Category: human rights

IC, CP,

This section discusses the current human rights debate between a number of East Asian states intent on economic development and Western states’ views of basic human rights and universalism.

A first perspective comes from Bilhari Kausikan. In his comment, Kausikan argues that human rights touch upon delicate matters of culture and values. In Kausikan’s view, realities and interests must be taken into account when promoting or speaking about human rights. Kausikan states that although abuses and inconsistencies continue to exist in Asia, the human rights situation has greatly improved in the last 20 years. Kausikan believes that Western states’ self-interest and pressure on Asian countries, which are often insufficient and condescendingly ethnocentric, deny the improvements that the region has made.

Next, Kausikan comments that the diversity of cultural traditions, political structures, and levels of development, is difficult and almost impossible for a universal view to apply in regards to the human rights regime in Asia. Whereas the West has an individualistic ethos approach, the East and South-East Asia have a communitarian approach. As a result, Kausikan states that there is “a general discontent throughout the region with a purely Western interpretation of human rights” (540). In order to find a balance between a pretentious and unrealistic universalism and a paralyzing cultural relativism, Kausikan writes that a genuine and fruitful dialogue will need to take place in order to expand and deepen consensus between Western and Asian states on the issues of human rights. According to Kausikan, “the West will have to accept that no universal consensus may be possible and that states can legitimately agree to disagree without being guilty of sinister designs of bad faith… it will require the West to make complex political distinctions, perhaps refraining from taking a position on some human rights issues, irrespective of their merits, in order to press others where the prospects for consensus are better” (543). By allowing cultural leeway in interpretation human rights, are we undermining the essence of the rights themselves? Where should we draw the line?

The White Paper provides us with the government of China’s view on human rights issues. According to China, “as history develops, the concept and connotation of human rights also develop constantly… the most urgent human rights are still the right to subsistence and the right to economic, social, and cultural development; therefore, attention should first be given to the right of development” (547). In addition, the paper argues that human rights are essentially a matter of domestic jurisdiction. For China, “international human rights activities should be carried on in the spirit of seeking common ground while reserving differences, mutual respect, and the promotion of understanding and cooperation” (548).

A second perspective comes from Yash Ghai. Ghai criticizes the Asian approach that because human rights are propounded in the West on individuals, they have no relevance to Asia, which is based on the primacy of community. Ghai argues that perceptions of human rights in Asia are reflective of economic, political, and social conditions; therefore, they vary from country to country and cannot be summarized into one “Asian” view. In addition, Ghai states that some Asian governments use communitarian arguments to support their proposition that rights are culture specific. According to Ghai though, this argument is flawed because it is also used to deny the claims and assertions of communities in the name of ‘national unity’ and ‘stability.’ In addition, Ghai argues that Asian governments’ view of the State is not synonymous with community. Ghai writes that the State is an imposition on society. Some Asian governments use the justification of ‘in the name of development’ to justify the denial of and violation of human rights. As Ghai states, “the contemporary State intolerance of opposition is inconsistent with traditional communal values and processes” (552). In what ways can communitarianism foster an individual understanding of human rights that does not undermine the community at large? Is it possible?

A third perspective comes from Jack Donnelly. Donnelly invites us to consider the contemporary arguments against universal human rights standards on the basis of cultural relativism. Donnelly states that, “we must be alert to cynical manipulations of a dying, lost, or even mythical cultural past” (553). According to Donnelly, cultural relativist arguments are the economic and political elites’ tools to justify their corruptions and maintain their power.

A fourth perspective comes from Soek-Fang Sim. Sim explores the logic of the one-party rule in Singapore and how the meaning of Asian Values is instrumental to sustain this logic. According to Sim, within the Asian Values discourse, “nation [is placed] above self.” Capitalism and authoritarianism are therefore reinforcing. In addition, Sim refers to Asian Values as “a strong normative centre” that plays the role of the social gaze. As she argues, “Asian Values makes for the subordination rather than the incorporation of dissent.” Is dissent possible under an authoritarian regime?

