Human Rights: New Perspectives, New Realities 9781685850067

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HUMAN RIGHTS New Perspectives, New Realities

HUMAN RIGHTS New Perspectives, New Realities edited by

Adamantia Pollis Peter Schwab

b o u l d e r l o n d o n

Published in the United States of America in 2000 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2000 by Lynne Rienner Publishers, Inc. All rights reserved

Library of Congress Cataloging-in-Publication Data Human rights: new perspectives, new realities/edited by Adamantia Pollis, Peter Schwab. Includes bibliographical references and index. ISBN 978-1-55587-944-0 (hc) ISBN 978-1-55587-979-2 (pb) 1. Human rights. 2. Human rights—Case studies. I. Pollis, Adamantia. II. Schwab, Peter, 1940– K3240.H858 2000 341.4'81—dc21 00-031091

British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America

∞

The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5 4 3 2

In memory of my mother, Athena Pollis, a feminist before feminism —A. P. For Bob and Michael—nephews and friends —P. S.

Contents

Introduction

Adamantia Pollis & Peter Schwab

1

1

A New Universalism

Adamantia Pollis

9

2

Liberal Democracy and Minority Rights Michael Freeman

31

Peasant Justice and Respect for Human Rights: Peru John S. Gitlitz

53

Women’s Rights in Islam: Revisiting Quranic Rights Zehra F. Arat

69

5

Human Environmental Rights

95

6

Political Community and Human Rights in Postcommunist Russia Peter Juviler

115

Human Rights, Political Values, and Development in East Asia Michael C. Davis

139

The Consolidation of Democracy and Human Rights in Latin America Juan E. Méndez & Javier Mariezcurrena

163

How International Human Rights Law Affects Domestic Law Roger S. Clark

185

Globalization’s Impact on Human Rights Peter Schwab & Adamantia Pollis

209

3 4

7 8

9

10

Barbara Rose Johnston

225 245 249 259

References The Contributors Index About the Book vii

Introduction Adamantia Pollis & Peter Schwab

I

n our first book on human rights, we took issue with the concept of the universality of human rights and discussed the theoretical perspective of rights within the context of socioeconomic, cultural, and ideological factors. Indeed, we questioned whether doctrines of human rights as embodied in the Universal Declaration of Human Rights were even relevant to societies with a non-Western cultural tradition or a socialist ideology. To us, economic, cultural, and collective rights had as much validity and legitimacy as individual civil and political rights. That volume, particularly our chapter “Human Rights: A Western Construct with Limited Applicability,” had a profound impact on the conversation surrounding human rights and in 1986 was selected by the United Nations Commission on Human Rights as a primary reference on the subject.1 Some years later, our second volume used the theoretical tools developed earlier and analyzed human rights within specific Western, socialist, and third world states, stressing the similarities and differences among them. In reflecting on the position of human rights we concluded that a universal conception of human rights was clearly lacking, that all nations sometimes violated their own principles, and that human rights tend to be interpreted differently by Westerners in states that are radical in their political approach. In addition, we stressed the fact that rights are limited when leadership or institutions are seen as threatened and that often the most basic rights of populations are violated. 2 In the ensuing years since these volumes were published significant developments have taken place, both theoretically and politically, with regard to human rights. The controversy between civil and political 1

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rights versus economic, social, and cultural rights has dissipated as an increasing awareness has developed of their interdependence. Concurrently, there is a growing recognition of cultural diversity and hence of varying conceptions of rights, while societal demands have expanded the substance of human rights. This volume extends our previous work by analyzing these recent developments within a new conceptual framework while highlighting the recasting of the human rights dialogue. No book can thoroughly cover any subject. This volume is comprehensive but not exhaustive; it is representative of recent human rights issues. We have become aware that the dichotomy between universalism and cultural relativism has been overdrawn. Initially, the argument for cultural relativism was an essential corrective to the Western natural law–based philosophical universalism of civil and political rights. Intellectual thought is the outcome of a dialectic between theory and social reality in all historical periods. Theory is a tool that explains, justifies, and at times critiques social reality. In the process of theory construction, particularly under conditions of social change, the phenomena attended to are selective, thus facilitating the construction of an ideology and its normative precepts. Liberal philosophy, with its doctrine of inalienable individual civil and political rights (including property rights) rooted in natural law, reflected the socioeconomic transformations of the eighteenth and nineteenth centuries and the emergence of industrialization and capitalism. However, modernity (and its more recent incarnation, modernization) bypassed much of the world that attempted to retain, often unsuccessfully, its communally based culture. Some states were selective in their adoption of elements of modernity, such as economic development, industrialization, and nationalism, while rejecting the panoply of Western values. In some regions, traditional cultural values were embedded in practice, while in others they were articulated in various religious or philosophic systems. Rights, qua rights in the Western sense, were conceptually absent. The cultural relativist paradigm encapsulated the values of communalism that, while rejecting individual civil and political rights, valued economic and social rights for all the members of the group. Recognizing the selectivity of theoretical models of social reality and the distorting lens of ideology, Chapter 1 probes the unstated givens of the universalist and cultural relativist doctrines of human rights. In so doing Adamantia Pollis elicits some overlapping constructions of socie-

Introduction

3

ty in both doctrines that have been clouded by ideology. Pollis argues that in the Western liberal doctrine of universal individual civil and political rights a frequently unstated assumption is that of community, an environment within which rights are exercised. Cultural relativists in turn, by highlighting the group rather than the individual as the basic social unit, often neglect the spheres of individual autonomy that may exist. The author does not argue that therefore there is a universal conception of human rights. Rather, she sets forth a new synthetic conceptual framework that can serve as the basis for the gradual evolution of a universal conception of human rights. The above rethinking of human rights opens the door to the incorporation of new human rights issues, issues that emanate from social demands and changing social realities. In the dialectic relationship between social reality and theory, these new human rights issues impact the dominant human rights discourse. The first grouping of chapters in this volume, which includes Michael Freeman, John Gitlitz, Zehra Arat, and Barbara Rose Johnston, addresses new social realities that have led to demands for “new” rights and that affect prevailing theories. Michael Freeman, in Chapter 2, considers the efforts made by various scholars to incorporate group or minority rights within liberal thought, emphasizing the difficulties they encounter. The ubiquitous presence of minorities in liberal states, in addition to posing policy questions, poses a serious, as yet unresolved, philosophical dilemma. How can individual rights be reconciled with group rights while preserving the liberal state? A neglected human rights issue, but one that characterizes an increasing number of societies, is “when there is no state, when there are no public authorities, are there human rights?” Primarily in some African countries, but also in parts of Latin America, state institutions have been eroded and there is no government to impose order, administer justice, or guarantee (or violate) human rights. These social units cannot be analyzed within any of the existing mainstream human rights categories—civil/political versus economic/social rights, or universalism versus cultural relativism. But they can be incorporated within a framework that is open to analysis of the multiplicity of social forms and the construction of a variety of notions regarding justice and human rights. John Gitlitz, in Chapter 3, investigates one such case, that of Peru. The author discusses the human rights dialogue that has emerged in recent years among the peasants in the Peruvian Andes. The absence of an effective governmental judicial system led the peasants to estab-

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lish their own informal patrols (rondas) to administer justice. And in order to administer justice the peasants in time became engaged in a human rights dialogue. Among the multiplicity of contemporary issues stemming from changing social realities is that of women’s rights in Islamic societies. All nongovernmental organizations agitate for equal rights, but Muslim states differ with regard to the legal status of women. This development has precipitated a wide-ranging debate about women in Islamic thought, and numerous treatises have been written that interpret Islam as grounding expanded rights for Muslim women. Zehra Arat, in Chapter 4, provides an exhaustive analysis of the Quran in which she documents its unequivocal belief in the spiritual equality of women (by contrast, however, in the social sphere women are inferior and should be modest and submissive). Arat argues that the spiritual equality embedded in the Quran, in conjunction with discarding the earlier rigid interpretations of such quranic doctrines as modesty, can lead to the emancipation of Muslim women. A burning issue recently added to the human rights agenda is the concept of environmental rights. Clearly this cannot be incorporated into the dominant human rights paradigms. Even though health is viewed as one of many social rights, environmental degradation that results in massive health problems has not been integrated into the substance of economic/social rights. One reason is that environmental rights cannot be exercised by individuals. Only if acted on as community rights can environmental rights be enjoyed by individuals. The ecological destruction resulting from modernization and industrialization has precipitated massive social protests. In Chapter 5, Barbara Rose Johnston analyzes the culturally distinct manner of adaptation to resource depletion in the past before she discusses the qualitative difference of environmental destruction in modern times as a result of modern technology and socioeconomic transformations. States, she argues, have not responded favorably to violations of environmental rights, which has led to the rise of social movements and advocacy groups. The second grouping of chapters in this volume, which includes Peter Juviler, Michael Davis, Juan Méndez and Javier Mariezcurrena, and Roger Clark, addresses the human rights issues confronting states that are attempting to institutionalize their regimes or gain legitimacy through the enactment of laws. These are states that are reacting to their social realities—social realities in which human rights issues are more clearly within the purview of the predominant categorization of rights: civil/political versus economic/social, and universalism versus cultural

Introduction

5

relativism. In Chapter 9, Roger Clark considers a highly debated issue: the extent to which the “international bill of human rights” is relevant and applicable in domestic legal systems. Most successor states to the Soviet Union, including Russia, have embarked on policies geared toward economic reform and democratization. Russia is struggling with the entire panoply of human rights. Privatization and the free market have resulted in the collapse of the economic and social rights guaranteed in the Soviet Union, while civil and political rights have not been sufficiently codified; their implementation is sporadic and their violation frequent. Peter Juviler, in Chapter 6, makes community the context within which individual human rights can exist, thereby highlighting the centrality of community. He argues that Russia at present does not have a stable political community. If anything, it has a criminal “countercommunity,” resulting in gross violations of basic rights. At the same time Juviler argues that the judicial system is inadequate for dealing with violations of individual civil rights, while economic and social rights are no longer operative. For some years now there has been a debate regarding the validity of Asian values, and whether they have been used as rationales for justifying authoritarian regimes. States such as Singapore, China, Malaysia, and Indonesia (at least until the overthrow of President Suharto) have contended that their historical and cultural legacy differs from that of the West and thus they reject the primacy of individual civil and political rights. They are the foremost advocates of cultural relativism. Michael Davis, in Chapter 7, addresses the arguments presented to justify Asian values and points out that because there are many strains of Confucianism there are, as a consequence, a multiplicity of interpretations. He contends that the authoritarianism of many East Asian states should be replaced by constitutionalism—but a constitutionalism that is “indigenized.” Once basic constitutional norms are institutionalized, Davis argues, adaptations can and should be made to incorporate differing cultural norms and values. Although, beginning in the 1980s, democratic regimes have been adopted in many Latin American countries previously ruled by military dictatorships, substantive democracy is problematic at best. The human rights dialogue in these countries, reflective of efforts to consolidate democracy, revolves primarily around issues of immunity for the terrorists of the previous regimes and issues of civil and political rights. In Chapter 8, Juan Méndez and Javier Mariezcurrena present a comprehensive overview of the current state of human rights in Latin America. They focus on the issue of immunity, civil and political rights, and the

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limited role of the Organization of American States. A particularly strong contention by the authors is that implementation of civil and political rights will remain limited as long as economic and social rights do not exist, particularly for so many of the population who are marginalized. We end this second grouping of chapters by addressing another contemporary issue, namely the extent to which international human rights law is relevant to domestic law. Many scholars argue that the Universal Declaration of Human Rights and subsequent covenants, in view of state sovereignty, states’ responsibility for implementing human rights, and the absence of UN enforcement mechanisms, are ineffective. Even in the one instance in which states accept the jurisdiction of a regional court, the European Court of Human Rights, legislation is frequently needed to bring domestic laws in line with the European Convention of Human Rights and Fundamental Freedoms. Roger Clark, in Chapter 9, considers the use of international human rights law in U.S. domestic courts. Despite the fact that treaties are considered part of the “law of the land,” the author points out, courts in the United States do not apply them. Although the United States is a party to the Covenant on Civil and Political Rights, one important reservation that nation has made is that it is not bound by the provision against the death penalty, thus further eroding any commitment to international human rights law. Although in its judicial decisions the United States ignores international human rights law, Clark argues that the issue is open. Grouping the chapters in this volume into two categories represents consideration of two distinct human rights issues. The first category addresses relatively new concerns that have not been fully integrated in the post–World War II discourse. Stemming from contemporary social concerns—minority rights, rights in a nongovernment setting, gender, and the environment—the chapters point to new directions in the human rights discourse. The second group addresses mainstream human rights issues and their legal ramifications that have been on the agenda for some years: civil and political rights, economic and social rights, cultural relativism versus universalism, and the role of international human rights law. In both sets of chapters, however, the specific human rights issues dealt with emanate from the social realities and the social demands in their particular regions, states, or societies. While some articles are more theoretical than others, they all speak to the particular human rights needs as perceived and articulated by social groups within their societies. What all the chapters share is an analysis of the human rights issues discussed in the context of the dialectic between social

Introduction

7

realities on the ground and theorizing. Moreover, the conceptual framework set out in Chapter 1 can incorporate this wide range of issues, some recent, some dating to before World War II, which are considered in this volume and are viewed as basic human rights, ranging from the individual to the communal. The development of such an inclusive and integrated conceptualization of human rights can lead in time to a new universal doctrine that would be essential for a life lived with dignity. In the last decade or so a new social reality, a new phenomenon—globalization—has swept the globe and dramatically affected the lives of millions. In the final chapter of this book we develop a prognosis of what the critical human rights issues will be in the new millennium. Even though all the rights discussed in the earlier chapters will remain salient, they may be overshadowed by the destruction of rights, primarily economic and social, for the millions of people who are being marginalized by the global economy: the entire complex of rights— civil, political, communal, and environmental—will be and are being affected by globalization. The tumult that accompanied the meeting of the World Trade Organization (WTO) in Seattle, Washington, in December 1999 was a harbinger of the future. Protests demanding environmental and labor rights (social and economic rights) and challenging the WTO to more openness and accountability reflect the negative consequences of globalization. These human rights consequences are the focus of Chapter 10, the final article. Peter Schwab and Adamantia Pollis analyze the demise of state sovereignty, its changing role toward the facilitators of globalization, and the rise of an international corporate and financial elite that sets the rules and is not accountable to any representative body other than itself. In this chapter we document the detrimental consequences of the global economy, in both Western and non-Western states. We contend that the shifting of production by multinationals to low-wage areas (which also employ child labor) by the new global financial regime has resulted in an increasing income gap between the wealthy few and the poor in both Western and non-Western states. In fact, the global economy has had a negative impact on advanced postindustrial states despite their apparent prosperity. Growing or hidden unemployment, declining health insurance coverage, and shocking levels of poverty—in other words the dismantling of the welfare state—are ubiquitous in advanced industrial states. Clearly all rights, most acutely economic and social rights, are being severely threatened by this new world order. It is ironic that in an era in which a consensus on the scope and substance of human rights is evolving, this very consensus is threatened by

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global forces against which both states and human rights activists are relatively powerless. This book sets out a comprehensive overview of the numerous issues that we believe will be on the human rights agenda during this new millennium.

Notes 1. Pollis and Schwab, 1979b. 2. Schwab and Pollis, 1982.

1 A New Universalism Adamantia Pollis

T

he post–World War II decades have been characterized by turbulence and competing paradigms in the social sciences. Human rights scholarship, developed in the aftermath of the Holocaust, has mirrored this trend. Intellectual thought in any historical period is the outcome of a dialectical relationship with social reality. At times it is explanatory or justificatory, and at times critical. Often, reflective of ideological and geopolitical considerations, human rights scholars have articulated contradictory theories of rights that have competed for hegemony. The most intense debate among human rights scholars in the past two decades has been the dichotomy between universalists and cultural relativists. Just as development or modernization theories presumed a “transition” from traditional to industrial society, it was (and is) frequently assumed by universalists that non-Western cultures will gradually evolve so that the universalist doctrine of human rights will prevail. Such a deterministic approach to universality is bound to fail as it has in development theory. Cultural relativists in turn are frequently equally deterministic, assuming the fixity and unchangeability of traditional culture. Another dichotomy, that between the primacy of civil/political over economic/social rights, is no longer as salient as it was during the decades of the Cold War. While the preeminence of individual civil and political rights remain foremost in the Western political agenda, overall, human rights scholars have come to recognize the interdependence of these two sets of rights. A more recent dichotomy is that between individual and minority or communal rights. Largely ignored in the immediate post–World War II decades,1 which emphasized individual rights, 9

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it has emerged as a controversial issue both in liberal thought and in the discourse on ethnicity and nationalism. More vexing are the relatively new, so-called third-generation rights: issues of self-determination and environmental rights. Both are collective rights and cannot be realized through action by individual states. Environmental rights are not protected by international law, nor do global implementation mechanisms exist, yet such rights have a profound impact on the daily lives of people throughout the world, including the right to life. The right to self-determination, initially conceived of by the United Nations as providing legitimacy for the independence of colonial territories, in its present usage has provoked major debates about its premises, particularly what constitutes “a people,” and about procedures for implementation. The hallowed sovereignty principle of the Westphalian system is collapsing. In turn, the rights of indigenous peoples do not fit neatly into any category, but analytically such rights are closest to the right of self-determination.

Historical Context Advocates of the doctrine of universal human rights contend that certain rights inhere in all individuals regardless of cultural context. Grounded in liberal political philosophy, universalism presupposes the individual as the basic social unit, whose inalienable rights are civil and political, including the right to private property. Moreover, individuals possess the attribute of reason and are motivated by the pursuit of selfinterest. Until the extension of the franchise in the course of the nineteenth century in Britain, only white men with property were viewed as possessing reason. Despite efforts by feminists in the aftermath of the French Revolution to argue for equal rights, 2 women and nonwhite males did not possess these fundamental individual rights because they were perceived as lacking reason. Only gradually, and through partially successful social struggles for inclusion, have individual rights been extended to women and peoples of color. (Recently, the demand for homosexual rights has come to the fore as a further extension of individual rights.) The eighteenth century, in which the liberal doctrine of human rights emerged, was a period of massive socioeconomic change in Western Europe precipitated by the rise of capitalism. Mercantilism, which had served the interests of kings by extracting wealth and precious metals from the world to fill their coffers and build their mili-

A New Universalism

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taries, was overthrown by domestic manufacturing and the Industrial Revolution. A new patriarchical industrial class, taking advantage of scientific advances leading to technological innovation, was anxious to remove the fetters on competition and private property imposed by the monarchical state. This class came to value individual civil and political rights that were instrumental in its drive for political power. Classical economists and liberal political philosophers provided the intellectual justification for the emerging capitalist social order, thereby endowing it with legitimacy. The social contract theories of modern liberal political philosophers, such as John Locke, set the political framework for the emergence of representative government and later for democracy. Classical economists, such as Adam Smith and David Ricardo, provided the additional rationale for the “invisible” hand of the market and, hence, capitalism. Subsequently, in particular since the end of World War II, when human rights became part of the political agenda and of international concern as a consequence of the Holocaust, the universalist theory of human rights became increasingly disconnected from its earlier cultural and socioeconomic moorings. Such theorists as Maurice Cranston (most forcefully),3 Ronald Dworkin,4 and John Rawls5 assert that civil and political rights are fundamental, and are entitlements for all. But these rights have been conceptualized as abstract legal rights, thereby ascribing a meaning to equality devoid of consideration of the necessary preconditions for such rights’ accessibility, either institutionally or with regard to the socioeconomic preconditions essential for their realization. Furthermore, economic and social rights were dismissed during the Cold War era by Western scholars and political leaders as merely so much Soviet rhetoric intended to combat the West’s emphasis on individual freedoms and civil and political rights. Community, the crux of the cultural relativists’ model, was nowhere to be found in the universalist human rights paradigm. Communalism is often seen as oppressive and a denial of the true nature of humanity. In summary, it can be argued that the universalists have decontextualized civil and political rights, which are left swirling in their own sphere, as the theorists debate the niceties of their reasoning, which are often cloaked in moral imperatives. Cultural relativists, by contrast, argue that fundamental values are culturally specific and that the communal group—whatever that might be (tribe, village, or kinship), and not the individual—is the basic social unit.6 A person’s identity is prescriptive, dependent on membership in a group, and the person’s status and role in this community. The language

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of rights, a modern Western construction, is nonexistent in most cases. Interpersonal relations are governed by a mutuality of unequal rights and obligations, which are diverse, as are their underlying values and behavioral expectations. However, what is common is that notions such as the autonomous individual, individualism, freedom of choice, or legal equality are alien, often meaningless concepts. The person is subsumed within the communal group whose well-being and welfare has primacy, albeit the particulars of what constitutes the community good varies. Underlying the communal structure is a complex of variant philosophic and/or cultural values that provide legitimacy to the social order. Building on Clifford Geertz’s pioneering studies of what he labeled primordial cultures,7 Western theorists formulated the doctrine of cultural relativism as a powerful challenge to universalism.8 It is noteworthy that it was Westerners who articulated this doctrine, and in so doing employed a Western cognitive framework—both a Western ontology and a Western epistemology. Inevitably, nontranslatable concepts have been ignored even though they may convey significant concepts, values, and behavioral expectations. 9 Furthermore, some cultural relativists reify “traditional” cultures and ascribe a static quality to them, neglecting the dynamic of social change through historical time. More recently, however, anthropologists in particular are beginning to investigate the impact of social change on traditional values and behavior, mostly at the local level. The cultural relativist argument, while initially espoused by anthropologists, has permeated all the social sciences. Unfortunately this doctrine has been exploited in recent years, most forcefully by East Asian states, to justify their repressive regimes.10 Under the rubric of “Asian values” Singapore, China, and Malaysia, among others, have argued that they have a distinctive historical and cultural legacy and, as a consequence, their values diverge from Western notions of democracy and human rights.11 Efforts to “impose” Western values or to claim their moral superiority are denounced as cultural imperialism and a sign of disrespect for these Asian civilizations and heritage. Ignored in this argument is the empirical reality that non-Western countries, whether through colonialism or their own reconstitution, have adopted the Western social organization of the nation-state and the ubiquitous goal of modernization and economic development. In fact, one potent argument made by East Asian elites is that their values of social order and solidarity are responsible for the Asian economic miracle.12 Neither the Asian elites, nor most scholars, take into account or analyze the impact

A New Universalism

13

of these transformations on “traditional” cultural values. This is not to argue that values and notions of human rights are in fact universal; it is to argue that contemporary Asian and African societies and cultures must be probed in greater depth to ascertain the reconstructed cultural configurations that have emerged as a result of social change.13 In recent years, the dichotomy between universalists and cultural relativists has been challenged. Universalists have come to recognize that cultural diversity is a reality.14 Despite this, the presumption of the moral superiority of the Western human rights doctrine persists, particularly in U.S. foreign policy, and the question frequently becomes one of methodology and strategy, of how the Western liberal doctrine of legal equality and civil/political rights can become universalized. 15 In addressing the issue of cultural diversity, some universalist theorists argue that “modernization” will be accompanied by the incorporation of the Western rights concepts, often pointing to the rise of a middle class as the precipitating factor in Asian countries’ democratization. Other scholars, such as Allison Renteln,16 search for equivalences in nonWestern philosophies and cultures. Others, Abdullahi An-Na’im in particular,17 have embarked on a process of cross-cultural dialogue and internal cultural discourse. An-Na’im believes that through these processes non-Western cultures will move closer to the West. The dialogue between universalism and cultural relativism has been hampered by its neglect of an important analytic dimension. For most human rights scholars, Western ontology sets the conceptual framework for understanding the world. This is the case not only for Western analysts but for many scholars from non-Western societies who have internalized Western thought.18 Hence the portrayal of social reality and the evidence amassed to validate it is filtered through the lens of this framework and its attendant paradigm. Albeit an abstraction, the construction of social reality by social theorists is inevitably selective, and attends only to those aspects and that evidence deemed significant and consonant with its paradigm. Concepts or data external to the prevailing paradigm are frequently overlooked. A theoretical consequence of this cognitive framework is that Western ontology becomes the referent whereby non-Western cultures and societies are understood and acquire meaning. Using a Western referent has led inevitably to the dichotomization between universalists and cultural relativists. To move beyond this impasse a recasting, free of ethnocentrism, is essential whereby elements from the theories of both universalists and cultural relativists can be merged and synthesized into a new reconstructed universalism.

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In addition to the cultural relativist/universalist debate, recently there has been much ferment and fluidity in some other areas of human rights scholarship. A significant shift, heralded by Henry Shue’s study of basic rights,19 is a growing consensus among human rights scholars (with some exceptions) on the interdependence of civil/political and economic/social rights.20 But even then, and despite the repeated assertion of the Vienna Declaration of Human Rights of this interdependence, in practice economic and social rights are viewed in the West as secondary. The United States, for example, remains unwilling to ratify the UN Convention on Economic, Social and Cultural Rights.21 For many Western liberal states such issues as starvation remain primarily a humanitarian matter, while sweatshops and gross infringements of labor rights are not seen as violations of fundamental rights but as the unfortunate consequences of economic realities or policy. In other words, economic and social rights remain a second order of priority, particularly for doctrinaire universalists and Western policymakers. Several relatively new theoretical issues have entered the human rights discourse: minority, women’s, homosexual, and environmental rights. Despite the efforts of Will Kymlicka,22 liberal theorists face the paradox of advocating minority rights as policy but are unable to ground them in liberalism’s central tenet of individualism. Presuming freedom of choice, Kymlicka argues that individuals in liberal societies should be free to choose their societal culture. But his argument revolves around the assumption of the “individual” and choice, ignoring the fact that in many cultures neither psychologically nor culturally is the individual free to choose.23 Cultural relativists, on the other hand, have not concerned themselves with the issue of minorities within communal groups on the implicit presumption that by definition they do not exist,24 or are so marginal as to be inconsequential. By contrast, issues such as women’s rights and homosexual rights are not group rights but demands for individual rights by the excluded. Although approached through several theoretical perspectives, they are an extension and application of liberal human rights doctrine. For rigid cultural relativists, women’s rights are a nonissue since the ostensible subordinate position of women is one aspect of “traditional” culture. Like women’s rights, homosexual rights philosophically are easily incorporated within liberal thought, while cultural relativists have nothing to say on this matter. So-called third-generation rights, such as the environment, are external to the cultural relativist/universalist dichotomy because they are collective rights that transcend the person however she or he is con-

A New Universalism

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ceptualized, and extend beyond political borders. Only recently, with the realization that the absence of clean air and clean water are threats to the very right to life, has the environment as a human rights issue become of concern to scholars.25

Embedded Assumptions and Presuppositions The “international bill of human rights” is hailed as reflecting a worldwide consensus on the nature and substance of human rights. It is a deceptively false consensus. Ratification of the various convenants and conventions, frequently with exceptions, is an assertion of membership in the world community and not a commitment to the implementation of these rights or to their legitimacy. A dramatic recent example is the decision by the People’s Republic of China in 1998 to sign the Covenant on Civil and Political Rights at the same time that it was imprisoning more dissidents and forcing others to flee the country. The absence of a genuine consensus on human rights necessitates rethinking and a search for new foundations for the construction of a reconstituted human rights theory. A crucial initial step toward a reconstructed universalism is to probe the assumptions embedded in both the universalist and the cultural relativist doctrines of human rights. Upon reflection, it becomes apparent that advocates of Western liberalism, while knowledgeable in the historical origins of their human rights doctrine, overlook the contemporary implicit assumptions underlying their own contemporary theory. Before the Industrial Revolution Western Europe was itself a communal society. Varying forms of feudalism prevailed, while states were ruled by monarchies of differing degrees of absolutism. The feudal system itself was communal, and in areas where feudalism was weak, such as Great Britain, villages constituted a community at the local level. Although loyalty to the monarch was demanded of the subjects, rights and obligations were largely interpersonal and unequal and were contingent on one’s position in the hierarchical structure, both at the local and state levels. The socioeconomic transformations accompanying the Industrial Revolution and the rise of capitalism, characterized by a new social structure that included a new class formation, private ownership of the means of production, wage labor, urbanization (and the enclosures in Great Britain), did not obliterate community. Rather, it was transformed, recast, and reconceptualized. More or less simultaneous with

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the rise and consolidation of capitalism was the reconstitution of states into nation-states. By contrast to the monarchical state, the nation-state ideally is a community of those sharing a national identity. It provides the sovereign state with legitimacy, not grounded on the rights of kings, as with monarchies, but on the principle of nationality. As with capitalism, the nation-state evolved gradually. Symbolically, it was consolidated at the time of the French Revolution, with the clarion call of the Declaration of the Rights of Man and Citizen, but within the boundaries of the newly formed nation. Frequently overlooked by human rights scholars in their discussions of freedom and democracy and the primacy of individual rights are the constraints to liberties inherent in nation-state citizenship. Regardless of its underlying ideological principles, the nation-state constitutes a political community to which all citizens owe loyalty and obligations. National interest, the interest of all, its survival and wellbeing, can transcend and preempt individual freedoms and the pursuit of individual interest even in liberal societies. While universalists on the whole presume that it is the state’s responsibility to implement and protect individual rights, they do not incorporate in their paradigm the restrictions on individual civil and political rights that stem from the primacy of the state (community interests).26 National emergencies— wars, external or internal threats—are frequently occasions for restrictions on the exercise of individual rights. The nation-state was not the only newly established community. Within the borders of the nation-state a new political community was constructed. Traditional communalism was replaced by the principles of a liberal, capitalist order. The early liberal political philosophers believed they had discovered the laws of nature governing society that paralleled those in chemistry and physics.27 A basic element of this “scientific” and normative vision was the belief that the atomized individual in the state of nature possessed certain inalienable rights.28 The individual in the state of nature was an analytic construct, not a description of social reality; whether primitively communist, sedentary, or nomadic, societies were governed by a mutuality of interpersonal relations and customs. “Individuals” in the state of nature, according to the liberal philosophers, would come together and through a social contract form a political community. The compact envisaged the construction of a community in which individuals, at least men, would come together to determine the rules and regulations governing their society—in other words, their community. Gradually, liberalism set the principles and parameters of a representative/democratic polity. Inalienable individual

