Thanks for your response, Patrice. One of the things I'm interested in exploring is the extent to which well-meaning human rights approaches as practiced by international organizations draw from a very different espiteme (more individualistic, etc) than rights approaches at the local level (which, at least where I work, tend to be rooted in a more collective sense of rights). Because these international bodies hold different assumptions about what constitutes rights, there is an incommensurability in assumptions, practices, and interventions as these approaches get deployed at the local level. This is all highly speculative and formative for me right now, but my instincts are pointing me in that direction and I'm wondering if there's a literature out there that explores these particular issues.

What I'm thinking about is representatives of international human rights groups who make official visits to places suspected of human rights abuses, who then investigate and write up reports (usually for non-local consumption). I know that charges/accusations of human rights abuses carry no real legal weight (unless you count venues such as the International Criminal Court, which also has its limits); but such charges do carry some moral and public relations weight that can galvanize support to redress said accusations. But either way, there is a kind of rights interface (translocal and local) that I'm interested in exploring.

Thanks, Joao. That's part of what I want to explore--this idea that there may be a kind of North/South divide in terms of approaches to human rights. A similar example might be in approaches to Participatory Action Research (PAR). The southern tradition of it seems to be very much influenced by figures such as Freire and liberation theology (among others) and has a leftist feel to it. Implicit in the southern approach is a critique of power. PAR, in the northern tradition, tends to be less interested in critiques of power and more interested in working within the system to achieve goals. Getting back to approaches to human rights, I wonder if there's a similar kind of split between, say, South America and the U.S.

I find the topic very interesting. After many years involved prefessionally and as a researcher in human rights I have arrived to a sort of disappointment/frustration. I have reflected a lot on why human rights, though have been a very strong trend or process in the past towards justice and equality, have lost their appeal and force, at least for me. Somehow it´s like the hegemonic powers have integrated, appropriated and compensated the capacity of human rights of changing the world. You have given very good explanations and I would like to add one more. Rights as a concept and as a reality belong to the domain of state theory and practice. That is so obvious that very often we forget it. We tend to think of HHRR as the limit to state power, while they are actually what shape the state. In fact, human rights in general (mostly) exist only through state implementation. Of course they are individualistic but as much as the origin of the state itself, which is based not on the existence of a political community but in the disolution of any pre-state communities. The problem with rights and the nation state is that they are based on the destruction of communities. In relation to this, for example, I understand that the very use of a rights approach to the protection of indigenous peoples is counterproductive.

I would like to add that, notwithstanding the good things human rights and human rights activists have done for us, there is something inherently problematic with the historical development of HHRR and fundamental rights, particularly with social and economic rights. Most of us have fought for years in support of the idea that social-economic rights and political rights have the same nature. The intention was good but it was an intellectual and strategic mistake. Social and economic rights have worked in fact as a provisional remedy to the social and economic problems caused by capitalism, i.e., they have made it sustainable so far. There has been an attempt to use rights to protect nature and the environment, which obviously doesn´t work. From the point of european socialdemocracy, capitalsm with rights was a good deal. But that is over, in Europe and everywhere else. So what do we do now with this long list of ineffective rights and what do we do with capitalism?

Thanks, Jose. I think that's a very important point: that the expression of human rights is usually via a state apparatus. To be more concrete, usually when there are accusations of human rights abuses by some international body (and, correct me if I'm wrong, it's usually a northern-based body making these accusations), these allegations are directed toward the state, right? The accusations may not be leveled at the state (particularly as they may pertain to some minority group within the country engaged in said activities), but it is through appeals to the state that these accusations are processed for further local action. I'm curious, however, about something you said and would like to hear more. You said that "the problem with rights and the nation state is that they are based on the destruction of communities." Could you talk a little more about that?

With regard to your other point--the intellectual and strategic mistake of arguing that social-economic rights have the same nature as political rights--I'd love to hear more about that based on your own research/practice in the field. I would assume that rights talk, ideally, on some level is about protecting people from the abuses of capitalism. I work with a group of agricultural workers (cane cutters) who earn low wages and work long hours, live in substandard housing, limited access to potable water, etc. And there have been numerous international delegations who have visited (for short periods of time), investigated, and written reports about human rights abuses, but all of this activity has done little to change the plight of this population. Why is that? It seems that part of what you're suggesting is that the rhetoric of human rights might, on some level, serve the powerful interests it's meant to protect the less powerful from.

