty and to extending universal rights to all by 2015. While acknowledging that projections ‘based on trends provide insights into one set of possible outcomes. They do not define the inevitable’, the Report is rather facetious in saying that where the Millennium Development Goals are concerned, this is ‘unambiguously good news’;6 this is so, because states are nowhere near achieving their aims! The 2005 Report notes that from the perspective of 2015, there is a growing danger that the next 10 years (like the past 10) will go down in history not as a decade of accelerated human development, but as a decade of lost opportunity, half-hearted endeavour and failed international cooperation. It notes that if current trends continue, the headlines in 2015 may include the failure of states to meet child mortality targets which allowed for 4.4 million children to die. And that ‘over the next 10 years the cumulative gap between the target and the current trend adds more than 3

Ibid pp 24 and 19. Ibid p 25. 5 Ibid p 34. The Report goes on to note (at p 38) that: ‘Income inequalities between countries account for the bulk of global income inequality. About two-thirds of overall inequality can be traced to this source. Inequality within countries accounts for the balance. Reproduced at a national level, the gap between rich and poor countries would be regarded as socially indefensible, politically unsustainable and economically inefficient’. 6 Ibid p 18. 4

International Human Rights Law in Theory and Practice 275 41 million children who will die before their fifth birthday from the most readily curable of all diseases—poverty’.7 LEGAL REGIME OF INTERNATIONAL HUMAN RIGHTS LAW

Considering the apparent gap between the promise of the Universal Declaration of Human Rights that all should be treated equally, and the Vienna Declaration that all rights are universal, on the one hand, and the reality of the human condition, on the other hand, which sees an ever-widening gap between rich and poor, not only over the last 15 years but also projected into the future, it is now time to seek to understand the role that human rights law plays (or fails to play) internationally and the way in which it reflects this disjuncture. Let us first consider the system of the United Nations, which is meant to be universal in scope, before going on to consider the regional human rights systems. The Universal System of Human Rights Promotion As has been noted, the 1948 Universal Declaration was a promise made by the international community of states to its citizens. Though framed in legal language, the Declaration was meant to be just that: aspirational, not binding as law. This is so, because, at its heart, the United Nations is an inter-state organisation meant to provide collective security for states, wherein the issue of the human rights of individuals was considered as marginal, at best. Thus, as conceived in 1945, the United Nations did not envision the protection of human rights as being part of its mandate. While the UN Charter speaks of ‘promoting and encouraging respect for human rights’, and seeks to ‘create conditions of stability necessary to peaceful co-existence’ among states through the ‘universal respect for and observance of human rights and for fundamental freedoms’, nowhere in the UN Charter do states commit themselves to actually protecting human rights through enforcement. It was upon this weak foundation that the Universal Declaration emerged in 1948. The promise of the universality of the Universal Declaration was, it must be said, sidelined when states moved, in 1966, to take the aspirations of the Universal Declaration on Human Rights and to translate them into law. In 1966, divided by the Cold War, the United Nations agreed to establish two human rights instruments, calling them covenants: the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). These treaties reflect some of the largest gaps between the ‘ought’ and the ‘is’ of international human 7

Ibid pp 17 and 18.

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rights law, as they demonstrate a number of fundamental departures from the concept of human rights as conceived of in 1948. Of course, the unspoken premise at the heart of the Universal Declaration and the Covenants is that they are cloaked in terms of individual rights and not group rights. Further, the Covenants lay to waste the myth, still perpetuated 30 years later, that ‘all human rights are universal, indivisible and interdependent and interrelated’. The ICCPR emphasised so-called ‘first generation’8 human rights, which are typically portrayed as negative rights, in juxtaposition to ‘second generation, positive, human rights’, as found in the ICESCR. Not only was the universality, indivisibility, interdependence and interrelatedness of human rights sidelined at the normative level in the Covenants, but also at the level of application, where states set down two very different means of ensuring respect for their conventional undertakings. Under Article 2 of the ICESCR, states parties have agreed: to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. [Emphasis added]

while what should be the analogous provision in the ICCPR reads: to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Thus, while the rights of the ICCPR are automatically applicable, those of the ICESCR are meant to be applicable only in an incremental manner.9 Beyond this division into ‘generations’ of human rights and differences in their applicability, the Covenants are also a reflection of what is endemic to United Nations treaties meant to protect human rights: they provide very little protection, properly understood. That is to say, the Covenants, like the five other main UN human right treaties,10 have limited supervisory mechanisms and no ability (in an obligatory manner) to make a determination as to a state’s possible violation of an individual’s rights. Thus, as we 8 The notion of ‘generations of human rights’ was introduced by Karl Vasak, ‘when he was Director of the Human Rights and Peace Division at UNESCO’: C Ovey and R White, Jacobs and White: The European Convention on Human Rights (Oxford, Oxford University Press, 2006), p 5. 9 For the manner in which rights are to be applied under the ICESCR, see Committee on Economic, Social and Cultural Rights, General Comment 3, The Nature of States Parties Obligations, UN Doc E/1991/23 (1990). 10 International Convention on the Elimination of All Forms of Racial Discrimination, 1965; Convention on the Elimination of All Forms of Discrimination against Women, 1979; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, 1984; Convention on the Rights of the Child, 1989; and International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990.

International Human Rights Law in Theory and Practice 277 shall see, while the regional systems have human rights courts to adjudicate claims, no such institution functions at the universal level, within the United Nations. Instead, supervisory bodies (committees) have been established not to determine violations, but instead to seek to establish a dialogue and to assist states in attempting to carry out their obligations. The supervisory committees’ main task then is to consider periodical reports of states parties’ application under the various UN human rights treaties. On the basis of such considerations, the committees will deliver their ‘Concluding Observations’ in which they provide both positive and negative feedback to states. A further output of these committees are so-called ‘General Comments’ or ‘General Recommendations’ which are authoritative pronouncements11 of the current nature of a given provision (eg Article 4) of a treaty. In certain circumstances, individuals may petition these committees to have their claims of human rights violations heard; however, this petition process reveals a fundamental flaw of the international legal system which acts to the detriment of human rights protection internationally. As opposed to the domestic legal order which is based on coercion (ie where the state maintains a monopoly on legitimate violence through its law enforcement system manifest in the police, the judiciary, and the penal system), the international system functions on the basis of anarchy wherein all states are considered equal, with no state allowed to force legal undertakings on another: in essence, the system is one of cooperation not coercion.12 This means therefore that states are only bound by the laws they consent to, which creates a system whereby some states are party to some human rights treaties whereas other states may not be. Beyond this limitation, in certain situations states may accept, for example, the 1951 Convention on the Status of Refugees but can, through so-called ‘reservations’, opt out of certain provisions (eg Articles 3 and 12), thus limiting their obligations under that instrument. Where this is relevant to individual petitions (called communications) is that once a state has consented to a treaty, it must make a further declaration accept the possibility of persons petitioning against it, or in the case of the ICCPR, by consenting to a new legal instrument.13 Thus, a second active decision has to be made by states beyond ratifying a treaty; that is, in order to opt in to a system of allowing individuals to make claims, states must mobilise their domestic legislation once more to give consent. One final point concerning the petitions system before human 11 J Allain, International Law in the Middle East: Closer to Power than Justice (Aldershot/ Birmingham, Ashgate, 2004), p 201. 12 Here anarchy should be understood not in the pejorative sense, but as the basis of a system of governance lacking central authority, as considered in H Bull, The Anarchical Society (1977) and summarised in E Capouya and K Tompkins (eds), The Essential Kropotkin (London, Liveright Publishing Corporation, 1975), pp 109–20. 13 Optional Protocol to the International Covenant on Civil and Political Rights, 1976.

278 Jean Allain rights bodies: the decisions of the committees, while they may be persuasive, are not binding on states. States have no legal obligation to follow the decisions in such cases. Consideration of the United Nations system in this chapter has so far concentrated on what states have set down as treaty law. However, sight should not be lost of the so-called ‘Charter-based’ system of the United Nations which functions on the minimalist provisions of the UN Charter mentioned earlier. On this basis, while the UN Security Council could act on issues of human rights and arguably has done so in the past, its mandate is to focus on international peace and security and it thus does not have the authority under the Charter to overtly act to protect human rights: it may do so only as a byproduct of seeking to secure international peace. Instead, the UN organ tasked with dealing with issues of human rights is the UN General Assembly (and its Economic and Social Council) which, in March 2006, abolished the Commission on Human Rights in favour of a Human Rights Council. The Council, consisting of 47 states, meets at regular intervals for no less than 10 weeks a year, and was established as an attempt to become disassociated from the discredited Commission by emphasising ‘the importance of ensuring universality, objectivity and nonselectivity in the consideration of human rights issues, and the elimination of double standards and politicization’.14 It remains to be seen whether the Human Rights Council will actually be able to escape the trappings of the former Commission, as the very nature of consideration of human rights norms by such a political body is—not surprisingly—political. Thus, the past pattern is bound to repeat itself: states have been willing to highlight the human rights violations of their foes while remaining silent about their friends; or been unwilling to challenge powerful states for fear of damaging bilateral relations. Beyond the Council, mention should be made of the former Sub-Commission for the Promotion and Protection of Human Rights which acted as a kind of think-tank for the former Commission, and was a rather progressive force in pushing states to examine human rights situations in various countries by way of so-called ‘Special Procedures’. The Sub-Commission, made up of experts acting in their personal capacity, also drafted both thematic reports and country specific report for consideration by the Commission, though the latter function was taken away from it by the Commission in 2000, as states felt targeted by having their domestic human rights records the topic of an international human rights report. The Sub-Commission was then voted out of existence in June 2006 to be replaced by an Advisory Body to the new Human Rights Council. To summarise: in regard to the universal system, it may be said that the United Nations has gone about setting normative standards for human rights, but 14 UN General Assembly, Resolution adopted by the General Assembly: Human Rights Council, UN Doc A/RES/60/251, 3 April 2006.