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civil and political rights were the fundamental principles of the emerging social and political order, but they were embedded in the socioeconomic particularities of their societies and constrained by the rights of others, the rules governing behavior, and the national interest. No man was so unfettered as to pursue his self-interest to the detriment of his fellow men, the community, or the state.29 Even during the early heyday of rampant capitalism society felt a moral obligation to provide for the “unfortunate,” the destitute. Provision was made, through voluntary philanthropic associations, for those in the community who had failed in the competitive struggle, thus mitigating the Hobbesian vision. Economic and social rights, considered of little importance in liberal thought, were thus partially fulfilled by nonstate actors. By the middle of the twentieth century, political pressure and concerns about the unemployed, the poor, the disabled, and the elderly, who did not enjoy the benefits of capitalist development, led to the rise of the welfare state. Unfortunately, with the ascendancy of market economies and the global economy in the last decade of the twentieth century, the welfare state is being eviscerated, public services are being privatized, and aid to the needy is once again reverting to voluntary associations, all in the name of the general welfare. Only since the end of World War II have human rights been universalized, decontextualized, and deemed applicable around the globe regardless of their consonance with socioeconomic reality and cultural imperatives. As argued above, a probing of the doctrines of the eighteenth- and nineteenth-century liberal political philosophers reveals that the exercise of individual rights was within the context of their reconstructed political communities. John Stuart Mill spoke not only of individual rights but of the mutuality of obligations between the individual and society.30 It is contemporary universalists who have transformed individual rights into abstract legalities, thus theoretically dissociating them from community and from other norms and values governing society. 31 These universalists’ conceptualization of individual rights excludes communal rights, but as noted earlier the latter rights are implicit, inarticulated givens in the universalist paradigm. Underlying principles, structures, institutions, ideals, and goals may differ dramatically in liberal states from “traditional” communalism, but not the existence of community. Whether they are taken by tribal chiefs, legislative bodies, or authoritarian, repressive rulers, all decisions are justified in the name of the common good. Non-Western societies manifest enormous diversity among themselves in their historical trajectories and in their cultural systems. 32

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However, historically, in none has the modern state or the nation-state been the prevalent form of social organization. Empires, theocracies, and tribes had been dominant until the end of World War II. During the late nineteenth and early twentieth centuries imperialism, in the form of colonialism, arbitrarily divided up much of the world’s territory under the ideological rubric of a “civilizing mission.” Civilization did not include conveying democracy or recognition of human rights but did succeed in causing the massive disruption of tradition. It was at this time that modern state structures were imposed on the non-Western world. Despite the massive transformations of the colonial and postcolonial eras, cultural relativists developed a model grounded on “tradition.” Overall, the relativists contend that the culture, values, and norms of non-Western societies, however much the societies differ one from the other, are devoid of the concepts of the individual, individualism, individual autonomy, freedom of choice, and equal rights. Yet, leaving aside the issue of social change for the moment, just as the universalists ignore community as the context or the environment in which individual rights are realized, relativists ignore spheres of personal autonomy and freedom of choice extant in communal societies. The individual is subsumed by the communal group while that person’s identity is ascribed by his or her status and role in the group. Obligations to others and to the group are paramount. Furthermore, relativists often tend to reify “traditional” cultures and view them as static and unchanging, thereby neglecting the evolutionary aspects of all societies and cultures. A more in-depth probing of communal societies would reveal the empirical reality that spheres of personal autonomy have existed. Personality differences, even within the confines of communalism, often result in struggles to excel—as a housewife, a hunter, a warrior, or a statesman. Moreover, behavior and activities outside the parameters of the communal definition of self and the requisite roles and obligations are permissible and do not violate sacred norms. Talents, aptitudes, and skills are given free rein for personal expression. The cultural artifacts of a society, including music, dance, and art, on the whole are the creative products of individual persons. The art of the Chinese empires, music and art in Castro’s Cuba, woodcarvings of Africa, and folklore around the globe are neither communal products nor mandated by one’s role in a group. Another cultural relativist assumption that needs to be rethought is the presumption of the absence of personal choice. Despite rigid stratification and the submersion of the person into the communal group,

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empirical evidence exists for a degree of socioeconomic mobility in some cultures. The market women of West Africa (particularly Ghana, the Ivory Coast, and Nigeria)33 and the meritocratic recruitment for the bureaucracy in the Chinese empires34 challenge elements of the cultural relativist paradigm. Research, which divests itself of Western ethnocentric bias, is needed to investigate thoroughly the scope and spheres of freedom of choice and the particular constellation of prescribed versus ascribed roles in communal societies. Undoubtedly much variation will be found from one culture to another. Critical for facilitating this search is a probing of concepts and values that do not have equivalents in the West, or are not translatable into Western languages, but that may have a significant impact on values and behavior. Social scientists studying communally based or non-Western societies in which roles are prescriptive, presume the subordination of women to the male members of the group. Patriarchy prevails whereby women are subject to domination by men while their labor is demeaned. However, at least in some cases, this could be a transposition backward from Western patriarchy to “traditional” cultures. Further research is needed on the position and roles of women in non-Western societies. In addition to the market women in West Africa mentioned earlier, who retained their earnings while dominating and controlling the market structure, women in many “traditional” societies, in both Africa and some Asian villages, were the agriculturists.35 In precapitalist societies such a productive activity was the core of their subsistence economy. The facile assumption of the subordination of women in all nonWestern societies needs to be critically reexamined: particular cultural configurations, gender relations, and roles need to be revisited. Subordination of women in one sphere, sex for example, does not necessarily extend to all spheres of life. Patriarchy has characterized Western societies and it has been presumed as a given for non-Western societies, which after all are underdeveloped. Significantly, it has been well documented that the failure of bilateral and UN aid programs designed to assist agricultural development and modernization was often the consequence of their being aimed at men even though it was the women who engaged in farming.36 As noted, the language of rights, a Western construct, has been nonexistent in traditional societies. For cultural relativists this is conflated with an absence of rights, a position reinforced by most ethnographic studies. Yet a closer look reveals that in many traditional societies what in a rights vocabulary are labeled as socioeconomic rights are obligations of the community toward all its members.37 Obligations are the

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reverse side of rights. Thus, if the community must ensure food, shelter, and care for the aged, the disabled, and in fact all its members, in essence all group members possess equal rights to entitlements. Such a concept of obligations and/or rights differs radically from the Western notion of legal rights. In both traditional and Western societies there is a concept of equality, but its meaning is substantively different. In traditional communities entitlements in terms of power, authority, and privileges are differential, dependent on one’s status in the communal group, but economic and social rights are equal entitlements for all members. Conversely, in Western liberal societies individual civil and political rights are equal entitlements, but economic and social rights are differential. A basic tenet of liberalism is political participation. In addition to separation of powers, democratic theory espouses representation of the electorate through which the popular will is articulated. Non-Western societies, it is argued, have been ruled, as Max Weber would say, by traditional authority. A rethinking of this argument is in order. Is rule by a tribal chief in Africa, in consultation with a council of elders, any less representative than nineteenth-century Great Britain with its restricted franchise? And is the power to unseat a tribal chief functionally different from elections that change rulers in a liberal society or from impeachment of elected officials in the United States? By contrast to the plethora of historical studies of Western societies that documents and analyzes their ideological and socioeconomic transition to modernity, there has been little analysis of the effects of social change on traditional values and norms, either historically or in the contemporary era. This is not to argue that there are no historical studies but that, with some exceptions, their focus has not been on changing culture, values, and norms. While many studies trace the geographic spread of various religions and/or regime changes through conquest or revolution, in-depth analysis of what, if any, transformative impact these events may have had on more traditional culture is lacking. This is not to assert that such an investigation would reveal a trajectory similar to that of the West. It is to say, though, that a historical analysis would yield understanding and insight into the reconfiguration of values and norms that would challenge reification and the presumption of unchangeability. In non-Western societies, to the extent that industrialization, capitalism, and a democratic polity have emerged, they have not been indigenous developments. In fact, the evolutionary processes of change that all cultures and societies undergo were brutally torn asunder in Asia

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and Africa by the imposition of external power during the era of Western imperialism. Most significantly, subsistence (but self-reliant) economies were demolished. The transformations in non-Western societies that took place resulted from the African slave trade, colonialization, “state building,” commodification, modernization, and forceful integration into a dependent position in the world economy. All of this resulted in massive disruptions of indigenous societies and economies, and evolutionary transformative processes were blocked. To understand and evaluate the impact of these externally imposed institutions, forms of governance, economic policies, and goals, a thorough investigation of the resulting reconfiguration of values and norms is necessary. Colonial policies, such as the imposition of Western legal systems, modern state structures, and a market economy, inevitably had a profound effect on “traditional” tribal and village structures, land ownership systems, communalism, village autonomy, and prevailing norms. In addition to a historical analysis, research is needed on the effects in the postindependence era of non-Western state domestic policies and global developments, including the so-called Asian miracle, on values and norms. Of great significance is the impact of globalization and the financial crisis of the 1990s on traditional communal solidarity, particularly on Asia and Latin America. Minority rights, a burning contemporary issue in such Western liberal states as the United States, France, and Germany, constitute demands for group rights, be they of ethnicity, language, culture, or religion. An analysis of the cultural context of these demands, in particular their values and conceptions of rights, necessitates research along the same lines as those proposed for communally based non-Western cultures. An examination of the impact of living in an individually based society and the linkage of minorities to the dominant culture is vital. What reconfiguration of traditional values takes place as a consequence of the penetration of the dominant culture and of the minorities’ interaction with the new culture and society? More vexing is the issue of ethnonational states. Their ideology, by equating ethnic with national identity, which in turn is embodied in the state, inexorably results in violations of both individual and minority rights. 38 Communalism, endemic to non-Western societies, has been transposed and recast within the boundaries of the modern state. A democratic ethnonational state can protect individual rights, but not if their exercise challenges the givens of ethnic identity. Nor does this kind of state implement or protect the rights of “the other.” Partially a reaction to globalization, fragmentation into ethnically exclusive groups poses a

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serious threat to an evolution toward a reconstructed universalism. Conceptually and ideologically, such fragmentation denies rights to all who are not ethnically pure but live within the borders of a state.39

Toward a New Paradigm The human species is so classified in part because all its members share biological features and physical needs. Yet each person is distinctive in appearance and specific biological and genetic makeup, and may satisfy physical needs in different ways. An analogy can be drawn with social life. Although a multitude of worldviews, variant belief systems, social structures, cultural patterns, institutions, theologies, values, and norms exist, their permutations cannot be infinite, since we are constrained by the limitations of human intelligence, creativity, and needs. In addition to physical and biological needs, equally fundamental are psychological and social/communal needs that can be fulfilled in a variety of ways. Scholars, by divesting themselves of ethnocentric biases and the dominant cognitive frameworks, may discover hitherto unsuspected commonalities in social existence that transcend the multitudinous social and cultural diversity. At present, human rights scholarship is in what Thomas Kuhn calls a preparadigmatic state, a condition that characterizes social science theory as a whole. The previous section of this chapter raises issues and points to directions for further research that may lead to a reconstructed universal human rights paradigm. Examining unstated givens in both the universalist and cultural relativist doctrines yields points of contact. It is postulated that both doctrines’ implicit assumptions speak, at least partially, to the articulated, visible conceptions of their opposite. In other words, the presupposition of community in universalism is the core of cultural relativism, while the imbedded assumption of spheres of individual autonomy among relativists speaks to the individualism of the universalists. Further research is needed to probe the extent to which and the ways in which the Western doctrine of individual civil and political rights is embedded in community structures, from the local, to the state, to the international level.40 And further research is essential to look at the extent to which and the mechanisms through which personal autonomy and freedom of choice exist in communally based societies. One possible outcome of such research is a synthesis of fundamental shared elements of both human rights doctrines incorporating community and individual autonomy. Cultural forms and structures

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would continue to differ among non-Western societies, between Western and non-Western societies, and in the West itself, but a consensus could emerge on elements of a reconstructed minimal universal paradigm. Probing the unstated givens in both human rights paradigms is insufficient in itself to lead to a new universalism. An in-depth analysis must be made of the extent to which disparate religions and philosophies share values and principles. In this endeavor certain cross-cultural similarities immediately come to mind. For instance, no philosophic/ cultural system sanctions arbitrary killings, disappearances, or torture.41 The right to life is sacrosanct, at least for the members of one’s community, be it a nation-state or a tribe. This is not to say that the right to life is not violated in practice, in Western as well as in non-Western societies. Ruthless tyrants have been condemned in “traditional” societies and in ancient empires and frequently overthrown. And in so-called Western liberal societies, dictatorships, ferocious tyrants, and repressive regimes that have violated the right to life have not been uncommon, as witnessed in Nazi Germany and fascist Italy. Although in liberal societies, such as Israel and the United States, the death penalty is imposed after due process of law, it remains a denial of the right to life.42 Nevertheless, the right to life was and remains a universal principle. In moving beyond the bedrock principle of the right to life, abstract concepts such as justice, respect, human dignity, and humaneness are ubiquitous. They are manifest in Christianity, Buddhism, Confucianism, Islam, Judaism, liberalism, and “traditional” or animistic cultural norms. Consensus on abstract principles does not translate into shared notions on the meaning and content ascribed to these values. In fact contradictory behavior and actions may fulfill the same abstract value. What constitutes justice in liberal thought is not the same as justice in Buddhism. Human dignity entails different behavior and social expectations in Islam and Christianity. A veiled woman has dignity in Islam, while in the West it is a mark of inferiority. Humaneness necessitates different actions in these diverse cultural/philosophical systems. Similarly, treating persons with respect is culturally specific and cannot be generalized. But the question remains. Are there interactive processes through which overlapping core elements in both Western and nonWestern systems can be distilled so that a common grounding can evolve? The task of probing for shared core elements in diverse cultures and philosophies would be facilitated by a recognition of the multiple

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strains of thought in each philosophical or intellectual tradition. Linkages may exist across civilizations, but not necessarily with a dominant stress on any temporal point. No salient philosophical or cultural principles should be reified as representing the Islamic or the liberal dogma. Norms and values are in continual contention and flux in both the West and elsewhere. Which strain emerges triumphant, Mencius or Confucius,43 John Locke or David Hume,44 is the outcome of a myriad of interacting social forces in a particular historical period. One need only look at Christianity to realize that beyond a belief in God and Jesus Christ, Christian dogma is often contradictory. Or one can look at the competing interpretations of Islamic thought. Minimal evidence exists of the incorporation of elements of Eastern philosophy into Western thought. Despite its emphasis on obedience, Buddhism’s concept of the transcendental unity of nature and humanity is reflected in the environmental movement that has spread in Western liberal societies.45 The underlying holistic principles of Buddhism are open-ended and amenable to incorporating new experiences and new realities. There is no absolute truth, just a spiritual unity. The absence of philosophical rigidity and absolutism in such an ontology facilitates reinterpretation, while its holistic ontology can be a corrective to the West’s fragmented intellectual thought. An initial step in the reinterpretation of cultural values and beliefs has been undertaken by An-Na’im.46 Although fundamentally committed to the Western doctrine of human rights, he proposes an internal cultural discourse and an intracultural dialogue as processes through which rights may be universalized. His call for dialogue, however, is somewhat one-sided in that he expects changes to take place primarily in non-Western cultures. An-Na’im’s approach should be extended. The liberal doctrine of human rights should be as subjected to discourse and dialogue, as are non-Western values. Such an undertaking can be facilitated by recognizing the absence of a single overriding verity in each philosophic tradition, particularly as it pertains to an individual and that person’s rights. By not engaging primarily or necessarily with the official dogmas and accepting potential alternative strains within each tradition, shared values may be ascertainable. Some Islamic theologians are currently challenging the traditional interpretation of the Quran that prescribes the subordination of women, and are doing so within the theological parameters of Islam. 47 By modifying An-Na’im’s approach through an interpenetration of the universalist and cultural relativist doctrines, both doctrines can be reconstructed to lead to minimal common ground.

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Theories of human rights are amiss in neglecting the impact of social change on historic values and norms and on conceptions of human rights. The extensive literature on globalization does not on the whole address the process’s impact on concepts of rights.48 Whether one speaks of culture, technology, information, finance, or consumption and production, globalization is a multifaceted, multidimensional phenomenon. Structures and institutions have been adapted, sometimes created, to accommodate these changes. Questions have been raised regarding the changing role of the state—if not its loss of sovereignty— as a consequence of the transnational power exercised by a global financial and economic oligarchy.49 What is lacking are analyses of the impact of these transformations on values and notions of rights. Illustrative of the far-ranging impact of socioeconomic change is Japan. In the decades after World War II that nation had successfully blended traditional values with the requisites of a modern industrial society, the latter itself a reconfiguration of traditional values and behavior. Today Japan is confronting the disintegration of its unique system. Lifetime employment in a firm, to which the traditional community had been transposed, has ended, while unemployment is increasing, as is homelessness. Deeply embedded values, such as solidarity, community, and economic and social rights, have been shattered by economic realities. Faced with massive transformations as a result of the financial crisis and the decline in the economy, Japanese society’s ideological/cultural premises and their public and private institutionalization have eroded. Other than structural changes in finance, banking, and production, what impact is globalization and its attendant crisis having on Japanese values? Similar questions can be raised about Thailand, Indonesia, Malaysia, and South Korea. Comparable human rights issues are raised as a result of multinational investments, particularly in non-Western states. The movement of production facilities around the globe in search of cheap labor has precipitated strikes and demonstrations in response to exploitation or repression. Traditional communal life has been largely destroyed. Demands for a living wage and the abolition of child labor, voiced primarily by local and international nongovernmental organizations, have become commonplace, as have violent protests for democratization like those seen in the convulsions in Indonesia.50 What impact has the disruption of customary social relations had on traditional community obligations and the prevailing belief systems and values? And what will the impact of these developments, to which one can add downsizing, contract labor, and the reemergence of sweatshops, be on Western states?

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Conclusion Although its roots can be traced to the nineteenth century, globalization is a contemporary phenomenon. Consumption, financial markets, technology, communications, production, and distribution are global. By contrast, cultural values and conceptions of human rights remain diverse. Globalization is a relatively autonomous process that evades state control, thereby diminishing state sovereignty.51 It is frequently argued that the functions of the state have been, at a minimum, transformed, often facilitating globalization. State sovereignty is no longer absolute. In marked contrast, in the area of human rights no autonomous process of globalization of any doctrine of human rights is taking place, although scholars are tentatively moving to a more unified theory. The universality proclaimed by the Vienna Declaration of 1993 and the legal instruments adopted over decades by the United Nations are largely unenforceable rhetoric and subject to multiple interpretations. Nevertheless there are some positive signs of universalization, one could say globalization, of human rights. One is the establishment of international tribunals in Tanzania and the Netherlands to try individuals for genocide in Rwanda and Bosnia, respectively. Another is the arrest of and the attempt to bring charges of crimes against humanity and genocide against Chile’s former dictator, General Augusto Pinochet, in a court outside his country. Whatever the outcome of this case it will set a precedent whereby state sovereignty will no longer be a safeguard for individuals accused of gross violations of the right to life. Furthermore, the indictment of Slobodan Milosevic by the Hague Tribunal in May 1999 signals a future uncertainty for sitting governing elites if they engage in crimes against humanity. Of great potential significance moreover is the adoption in June 1998 of the International Criminal Court (ICC) with an independent prosecutor empowered to try persons accused of genocide and crimes against humanity.52 These developments reflect an emerging consensus on international responsibility and accountability for the most heinous crimes against humanity, thereby restricting the claims of state sovereignty. The precedents established are potentially of great consequence for the universalization of human rights. However, it should be noted that all the issues addressed in these developments involve the right to life, about which, as stated earlier, there is agreement in principle among disparate philosophical/cultural systems. The proposed research agenda set forth in this chapter has its prem-

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ise in the belief that it will lead to a reconstructed universalism, which extends beyond the right to life and will have salience for all societies and cultures. It would be a far-reaching step because all states and individuals could be held accountable to a minimal base of values and human rights norms while retaining cultural diversity. Probing the presuppositions of the prevailing doctrines of human rights, in-depth analysis of points of contact in differing philosophic systems, cross-fertilization and dialogue among different cultures, and transformations resulting from social change, in particular globalization, will set the foundations for a reconstructed universalism.

Notes 1. By contrast, after World War I, with the redrawing of the map of Europe and the collapse of the Hapsburg and Ottoman empires, numerous treaties provided for the protection of minority rights. But this pertained only to minorities living in states whose home country was another European state. 2. Mary Wollstonecraft wrote The Vindication of the Rights of Women in 1792. 3. Cranston, 1963. 4. Dworkin, 1978. 5. Rawls, 1971. Influenced by analytical philosophy, despite his concern with justice, he does not deal with class position, institutional context, or socioeconomic context. 6. In the ancient Athenian democracy, a person was an integral member of several concentric groups, with the polis at the apex. 7. Geertz, 1963. 8. Among the earliest cultural relativist volumes are Pollis and Schwab, 1979b, and Schwab and Pollis, 1982. 9. A classic study by social psychologist Harry Triandis, 1972, highlights the difficulties in cross-cultural research when a culture’s dominant concepts do not exist cross-culturally. For example, while he recognizes the centrality of the Greek value of philotimo in behavior and attitudes, he admits it cannot be translated into English and attempts, unsuccessfully, to circumvent it. 10. See Pollis, 1996. 11. See in particular the Bangkok Declaration, April 1993, preparatory to the Vienna Conference on Human Rights. Extracts appear in UNESCO Courier 40, March 1994. 12. In May 1997, Malaysian Prime Minister Mahathir Mohamad called for a review of the 1948 Universal Declaration of Human Rights on the grounds that it was “formulated by superpowers who did not understand the needs of poor countries,” a statement lauded by China and Indonesia. Sangwon, “No Easy Answers,” Fortune, May 1997. 13. Interestingly, little has been heard of Asian values since the 1998 financial crisis in the region, an understandable political retreat given that a

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principal rationale for repression—for maintaining “social order” and the denial of individual liberties—was the East Asian countries’ success in bringing about development and prosperity. 14. In a recent article Jerome J. Shestack, 1998, revealing his strong ethnocentric bias, states that “cultural relativism as a concept to justify departures from human rights standards in international law on cultural grounds has scant claim to moral validity.” 15. When the United States criticizes countries for human rights violations it always refers to civil and political rights and not to economic or social rights. 16. Renteln, 1990. 17. An-Na’im, 1992. 18. There are some exceptions, such as Banuri, 1990. 19. Shue, 1980. 20. Donnelly, 1989. In this book the author, a foremost advocate of the primacy of civil/political rights, has come to recognize the interdependence of rights and develops his own complex of rights derived from several sources; see in particular pp. 34–37. 21. It is noteworthy that the United States did not ratify the Convention on Civil and Political Rights until 1993. 22. Kymlicka, 1995a. 23. An interesting and significant edited volume dealing with minority rights from numerous perspectives is Kymlicka, 1995b. 24. Nor do cultural relativists deal with minorities inside the borders of a modern state or with internal minorities in minority groups. For an exception see Green, 1995. 25. See Johnston, Chapter 5 in this book. 26. The U.S. Constitution says little about emergency powers and which branch of government can exercise them. The restrictions of individual liberties during the McCarthy era, including the right to travel, are well known. But it is significant to note that as far back as the Civil War the writ of habeas corpus was suspended. See Levy, 1986, for, among other issues, a compilation of cases involving national emergencies and restrictions on rights. Article 15 of the European Convention for Protection of Human Rights and Fundamental Freedoms allows derogation of some, but not all, rights under conditions of national emergency. 27. John Locke, reflecting continuity with the previous era, argued that these laws of nature were God-given and were ascertainable to man through the use of reason. 28. The source of fundamental rights has shifted in recent decades from natural law to moral philosophy. See Donnelly, 1985. 29. In addition to the nation-state and the political community, individuals are members of a multiplicity of other groups to which they owe loyalty and obligations, be it the family or voluntary associations. 30. Mill, 1977. 31. A striking consequence of this concept is found in Cranston, 1963, chapter VIII, in which he vehemently rejects economic and social rights, both philosophically and politically: only what is justiciable can be a human right.

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32. I use the term non-Western as more accurate than third world or postcolonial in referring to those societies that historically did not share the legacy of the Enlightenment. 33. See Clark, 1994. 34. For a discussion of the civil service examination system during the various Chinese dynasties and its connection to Confucian philosophy, see Sunoo, 1985: 103–109. 35. See Boserup, 1970, chapter 1 for a discussion of female farming systems in Africa and chapter 3 for women’s loss of status under colonial rule. 36. For an excellent volume on male bias in all areas of development, see Elson, 1995. 37. Crehan, 1997. Throughout her study are references to the kinship group’s obligations to all its members. 38. One example of the restrictions on freedoms in ethnonational states is contemporary Greece. For a brief account see Pollis, 1994. 39. In the case of a country such as Rwanda its constitution makes no mention of rights, individual or minority. The successor states to the former Yugoslavia are in principle bound by the articles of the Dayton Accords that provide for individual and minority rights, but in practice the articles are of little relevance. 40. I am not referring to laws per se at each community level but to social practices. 41. Clearly there are differences in what constitutes torture among cultures, including of the West; recently, rape used as a political tool has been added to the international list of gross violations comparable to torture. 42. It must be stated that in the Occupied Territories of the West Bank, Palestinians under Israeli control have had no entitlement to the Western concept of due process. 43. See Gangjian and Gang, 1995: 35–56. The authors attempt to analyze strains in traditional Confucian thought that are consistent with modern notions of human rights. Nevertheless, even for his time Confucius was an authoritarian whereas Mencius was more concerned with justice, doing right by others, and with humanity. W. A. C. H. Dobson, 1963: 131–185. Mencius, like Thomas Jefferson, also justified rebellion against unjust rulers. See also Sunoo, 1985: 23 44. A generation after John Locke, David Hume was quite vehement in his rejection of the philosophical notion of a social (original) contract as the foundation for legitimate government. See Barker, 1952. 45. In fact, American philosopher Murray Bookchin, 1991, probably unconsciously is closer to Buddhism than the environmental movement, which is often fragmented into single-issue activities. Bookchin argues for a holistic social ecology that joins the environment with socioeconomic and political life. 46. An-Nai’im, 1992. 47. See Arat, Chapter 4 in this volume. 48. Recognition of the impact of globalization on economic and social rights has become widespread. A forerunner is a noteworthy study by David Apter 1987, chapter 1. While the author does not address globalization per se, but rather development of states, he argues that one consequence of moderniza-

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tion is that it leads to the emergence of marginals, that is, strata of people who do not benefit and who are characterized by unemployment, poverty, and low wages. See also Banuri, 1990, for a claim that modernization is a cultural artifact that has resulted in poverty, high levels of conflict, and ecological disasters. 49. See Sassen, 1996. 50. Indonesia epitomized communalism, particularly with Sukarno’s pancasila, which itself was drawn from more traditional community notions. Yet the recent economic crisis has clearly disrupted cultural patterns. Clifford Geertz, the theorist of primordialism, in an interview in the New York Times, May 9, 1998, prior to the overthrow of Suharto, discusses some elements of Javanese cultural values. Among them are “parents doting on their children” and “with the Javanese you don’t see the violence coming until it happens.” 51. Malaysia attempted to run against the tide by reasserting state sovereignty by introducing currency controls in September 1998, New York Times, September 2, 1998. In an interesting Asiaweek article by Ricardo Saludo, September 18, 1998, the author contends that similar tentative moves in the same direction that will challenge the prevailing ideology of open markets are being considered by East Asian states. 52. The United States did much in the Rome negotiations to emasculate the treaty to establish the ICC as it argued for UN Security Council approval before the prosecutor acted, inapplicability to those states that did not ratify the treaty, and expressed its fear that U.S. soldiers on peacekeeping missions could be tried by the ICC for crimes against humanity. For the official U.S. position see the statement by David J. Scheffer, 1999 (obtained from Coalition on the International Criminal Court home page). For a sardonic parody of the U.S. position see Clark, 1999.

2 Liberal Democracy and Minority Rights Michael Freeman The Problem of Minority Rights

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uman rights generally are conceived to be primarily, or wholly, the rights of individuals. But in recent years the concept of “minority rights” has forced itself onto the agendas of international politics and international law. It is commonly assumed that minority rights can be accommodated in the field of human rights more or less unproblematically, because both sorts of rights are designed to protect a similar range of basic human interests. This assumption is, however, unwarranted. The United Nations, in drafting its Universal Declaration of Human Rights, explicitly rejected a proposal to include minority rights. The U.S. representative, Eleanor Roosevelt, declared that the best solution to the problems of minorities was “to encourage respect for human rights.” 1 Even when international law began to admit concern for minorities, it strove to retain the individualist conception of human rights. Article 27 of the International Covenant on Civil and Political Rights (1966), for example, declares that in those states in which ethnic, religious, and linguistic minorities exist, “persons belonging to such minorities” shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. The rights are allocated to “persons” (i.e., individuals), even if they can be exercised only “in community with” the other members of their groups.2 More recently the UN General Assembly adopted, in 1992, its Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The very adoption of the declaration manifested the increased concern of the United Nations with 31

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minority problems, but the title of the declaration indicated the determination of the United Nations to stick to its individualist approach. Article 1 of the declaration, however, says that states “shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity.”3 This goes further than the previous international law by implying that minorities as such have the rights to state protection of their existence and promotion of their identity. However, it fails to articulate clearly the relations among the rights of individuals and those of minorities. International law is often unclear because it is the product of political compromises among incompatible positions. Political philosophers can afford to be uncompromising, and therefore should be able to offer clearer accounts of principles that are fudged by international law. Since the lack of clarity in international law, while making agreement on texts possible in the short term, may lay the basis for conflict and injustice in the longer term, we should consider whether political philosophy can provide an analysis of human rights and minority rights that is clear and coherent, and may guide the search for better practical policies.

