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 Human rights of minoritiesminorities

Indigenous peoples, minority Indigenous peoples, minority groups and religious groups and religious

differencedifference

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

• Merry article

• People’s International Tribunal of Native Hawaiians

• Incorporation of local understandings

• With legal discourses

Culture

• Not static, but dynamic

• Contingent

• Plural

• Not bounded, but porous

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

• 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

• 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• 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?

• Local peoples?

• State?

• Minority groups?

• Superpower?

• Remember: Multivocal

• Keep in mind: Shared principles

• Constant balance; more like STRUGGLE

Non-prosecutorial OptionsNon-prosecutorial Options(transitional justice)(transitional justice) Truth and Reconciliation Truth and Reconciliation

CommissionsCommissions– South AfricaSouth Africa

Gacaca Courts in RwandaGacaca Courts in Rwanda

Regional HR SystemsRegional HR Systems::

Council of EuropeCouncil of Europe– European Court of HR (mandated by ECHR)European Court of HR (mandated by ECHR)

Organization of American States (OAS)Organization of American States (OAS)– Inter-American Commission on HRInter-American Commission on HR

Inter-American Court of Human Rights (ACHR)Inter-American Court of Human Rights (ACHR) AFRICAN UNIONAFRICAN UNION

– African Commission on Human RightsAfrican Commission on Human Rights African Court on Human Rights (ACHR)African Court on Human Rights (ACHR)

Asian Commission on Human RightsAsian Commission on Human Rights– NGO to promote awareness + mobilize supportNGO to promote awareness + mobilize support

Organization of Islamic Conference (OIC)Organization of Islamic Conference (OIC)– Cairo Declaration of Human Rights (in Islam)Cairo Declaration of Human Rights (in Islam)

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 PeoplesUN and Indigenous PeoplesEconomic and Social Council (“ECOSOC”)Economic and Social Council (“ECOSOC”)

↓↓Human Rights Council (“Council”)Human Rights Council (“Council”)

↓↓Sub-Commission on the Promotion and Protection Sub-Commission on the Promotion and Protection

of Human Rightsof Human Rights (“Sub-Commission”) (“Sub-Commission”) (disbanded 2007)(disbanded 2007)

↓↓Working Group on Indigenous Populations Working Group on Indigenous Populations

(“WGIP”) (“WGIP”) (disbanded October 2008)(disbanded October 2008)Will Create: “EXPERT MECHANISM ON THE Will Create: “EXPERT MECHANISM ON THE

RIGHTS OF INDIGENOUS PEOPLESRIGHTS OF INDIGENOUS PEOPLES↓↓

Special RapporteurSpecial Rapporteur

Special Rapporteur:Special Rapporteur:James Anaya (U.S. James Anaya (U.S.

Prof) Prof)

• on the rights of indigenous peopleson the rights of indigenous peoples• Thematic researchThematic research• Country visitsCountry visits• Communications with governmentsCommunications with governments• Follow-up activities Follow-up activities

Declaration of the Rights of Declaration of the Rights of Indigenous PeoplesIndigenous Peoples

• Standard SettingStandard Setting• 45 Articles on rights/protections of Indigenous45 Articles on rights/protections of Indigenous• Drafted by Working GroupDrafted by Working Group• Unanimously approved by Sub-CommissionUnanimously approved by Sub-Commission• Adopted by Human Rights Council, June 29, 2006Adopted by Human Rights Council, June 29, 2006• Adopted by UN General Assembly, Sept. 13, 2007Adopted by UN General Assembly, Sept. 13, 2007

– 144 in favor144 in favor– 4 against4 against– 11 abstain11 abstain

Internationally Recognized Internationally Recognized Rights of Indigenous Rights of Indigenous

PeoplesPeoples

• Land and ResourcesLand and Resources• Culture, Language, and EducationCulture, Language, and Education• DevelopmentDevelopment• Self-Determination Self-Determination

House passed H.R. 505 House passed H.R. 505 10.24.0710.24.07

AKAKA BILLAKAKA BILLTo express the policy of the United To express the policy of the United