Concerning the first point, that the state building and the creation of an international states system have entailed historically the destruction of communities, we can take different approaches. From a historical point of view, the nation state is a legal and political exception which develops in three European countries - France, Englnd and Spain- between XIV and XVIII centuries and which, during the next two centuries, through the different processes of decolonization, becomes the basic structure of the internationl system, i.e. the "state" has become the only political and legal way of organising territorial power.

The historical process of state formation is characterised by centralization, burocratization, homogeization in several aspects, the construction of national identies, standarisation of national languages, etc... The Law and a system of rights as instruments of state building is central to this process, particularly from the end of the XVIII century, with the liberal revolutions opening a new era. This is where we find the State, a system of rights -French and American declarations of rights- and representative democracy strictly linked as a coherent historical process and progressively as an ideological compound.

Most of the trends mentioned destroy or hinge other traditional types of communities and organisations such as guilds, cities, clans, tribes, communes, municipalities. It must be added that the process mentioned -the development of an international states system- coincides historically and, to some extent, ideologically, with the development of a world economy based on the idea of a self-regulated market. These two processes erode traditional loyalties and solidarites which were not based and were not compatible with the instruments and goals of state building and the creation of a world economy based on the institution of a self-regulated market, i.e. the interconnection of all markets -including land, work force and money- through the mechanism of prices. (The signification of this self-regulated market is brilliantly explained by Karl Polanyi in The Great Transfomation). Sorry for the lenghth. This was a historical approach.

If we look at what´s going on nowadays, we see the results of this process of two centuries which involves that people everywhere -more or less- have become extremely dependent on the action of state government and the results of market functioning. That means that most of the things we do, we use, we desire or we need we cannot get them directly -from nature or from our communities or produce them- but through rights/policies provided by the state or through the market. We cannot generally grow our food so we need to sell our labour in the market and buy the food in the market as well or we may have a right to get some money from the state if we are unemployed.

Rights rhetoric, as you said, is meant to protect weak people. If we talk about social-economic rights, the protection is from market results; if we talk about environmental rights, again the protection is from the functioning of the market. To a great extent, when we talk about minorities or indigenous cultural rights it is also protection from the market. This is a good thing. However, my concern is that we should not asume that people –most people in the world- must be “weak”.

1. We live under a system made of state plus market where most of the world population is in need of legal protection from the results of the system: people’s capacities are weakened by the system and then individuals must be treated as weak subjects in need of protection through rights and state policies.

This has been the underlying assumption of the wellfare systems in Europe. The problem is that the welfare state is in crisis since the seventies’, that the market cannot be controlled or limited by the state, and, therefore, rights (eco and social) are losing their strenghth and meaning.

2. The weakening of the state policies and rights vis a vis the market economy results in the exposure of individuals which lack any political abilities and community loyalties, protections, solidarities, etc... abandoned to the market forces.

You mention international delegations visiting and reporting on the situation of the people you work with. What's the use of that. If we were talking about the violation of political and civil rights, the investigation of the delegation would be necessary to establish the facts. This is juridical talk. Then we can take the facts to the court and prove that a law protecting whatever right has been violated by the state. But when we are talking about the standards of living/working of people in Dominican Republic or in the periphery of my town, according to our legal systems -no need to call them neoliberal-, nobody can be held responsible of the standard of living or the quality of life or of the very life of citizens. Labour laws may do something but when the problem is that one cannot even find a job or that the only jobs available are in the black economy –no mínimum wage, no social security, etc…- then one is completely alone and unprotected.

Very right, i am trying to formulate a discussion on African Customary Law and International human rights:resolving the conflict-i.e. using culture to better understand human rights rather than the imposition of what is considered human rights from the western world. Any comments, critiques and insights are welcomed

That sounds interesting. Can you provide some tips about your approach?