Problems of Liberal-Democratic Theory The concept of “human rights” is derived from the tradition of liberaldemocratic political theory. If we are to find a coherent account of human rights and minority rights, we should expect liberal-democratic theory to provide it. Here we meet our first theoretical problem. We are now so accustomed to associating human rights with liberal democracy, and liberalism with democracy, that we easily forget that rights-liberalism and democracy have had quite different histories and have quite different logics. We usually trace the concept of “democracy” back to ancient Athens, where it referred to a form of rule, in which “the people” was sovereign.4 The concept of “democracy” answered two questions, (1) “Who rules?” and (2) “Who ought to rule?” by saying, “the people.” It was a class-related concept in that conflicts over who should rule were commonly seen as class conflicts. Class apart, the concept of “democracy” raised no question about culture: it was assumed that, at least for political purposes, “the people” was culturally homogeneous. Athenian democrats also appear to have thought in terms of the duties of citizens rather than of their rights, and certainly lacked the idea of human

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rights.5 A similar conception of popular sovereignty was defended in the eighteenth century by Rousseau, who argued that men (I use the word advisedly) could achieve civil liberty only by giving up their natural rights for the rights and duties of citizens, who would make laws for the general good. A free society, in Rousseau’s theory, would recognize no conception of human rights (except the right to live in such a free society). As to cultural minorities, either there would be none, or, if they did exist, they would be strictly required to subordinate their culture to the demands of the “general will.”6 In contrast with the concept of “democracy,” rights-liberalism is not primarily concerned with the question of who should rule, but, rather, with what any government, whether democratic or not, may legitimately do and, more particularly, what it may not do. Thus, whereas “democracy” is concerned with the question of who has power, rightsliberalism is concerned with the limits of legitimate power, whoever holds it. It is based on the premise that there are certain fundamental human interests or natural rights that derive from human nature and are, in this sense, independent of and prior to society and government. According to John Locke, the first systematic, liberal theorist of rights, natural rights, though deriving their validity from nature (and from nature’s God) and not from government, could not be secure in the absence of government and the rule of law because in “the state of nature” there would be sufficient wickedness and self-interest to make men fearful and life inconvenient.7 All rational persons would, therefore, agree to live under government and law in a society in which public policies were decided by majorities or by the representatives of such majorities. Locke’s theory is based on the concept of “natural rights” and derives from that concept a theory of government whose authority depends on the consent of the people and majority rule. Locke did not, however, explicitly require that that government be democratic. His theory also generates no problem of cultural minorities. Minorities are simply a set of individuals who have been outvoted. Such individuals always retain their natural rights and the right to defend them by appropriate means, if necessary, against decisions of majorities that threaten or violate them, but minorities were not seen by Locke as cohesive cultural groups that might need to defend their collective interests against majority tyranny. Thus both classical liberalism and democratic theory ignored, or were hostile to the idea of, minority rights, but for different reasons. The problematic of liberal theory was the protection of individual freedom from the abuse of power by the state. Such theory assumed the

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emancipation of the individual from traditional communities and feudal hierarchies; it was consequently silent about the status of cultural minorities, while recognizing the natural rights of their individual members, but was implicitly hostile to them as potential constraints on individual freedom. Democrats, while more “collectivist” than liberals, accorded priority to the political equality of citizens and to the common good and viewed minorities as potential threats to both these values. The “common good” was, classically, that of the polis and, in modern times, that of the nation-state, not that of the substate community. Liberal democracy, therefore, seeks to reconcile the liberal values of individual rights and freedoms with the democratic values of citizenship and popular sovereignty. It offers to the members of cultural minorities individual human and citizens’ rights, including such rights to collective, cultural life, such as those of freedom of association and religion. Since liberal democracy offers these rights to members of cultural minorities on terms of equality with all other citizens, it considers the status of these minorities within liberal-democratic societies to be, in theory, perfectly just. Actually existing liberal democracies may of course be far from just, but, liberal democrats argue, this is because liberal-democratic principles are often violated in practice. The solution is the robust implementation of the principles, not their abandonment. The persistence of minority claims in the most “developed” liberal democracies, the established connection between minority problems and the most serious and widespread human rights violations around the world, the articulation of special demands by indigenous peoples, and the end of the Cold War ideological conflict have generated practical and theoretical challenges to this liberal-democratic solution. In response, liberal-democratic theory has reviewed its traditional conceptions of the relations between politics and culture, and between majorities and minorities. The concept of “multiculturalism” has come to occupy a central place in liberal-democratic theory.8 Liberal-democratic theorists are far from agreement, however, on how liberal democracies should address the problems of multiculturalism. This raises two crucial questions. First, why have liberal-democratic theorists been unable to offer a united front in response to the challenge of multiculturalism? Second, what are the implications of this dissensus for the theoretical status and practical protection of human rights? I shall answer these two questions by analyzing the work of three political theorists, who have proposed powerful versions of different solutions to these problems. Will Kymlicka has developed a theory of minority rights from liberal premises. James Tully has made a more radical critique of liberalism,

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and argued that it should be replaced by a form of intercultural dialogue. Brian Barry has counterattacked with a robust critique of multiculturalism from a liberal-democratic standpoint. I shall argue that each has advanced our theoretical understanding of minority rights; that each is nonetheless not quite satisfactory; that, although there are significant disagreements among them, they tend to exaggerate their differences; and that a synthesis of their theories is consequently both possible and desirable. The outcome of this analysis is that international law, although not as clear as it ought to be, is basically correct to emphasize the fundamental nature of individual human rights and to incorporate minority rights into the human rights field, but cautiously. This chapter is a vindication of liberal democracy, enriched by the new concerns with multiculturalism and minority rights.

A Liberal Theory of Minority Rights Kymlicka argues that liberalism entails not only the political principles of rights and democracy but also the principle of integration into a particular culture. The liberal concept of national membership that excludes cultural considerations is commonly called “civic” nationalism to distinguish it from illiberal, “ethnic” nationalism. This concept of liberal nationalism is, however, mistaken. What distinguishes “civic” from “ethnic” nations is not the absence of any cultural component of national identity, but, rather, the fact that every citizen can integrate into the common culture without discrimination. In a multicultural society the state necessarily promotes certain cultures and thereby disadvantages others. In a multilingual society, for example, not all languages can be official languages. This raises the question of justice for minorities.9 This entails, minimally, “the absence of relations of oppression and humiliation between different ethnocultural groups.” A more robust concept of ethnocultural justice could, however, be developed by asking what terms of coexistence would be freely consented to by the members of different ethnocultural groups in a setting where inequalities in bargaining power have been neutralized.10 Liberals assume that people are members of societal cultures, and that these cultures provide the context for individual choice. Liberal states should, therefore, protect this cultural membership. In multinational states, some people’s cultural membership can be recognized and protected only by endorsing groupdifferentiated rights.11 Yet, Kymlicka argues, all individuals can have experiences that

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compel them to revise even their most fundamental beliefs. The value of human lives derives not only from their conformity to external standards of the good, but also from the beliefs of the individuals who lead them that they are good. Communities are necessary to good individual lives, but individuals must have some autonomy from the communities of which they are members to choose specific forms of good life. Individuals have autonomy (i.e., the capacity to choose) because community cultures are not homogeneous or fixed. Individuals ought to have autonomy (i.e., the right to choose) because communities can be oppressive. Communities are also often stratified, so that individuals who are required to conform to the demands of “the community” are in reality required to conform to the wills of those with the most power in the community. The defense of group rights may, therefore, be the defense of oppressive power. 12 Liberals therefore cannot approve, except under extreme circumstances, the restriction by minority groups of the basic rights of their members. Liberals believe that individuals should have the capacity and freedom to question the culture of their community, and decide for themselves which aspects of that culture they will retain.13 Some restrictions on the individual rights of insiders may nevertheless be justified to prevent actions necessary for autonomous choices that would undermine communities. What makes this justification of community restriction of individual rights liberal is that its purpose is to protect a rights-supporting community.14 Kymlicka may, by his liberal theory of minority rights, seem to have found a way to reconcile human and minority rights. However, he insists that minority rights cannot be subsumed under the category of human rights. This is not because group rights cannot be human rights, as some human rights theorists argue,15 but because human rights principles cannot solve some of the most important problems raised by minorities. Some groups are unfairly disadvantaged in the cultural marketplace. The viability of their cultures, for example, may be undermined by political and economic decisions taken by the majority. The members of majority cultures do not face this problem. Given the importance of cultural membership, this is a significant inequality that if not remedied is unjust. The problem with the concept of human rights is not that it necessarily yields the wrong answer to these questions. It is rather that it often gives no answer at all. The right to free speech, for example, does not entail any particular language policy. The principles of human rights leave such matters to majoritarian, democratic decisionmaking, and this may render minorities vulnerable to injustice at the hands of majorities.16

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Human rights may, however, be insufficient to guarantee even the minimal requirements of ethnocultural justice. Every democratic state has, at one time or another, attempted to create a single national identity among its citizens, and so has tried to undermine any competing national identities, such as those of national minorities. One manifestation of this is the policy of many national governments to encourage people from one part of a country to move into the historical territory of a national minority. Such policies are often designed to exploit the natural resources of the territory and to disempower the national minority by turning them into a minority even in their own traditional homeland. Human rights doctrines, Kymlicka claims, are not only silent on this question, but may exacerbate the injustice because they guarantee freedom of movement within the territory of a state. To protect minorities against this form of oppression, collective rights to land ownership and language use, as well as restrictions on the rights to movement or to vote of the migrants, may be needed. Such group rights are, however, not fundamentally inimical to human rights, for liberal-democratic states claim the right to regulate immigration, land use, and language policies, and such claims are not usually interpreted as threats to human rights. Insofar as such collective rights resemble recognized collective rights of nation-states, they could be subject to the same human rights conditions.17 Kymlicka’s liberal theory of minority rights has strong implications for education. Liberal societies recognize the right of everyone to freedom of information, including information about ways of life other than their own, and indeed require children to learn about other ways of life, thereby enabling people to revise their beliefs about how to live. Liberal societies do not compel such questioning and revision; they only make it possible. Liberals believe that a person’s current way of life is not necessarily the best available, and exposure to other ways of life is necessary for individuals to make informed judgments about which ways of life truly deserve their allegiance. A liberal education, therefore, aims to develop the capacity to evaluate different ways of life. Groups that prevent their members from questioning their culture may thereby be oppressive. Liberals want to protect cultural membership to enable individuals to choose their way of life, and cannot support features of minority cultures that reduce this capacity. There may be inherent value in intergenerational bonds, and parents may have the right to transmit their culture to their children. However, children have the right to information about, and access to, the mainstream culture of the society in which they live, and parents do not have the right to deny this to them.18

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Kymlicka has been criticized for being a liberal imperialist because he approves of minority groups only if they promote liberal principles. 19 Kymlicka can reply that he is proposing a liberal theory of minority rights. Those who object to liberal principles are not addressing his arguments and should offer their reasons for rejecting liberalism in another context. 20 What concerns us more is the critique that Kymlicka makes of human rights. He has two objections to the idea of human rights in thinking about minorities. The first is that human rights are not sufficient for justice to minorities. The second is that human rights may aggravate injustice to minorities. These objections are easily answered. The answer to the first objection is that Kymlicka is seeking a theory of distributive justice for minorities, and the concept of human rights is not a concept of distributive justice at all but one of minimum standards. Once that elementary point is understood, it is obvious why the idea of human rights is not sufficient for a theory of justice for minorities. Kymlicka’s first criticism does not damage the idea of human rights, because it expects of the idea something that it does not claim to provide. The second objection is that the protection of human rights may aggravate injustice by giving members of dominant groups the freedom to oppress and exploit vulnerable minorities. This objection is also based on a misunderstanding of human rights, for it assumes that human rights must be absolute. However, it is a commonplace of human rights theory that human rights may have to be limited for the sake of other, conflicting human rights or of other legitimate values. Article 29, paragraph 2, of the Universal Declaration explicitly provides for this. Thus Kymlicka’s liberal theory of minority rights is consistent with the idea of human rights. Kymlicka seeks to reconcile the liberal theory of justice with the realities of cultural diversity in contemporary societies. Some critics have objected that he achieves this reconciliation only by presupposing the priority of liberal values. Tully seeks to meet this criticism with a theory of politics and culture that presents contemporary societies as a common terrain on which liberalism must come to terms with a “strange multiplicity” of cultures.

Strange Multiplicity Whereas Kymlicka proposes a liberal theory of minority rights, James Tully criticizes liberal constitutionalism on the ground that it addresses cultural diversity monologically. He assumes that cultural diversity is a

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fundamental feature of the human condition and that cultural recognition is “a deep and abiding human need.”21 The basic institutions and laws of modern societies, and their authoritative traditions of interpretation, are unjust insofar as they fail to recognize cultural diversity but, instead, seek to assimilate or exclude it. Therefore modern, liberal constitutions do not express “popular sovereignty,” but are, rather, imperial yokes on culturally diverse citizenries. 22 Tully thus shares with Kymlicka a concern with the political recognition of cultural diversity, but appears to differ from him in seeing liberal constitutions as manifestations of imperialistic oppression. Culture, Tully maintains, is an irreducible and constitutive aspect of politics. It is a way of interacting with others, and, as citizens interact with each other, so they express their different cultures. Constitutions can impose cultural uniformity or they can recognize culturally diverse ways of being a citizen, but they cannot transcend the cultural dimension of politics. The sovereign people is constituted by its different cultures. A uniform legal and political system, to which all citizens are subject in the same way, denies this cultural diversity unjustly. Most liberal constitutions are unjust in this way. The Canadian Charter of Rights and Freedoms, for example, has been seen as the imposition of a panCanadian culture. The resistance to liberal constitutionalism by aboriginal peoples, in particular, expresses a refusal of subordinate cultures to accept their roles as passive objects of the dominant culture and a demand for a place in an intercultural dialogue based on mutual recognition of cultures in their own terms. The constitution is, in this view, a continuing intercultural dialogue rather than an original contract or an ideal speech situation.23 What are the implications of Tully’s critique of liberal constitutionalism for human rights? He says that interculturalism requires “a just form of constitutional discussion in which each speaker is given her or his due.”24 This suggests that the recognition of cultural diversity goes all the way down to the level of the individual, and therefore lays the basis for a conception of human rights. The theory is more liberal than it seems: all citizens are equally recognized in terms of their cultural identity.25 Tully confuses this principle, however, by insisting that the aim of negotiations over cultural recognition is not to reach agreement on universal principles and institutions, but to bring negotiators to recognize their differences and similarities, so that they can reach agreement on a form of association that accommodates their differences in appropriate institutions and their similarities in shared institutions.26 He does not show why this would not end up with some form of liberal-

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democratic constitutionalism, and it is difficult to understand why we should consider the outcome of such negotiations to be just unless each individual was guaranteed the standard liberal-democratic rights. Tully rejects any appeal to a transcendental ground of justice beyond the sovereignty of the people, which is defined by the outcomes of intercultural dialogue. Justice, he maintains, requires the self-government of peoples according to their own cultural understandings. But cultures are overlapping, interactive, and internally negotiated. Consequently cultural difference is internal to particular cultures. 27 Peoples, Tully says, regain “their dignity as equal and active citizens” through self-government.28 Here he assumes that cultural self-government is compatible with the democratic concept of equal and active citizens. Intercultural constitutionalism appears to be deliberative democracy grounded in a cultural, but also an individualistic, base. The just constitutional recognition and accommodation of cultural diversity, Tully claims, enhances rather than threatens “the primary goods of individual liberty and equality, which are correctly associated with modern constitutionalism, but in a manner appropriate to an age of cultural diversity.” The intercultural constitution can reconcile the two goods of freedom and belonging. It can recognize the critical freedom to question in thought and challenge in practice inherited cultural ways and the aspiration to belong to a culture.29 Here Tully’s critique of liberal constitutionalism converges with Kymlicka’s liberal theory of minority rights, but it does so by a combination of dialogical justice and the primary goods of freedom and belonging. The coherence of this combination is uncertain, for there is no guarantee that dialogue will produce freedom. Kymlicka may be more of a “liberal imperialist” than Tully, but Tully evades this trap only by qualifying liberal principles with a rather opaque concept of just dialogue. It is not clear whether Tully is really a liberal (and therefore an imperialist in disguise) or really not a liberal (and therefore something unpleasantly illiberal in disguise). The injustice of constitutional monism, according to Tully, consists in the requirement that cultural minorities converse in the discourse of the dominant group. It stifles cultural differences and imposes a dominant culture while “masquerading” as culturally neutral, comprehensive, or unavoidably ethnocentric.30 Intercultural dialogue, by contrast, aims to discover which conventions unjustly thwart cultural recognition and which claims to recognition can be shown to be unjust by the conventions that survive the critique.31 Forms of constitutional recognition that overlook, exclude, or assimilate cultural differences express a residual imperialism that invites the question of its own impartiality as

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the authoritative language of description and adjudication of claims to recognition.32 Only a constitutional dialogue in which culturally different ways of participating are mutually recognized would be just, although there must first be agreement on which forms of dialogue are admissible.33 Tully leaves unclear the criteria that could justly adjudicate the admissibility of forms of dialogue, if liberal-democratic standards cannot be presumed to be impartial. He seeks to reconcile liberal democracy with cultural pluralism, but does not clearly say what justice requires in cases where they are incompatible. Thus he seems to evade the central dilemma of liberal democracy in the face of cultural pluralism. The institutional form of intercultural constitutionalism is asymmetrical federalism, in which equality is achieved not by the identity of political and legal institutions, but by the equal recognition and autonomy of diverse forms of self-government. Constitutional proposals that affect the individual citizens of the entire federation would require the consent of the majority through their federal representatives or a referendum. Although Tully believes that the political theory of Locke is an example of liberal imperialism, his idea of a federation of cultures rests on a Lockean concept of political society as based on the consent of rights-bearing individuals.34 Tully holds, however, that the recognition of cultural diversity entails the institution of legal pluralism, which, he claims, is more common in contemporary liberal democracies than liberal-democratic theory itself would suggest.35 Despite his polemic against liberal constitutionalism, Tully does not reject liberalism but, rather, seeks to reform it by reconciling it with interculturalism. His theory recognizes dissenting individuals, who are, he acknowledges, more vulnerable because they cannot claim their own political institutions to protect their cultures. The members of minority cultures must seek recognition, accommodation, and affirmation by the majority culture.36 This invites the question of how conflicts between minority cultures and dissenting individuals should be resolved. Tully admits that legal and political diversity could shield illiberal and undemocratic enclaves; he claims that the consistent application of the conventions of intercultural dialogue would eliminate such enclaves and guarantee the rights of every citizen.37 When he faces the possibility of the violation of liberal-democratic principles on the ground of cultural diversity, Tully appears to subordinate the diversity to liberal-democratic uniformity. Cultural diversity is, for Tully, not an alternative to liberal democracy but, rather, a social precondition of one of liberalism’s primary

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goods: individual self-respect. Citizens, he maintains, can take part in popular sovereignty only if they have a certain amount of self-respect. The social bases of this self-respect are the recognition of one’s value within shared cultural associations and by outsiders. To provide the social basis for autonomy, therefore, the liberal constitution must protect the diverse cultures in society and promote the public attitude of respect for cultural diversity.38 Tully’s call for cultural recognition for the sake of promoting autonomy makes his argument similar to Kymlicka’s. However, it raises the question of the toleration that liberal societies should extend to cultures that do not value autonomy. Kymlicka disapproves of such cultures on liberal grounds, but advocates dialogue between them and liberal cultures. Tully implies support for Kymlicka’s solution because the latter advocates intercultural dialogue but analyzes the problem of liberal toleration less clearly. Although there is a strong liberal-democratic core to Tully’s interculturalism, its reliance on dialogue leaves it vulnerable to the same criticism as Kymlicka’s theory, namely, that it offers more protection to the powerful than to the weak, and this is unjust. He opposes uniform theories and systems of justice because they are “imperialist” and experienced as oppressive. His alternative is intercultural dialogue, but he wishes to show that this can be validated by liberal-democratic standards of justice, thereby readmitting the universal principles that he has expelled. Tully claims that the constitution of peace and justice can be achieved through intercultural dialogue and not by the imposition of (liberal) Hobbesian sovereignty. He maintains that the imperial, cultural sovereign, even with a liberal face, is responsible both for cultural oppression and the cultural war of all against all. He fails, however, to provide a convincing answer to the hard liberal-Hobbesian question: What if intercultural dialogue delivers neither peace nor (liberal) justice? Tully claims that respect for cultural difference is the guarantee of liberal democracy. Liberal democrats claim that liberal-democratic constitutionalism provides for cultural difference all the guarantees that justice requires. Brian Barry now seeks to dispel the mists of multiculturalism and reaffirm the sufficiency of liberal-democratic justice.

Liberal Democracy Versus Multiculturalism Barry defends a “difference-blind,” liberal-democratic concept of justice.39 He thereby reaffirms the value of impartial justice and opposes Tully’s view that liberal justice is imperialism in disguise.40 Liberal-

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democratic institutions, Barry believes, are both just in themselves and offer the best prospect for just laws and government decisions. Liberalism requires that society accommodate all differences that are compatible with just institutions. It can therefore endorse “difference,” provided that it is compatible with liberal-democratic institutions. Liberal democracies treat all citizens as equals: no individual or group is considered to have less intrinsic worth than others, and no individual or group may be arbitrarily privileged. A liberal state should take strong measures against harassment and discrimination. However, no society can tolerate all difference, since some social practices are unacceptably harmful to others and to society. If liberal democracy is to flourish, its citizens must be committed to its core values: liberal democracy cannot, and should not, tolerate those who would undermine it. Such toleration would be unjust. In contrast to Tully Barry opposes the delegation of responsibility for public services to communal groups. He believes that this tends to ghettoize minorities and leaves them more vulnerable to the dominant groups in the larger society. Participation in common institutions creates solidarity, which is the best protection for minorities. Liberal democracy depends upon civic nationalism. Both Kymlicka and Tully would object to Barry’s defense of “difference-blind” liberal democracy that liberal states cannot be culturally neutral, and that, consequently, supposedly impartial, “difference-blind” justice conceals the unjust domination of particular cultures. “Civic” nationalism is always biased by forms of ethnic stratification that are the products of historical injustices. The dominant national culture often includes a sense of superiority to other cultures even when it endorses liberal-democratic institutions. To become “citizens,” members of subordinate ethnic groups must give up significant elements of their culture and adopt the culture of the historically dominant group. The public culture of liberal-democratic, civic nationalism, in this view, requires the marginalization of rival ethnic cultures. Against this critique of civic nationalism it may be urged that its record of protecting ethnic minorities is impressive. For example, Helen Fein has argued on the basis of a detailed empirical analysis that Jewish chances of survival during the Holocaust were considerably higher in those countries occupied by the Nazis in which civic nationalism was greater. Denmark is only the best known example of this general truth.41 There is, therefore, empirical evidence to support both the case of Kymlicka and Tully, on the one hand, and that of Barry, on the other, with regard to the record of civic nationalism in protecting minorities. Barry is uncompromising in refusing to tolerate the devolution of

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political power to illiberal cultural groups, and he finds both Kymlicka and Tully too compromising on this point. Liberal toleration of illiberal groups that do not exercise devolved political power depends, he believes, on the right to exit. The liberal dilemma is that liberals are committed to freedom of association, but they must also limit their toleration of groups’ oppression of their own members. Barry seeks to resolve this dilemma by clarifying the principle of freedom of association. He argues that if the members cannot leave or if the cost of exit is unreasonably high, then the association is not “free,” and consequently not protected by liberal principles. What makes the cost of exit unreasonably high? Barry suggests that the cost of losing the benefits of membership by exit does not render an association involuntary, because such a cost is inherent in any exit and is therefore entailed by the principle of freedom of association. However, if the association threatened, harassed, or penalized the departing member, that would be unreasonable, and might mean that the association was not voluntary. Among the costs of exit from a “comprehensive” community in which, for example, religion and economy are closely integrated may be loss of capacity to earn a living. In such cases, Barry thinks, the leaver may have not a right to remain, but a publicly enforceable right to compensation. The test of a “reasonable” cost of exit is not the suffering of the leaver, but the rights of the association. A voluntary association has the right to insist that its members adhere to its beliefs and conform to its rules, and those who choose to leave because they change their “conception of the good” have no grounds for legitimate complaint, even if they are very sad to leave the group. A voluntary religious group is, therefore, not required to tolerate dissenters, but the group may not harass them, and, if the dissidents are economically dependent on the community, the group may be obliged to compensate them. The liberal state, in Barry’s theory, is not to impose any way of life on any of its citizens. He criticizes Kymlicka for requiring that minorities should promote “autonomy.” Thus, he holds that Kymlicka is not only insufficiently liberal because he would tolerate illiberal groups, but also guilty of “liberal imperialism” for seeking to impose an autonomous way of life on groups that do not value it. Barry’s criticism of Kymlicka is inaccurate, however, for Kymlicka is only defending the equal right to liberty that Barry also defends. “Autonomy” in Kymlicka’s theory is not a “way of life” but the right to change one’s way of life. It is a liberal principle, and Barry should not oppose it. For Barry, liberalism is universalistic. Nobody, anywhere in the world, should be denied protection against injustice and oppression.

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However, although liberalism is universalistic in principle, the question of intervention may be answered on pragmatic grounds. Barry strongly criticizes Kymlicka’s reluctance to endorse forceful intervention by liberal states in illiberal communities. Kevin Dwyer has argued, along much the same lines as Barry, that Kymlicka’s theory itself justifies state enforcement of gender equality in education against the will of recalcitrant cultural minorities, for minorities’ claims to recognition, self-respect, and equality can all be transferred to support a robust public policy of gender equality in education. Also, because his grounding value is autonomy, Kymlicka should be less concerned with the rights of minorities and more with the rights of children.42 However, insofar as the question of intervention is a matter for pragmatic judgment, the difference between Barry and Kymlicka may not be as great as Barry believes. Kymlicka’s judgment is informed by the persistent failure of liberal states in their policies toward aboriginal peoples and ethnic minorities, whereas Barry draws a sharper distinction between liberal principle and prudent practice. This distinction makes for clear thinking. There is, however, a reason of principle for caution about intervention that plays a role in Kymlicka’s thought.43 The agents of the liberal state who intervene in minority ways of life for the sake of liberal principles may be insensitive to the value of such ways of life to the members of the minority. They may be what Eamonn Callan calls “liberal Jacobins.”44 Barry might consider this argument to be merely pragmatic or covered by the principle of freedom of association. There is, however, an argument of principle that self-emancipation is, all other things being equal, better than liberation from outside. All things, of course, rarely are equal, but that is a pragmatic consideration. There are, therefore, principles and pragmatic considerations that may be invoked both for and against liberal intervention in the practices of illiberal groups. Tully argued that public recognition of the diverse cultures in society is necessary to the self-respect of the members of subordinate cultures, which is in turn necessary to liberal democracy. Barry objects to this argument because he believes that Tully is committed to the view that “culture” provides a moral justification for a social practice. Barry holds that the goodness and badness of cultural practices must be judged by criteria other than the mere fact that they are cultural practices. If this were not so, the Nazis could have justified their antiSemitism on the grounds that it was a well-established feature of German culture. No one, according to Barry, has the right to be respected solely on the basis of their culture because no one has a duty to respect culture as such. The only sort of respect for others required by

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liberal-democratic principles is the recognition that everyone is an equal citizen irrespective of their cultural commitments. However, Barry misses the main point of Tully’s case for the political recognition of subordinate cultures. This does not require us to respect cultures that do not deserve respect from a liberal point of view (although Tully does not, it is true, always make this clear). It requires us to acknowledge that certain cultures have been despised historically and that the failure to remedy the legacy of this history undermines liberal-democratic equality. Charles Taylor has pointed out that modernization, including liberalization, can be experienced by some cultural groups as “engulfment” and imperialist imposition. Cultural assertiveness can be an expression of dignity.45 This assertiveness may appear as the defense of conservative against liberal values, but in historical context it can also be a claim for equality against domination. Barry defends a rather ahistorical liberalism. Recognition theorists believe that actual liberalism has a historical record of oppression. The political recognition of minorities and aboriginal groups is an attempt to rectify unjust, historical domination. Unfortunately, neither Tully nor Taylor makes it clear that this call for cultural recognition rests on liberal principles. Barry’s liberalism has the virtues of clear and robust principles. What it lacks, and Tully provides, is empathy with subordinated cultures. Those who have been despised need (and have the right) to be respected not only as citizens but in order to be citizens. This entails public recognition of the cultures that constitute their identities, although this recognition must be conditioned by the requirements of liberal-democratic justice, for it is the latter that justifies the call for recognition. Barry accepts that cultural differences will persist because there will necessarily be differences of opinion about which is the best way to live, and there is no known method of resolving such disagreements. The human condition is, however, sufficiently uniform to claim plausibly that every society must achieve certain standards to provide a decent life for all its members. Moreover, the very fact of irresolvable disagreement over the nature of the good life, once we get beyond the basics, is itself a premise of the argument for liberal institutions, for, in the face of these disagreements, what we need is a fair way of adjudicating between the conflicting demands that the institutions give rise to. That is what liberal democracy offers. The case for liberal democracy rests on this combination of the universal nature of the “basics” and irreducible disagreement about the

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rest. Barry defends a version of universal human rights and is suspicious of, or downright hostile to, minority rights that go beyond or, worse, threaten to undermine human rights. Kymlicka argued that human rights were insufficient for justice and might sometimes aggravate injustice. We have seen, however, that his critique of human rights is weak, since human rights principles specify minimum standards and not a theory of distributive justice, and human rights must be limited for the sake of rights and other values. The difference between Kymlicka and Barry on minority rights is not as great as Barry suggests, because Kymlicka’s theory is motivated by liberal principles. Whether it is well designed to implement those principles depends in part on complex empirical considerations, especially about the consequences of intervention. Tully proposed intercultural dialogue in place of liberal constitutionalism, but defended the plausibility of his proposal by requiring that the dialogue meet liberal-democratic criteria. He too does not reject human rights—although he does not clearly affirm them—but appears to go further in defending minority rights. This appearance is, however, subverted by his concept of “strange multiplicity,” which calls into question the homogeneity of the minorities to which rights might be ascribed. Barry disputes Kymlicka’s claim that there is an emerging liberal consensus on minority rights.46 There is, however, more agreement than appears on the surface. Barry’s civic nationalism and liberalism may appear “imperialistic” and “monological” from Tully’s perspective, but they permit all cultural practices that are not illiberal and some illiberal practices in private groups that recognize a right of exit. Tully’s intercultural alternative cannot be very tolerant of illiberal practices, since its rationale is the condemnation of unjust domination. Kymlicka argues that civic nationalism without minority rights is unjust among cultural groups, but minority rights are intended to strengthen, not challenge, liberal-democratic justice. Barry concedes that there may be pragmatic arguments for minority rights, so even here the difference may not be great. There are two interrelated weaknesses in Barry’s otherwise strong argument for liberal democracy. The first is the underestimation of the impact of historical injustice on the distribution of “primary goods” in the present. The second is the importance of public respect for cultural groups as a requirement of equal citizenship. For these reasons a synthesis of these three theories may be both possible and desirable. None is quite right. Together they have most of the ingredients of the best available theory of liberal-democratic justice and minority rights.

