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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’. Human rights of minorities.

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this unit
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’
human rights of minorities

Human rights of minorities

Indigenous peoples, minority groups and religious difference

human rights as culture
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
culture of law
Culture of LAW
  • Merry article
  • People’s International Tribunal of Native Hawaiians
  • Incorporation of local understandings
  • With legal discourses
culture
Culture
  • Not static, but dynamic
  • Contingent
  • Plural
  • Not bounded, but porous
slide6
What does it mean for human rights that native Hawaiians use it to make claims against the state (US)?What is Merry arguing against?
rejection of human rights as a western discourse
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”
legal pluralism
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.
human rights law is part of a transnational culture
(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
who owns culture who defines human rights
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
non prosecutorial options transitional justice
Non-prosecutorial Options(transitional justice)

Truth and Reconciliation Commissions

South Africa

Gacaca Courts in Rwanda

regional hr systems
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)

additional instruments
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
un and indigenous peoples
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

special rapporteur james anaya u s prof
Special Rapporteur: James Anaya (U.S. Prof)
  • on the rights of indigenous peoples
  • Thematic research
  • Country visits
  • Communications with governments
  • Follow-up activities
declaration of the rights of indigenous peoples
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
internationally recognized rights of indigenous peoples
Internationally Recognized Rights of Indigenous Peoples
  • Land and Resources
  • Culture, Language, and Education
  • Development
  • Self-Determination
house passed h r 505 10 24 07 akaka bill
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
us domestic law
US Domestic Law

Common Law: Filartiga v. Peña-Irala

Legislation: Alien Tort Claims Act

9th Circuit Federal Ct of Appeals decision

Doe v. UNOCAL

general issues
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)
collective vs individual rights
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
human rights religious freedom
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’?
islamic human rights
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
other islamic institutions
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
slide25

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A Place That Is Rougher and Bleaker Than Guantanamo