International Human Rights Law in Theory and Practice 279 has not succeeded in having states, through legal redress, protect the rights of those within their jurisdictions. Regional Systems of Human Rights Protection Regional human rights systems have moved beyond promotion of human rights through establishing normative standards, to constituting international courts to protect human rights. Yet, the very establishment of these structures of adjudication have spawned a new set of difficulties that increase the gap between what international human rights law ought to be and what, in fact, it is. First, before considering the various systems, it should be emphasised that the regional systems of human rights protection exclude the majority of the world’s populations since no such system exists in Asia. As for the systems themselves; until recently, they could easily be presented as part of a continuum based on the mechanisms used to protect rights. The European system functions exclusively on the basis of a court; the Inter-American system with a commission and a court, and the African system solely with the use of a commission. The conceptualisation of the regional systems as a continuum no longer holds, however, as in 2004 the African system introduced a court to accompany its commission (this will be discussed in further detail later). Let us instead turn to consider each of the regional systems individually as a means of highlighting factors which widen the gap between the ‘ought’ and the ‘is’. As a result of the manner in which minorities were treated by the Nationalist Socialists of Germany during the Second World War, and the failure of the United Nations to establish a system of human rights protection manifest in the adoption of the Universal Declaration, European states established the Council of Europe in 1948 as an ideological counterpart to NATO, as the advent of the Cold War had created a chill in East-West relations throughout Europe. In 1950, under the auspices of the Council of Europe, states—using the triad of democracy, rule of law and respect for human rights—signed into existence the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The European Convention established a European Commission and European Court to oversee the application and interpretation of the Convention. While human rights commissions, per se, will be considered later, it suffices to note here that the European Commission ceased to exist in 1998 as a result of Protocol No 11 to the ECHR coming into force. The European Court of Human Rights (ECtHR) is thus mandated with the exclusive supervision of the ECHR and its Protocols—Protocols which, it must be said, have not only amended the procedures and structures agreed to in 1950, but have, over the years, added a number of new rights to the normative order of Europe. By way of example, Protocol No 12 (which came

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into force in 2005) amends the ECHR by making non-discrimination a stand-alone right as opposed to a ‘parasitical’15 one; that is, before Protocol No 12, issues of non-discrimination could only be adjudicated upon if it could be shown that discrimination had been ‘attached’ to another Convention right. The European system, which is often laurelled as the most advanced and best human rights system in the world, suffers one major blind spot. That myopia is not a result of what it does (though those within the ECtHR would argue that the system itself is imploding, a victim of its own success, as a result of the burden which has been placed on the Court by the tens of thousands of applications it receives each year);16 instead, the blindness can be attributed to what it does not do. The European Convention which enumerates civil and political rights is not, in fact, the European system, as the Council of Europe also has other treaties, including the seldom considered 1961 European Social Charter which was revised in 1991. The way in which the Social Charter functions is instructive in demonstrating the manner in which the European system promotes civil and political rights and fails to give the same treatment, or even adequate treatment, to issues related to social and economic rights, and thus reinforces the status quo. The European Social Charter does not fall under the remit of the European Court of Human Rights and thus its rights are non-justiciable. Instead, much like the United Nations system, economic and social rights in Europe are supervised by a committee of independent experts to which states provide periodic reports. Interestingly, the European Social Charter explicitly allows for the divisibility of rights, as it obliges each state to declare which rights it will seek to uphold and which it will not be bound by (of the 31 enumerated rights, states must indicate at least 22 rights they are prepared to accept).17 Further, the European Social Charter stands out, as it does not allow individuals to petition the European Committee of Social Rights; instead, if states individually agree by way of a declaration on the basis of a 1995 Protocol, a collective complaints procedure has been established allowing for trade unions and international NGOs to petition. Once again, in such an event, recommendations made by the Council of 15 See S Livingstone, ‘Article 14 and the Prevention of Discrimination in the ECHR’ (1997) 25 European Human Rights Law Review 25. 16 The Council of Europe recognises the burden which has been placed on the ECtHR and is seeking to rectify this by way of the 2004 Protocol No 14 to the ECHR, which will amend the supervisory system of the Convention. 17 The undertaking of states is a bit more complicated than what has been indicated above, as Art A of the European Social Charter reads: ‘1 Subject to the provisions of Article B below, each of the Parties undertakes: … b) to consider itself bound by at least six of the following nine articles of Part II of this Charter: Articles 1, 5, 6, 7, 12, 13, 16, 19 and 20; c) to consider itself bound by an additional number of articles or numbered paragraphs of Part II of the Charter which it may select, provided that the total number of articles or numbered paragraphs by which it is bound is not less than sixteen articles or 63 numbered paragraphs’.

International Human Rights Law in Theory and Practice 281 Europe to a state found in breach of the Social Charter are not binding on the party: they remain mere recommendations. In the period between 1980 and 1998, the European and Inter-American conventions were analogous. While Protocol No 11 has abolished the European Commission, during this period both constitutive instruments provided for a commission and a court to supervise the execution of the treaties. While on paper the ECHR and the 1969 American Convention on Human Rights appeared similar, in practice they functioned in truly diverging ways, as the Strasbourg court dealt with hundreds of cases on an annual basis, while the Inter-American Court, languishing in San José, Costa Rica, gave final judgment in only 16 cases over the 18-year period considered here.18 Yet how is this possible, in light of the fact that during the 1980s, Latin America states were in the midst of major upheavals as literally millions of human rights abuses transpired in a United States-backed attempt by rightist elements to weed out so-called ‘communists’ from the Western Hemisphere? First, it should be made plain that in distinction to the ECHR which, after Protocol No 11 makes the jurisdiction of the ECtHR mandatory for all Members of the Council of Europe, in the Inter-American context a large number of states had yet to accept the American Convention or to make a declaration accepting the Court’s jurisdiction. To this day, in fact, Canada, most Caribbean states and the United States remain outside the system. A second limitation is that, structurally, the American Convention made it difficult for a case actually to reach the Court. In the words of Judge Rodolfo Piza Escalante in a concurring opinion to the first case considered by the Inter-American Court of Human Rights: I have come to the conclusion that unfortunately the system of the Convention appears to make [human rights protection] impossible because the American States in drafting it did not wish to accept the establishment of a swift and effective jurisdictional system but rather they hobbled it by interposing the impediment of the Commission, by establishing a veritable obstacle course that is almost insurmountable, on the long and arduous road that the basic rights of the individual are forced to travel.19

Judge Piza points to the Commission as a significant impediment to human rights protection in the Americas. In the Inter-American system, as in the African system, individuals cannot directly access the human rights court, but commissions, staffed by individuals appointed by states, bring cases on their behalf. The Inter-American Commission not only considers whether a petition is admissible (as does the Inter-American Court), but also makes a determination as to whether it wishes to proceed with the case having first 18 See J Allain, A Century of International Adjudication: the Rule of Law and its Limits (The Hague, TMC Hasser Press, 2000), pp 93–125. 19 Inter-American Court of Human Rights, In the Matter of Viviana Gallardo, 13 November 1981, p 99.

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sought to settle the issues through negotiations with the states accused of what would have been mass violations of the American Convention. The Inter-American Court openly criticised the Commission for failing to bring cases forward during this period, stating: Although the Convention does not specify under what circumstances a case should be referred to the Court by the Commission, it is implicit in the functions that the Convention assigns to the Commission and the Court that certain cases should be referred by the former to the Court.20

A third and final limitation affecting the effectiveness of the American Convention was that the states, having established the system, failed to provide adequate funding for that system; so that while states could, at a rhetorical level, point to the establishment of a human rights system, the reality was inadequate safeguarding of the rights of individuals in the Americas. Throughout the 1980s and 1990s, the Inter-American Court never received more than US$1 million a year from the Organization of American States, having instead to rely on the host state for subsidies and being rather creative in sharing resources with the non-governmental Inter-American Institute of Human Rights. The inadequacies of budgeting are best reflected in the fact that the Court, which functioned with part-time judges, had only four employees (one of whom was a driver) paid for by the states which established it. An overall assessment of the Inter-American system during this time frame might well coincide with that of Judge Máximo Cisneros, expressing his disappointment in 1986, having sat on the Court for six years and who was, at that stage, retiring, saying that he felt a sense of frustration ‘in leaving the Court before it has had the opportunity to hear a single case of a violation of human rights, in spite of the sad realities of our America in this field’.21 Thus, the three factors noted here demonstrate a rather wide gap with regard to the protection of civil and political rights, between the Inter-American and the European systems of human rights protection during the period under review. It must be said that since the end of the period considered (1998), the Inter-American Court and the Commission have been cooperating, the Organization of American States has been willing to release more money into the system, and ultimately, the Court has rendered more judgments, though the Court’s effectiveness has remained limited: we are speaking about one or two handfuls of cases settled per year as opposed to the now thousands of cases settled per year by the ECtHR. The final regional system to be considered is the system based on the 1981 African Charter on Human and Peoples’ Rights which, to date, has functioned exclusively on the basis of supervision by the African Commission

20 Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, 1 November 1985, p 96. 21 Ibid p 145.