AM, NA

This reading reviews the development of the formation of universal children’s rights. The main document in question is the UN Convention on the Rights of the Child (CRC), ratified by 191 states excluding only Somalia and the United States. The convention includes articles concerning a variety of rights among them the preservation of identity, the right to express opinions, prevention of abuse, and access to health care. One problem raised concerns the idea of “childhood,” and children’s role in society. Some object to the CRC’s definition of the responsibility of the child, saying that assuming children should not work at an early is a Western notion. The argument explains in the West industrialization allowed children to leave the workforce and remain “protected” by their parents.

One problem with creating a set of universal laws is that in many developing countries children must work to survive, thus is it the role of the government to step in and support the family? If not the government’s job, then whose is it? Two things not resolved in the convention are corporal punishment and abortion. How can these controversial issues be addressed? Should they be decided by another body? How do deal with cultural relativism in these cases?

The text also reviews several cases of children’s rights, such as the Michael Faye case in Singapore regarding the use of corporal punishment for crimes. As in Kenya, should corporal punishment be allowed if it is closely controlled by the state? Clearly there exist problems of enforcement in this area, and if rules are not being followed what is the next step? Should universal laws then come into play? Is the banning of corporal punishment a violation of privacy and religious rights of the parents?

How should problems of corporal punishment be addressed in schools and in the home?

What are the duties and responsibilities of parents in protecting the rights of the child? What are the duties of the society?

Should non-government organizations play a role in the drafting and enactment of international convention?

How do you deal with children who must work to survive?

INTL254 Introduction to International Human Rights
Professor Nadya Nedelsky
reaction essays prepared by students AM, NA (more…)

“Gender”

JU, SL

Part I: Feminism and Female Genital Mutilation

This section begins by reformulating the conflict between the objectives of human rights treaties, on the one hand, and customary laws and practices as well as religious beliefs on the other within the context of gender-related issues. As a starting point for discussion, Tracy Higgins problematizes contemporary feminist discourse by stating, “both the move to expand universal human rights to include those rights central to women’s condition and the move to a relativist view of human rights are consistent with and informed by feminist theory.” (405) In other words, when confronted with the challenge of cultural relativism, feminists must avoid simple tolerance of cultural difference, as it would ignore “pervasive limits on women’s freedom in the name of autonomy that exists for women in theory only.” (408) Additionally, they must be careful not to condemn cultural practices altogether as that would ignore the culturally variant experiences of women, which constitutes a central role in the discourse. As such, feminism is forced to walk a fine line between universalistic values and cultural sensitivity, an issue that is dominant in the debate concerning female genital mutilation.

On this subject, a variety of perspectives are presented in the text – each of which takes a slightly different slant on the debate mentioned above. After general background is provided on the practice from a medical standpoint, the issue of female genital mutilation [FGS] is framed according to the alleged rights that are violated with its practice (i.e. the rights of women, the rights of children, and the right to good health), on the one hand, and the arguments against these violations on the other. Kay Boulware-Miller argues the strengths of various approaches to condemning the practice within a cultural context. Isabelle Gunning points out the problem of placing responsibility on states for the actions of private actors. K. Hayter then brings to light the difficulties of condemning a practice like FGS when comparable, though arguably different, practices are accepted and condoned in the West (i.e. breast reduction and enhancement surgeries). An excerpt from a text presented by the Association of African Women for Research and Development takes up the issue of Western paternalism and argues for more understanding and increased involvement from ‘within.’ Hope Lewis expounds on the issue by advocating a more critical approach to the issue by Western opponents of FGS. Barbara Cossette investigates endogenous approaches to eliminating FGS through discussion of the methods of the Sabiny Elders Association in Uganda who have replaced FGS with a symbolic ritual to induct girls into womanhood. In a letter to the editor of the New York Times, an argument is made for avoiding ethnocentrism altogether. Finally, Yael Tamir presents an argument highlighting the immutable “deficiencies” that arise when any one culture attempts to appraise the cultural practices and norms of another by focusing on the disproportionate amount of attention given to FGS as compared to other global human rights violations.

Part II: The Tools of Change and Reservations

In the second part, Abdullahi Ahmed An-Na’im stresses that not only the state’s domestic laws have to be adapted according to the international law, but as well religious and customary laws. (426) He argues that since both, religious and customary, sources have been shaped and formed over a long time period, they can be changed through transforming the mainstream’s attitude and beliefs from within the system. This process is termed the ‘internal discourse’. In addition, he argues that an external discourse, a cross-cultural dialogue among the other traditions of the world should take place in order to support the internal discourse. When supporting the internal discourse, one has to be aware that any sense of ‘imperial’ interests would threaten the collapse of the internal discourse and jeopardize its achievements.