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Conclusion The idea of minority rights is older than that of human rights, and emerged from the religious divisions of the Reformation, the development of the Westphalian state system, and the rise of religious toleration. It was, however, rooted in premodern communal ways of life. The idea of human rights expressed the emancipation of individuals from communal ties as well as the need to protect them from oppressive states. This liberal individualism was attacked both by conservative and socialist communitarians. History does not, however, leap with a single bound from premodern communitarianism to modern individualism. Liberalism always presupposed a nationalist framework. In the aftermath of World War I there was an attempt both to affirm the liberal principle of national self-determination and the rights of minorities. This attempt failed, and was exploited by Nazi Germany with terrible consequences that are well known. Consequently, when the United Nations sought to establish a new world order after World War II the idea of minority rights was discredited, and the liberal, individualist conception of human rights predominated. The idea of human rights proved hard to implement partly because violations of human rights were protected by the doctrine of state sovereignty and partly because the Cold War made the political implementation of human rights extremely difficult. However, problems of minorities persisted even in countries in which human rights were relatively well respected. The worldwide struggle against imperialism inspired movements of political and cultural protest by minorities and indigenous peoples in liberal-democratic societies. The political philosophy of liberal democracy was slow to recognize the problem. John Rawls’s theory of justice is paradigmatic of this failure. 47 Significantly, Kymlicka’s influential liberal theory of minority rights is based on revising Rawlsian liberalism by adding a cultural dimension.48 Tully appears to challenge liberalism more directly, but, on close inspection, his dialogical interculturalism is another formulation of multicultural liberalism. Barry reaffirms a quasi-Rawlsian liberalism with the depoliticization of culture. In so doing he is reaffirming Mrs. Roosevelt’s view that the effective implementation of human rights would be sufficient to protect the legitimate interests of minorities. The recent debate in political philosophy has advanced our understanding of the place of cultural minorities in liberal democracies. But it has suffered from an excessively polemical style. Tully, for example, attacks liberal constitutionalism but defends a form of liberal constitu-

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tionalism. Barry offers a critique of multiculturalism but defends liberal democracy partly on the ground that it provides a generous space for multiculturalism. What are the practical implications of the debate? To answer this question clearly, we have to make two second-order theoretical distinctions. The first is that between history and theory. The second is that between theory and practice. Barry believes that political theory is not a historical discipline, because history produces good and bad, and only an ahistorical theory can distinguish between the two. Kymlicka and Tully rely on history to show that liberal impartiality and civic nationalism are unjust unless rectified by minority rights or intercultural dialogue. The two apparently contradictory positions can be reconciled if we identify the level of abstraction at which they are properly applicable. At a certain, rather high level of abstraction Barry is right, and this is shown by Tully’s failure to produce criteria for his distinction between admissible and inadmissible dialogue. This would require precisely the kind of ahistorical theory that Barry defends. However, at a more concrete level the kind of historical facts to which Kymlicka and Tully appeal become morally relevant. Given, for example, that imperialism stands condemned as unjust at the bar of liberal justice, actual liberal societies have an obligation to rectify the legacies of imperialism. This may require some form of minority rights or intercultural dialogue. This leads to the distinction between theory and practice. Barry believes, on the basis of liberal-democratic principles, that Kymlicka concedes too much to illiberal minorities. He acknowledges, however, that there may be pragmatic limits to interventions by liberal states. Kymlicka and Tully believe that Barry’s form of liberal democracy ignores the realities of ethnocultural inequalities. It is not clear whether the difference between Barry and Kymlicka is one of principle or of practical judgment. There does appear to be a difference of principle between Barry’s impartialist, “monological” conception of justice and Tully’s dialogical conception. On close inspection, however, the difference is blurred and probably smaller than it seems. Barry’s theory has the considerable merit of clearly stating the principles of liberal democracy. Pragmatic judgment is by its nature less clear-cut. Some of the differences between Barry, on the one hand, and Kymlicka and Tully, on the other, lie on the boundary between theoretical principle and pragmatic judgment. This boundary is difficult to lay down very clearly. Liberal-democratic theory has of course never been uniform. Utilitarian liberals, for example, rejected the idea of natural rights, and Kantians reject utilitarianism. It is, therefore, not surprising that the

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question of multiculturalism and minority rights should produce different responses from liberal democrats. This is even less surprising when we recall that liberal democracy has historically, both in practice and in theory, taken culture for granted. The cultural critique of traditional liberal-democratic theory draws much of its force from the critique of imperialism. This is particularly apparent in the work of Tully. However, Tully himself indicates, and Barry emphasizes more strongly, that anti-imperialism can conceal oppression and injustice within cultural groups. The oppressed can themselves be oppressors. Barry argues robustly that the appeal to cultural autonomy without respect for human rights is incoherent and morally repulsive. In defending “differenceblind” liberal democracy, however, Barry underestimates precisely what Kymlicka and Tully emphasize: the imperialist ghost in the liberal-democratic machine. Contemporary liberal democracy can, and should reach out sympathetically to cultural minorities that have been historically oppressed without betraying its own principles. This is often difficult both in theory and in practice. In deciding exactly which rights, if any, minorities should have, theory can only lay down general guidelines and then hand over policymaking to practical judgment. Although the international law of human rights is confused, and political theory can clarify the principles that should underlie it, it is not mistaken to have moved into the field of minority rights with great caution. The protection of the rights of minorities does not require a lot of law. It requires clear principles, much goodwill, and considerable courage. It requires above all what philosophy has traditionally promised but, alas, rarely delivered: wisdom.

Notes 1. Thornberry, 1991: 136. 2. Ibid., part IV. 3. Phillips and Rosas, 1993. 4. Hornblower, 1993. 5. For the conventional view that classical Greece had no conception of rights, see MacIntyre, 1981. For a dissenting view see Miller, 1995. 6. Rousseau, 1972. 7. Locke, 1970. 8. Gutmann, 1994. 9. Kymlicka, 1995a: 23–24, 31, 108, 111, 129. 10. Kymlicka, 1998a. 11. Kymlicka, 1995a: 125.

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12. Kymlicka, 1989: 10–11, 89, 95; 1990: 203–211, 223–224, 228; 1995: 90–91. 13. Kymlicka, 1995a: 152. 14. Kymlicka, 1989, 1995. 15. Donnelly 1989: 143–160. 16. Kymlicka, 1995a: 4–5, 109. 17. Kymlicka, 1998a. 18. Kymlicka, 1995a: 82, 90, 92, 153, 215–216. 19. Kukathas, 1992a; 1992b. 20. Kymlicka, 1992. 21. Tully, 1995: 98, 197. 22. Ibid., 5–6. 23. Ibid., 5–6, 7, 15–16, 21, 24, 26, 83, 204–205. 24. Ibid., 6, 24—emphasis mine. 25. Ibid., 8, 26, 112, 183. 26. Ibid., 131. 27. Ibid., 10, 13, 14, 26–27, 184. 28. Ibid., 192. 29. Ibid., 29, 31–32, 202, 207–208. 30. Ibid., 34–35. 31. Ibid., 35, 40–41. 32. Ibid., 42–43, 55–56. 33. Ibid., 53. 34. Ibid., 142–144. 35. Ibid., 157, 164. 36. Ibid., 165–166, 188. 37. Ibid., 191. 38. Ibid., 186, 189–191. 39. Barry, 2000. This account is based largely on a draft text, which Brian Barry has kindly sent me. Since this is a draft text, I have confined my comments to its main arguments. 40. Barry, 1995. 41. Fein, 1979. 42. Dwyer, 1998: 117–119. 43. Kymlicka, 1989. 44. Callan, 1997: 23–24. 45. Taylor, 1997: 44. 46. Kymlicka, 1998b. 47. Rawls, 1992. 48. Kymlicka, 1989; 1995a.

3 Peasant Justice and Respect for Human Rights: Peru John S. Gitlitz Someone stole a cow from Mayahuasi, in the middle of the day. The patrol leaders found it in Tambo Bajo. How? We had heard rumors, “Be careful if so and so shows up with a cow.” The patrol interrogated the thief right there in Tambo Bajo, but he refused to confess, so they brought him here. Here too we questioned him, rather gently. But he just made jokes, wouldn’t admit a thing. So we passed him over to the peasants of Frutillo, to their leaders. They too investigated, again without force, but still he wouldn’t confess; just jokes. So they made him dig a hole: “In that hole you are going to die if you don’t confess.” He just laughed. They put him in the hole and began to fill it with rocks. When the stones reached the level of his shoulders, he began to cry, and he admitted that he had stolen the cow. But in the meantime his family had gone to the police. They came and took him away. His accomplice had worked it out with the judge. They wouldn’t even give back the cow; they said it was a stray and no one knew the owner. And the thief denied he had admitted anything. So that robbery was never resolved. The owner never got his cow back, and the thief went free.1 There was a thief who had stolen some radios. We discovered who it was while we were investigating a different robbery. The patrols had organized a commission that was searching house by house. Everyone—if they’re not guilty—accepts that and lets the patrols in. Well, we found the goods, hidden in a wall, covered over with paper. So the patrol detained the thief and brought him before an assembly of the whole community. In an assembly everyone participates, everybody votes. No leader can impose his will. There are different suggestions, we discuss, we vote. In this case they gave the thief a punishment: one week of community labor, helping build a sports field at the school, and one week of night-time patrols. They also gave him five lashes to make him confess, because at first he didn’t want to, even though we had all the proof we needed. Before he was punished, he had to swear

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before all the community, before the organization, that he would not steal again, under threat that next time his punishment would be much worse. And it worked; now he is a loyal member of the community.

*

T

*

*

o the peasants of the Peruvian Andes, deeply impoverished, long discriminated against, struggling to survive in a largely hostile world, what is the meaning of human rights? During the 1980s, beset by cattle rustling and thievery in general, and in the face of a judicial system that was at best overwhelmingly incompetent and at worst thoroughly corrupt, the peasants of the northern Peruvian department of Cajamarca organized a system of local patrols, or rondas, and began to administer justice on their own. By the middle of the decade they had created what was in essence a parallel and informal legal system resolving virtually every kind of local dispute, both civil and criminal. The peasants speak with pride of what they have accomplished. Yet, ronda justice, while often effective, quick, fair, and compassionate, echoed some of the abuses of the official system it sought to replace. The rondas detained and punished people, with no formal right to do so, and not infrequently coerced confessions. This in turn opened them to attack from their enemies, in particular the state’s judiciary itself. The result was the emergence of a discussion within the rondas—over what the patrols could and could not, or should or should not do, and, in particular, over the use of violence. It is a debate largely dictated by practical pressures: How to avoid repression? But it is one also posed in moral terms: What is proper? In this debate a discourse on human rights has gradually emerged. For much of the past thirty years, discussions of human rights have been caught up in the debate between universalists and relativists. As stated in Chapter 1 of this book, there is an argument between the advocates of universal rights, who contend that certain rights inhere in all individuals regardless of cultural context, and the cultural relativists, who argue that values are culturally specific and that individualism, freedom of choice, or legal equality are alien and often meaningless. In recent years the debate has been complicated by the demand for recognition of collective minority rights, in Latin America most often for “indigenous rights.” As Rodolfo Stavenhagen points out, in a context in which indigenous populations have for centuries been exploited, “basic human rights cannot be fully enjoyed, exercised or protected . . . if the ‘peripheral’ rights specific to the groups in question cannot simul-

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taneously be enjoyed, exercised and protected.” 2 This demand for minority rights poses the debate over cultural relativism in a new way. Where local indigenous groups are granted limited autonomy to administer their own affairs according to their own values, what happens when their behavior conflicts with national or international norms? Stated at such levels of generality the debate is seldom constructive. That the origins of the political concept of “human rights” lie in the West and that Western nations have manipulated the concept in selfserving ways is unquestionable. Nor can anyone deny that numerous states—not only non-Western—have sought to mask and legitimate abusive treatment of their citizens behind a discourse of relativism. As Ann-Belinda Preis comments, “At this metageneral level of analysis, almost all arguments become plausible, or equally true or false. One glosses over a multitude of cultural particularities. . . . When the debate . . . is so radically removed from the cultural ‘realities’ it alleges to speak about, it hardly creates anything but its own impasse.”3 Yet the idea of human rights has caught on. Whatever its specific content, the notion that there exists something called human rights has become part of political debate of peoples around the world. “In several, formerly ‘remote’ areas of the world, different human rights discourses have now become a vehicle for the articulation of a wide variety of concerns of different people at different levels of society. . . . Human rights have become ‘universalized’ as values subject to interpretation, negotiation, and accommodation.”4 In this chapter I will examine one case—by using administration of justice by the peasant patrols of northern Peru—of how a discourse on human rights has become a small but real part of discussion among peasants themselves. This is a discussion in which the idea of individual human rights has acquired meaning precisely because it affects the peasants’ immediate lives. I begin with a brief history of the peasant patrols, then outline their administration of justice and some of the problems it has provoked, and conclude with an overview of the debate, still inconclusive, that this has stimulated among the peasants.

A Brief History of the Rondas The rondas were born because in Chota, near the road from Bambamarca to Tacabamba, there were robberies every night. We would have to remain awake the entire night; we had to bring our cattle into our homes. From my grandparents, first the thieves stole two

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cows, then three sheep, then they broke into the house and even took their pots and pans. Well, then it occurred to me that the only way to defend ourselves was to organize. So I said to the people: “I think we should organize patrols. While some sleep, others will guard our possessions.” (Régulo Oblitas, founder of the first ronda, Cuyumalca, Chota, Peru)

The rondas campesinas emerged as an organized communal response to cattle rustling and petty thievery, as “a collective effort to protect individual property.”5 In the department of Cajamarca cattle rustling, which had reached epidemic proportions, was a highly organized profession, involving merchants, Mafia-like gangs, and local agents. The state offered little or no protection; police seldom intervened, courts seldom prosecuted. In response, the peasants of the hamlet of Cuyumalca in December 1976 decided to organize nocturnal patrols to protect their animals and other possessions. At first, fearful of rustler reprisals or state repression, few communities followed Cuyumalca’s example. However, by 1978 the success of the first rondas had become obvious—in Cuyumalca rustling was controlled and petty thievery greatly reduced, while the rondas suffered little repression. By the end of 1980 almost every community in central Cajamarca had organized rondas, and in each of the provinces federations had been formed. By the mid-1980s, the rondas had spread across most of the northern mountains of Peru. The core of the patrols were the grupo de ronda, the asamblea, and the comité de ronda. All adult males participated in the grupos, units of five to ten peasants who in weekly rotation patrolled fields and trails from evening to sunrise, stopping anyone who appeared suspicious. Policy was made by the asamblea, a town meeting in which the entire community participated. To coordinate among grupos and manage the day-to-day affairs of the ronda, the asamblea elected a comité de ronda, with a president and directorate. When thefts occurred the comité would organize investigations, coordinate via formal notification with the rondas of neighboring communities, and bring suspects before the asamblea. Participation in both grupos and the asamblea was obligatory, and discipline was strict. Peasants who failed to meet their responsibilities were brought before the assembly and punished with fines, additional rotations, or even whippings. Initially the rondas handed thieves over to judicial authorities. However, seldom did the authorities—police, government lawyers, or judges—prosecute. It was far more common to see the rustlers wandering freely after a few days’ detention, a fact that the peasants perceived

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as evidence of official corruption. The result was a series of dramatic confrontations with both rustlers and state authorities.6 The decisive event came in 1980, when ronderos from dozens of communities in an assembly reputedly attended by more than 5,000 peasants decided to execute a half-dozen rustlers. The 1980 lynchings established the rondas as a force to be respected and feared. But if the rondas could punish thieves, they could deal with other problems too. By the mid-1980s the structures the peasants had developed were being used to settle a range of problems, both criminal and civil. These included the classic conflicts that divide peasants (e.g., land ownership, water rights, contracts, debts, inheritances), public order problems (from petty thievery to public drunkenness to interfamily feuds), family conflicts (e.g., adultery, wife beating, child support), and a variety of other difficulties. Earlier most problems would have been taken to the courts, where the cases would have dragged on for years, seldom being solved to the satisfaction of anyone, and then only at great cost. Using the ronda was quicker, cheaper, and, in the eyes of most, far more just. Thus by the mid-1980s the rondas had assumed the function of what Nora Bonifaz calls “maintaining order.”7 With rustling controlled, “peasant justice” became the core activity of the rondas.8 The structure of peasant justice was everywhere similar. Anyone could bring a complaint before the ronda simply by approaching a member of the comité. Where necessary the comité would carry out an investigation: examining evidence, questioning witnesses, detaining and interrogating suspects. If required, it would carry out house-to-house searches. Sometimes suspects would be passed from ronda group to ronda group, or even from community to community, each interrogating in turn, looking for contradictions. Whenever possible, the ronda leadership would try to mediate among disputing parties. If that failed, the ronda would bring the case before an assembly. The comité would present the facts as it had determined them, all parties to the dispute would be given a chance to speak, and the community as a whole would decide whether suspects were guilty and how they should be punished. The process would be carefully recorded in the ronda’s Actas or minute book. Sanctions were generally relatively mild. They usually included three elements: a public, signed act of contrition including a promise not to err anew; a punishment, such as additional nights of patrolling and days working for the community, and frequently a light beating; and some form of compensation to the aggrieved parties and the community. Ronderos argue that the purpose was not to so much to punish

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the culprits as to encourage them to change their behavior and reintegrate them into the community. A litany many repeat with pride tells of former thieves who are now valued ronderos. The following personal account gives some sense of rondero justice: Thirteen hats were stolen from Paulino Espinoza’s house, right in the town center. He notified the sector delegate. At first there were no clues, no suspects. The case was paralyzed. But about a week later there was another problem, rumors of a married woman who had been having an affair—they had been seen by a certain Paco. Anyway, the señora accused Paco of spreading malicious gossip. So the ronda captured Paco, and Paco told her to her face that he had seen her with a man. She denied it, and nobody knew if it was true. But it was necessary to punish Paco for spreading stories, and besides which, we all knew that he was a petty thief, though we had never had proof. In other words, the señora’s accusation was a useful pretext. So the ronda took him aside and began to whip him to get him to confess what he had robbed, and he began to talk. He admitted that he had stolen the hats, but he said that he had done it at the request of “El Chino.” El Chino’s real name was Wilmer. He was the son of Eliseo Carajulca, the witch, and a very dangerous man. So one case led to the other. The case now went to the ronda committee. The directors asked to read Paco’s signed statement; they ordered that El Chino be detained. He was captured and taken that night to be interrogated. Everyone came. We were all afraid of Wilmer; once he hated you he always looked for a way to get even. Wilmer and Paco were put face to face. Paco told him, “You made me steal.” Wilmer denied it. The ronderos whipped the suspects; still El Chino denied everything, but Paco insisted he had told the truth. And we reached the conclusion that they were guilty. The problem was how to punish them. The ronderos tied up El Chino; they took him some 200 meters up the trail, to where the river forms a kind of lagoon. They took both of them, whipping them, and threw them in the water. Twenty minutes. Always telling them to change their ways. Paco said he was sorry, but El Chino was too macho. After that they were brought back to the assembly; the secretary read the record of everything they had said, that Paco had begged forgiveness but that El Chino had been stubborn, and they were ordered to return the hats or to pay for them. Then they were given a punishment: one night of patrols and a day of communal labor. After that Paco became a good rondero. But El Chino was always a problem.

By the mid-1980s the rondas were resolving vast numbers of conflicts. The Federación Provincial de Rondas Campesinas de Cajamarca reported that between 1987 and 1989 its member rondas had adjudicat-

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ed over 12,000 disputes: 600 cases of rustling; 500 other robberies; 280 family disputes; 2,900 cases of inappropriate public behavior; 3,500 land and water problems; 400 disputes over trails; 1,600 complaints concerning the nonfulfillment of contracts; and 400 cases of witchcraft.9 Even if taken with a significant grain of salt, the numbers are enormous. But, was it justice? What kind of normative framework—Peruvian law/communal values—underlay its administration? Was it simply arbitrary vigilantism? The vast majority of the peasants with whom I have spoken refer to peasant justice with great pride, insisting that it is impartial, fair, and compassionate. Mistakes may have been made, perhaps inevitably, but they insist these were few. Moreover, they maintain, peasant justice must be evaluated in relation to the official court system, in comparison with which it is quicker, cheaper, far more effective, and probably more just. For most of the peasants, not only was it real justice but it was the only justice available. Yet clearly it was not a “legal” process. The Peruvian constitution expressly forbids the private administration of justice, although some reference is made to the right of communities to practice their “customary law.” Nor did it follow any codified “legal” norms. Communities made decisions on the basis of their sense of what is right rather than any explicit official laws. Judgments were often based on reputation and past behavior rather than evidence of a particular crime. Like any system of justice by popular opinion, it could be manipulated and abused (although whether it was, is an empirical question). Legal purists are often horrified by justice by popular assembly, fearing its arbitrariness and partiality. Indeed, many of the local judges and prosecutors I have interviewed have recounted lengthy lists of ronda abuses, both real and imagined. Defenders of peasant justice, in contrast, insist that it is based on well-understood, albeit implicit, communal norms, so-called customary law (just as they also recount an even more lengthy list of abuses, both real and imagined, by the police and official courts). However, there is a more subtle interpretation. It has an essentially dynamic character, but that does not imply any extreme arbitrary use or the capricious creation of momentary norms. . . . What is the justice pursued? In the first place, it is mediation of interests, putting an end to conflicts that have broken the peace of the community. The objective is not to isolate or eliminate the individual, but . . . to reintegrate him into the social life of the group. Sanctions are determined according to the conditions and ability of the person to fulfill the punishment. The purpose of sanctions is not restitution to

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the aggrieved party, but rather the good of the community as a whole. Reincidence is punished severely. The more a problem has repercussions on communal life, the more serious is the sanction.10

Ronderos themselves make similar points: When there is a problem between ronderos, first we air everything in an assembly, then we make them embrace, they eat from the same plate, and they ask forgiveness of each other. What is important, is that the punishment is a public one. It has a moral force. And that is why in general people correct their behavior. That’s not the way it is with official justice. There they put you in a cell, where no one can see you, they accept money, and then they let you go.

Only if we understand peasant justice in these terms can we grasp the rondas’ use of force. In reviewing a number of cases, the overall mildness of sanctions was impressive. Seldom were the peasants punished severely, even those accused of serious theft. Sanctions, which were always public, usually involved no more than a few nights of patrols, a few days of communal labor, and perhaps—but not always—a light beating. It often seemed that the guiding principle was less some abstract concept of justice than accommodation, finding an agreement with which all could live. Just as the accused were asked to confess in public, their accusers were asked to forgive. Incarceration, which would drag out conflicts and hurt families, was never used. Great care was taken to avoid giving rise to feuds. However, on occasion sanctions could be severe. For example, I was told of a case in early 1995 of a professional rustler, the head of a complex network, who had been sanctioned previously a number of times. He was brought before an assembly of sixteen communities that decided that he be beaten two times by each community—a total of thirty-two whippings—and then be given a month of nightly patrols accompanied by daily communal labor, a punishment of considerable physical severity. His case, however, was an exception, for in continuing to steal he had defied the authority of the ronda. What was being punished was not the crime but the defiance. Interrogations in particular often involve the use of force, though severe force is uncommon and death most unusual. However, whippings, dunkings in lagoons, long marches (sometimes barefoot), physical exercise, and public humiliation are all used to extract information.

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Administering justice in these terms may be, as the peasants claim, fairer, quicker, more efficient, and perhaps even more just than the formal Peruvian justice system, but it is not without costs. It brings the rondas into a permanent tension with the judiciary, rooted in legal issues, corruption, professional jealousy, and the peasants’ use of force. Peruvian law gives the rondas no clear legal right to administer justice. In doing so the rondas are usurping functions reserved to the judicial power. In detaining suspects they are guilty of crimes against individual liberty; and in using physical force during interrogation they are guilty of assault. Those whom the rondas would punish are quick to take advantage of the rondas’ situation, and there have been dozens if not hundreds of cases in which peasants sanctioned by the rondas have denounced them to the authorities. In Bambamarca, for example, the provincial federation, the Central Unica de Rondas Campesinas, estimated that between 1990 and 1995 more than 140 ronderos had faced charges. For those so accused, cases can drag on for years and the cost in lawyers’ fees, travel, and perhaps bribes can be enormous. The following case, though exceptional in its complexity, gives a sense of the problem. In October 1992, an elderly woman from the hamlet of Huangamarca was riding in a dense fog across a mountain pass in the neighboring village of Huilcate. Suddenly she lost control of her mule, and it plunged into the underbrush and reared. In her panic she thought she saw a cadaver. Upon arriving at Huangamarca, she informed the ronda, which requested permission to investigate from the ronda of Huilcate. The two rondas searched the pass but found nothing. The case, however, did not end there. Someone informed the police in the provincial capital of Bambamarca. A week later, the police sent notification to the rondas in strong language demanding the rondas investigate further, implying that they were covering up a crime. The rondas again organized an investigation. This time they detained a suspect, Francisco Díaz. There was nothing specific linking him to the crime (it was not even clear that a crime had occurred), but the police were insisting in threatening tones that the rondas do something, and Díaz was thoroughly disliked, known in the communities as a bully and troublemaker. Five years before he had been implicated in another murder, but he had fled the area for a time and was never punished. Díaz was detained for less than a week, but during that time he was brought before two assemblies, each with as many as 800 peasants in attendance, and taken from sector to sector and interrogated, finally confessing. He later alleged to the police (probably with police encouragement) that he had been brutally tortured, beaten and kicked in the

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groin and head, and threatened with execution by ten masked ronderos whom he could not identify. The rondas deny they used physical force. By now, however, Díaz’s family had notified the police. who came to rescue the prisoner and arrest the ronderos. Charges of usurpation, assault, and kidnapping were brought against twenty-eight peasants. Their cases, appealed to the departmental court, dragged on for more than 2 years. In the end for some the charges were dropped, and others received suspended sentences The ronderos see in cases like these monumental hypocrisy: criminals go free, while they are accused, charged, and even imprisoned for administering justice. Few peasants believe they have broken the law, at least any reasonable law. They do not perceive detaining a suspect as kidnapping. If they use a bit of force, so do the police. Virtually all see the above as major problems facing their organization. Indeed, by the early 1990s, many peasants felt that the rondas had entered into a crisis. A number of factors had come together to weaken the organization, but in the peasants’ eyes by far the most important were the repeated accusations. As a result, a discussion broke out within the rondas, at both the level of the federations and at the grass roots, over how to respond. Central to the discussion was a debate over peasant justice and the propriety of violence.

Human Rights and the Rondas Before the 1980s human rights did not figure prominently in Peruvian political discourse. Historically, the political opposition had focused more on economic needs than political rights, formulating demands in a rhetoric that emphasized class (and even “armed”) struggle rather than democracy. Beginning in the 1970s, however, two developments placed human rights on the political agenda. The first was the emergence of a progressive movement within the Catholic Church. In his book, The Theology of Liberation, Gustavo Gutierrez called on the church to commit itself to accompanying the poor, those “nonpersons” whose humanity is barely acknowledged, in their struggles for change.11 In hundreds of parishes across rural Peru, priests and sisters began efforts to reach out to the peasantry, training lay catechists, organizing Bible reflection groups, and preaching a theology of human dignity and grassroots empowerment. In doing so they began to engage the poor in a dialogue over dignity and rights. The other factor was the explosion of political violence that erupted

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in the 1980s—the Shining Path and the Tupac Amaru Revolutionary Movement uprisings, and the brutal, indiscriminate state response. Caught between guerrilla accusations that they were lackeys of capitalism and the state’s suspicion they were front groups for subversion, significant segments of the Marxist left began to reevaluate the importance, and assume the discourse, of human rights. A second result of subversion and the state’s “dirty war” was the emergence of a vibrant human rights network, one that actively denounced both guerrilla and state abuses and struggled to place human rights on the Peruvian political agenda. For many at the grass roots who were besieged by the violence the new human rights organizations became important allies. Thus by the late 1980s the idea of “human rights” was part of the political ambience, even in those regions like the ronda provinces of Cajamarca where neither guerrilla nor state violence were major problems. It was in this atmosphere that the discussion in the rondas over peasant justice took place. External actors played significant roles. The Marxist left was perhaps the least important, even though two parties in particular, Patria Roja and PUM, had developed close ties to the rondas since the very beginning. Both parties had contributed to the early organization of the patrols, and through the years had provided advice, political protection, and support; indeed, many ronderos were militants on the left. But by the late 1980s the left was mired in its own crisis, caught in its struggle with the Shining Path for political space, encumbered by its traditional language of confrontation, and suffering a crisis of identity following the collapse of Soviet communism. While still a valuable ally to the peasants, the left was unable to articulate an unambiguous position on rights. The progressive faction in the Catholic Church played a far more significant role. Many of the actively religious felt a deep commitment to the rondas that was rooted in a theology of human dignity, empowerment, and “accompaniment.” Priests, sisters, and bishops worked hard, albeit not always publicly, to support the ronda organization, providing counsel, protection, and resources. Lay catechists had figured prominently among the original ronda founders and later leaders. Yet many of these pastoral workers were from early on quietly critical of what they saw as the rondas’ excesses, and they worked actively to communicate that message to the peasants. In repeated seminars and weekly encounters, catechists were encouraged to reflect on the idea of human rights, understood as human dignity and responsibility, and to encourage Christian and ronda groups in their communities to do the same. The church also organized courses for ronda leaders. In Chota, the bishop

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began in the early 1990s to convene annual retreats of ronda leaders and catechists to discuss problems the organization faced. A repeated theme was that of violence and the accusations. The following, from a catechist who became a ronda leader, captures the importance of the church’s activity. The language of human rights entered around 1988, through the influence of the church and the catechists. I have been to three courses, one in Chota for catechists, another in Cajamarca for ronderos and state officials, and then another in Chota for catechists. In them I learned what human rights are and why they are important. I studied the constitution and the rights that it guarantees, the right to life, the right not to be mistreated, the right not to be held incommunicado, the rights of children, etc. From those courses I carried the message of rights to the bases, in assemblies, and in conversations, when we reached agreements solving disputes. At first the people wouldn’t listen because there was a contradiction with what they did, but gradually we have won them over, in part because they saw that violating rights has brought them problems, in part because they have begun to understand.