Using human rights to understand what one needs is the wrong way. One (a communty or an individual) should first try to find out a feasible way to cover needs while leaving some free space to build a political sphere. That's really difficult but that´s the only way to achieve some degree of sefl-determination. Then, one may find that rights can play a role in that strategy (or not).

That's a very compelling project, Martin. Something you might want to look at are indigenous conceptions of human rights (as embodied in African customary law). My sense is that African customary law tends to be pretty patriarchal and, in that way, in conflict with what we consider to be universal human rights. However, if you a dig a little deeper, you might find some examples that challenge that generalization. You might also look closely at indigenous conceptions of personhood (as based on things like social relations, gender, etc) as that will also, indirectly, speak to issues surrounding local ideas about human rights. From there, you can see how local conceptions of rights interfaces with "western" conceptions of rights.

Very right. Thanks Jose and David. You need to consider that the since African Charter on Human rights was adopted, the African human rights system was relegated to a ramshackle structure built on shaky foundation. Customary law is widely recognized in Africa, even courts allow the usage save that they are not inconsistent with any written law as they will be declared a nullity. However, from the human rights aspect, my project is to look at those customs that can add value to the present debate. In doing this i will be trying to initiate a dialogue between international human rights and customary (african) law. I therefore argue that, the co-existence of human rights and African Customary law within the African regional system is paramount to the enterprise of building a region where human rights are respected by all and to all. As a condition precedent, the two paradigms should(must) exist in a state of mutual respect and be afforded an equal opportunity for internal transformation. One author has highlighted that this internal transformation can be achieved by use of the receptor approach.

Let me know what you think of this. the discussion is great!

Hi David, I have been following the discussion here and agree with you that in the Southern part of the world, at least in South Asia this movement had leftist influences. But in India this took on a larger dimension of reading rights as interests per se and not along with restrictions, that gave a crude form of power to the state to interfere with rights with impunity. I am putting up a link to a book review. The book itself is a chronicle of how India understands rights. Much of the language of rights in India is thanks to the liberal juridical interpretations. Movements and intelligentsia have discoursed much on the guard against state interference.

http://www.hindu.com/br/2004/06/08/stories/2004060800201400.htm

I've learned a lot, great and valuable discussion.

Thank You.

(Maybe You will be interested in participation in International Human Rights Conference >> http://ihrc.edu.pl/)

Regards and thank You all once again

Thanks Aleksandra, will look at the event

It is funny that we think of human rights in terms of developing nations and not in terms of western nations. Canada has just been chastised by human right observers for the conditions of first nations on reserves.

I would like to add that the tension between the nation state and other forms of governance continue beyond the formation of the nation state. For example, we see jurisdictional disputes between various levels of government within the nation state all the time but we also see disputes between the “secular” national laws and Canonical Law, Sharia Law, and Halacha Law (which are really just parallel and supplemental forms of government that occasionally conflict with governance by the nation state).

Several Canadian jurisdictions incorporate these “tribal” laws into Canadian jurisprudence by permitting the resolution of legal disputes through alternative dispute tribunals. And while mediation may be non-binding, parties can contract in advance for binding arbitration before a specified tribunal. The ruling is then incorporated into a consent order and filed with the relevant court. By this process the ruling becomes an order of the Canadian court.

Even within the “secular” law of the nation state we see conflict in the form of framing human rights questions to the benefit of one group or the other. (Think of the birth control/abortion debate in North America. Is it really a question of religious freedom for the church or is it a question of reproductive freedom for the individual? Can a church have human rights like religious freedom? And if so, can the rights of a church trump the human rights of an actual human to her own bodily integrity?) Some Canadian jurisdictions allow physicians to refuse to prescribe birth control for reasons of personal conscience, even in remote areas when there is no other physician and it will cause a hardship to the patient to be refused treatment. And we have state funded healthcare, so the physician's conscience is therefore being state funded.

Interesting stuff.

Mina, the last part of your post here takes me back to a situation a couple of months ago in Ireland, where an Indian doctor lost her life,coz she suffered septicaemia in pregnancy and was not allowed abortion, based on an Irish Supreme Court decision embodying the canonical law. In Hohfeld's terms, this is probably like saying that an individual's right to life actually becomes the opposite of no-right because the over-arching power of the state puts one under a disability.