International Human Rights Law in Theory and Practice 283 on Human and Peoples’ Rights, situated in Banjul, the Gambia. This is so because, although the 1998 Protocol on the Establishment of an African Court on Human and Peoples’ Rights came into force in 2004, and judges were elected in 2005, the Court itself only became operational in mid-2007, as a result of problems related to integrating the African human rights system, which was conceived under the Organization of African Unity, into the new African Union, and specifically the relationship between the human rights court and the African Union’s African Court of Justice. With regard to the African system, the issue which might be highlighted with regard to the gap between the ‘ought’ and the ‘is’, is the lack of acknowledgement thus far in the 25-year history of the African system, of ‘peoples’ rights’ despite its centrality within the so-called Banjul Charter. The African Charter not only enumerates a number of individual (primarily first generation) human rights, it also introduces into international human rights law so-called ‘third generation’ rights, ‘solidarity’ or ‘peoples’ rights’, such as the right of non-discrimination amongst peoples (Article 19), to self-determination (Article 20), over wealth and natural resources (Article 21), to development (Article 22), to peace (Article 23), and to a ‘satisfactory environment favourable to their development’ (Article 24).22 The Commission has had two opportunities to deal with issues of peoples’ rights, yet in both cases has side-stepped the issue. In the first, it found in 1995 that the claim of the Katangese, in what was then the Congo, to a right of self-determination lacked evidence, noting that ‘whether the Katangese consist of one or more ethnic groups is for this purpose immaterial and no evidence has been adduced to that effect’. Instead, the Court decided that it would be ‘obligated to uphold the sovereignty and territorial integrity’23 of any state in light of challenges by groups within an established state seeking to secede. The second situation where the Commission failed to engage with the notion of group rights in any substantive manner was with regard to a case against Shell Petroleum Development Corporation in Nigeria, this in spite of the fact that the African Commission made plain that it would be willing to give effect to all of the provisions in the Banjul Charter: The uniqueness of the African situation and the special qualities of the African Charter on Human and Peoples’ Rights imposes upon the African Commission an important task. International law and human rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African

22 For consideration of peoples’ rights, see R Murray and S Wheatley, ‘Groups and the African Charter on Human and Peoples’ Rights’ (2003) 25 Human Rights Quarterly 213 and RN Kiwanuka, ‘Note: the Meaning of “People” in the African Charter on Human and Peoples’ Rights’ (1988) 82 American Journal of International Law 80. 23 African Commission on Human and Peoples Rights, Katangese Peoples’ Congress v Zaire, African Commission on Human and Peoples’ Rights, Communication 75/92 (1995).

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Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in the African Charter that cannot be made effective.24

However, in a case where peoples’ rights were clearly at issue, and where the Commission found violations in respect to the right to food, to a generally satisfactory environment favourable to their development, and to people freely disposing of their wealth and natural resources, it did not explicitly determine that the Ogonis were a people nor did it elaborate on the parameters of these unique sets of rights. CONCLUSION

While this chapter has sought to illustrate the gap between the ‘ought’ and the ‘is’ of international human rights is in fact a desirable current, flowing near the surface of what the reader will have discerned as the individualised versus the collective nature of rights, which has been promoted internationally when moving from rights in the abstract to rights as law. Through the critique presented, it becomes apparent that individual rights, and not group rights, have primarily been privileged as being the subject of legal rights and that the various systems of international human rights promotion or protection are ill-equipped to deal adequately with group rights even where (as in the context of the Banjul Charter and the establishment of people’s rights) such rights have been established. This chapter has expanded upon Koen De Feyter’s consideration of the limits of the law presented in Chapter 1 by demonstrating the extent of the gap between international human rights as it ought to be and international human rights as it is. It is within this gap that human rights activists struggle to make law more effective. While a somewhat negative picture has been painted of the overall regime of international human rights law, it should be remembered that the international system is not meant to be a panacea; instead, it is meant to catch those who fall through the cracks of the domestic system which is where human rights should—and must—be protected. The gap between the ‘ought’ and the ‘is’ of international human rights law can, first, be measured in terms of the failure to give voice to group rights generally, and specifically with regard to the African Commission’s failure to actually engage with peoples’ rights. That gap is widened further by an unwillingness on the part of states actually to abide by the universality, indivisibility, interdependence and interrelatedness of human rights, by privileging civil and political rights over social and economic rights. The promoting of first generation human rights is seen in the manner in which these rights have 24 African Commission on Human and Peoples Rights, Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria, Communication 155/96 (2001).

International Human Rights Law in Theory and Practice 285 been made internationally justiciable, while second generation rights have not. While regional systems have gone beyond the United Nations system to provide protection of human rights, that protection has favoured civil and political rights and has been (at least in the context of the Inter-American and African systems) a rhetorical system rather than an effective system of human rights protection. When one considers that the international human rights legal regime is a system set up by states, in their interest, it is easy to see why there exists a rather large gap between the ‘ought’ and the ‘is’. SELECT BIBLIOGRAPHY Allain, J, A Century of International Adjudication: the Rule of Law and its Limits (The Hague, TMC Hasser Press, 2000) ——, International Law in the Middle East: Closer to Power than Justice (Aldershot/ Birmingham, Ashgate, 2004) Bull, H, The Anarchical Society (1977) Kiwanuka, RN, ‘Note: the Meaning of “People” in the African Charter on Human and Peoples’ Rights’ (1988) 82 American Journal of International Law 80 Livingstone, S, ‘Article 14 and the Prevention of Discrimination in the ECHR’ (1997) 25 European Human Rights Law Review 25 Murray, R and Wheatley, S, ‘Groups and the African Charter on Human and Peoples’ Rights’ (2003) 25 Human Rights Quarterly 213 Ovey, C and White, R, Jacobs and White: The European Convention on Human Rights (Oxford, Oxford University Press, 2006) United Nations Development Programme, Human Development Report 2005, International Cooperation at the Crossroads: Aid, Trade and Security in an Unequal World (2005)

14 Human Rights and International Relations NICOLA CATELLANI

INTRODUCTION

T

his chapter concentrates on an analysis of the process of ‘internationalisation’ of human rights and its increasing relevance both to theory and practice in international relations (IR). This has contributed substantially to rendering the categorisations of human rights provided by IR scholars in the early post-Cold War years more and more difficult to use to interpret the dynamics that characterise the contextualisation of human rights in contemporary international relations. This chapter focuses on the aspects that make traditional categorisations increasingly obsolete rather than on a review of those categorisations. Two main elements characterise the process of internationalisation of human rights: first of all the increasing significance of the third generation of rights, in particular group and minority rights, as issues that drive and occupy the political agenda of many state actors in Europe and around the world, especially after the end of the Cold War; secondly, the increasing impact of structural phenomena which can result in human rights violations (for example, migration). The difficulties in categorising human rights within the realm of the IR debate can also be seen as a more structural weakness of state actors in managing the domestic and the international spheres as two separate policy domains. It also raises questions about contradictions deriving from the ‘export’ of human rights through foreign policy and the restriction of individual liberties domestically. One argument put forward in this chapter is that the issue of human rights, at least in the European context, has become increasingly an element of many (Western) states’ foreign polices but that, at the same time, international organisations have increasingly become the leading actors in promoting actions against violations of human rights.

288 Nicola Catellani FRAMING HUMAN RIGHTS IN THE INTERNATIONAL RELATIONS DEBATE

The theme of human rights has increasingly been acquiring centrality both in scholarly debate and in the actual foreign policies of states. During the Cold War, the attention gained by human rights grew in parallel with institutional and legislative instruments developed mainly at United Nations level, such as the 1948 Universal Declaration of Human Rights and the numerous international human rights conventions. Consequently, there emerged a body of legal norms and mechanisms as well as political instruments, ranging from human rights diplomacy to humanitarian intervention and international war crimes tribunals, which regulate governments’ treatment of their citizens. Though very fragile, they did offer a ground to submit the domestic conduct of governments to some sort of scrutiny by individuals, domestic and international non-governmental organisations, other states and international organisations. However, it was only with the end of the Cold War and the redefinition of the role of many actors on the international stage that human rights gained importance as an issue on the political agenda of organisations like OSCE, the European Union, as well as in several national foreign policies. In other words, it can be argued that a process of internationalisation of human rights has been emerging in the past few decades. This means that the issue of human rights has been moving from the domestic to the international level, and that it has therefore entered the sphere of international relations, bringing with it a number of questions which are strictly linked to the debate among IR scholars. Before considering the essence of the process of internationalisation of human rights, it is crucial to tackle the question of where human rights should be placed in the context of the main IR theories. The answer to this question varies to a great extent according to the actors that are considered central to the international system: states, individuals, international organisations, NGOs. Indeed, when reading human rights in international relations, the main focus is on the centrality attached to states and international institutions. In fact, if we look at ‘classic’ IR theories like realism/neo-realism and idealism/ liberalism, individuals and other actors, such as NGOs, play a marginal role. This is an element that characterises most of the debate about human rights and international relations: states are either seen as the main actor of the game, and as the principal protector of human rights, or as the problem at the origin of human rights abuses. International institutions are also a constant element of the debate and, as we will see below, increasingly play an active role on the international stage on issues related to human rights. However, the discussion about the role of international institutions in the context of the main IR theories relates to