By the late 1980s national human rights groups were also becoming influential. They too felt a deep commitment to the rondas, one rooted in a belief in “peasant rights” and citizenship. Like the church, they offered advice, education, protection, and, in particular, legal counsel. However, in two ways their message was subtly different from that of the church. First, it was rooted more explicitly in international human rights norms, not simply in grassroots empowerment. Second, the human rights groups were more aware of the tension between local autonomy and individual rights, hence they were more interested in finding ways to mesh the two. The human rights groups went beyond simply offering a general education on rights in pamphlets, seminars, and radio programs. They also organized retreats that brought together judges and prosecutors with ronderos to discuss peasant and state justice, they sponsored courses to train justices of the peace, and they offered counsel on how to investigate without using violence. At least some listened. Human rights! At first the idea didn’t catch on at the grass roots, but it did in the federation, and we tried to push it, so that the ronderos would know the laws. In Huangamarca we organized four courses, and in all the other hamlets. To make the rondas understand that they should not commit errors.

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It was in this atmosphere—in which economic crisis and political violence had placed human rights on the national agenda, in which the peasants felt that their organization was in crisis (in part because of the repeated legal accusations), and in which the church, national human rights groups, and, less clearly, the left were trying to protect the organization and at the same time influence its behavior—that the discussion on peasant justice took place. It was never a formal discussion, a debate that reached a clear conclusion, but rather an ever present theme whenever ronderos gathered to discuss their problems. The discussion has centered on basically four positions, pulling in opposite directions. On the one hand, (1) the peasants feel that if the rondas do not exercise force in administering justice, they will be unable to establish respect and impose ronda authority. Peasant justice is, after all, informal justice. It is not backed by the authority and power of the state; the rondas have no legal right to adjudicate disputes; and they have no legal right to demand compliance. Why should rustlers respect them? Why should those who might fear the decisions of communal assemblies not appeal to the courts or the police instead? (2) Justice demands interrogation, and, in the perception of many of the peasants, successful interrogation demands intimidation. How else can they make the criminals confess? After all, the police use force to extract confessions, and they are never punished. Why should the rondas be punished for doing what the police do? On the other hand, (3) the constant accusations have weakened the rondas, and their use of force exposes the rondas to criminal charges. The cost of peasant justice, for the rondas and their leaders, is too high. And (4) the core of the rondas’ claim to legitimacy is that they stand for justice, and justice involves respect for human rights. How can the peasants justify doing precisely what they criticize the state for doing? The discussion has not been conclusive; no consensus has been achieved. In each community there are some who, either from fear of legal sanctions or conviction, argue for restraint, just as there are others who see the authority of the rondas at stake. In the assemblies one finds a bit of everything. There is always someone who gets excited and yells, “Let’s really give it to him hard.” But there are always others who are more moderate, young people who say there should be other ways. Sometimes the hotheads sway the people. Sometimes we catechists have to enter the debate to calm things down.

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Some peasants express a clear commitment: Our community has always been more moderate. Perhaps because we were close to the church. . . . Personally I’ve never participated in a dunking; maybe that’s because I did not like to see such things.

Others are more ambivalent: We hardly use any force anymore. Now we know about human rights. But the problem is that if we don’t use force, the crooks won’t tell us what they know.

The provincial federation of Bambamarca, the Central, has tried to straddle the fence: We have recommended from the Central that the rondas shouldn’t give more than ten lashes at the most. That was an agreement reached in a provincial assembly. Ten don’t hurt that much; its not like before. And the doctor won’t say it’s much either. Of course, it varies with the crime. And we tell the bases that they should always consider other sanctions too.

When asked, almost everyone today denies that force is being used: “perhaps elsewhere but certainly not in our hamlet.” However, when pressed, most admit that an occasional whipping still occurs, although they insist, probably truthfully, much less than in earlier years. This is so at least in part because the rondas have become more skilled at investigation. Through advice and training from human rights lawyers and through their own experience, they have learned that coercion is not the only way to obtain information and they have developed increasingly sophisticated techniques. The rondas still investigate, but they use far less physical force. For example, now we will take into account antecedents. Then we will find out what the suspect was doing at the time of the problem. Then we will see if there are other witnesses. And then we will question. Most people will talk; they are afraid. But some are pretty sly and won’t. Then we have different groups question them to see if they make mistakes. We will look for inconsistencies. Last we apply pressure threatening force. Usually that is more than enough. If the crime is really serious and the suspect resists, we may use a little force, a few lashes, but not many anymore.

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But if it is true that force has diminished significantly, not all see that decrease as positive. Some even see it as the cause of a decline in the organization. (Why do people think the ronda is in crisis?) Because now we don’t punish. Now we don’t have that image of strength. When I was younger I really liked punishing. But I’ve learned that it brings us problems. (But can’t you administer justice, earn respect, without punishing?) Yes, but less. That’s why the people don’t believe in it quite as much as they used to.

The discussion continues.

Conclusion In this chapter I have posed a relatively narrow question: Does the idea of “individual human rights” have any meaning to the peasant ronderos of Peru? It is my belief that, increasingly, it does. That is not because a commitment to individual rights is part of the cultural tradition of rural communities. Peasants have always spoken of their oppression and in their struggles have referred to “rights,” but such rights were conceived more in communal than individual terms. But, as the rondas have tried to carve out a space for relative communal autonomy, as they have tried to administer justice where the state has failed, and as in that process they have encountered enemies as well as allies in a nation wracked by economic crisis and political violence, not only have they become acquainted with the idea of individual rights, but the idea has also acquired meaning to them. That is not to say that the idea of human rights has carried the day, or that there is a consensus or deep conviction. In the discussions over ronda justice, human rights are but one value among many. Some peasants are more convinced than others; some pay lip service to the idea more out of fear than conviction. Still, the idea is present, and it has acquired legitimacy not because it has been imposed from outside, but because in the daily struggles to define the rondas, it is relevant. No cultural world, even that of a peasant village, is homogeneous, static, or coherent. There are always multiple interests and values, often in conflict and always evolving. If the peasants of northern Peru have incorporated into their worldview, however incompletely, the idea of

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individual rights, it is because such rights “give meaning to, and are attributed with meaning in, the ongoing life experiences and dilemmas of men and women.” It is in this sense, that human rights for the rondas “have become culture . . . they have become universalized.”12

Notes 1. Most of the quotations in this chapter are from peasant ronderos, many of them leaders, interviewed between 1995 and 1998. At the request of many of the interviewees, I have chosen not to identify them. 2. Stavenhagen, 1966: 148. 3. Preis, 1966: 293. 4. Ibid., 290. 5. The phrase “a collective effort to protect individual property” comes from Mundaca, 1992: 459–485. For a discussion of the conditions that gave rise to the rondas, see Gitlitz and Rojas, 1982/83: 163–197; Estela, 1987; Huamaní, Moscoso, and Urteaga, 1988: 63–86; or Starn, 1991. 6. For a brief description of these and other mobilizations see Ramírez, 1986: 12–15. 7. Bonifaz, n.d. 8. For interesting introductions to the theme of peasant justice see Bonifaz, n.d.; Huamaní, Moscoso, and Urteaga, 1988: 63–86; Ruiz, 1992; Revilla and Price, 1992. 9. Quoted in Revilla and Price, 1992: 193. 10. Huamaní, Moscoso, and Urteaga: 74, 78. 11. Gutierrez, 1971. 12. Preis, 1966: 289, 290.

4 Women’s Rights in Islam: Revisiting Quranic Rights Zehra F. Arat

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hile the concept of human rights has been expanding and more rights have been articulated in international covenants and documents over the years, the extent to which these rights are actually enjoyed by people has been less than satisfactory. The universality of rights has been repudiated by significant numbers; several states have failed to sign or ratify international documents on human rights, and others have been violating the very rights that they have recognized on paper. Women constitute a group whose rights are systematically violated around the world. Among all women, the ordeal of Muslim women has been most challenging and is frequently addressed not only by human rights advocates and feminists, both within and outside Muslim-populated countries, but also by the Orientalist critics of Islamic culture and states. Although the subordination and oppression of Muslim women cannot be explained by religion alone,1 many, including those who reject religious reductionism, have questioned the compatibility of Islamic philosophy and law with the International Bill of Human Rights in general, and with the principle of gender equality in particular. The common response to these criticisms has been either defiance or defensiveness. Some Islamist groups agree with the critics about the incompatibility and reject the Universal Declaration of Human Rights and all human rights conventions of the United Nations as products of Western/ Christian culture2 and as tools of Western imperialism.3 Various authoritarian governments, which are usually supported by the United States and other Western states, along with opposition groups, which are often referred to as Islamic or Muslim “fundamentalists,” take this position not only as a response to criticisms but also to resist the demands of 69

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human rights activists. Progressive Muslims tend to take the defensive course and point out that Islam recognized various rights of women, such as obtaining a divorce or owning property, as early as the seventh century, when women in the West had no such rights. Glorifying the past, especially the early days of pristine Islam under the rule of the Prophet Mohammad, they attribute the prevailing restrictions imposed upon Muslim women to the degeneration of leadership, misinterpretation of religious texts by the late medieval and modern clergy, and incorporation of patriarchal norms and practices of non-Muslims into Islam. While some in this group assign a superiority to the Islamic civilization,4 others, such as Abdullahi An-Na’im, call for intercultural discussions and reviving the authentic human rights norms of Islam that are compatible with internationally recognized human rights. The progressive argument can enjoy some historical validation of its claim about the deterioration in the status of women in Islamic societies, but it usually negates the unequal treatment of men and women in the sacred texts. In this chapter, I contend that Islam, in line with its Judeo-Christian heritage, as well as the culture of the pre-Islamic pagan Arabia, was a patriarchal religion from the beginning. Although attaining social justice was a significant concern, the religion introduced by the Prophet Mohammad attempted to eliminate neither class stratification nor gender inequalities. Men and women were assigned equality in terms of their obligations to God, but their rights and obligations vis-àvis each other remained unequal. Nevertheless, the recognition of spiritual equality between the sexes can be used by Muslim feminists to overcome social inequalities. In other words, the question should not be whether Islam is compatible with the rights recognized in international agreements and covenants, or with the principle of sexual equality, but how the contradictions within the belief system should be sorted out to liberate women.

International Human Rights Culture and Regime In an effort to sustain order and stability, societies regulate human behavior by specifying the responsibilities of people toward each other. Thus in all cultures, past and present, we can identify some rights and duties assigned to individuals and groups. World War II, which caused great destruction and massive human atrocities, increased concerns about maintaining peace in the aftermath of the war and gave impetus to some internationalist notions. The estab-

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lishment of the United Nations devised a new international regime. The UN Charter (1945) and the Universal Declaration of Human Rights (1948) also engendered an international culture of human rights that subscribed to the notion that individuals hold certain rights by virtue of being human. The rights spelled out in these documents evolved over time and led to new declarations, conventions, and covenants. There are three important interrelated points that should be noted about this progress. First, the scope of human rights expands as a response to changing social conditions and technological developments.5 Second, the development of international human rights usually follows a reactive pattern. That is, the recognition of each additional right is largely a result of realization that certain social conditions and human acts either violate human dignity or establish a real threat to it. Finally, since it is the prevailing culture that allows the violation of human dignity, the recognition of a right emerges as a critique of certain aspects of the culture, at least implicitly. In other words, the advocacy of each right means demanding a change in the culture. Thus human rights are closely linked to culture, and the expansion, full recognition, and protection of rights demands the transformation of cultural norms and their material foundations. Consequently compliance with international human rights requires a moral change and political commitment; it is not simply participation in a limited political or legal program, as argued by some students of human rights.6 In fact, the awareness of this demand is what leads those who occupy positions of power and privilege to invoke cultural relativism, the desirability of stability instead of recognizing human rights, or the need to assign priority to one type of right over another. Using these excuses, governments refrain from being party to some conventions, ratify others with reservations, or continue to violate the rights of their citizens and other people despite their “formal” legal commitments (as party to conventions) to the protection of human rights.7 As a pretext for justifying human rights violations, warnings against the danger of abusing cultural relativity have been frequently issued by students of human rights. Rhoda Howard provides a long list of culturally sanctioned violations of human rights from all around the world and reiterates the concern that “[a] cultural relativist position . . . can easily become a philosophical stance that denies the universality of human rights.”8 However, appeals to cultural relativism, especially when combined with charges of cultural imperialism, leave the international community of human rights with a dilemma: How can cultural rights and self-determination of people be recognized while several aspects of those very

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cultures systematically violate a number of human rights? This dilemma is particularly important for women’s rights. Since all contemporary societies are patriarchies, promoting women’s rights inevitably conflicts with patriarchal “cultural” values and structures everywhere. Thus, following a strict rule of cultural relativity would keep women’s rights “alien” virtually to all societies. Any effort to solve this dilemma not only necessitates analyzing cultures but also requires the cognizance of “culture” as a system that is neither static nor coherent. All cultural systems include subcultures, but, most important, even the “mainstream” embodies contradictions. Thus, international human rights can be both pertinent and irrelevant to specific cultures at the same time. Aware of the complexities, inconsistencies, and ambiguities, cultural analysts of human rights (both universalists and cultural relativists) usually check to see whether individual components of international human rights (e.g., freedom of speech, the right to organize, the right to employment) have corresponding rights, duties, or some supportive elements in national, supranational, or local cultures.9 This approach, however, is likely to encourage the selective treatment of human rights; one can pick and choose the rights that seem to fit the culture and reject those that are seen as irrelevant or incompatible. As an alternative to focusing on specific rights, I suggest we examine cultures by focusing on the principles of international human rights—universality, indivisibility, and solidarity.10 We should look particularly at the conditions relevant to the principle of universality and identify where and how cultures observe that principle. Since human rights are about human dignity, universality means establishing the dignity of all and inevitably calls for equal treatment for all. Thus, cultures should be examined to identify their contradictions in regard to the principle of equality. I contend that, once revealed, the “egalitarian” aspects of cultures can be highlighted and linked to international human rights in terms of principles.

Islamic Culture: Some Vital Aspects In discussing Islamic culture, the first question is “which one?” Followed by nearly a billion people around the world, Islam is not a unified or monolithic religion. Although there have been some common rites, rituals, values, and beliefs followed by all Muslims living in different socioeconomic conditions, subject to different types of political

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rule, and interacting with various non-Muslim communities in varying degrees, the cultures created and experienced by Muslims have varied both spatially and historically.11 Since all Muslim-populated states today are undeniably patriarchal and impose various forms and degrees of restrictions on their female population,12 some advocates of women’s rights seek the solution in removing the layers of foreign influence and distortion of Islam that have accumulated over the centuries and in reviving the essence of egalitarian Islam, as introduced and practiced by Mohammad. Referring to the Quran (the word of God), the sayings of the Prophet (hadith) and the deeds attributed to the Prophet (sunna) in the tradition, they present a picture of an early Islam that is definitely more permissive and egalitarian in the way it treated women.13 Muslim women of Asr al-Saada (the period of the lifetime of the Prophet Mohammad, literally “the period of happiness/prosperity”) enjoyed several rights, some of which (e.g., initiating divorce, remarrying, child custody, and inheriting, holding, and managing property) are codified in the Quran. The tradition follows that women could earn income through their own labor, pray in mosques along with men, participate in battles, enjoy freedom of movement without seeking the company of a male kin, and interact and have conversation with other men. The tradition also refers to some exceptional women who even led men in prayers, battles, or political discussion. Mohammad’s youngest wife, Aishah, was one of them, and like her, several women continued to play significant roles and hold important positions, even years after Mohammad’s death.14 While these historical references are significant as evidence that can be used in arguing against the current interpretations that put severe restrictions on women and treat them as inferior to men, they also overlook some inequalities that were prevalent even during Mohammad’s time.15 Most important, the references fail to address the inequality explicitly or implicitly stated in the Quran.

Women in the Quran Accepted by all Muslims as the word of God, the Quran is the most authoritative source in the religion. Also a comprehensive source, it provides moral, spiritual, and social guidelines for the believer and explains some of them in great detail. Thus, a close text analysis allows us to assess the extent to which the religion follows the principle of

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equality, at least among the believers. The comprehensive character of the Quran also makes it susceptible to contradictions. That is why one can find two diametrically opposed assessments of the status of women in Islam, as second to men (by Karmi) and as emancipated (by ElNimr), side by side in the same volume, and both justified by multiple citations from the Quran.16 Therefore, I propose to examine the principle of equality in the Quran by separating the analysis into two levels: the spiritual level that concerns the relationship between the believer and God, and the social level that pertains to the relationship among people. Spiritual Level Deviating from the story of Genesis in the Old Testament, which assigns a secondary role to Eve as a creation from Adam’s rib, the Quran offers a more egalitarian beginning of human life: Mankind, fear your Lord, who created you of a single soul, and from it created its mate, and from the pair of them scattered abroad many men and women.17

If we take into account that the verse starts as “Ey nâs,” which should be translated as “O people” rather than as “Mankind” in Arberry’s translation,18 this verse is clearly ambiguous about the sex of the first human, or if there was a “first one,” since the creation of the pair might have happened simultaneously rather than sequentially.19 The quranic treatment of the original sin is also significantly different from that of the Old Testament. The Quran does not hold Eve responsible for committing the original sin; at least in three separate suras “Adam and his spouse” are both referred to as guilty of eating the forbidden fruit at the invitation of Satan,20 and verses 115–121 of sura 20 single out Adam as the one who was directly approached and tempted by the devil. The Quran also identifies the desirable qualities in male and female believers as the same and assigns them the same responsibilities. Although such references appear repeatedly throughout the text, two consecutive verses of sura 33 capture that sentiment: Men and women who have surrendered, believing men and believing women, obedient men and obedient women,

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enduring men and enduring women, humble men and humble women, men and women who give in charity, men who fast and women who fast, men and women who guard their private parts, men and women who remember God oft— for them God has prepared forgiveness and a mighty wage. It is not for any believer, man or woman, when God and His Messenger have decreed a matter, to have the choice in the affair. Whosoever disobeys God and His Messenger has gone astray into manifest error.21

The Quran also states that both men and women can enter Paradise,22 the work of both sexes will be rewarded,23 and both men and women will be rewarded according to their deeds.24 Their equality in terms of intellectual capacity and reasoning is declared in sura 9, verse 71, with a reference to their ability to determine good and evil: And the believers, the men and the women, are friends one of the other; they bid to honour, and forbid dishonour; they perform the prayer, and pay the alms, and they obey God and His Messenger. Those—upon them God will have mercy; . . .

Both are expected to perform their prayers the same way; as “children of Adam” they are advised to dress well when attending the mosque.25 Since a Muslim woman can inherit property and keep her property in her own name after marriage, she is expected to pay her alms (zakat) as well. As in the following verse, she is often encouraged to be generous and spend beyond the amount required by the Quran: Surely those, the men and the women, who made freewill offerings and have lent to God a good loan, it shall be multiplied for them, and theirs shall be a generous wage.26

Women are obliged to perform all acts of spiritual purity, and are assigned the same dietary restrictions. In addition to various passages on what all believers should consume or avoid, the Quran speaks against the pagan practice of keeping the flesh of some animals only for men.27 Referring to a social ill, female infanticide, which was a common practice among Meccan Arabs in pre-Islamic times, the Quran asserts

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the equal value of male and female children to God. Infanticide is addressed as a formidable act in at least seven verses in four different suras.28 Sura 81 describes the events that denote the Day of Judgment, and with verses such as “when the buried infant shall be asked for what sin she was slain,” warn parents against this major sin.29 Sura 16 elaborates on the shame felt about female children and the “evil act” committed by ashamed fathers: And they assign to God daughters [treat angels as God’s daughters]; glory be to Him!— and they have their desire [they desire to have boys]; and when any of them is given the good tidings of a girl, his face is darkened and he chokes inwardly, as he hides him from the people because of the evil of the good tidings that have been given unto him, whether he shall preserve it in humiliation, or trample it into the dust [i.e., bury her alive]. Ah, evil is that they judge!30

The blasphemous pagan allegations about angels being female and “daughters of God” are challenged repeatedly in suras 34, 37, and 52 with a question: “Has He chosen daughters above sons?”31 Moreover, all children are blessed, especially in a sura that speaks of having either a daughter or a son, both daughters and sons, or no children at all as “the wish of God.”32 By banning female infanticide the Quran grants women the right to life. The verses on the value of female children, along with others on the creation of the first couple, the original sin, religious obligations, and receiving rewards from God, all taken together sketch a very egalitarian picture of the religion. Biology does not seem to play a role in determining one’s relation to God, and in that sense Islam treats men and women as equals at the spiritual level. However, one aspect of her biology distances the female believer from God and puts her at a disadvantage vis-à-vis the male believer, menstruation. They will question thee concerning the monthly course. Say: “It is hurt; so go apart from women during the monthly course, and do not approach them till they are clean. When they have cleansed themselves, then come unto them as God has commanded you.” Truly, God loves those who repent, and He loves those who cleanse themselves.33

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While direct reference to menstruation is mentioned only once again, in relation to the waiting period before remarrying after a divorce,34 various implicit references affect women’s ibadat (worship and ritual obligations). Since bleeding is treated as polluting, and Muslims are forbidden to perform their duties unless they are clean, women cannot perform their daily prayers, fast, or touch the Quran during their menses. While Islam does not extend the polluting effect of menstruation beyond the actual period or exclude women from any direct access to religious sources, even the temporary periodic exemption from religious duties prevents women from assuming a continuous religious position in the society until they are postmenopausal. Who is designated as the audience of God in the Quran is the other important indication of spiritual inequality. Even if we exclude the verses that directly address the Prophet, the number of verses that are directed at male believers—compared to those that address female believers, or to those that refer to both men and men—is overwhelming. Despite evidence of egalitarianism in the spiritual domain, the imbalance implies that God’s covenant with men is stronger.35 Social Level In the social domain, where the relationship among human beings is concerned, Islam presents a hierarchal structure. Inequality between sexes, class differences, and slavery are treated as givens, and the Quran includes some verses that dictate proper attitudes and deeds that are likely to reinforce social inequalities. On the other hand, it assigns obligations that tend to eliminate some gross inequalities or abuses. In analyzing social divisions, I will focus on the treatment of men and women in defining their social roles and obligations. The most immediate relationship between men and women takes place within marriage. In reference to marriage, the Quran mentions the husband and wife as garments of each other who were, in fact, created to comfort each other:36 And of his signs is that He created for you, of yourselves, spouses, that you might repose in them, and He has set between you love and mercy. Surely in that are signs for a people who consider.37

Nonetheless, the institution of marriage is not devised as a union of equals. Although men and women seem to be equals in entering the marriage contract freely,38 the payment of mahr (a gift/dowry paid by

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the groom to the bride and kept by her exclusively for her own use) and the unequal terms of dissolving the marriage (it is easier for a man to divorce, reverse his decision, and remarry) mark inequalities.39 Sura 2, verses 228–229, denote men’s favorable position: Divorced women shall wait by themselves for three [menstrual] periods; and it is not lawful for them to hide what God has created in their wombs; if they believe in God and the last Day. In such time their mates have a better right to restore them, if they desire to set things right. Women have such honourable rights as obligations, but their men have a degree above them; . . .

Although not a sacrament, marriage is praised and promoted in Islam. It is treated as a prerequisite for sexual contacts and essential for procreation. The biological contribution and functions of both sexes in the process of reproduction are acknowledged in the Quran.40 However, instead of treating men and women as equal partners, the Quran puts the husband both in charge of the woman’s body (which can even be claimed as a possession) and in control of the reproductive process: Your women are a tillage for you; so come unto your tillage as you wish, and forward for your souls; . . .41

Moreover, the Quran recognizes the husband as the provider, probably because he was financially more able to do so in seventh-century Arabia. He is responsible for providing both for the children and the wife according to his means.42 However, assigning the task as a gender role creates and maintains other gender roles that subordinate women. Verse 34 of sura 4 states: Men are managers of the affairs of women for that God has preferred in bounty one of them over another, and for that they have expended of their property. Righteous women are therefore obedient, guarding the secret for God’s guarding. And those you fear may be rebellious admonish; banish them to their couches, and beat them. If they then obey you, look not for any way against them; . . .43

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Designating man as the provider also serves as a justification for the unequal inheritance rights between men and women (i.e., “to the male the like of the portion of two females,” sura 4, verse 11). The logic follows that since man is obliged to meet the needs of the family he should be allowed better means to do so, and thus he should be entitled to receive more. The unequal distribution of property, of course, not only reinforces, but in time exacerbates, economic and social inequalities between sexes, both in marriage and society. Treating economics and finances as mainly the domain of men, the Quran also introduces a verse that seems to assign more credibility to male witnesses: O believers, when you contract a debt one upon another for a started term, write it down, and let a writer write it down between you justly, and let not any writer refuse to write it down, as God has taught him; so let him write, and let the debtor dictate .... And call in to witness two witnesses, men; or if the two be not men, then one man and two women, such witnesses as you approve of, that if one of the two women errs the other will remind her; and let the witness not refuse, whenever they are summoned.44

Asghar Ali Engineer argues that although “Muslim jurists have deducted a general rule [from this single verse], namely that one male witness is equal to two women witnesses and hence man is superior to woman,” the Quran requires this alternative arrangement of “two female witnesses and one male witness in reference to financial contracts only.”45 He points out that numerous other references to witnesses in the Quran do not specify the sex of the witness, and by using a gender-neutral language such as “two among you” (e.g., sura 5, verse 106), “four among you” (e.g., sura 4, verse 15), or “two just persons” (e.g., sura 65, verses 2, 4, and 15), the Quran allows women to be called as witnesses as equals of men. In case of conflicts between a man and a woman (including married couples, as referred to in sura 24, verses 6–9), it allows the woman to testify against the man and deny his claims.46 To support his argument about the limited application of the controversial verse, verse 288 of sura 2, Engineer turns to several con-

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temporary “progressive” jurists and quotes Mohammad Asad’s interpretation: The stipulation that two women may be substituted for one male witness does not imply any reflection on woman’s moral or intellectual capabilities. This is obviously due to the fact that, as a rule, women are less familiar with business procedures than men and, therefore, more liable to commit mistakes in this respect.47

The two most contentious issues regarding gender inequality in Islam have been the allowance of polygyny and the requirement for women to be concealed and secluded. The first issue, allowing men to marry up to four wives, however, is interpreted as practically void by prowomen Muslim analysts who emphasize the verse’s content as “conditional,” “contextual,” or both. Indeed, the verse that allows polygyny also sets the condition of the impartial treatment of wives: If you fear that you will not act justly towards the orphans, marry such women as seem good to you, two, three, four; but if you fear you will not be equitable, then only one, or what your right hands own; so it is likelier you will not be partial.48

Moreover, the impossibility of sustaining equality in such intimate relationships is pointed out in another verse: You will not be able to be equitable between your wives, be you ever so eager; yet do not be altogether partial so that you leave her as it were suspended.49

Focusing on the equal treatment condition and the difficulty of meeting that condition by a man, modernist/feminist analysts treat polygamy as a right of man that has no real-life applicability. It is also argued that since polygyny was a common practice in pre-Islamic Arabia, and in fact there were no restrictions in the number of wives one could have, by setting four as the maximum the Quran imposes a restriction on men and moves the society toward equality. Nevertheless, such historical contextual analyses do not address the denial of a similar right to women or the emotional distress, sense of humiliation, and indignity inflicted on women by the practice.

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Some among those who argue that the verse on polygyny is irrelevant because it is contextual point to the place of the verse in the overall text, to the fact that it is surrounded by verses referring to the rights and “just” treatments of orphans. They note that these verses were recited by Mohammad immediately after the Battle of Uhud, which had had a high casualty rate (seventy-some believers, out of 700 fighters, had died). According to these interpreters, the verses were introduced to protect the wives and children of the martyrs: allowing the survivors to take additional wives was a way of providing the widows and orphans with some physical and financial security.50 No matter the intentions, we cannot ignore the imbalance this verse creates between the two sexes. In Muslim societies, and elsewhere, social inequalities are often justified for the sake of “protecting women.” Whenever a protective clause is introduced, however, the essence of that protection should be scrutinized. Is the protection issued as a device for creating equality or does it perpetuate inequality? Protective provisions that are patronizing are not simply acknowledgments of the subordinate condition of women; by putting women under men’s protection such provisions keep the relationship unequal, and in that sense they are nothing but a violation of the principle of gender equality. In other words protection of women may be quite different from and, in fact, contradictory to protection of women’s rights. Women’s veiling and seclusion constitute the other contentious issue, especially for the Western critics of Islam. Contrary to common belief some quranic restrictions apply equally to men and women; the Quran advises both sexes to be chaste, avoid temptation, conceal their private parts,51 and “cast down their eyes.” Say to believers, that they cast down their eyes and guard their private parts; that is purer for them.52

But, the Quran includes some more specific references to women’s concealing: And say to the believing women, that they cast down their eyes and guard their private parts, and reveal not their adornment save such as is outward; and let them cast their veils [i.e., head garments] over their bosoms, and not reveal adornment save to their husbands,

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or their fathers, or their husbands’ fathers, or their sons, or their husbands’ sons, or their brothers, or their brothers’ sons, or their sisters’ sons, or their women, or what their right hands own, or such men as attend them, not having sexual desire, or children who have not yet attained knowledge of women’s private parts; nor let them stamp their feet, so that their hidden ornament may be known.53

Similarly, sura 33, verse 59, asks the Prophet to guide the female believers: O Prophet, say to thy wives and daughters and the believing women, that they draw their veils [outer garments] close to them; so it is likelier they will be known, and not hurt. . . .