Hello Sai,

Thank you for reminding me about Savita Halappanavar. I would certainly count her death as a western honour killing because it fits my definition as having both:

1) premeditated enforcement of a group specific value on a non-compliant individual; and

2) approbation of the community that shares that value.

I do not know if you saw the question that I posted but I am trying to identify the equivalent western crimes to map the eastern concept of honour killing. I think that the killing of abortion clinic physicians and staff also fits my definition. Even as the leaders of "Operation Rescue" denied involvement in the killing of George Tiller, they insisted on repeating the phrase "Tiller the Baby Killer".

Perhaps you have other ideas of western crimes that fit?

Sai,

The Irish Supreme Court decision actually overturned a remnant of the English common law making it illegal to "procure a miscarriage". That law still applied because it had not been formally overturned by the Irish legislators.

The Court ruling that you mentioned actually granted permission for a 14 year old girl who had been raped to travel to England for an abortion. The attorney general had ordered her not to on the basis that she would be violating Ireland's constitution.

(source: http://www.huffingtonpost.com/2012/11/14/savita-halappanavar-death-irish-woman-denied-abortion-dies_n_2128696.html)

Mina, can I then say these are institutionalised violations of human rights, like the North Dakota law that bans abortion despite the Roe v. Wade judgment.

I am not sure, but the Arizona immigration law might be another example for the scenario of mapping violations by the State despite its international commitment to HRts.

Thanks Sai.

I think International Human Rights discourse has not neoliberal roots, for many of Human Rights, by neoliberal approach, are denied, such as Economic and Social Rights. Friedrich von Hayek criticized a lot UNO Declaration because of prevision of many rights outside property and free enterprise circle. The Pacts derived from Declaration do not fit neoliberal approach. We can say it has a Western root, but not neoliberal roots. Professor Antonio Augusto Cançado Trindade, nowadays in International Court of Justice, has studied it in detail.

Rather than an ideological (Neo-Liberal) view, I see it more as a cultural perspective that defines the boundary between individual and collective rights.

Every culture has approached this problem from their own cultural perspective.

As a Native American, I have a different perspective than than my next door neighbor who is not Native. This is one of the problems the U.S. has in dealing with the Native Nations within their borders, what they may think is a good idea, we don't.

Also the legal system of advanced countries often complicates things.

"An abundance of Laws creates an abundance of criminals"

A country passes laws based on their perspective, and expects others to agree with them, which often is not the case.

So like Ricardo, I do not see this issue in purely ideological terms, it is more complex than that.

David, I think you are correct that Western, or Global North, influence on the modern human rights movement and law is disproportionate and rooted in neo-liberal traditions. However, it wouldn't be accurate to say that rights-based traditions do not exist elsewhere. Amartya Sen has a nice essay on "Asian values" that gets at some of these issues. Also there is a good amount of literature (I'm happy to suggest sources) on how at times "culture" has been used historically by the colonial power and indigenous elites to resist change that would threaten their power by recognizing broader application of rights. That is not to say that there are no conflicts between rights and cultural practices, but just that each gets used at times to further particular interests.

I am also very interested in this topic as a Phd student investigating human rights and HIV/AIDS, and influence of neoliberalism. I have found a few sources talking about it but am interested in reading more generally on the neoliberal influence on human rights versus collective rights and responsibility

Bel,

I do not know what geography you are interested in but the Supreme Court of Canada has just ruled on a rash of HIV aggravated sexual assault cases that may be of interest to you. You can find them at canlii.org

"Article 24 (Universal Declaration of Human Rights)

"Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. "

Well, David, I am willing to admit that fewer people in the Third World are concerned about "periodic holidays with pay"; nonetheless, let's not jump to conclusions. First, one needs to see if any of these Third World nations were represented (or even in existence) at the drafting of the Universal Declaration of Human Rights back in 1948.