In “Testing the Limits of Tolerance as Cultures mix”, Barbara Crossette discusses the interaction between the mainstream and minority cultural activities within the US. While the majority of Americans have a very positive attitude towards new immigrants that strengthen their values, they tend to have, as Martha Minow points out, a negative view of cultural practices that they deem ‘nonmodern, nonscientific and nonrational’. (436) Anthropologists argue on the other hand, that as long as some social or cultural good can be attributed to a certain practice, they should be accepted within the US system. The great fear thus is though that this acceptance would cause the slow deterioration of ‘core American culture’. However, Urban Jonsson points out, that there is a ‘global moral minimum’ which is constituted by a common ground that can be found along the African, Asian and Western traditions. (437) From a different perspective though, the question still needs to be answered, as we have discussed in the last class, of who is in charge of the culture and whether or not the usage of these cultural practices is really in the interest of all members of a certain culture (e.g. asylum seekers).

After citing specific legal action that was taken by the US in order to prohibit Female Genital Mutilation, the book turns to evaluate the legal instrument of ‘reservation’ in connection with the CEDAW. No other HR treaty has received the same number of reservations as the CEDAW. As specified in the Vienna Convention on the Law of Treaties, Article 2(1)d, a state has the option to unilaterally exclude or modify the legal effect of the treaty through provisions. (439) The International Court of Justice, asked to clarify the legality of reservations, stressed that tolerance of reservations must be applied when dealing with humanitarian treaties, in order for the goal of ‘universality’ to be achieved. Consequently, instead for reservations to be only allowed if approved by every contracting party, reservations were permitted, as long as they do not prove to be “incompatible with the object and purpose of the present Convention” [CEDAW, Art. 28 (2)]. Rebecca Cook points out though that reservations that are compatible with the object and purpose of CEDAW still can free states from providing the means necessary to work progressively towards the goal of equality and elimination of all forms of discrimination against women. (441)

1. How could opponents of FGS balance progressive initiatives while maintaining sensitivity to cultural and individual autonomy? I.e. is there a less pervasive approach, such as promoting education, expanding economic options for women, etc.?

2. Is cultural relativism valid when the so-called ‘victims’ of FGS are not involved in the process of defining, shaping, and influencing the character of that culture?

3. Does Abdullahi Ahmed An-Nai’m’s approach on how to change religious and customary norms convince you? What are some of the key factors for achieving success?

4. Imagine you were Germany and had objected to the various reservations to the CEDAW as on page 444. You realize though that after having heard your objection, none of the states are going to withdraw their reservation. Would you apply other instruments trying to convince them to withdraw their reservation?

Discussion Group 9 Reaction Paper:

This section further discusses whether rights are universal or relative in character. Advocates of universality argue that certain rights such as equal protection, freedom of speech and religion are common and thus can transcend cultures. In opposition, cultural relativists argue that rights and rules of morality are encoded in a cultural context. They believe that no transcendent values can be agreed upon fully to make them universal, and thus allow for diverse views held by different cultures on what is right and wrong. “It is the content of moral principles, not their existence, that is variable among human beings”.

In discussing cultural relativism, the author takes us through the notion of Boasion ethical relativism. In this view, they call for a mutual respect between culture and an obligatory acceptance of diverse cultures. This implies that one culture should not interfere in another. “The very core of cultural relativism is the social discipline that comes of respect for differences-of mutual respect. Emphasis on the worth of many ways of life, not one, is an affirmation of the values in each culture.” The limitations of the call for tolerance is that it obligates us to approve of what others do, rendering us helpless in bringing about change in countries that desire it.

The declaration of human rights deals with human dignity and its preservance. A problem arises with this limitation in the idea that humans are on one level individuals yet they are largely shaped by the society that take part in. Therefore, a need for rights that apply to the society is needed. This provides a link to the discussion of culture, how we define it and how and whether it should be preserved.