However, more is required from the wives of the Prophet. Sura 33 includes several verses that indicate that the Prophet’s wives were expected be extra-cautious about their attire, behavior, and interactions with others: Wives of the Prophet, whosoever among you commits a flagrant indecency, for her the chastisement shall be doubled; that is easy for God.54 .... Wives of the Prophet, you are not as other women. If you are godfearing, be not abject in your speech, so that he in whose heart is sickness may be lustful; but speak honourable words. Remain in your houses; and display not your finery, as did the pagans of old. And perform the prayer, and pay the alms, and obey God and His Messenger. People of the House, God only desires to put away from you abomination and to cleanse you. . . . 55

Men too are alerted to be careful in their own conduct and in entering others’ houses.56 The Quran also introduces the etiquette of entering the house of the Prophet and interacting with his wives: Believers, enter not the houses of the Prophet, except leave is given you

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for a meal, without watching for its hour. But when you are invited, then enter; and when you have had the meal, disperse, neither lingering for idle talk; that is hurtful to the Prophet, and he is ashamed before you; but God is not ashamed before the truth. And when you ask his wives for any object, ask them from behind a curtain [hijab]; that is cleaner for your hearts and theirs. It is not for you to hurt God’s Messenger, neither to marry his wives after him, ever; surely that would be, in God’s sight, a monstrous thing.57 .... There is no fault in the Prophet’s wives touching58 their fathers, their sons, their brothers, their brothers’ sons, their sisters’ sons, their women, and what their right hands own. . . .59

Although an attempt to conceal more of women’s bodies and to regulate the interactions between men and women, especially in case of the Prophet’s women, is obvious, the restrictions in the Quran are nowhere close to the contemporary ones. Especially if we focus on what is expected from ordinary women, and accept a more literal translation of the words used for concealing, one can see that the demands are far from the veiling, or as more commonly practiced today, the covering of the entire body, from hair to ankles, leaving open only the face and hands.60 In the Quran, women are only asked to wear outer garments that are not too revealing (should “draw” their outer garments closer to their bodies) and ensure that their head garments cover their bosoms. It is important to note that the purpose here was to conceal the bosom, not the hair. No head scarves are mentioned or required in the Quran; it seems that a head garment that was part of women’s attire in seventhcentury Arabia was suggested as an item that could conveniently cover the bosom as well. Other restrictions applied only to the Prophet’s wives. The restrictions might have been devised for different purposes, such as saving the Prophet’s wives, who had to receive many visitors to the Prophet, from the burden of getting into long, engaging conversations with the guests and entertaining them. Thus in the issue of concealing clothing, I tend to agree with those who attribute such current practices to the influence of other cultures and to the purposeful interpretations by some conservative ulama, or learned men.

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Conclusion I intended to show that even when the analysis is limited to a single text that has been significant in shaping Islamic cultures, it can reveal a considerable number of internal contradictions. The principle of equality sustained at one level in the Quran is reversed at another level. The crucial question is: Which level should be taken for reference? Aware of these contradictions, some analysts separate the guidelines provided by the religion into two domains, the normative or moral one, on the one hand, and the contextual one, on the other. As best exemplified in Engineer’s writings, the analysts argue that the contextual domain refers to the time-specific concerns of the early Islamic era, and thus should be ignored, while the moral essence of the religion should be treated as timeless.61 I agree with this approach, partially. As the historical context changes, the solutions and guidelines provided to deal with the issues of an earlier and different society would need to change to meet the original intention of those guidelines. However, I see the efforts directed toward revealing those original intentions as problematic for two reasons. First, in the absence of written records from the time of revelations, “original intentions” are wide open to interpretation and speculation. Second, even if we could identify and agree on the original intentions, we would not be able to escape the fact that they had been shaped by the morality of their time, that is, the intentions themselves are inevitably contextual. In other words, we cannot treat the moral/normative aspect of the religion as timeless. Thus, instead of attempting to separate the moral from the contextual, I suggest separating the spiritual aspect from the social. Our question then becomes: Should the spiritual level set the moral foundation or the social level? At the social level, as illustrated above, the Quran not only permits gender inequality and offers guidelines that are likely to reinforce that inequality, but it also allows inequalities among men. It does not oppose class differences, unequal distribution of wealth and income, or owning slaves. In the settlement of some conflicts it invokes the collective (clan) responsibility by endorsing the law of retaliation (qisas). Sura 2, verse 178, which refers to retaliation, spells out the social divisions and legitimizes them: O believers, prescribed for you is retaliation, touching the slain;

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freemen for freemen, slave for slave, female for female. But if aught is pardoned a man by his brother, let the pursuing be honourable, and let the payment be with kindliness.

Here social differences are not only acknowledged but also treated as acceptable, found as consistent with Islamic morality. Slavery is not only permitted, but the inequality between a slave and his or her master, in terms of their social position and wealth, is stated as analogous to the inequality between a free person and God.62 Similarly, the punishment for adulterous behavior varies according to the social status of women. While the wives of the Prophet deserve double the punishment of the ordinary female believer, 63 half of the free women’s punishment is deemed appropriate for the slave women.64 At the spiritual level, on the other hand, believers are treated as individuals, not categories of people. Thus, we can argue that at least at the spiritual level, Islam is an individualist religion. Mahmoud Mohamed Taha even argues that “in Islam the individual is the end. Everything else, including the Qur’an and the religion of Islam itself, are means to that end.”65 There is no doubt that community has been emphasized in Islam: the Islamic calendar starts with the hijrah (migration from Mecca to Medina) that allowed the formation of an Islamic community (umma) in Medina, not with the birth of the Prophet or with the beginning of the revelations and the religion. There is more blessing in participating in Friday or other congregational prayers, and believers are required and encouraged to seek the welfare of other believers through kind treatment and alms giving. However, rights and responsibilities, as expressed in the Quran, at both spiritual and social levels, lie with the individual (excepting the punishment of capital crimes). Inheritance rights and property ownership are assigned to the individual. Marriage is a contract between two individuals; even after marriage, within the nuclear family the partners keep the ownership of their individual properties separately. Similarly, orphans keep their property rights as individuals. Women participate in the legal process as individuals, separate from their husbands; they can sue, be sued, serve as witnesses, and be parties to contracts. Performing religious duties is also treated as an individual responsibility. Individuals, as rational beings, are not only capable of understanding and interpreting their duties but can also perform them without seeking the guidance and blessing of clergy (resembling Protestantism rather than Catholicism, when compared to the Christian traditions).

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Like the religious duties that are offered directly to God (e.g., prayers, fasting), the ones that are offered socially, through helping fellow believers, are also performed individually. For example zakat is an individual responsibility, not that of a family. The required amount has to be calculated for each adult separately, according to different types and levels of income/wealth one holds individually. Paying alms beyond the required amount is encouraged, but both the actual amount and the designation of the recipient are left to the individual to decide—and a divine reward is promised to the individual. The historical context becomes more relevant to understanding individualism in Islam. It may be useful to remember that Mohammad not only tried to transform his society through Islam, but Islam was introduced to a society in transition. Caravan trade, which was the main livelihood of Meccans during Mohammad’s time, had been introduced to Mecca only three generations earlier by his own great-grandfather, Hashim. 66 Thus, at the birth of Islam Mecca was in the process of change from a nomadic, pastoral tribal economy to a settled, merchant economy. Mohammad’s religious incursion corresponded to this transitional stage. Even though Medina, the city where the Muslim community was established, had been a settled agricultural community, Mohammad’s reference point, based on his own experience and that of his Meccan followers (muhajirun), seems to have been the commercial Meccan society. Thus the inheritance rules devised in the Quran, which seek the distribution of wealth to a number of kin rather than its concentration in the hands of one, appear to be more suitable to the distribution of movable wealth than such nonmovable property as land. Islamic inheritance rights, along with other individual rights and responsibilities, and the quranic assurances that nobody will suffer for another or carry the burden of another reflect this change from the tribal responsibility of pastoral life to the individual responsibility of merchant society.67 In this context, holding the clan responsible for capital crimes committed by its members may be treated as a tradition lingering from the pastoral culture. While the clan identity prevailed, the moral code of the earlier pastoral culture must have already collapsed. Looked at in that light, the protective quranic verses that emphasize the protection of orphans and giving them proper shares of inheritance,68 or those that forbid forcing slave girls into prostitution for economic gain,69 can be interpreted as measures against some social ills and injustices that were becoming evident in Mecca. So, contrary to the common belief, one can argue that

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Islam is not a religion against individualism. It braces individualism by holding individuals responsible both to God and to other members of the society and by assigning individual rights. At the same time, however, it restricts excessive individualism that leads to the violation of others’ dignity. In other words, it may be more accurate to state that Islam does not treat individualism and collectivism as in binary opposition.70 What is rejected are not individual rights per se but the “possessive individualism” of classical Western liberalism—which assumes a selfcentered, atomistic, and competitive human nature—and the reflection of such individualism in unrestrained, greedy capitalism (which is seen as incompatible with many components of human rights by some students of international human rights). In addition to the verses that denounce the economic exploitation of orphans and slave girls, the quranic verses that oppose usury71 and hoarding72 and that prescribe redistribution (e.g., “and the beggar and outcast had a share in their [devoted Muslims’] wealth,” in sura 51, verse 19) attest to the abhorrence of covetous attitudes and behavior. Islam as expressed in the Quran also recognizes women as individuals and assigns them rights and duties as such. Sura 60, which largely deals with the payment and return of the dowry in case a married pagan woman leaves her pagan husband to marry a Muslim man, or vice versa, can be read as a confirmation of women’s independence and the ability to judge for themselves and act freely on that. Similarly, women’s competence and right to choose for themselves are acknowledged in the verse that allows the Prophet to marry “any woman believer, if she give herself [hiba] to the Prophet.”73 Moreover, in its parabolic references to the biblical stories, the Quran depicts biblical women as free agents who had been expected to submit only to God and were praised or chastised by God in accordance with their piety.74 At the spiritual level, the Quran also recognizes all human beings as equals, regardless of sex, race, and class. However, traditionally Islamic jurists and clergy in their proclamations about women have chosen to use gender inequalities prevalent at the social level in deciding spiritual matters and rites (ibadat). For example, women, considered to be intellectually inferior and ultimately seductive, have been barred from congregational Friday prayers. On the other hand, spiritual equality has never been taken as the standard to follow in deciding worldly transactions and social relations (muamalat). This chapter proposes reversing that practice with the conviction that it would have an emancipatory effect.

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Reverting once more to Engineer, one can note that such a liberating reversal has already taken place in regard to slavery. Pointing out that the institution of slavery, once a norm in Islamic communities and still allowed in Islamic texts, is not advocated by Muslim jurists anymore, Engineer argues that emphasizing the moral content of the Quran can serve to emancipate women as well.75 I hold that emancipation would be even more likely if the contradictions among different mores of the religion are revealed and the equality prominent at the spiritual level is emphasized in defining the moral foundation of Islam. It is a proposal that can serve as a starting point for what Mohammed Arkoun calls “a cultural revolution that would for the first time integrate the emancipation of women into a modern philosophy (yet to be written) of the human being.”76 This proposal, however, should not be perceived as a reification of rights sustained in the religion or taking Islamic norms as the basis of developing legal structures to formulate and protect rights at national or international levels. Human rights have to be based on secular premises because they apply to the entire complex of humanity. Nevertheless, moving toward a universal secular terrain would require building bridges to parochial and other local normative values because, as so well stated by An-Na’im, “people are more likely to observe normative propositions if they believe them to be sanctioned by their own cultural traditions.”77

Notes I am grateful to Laila Shaath, for her help in identifying the original Arabic terminology, which was essential in sorting out the differences and misrepresentations in translations, and to Rhoda Howard, for her valuable questions and comments that allowed me to improve the presentation of various arguments. 1. Amelioration of women’s status in Muslim-populated countries depends on removing a multitude of obstacles that also affect women who follow other faiths and live in “secular” states. Gender oppression has strains in international economic and political inequalities, militarism, lack of development, authoritarian politics, inadequate legal structures, and weak states (see Cook, 1983). There is now a considerable body of literature that explores and explains historical, political, biological, and sociocultural geneses of the conditions of Muslim women and their struggle for equality. For cross-national examples, see Abu-Lughod, 1998; Haddad and Esposito, 1998; Afkhami and Friedle, 1997; Bodman and Tohidi, 1997; Afkhami, 1995 and 1997; Kiddie and Baron, 1992; Kandiyoti, 1991; and Mernissi, 1982. 2. Referring to Christianity as the source of international human rights is challenged by many, including Arthur Schlesinger, Jr., who writes:

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As a historian, I confess to a certain amusement when I hear JudaeoChristian tradition praised as the source of our concern for human rights. In fact, the great religious ages were notable for their indifference to human rights in the contemporary sense. They were notorious not only for acquiescence in poverty, inequality, exploitation and oppression but for enthusiastic justification of slavery, persecution, abandonment of small children, torture, genocide. Religion enshrined and vindicated hierarchy, authority and inequality. (Quoted in Howard, 1992: 87) For nonessentialist comparative analyses of the relation of Islam and Christianity to international human rights, see Luf, 1986; Hollenbach, 1982. 3. See interviews with Arab intellectuals by Dwyer, 1991; Mayer 1990, 1999. 4. For example, see Mazrui, 1997. 5. Bobbio, 1995. 6. For example, see Bielefeldt, 1995. 7. The lack of commitment to the protection of human rights and the poor rate of ratification or upholding of international human rights agreements is not limited to governments in Muslim-populated states, but is shown by others, including the United States, which often presents itself as the main promoter or guardian of human rights. 8. Howard, 1992: 91. See also Pollis, 1996. 9. Such an analysis of Islam is explicitly proposed and scriptural analysis is conducted by An-Na’im (1984); as well as by Hassan, 1996; and Malik, 1981. Mayer (1999) employs a different approach and compares the Universal Islamic Declaration of Human Rights and the law in Islamic states with the International Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. 10. Lalumiere, 1993: 9; Vienna Declaration and Programme for Action, 1993. 11. Given the already mentioned concerns about religious reductionism and the presence of diversity among followers of Islam, the attempt to analyze “Islamic culture” in terms of its consistency with human rights presents itself as an awkward task, if not an absurd one. Social scientists and legal scholars are not engaged in analyzing contemporary “Christian culture” for its compliance with human rights nor do they refer to any predominantly Christian-populated states, say France, as a Christian country. Thus, while undertaking this project with some discomfort, I need to note that those who put Islam as a civilization under the spotlight are the governments of Muslim-populated states and the Islamist political groups; they object to various international human rights or accept such rights with reservations, emphasizing their incompatibility with the norms and mores of Islam (see Cerna, 1994). The resistance to international human rights law and agreements by the governments of “Christian countries,” on the other hand, are seldom grounded on religious morality, save for the Vatican. 12. A review of women’s rights in both what Muslim jurists consider to be the current sharia (Islamic law) and its coding into “personal law” in specific

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countries reveals that women can enjoy some rights, but not on an equal footing with men. See Doi, 1989; Esposito, 1982; Nasir, 1990a, 1990b. Nevertheless, a comparison of actual conditions of women in these countries and the laws would reflect that even these limited legal rights of women are not protected and consequently not enjoyed by many women. See note 1 above for references. 13. See Wadud, 1999; el-Nimr, 1996. For a brief review of various new interpretations, see Hassan, 1996. For the positions taken by Islamist women in ° Turkey and Iran see Ilyasog ˇ lu, 1998, and Nakanishi, 1997, respectively. 14. Abbott, 1942; el-Saadawi, 1980, 1982; al-Hibri, 1982; Ali, 1983: 1100–1101; Ahmed, 1992: 41–78; Engineer, 1992: 89–94; Mernissi, 1991, 1993; and Barazangi, 1997. For women in mystical Islam, see Schimmel, 1997. 15. While most of the above authors consider the practice of segregation and seclusion of women as a late medieval development, other analysts see the inauguration of the practice in the hadith and in some situations handled by the Prophet Mohammad (Stowasser, 1994). Some Islamist feminists emphasize the Quran and avoid discussing the hadith (Wadud, 1999). As a traditionalist, Doi (1989) reviews the hadiths that apply to women uncritically, but his reporting confirms the claims that the trend in the direction of restricting women’s behavior and treating them as inferior to men dates back to the Prophet’s rule. 16. Karmi, 1996; el-Nimr, 1996. 17. The Quran, 4: 1. 18. For this chapter various English and Turkish translations of the Quran were employed, and commentaries by different scholars were consulted for the analysis (see References). For quotations however, Arberry’s translation is preferred for its more poetic style. 19. In fact, the Arabic word used for “the mate” in this verse happens to be zawj, the masculine reference to spouse/mate, not the feminine zawja. The same wording, “He created you of a single soul, then from it He appointed its mate” is repeated in another verse, 39: 2. See also sura 3, verse 195: “I waste not the labour of any that labours among you, be you male or female—the one of you is as the other.” An alternative and more accurate translation of the latter part would be “you are the offspring of one another.” 20. The Quran, 2: 36; 7: 10–22; 20: 115–121. In fact, Eve, who is known as Hawwa by Muslims, is never mentioned by name in the Quran, as consistent with the general style of the Quran that refers to all females as wives, daughters, or sisters of prominent male figures and identifies only Mary by name. See Stowasser, 1994: 25, 38. 21. The Quran, 33: 34–35. 22. The Quran, 4: 124; 9: 72; 57: 12–13. 23. The Quran, 3: 195; 4: 195. 24. The Quran, 4: 32; 11: 112. 25. The Quran, 7: 31. 26. The Quran, 57: 18. 27. The Quran, 6: 139. 28. The Quran, 6: 137, 140, 150; 16: 57–59; 17: 31; 60: 12; 81: 8–9. 29. The Quran, 81: 8–9. 30. The Quran, 16: 57–69.

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31. Treating pre-Islamic female deities as “daughters of God” is also denounced. See The Quran, 53: 19–21. 32. The Quran, 42: 49. Nevertheless, it should be noted that references such as “Would He choose daughters rather than sons?” wielded to discredit the claims about angels being God’s daughters, can be taken as an allusion to the desirability of sons in the eyes of God. 33. The Quran, 2: 222. 34. The Quran, 65: 4. 35. Amina Wahud makes a case for the gender equality of the Quran by arguing that “every usage of the masculine plural form is intended to include males and females, equally, unless it includes specific indiction for its exclusive application to males” (1999: 4). However, the abundance of masculine plural references, in a language that does not lack words that are neutral plurals (e.g., nâs, or man), weakens her argument. 36. The Quran, 2: 187. 37. The Quran, 30: 21. 38. Forbidding men from marrying a woman against her will is stipulated most clearly in sura 4, verse 19. 39. As for adultery and fornication, however, the penalty is the same for both sexes—100 lashes. See The Quran, 24: 2. “Stoning” is never mentioned in the Quran; the jurists and theologians have justified it through allusions to the extraquranic but early sources such as the sunna and to the decisions of the second and fourth khalifas, Umar and Ali, respectively. See Doi, 1989: 116–120. 40. The Quran, 3: 195; 8: 5. 41. The Quran, 2: 223. 42. The Quran, 65: 6–7. 43. The roots of the Arabic words that are translated here as “managers of the affairs” and “beat” and their “authentic” intentions and meanings have been a subject of dispute among conservative and modernist exegetes. For various modernist/feminist exegeses, see Engineer, 1992; Barazangi, 1997; and Wadud, 1999. For a brief review of the different interpretations of the verse, see Stowasser, 1994, 1998. Similar disagreements exist about the implications of the wording “men have a degree above women” in the previously mentioned sura 2, verse 229. 44. The Quran, 2: 288. 45. Engineer, 1992: 63; emphasis in original. 46. Engineer, 1992: 66–70. 47. As quoted in Engineer, 1992: 63. 48. The Quran, 4: 3. What one’s “right hands own” is a quranic reference to slave girls. 49. The Quran, 4: 129. 50. Engineer, 1992. 51. The Quran, 7: 26; 23: 5–7; 33: 34. 52. The Quran, 24: 31. 53. The Quran, 24: 32. 54. The Quran, 33: 30. 55. The Quran, 33: 32–34. 56. The Quran, 2: 27–29.

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57. The Quran, 33: 53. 58. Some other translations use “veiling” or “appearing before” instead of “touching.” It should be noted that the Arabic text includes no verbs in this verse, implying that the restrictions mentioned in the previous verse do not apply to the men of the immediate family. 59. The Quran, 33: 55. 60. Women’s concealing of the hair and the entire body with the exception of the face and hands has been advocated by those who claim that the practice had been ordered by the Prophet. Profound differences exist in the contemporary feminist approaches to the new veiling adopted by Islamist women or imposed upon women by Islamist states (e.g., Iran, Saudi Arabia). Although it is respected and supported by some for “enabling women to negotiate in the new world while affirming the traditional values of their upbringing” (Ahmed, 1992: 223), others criticize the practice for being a device that “may legitimize a woman’s presence outside home . . . in male terms” (Afshari, 1994: 254). Shahin Gerami (1996), in her comparative study of religious fundamentalism in Egypt, Iran, and the United States, argues that fundamentalist movements offer a gendered explanation for the perceived problems of modernity, which includes women’s freedom, and present a worldview that joins faith, family, and the state. 61. Engineer, 1992. For a brief review of various proposals geared toward reviving the original intentions of Islam to emancipate women, see Majid, 1998, as well as the critical responses to his essay by Joseph (1998) and Mayer (1998). 62. The Quran, 16: 75; 30: 28. 63. The Quran, 4: 25. 64. The Quran, 33: 30. Riffat Hassan interprets these differentiations by social status as a manifestation of God’s compassion for the socially disadvantaged (1996: 374). 65. Taha, 1987: 62. For arguments about the lack of individualism in Islam, see Mayer, 1999: 39–62; Said, 1980; and Tibi, 1994. 66. Watts, 1953; Cook, 1983. 67. The Quran, 6: 165; 17: 15; 53: 38. 68. The Quran, 4: 2–3, 6, 8–10, 126–127; 6: 152; 17: 34; 89: 17–19; 107: 1. 69. For an example, see sura 24, verse 33. 70. For a discussion of the significance of community for the Muslim individual, see Taha, 1987: 62–112. 71. The Quran, 30: 39. 72. The Quran, 3: 180. 73. The Quran, 33: 50. 74. Stowasser, 1994. 75. Engineer, 1992: 2. The modernist scholar Taha refers to slavery, along with inequality between men and women, polygamy, the veil (hijab), and segregation of men from women, as “not an original precept in Islam.” See Taha, 1987: 137–145. 76. Arkoun, 1994: 62. My approach—the separation of spiritual and social levels and assigning primacy to the spiritual one—largely corresponds to that

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of the late Muslim scholar Mahmoud Mohamed Taha (1987) and his student Abdullahi Ahmed An-Na’im (1984, 1987, 1990, 1996), who examine the message of Islam in the Quran and sunna by dividing it into two stages, the earlier Mecca period and the later Medina one. They argue that the current sharia is based on revelations and sunna of the Medina period that abrogated the more egalitarian and humanistic message of the Mecca period because the social and political conditions, as well as the psychology and mental attitude of the early Muslims, could not allow the implementation of the radical message. Thus, they propose “reversing the process of naskh or abrogation so that those texts which were abrogated in the past can be enacted into law now, with the consequent abrogation of texts that used to be enacted as Shari’a” (An-Na’im, 1990: 56). The dualism in our analyses seems to match because the Meccan revelations usually deal with faith and ibadat, and the Medina verses are mainly concerned with social functions and transactions. However, their proposal is significantly different from mine on at least two grounds: (1) despite proposing a major revision, Taha and An-Na’im favor retaining the sharia, and (2) they emphasize the universalist claims of Islam. Taha makes an explicit reference to the latter: The Meccan and the Medinese texts differ, not because of the time and place of revelation, but essentially because of the audience to whom they are addressed. The phrase “O believers” [prevalent in the Medina suras] addresses a particular nation, while “O, humankind” [employed in the Meccan suras] speaks to all people. (1987: 125) 77. An-Na’im, 1992: 20. Concerned about the rise of fundamentalism, Tibi states that “cultural pluralism in the realm of human rights cannot be allowed to mean more than a cultural indigenization of basic individual human rights in local cultures” (1998: 213).

5 Human Environmental Rights Barbara Rose Johnston

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he right to health, a decent existence, work, and occupational safety and health; the right to an adequate standard of living, freedom from hunger, an adequate and wholesome diet, and decent housing; the right to education, culture, equality and nondiscrimination, dignity, and harmonious development of the personality; the right to security of person and of the family; the right to development . . . all are rights established by existing United Nations covenants. These rights represent the ideal that governments strive for in providing for their citizens’ basic life requirements that all humans are entitled to. Guaranteeing these rights requires strategies and structures that ensure equitable access and sustainable use of critical resources—sociopolitical systems that guarantee environmental quality and social equity.1 This ideal is illusive. In fact, it is difficult to think of a single society in today’s world that retains a self-sufficient, locally controlled, equitable, and environmentally sustainable way of life. This has not always been the case.

Cultural Diversity and Human Adaptation For much of human history social groups developed rules and tools for ensuring access to critical resources in ways that allowed survival of the group. One hundred and thirty thousand years ago, Homo sapiens gathered plants and hunted animals in the forests and savannas of Africa. Forty thousand years ago, our human ancestors had developed ways to live in the heat of the world’s deserts, the icy cold of arctic and mountain terrains, shady forests, and lush and fertile river valleys, as well as along coastal shores. Ten thousand years ago humans had fashioned 95

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ways to survive and thrive in every major ecosystem on this planet. They developed ways to cultivate and store food to allow for the lean times. They settled in larger numbers in villages, towns, and cities where their ideas, values, ways of living, and language grew increasingly complicated and diverse. Unlike other creatures whose response to harsh or varied conditions prompted biological change, humans generally relied upon their ingenuity to survive. They created innovative ways to live and communicate, and thus passed knowledge down to their children. This cultural diversity—the multitude of ways of living and communicating knowledge—gave humans an adaptive edge. Other creatures adjusted to change in their environment through biological adaptation (a process that requires thousands of life spans to generate and reproduce a mutation to the level of the population). Humans developed analytical tools to identify and assess change in their environment, to search out or devise new strategies, and to communicate and incorporate these strategies throughout their group. And humans developed strategies for resource use and regulation—core elements of a broader social, cultural, political, and economic system that defined and protected basic rights. For the human species, culture is our primary adaptive mechanism. No individual social group can survive without the means to communicate, the ability to learn, and a set of values and rules governing interaction, relationships, and rights among its members. As society changes, new rules and rights are defined and the ideas that frame human rights propositions vary according to society’s need. Despite immense cultural variation, all human groups, however, share the need for rights that ensure the basic parameters necessary for human survival: maintaining bodily health, material security, social relations, and the opportunity for the development of a cultural and moral life—those aspects of life that allow one to be human. 2 These rights are inextricably linked to a healthy environment.

Cultural Devolution Linguists view language as a primary characteristic of group identity and an important measure of cultural diversity. According to some estimates, ten thousand years ago there were as many as twice the six to seven thousand languages spoken today.3 Five hundred years ago the majority of distinct cultural groups were historically isolated peoples

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with minimal immunity to introduced diseases. Colonizers brought more than ideas, religion, and new economic ways of living. They brought a host of viruses and bacteria. Measles, chicken pox, smallpox, and the common cold swept through “new” worlds at epidemic levels and wiped out entire societies—cultural nations with their own distinct languages, values, rules, and relations. Imperialist expansion and war further decimated original, or indigenous, populations, creating hierarchies of ethnicities in regions where autonomous and sovereign cultural nations once thrived. The resulting loss of cultural diversity represents, in some ways, cultural devolution. The rich complexity of cultures and their place-specific ways of life have been replaced by more homogeneous identities and globalized economies. Today in Oceania some 1,500 languages are spoken, with some 700 in New Guinea alone. In the Americas, there are an estimated 900 languages and dialects. In Europe some fifty languages are spoken. Typically, the more isolated the region is from the global political economy, the greater the number of languages. If current trends continue— resource exploitation, environmental degradation, and migration into and out of previously isolated regions—linguists warn that about half the remaining languages will become extinct in the next century. Accompanying this extinction of language will be the loss of knowledge, identity, and peoples and their place-based way of life.4 These changes did not and do not occur easily. Accompanying this transformation in culture, society, and economy are biodegenerative crises, growing dominance of ethnocentric politics in national and international arenas, escalating incidents of human rights abuse, and growing incidents of violent conflict. And, in response to these transformative processes, there has been a resurgence in efforts to revitalize traditional customs, reshape group identities, and restore the integrity and power of community-based ways of life. Thus, cultural groups are defining themselves in ways that emphasize cultural rights and historical relationships to land, critical resources, and customary values and beliefs.