Human Rights and International Relations 289 their capacity to express a truly supranational ‘actorness’ and subjectivity, rather than their raison d’etre as a tool merely reflecting state interests. As Donnelly argues, there are ‘three competing theoretical models of the place of human rights in international relations, each with its own conception of the character of the international community’.1 The statist model sees human rights principally as a national matter. States are the primary actors entitled to deal with the issue. An international community with a subjectivity of its own does not exist according to this model. This approach has its roots in the realist/neo-realist tradition which sees the international system as a place characterised by anarchy where survival is the objective to be achieved by maximising power and by furthering (national) interests.2 The cosmopolitan model considers the role of individuals as important players who, together with NGOs, constitute a challenge to states which, nonetheless, remain the actors governing world politics. This approach puts forward the idea of an existing global community; but, in spite of the fact that it can certainly be argued that NGOs and individuals may be already thinking and doing global politics (as demonstrated, for example, by the anti-globalisation movement or NGOs such as Amnesty International), one must note that such a community does not have an effective set of international institutions supporting it. The internationalist model falls between the two extremes represented by the statist and the cosmopolitan model. This model is, in principle, the idea of a society of states which regulates and sets out norms. As Donnelly points out, in this model ‘international human rights activity is permissible only to the extent authorised by the norms of the society of states’.3 Donnelly’s categorisation could be interpreted as a continuum in which the internationalist model represents the model getting closer in descriptive terms to the current international setting. That categorisation can be seen to a great extent as a re-elaboration of Vincent’s approach.4 Vincent’s argument in fact is characterised by the following three views of the nature of international politics: (a) the view that the only world community is a community of states, and that the rules of this community are the rules of states and not of individuals;

1

J Donnelly, International Human Rights (Westview Press, 1998), p 28. S Kardas, Human Rights Policy and International Relations: Realist Foundations Reconsidered, Working Paper No 31 (HRHW, University of Denver, 2005), available at www.du.edu/gsis/hrhw/working/2005/31-kardas-2005.pdf 3 Donnelly, n 1 above, p 29. 4 R Vincent, Human Rights in International Relations (Cambridge, Cambridge University Press, 1986), pp 113–18. 2

290 Nicola Catellani (b) the view that there is a cosmopolitan community whose members are individuals; (c) the view that the human rights discourse is only a matter of interests in disguise. As one can see, this approach reflects the importance of states, individuals and to a lesser extent that of international organisations. These attempts to categorise human rights in the context of IR lack two elements, the first of which concerns the role of structural phenomena: neither position considers external factors such as migrations, or factors such as the rise of new forms of capitalism that have repercussions on a global scale (for example, China and Russia), or the rise of religious fundamentalism. In other words, these are ‘static’ models and therefore do not consider some of the key structural aspects of world politics that emerge partially as a result of what is known as globalisation. This leads us to the second element, the ‘evolutionary’ nature of human rights. The centrality of human rights in international politics, or better still, in the foreign policy agenda of states and/or in the political agenda of international organisations, is constantly evolving because of new international settings. For example, the emergence of actors like the European Union in international politics has introduced important elements of change in the dynamics that characterise international relations and, as a result of that, the role of human rights. One should, in fact, observe that EU relations with third countries (at least in its wider neighbourhood) are not shaped by power politics backed by a military threat but rather by economic aspects, as well as by mechanisms of incentives and conditionality. In the foreign policy approach promoted by the European Union, there appears to be, in sum, greater attention paid to role values (and their export). As a result of this, human rights have emerged, at least on paper, as an element that has an increasing centrality in the European Union’s external policies. In parallel, its Members States have increasingly attached centrality to human rights-related questions in the implementation of their national foreign policies. One therefore could argue that there is an element of increasing interdependence between human rights and the international system that the models put forward above do not seem to take fully into consideration. The three ‘generations’ of rights constitute an example, as pointed out by Koen De Feyter5 in Chapter 1, of how the emergence of a certain sensitivity/ attention towards a particular type of right (social and economic rights during the Cold War and minority rights at the beginning of the 1990s)

5

See K De Feyter, Chapter 1.

Human Rights and International Relations 291 is the result of political conditions which produce change at systemic level (creation of the two blocs, and later on collapse of the system in the late 1980s/early 1990s with a new impetus both for a proliferation of nation states and integration processes at regional level). If we consider the European context, the early 1990s were characterised by the revival of nationalism(s) that led to the break-up of Yugoslavia and to the tensions in Balkan Europe and to a lesser extent in Eastern Europe,6 on questions related to minorities and group rights. At the same time, a parallel process of progressive strengthening of international organisations such as the Organisation for Security and Cooperation in Europe (OSCE) and the Council of Europe on the one hand, and also of the European integration process through the development of the Common Foreign and Security Policy (as a result of the Maastricht Treaty) on the other, has created conditions for a more active role of such organisations. The attention paid to the protection of group rights has been increasing in parallel with the capacity of international organisations to express an increased subjectivity on the international arena. Is it therefore possible to draw a link between the inability of states as actors to deal individually with violations concerning minorities and the increasing role attached to international organisations in such matters, or in multilateral contexts? Generally speaking, the answer to such question is ‘yes’. The trend, at least in the European context, that is emerging is rather clear. Institutions like the European Court of Human Rights or the International Criminal Court represent a ‘new’ additional institutional level to which human rights matters can be addressed when states fail to deal with violations. In the same way, institutions like the Council of Europe or EU institutions like the European Parliament have increasingly been providing an arena where issues concerning human rights find political visibility, with frequent debate on the centrality of human rights in the European foreign policy agenda. Paradoxically, despite the difficulties state actors face in attempts actually to protect collective rights in Eastern Europe, and particularly in the Balkans, the response to the violations of the rights of minorities has been the creation of new states where the minorities became the majority. If we go back to the question of internationalisation of human rights, what then are the elements of systemic change that are emerging from the current international context? (1) States find difficulty in adapting to change. In particular, the evolution of human rights from the second to third generation has shown 6 Problems with the minorities emerged, though not so tragically as in the former Yugoslavia, not only in Eastern Europe but, eg in the Baltic countries (Russian minority), in Romania, Moldova and to a lesser extent in Bulgaria.

292 Nicola Catellani that states are in general better equipped to protect individual rather than collective rights. (2) The revival of the role of international organisations has not been matched by their capacity to act effectively. One might in fact argue that states have tried to push international organisations to deal with the protection of human rights without granting them effective instruments that can have an actual impact. The actions undertaken by these organisations are declaratory in essence, as the case of the condemnation of the Council of Europe of the ‘extraordinary rendition’ practices7 has demonstrated. (3) Due also to structural factors (that can be summarised under the label of ‘globalisation’) it is increasingly difficult to separate the domestic from the international sphere; particularly in the European context, where economic integration taking place within the framework of the European Union is speeding up such process, human rights issues are increasingly becoming transnational in essence and therefore states, because of their very nature, are the actors that ‘suffer’ most from this situation. In parallel, what we can call a foreign policy paradox is emerging, where a foreign policy that attaches greater centrality to the promotion or protection of human rights in the world indirectly leads to the reduction of liberties domestically. In countries such as the United States and the United Kingdom8 (and others such as Italy), the development and implementation of a foreign policy aimed at fighting terrorism through military intervention in Afghanistan and Iraq, justified with reference to human rights concerns, has led to the adoption of national legislation on issues ranging from privacy to measures concerning policy custody, that reduce the rights of their citizens. It is also interesting to note how, in the cases of both the United States and the United Kingdom, it was the violation of group rights that contributed to the construction of the image of the ‘enemy’ in order to justify intervention. In Afghanistan, human rights concerns and the oppression of women were key elements of the discourse aimed at creating the ground for an intervention; similarly, the violations of human rights towards the Kurdish minority, carried out in Iraq under the regime of Saddam Hussein, were portrayed as one of the main reasons (together with the issue of weapons of mass destruction) for taking action.