Oops, seems they weren't:

"Whether consciously or unconsciously, the formulations of such theories [universal morality theories] have inaccurately universalized a particular perspective; as a result, the needs and moral claims of some groups and individuals have been left out, their roles and duties distorted, and their full voices silenced. What is thought to be a 'common' morality, when examined with an eye for gender bias--or for class, race, religious or other deep-seated biases--turns out not to have universal extension and to incorporate seriously mistaken moral requirements. (Margaret A. Farley, "Feminism and Universal Morality," in PROSPECTS FOR A COMMON MORALITY, eds. Gene Outka and John P. Reeder; at pps. 170 - 190.)

Gwen

Hi Gwen, just taking your line if thought a little further, I wonder if the idea of rule of law itself is understood only in the liberal human rights discourse. I say this because in most countries rule of law adaptation allowed indeterminacy in the law and it's practice to continue with overtly discriminating practices. For example, the pay structures for women are skewed up against women, especially when fixing the compensation package etc. Also in Canada for instance the contract law allows the banker to adjust the remaining credit card dues from the account protected joint account of the spouses where one of the spouses is deceased. Such seemingly plain readings allowing indeterminacy and discrimination do survive the liberal discourse on rule of law. I wonder if we are moving towards a positivist normative discourse on human rights and rule of law rather than a more accommodative regime.

Dear David,

Presuming that the Human Rights discourses (by extension the entire body of IHRL) are based merely on hyperindividualism and may therefore be at odds with 'non-western' world may not be entirely correct. The western world, rightfully, has the credit of bringing the concept of Human Rights into the international legal arena. But the concepts are not unique to the western societies alone. As we know that till the end of WW II, the world for nearly 500 years has been 'western' only. Remaining non-western world was mostly colonies of the west. So at the end of the holocaust and WW II, the western nations, shocked by the violence of man on man, came forth with Human Rights Law. Other parts of the world, when they became independent, incorporated the 'Bill of Rights' as suitable to their cultures and national outlook either as separate laws or into their constitutions.

In the pre-colonial past of the Eastern hemisphere, laws and codes to protect the individual from State intrusions into his private domain as well as protection of the victims of crime and fair trial of the accused in criminal cases were as much in place as any modern body of law could sanction.

There is definitely some areas where we may find that the notion of human rights as held in the west may not find acceptance in the other parts of the world. For example, capital punishment or public punishments or even some forms of 'physical' punishments that some West Asian countries practice. Victim protection is another area where there could be serious difference in the practice between the two. However, not withstanding these differences, the point that I am trying make is that all over the world, across cultures and religions, human values remain more or less the same. Therefore the Rights are also held to be the same.

Have a great day!

A little off topic, like Trubek, I see the neoliberal inspiration more on ideas related to the Rule of Law, prevalence of property rights, etc, -in agendas that the HR movement may support, not necessarily in individualism (individualism precede the neoliberal movement with several centuries, after all, and as western philosophical idea is commin heritage to HR & Neoliberal movements). A good answer related to differences between the HR & neoliberal agenda & their point of recent convergence/divergences is provided in David Trubek contribution (ch 3-the rule of law in development) Trubek & Santos (eds) the new law and economic development, a critical appraisal (CUP 2006)

In the pure constitutional sense, it is the product of European Enlightenment. Fundamental rights as one of the pillars of the modern constitutional discourse definitely stem from Western liberal thinkers and founders of American and French states, which were first exemplars of purely constitutional, liberal polities. In this insight and prism, I think that there are a clear connection and spiritual continuity with the liberal thought and contemporary discourse of human rights.

In this direction, I will offer you to my perception two newest, paradigmatic contribution which exemplified aforementioned idea. Published by the Cambridge University Journal Global Constitutionalism.

BLAGOVESTA TACHEVA and GARRETT WALLACE BROWN (2015). Global

constitutionalism and the responsibility to protect. Global Constitutionalism, 4, pp

428-467

JAMES TULLY, JEFFREY L. DUNOFF, ANTHONY F. LANG, JR., MATTIAS KUMM

and ANTJE WIENER (2016). Introducing global integral constitutionalism. Global

Constitutionalism, 5, pp 1-15

All the best,

Karlo Godoladze