Biodegenerative Crises In the past, when human groups faced deteriorating conditions adaptive success was dependent upon (1) time to develop biological responses or, more typically, (2) behavioral responses that recognize changing

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environmental conditions, identify causality, search out or devise new strategies, and incorporate these strategies in ways that allow the society to survive and thrive. Often the strategy of choice was simply to go somewhere else. Today, human survival is increasingly constrained by the biodegenerative conditions of nature: growing deserts, decreasing forests; declining fisheries; poisoned food, water, and air; and climatic extremes and weather events such as floods, hurricanes, and droughts. Although environmental degradation in itself is by no means new, biodegenerative conditions present a number of seemingly insurmountable challenges. The environmental constraints faced by our ancestors were in large part defined by the biophysical parameters of nature (water availability, soil fertility, altitude, temperature). Today’s problems represent the biodegenerative products of humanity: polluted air, water, soil, and food and depleted forests and fisheries. Biodegenerative problems create multiple assaults on systemic viability. Adaptive responses are inhibited by the cumulative and synergistic nature of toxic pollution— substances work their way up the food chain at increasing levels, cause mutation at the cellular level—producing not only biophysical change but intergenerational degenerative change.5 Environmental problems are rarely confined to a spatially bounded context. Changes in upper atmospheric composition, for example, are global, and these changes present a host of problems tied to fluctuating weather patterns and increased ultraviolet radiation. Other environmental crises may be localized, yet their origins and consequences are tied to global forces and conditions. For example, water quality problems vary throughout the world involving contamination from human waste, agricultural chemicals, industrial solvents, and mining by-products. These local crises contribute to a global trend of water scarcity, where an estimated one in five people lacks access to clean water.6 The long-lived nature of many degenerative threats pose crises that defy our conception of time. The nuclear hotspots of the world—places where nuclear weapons were developed and tested, and their waste stored—will continue to contaminate life processes for thousands of years. Our ability to contain, reduce, or even remove their threat is not only limited by our knowledge, technology, and money, but is seriously inhibited by the changing nature of sociopolitical systems. Who is responsible for managing the radioactive legacy of defunct regimes? Human adaptation to changing environmental circumstances requires time, space, and the means to implement change (optimally, viable sociopolitical structures). Today time is an increasingly scarce

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commodity, especially given the rapid pace of degenerative change. Migration is less and less a viable option; there are few frontiers, few unmapped spaces to disappear into. These degenerative conditions challenge survival skills, often rendering customary knowledge and traditions ineffective. These biodegenerative conditions further complicate the human-environmental relationship. Humans not only need to contend with access and use rights of critical resources such as water, food, and shelter, but they must also contend with the environmental quality issues and adverse consequences of exposure and use. Environmental crises, whether they are matters of equity in access and use or exposure to degenerative conditions, become human rights issues when the social experience of crisis is differentiated—when, in spite of international and national structures establishing inalienable rights for all people, powerless individuals and groups are denied rights to land, resources, health, and environmental protection.7

Ethnocentrism The abuse of human environmental rights is culturally constructed. The growing incidence of abuse occurs at a time when all societies are experiencing unparalleled transformations in human relations. Isolation is no longer the norm. Cultural groups struggle to maintain a sense of unique identity while interpreting and assimilating an overwhelming flow of new ideas, ways of living, economies, values, and language. The rapid pace of change in population, technology, and political economy leaves little time to develop sustainable responses and adjust to changing conditions. Small groups continually interact and are subsumed by larger cultural, political, and economic groups of national and global dimensions. The resulting reality for many is an intense struggle to retain the right to simply exist, as other more powerful peoples seize their land and resources and “cleanse” the countryside of their presence. Efforts to gain control of land, labor, and resources of politically and/or geographically peripheral peoples are justified and legitimized by ethnocentric notions: the belief that the values, traditions, and behavior of one’s own cultural group are superior and that other groups are biologically, culturally, and socially inferior. Ethnocentric notions are produced and reproduced in a discourse of debasement that serves to dehumanize (they are subhuman: savage, primitive, backward, ignorant, lazy people that “live like animals”) and thus legitimize immoral behavior.8

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If cultural diversity is a primary adaptive mechanism in human survival, ethnocentrism plays a key role in the demise of peoples and their unique ways of life. While the ideal of human rights is to ensure that all humans—irrespective of nationality, religion, sex, social status, occupation, wealth, property, or any other differentiating ethnic, cultural, or social characteristic—are guaranteed the conditions necessary for a life of dignity in the contemporary world, at the experiential level, ethnocentric prejudices, conflicting interests, greed, and simple brutality intercede between law and practice. Human action and a history of social inequity leave some people more vulnerable than others, and this vulnerability often results in ethnocide (loss of a way of life), ecocide (destruction of the environment), and genocide (death of an entire group of people). Ethnocide, ecocide, and genocide all involve, at one level or another, the abuse of human environmental rights.

Human Environmental Rights and the Culpability Gap Human environmental rights are those that guarantee basic human survival. They include those universal rights pertaining to the minimum of biological necessities (access to food, water, shelter), as well as those rights that support and sustain life over months, years, and generations: those relative rights that allow the production and reproduction of sociocultural, political, and economic systems that define critical resources and manage access and use in ways that ensure social and ecosystemic viability. They include both the rights of the individual and the rights of groups to survive and thrive. In past eras, when economies and societies were place-based, these rights were mutually interdependent. In today’s world, where communities are multicultural, where cultural identity is fluid and involves membership in multiple communities, the economic way of life is shaped and constrained by global as well as local forces and conditions, and the loci of control over local resources is rarely (if ever) in local user hands, individual and group efforts to secure basic human environmental rights conflict with broader systemic efforts to manage and use environmental resources, and (in some cases) protect ecosystemic viability. These conflicts produce human environmental rights abuses: powerless groups and their rights to land, resources, health, and environmental protection are socially and legally sanctioned casualties of broader state and multi-

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national agendas to protect national security and develop national resources. At one level, human environmental rights abuse occurs because people happen to be living in the wrong place. Beneath their land lie economic or strategic mineral resources. Their lives are spent in the “empty, open spaces,” which are far from densely populated regions and which become, for example, the logical place for military exercises, weapons testing, or storage or disposal of hazardous wastes. They live on the frontier, in the peripheral regions, and on the borders between “political nations” and find themselves caught in the middle during times of war or civil unrest. Their isolation attracts those who are seeking economic, political, and environmental alternatives. For these and many more reasons, resident peoples become displaced or alienated from their traditional holdings and experience increasing difficulty in maintaining individual, household, and community health.9 At another level, human environmental rights abuse occurs because people are in the way of progress and “national” needs supersede individual and community concerns. Thus, people find themselves forcibly relocated while governments and industry build dams, expand exportoriented intensive agriculture, develop international tourist facilities, and set aside “wilderness” to save the biocommons and attract foreign ecotourism dollars.10 Still, at another level, human environmental rights abuse occurs because it is socially, culturally, and legally acceptable to protect the health of some people while knowingly placing other humans at risk. Thus women and children and racial, ethnic, and other powerless groups experience a contradictory application of occupational health and safety regulations and of environmental protection measures. The state may disregard its own laws in the name of national security or economic interests. Environmental and occupational health and safety policies may vary greatly between “home” and foreign manufacturing locales. Information about hazardous materials may be available in one setting to some people and purposefully withheld from others.11 Our present approach to defining and minimizing environmental risk presents yet another source of human environmental rights abuse. Little attention is given to psychosocial trauma or to spiritual/cultural concerns. The scientific basis for determining acceptable levels of exposure may, in many cases, rely on models of behavior and physiological response that assume Anglo male adult norms.12 And finally, the way we set about compensating “victims” is based

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on a Western notion of property and individualism that places economic issues, concerns, and methods in the center and reduces the importance of, or even fails to consider, the less quantifiable and longer-term problems experienced.13 In short, human environmental rights are abused when political and economic institutions and processes take control of traditionally held resources without negotiation or compensation. Human environmental rights are abused when political and economic institutions and processes degrade environmental settings, place individuals and populations at risk, withhold information about that risk, and rationalize selective exposure on the basis of national security, national energy, and national debt. And, even in the context of strong legal protection for human rights and environmental quality, human environmental rights are abused when cultural forces and economic greed co-opt and corrupt the implementation of legal structures. This culpability gap—the distance between governing ideals that protect the basic rights to life and the actual reality of vulnerable and disenfranchised peoples—is an increasingly significant factor in social conflict.14

Bridging the Culpability Gap Response to human environmental crises is varied and can be characterized as a continuum of actions that include passive victimization; passive resistance (efforts to renegotiate conditions in subtle ways); organized efforts to adjust conditions and effect change within existing systems (e.g., the creation and use of mechanisms that allow confrontation, negotiation, and change and stimulate the development of further rights-protective, problem-solving mechanisms); confrontational and violent efforts aimed at transforming conditions and structures of power; and efforts to rebuild in the aftermath of structural transformations of power. Depending upon the conditions and options available and the consequences of previous responses, response to human environmental crises may include any or all categories in the above continuum. A continued history of institutional denial or inadequate response to human environmental rights abuse may force people toward action on the violent end of the response continuum. Life-threatening situations prompt people to act, organize, and transform the conditions of their life. The common experience and urgent need to respond blurs previous lines of cleavage, and the cultural notions and historical relationships that divide groups in society are

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temporarily pushed aside as people struggle to survive a common threat. Through formal and informal political means, people form transformative social movements that seek changes in local, national, and international decisionmaking systems that: (1) allow people living with the problem to gain greater control in defining the nature of the crisis, devising equitable responses, and prohibiting the reoccurrence; and (2) allow institutions and organizations that played a significant role in creating the problem to acknowledge their culpability and (through their efforts to respond) to carry a greater share of the burden for resolving the consequence. Information flows and communications technology play a key role in human environmental rights struggles, especially in the shaping of informal political arenas where individuals, groups, and communities can voice their complaints, exchange information, generate support, encourage political action, and apply political pressure. Communication via e-mail and the Internet has, because of the instantaneous visibility, shaped a rights-protective place in cyberspace.15 Information flows and communications technology ensure that human environmental crises are rarely experienced in singular silent fashion. Abuses can be instantaneously reported and responses voiced from around the world. Using information flows and communications technology, previously isolated communities and organizations have formed networks and issue-based coalitions that cross class, race, culture, and national lines, creating a broader base of power to renegotiate relationships with government and industry.16 This informal political sector seeks equal protection of civil and human rights; access to information; rights of the worker and the community to know the risks and dangers involved in industrial activity; the right to request and receive environmental and community health safeguards and monitor conditions; the right to question the reasons for and benefits from development; and the right to say no. The struggles of such communities and organizations often involve documenting the human context of environmental crisis and using this information in ways to establish culpability and force changes in the status quo to prevent future abuses. These groups seek strong systems of law and regulation and user representation in policy formation, and a restructuring of the cultural values and assumptions upon which decisionmaking systems are built.17 As a result of advocacy efforts, human environmental rights issues are increasingly emerging as pivotal issues in formal political arenas. International human rights treaties, covenants, and law; regional human rights instruments; trade agreements and related forums; and national

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constitutions and laws have all been used by advocacy groups to force acknowledgment of culpability, halt impending human environmental rights abuses, and renegotiate the human and environmental conditions.18 In Russia, for example, the issue of the public’s right to know about nuclear contamination is at the core of a case that has challenged, and some say has strengthened, the Russian legal system. 19 The case involves Aleksandr Nikitin, a researcher with the Russian-Norwegian Bellona Institute, former member of the Soviet military, and author of two chapters of The Russian Northern Fleet—Radioactive Contamination, a report describing the location and extent of environmental contamination at sites in and around the North Sea. In February 1996, as the report was in its final stages of production, Nikitin was arrested by the Russian Federal Security Service (FSB), which confiscated his computer and files and charged him with treason (an offense punishable by death) for violating Russian state security. Following his arrest, the Bellona Institute sent e-mail letters of concern to environmental organizations, activists, and government foreign affairs departments around the world. Within 3 days of his arrest, statements of protest were submitted to the Russian government by a number of world leaders, including, naturally, the prime minister of Norway. The Bellona Institute proceeded to publish the report on the World Wide Web (in several languages). Nikitin spent 10 months in jail before coming to trial in the St. Petersburg court where the presiding judge released him to the restricted custody of the city and ordered further investigation into the charges. The court-ordered investigation by the expert committee of MinAtom found that the Bellona Report contained no state secrets. Nikitin’s defense lawyers argued that the case should be dismissed because Russian constitutional law states that the withholding of information relevant to ecological safety is illegal. The FSB, citing findings from an investigation conducted by an ecological committee established by the FSB, argued that nuclear submarine accidents and the safety aspects of nuclear submarine reactors bear no relevance to ecology. The FSB continued to push the case, and Nikitin was again tried in St. Petersburg City Court between October 20 and 29, 1998. The St. Petersburg judge again decided to return the case for further investigation (a ruling that was appealed by both the prosecutor and the defense). Respective appeals were heard in the Russian Supreme Court on February 4, 1999, in a closed-door hearing. Citing a lack of evidence produced by the FSB, the Russian Supreme Court rejected motions from both the

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defense team and the prosecution, sided with the earlier St. Petersburg court ruling, and sent the case back to be investigated further. In the fall of 1999 further investigations were completed, and the St. Petersburg City Court began hearing the case of treason against Nikitin for documenting and making public the existence of hazardous sites containing radioactive substances. On December 29, 1999, Presiding Judge Sergei Golets of the City Court acquitted Nikitin of all charges. On January 7, 2000, Prosecutor Aleksandr Gutsan filed an appeal with the Russian Supreme Court, arguing that the acquittal ruling had been taken in contradiction to the factual content of the case, and demanding that the ruling be dismissed and the case forwarded for evaluation by another judge in the City Court. One of the central issues of this case is the legality of “whistle blowing”: continued efforts to prosecute Nikitin are tied to FSB attempts to regain the right to charge citizens for violation of secret and retroactive normative acts and to include environmental information as classified secrets of state. In a growing number of cases, national law is being used to sue multinationals in their home countries. For example, in October 1996 a suit on behalf of Burmese farmers was filed against Unocal in federal court in Los Angeles. Unocal, in partnership with the Burmese national oil company and the Burmese military government, is building an oil pipeline, and the company is charged with knowledge of and collusion in human rights violations that include torture, forced labor, and relocation, with the suit citing violations of international law. Unocal claimed that suit could not be brought against it in a U.S. court for violations of international law because Unocal is a private defendant—an individual, not a country signatory to treaties establishing international law. The magistrate in the case ruled that the Burmese citizens could assert their claims because there was no comparable judicial system of rights in their own country, and because of the rights established under the U.S. Alien Tort Claims Act that allow U.S. federal courts to try a case in which non-U.S. citizens have alleged a tort (wrong or harm) in violation of international laws. This ruling was based on the nature of the allegation. Forced labor was seen as a form of slavery, and Unocal’s contract with the Burmese military to provide labor and security for the pipeline was seen as a form of slave trading, which is one of the strongest areas of human rights law where universal recognition exists. While the Unocal case is far from being resolved, the significance of the decision of the court’s hearing this case is that it opens the door for future transnational public law litigation.20 Advocacy groups are also playing an increasingly significant role

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in shaping the agenda of regional and UN human rights commissions with the goal of forcing acknowledgment of national government culpability in cases of human environmental rights abuse. For example, environmental suits have been presented to the European Human Rights Commission (largely pertaining to personal injury or class action suits relating to pollution). In 1998, the International Labour Organization (ILO) heard a complaint about human environmental rights abuse associated with oil development on indigenous lands filed by the Ecuadorian mining union on behalf of the indigenous peoples. (The ILO Convention No. 169 is currently the only international treaty that recognizes the inalienable rights of indigenous and tribal peoples, and these rights are legally binding once the treaty is ratified by governments.)21 And advocacy groups have also brought cases of human environmental rights abuse to the UN Commission on Human Rights. The Commission on Human Rights acknowledged the rights of peoples and groups in its 1997 meeting, and there is some political support to develop a legal mechanism recognizing the right to a healthy environment as a fundamental human right (as evidenced by the Commission on Human Rights’ Draft Declaration on Human Rights and Environment). 22 Gaining audience in the Commission on Human Rights requires that the complainants themselves file the case, and that all national and regional avenues have been exhausted. When problems are heard or investigated by the commission, action is often limited to formal expressions of concern or the appointment of a special rapporteur to investigate the charges. The political impact of a human rights investigation can include potential effects on favored-nation trade status.23 A recent example of a case heard by the commission is the March 30, 1998, case filed by the the International Peace Bureau on behalf of the Mapuche people that denounces the Chilean government for violations of the rights of persons belonging to national or ethnic, religious, and linguistic minorities. The commission issued a statement of concern and invited Mapuche leaders to testify at the 1999 meeting. In 1999, increased attention to human environmental rights complaints in Chile was accompanied by an escalation of conflict. Between December 1998 and May 1999, over 100 arrests were made in different Mapuche communities, and on many occasions police and armed civilian guards beat, threatened, and tortured people. Mapuche journalists were imprisoned and had their equipment confiscated. Mapuche lands and resources continued to be confiscated by both the state and private interests. Mapuche activists filed complaints with the European Parliament and, in April 1999, returned to Geneva to provide testimony to the UN Human Rights Commission. On April 19, 1999, Pedro Cayuqueo, secretary of the Co-

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ordination of Arauco-Malleco Communities in Conflict and a Mapuche leader, was arrested in the Santiago airport as he returned from giving testimony to the commission. The report presented to the commission by Cayuqueo includes details on involuntary relocation, illegal deforestation, and environmental degradation on Mapuche lands by the companies that include Arauco S.A., Mininco S.A., Volterra Ltd., Shell, Mitsubishi, and Amindus. These activities occurred in violation of Chilean national law, and with support and protection of some members of the Chilean government. The report also detailed human rights violations, especially in the provinces of Arauco and Malleco, where the indigenous communities of Cuyinco, Pascual Cona, Rucananco, Pichiloncoyan, and Temulemu had been prevented from freely using public roads and rights of way through land in dispute and were illegally detained and tortured by the police. When people organized protests their leaders and lawyers were arrested and detained.24 In reviewing the record of success in bringing cases of local human environmental rights abuse to national and international legal arenas, it is clear that the courtroom is not always, and in fact is rarely, an effective arena for actually resolving human environmental rights conflicts. As environmental legal scholar Armin Rosencranz notes, the success of a precedent-breaking case—where the court finds on behalf of the plaintiff and appeals to the decision similarly find on behalf of the plaintiff—is often followed by a tightening of the legal system in ways that prevent the future airing of similar cases.25 In many cases, it is the psychosocial threat of impending lawsuit (the power generated by fears of what may occur) that is the most politically significant aspect of power in using formal political structures to seek accountability in human environmental rights abuse. And, even though the psychosocial threat of international scrutiny and political economic sanctions allows the commissions and forums created by global and regional human rights treaties and covenants to exert some influence on sovereign nations, it is the involvement of the informal political sector—through monitoring, organizing, protesting, and reporting—that brings abuses to light, generates interest and attention, and forces (to whatever possible degree) compliance with national and international human rights norms.

Backlash The social conflicts emerging from human environmental rights abuse contexts involve such questions as these: Who has the authority to define resource use, the “state” in its actions or granting of permits to

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outside economic interests or the affected communities? Who are affected peoples? Who participates in shaping development and other decisionmaking agendas? Who has the authority to evaluate, modify, assess, or reassess the implications of state-sponsored or sanctioned change? Who holds social and environmental culpability when sanctioned change brings adverse affects? Who is responsible for remediation? How do we respond to human environmental crises that are the legacy of past governments? What is the basis for determining socially just measures of compensation? These questions testify to the dysfunctional nature of our current system of state and international governance, where decisions are often made to further the interests and agendas of such entities as governments and corporations and the forces of economic development or national security in ways that adversely affect the rights and futures of local communities. The culpability gap involves social, political, economic, and geographic distance between those who decide and those who pay the price of decisive actions. Confronting this distance, by organizing, communicating, and actively confronting and engaging culpable agencies and parties, represents an effort to bridge the culpability gap. However, asking these questions also threatens the stability of existing power structures and, thus, can prompt severe responses. Backlash is inevitable. At times, governments and industry respond to popular movements by providing services or meeting demands in ways that serve, intentionally or unintentionally, to co-opt the goals of a movement and deflate the power of movement leadership. Disinformation campaigns, corporate “greenwashing,” publicly acknowledging culpability but responding to problems and victims in relatively minor ways, and creating regulatory and decisionmaking frameworks that give the image of addressing the concern but are implemented in limited and restrictive fashion are all actions that neutralize a potential threat to the status quo.26 Global access to computers, faxes, modems, satellite communications, and solar-power battery packs has provided the powerless with a voice and the cyberplace to air and strengthen that voice, but the potential power of the Internet is recognized by state governments, and there is increasing evidence of state efforts to filter and restrict access and use. For example, in 1993 the Chinese government banned private ownership of satellite dishes. In January 1996, it imposed rules that required all foreign-owned economic news services to be distributed through the official China News Agency, and in September 1996 previously inde-

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pendent net servers were required to register with the government and sign pledges to limit politically and sexually sensitive materials. China’s Internet communications system flows through a few “choke points” making censorship relatively easy, allowing through material for preapproved addresses and filtering out material with key words in their headings.27 The economic staying power of government and industry opponents contributes over the long run to the relative ineffectiveness of many social movements. Movements lose their mission and purpose when inertia sets in, when successes are followed by even bigger setbacks, when the power of money corrupts the ideals of activism, and when the agenda and strategies are co-opted by opponents. And there are cases where backlash is of a more overtly violent nature, with actions that terrorize communities and result in the loss of liberty and life.28 There is growing evidence that government and industry see environmental quality/social justice activism as a form of community empowerment that represents a potential future threat. Movement leaderships receive threats, have their offices ransacked and records confiscated, and are arrested and imprisoned or killed. Community supporters are threatened, beaten, banished, or killed. Governments may be directly responsible or, through their approval or “blind eye,” indirectly responsible. As an illustration, on May 4, 1999, Colombian anthropologist and University of Antioquia professor, Hernán Henao, was attacked at gunpoint by three unknown intruders who broke into a faculty meeting. Professor Henao, the director of the Instituto de Estudios Regionales, a university research center coordinating studies of conflict, community development, environmental policy, and cultural diversity in the region surrounding Antioquia, died shortly afterward. At the time of his death, Professor Henao was conducting research on the social impact of proposed energy development and the living conditions of the displaced populations of nearby Uraba, some 1.3 million peasants who have been forced off their lands by paramilitary organizations. (The paramilitary organizations were originally set up by the Colombian military to fight leftist guerrillas and are currently supported by local landlords who, according to news accounts, are active in the drug trade and involved in a concerted effort to depopulate the countryside in order to expand large cattle-ranching enterprises and implement other development plans). Massacres of whole village populations have been reported, with no government response to such abuses. As one result, by May 1999 there were twice as many internal refugees in Colombia as there are in

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Kosovo. Colombian scholars who study this phenomenon come increasingly under paramilitary threat and attack. Hernán Henao is the seventh professor at the University of Antioquia to be murdered in the previous 10 years, and the university has received violent threats from numerous armed groups, both on the right and the left, unhappy with its research agenda. Dario Betancourt, a historian and director of the Social Sciences Program at the National Pedogogical University, and a wellknown specialist on violence, disappeared in Bogota on April 30, 1999. Mario and Else Cauldron, researchers in the Jesuit Center for Research and Popular Education, were murdered in their home in 1997.29

Conclusion The fact that communities across the world confront life-threatening situations, find no help from government, or see government as responsible for their plight contributes to the formation of social movements. These movements involve the use of formal and informal political mechanisms to lobby for, or to force, substantive changes—changes in policy and action that reinvest communities with the power to participate in local development decisions (including the power to say no). Human and environmental advocacy efforts have been successful, to some degree: some governments and funding institutions have adopted rights-protective policies and decisionmaking structures (including, for example, impact analysis and public participation requirements). However, the culture and power distortions embedded in institutional structures and decisionmaking systems mean that policies are employed selectively, and mechanisms to enforce their use are largely relegated to the informal political arena. This analysis suggests that as exploitation of the world’s resources and degradation of the biosphere intensifies, movements to reshape priorities and way of life will play an increasingly significant role. These movements, in their actions, successes, or potential for success, represent threats to the status quo and thus play a role in the genesis of violent conflict. This cycle of confrontation, conflict, and chaos may be an inevitable part of the process of change, but whether that change is short-lived or sustaining depends in large part upon the structural arrangement of power and whether, within this arrangement, individuals and groups have the ability and opportunity to voice complaints and seek redress in rights-protective arenas.

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Notes 1. As noted in Fatima Zaire Ksentini’s preliminary UN Report on Human Rights and the Environment prepared for the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (UN Doc.E/CN.4Sub2/1991/8). Many of the conceptual ideas in this chapter were originally developed as a contribution to Ksentini’s study and later refined in Johnston, 1994, 1997, and Donahue and Johnston, 1998. 2. After Shirmer, 1988. 3. According to the Summer Institute of Linguistics, there are some 6,701 languages in the world today. See their Web site at http://www. sil.org/ethnologue. 4. For a discussion of endangered languages, see Krauss, 1992. Linguist Luisa Maffi (in press) notes that while half the world’s population speaks one of ten languages, and 90 percent of the world speaks one of 300 languages, there are an estimated 5,000 to 7,000 languages spoken today on the five continents (32 percent in Asia, 30 percent in Africa, 19 percent in the Pacific, 15 percent in the Americas, and 3 percent in Europe). Of these languages, about half are spoken by communities of 10,000 speakers or fewer; half of these, in turn, are spoken by communities of 1,000 or fewer speakers. Thus, most of the world’s linguistic diversity is maintained by very small communities of indigenous and minority people. 5. See Colburn, Dumanoski, and Meyers, 1997. 6. For a series of comparative studies examining the culture and power dimensions of water access and use, see Donahue and Johnston, 1998. 7. For a review of individual cases of human rights abuse tied to environmental issues (especially efforts to disseminate environmental information), see Defending the Earth: Abuses of Human Rights and the Environment by Human Rights Watch and the Natural Resources Defense Council, June 1992. For examples of group rights abuse, see Johnston, 1994, 1997. 8. George Appell has conducted a cross-cultural comparative analysis of human rights abuses; he found dehumanizing discourse characteristically used as a means of legitimizing unequal social relations. See, for example, his 1991 article “Dehumanization in Fact and Theory: Processes of Modernization and the Social Science.” This discussion is heavily influenced by Bodley (1992), especially the latter’s ideas on the role of ethnocentrism in justifying oppressive state policies. For historical examples of the use of ethnocentric philosophy to justify government action see Bodley, 1988, especially Herman Merivale’s 1861 essay, “Policy of Colonial Governments Towards Native Tribes, as Regards Their Protection and Their Civilization.” 9. See, for example, the various issues of Cultural Survival Quarterly and Cultural Survival, 1993. 10. Bodley 1982. For a review of the socioenvironmental impact of largescale hydroelectric dam projects, see McCully, 1996. For political ecological analysis of agribusiness and other export-oriented development strategies, see Stonich, 1994; Faber, 1993. For a discussion on the social impacts of biodiversity conservation, see Gray, 1991.

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11. See, for example, Gedicks, 1993; Chavkin, 1984. 12. An example of ethnocentric bias in the scientific parameters used to define “safe” thresholds of dioxin exposure based on European male consumption and physiological norms is described by Gismondi and Richardson, 1991. Standards did not account for the increased dietary reliance by Native American populations on dioxin-contaminated fish, nor did they include consideration of dioxin’s effects on females or children. 13. For a critical discussion of compensation efforts, see Dembo et al., 1988. 14. As discussed in Johnston, 1997. For a case-specific example, see Hassoun, 1998. The link between environmental scarcity and violent conflict has shaped the “environmental security” field (see, for example, Meyers, 1996) and has stimulated an increase in government and private-foundation funds for environmental security projects that track and map potential “hotspots” in an effort to develop an “early warning system” approach. See, for example, Homer-Dixon, Thomas, and Rathjens, 1993. 15. Information and communications technology play a significant role in disrupting and (ideally) transforming traditional power structures, but access to the tools and space is still, for the most part, restricted to developed-world actors and their interest-specific agendas. As Holderness (1996/1997) notes, in 1995 some 40 million people in 100 countries had access to the Internet, but at least 80 percent of the world’s population still lacked basic telecommunications. China has fewer than one telephone per 100 people; India has 8 million lines but 950 million people. Of the 500,000 “host” Internet computers, 70 percent are based in the United States, and more than 50 percent of the world’s Internet-connected computers are in the United States. Access to information flows sees increasing problems—unstable phone lines slow communications transmission rates and dramatically increase the cost of downloading. Given American dominance in servers, sites, and users, English has become the prevailing cyberlanguage. And the loci of production and rate of change in computer equipment capability means American users continually upgrade while their hand-me-downs dominate third-world markets. Currently there are no major servers in the United States that allow text-based access to the Internet. 16. Examples are numerous. See, for instance, the Arctic Circle Web site created by anthropologist Norman Chance in 1995 providing a means for Arctic peoples to communicate, a forum to publish environmental quality/social justice information, and a “virtual classroom” site for high schools and universities across the Arctic to tap into. http://www.lib.uconn.edu/ArcticCircle. 17. For an excellent tactical essay on building international environmental justice links, see Kiefer and Benjamin, 1993. For an analysis of social movements in the Southern Hemisphere, see Wignaraja, 1992. For a rare successful case of community activism against a government-endorsed chemical multinational development scheme, see Alvares, 1991. For an examination of the role of nongovernmental organizations (NGOs) in stimulating World Bank reform, see Fox and Brown, 1998. 18. Popovic, 1996. 19. This summary of the Nikitin case is based on e-mail sent to me by activists at the Bellona Institute (1996–2000) and press releases and articles posted on the Bellona Institute Web site. http://www.bellona.no/e/ russia/nikitin/.