7 Council of Europe Parliamentary Assembly, Alleged Secret Detentions in Council of Europe Member States, AS/Jur (2006) 03 Rev, http://assembly.coe.int/ 8 See eg Foreign and Commonwealth Office, Human Rights Annual Report 2005, available at www.fco.gov.uk/

Human Rights and International Relations 293 It is therefore paradoxical that an attempt to improve the human rights situation in countries like Afghanistan or Iraq has indirectly led to more restrictive measures being introduced in the domestic sphere. FINAL REMARKS

Human rights are increasingly acquiring centrality as a foreign policy issue. Such a trend has been strengthened, on the one hand, by the emergence on the international scene of international organisations and, on the other hand, by global phenomena that have been producing change in the dynamics that characterised international politics until the end of the Cold War. Furthermore, the foreign policy paradox outlined in the previous paragraph can be considered an example of how the domestic and the foreign spheres are increasingly becoming interdependent. The very principle that sees the role of the sovereign states as the key actors capable of promotion/protection of human rights appears to be weakening, and the traditional categorisations are becoming less and less capable of effectively framing the evolution or the internationalisation of human rights as a policy issue. Therefore, the focus of future IR research should address the development of a new framework of analysis, less centred on the role of actors and more centred on the dynamic elements that influence (foreign) policy-making processes and more generally affect international politics. SELECT BIBLIOGRAPHY Donnelly, J, International Human Rights (Westview Press, 1998) Kardas, S, Human Rights Policy and International Relations: Realist Foundations Reconsidered, Working Paper No 31 (HRHW, University of Denver, 2005) Vincent, R, Human Rights in International Relations (Cambridge, Cambridge University Press, 1986)

15 Human Rights and Development Policies: Some Critical Issues regarding the Idea of ‘Community’ in the Development Field FEDERICA TARABUSI AND IVO GIUSEPPE PAZZAGLI*

HUMAN RIGHTS AND HUMAN DEVELOPMENT: A COMPLEX RELATIONSHIP Human rights and human development share a common vision and a common purpose—to secure the freedom, well-being and dignity of all people everywhere ... Human freedom is the common purpose and common motivation of human rights and human development. The movements for human rights and for human development have had distinct traditions and strategies. United in a broader alliance, each can bring new energy and strength to the other.1

A

s the Human Development Report (HDR) 2000,2 published on behalf of the United Nation Development Programme (UNDP), shows, the last decade has been characterised by a strong relationship between human rights and human development. From the outset, human rights and human development have followed distinct traditions in promoting different strategies for analysis and action: on the one hand, discussion of human rights has largely been dominated by political activists, lawyers and philosophers who aim to mobilise political * Although the reflections and observations in this chapter have been jointly developed by the authors, it must be noted that the first and second paragraphs of the first section are by Ivo Giuseppe Pazzagli alone, and that the first and third paragraphs of the second section, as well as the chapter’s conclusion, are written by Federica Tarabusi. 1 United Nations Development Programme, Human Development Report 2000 (Oxford University Press, 2000), pp 1–2. 2 Ibid. The Human Development Report of 2000 was an attempt to promote the mission of the United Nations, which is incorporated into the UN Charter and the Universal Declaration of Human Rights in a more complex manner. The aim was to put forward indications and strategies for global development that would go beyond the dichotomic vision that accompanied the Cold War years, when civil and political rights were seen as separate from social and economic rights.

296 Federica Tarabusi and Ivo Giuseppe Pazzagli pressure, legal reform and ethical questioning; on the other hand, the field of human development has been dominated by economists, social scientists and policy-makers whose aim is to promote economic and social progress. In spite of their originating from different movements, according to the HDR both human rights and human development seem to follow parallel paths in both concept and action: the basic idea behind human rights is that ‘all people have claims to social arrangements that protect them from the worst abuses and deprivations—and that secure the freedom for a life of dignity’, while human development can be considered ‘a process of enhancing human capabilities—to expand choices and opportunities’.3 Around 1990, the trends emerging in the field of human development influenced global meetings and international conferences at which different social and organisational actors were coming together to discuss and share a new transnational discourse, which we will call ‘the new development rhetoric’. Processes of change in human development policy were the result of the failures of top-down strategies within a scenario where change was generalised, both epistemologically and politically. According to the discourse of the HDR and of UN development strategies, the age of globalisation should be characterised by a strong relationship between human rights and human development, each reinforcing the other, since the former is seen as ‘the tool for enhancing human capabilities expanding choice and opportunity’ and the latter ‘as a means for protecting and defending human rights’.4 However, moving from that assumption, we argue that the relationship between human rights and development requires profound analysis, for we consider it to be a ‘unique’ one, in which the heterogeneous development community (policy-makers, practitioners, academics, officials) takes the protection of human rights for granted, often failing to consider what kinds of rights are being referred to and people’s representations and interests in the promotion and defence of their own rights. In addition, if we consider the contemporaneous debate which reflects on differences between individual and group rights, it is evident just how many international aid projects frequently refer to human rights as ‘community rights’ in ambiguous terms. Indeed, many international agencies (bilateral and multilateral organisations, NGOs, grassroots associations, etc) frequently focus their development programmes and goals on attempts to protect ‘disability rights’, ‘women’s rights’, ‘indigenous rights’, etc, constructing holistic and essentialist categories in order to make various social groups visible as the development beneficiaries.5 3

Ibid p 2. Ibid. 5 OD Nyamwaya, ‘Three Critical Issues in Community Health Development Projects in Kenya’ in RD Grillo and RL Stirrat (eds), Discourses of Development: Anthropological Perspective (Oxford, Berg, 1997). 4

Human Rights and Development Policies 297 Despite the huge amount of energy currently devoted to generating the right policy model (such as ‘community participation’, where a community is active in the defence of its own ‘human rights’ and in promoting its own development), strangely little attention has been given to investigating what participation means in terms of practice6 and to exploring the complex relationship between human rights and development policies. If the contemporary world is characterised by the growth of complexity identifiable in the network of transnational flows, intercultural relations and processes of social change,7 it is thus necessary to take an anthropological view which considers both human rights and human development, not as static and abstract ‘pictures’, but as complex and dynamic realities where transnational flows of discourses, representations and ideas are negotiated among different social and institutional actors. That anthropological investigation, which looks at the relationship between human development and human rights in more complex terms, can help us to understand how the arena of development shapes different ‘rights’ discourses, meanings and concepts, and how different social and organisational actors share and negotiate different representations of ‘community’ (as in ‘community rights’). Moreover, significant ethnographic insights can induce us to open up for discussion some of the critical issues in contemporary transnational discourses, such as, for example, participatory development strategy. While it is important for us to analyse developers’ representations and practices in ‘deconstructing’ some fixed categories embedded within development policies (such as the idea of community rights and community participation), we shall also reflect on anthropologists’ interest in people’s practices and representations of their own rights. CHANGING PARADIGMS

Human rights and the field of human development seem to have followed parallel historical paths. Human rights were defined in the 1950s, following the 1948 Universal Declaration of Human Rights. The origins of human development, which arose out of an increasing flow of international aid, managed by what has been called ‘the development industry’, can be dated back to the same time. 6 N Nelson and S Wright (eds), Power and Participatory Development: Theory and Practice (London, Intermediate Technology Publications, 1995); Grillo and Stirrat, n 5 above; D Mosse, ‘Colonial and Contemporary Ideologies of “Community Management”: the Case of Tank Irrigation Development in South India’ (1999) 33 Modern Asian Studies 303. 7 A Appadurai, ‘Disgiunzione e differenza nell’economia culturale globale’ in Featherstone (ed), Cultura globale. Nazionalismo, globalizzazione e modernità (Seam, 1996); U Hannerz, La complessità culturale: l’organizzazione sociale del significato (Bologna, Il Mulino, 1998); M Callari Galli (ed), Nomadismi contemporanei: rapporti tra comunità locali, Stati-nazione e flussi culturali globali (Rimini, Guaraldi, 2004).

298 Federica Tarabusi and Ivo Giuseppe Pazzagli When we refer to ‘human development’ today we are referring not only to a number of different ideologies but also to specific theories of social and historical change, as well as certain ways of taking account of both the perspectives of institutions and the representations of human rights developers. In the history of human development, the original definition of the word ‘development’ comes from the oldest existing policy model, known as modernisation theory. The modernisation paradigm reflected an evolutionary and linear concept of change, based on the idea of progress as a deterministic shift from community to capitalistic society, from rural to urban. Forcing all societies into a ‘modernisation process’ based on a linear, static idea of history, this theory considered development to be a ‘means to become a modern capitalistic society’ by replicating Western and Northern models. From 1949 (when Truman announced that ‘development’ would be the primary goal in order to solve the problems of underdeveloped areas of the globe) to 1970, the term referred particularly to the economic dimension: conceptualising progress within poor societies as the implementation of technological and production resources.8 The second definition of the term dates back to the mid-1970s, when development was defined not as a ‘movement in history but an activity of social programmes’9 focusing on quality of life and reduction of poverty. The meaning of the word development thus underwent a shift, from the historical to the moral. As Ferguson stresses: Liberals and development bureaucrats regularly conflate these two meanings, implicitly equating ‘modernisation’ with the elimination or alleviation of poverty.10

Both definitions of development can be considered part of the same liberal approach, which considered the development apparatus, composed of different kinds of aid agencies, to be a practical tool for the solution of global problems.11 As post-structuralist scholars stress, this is the maximum expression of the technocratic and bureaucratic dimension of development. In contrast with this ‘ethnocentric’ manner of conceptualising development, some radical critiques, associated with neo-Marxism and dependency theory, understand development to be an imperialistic and capitalistic force of domination spreading out from the ‘centre’ (Western society) to the ‘periphery’ (Southern and poor society). In this approach, which sees development as exploitation processes that incorporate new territories into the world system,12 capitalism is not the reason for development but an obstacle

8 J Ferguson, Expectation of Modernity: Myths and Meanings of Urban Life on the Zambian Copperbelt (Berkeley/London, University of California Press, 1999). 9 Ibid. 10 Ibid p 15. 11 Ibid. 12 I Wallerstein, Alla scoperta del sistema mondo (Roma, Manifestolibri, 2003).