States regarding States regarding

the United States relationship with the United States relationship with Native Hawaiians Native Hawaiians

and to provide a process and to provide a process

for the recognition by USfor the recognition by US

of the Native Hawaiian of the Native Hawaiian

governing entity.governing entity.• 261 yeas to 153 nays 261 yeas to 153 nays

US Domestic LawUS Domestic Law

Common Law: Filartiga v. Peña-IralaCommon Law: Filartiga v. Peña-Irala

Legislation: Alien Tort Claims ActLegislation: Alien Tort Claims Act

99thth Circuit Federal Ct of Appeals Circuit Federal Ct of Appeals decisiondecision– Doe v. UNOCALDoe v. UNOCAL

General IssuesGeneral Issues

• ExpropriationExpropriation– Of Land, Resources and LaborOf Land, Resources and Labor

• Equal TreatmentEqual Treatment– Minority groups seeking recognitionMinority groups seeking recognition

• Exceptional TreatmentExceptional Treatment– Positive Discrimination (past harms)Positive Discrimination (past harms)– AssimilationAssimilation– Normalization of beliefs (religious)Normalization of beliefs (religious)

Collective vs. Individual Collective vs. Individual RightsRights

• How does ‘majority’ population How does ‘majority’ population appreciate and/or make room for rights appreciate and/or make room for rights of collectivitiesof collectivities

• Rights to assembly, association, practicesRights to assembly, association, practices• Freedom to worship = ReligionFreedom to worship = Religion• How does majority view?How does majority view?

– Appreciate Diversity Appreciate Diversity – Build BridgesBuild Bridges– Take ExceptionTake Exception

Human Rights & Religious Human Rights & Religious FreedomFreedom

• Secularism and non-Western religionsSecularism and non-Western religions– HR are secular understandings of Judeo-Christian...HR are secular understandings of Judeo-Christian...

• Debates Debates – Muslim Majority countriesMuslim Majority countries– Secular societies and religious groupsSecular societies and religious groups

• Headscarf debate in FranceHeadscarf debate in France

• Cross-cultural Approaches (An-Na’im)Cross-cultural Approaches (An-Na’im)– Engage in dialogueEngage in dialogue

• Critique of ‘Cultural Essentialism’ (Bielefeldt)Critique of ‘Cultural Essentialism’ (Bielefeldt)– Human rights have ALWAYS been a political issueHuman rights have ALWAYS been a political issue– Who defines ‘the culture’?Who defines ‘the culture’?

Islamic Human RightsIslamic Human Rights

• Bangkok DeclarationBangkok Declaration– ‘‘Asian Values’Asian Values’

• Cairo Declaration of Human Rights in IslamCairo Declaration of Human Rights in Islam• Distinguish from UDHRDistinguish from UDHR

– SpiritSpirit– Articles (5, 19, 22, 24, 25)Articles (5, 19, 22, 24, 25)

• CriticismsCriticisms– False sense of consensus? (Elites?)False sense of consensus? (Elites?)– Politically Motivated?Politically Motivated?– Interpretive aspect of Islamic lawInterpretive aspect of Islamic law

Other Islamic Other Islamic InstitutionsInstitutions

• Arab Charter on Human RightsArab Charter on Human Rights• Islamic Human Rights Commission Islamic Human Rights Commission

(London)(London)• Iranian Islamic Human Rights CommissionIranian Islamic Human Rights Commission

– Localized determinationsLocalized determinations– Determines HR are in conformity with their Determines HR are in conformity with their

interpretation of Islaminterpretation of Islam– Informs ‘West’ about Islamic HRInforms ‘West’ about Islamic HR

• Effecting internal dialogue about HREffecting internal dialogue about HR– Standard settingStandard setting– Formation of legal regulations and apparatusFormation of legal regulations and apparatus

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A Place That Is Rougher and Bleaker Than Guantanamo

   

"Criticism and Analyzing the Human Rights Process in European Courts Regarding

Religious Coverage.”

9th Gathering of Iran’s Islamic Human Rights Commission