This Unit

1. This Unit • Shift attention away from “Rights Versus Culture” debate • Relativism is • Methodology • Analytical Tool • To make sense of the internal logic of a social practice • ‘Culture’ is the context in which we make sense of ‘rights’

2. Human rights of minorities Indigenous peoples, minority groups and religious difference

3. Human Rights as Culture • Human Rights is the “idea” of our time. • “Ideology” of rights • Ideas surrounding liberalism • Possessive individualism • Humans are free in nature • Social contract • Hegemonic and yet Anti-majoritarian

4. Culture of LAW • Merry article • People’s International Tribunal of Native Hawaiians • Incorporation of local understandings • With legal discourses

5. Culture • Not static, but dynamic • Contingent • Plural • Not bounded, but porous

6. What does it mean for human rights that native Hawaiians use it to make claims against the state (US)?What is Merry arguing against?

7. Rejection of human rights as a ‘Western’ discourse • There are no longer cultures for whom legal regimes of the West are totally alien or irrelevant • Share a common language of LAW • Multi-layered combination • UN Resolutions • National Law • Local “custom”

8. Legal Pluralism • Describes societies in which multiple means of redress or retribution exist, either outside formal legal procedures or in the overlapping sets of legal jurisdictions. • Often the norm in colonial or postcolonial societies.

9. (Human Rights) Law is part of a Transnational Culture • Arguing against those who say human rights is a Western construct and indicative of imperialism • Global World of Legal Pluralism • But, it doesn’t happen in the Abstract

10. Who owns CULTURE? Who defines Human Rights? • Local peoples? • State? • Minority groups? • Superpower? • Remember: Multivocal • Keep in mind: Shared principles • Constant balance; more like STRUGGLE

11. Non-prosecutorial Options(transitional justice) Truth and Reconciliation Commissions South Africa Gacaca Courts in Rwanda

12. Regional HR Systems: Council of Europe European Court of HR (mandated by ECHR) Organization of American States (OAS) Inter-American Commission on HR Inter-American Court of Human Rights (ACHR) AFRICAN UNION African Commission on Human Rights African Court on Human Rights (ACHR) Asian Commission on Human Rights NGO to promote awareness + mobilize support Organization of Islamic Conference (OIC) Cairo Declaration of Human Rights (in Islam)

13. Additional Instruments • New-ish Laws • U.S. (ATCA) • New Venues • Spain (Court accepts jurisdiction for Guatemala genocide and Guantanamo prisoners) *** • New Legal Instruments • Tribunals • Truth Commissions • Update on Hawaiian Sovereignty Movement • Native Hawaiian Government Reorganization Act

14. UN and Indigenous Peoples Economic and Social Council (“ECOSOC”) ↓ Human Rights Council (“Council”) ↓ Sub-Commission on the Promotion and Protection of Human Rights(“Sub-Commission”) (disbanded 2007) ↓ Working Group on Indigenous Populations (“WGIP”) (disbanded October 2008) Will Create: “EXPERT MECHANISM ON THE RIGHTS OF INDIGENOUS PEOPLES ↓ Special Rapporteur

15. Special Rapporteur: James Anaya (U.S. Prof) • on the rights of indigenous peoples • Thematic research • Country visits • Communications with governments • Follow-up activities

16. Declaration of the Rights of Indigenous Peoples • Standard Setting • 45 Articles on rights/protections of Indigenous • Drafted by Working Group • Unanimously approved by Sub-Commission • Adopted by Human Rights Council, June 29, 2006 • Adopted by UN General Assembly, Sept. 13, 2007 • 144 in favor • 4 against • 11 abstain

17. Internationally Recognized Rights of Indigenous Peoples • Land and Resources • Culture, Language, and Education • Development • Self-Determination

18. House passed H.R. 505 10.24.07AKAKA BILL To express the policy of the United States regarding the United States relationship with Native Hawaiians and to provide a process for the recognition by US of the Native Hawaiian governing entity. • 261 yeas to 153 nays

19. US Domestic Law Common Law: Filartiga v. Peña-Irala Legislation: Alien Tort Claims Act 9th Circuit Federal Ct of Appeals decision Doe v. UNOCAL

20. General Issues • Expropriation • Of Land, Resources and Labor • Equal Treatment • Minority groups seeking recognition • Exceptional Treatment • Positive Discrimination (past harms) • Assimilation • Normalization of beliefs (religious)

21. Collective vs. Individual Rights • How does ‘majority’ population appreciate and/or make room for rights of collectivities • Rights to assembly, association, practices • Freedom to worship = Religion • How does majority view? • Appreciate Diversity • Build Bridges • Take Exception

22. Human Rights & Religious Freedom • Secularism and non-Western religions • HR are secular understandings of Judeo-Christian... • Debates • Muslim Majority countries • Secular societies and religious groups • Headscarf debate in France • Cross-cultural Approaches (An-Na’im) • Engage in dialogue • Critique of ‘Cultural Essentialism’ (Bielefeldt) • Human rights have ALWAYS been a political issue • Who defines ‘the culture’?

23. Islamic Human Rights • Bangkok Declaration • ‘Asian Values’ • Cairo Declaration of Human Rights in Islam • Distinguish from UDHR • Spirit • Articles (5, 19, 22, 24, 25) • Criticisms • False sense of consensus? (Elites?) • Politically Motivated? • Interpretive aspect of Islamic law

24. Other Islamic Institutions • Arab Charter on Human Rights • Islamic Human Rights Commission (London) • Iranian Islamic Human Rights Commission • Localized determinations • Determines HR are in conformity with their interpretation of Islam • Informs ‘West’ about Islamic HR • Effecting internal dialogue about HR • Standard setting • Formation of legal regulations and apparatus

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