Human Rights and Development Policies 299 to it. The main issue for the neo-Marxist school is how this apparatus produces historical mechanisms of dependency between the First and Third Worlds. Transnational processes of cultural change contributed to the creation of a new understanding and awareness of ‘development’. An important contribution to the ‘decolonising’ of development came from anthropology’s self-critique during the 1980s13 as an epistemological and methodological inside enquiry. A new type of anthropologist thus emerged, defining themselves as anthropologists of development, as opposed to anthropologists who uncritically investigate development programmes. These new anthropologists conceive of development in terms of ‘discourse’,14 making it possible to maintain the focus on domination by developers. Moving on from Foucault’s insights into colonial and post-colonial situations, an anthropology of development has emerged from scholars such as Edward Said, VY Mudimbe and Homi Bhabha, among others, who have carried out creative studies and have introduced new ways of thinking about representations of the developing world. As Escobar stresses: More recently the development of new tools of analysis in gestation since the late 1960s but the application of which became widespread only during the 1980s, has made possible analyses of this type of ‘colonosation of reality’ which seek to account for this very fact: how certain representations become dominant and shape indelibly the ways in which reality is imagined and acted upon ... the general questions some of this work raised serve as markers for the analysis of development as a regime of representation.15 (emphasis added)

Escobar’s analysis of development as a ‘historically produced discourse’ which represents otherness as the ‘underdeveloped’, reflects on how developers frame reality in accordance with Western European categories. Similarly to Escobar’s work, both Hobart’s insights into the different ‘languages’ of development and Ferguson’s work in Lesotho analysing the development apparatus as an ‘anti-politics machine’, focus on the institutions, discourses, practices and representations of developers. With modernity now seen as a world view that has shaped development practices and representations over a long period, the new issue for critique

13 J Clifford and GE Marcus (eds) , Writing Culture: The Poetics and Politics of Ethnography (Berkely, CA, University of Californis Press, 1986). 14 M Foucault, L’archeologia del sapere (Milano, Rizzoli, 1971); A Escobar, ‘Anthropology and the Development Encounter: the Making and the Marketing of Development Anthropology’ (1991) 18 American Ethnologist 658; R Apthorpe and D Gasper (eds), Arguing Development Policy: Frames and Discourses (London, Frank Cass, 1996); Grillo and Stirrat, n 5 above. 15 A Escobar, Encountering Development: the Making and Unmaking of the Third World (Princeton, NJ, Princeton University Press, 1995).

300 Federica Tarabusi and Ivo Giuseppe Pazzagli anthropology is to deconstruct a history based on illusions and the myth of modernisation.16 ‘Community Participation’: a Transnational Discourse Post-modernist approaches are historically situated within a changing scenario of strong critiques of the top-down strategies and traditional technocratic aid policies that are culturally embedded in bureaucratic development institutions such as the World Bank and the American governmental agency USAID. To conceive of development as a cultural, political and social process means to reflect upon previous intervention failures and the most pervasive effects of development, moving from a new, more complex view of contemporary change processes and transnational dynamics. In the political space created by shifting interdependencies among political actors, by the decline of the state, by new local, regional and transnational collective actions and flows, a key role is being played by a growing numbers of new groups, identified as non-governmental organisations (NGOs), in promoting human rights and social justice, implementing grassroots development, pursuing civil society involvement and many other issues formerly ignored by governmental agencies.17 Issues such as community participation, sustainable development, or empowerment based on ‘bottom-up’ approaches are shaping new contemporary transnational discourses that stress the importance of giving a ‘political voice’ to all people and of considering the local community as the main actor in its own development. An anthropological view of new transnational discourse phenomena shows how the historically parallel movements in the fields of human rights and human development need to be conceived of in more complex terms. Despite growing interest in encouraging civil societies to participate in their own development and rights, anthropologists still need to take account of a number of linked, unresolved issues in the fields of both human rights and development. While the myth of development was gradually unfolding, the ‘translation’ of the Universal Declaration of Human Rights from international law into everyday practices similarly highlighted the illusion of combining a global institutional activity with the diversity of the world’s local realities: technologies alone cannot guarantee development as laws alone cannot guarantee human rights.18 As the case described below regarding the drafting of the 16

Ibid; Ferguson, n 8 above. WF Fisher, ‘Doing Good? The Politics and Antipolitics of NGO Practices’ (1997) 26 Annual Review of Anthropology 439. 18 UNDP, Human Development Report 2000, n 1 above. 17

Human Rights and Development Policies 301 Declaration of Indigenous Peoples shows, participation may frame transnational institutions’ discourses, but some critical issues remain unresolved.19 In November 1995, the draft United Nations Declaration on the Rights of Indigenous Peoples was subject to a preliminary political reading by a Working Group of the Commission of Human Rights. While the adoption of a declaration on the rights of indigenous people was one of the goals of the International Decade of the World’s Indigenous Peoples (1995–2005), member states had also committed to promote and protect the rights of indigenous peoples beyond the ‘traditional’ meaning of human rights.20 Contradiction and ambiguity are easily seen when we look closely at the indigenous participation issue embedded in UN procedures for preparing the declaration. Indigenous peoples have not always enjoyed unrestricted access to meetings of the Working Group of the Commission of Human Rights. Even though the chair stressed that the draft declaration should ‘truly reflect the values, beliefs, aspirations of the people concerned’, the Working Group did not admit non-governmental organisations unless they had obtained ‘consultative status’ with the Economic and Social Council, a status achieved by only 12 indigenous organisations in the world.21 Considering that 10 of those organisations represent indigenous peoples of the North, there were only two that could speak on behalf of indigenous peoples of the South, where an estimated 90 per cent of the world’s indigenous people live. Indeed, even accredited NGOs were not permitted to submit formal proposals at drafting sessions, where decisions were taken by the participating governments by consensus. An anthropological approach would take into account the meaning of the term ‘indigenous’ in the representations of each of the member states. Contrasting and opposite definitions of the term ‘indigenous’ highlight the representations and prejudices of different actors in relation to minorities and to the North-South relationship. According to some representatives of some states, indigenous peoples do not exist in countries where ‘the original inhabitants were not put on reservations but lived in harmony together in one society’; according to another view, ‘indigenous’ means a ‘minority claiming special rights’ or is critically understood as ‘the result of European countries’ pursuit of colonial policies in other parts of the world’. Member states’ representatives argue in favour of these various different perceptions resulting in contrasting proposals being put forward regarding the application of indigenous rights. For example, Canada, New Zealand and France restate the universality of 19 RL Barsh, ‘Indigenous People and the UN Commission on Human Rights: a Case of the Immovable Object and the Irresistible Force’ (1996) 18 Human Rights Quarterly 782. 20 Ibid. 21 Ibid.

302 Federica Tarabusi and Ivo Giuseppe Pazzagli human rights, strongly opposing Asian representatives’ hypotheses regarding ‘regionalisation’ of the application of the draft Declaration. Different indigenous representations related to different world views lead to different ways of understanding both the ‘nature’ of rights and the goals of the Declaration. For example, Latin-American states take account of the political dimension of the term ‘indigenous’, emphasising indigenous action and effective participation in national political affairs. On the other hand, the United States argues that the sole function of the Declaration should be to ‘fight discrimination based on indigenous origins’ and to guarantee full equality before the law. Similarly, some states argue for a collective dimension of indigenous rights which should be subordinate to individual rights. In contrast, others stress that collective and individual rights should be balanced without creating a fixed hierarchy: ‘it is an ethnocentric presumption that individual and collective rights are mutually exclusive’.22 These contrasting representations of indigenous rights are related to critical issues regarding indigenous self-determination and the relationship between state and community. According to a conservative viewpoint, indigenous communities are a ‘bounded entity’ within a state, while from a progressive viewpoint, indigenous equality means giving such communities a ‘political voice’ in national and foreign affairs, for example by transferring the management of resources from the state to the community. Thus, it is not difficult to see how the Declaration of Indigeneous Peoples has become an ‘arena’ in which different representations, understandings and meanings of human rights, as well as community rights, are negotiated among different social and institutional actors. RETHINKING ‘COMMUNITY RIGHTS’: SOME ETHNOGRAPHIC INSIGHTS

Anthropological analysis shows how, within development discourses, the word ‘community’ invokes various representations of social life.23 Nyamwaya’s fieldwork in a ‘community health development project’ in Kenya in the 1990s shows how modernisation theory continues to shape developers’ practices and representations from behind a ‘mask’ of participation.24 As in the classical view, community (seen within an evolutionary theory of social change), is here presented as a bounded, simple, interpersonal field of action that contrasts with aspects that characterise modern societies, 22

Ibid. Mosse, n 6 above. 24 Nyamwaya reviews international interventions and governmental initiatives realised between 1980 and 1993, showing how participation began to play an increasingly central role in development policies. 23