Part II Discussion of Human Rights in the Muslim World

Abdullah Ahmed An-Na’im advocates for an adequate reform of human rights in the Islamic world that would one the one hand be consistent with Islamic religious law- Shari’a, and on the other embrace human rights. He suggests a reinterpretation of the Shari’a stating that at present it reflects a historically-conditioned interpretation of Islamic scriptures that are not in unison with the modern world. A new understanding of the texts would be formed by the modern socio/economic?political structures. He argues that this would be in step with Islamic legitimacy for it echos in many cases the honor and dignity of human kind and freedom of choice etc that form the basis of modern human rights.

Questions to keep in mind:

Third world countries desire a change to improve the quality of life and yet criticize Western interference. What change are they looking for if not a westernized change?

This section calls on our responsibility to help bring about change. In what ways should we help bring about this change? How big of a role should be play?

Often times were are hesitent to interfere at the risk of imposing Western ideas and beliefs on other cultures, but when do we need to interfere?

Rhoda Howard and Adam Kuper state that human rights is a modern notion, and tend to be characteristic of liberal of social democratic societies. In what ways is the idea of individual rights, as opposed to communal rights problematic?

Group 8: AT, AW, Yongho Kim
Response to The Notion of “Rights”: Origins and Relations to Duties. Monday, September 22nd.

Chapter 5 provides a close-up of the notion of rights and their historical evolution. The notion of rights emerged as a refining of the concept of ‘natural law’ coined in the 17th and 18th centuries by the Enlightment philosophers (Locke, Montesquieu, Voltaire and Rousseau). In an era of Revolution (England’s Revolution, French Revolution and the Independence of the US) and exaltation of humanity, the natural rights were seen in absolutist terms as ‘inalienable’ ‘unalterable and eternal’ as self-evident truths that required recognition. That view was strongly criticized in the 19th and early 20th centuries, when scholars viewed the natural rights as an “unreal and metaphysical phenomena.” (Steiner, 326) The idea of human rights fully emerged after the fall of Nazi Germany. Do we see a pattern in the historical evolution of the notion of rights? What would that pattern indicate for the future?

Three contemporary comments on the human rights follow this brief overview.

1. David Sidorsky emphasizes the two main functions of the human rights: universality (1) based solely (2) on the virtue of being human. He distinguishes that unlike the natural rights, human rights function more on an international arena and points toward six elements that mark the ideological continuum between natural rights and human rights. He makes the comment that exercising the human rights was by protecting the individual sphere from coercive actions rather than fostering the future means for protecting the individual sphere. Are HR more preventive in nature than natural rights?

2. Kamenka distinguishes the rights from different types of claims. He describes rights as claims that have achieved endorsement by “widespread sentiment or an international order’ (Steiner, 329) The key words in his argument are importance, urgency, universality, endorsement, conflict. The conflict seems to arise from the lack of authoritative voices, but rights are to transcend any authority. What is the supreme authority? Do we need one? Are we trying to create one?

3. Kennedy brings the Spotlight on the US. He describes the rights as universal and factoid ‘mediators’ (330) between value judgments and factual judgments. His piece puts the relationship between rules and rights into perspective. Chicken or egg? – Rights or rules? Can they coexist? Can they exist independently? Is the US a ‘rights country’? Do rights turn into rules when legally adopted? Should we tend towards an incorporation of the rights into the legislature? What about duties?

The next section analyzed the common charges towards human rights. The first charge addressed the rigidity of rights, their absolutist character. Many people think that the complex issues of our day should not be solved by the simple formulas inherent in many rights, but by what should be a longer and more detailed political discussion. The next charge concerned the indeterminacy of rights. Due to the vague nature of rights, they are often just the beginning of discussions and need to be specified in order to have any solid meaning. Rights are also criticized for being too individualistic and for dismissing important moral and social dimensions of many current issues. Because of the abstractness found in many rights, people think they have been used to protect prior practices from change, in a very anti-democratic manner. The last charge focused on the lack of responsibility individuals have when they depend too heavily on rights, which stops them from doing what is right and from doing things for themselves.

Stemming from the six different groups of charges against rights, two issues in particular emerged as especially interesting and controversial. All individuals have the ‘right to free speech,’ but what should be done when men and women use this right in controversial ways and create violent pornography, hate speech and advertisements for cigarettes (338)? Since everyone has the right to free speech are these kind of actions acceptable? Or because this right is so general and vaguely worded, can it even be applied to these cases until it is specified? Or should it not be specified?

The abstractness and open-endedness of many rights give them a wide range of meanings. Concepts about one’s rights begin to mean different things to different people and take on inconsistent meanings. For example, the right to privacy grants all individuals the right to be left undisturbed by the government with regards to certain personal issues. Many people consider then that women have the right to choice about abortion and reproduction issues. Since what you do during pregnancy is a personal affair between you and your doctor, not a political issue, should it not then be classified under your right to privacy? What do you think about what George Bush and many congress people are doing today in relation to the issue? Do you think the anti-choice legislation that is being passed is going against a woman’s right to privacy? The government approves stepping in and meddling with a woman’s private decision to choice, so why do they not step in more actively and intervene or punish individuals when a woman is being assaulted by domestic violence? Why should the government be able to intervene on certain issues and not others? And who decides which issues are the government’s business? Or because of the right to privacy, should they stay out of all personal matters completely?

Often the East and the West are stereotypically polarized in the argument that the former is intuitionistic and family-centered, while the latter is rational and law-centered. A reading of two “eastern” frameworks –Jewish and Gikuyu- and a comparison between the ICCPR and the African Charter, throws more details into the issue. Cover explains that the term “mitzvoth” or obligation, which dominates the Jewish legal language, is a main force that held the Jewish community through centuries of hardship (343). He goes on to argue that an ideology of rights, such as that represented by the US (and European) tradition, counters the state from accruing and abusing power, while an ideology of obligations or mitzvoth counters the external forces that endanger the unity of the Jewish community. Is Cover correct in his identifying the western rights discourse, or is he merely forcing an opposite to the Jewish system?

Another duty-centered society is the Kenyan Gikuyu society. Kenyatta describes the strong social ties binding individuals in many activities – a restriction touching on authoritarianism – and defends the tradition because it keeps social mechanisms critical for its survival. Not everybody likes a narrowly tied-down system, and dissenters find an alternative in the European individualism. Kenyans are said to cry out: “the white man had spoiled and disgraced our country”. Do you think this feeling belongs to an outdated generation who only looks to settle old traditions? How does this relate back to the CEDAW; for instance, if the circumcision of women in the muslim tradition (as practiced in Somalia) were a part of the Kenyan tradition, how would popular rhetoric justify such practice? Reading Kenyatta, it seems as though “western” values were diametric to those among the Gikuyu. But, is family really not a focal point in US societies? For instance, what is the Financial Aid Office implying when it states that family should be the main resource in affording college tuition? Why is Thanksgiving a national holiday? Where does a major portion of college social interaction occur, in institutionalized settings, such as “dorm lounge”, “interest club” or “Friday party”, or in isolated one-to-one encounters?

The African Charter on Human Rights and People’s Rights raises controversy. Freedom of association and immigration are granted with reservations when pertaining to national security (Art. 11 and 12); Art. 29 (2-5) specifies individual duties that remind of the National-Sozialistisch party when pertaining to “national solidarity” or “subversive or terrorist activities” (23.a,b). Liberation from direct colonial rule and postcolonial economic exploitation, “resorting to any means” is also emphasized. (20.2,3, 21.5). Finally, it promotes family relations such as the rearing and education of children, and the protection for the elderly and sustaining of parents (18.4, 29.1). Do you think that all three of these forms of particularities that stand out in the African Charter could be lumped together as the single category of “culture”? How do some of these duties infringe the UDHR? Makau argues that these unexpected rights correspond to pre-colonial times. (358) While he concedes that much has changed in Africa after colonial rule, he highlights the values set forth by the Charter as “ideals in pre-colonial African philosophy”. Makau acknowledges that the Charter may be abused by political elites, but at the same time argues that such a generous Charter also opens doors for grass-roots democracy and fraternal governance, “as in the days of the old where chiefs were held accountable” (360). Steiner is particularly critical of Makau’s viewpoint, framing his own questions as “Does his argument persuade you?” or “Is his view helpful?” instead of “Do you agree?”. Can the fact that Steiner is a Harvard law professor in the United States be an influence in his position towards Makau? What other variables should be taken into account when contextualizing the African Charter, for example, that pre-colonial societies bore no written law, or that European rulers further fostered inter-tribal animosity to facilitate colonial domination?