Human Rights and Development Policies 303 such as bureaucracy, thus distinguishing developers from those who are part of community.25 The community thus needs to be modernised and development activities are planned in terms of the future, in order to improve the community’s future situation. In contrast with developers’ discourses advocating rights to health, the anthropologist Nyamwaya puts the Kenyan people’s right to choose first. If the ambiguous concepts of participation and empowerment are based on the implicit assumption that ‘communities can only develop once they have assimilated specialised technical and material inputs from outside’(emphasis added),26 can the role played by people in defending their rights to health be considered a political one? Ethnographic accounts seem to show not only how empowerment often becomes a means for achieving development goals, but also how the ‘right to health’ discourse assumes a very dangerous role in politically legitimising several kinds of Western practices that are culturally and institutionally situated or embedded. As Nyamwaya stresses: While in theory communities are supposed to play a leading role in the healthdevelopment process, that process is still largely controlled by government and NGO development ‘experts’ who do not allow communities to play major roles.27

Thus, participation takes on an ‘instrumental’ meaning, placing individuals in the position of ‘beneficiaries’ within the development apparatus rather than in a role that is politically decisive for defining and implementing intervention. Moreover, it is expressed in the ‘language of developers’: an elitist set of experts, bureaucrats, project-leaders, NGO managers and researchers which, although heterogeneous, nevertheless belongs to the world of expertise and technology. While we should examine developer’s representations and health practices, we also need to reflect upon how aid interventions are based on the holistic idea of the ‘homogenisation’ of communities, whereby social categories are constructed and it is assumed that each group is a bounded entity with shared characteristics, needs, representations and expectations: In my view, much effort is spent on mobilising or constituting social groups because projects are planned without due regard to the heterogeneity of communities and their felt needs. Such efforts are expended because development agencies and the government wish to have visible objects in development interventions. The quest for visibility leads to the construction of social groups which may exist only in the project personnel’s imagination and reports. Visible social

25

Mosse, n 6 above. OD Nyamwaya, ‘Three Critical Issues in Community Health Development Projects in Kenya’ in Grillo and Stirrat, n 5 above. 27 Ibid p 184. 26

304 Federica Tarabusi and Ivo Giuseppe Pazzagli groups can be controlled, and this seems to be the hidden agenda of development agencies.28

Moreover, contemporary ethnographies show how human rights cannot be understood as something fixed and static but must be conceived within a dynamic and complex local-global system. David Mosse’s ethnography investigates rights to water and control of access to natural resources in a rural development project in Tamil Nadu (India). He analyses how the tank irrigation system (an indigenous form of irrigation in a semi-dry zone of Southern India) becomes a ‘space’ in which developers’ fixed representations of community rights emerge. Here, developers’ policies mask a different idea of community which embodies not so much a theory of change (towards modernisation) but rather a theory of stasis. Southern villages and indigenous communities are often characterised as being timeless and unchanging, a view which ignores the fact that the indigenous system is equally embedded in processes of social and historical change.29 Moving on from considering how intensive government think-tank modernisation programmes are justified by reference to traditional community-based mechanisms, Mosse shows how ‘an idea of the past embodies distinctly the modern principles of gender and class equality, participation, democracy’.30 After the myth of modernity, the focus of rural and environmental discourses started to shift toward the narrative of tradition. The notion of ‘community’ became an idealised counterpart to the damaging forces of modern change and development, providing a locus for an ideological critique of the modernising strategies of the centralised state and the dominance of Western technology over indigenous perspectives.31 Rural development policies produce narratives and myths of ‘tradition’ and ‘community management’ and shape their practices, moving on from an ahistorical, static idea of community rights and using ‘tradition’ to legitimise Western activities. According to ethnographic accounts, tank irrigation represents not only a technology and a resource but also a system of social relations which defines sets of rights, obligations, entitlements within the villages, and both between villages and between villages and state.32 As the British anthropologist argues: ‘The unchanging traditional community management of the traditional tank is largely fictional’.33 Historical and cultural analysis of indigenous systems, from the pre-colonial definitions of community rights and access to water to contemporary state 28 29 30 31 32 33

Ibid p 189. Mosse, n 6 above. Ibid p 146. Ibid. Mosse, n 6 above. Ibid p 149.

Human Rights and Development Policies 305 policies, shows how rights to water have to be considered embedded in a changing set of social relations and in wider political transformations. Pre-colonial times were characterised by unequal access to resources within and between villages, where rights and shares were defined by caste and kingroup membership. So while dominant castes and kinsmen had privileged access to tank water, other rights and obligations of caste groups were only services-related. Mosse provides a complex analysis which takes into account all levels (village, regional and state links), showing how rights and rules ‘rested on political authority determined by vertical relations, from village headmen through regional chiefs to the king’.34 Under the colonial system, British rules isolated Tamil villages from previous political linkages. In fact, private property distinguished rights to land from rights over public resources (ownership of the colonial state), thus dismantling the indigenous political system. The ethnohistorical view shows how the nature of the rights to village tanks changed from politically and socially defined ‘shares’ (defined by reciprocal caste-based relationships between landed patrons and labouring clients) to private landholding title based on market relations and loosely tied to caste identity. Caste-based structures of rights and obligations were replaced by market relations. Today, the new participatory institutions are unable to resolve conflict over water rights and continue to protect the interests of dominant caste groups. As David Mosse’s fieldwork shows, there is a strong relationship between participatory methods and the social and power dynamics of a community where the elites often speak ‘on behalf of’ the community.35 But he also shows how anthropology is able to understand peoples’ practices of their own rights by analysing village, regional, state and transnational levels and linkages. CONCLUSION

First, these ethnographic insights show how participation projects often mask an ‘ethnocentric’ and essentialistic view and holistic ideas of community, without taking into account local reality as embedded in social and power relations. Secondly, an anthropological contribution is needed to explore people’s practices and understanding of their own rights. In truth—as contemporary ethnographers of development stress—it is the very use of the term ‘community’ ‘that needs to be questioned,36 in situations where local people do not identify with an ‘ethnocentric concept’,

34

Ibid p 145. D Mosse ‘Authority, Gender and Knowledge: Theoretical Reflections on the Practice of Participatory Rural Appraisal’ (1994) 25(3) Development and Change 497–526. 36 Nelson and Wright, n 6 above; C Giordano, ‘Dal punto di vista del progetto. Dinamiche etnografiche in un contesto di sviluppo (Baluchistan settentrionale)’ in U Fabietti (ed), Etnografia e culture. Antropologi, informatori e politiche dell’identità (Roma, Carocci, 1998). 35

306 Federica Tarabusi and Ivo Giuseppe Pazzagli structured around the tradition/modernity dualism, itself linked to the jargon of planners. As Giordano remarks: The concept of ‘community’ … can be said to be of the type that is ‘near to experience’ for the project, but the same cannot be said for a Pashtun population in Baluchistan, organised according to criteria of kinship and solidarity constituting socio-territorial entities that are not described by the word ‘community’.37

In conclusion, the issue of community participation links ‘rights discourses’38 to ‘development discourse’ (based on liberal or populistic rhetorics) in legitimising several kinds of different institutional and organisational practices which usually negotiate between opposing interests and contrasting perceptions.39 Therefore, analysis of the relationship between the rhetoric of community rights participation (in health, education, water, etc) and the practices of development agencies is not only one of the main issues in contemporary aid anthropology; it also represents an excellent opportunity to engage politically with human rights issues in more complex terms.

SELECT BIBLIOGRAPHY Appadurai, A, ‘Disgiunzione e differenza nell’economia culturale globale’ in M Featherstone (ed), Cultura globale. Nazionalismo, globalizzazione e modernità (Seam, 1996) Apthorpe, R and Gasper, D (eds), Arguing Development Policy: Frames and Discourses (London, Frank Cass, 1996) Barsh, RL, ‘Indigenous People and the UN Commission on Human Rights: a Case of the Immovable Object and the Irresistible Force’ (1996) 18 Human Rights Quarterly 782 Callari Galli, M (ed), Nomadismi contemporanei: rapporti tra comunità locali, Statinazione e flussi culturali globali (Rimini, Guaraldi, 2004) Clifford, J and Marcus, GE (eds), Writing Culture: The Poetics and Politics of Ethnography (Berkeley, CA, University of California Press, 1986) Cooke, B and Kothari, U (eds), Participation: the New Tyranny? (London, Zed Books, 2001) Escobar, A, ‘Anthropology and the Development Encounter: the Making and the Marketing of Development Anthropology’ (1991) 18 American Ethnologist 658 ——, Encountering Development: the Making and Unmaking of the Third World (Princeton, NJ, Princeton University Press, 1995) Ferguson, J, The Anti-politics Machine: ‘Development’, Depoliticization and Bureaucratic Power in Lesotho (Minneapolis, University of Minnesota Press, 1994) ——, Expectation of Modernity: Myths and Meanings of Urban Life on the Zambian Copperbelt (Berkeley/London, University of California Press, 1999)

37

Giordano, n 36 above, p 88. R Thompson, ‘Ethnic Minorities and the Case for Collective Rights’ (1997) 99 American Anthropology 786. 39 D Mosse, ‘Is Good Policy Unimplementable? Reflections on the Ethnography of Aid Policy and Practice’ (2004) 35(4) Development and Change 639–71. 38

Human Rights and Development Policies 307 Fisher, WF, ‘Doing Good? The Politics and Antipolitics of NGO Practices’ (1997) 26 Annual Review of Anthropology 439 Foucault, M, L’archeologia del sapere (Milano, Rizzoli, 1971) Gardner, K and Lewis, D, Anthropology, Development and the Post-modern Challenge (London, Pluto Press, 1996) Giordano, C, ‘Dal punto di vista del progetto. Dinamiche etnografiche in un contesto di sviluppo (Baluchistan settentrionale)’ in U Fabietti (ed), Etnografia e culture. Antropologi, informatori e politiche dell’identità (Roma, Carocci, 1998) Grillo, RD and Stirrat, RL (eds), Discourses of Development: Anthropological Perspectives (Oxford, Berg, 1997) Hannerz, U, La complessità culturale: l’organizzazione sociale del significato (Bologna, Il Mulino, 1998) Hobart, M, An Anthropological Critique of Development (London, Routledge, 1993) Marcus, G and Fisher, M, Antropologia come critica culturale (Roma, Meltemi, 1998) Mosse, D, ‘Authority, Gender and Knowledge: Theoretical Reflections on the Practice of Participatory Rural Appraisal’ (1994) 25(3) Development and Change 497–526 ——, ‘Colonial and Contemporary Ideologies of “Community Management”: the Case of Tank Irrigation Development in South India’ (1999) 33 Modern Asian Studies 303 ——, ‘Is Good Policy is Unimplementable? Reflections on the Ethnography of Aid Policy and Practice’ (2004) 35(4) Development and Change 639–71 Nelson, N and Wright, S (eds), Power and Participatory Development: Theory and Practice (London, Intermediate Technology Publications, 1995) Nyamwaya, OD, ‘Three Critical Issues in Community Health Development Projects in Kenya’ in RD Grillo and RL Stirrat (eds), Discourses of Development: Anthropological Perspective (Oxford, Berg, 1997) Thompson, R, ‘Ethnic Minorities and the Case for Collective Rights’ (1997) 99 American Anthropology 786 United Nations Development Programme, Human Development Report 2000 (Oxford University Press, 2000) Wallerstein, I, Alla scoperta del sistema mondo (Roma, Manifestolibri, 2003)

Index A ‘Adopt A Right’, 198, 199, 200, 202, 203, 204 Adoption right of homosexuals, 258 Alexy, R, 167, 169, 170 Anthropology concern for human rights, 72 cultural dynamics of, 78, 79 general orientations of, 71 relativism, 74 universalism, 74, 75 B Barnett, CR on cultural differences, 72 Barth Effect, 60 Baxi on adoption of universal declaration, 26 Benhabib dual track approach, 127 on feminism, 120, 121, 125, 126 C Cervantes, 12 Children ‘Adopt A Right’, Potentials and Contradictions, 199, 204 Adoption rights of homosexuals, 258 ethnographic approach to the rights of, 194, 195, 196, 197. Citizenship Contextualization, 208, 209, 210, 211 Marshall’s view, 53, 54, 208 Civil Rights legal equality, 53 Comte, Auguste law of three stages, 50 Convention on the Elimination of Racial Discrimination (CERD), 1965 first treaty against discrimination, 139, 140 Convention on the Elimination of All Forms of Discrimination Against Women Reservation dialogue, 108, 109, 110 Article 5, 111, 114 Article 16, 111, 113, 114, 116, 117 Article 2, 108, 112 Article 9, 114

Article 23, 115 Convention on Prevention and Punishment of Crime of Genocide, 1948 Article 2, 22 Convention on the Rights of the Child, 115 Culture Nuances of, 184 D Davidson, D, 161, 162, 170 De Tocquevile on individualisation, 51 Doctrine(s) of universal human rights prerequisites, 57 Doughty PL, 72 Durkheim civil law, 50 organic solidarity, 50 penal law, 50 Dworkin, R, 162, 169, 170 E Emigration and human rights, 81, 82 European Convention on Human Rights adoption by homosexual, 258 article 11, 259 article 12, 258 article 13, 258 article 14, 255, 256, 258 article 8, 257, 258 article 9, 258 discrimination on basis of language, 256 discrimination on ground of sex, 257 homosexuality, 257 protection of groups, 255, 256 transexuality, 258 European Charter for Regional/Minority Languages article 1, 262 European Framework Convention for Protection of National Minorities, 262, 263 European Charter of Fundamental Rights article 7, 264 article 10, 264 article 12, 264 article 20, 264 article 21, 264 article 22, 264

310 Index article 25, 264 article 26, 264 article 27, 264 article 28, 264 article 38, 264 European Court of Human Rights applications to admissibility criteria, 249–251 protection of minority rights, 252–254 European Social Charter protection of groups, 261, 262 European Union prohibition of discrimination, 263, 265, 266 F Federal Union of European Nationalities, 97 Feminism, 120 Freeman, 26 G Gemeinschaft, 42 Gesellschaft, 43 Genocide legal definitions of, 22 prohibition of, 22, 23 Gender Equality Benhabib multicultural arrangement, 120, 121, 125, 126 Leyla S¸ahib case, 123, 124 Prostitution, 186, 187, 188, 189, 190 sex discrimination, 257 Gomez methodology of, 21 Group Rights collective solidarity rights, 19 immigrant minorities rights of 61, 62 meaning of, 19 non discrimination, 139, 140 protection of group, 247, 248 protection of individuals belonging to group, 248, 249 protection of, under European social charter, 261, 262 right against discrimination, 256, 257 right to private life, 257, 258 right to self-determination, 19 rights of persons belonging to minorities, 141 sociological perspective of, 45 H Habermas, J, 120, 128, 129, 146, 147 Herskovits, Melville, 71

Homosexual right to adopt, 258 right to private life, 257 Human Rights ‘Adopt a Right’, 199–204 anthrapological approach, 5 building support for, 65 community rights, 302–305 compliance problems, 20 conditions of normativity, 148, 149, 150 emigration, 81, 82 ethnographic approach, 194, 195, 196, 197 ethnographic study, 85 Grootboom decision, 24 human development, 297 impact of litigation, 23 in educational contexts, 194 individual rights, 2 individualism and private conceptions of rights, 152, 153, 154 intercultural approach, 83, 84 interdisciplinarity, 13 interdisciplinary approach ,need for, 4 internationalisation of, 284 multidisciplinary, 13 non individualism 147 philosophical justifications of, 26 international relations, 289–293 pluralistic approach, 82, 83 politological approach, 5 process of legalization 17 public conceptions of rights, 155 realisation process, 5 regional systems of protection, 279–284 role of judges, 18 sociological approach, 5 sociological perspective, 46 universality of, 6 violation assessment of, 23 Human Actions approach to, 46 cultural view, 46, 47, 48 structural view, 46, 47, 48, 49 I International law interpretations of treaties, 29 Inter American Convention on Human Rights Article 29, 32 International Covenant on Civil and Political Rights article 2(1), 115 article 3, 115 article 6, 31 article 26, 122 article 27, 122, 141

Index 311 International Convention on Rights of Persons with Disabilities, 16 International Human Rights Law universal system of human rights promotion, 275–279 International relations theory insights of, 20, 21 International Covenant on Economic, Social & Cultural Rights, 133 K Kant principle of universalisation, 167, 168, 169 Klabber interdisciplinarity, 13 Klein objectives of interdisciplinarity, 13 Kripke, S, 161, 171 M Messer, E on anthropology, 72 Migration anthropological approach, 207–211 migrating communities, disaggregation, 211–213 transnational migration & sedentarist policies, 217–219 Minority Rights building support for, 65 EctHR, 252–254 European Bureau for Lesser-Used Languages, 100 Europe, development of, 89, 90, 91 Federal Union of European Nationalities, 97, 98 historical perspective Europe, development in, 93, 94, 95 immigrant and national minorities distinctions between, 64 Non Governmental Organisations, 96 normative support, 227, 228, 229, 235 OSCE, 254, 255 rights of immigrant minorities, 62 Russian federation, 223, 224, 225 social psychological theories, 225–227 sociological perspective, 45 territorialisations, 237 N Nowak process of legislation of human rights, 17 O O’Byrne human rights analysis, 22

Organisation for Security & Cooperation in Europe protection of minorities, 254, 255 P Prostitution rights of women, 175–181 R Rainer Baubock ethnicisation, 61 Ralston Saul, 12 Reese, 12 Research Action Project 198 ‘Adopt a Right’, 198–204 Falk, Richard, 15 Right(s) civil, 53 individual vs collective rights, 246 immigrant minorities, 61, 62 political, 52, 53 social, 53 women prostitution, 175–181 Right(s) to adoption by homosexual, 258 language equality, 256 life, 30, 31 livelihood, 30 private life homosexuals, 257 property, 31, 32, 34 sex equality, 257 S Sociology critical science, 44 general science, 44 multidisciplinary science, 44 Solidarity collective, 19 organic, 50 Social Rights equality of opportunity, 53 Stavenhagen, Rodolfo tension between human rights and group rights, 33 T Theories of international relations, 20 practice, 159 self categorization, 226 social identity, 226

312 Index Treaties Interpretations, 29 interpretative methods ordinary meaning, 29 special meaning, 30 telelogical method, 30 Terrorism explosion of, 76, 77 U Universal Declaration of Human Rights article 1, 132 article 2, 132 Article 28, 2 binding nature of, 15

codification process, 36 criticism of, 59 minority rights, 34 multiculturalism, 134 universalism, 131, 132, 137 universalisation, principles of, 168, 169 V Vienna Convention on Law of Treaties, 29, 30 W Weber, Max kadi law, 50 Williamson, T, 152, 160, 171