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20. Greer, 1998a, 1998b. 21. Documents on the ILO Web page, www.ilo.org, include “Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169.” Not only does this treaty acknowledge indigenous and tribal peoples’ rights, it also establishes a mechanism by which complaints against the state can be heard, if the abuse in question is brought forth by a labor union, government, or industry, and if the abuse takes place in a country where the ILO convention has been ratified. 22. In “Human Rights and the Environment: Final Report,” prepared by Fatima Zaire Ksentini (UN Doc. E/CN.4/Sub.2/1994/9), and reprinted in Johnston, 1997. 23. For an analysis of implementing mechanisms contained in United Nations treaties and covenants, see United Nations, 1996. 24. This summary is drawn from Chilean newspaper articles reprinted on the Web sites of the Mapuche Foundation (http://www.bounce.to/cim) and Rehue Foundation (http://www.xs4all.nl/~rehue), and in Johnston and Turner, 1998. 25. Armin Rosencranz (1998) discussed these points. 26. For example, government recognition of indigenous land rights in Brazil has been inconsistently enforced, with greater protection provided during times of global interest on the issue (during and after the 1992 UNCED Conference in Rio de Janerio, for example). In January 1996, the government revised rules for indigenous land demarcation, giving greater voice to those who illegally occupy indigenous peoples’ lands. Violent conflicts have increased, as have the number of people killed in land conflicts. In the first 6 months of 1996, thirty-three people were killed in conflicts between military police and “landless rural workers,” and since the new government came into power in January 1995, seventy-six people have been killed in land conflicts. With millions of landless poor in Brazil, the politics surrounding indigenous peoples’ reserves intensify. Families move on their own into the reserves, prompting violent conflicts with indigenous peoples. Landed interests push for reducing reserve size, especially when faced with the possibility of seeing current holdings acquired by the government to use for agrarian reform. See Schwartzman, Araujo, and Pamkarau, 1996. 27. San Jose Mercury News, “China Steps Up on ‘Spiritual Pollution,’ Limits Web Site Access,” September 6, 1996: 16A. 28. Examples of repressive backlash are all too common, as action alerts written by Patrick McCully in a November 1993 issue of The Ecologist illustrate: “Police Open Fire in Maharashtra Village: Tribal Youth Dead, Three Villagers Seriously Wounded,” Narmada Action Alert, November 19, 1993; “Police Lathi Charge NBA Demo: 150 Injured, 50 Seriously,” Narmada Action Alert, November 22, 1993; “Medha Patkar Beaten in Police Baton Charge on Narmada Dam Protesters,” press release, November 22, 1993. 29. Letter of concern distributed to the American Anthropological Association (AAA), from AAA President Jane Hill, Society for Latin American Anthropology President Joanne Rappaport, Committee for Human Rights Chair Tom Greaves, and Colombia Support Network representative John I. Laun. Related news articles published on the Colombia Support Network Web site. http://www.igc.apc.org/csn.

6 Political Community and Human Rights in Postcommunist Russia Peter Juviler The Context of Human Rights: Legacy and Community

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ussia’s difficult passage from Soviet communism toward democracy and the rule of law provides extraordinarily severe tests of universalism and the viability of protecting basic human rights beyond the West. Will Russia fail the test? Nothing credibly predetermines that it will. Instead of cultural relativism and unqualified universalism, I suggest an approach that one could call “contextualism.” Rather than uphold either a rigid cultural relativism or a sweeping universalism, contextualism means that “international human rights” cannot be literally transplanted according to some uniform interpretation. The process of accepting and adapting human rights in a democratizing country reflects the total context of that country’s legacy, outlooks, institutions, politics, and circumstances. Together, they determine the inclusiveness and cohesion of any postcommunist, democratic political community. Such a community is slowly forming in Russia. The most difficult stages of democratic consolidation lie ahead.1 Russia has hung on to “electoral democracy,”2 in federal contests and most local ones, through a series of crises—the coup attempt of August 1991 and the breakup of the Soviet Union that December; the obliteration of savings in 1992 and 1998 and general hardships alongside ill-gained wealth; the violent confrontations of 1993 over increases in presidential powers; the periodic fighting among and against North Caucasians, and particularly, the Chechnya wars of 1994–1996 and 1999–2000; the bank failures of August 17, 1998; the faltering health and resignation of President Yeltsin; and what human rights advocate 115

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Ludmilla Alekseyeva called “a shocking explosion of anti-American and anti-Western feelings” during the 1999 crisis over Kosovo.3 But the test has only begun. Community is central to that test. Adamantia Pollis in Chapter 1 of this book refers to varieties of community as central whether in the East or West. In fact, it is community that provides the key to human rights, rather than some traditional primordialism suggested by cultural relativists. Active communities comprise the persons and associations committed to cooperation in pursuit of common purposes—neighborhood, cultural, ethnic, professional, religious, and humanitarian, among others.4 All active communities have a legitimate decisionmaking authority. The political community of a region or country is a particular form of active community. Its decisionmaking authority, public government, is the most inclusive and binding of all. Not everyone belongs, even in strong communities. There are always the dropouts, the rejected; the political community does not include all residents of a given territory. The political community of a country, as conceived here, includes those persons in and out of government who recognize the legitimacy of its government, and who share a basic consensus about a common regional or national identity, purposes and procedures, rights and duties, and means of peacefully resolving conflicts. The political community was once central to political thought, but it has dropped out of our ken in recent years. Yet it is vital to the consolidation of any system of government and rights. The political community is, according to David Easton, “a premise upon which the continuity of any political system depends.”5 The guiding norms of a consensus on human rights and obligations are never fixed, but, as Adamantia Pollis notes, are “in continuous contention and in flux both in the West and the non-West.” So far, the flux in Russia has yet to form that society into a democratic and rights-protective political community stable and inclusive enough to fulfill Russia’s constitutional guarantees and international obligations to protect civil, political and economic, and social human rights.6 The problem for Russia and its other post-Soviet neighbors is to form a new consensus in a new inclusive political community amid the particularly difficult legacy of the previous failed Soviet communist community. That legacy reflects decades of communist social, political, and legal “cleansing,”7 which destroyed the emerging prerevolutionary Russian democratic political community. It has left Russia with an imbalance between (1) relatively weak and inexperienced democrats and civil society, and (2) the Soviet legacy of a powerful, corrupt state administration, but lacking its former Communist Party overseer.8 An

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extreme economic imbalance left a heavy and costly Soviet stress on investment in the military and heavy industry for an otherwise poor superpower.9 This chapter takes up first the most troubled areas of Russian human rights—civil rights in law enforcement and the aggravations of poverty. It then touches on the criminalization of governance at the hands of rampant countercommunities, the impact of those antidemocratic communities on the uncertain but still evident political freedoms and minority rights, and the ambiguities of Russian federalism. Holdovers of totalitarian conformity and a crisis of identity encroach on new religious freedoms. The context for human rights reveals both setbacks and signs of resistance to the democratic cleansing of communism.

Public Disorder and Civil Rights Through its constitution, international agreements, and laws, Russia has undertaken to uphold the human rights of due process, impartial justice, and personal inviolability.10 Soviet-era law put protection of “the person and rights of citizens” third after “the protection of the Soviet social and state system” and “socialist ownership.” New Russian criminal legislation places the protection of an “individual’s human rights, freedoms, and property” first, ahead of protection of “public order and safety, the environment [a new purpose] and the constitutional order of the Russian Federation.”11 But law and actual rights remain far apart. Public order in the full sense means both a state of obedience to law and personal security against crime and abuse, whether in public or in the home.12 Its full protection requires a rule of law binding on both government agencies and members of society.13 It requires also a functioning political community of citizens and officials. In the words of Charles Caldwell, director of the Institutional Reform and Information Sector at the University of Maryland, the “rule of law consists of a variety of institutions working together: the courts, the laws, implementation agencies, the understanding of the bar, and the broader public.”14 Soviet Russia had no rule of law. It did have Communist Party rule, however, and the party set limits on corruption. Now that the Soviet political community has collapsed such restraint is absent, and is yet to be replaced by effective public accountability or by a system of checks and balances. Law enforcement agencies “remain largely unreformed.”15 Criminal procedural law does not yet live up to the constitu-

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tional promise of habeas corpus (which would require a judicial order to keep a suspect in detention). Nor does the law provide for bail procedures that would relieve the pressures on overcrowded detention centers, where suspects may “sit” for years—that is, unless they are rich and influential enough to get out in hours or days. Overloaded courts, too broke to mail subpoenas, lose key witnesses. Bailiffs are known to use their own envelopes to summon witnesses in civil cases. Courts unable to pay their bills lose electricity and telephone service.16 Detainees have the right to counsel from the time of their arrest, but high legal fees and the poor quality of free legal assistance deprives many indigent suspects of the right to counsel.17 The conduct of pretrial investigations and prosecutions continues to be compromised by excessive prosecutorial powers, the short tenure and inexperience of low-paid young investigators, and a general resistance to reform in law enforcement agencies. Lectures and mock trials by U.S. jurists in Russia have had “absolutely no effect” according to a leading defense attorney, Yuri Schmidt; a public backlash against crime supports this position.18 Courts show some signs of growing independence, bribery notwithstanding, sometimes at peril to life and limb. Leaving decisions on guilt or innocence to juries, rather than to the usual bench of one professional judge and two lay assessors, occurs selectively in the nine regions out of eighty-nine (with 23 percent of the population) that have found the resources and the will to reinstitute jury trials. Such trials had been absent since the judicial cleansing after the Bolshevik takeover. Juries sit in trials for serious felonies involving sentences of 15 years or more. Acquittal rates in jury trials are more than nine times the 2 percent in nonjury trials.19 The Constitutional Court of the Russian Federation operates with the reduced powers left it in 1994 by President Boris Yeltsin, who had struck back after a majority of the court attempted in 1993 to block his “presidential coup” of constitutional revision to strengthen his powers vis-à-vis the State Duma, the lower parliamentary chamber. Yeltsin “packed” the court by enlarging it from thirteen to nineteen members. Its new statute eliminated its authority to initiate constitutional reviews of laws and treaties or to hear any cases of alleged governmental abuses or illegal decrees (the major part of governmental norms). From the Constitutional Court on down, decisions lack adequate enforcement:20 local authorities tend to ignore Constitutional Court decisions and central decrees aimed against administrative abuses. For example, one more flagrant abuse has been the retention of residence permits despite the Constitutional Court’s annulment of such requirements as unconsti-

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tutional. But Moscow Mayor Yuri Luzhkov announced defiantly over public television that he would not carry out the court decision and ordered police to continue following the old regulations for residence permits. The federal government made no response. Russia has the world’s highest rate of incarceration: 740 per 100,000 in the mid-1990s. Compare this with 60 per 100,000 in tsarist Russia. Was this because it was an agrarian country in that era? Well then, compare it with the present incarceration rate of about 72 per 100,000 in predominantly urban England and Wales. 21 Neither the United States nor Russia can be proud of conditions in their prisons, but Russia’s jails seem particularly hellish. Some ten to twenty thousand inmates die each year as a result of beatings, overcrowding, malnutrition, and lack of sanitation or adequate medical care. Preliminary detention jails (SIZOs) hold over 270,000 inmates out of a total prison population of more than a million. The SIZOs are so overcrowded that prisoners must sleep in three shifts (a match will not strike in some of the unventilated cells). Outside their cells, inmates face the possibility of a variety of police torture to extract confessions, true or not. Police and jails in the United States set no overall records for human rights, but Russia’s surely set no example for the United States or anyone else.22 It is small wonder, given the inadequate treatment and general conditions, that rates of tuberculosis infection, including drug-resistant strains, reach about five times the already very high rate in the general population. “Today’s prisons,” says human rights champion and former political prisoner, Sergei Kovalyov, “mirror our catastrophic society. The evils that plague us, plague them: no health care, no education, no fairness, no rule of law.” The Ministry of Justice took control of prison facilities from the Interior Ministry (in charge of police and special forces) in September 1998. The head of the Ministry of Justice may openly deplore conditions, a Duma committee may investigate them, and a president’s commission may propose reforms, but they all lack the means to carry them out. Russia’s vast overcrowding in SIZOs results from the long pretrial detention that averages about 18 months, but sometimes lasts up to 5 years, usually without chance for bail, and from high crime rates. Crime has risen considerably since the late 1980s. Officially reported murders and attempted murders in Russia more than doubled between 1991 and 1995, dipped for 3 years, then rose again in 1998. Russian women are two-and-a-half times more likely to be killed by their husbands than are women in the United States.23 Half the murder victims

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are women.24 Russian society is not alone among violators of women’s rights, but it leads among industrialized countries in its laggard responses to rape, sexual trafficking in women, and employment discrimination. The Russian government cosponsored an international conference on violence against women in October 1998: this new concern, together with the growth of women’s advocacy, is a sign of potential for change in a situation that affects the well-being of Russian children as well.25 An absence of fairness and rule of law plagues the armed forces. The dismal situation of army conscripts has left them little better off than prisoners in the jails. Over one thousand recruits die annually from hazing, hunger, and lack of medical care. A fifth of the deaths are suicides. On the positive side, the Military Procuracy (Judge Advocate’s Office) has begun to cooperate with a very active NGO, the Russian Soldiers’ Mothers Committee, to investigate abuses. The committee runs a complaints hotline, but it believes that fear keeps most victims of abuse silent.26

Lost Rights Public order and freedom depend indirectly but crucially on human beings’ enjoyment of economic, social, and cultural rights. The Russian constitution officially commits the government to uphold such rights, as spelled out internationally.27 It affirms “the protection of people’s labor and health, a guaranteed minimum wage, and children, the disabled, state assistance to the family, and senior citizens; the system of social services is developing, there are state pensions, grants and other guarantees of social defense.”28 All those guarantees however, at one time fulfilled in rudimentary form, have become almost dead letters. The President’s Commission on Human Rights (when former dissident Sergei Kovalyov was chair) concluded from citizen complaints and appeals that “violations of social and economic rights and citizens’ legitimate interests constitute the most widespread form of human rights abuse and are the main source of social tension.”29 Workers in many fields, from education and science to the military, as well as pensioners, go unpaid, often owing to the embezzlement of funds by bureaucrats and employers. The disarray in science justifies fears of nuclear criminality—the theft and covert sale abroad of fissionable material and technology beyond official control.30

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Symptoms of social breakdown include violations of the right to health through inadequate care and worker safety and stress and deprivation. One outcome is men’s terribly short life expectancy, about 58 years, a third-world level, and 13 years shorter than that of women. The rise in mortality is associated with the tensions, alcoholism, and hazards of daily life and work. Higher increases in morbidity for men than for women since 1990 came despite extensive social discrimination against women and high rates of mothers’ deaths in childbirth.31 Life’s growing difficulties have undermined cohesion of the already vulnerable family and have cast between 1 and 2 million abandoned children onto the streets and into orphanages that range from second homes to grim, cruel schools of crime. Cohorts of abandoned children recall on a smaller scale the millions of besprizorniki—homeless waifs of the 1920s and early 1930s. Shelters held more abandoned and orphaned children by the mid-1990s than they had during World War II. Aleksandr Baranov, chairman of the Russian Union of Pedriaticians, finds that “there are almost no completely healthy children or teenagers in Russia.”32

Countercommunities Both Russian and Western researchers have associated the economically devastating and criminalized nature of privatization in the Russian Federation with the carryover of a powerful and corrupt state apparatus.33 It is a bureaucracy without the constraints that the party once set within the Soviet political community. In that community, party rule substituted for the rule of law through what Robert Sharlet terms “a highly centralized, top-heavy, single-party dominant system.”34 A well-connected few, World Bank officer John Nellis now recognizes, privatized enormous state assets at bargain prices. The new owners only rarely reorganized and invested in their companies; rather, they siphoned off company assets. Contextually, privatization took place in an institutional vacuum, lacking the framework of laws and regulations to avert degeneration rather than regeneration of enterprises. 35 One heard only belated warnings from the World Bank and various Western creditor governments. Privatization thus failed to improve performance and, instead of adhering to the rule of law, nurtured increased criminality in Russia. After the collapse of the Soviet communist political community, and without party-imposed restraints, Russia’s inexperienced and dis-

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united democrats found themselves up against powerful and criminalized countercommunities that grew more rapidly than did the democratic counterweights.36 The countercommunities spread into the privatized sector. Politicians and organized crime joined forces and, according to John Borneman, “benefited too much from legal disarray to respect or encourage the development of an autonomous judiciary” to protect citizens’ rights and regulate contracts.37 As a result, evasions, threats, and killings often substituted for the courts’ enforcement of contracts and for legally arranged mergers and acquisitions. Businesses depended on security guards and kryshi, or paid-off “covers” of mafia and police for protection.38 During the 1990s, organized crime groups and their accomplices in government and business arranged with near impunity hundreds of gangland-style killings of officials, Duma aides, muckraking journalists and other public figures, businessmen, and bankers.39 Human rights to life, security, property, and information necessary for accountability suffered accordingly. The killing of the honest deputy mayor of St. Petersburg, Mikhail Manevich, chair of the City Property Committee carrying out privatization, on August 18, 1997, could have been arranged by persons opposed to his drive against corruption.40 On September 28, an apparently less honest official, Yevgenii Agarev, the deputy chairman of a St. Petersburg office for municipal services, apparently involved in a corrupt service for funerals and burials, fell victim to a remote-controlled bomb. Preventing exposures of rackets in city government could have been the aim of the murder of a leading democrat and opponent of corruption, Deputy Galina Starovoitova, in that same city on November 20, 1998. The local press carried stories that she had obtained evidence incriminating corrupt officials.41 Russia’s failure to protect such victims (or at least to apprehend their murderers) has signaled the absence of any rights-protective political community; corrupt politics have weakened and delegitimized the state as protector of human rights.42

Uncertain Freedoms Public order depends for its maintenance upon the protection of civil rights. But their protection, in turn, is inseparable from the political rights that uphold the freedom of society and the accountability of government. The years of perestroika in the USSR, from 1987 to 1991, transformed the Soviet ideology of rights, law, and justice to accord

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with a new promise of freedom under law. Russia’s constitutional revisions limned a new free and democratic political community. Its international obligations imply nothing less, and to some extent this has happened. Political rights are less dependent than are other human rights on positive action by the bureaucracy, because the public calls leaders more or less to account at voting time. A growing network of underfunded human rights NGOs, such as the above Russian Soldiers’ Mothers Committee, and occasional strikers and demonstrators attempt to sustain the input from below. NGOs maintain centers for assisting and protecting persons deprived of various human rights. But general poverty, limited philanthropy, and laws that ban tax deductions for charitable contributions leave the NGOs heavily dependent on foreign donations.43 Even a stronger network of NGOs would not deter rich “new Russians” from trying to swing an election through a blitz of media ads or slanted coverage, as they seemed to have done in the presidential elections of 1996. NGOs and media have exposed, but nowhere near ended, attempts to prosecute and hound critics into silence. Nor can NGOs and the media and some courageous judges by themselves eliminate subsequent miscarriages of justice. Trial judges find themselves caught between their legal instincts to dismiss trumped-up charges and their fear of retribution should they acquit, even if the evidence calls for it. A frequent way out is to waffle by sending a case back “for further investigation,” as in the Nikitin case. Two whistle-blowing environmentalists—Aleksandr Nikitin, and Grigori Pasko—incurred the wrath of the Federal Security Service (FSB), successor to the KGB. After Nikitin’s indictment on February 6, 1996, his well-connected defense lawyer’s complaints aroused a storm of international protest, and may have accounted for Nikitin’s release from pretrial detention later that month. Nikitin finally went on trial in October before a St. Petersburg court, on charges of espionage and revealing state secrets, for coauthoring a report with Bellona, the Norwegian environmental NGO. The report detailed the dumping of nuclear waste by Russia’s Northern Fleet. The defense claimed that all information had been in the public domain. Given the lack of evidence to the contrary, the St. Petersburg City Court, possibly caught between protest abroad and fear of possible reprisals at home, returned the case “for further investigation,” and then on rehearing acquitted Nikitin. Grigori Pasko, a naval officer in the Russian Far East, had joined with a Japanese newspaper and television network to expose environ-

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mental pollution by the Russian Pacific Fleet. This included the dumping of liquid nuclear wastes from submarines in the Sea of Japan. The FSB kept Pasko in confinement after his arrest in the Far East in November 1997, but finally acquitted him also, in the summer of 1999. One cannot fail to note the stark contrast between (1) the security service’s determination to prosecute Nikitin and Pasko for crimes not committed in their exposure of government malfeasance, and (2) the failure of law enforcement to apprehend and prosecute most contract murderers (only some 10 percent of such crimes have been solved), including the murders of those who would expose corruption and other malfeasance.44 Something, however, has survived of the political rights to freedom of expression and information, conscience, association, assembly, and franchise as spelled out in the constitution and in various treaties and agreements to which Russia is a party. The Russian media do go after the bigwigs. They carried, for example, reports of the opposition to, and the horrors of, the government’s assault on the breakaway republic of Chechnya in the North Caucasus, from December 1994 to May 1996. Yabloko Party leader, Grigori Yavlinski, has rightly called that assault “the most bloody event on the territory of our country since the death of Stalin.” Media and human rights advocates, including the Russian Soldiers’ Mothers Committee, kept the public posted (in ways impossible under Stalin) about some of the worst violations of public order by the government since that dictator’s time. Presidential elections of May–June 1996, and the desire of Yeltsin and his oligarch supporters that he win, had much to do with General Lebed’s opportunity to arrange a cease-fire with the Chechen command. But, by contrast, after Russian attacks resumed on September 23, 1999, the government suppressed media coverage of the ensuing carnage.45

Minimalist Federalism and Local Rights The Russian constitution contains vague principles of federalism, balancing affirmations of territorial integrity against the recognition of “the equality and self-determination of the peoples [various indigenous ethnic groups] in the Russian Federation.”46 Reconciling these opposing principles goes on in the largely peaceful bargaining between the central government in Moscow and each of the eighty-nine subjects of its far-flung federation: twenty-one republics named after the main nonRussian minority group there, and sixty-eight regional subjects in the

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form of oblasts (provinces), krais (more sparsely settled territories), and major cities. Under the 1993 constitution the republics retain rights to their own flag, state language, and constitution, while the regions may have only a charter. Each federation subject sends two representatives to the upper house of parliament, the Federation Council.47 That said, elements of real, if untidy, federalism include the allowance of a very un-Soviet diversity in republic constitutions and forms of government. Various signs, such as electoral participation and the politics of compromise in center-regional relations, suggest that multiethnic federal nation building has begun.48 Russia’s makeshift federalism satisfies most regions. Except for Chechnya, Michael McFaul notes, “all subnational governments have acquiesced to a minimalist maintenance of federal order. The danger of dissolution is remote.”49 Minimalist federal order is correct. The decentralized federal order releases local initiatives and grassroots involvement. It also encourages abuses of power. Federalism stretches political community up to and beyond its limits of consensus on rights and obligations. Local officials, in violation of federation laws, learn to ignore uppity judges. Kola Salmon Marketing successfully sued the Murmansk Province Administration to recover confiscated property and damages for a broken contract. That suit was affirmed by the Russian Federation Supreme Court. But the judges’ “refreshing willingness to rule according to the written law . . . came to nothing,” says the aggrieved foreign investor. “The Administration simply chose to ignore the court order.”50 Confrontations with the authorities can be dangerous for advocates, journalists, and attorneys and judges in any number of federation subjects. A minimalist federal order frees local rulers, so inclined, to pressure judges and harass critics, to sue them, bring false criminal charges, or even put out contracts on troublemakers. Sometimes federal authorities, even the prosecutor’s office, become accomplices, as they did in the Chaikin case. Vasili Chaikin, an activist in the Krasnodar provincial Association for the Protection of Human Rights, complained in 1996 to the prosecutor general of the Russian Federation that the Krasnodar prosecutor, A. Khrebets, had abused his office and engaged in embezzlement. Rather than open an investigation, the prosecutor general forwarded Chaikin’s letter to the same Prosecutor Khrebets. Local police then arrested Chaikin in April 1997 and charged him with having sexual relations with minors and selling pornographic materials. At the trial 18 months later, five of the young women in question disavowed their pretrial testimony as having been extracted under duress by the case investigator.

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According to reports, the judge barred this testimony of police intimidation from the record. After the judge threatened the young women with prosecution for false testimony, they recanted once again and upheld their previous statements. The judge ignored the defense counsel’s protests, and the secretary did not record them. A few days after the judge denied him requested medical treatment, Chaikin had a heart attack, delaying the trial.51 An acquittal on appeal would still leave others to ponder, “Do I want to go through what Chaikin did?” Local newspapers have had to struggle for a free voice.52 Larissa Yudina worked as the courageous and often muckraking editor of the newspaper Sovetskaia Kalmykia Segodnya. Kalmykia, a poor region on the northwest shores of the Caspian Sea, had suffered from central indifference and local corruption. Yudina dedicated herself to the goal “that all Russian laws, good or bad, operate throughout the entire country.” The courts ruled repeatedly that police harassment of her was illegal, but to no avail. On June 8, 1998, Yudina’s body was found in a pond outside the steppe city of Elista. The body showed multiple knife wounds and a fractured skull. One of the detained suspects in the murder had worked for Kalmykia’s President Kirsan Ilyumzhinov, a frequent target of Yudina’s exposés.53 Yudina’s murder was one of fourteen killings of journalists in 1998. Colleagues in the Russian Journalists’ Union joined to keep Yudina’s newspaper going and to support the orphans of murdered newspaper people. Vsevolod Bogdanov, chairman of the union, said that journalists were determined to carry on the defense of their profession despite the crisis that has reduced or cut off their salaries.54 As yet, the journalists cannot count on support from the human rights ombudsman. The first permanent one, a communist, Oleg Mironov, lacks any record of interest or expertise in human rights.55 The Duma had removed the first, temporary ombudsman, human rights champion Sergei Kovalyov, in 1995 for his opposition to the Chechnya war (a war for which the Duma came within seventeen votes of impeaching President Yeltsin on May 15, 1999). Although thus far little has been accomplished, at least the law and the post exist as a potential support for the rule of law.

Minority Rights The 1993 constitution presents the federation and its “multinational people” as a democratic community of equals who freely choose and

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express their ethnic identity.56 Russia’s ethnically diverse society lives largely in peace, although strife and tension exist, especially in the North Caucasus area. Thus, the Russian Federation did not head off the violence that flared up in 1992 between Orthodox Ossetians and the Muslim Ingush who have tried to resettle on land in the Prigorodny District (Stalin had turned it over to the Ossetians after deporting the Ingush). The government tended to favor the Ossetians during the fighting in 1992.57 The problem remains not so much one of separatism among the federal republics and regions, or even government favoritism, as it is of ending disorder, discrimination, conflict, and repressiveness within them. Among the victims of interethnic and intra-Muslim conflicts was the mufti of strife-torn Dagestan, Chechnya’s neighbor, killed by a remote-controlled bomb on his way to the central mosque of Makhachkala.58 Police officers (militsiya, “militia”) in Moscow stop persons with Caucasian (dark) complexions. They take bribes when the detainees cannot show the requisite but illegally required residence permit. During a routine document check, the police even detained a Council of Europe representative with dark features who had come to Moscow to participate in a human rights education seminar. The skinhead attack on an African American U.S. Marine in May 1998 was only one of many attacks on other dark-skinned people, usually from Asia, Africa, the Caucasus, and Central Asia. On occasion, the police have ignored the beating and murder of persons of non-European origin by skinheads. The federation government has failed to follow up on its repeated condemnations of home-grown fascism. It has kept hands off the southern Russian breeding ground of intolerance in Krasnodar and Stavropol. However, in a big change from Soviet times, the government has condemned hate speech and racist violence wherever it occurs, from the State Duma59 and Moscow with its bombed synagogues60 to the desecrated Jewish cemetery in Irkutsk, on down to the stronghold of Russian ultranationalism in the Krasnodar and Stavropol regions in southwest Russia. 61 The government has left behind the old antiZionism (anti-Semitism included) of the Soviet regime, and denied registration to the militant ultranationalist and anti-Semitic Russian National Unity (RNE) under Aleksandr Barkashov. Moscow under the same Mayor Luzhkov who denied full protection to dark-skinned immigrants (or nonimmigrants) barred the RNE congress from Moscow. With all the talk of a repeat of the Weimar Republic, it pays to remember that because of an equivalent stage of social crisis in

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Germany of the later 1920s, the Nazis had become a national mass party, not like the splinter groups with their xenophobic bases in Krasnodar and Stavropol, whose governors have encouraged the ethnic cleansing of various non-Russian inhabitants.

Religious Freedom and Community Identity The controversy over religious rights illustrates the continuing struggle over the meaning for Russia of a multicultural community and minority rights. Russia, like other countries of Europe, East and West, is bound to protect religious human rights as a party to human rights agreements of the Organization for Security and Cooperation in Europe (OSCE) (Helsinki System), the United Nations, and the Council of Europe. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms echoes article 18 of the Universal Declaration of Human Rights (UDHR). Article 9(1) states: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance.62

Religious freedom does not necessarily support human rights. Whether it does or not depends of course on the nature, influence, and diversity of the free religions.63 At its most open, religion contributes to civil society, thus furthering civic involvement and governmental accountability: freedom of religion and other human rights enhance each other. 64 In Russia, the long-time champion of human rights, Ludmilla Alekseyeva, states that “we are trying to build a civil society following the fall of the old Russian system. But you cannot have a civil society without real religious freedom.”65 Conversely, such freedom is compromised, even in democracies, to the extent that they fail to protect minority rights. 66 In fact, some democracies of Western and Southern Europe, such as Austria, Belgium, France, Germany, and Greece, have resorted to discrimination against minority religions as “nontraditional,” “dangerous cults,” or both. 67 To varying degrees, those democracies have discriminated against or harassed minority congregations, including Muslims, Evangelical Christians, Jehovah’s Witnesses, “Moonies,” Mormons,

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and Scientologists.68 Ukraine, although rated only “partly free” by the U.S. NGO Freedom House, has enjoyed generally no less religious freedom, and less official religious discrimination, than do “partly free” Russia, and “free” France, Germany, or Bulgaria.69 After he assumed leadership of the USSR in 1985, Mikhail Gorbachev carried “openness,” including religious freedoms, to limits unknown since the Bolshevik takeover in 1917. By 1998, the turnabout year in democratic reform, the open religious life of Christians, Jews, and others had revived considerably. But limits on it remained. Probably owing to collusion between the Russian Orthodox Church (ROC) and the government, security agents broke up an independent meeting in May 1998 of liberal theologians and Orthodox priests that I had joined as an observer.70 In 1990–1991 further liberalization under Soviet, then Russian, laws spelled out the new constitutional guarantees of religious freedom and separation of church and state. But local practices lagged increasingly behind legal and constitutional guarantees of religious freedom. Backlash and Retreat After a growing backlash against “foreign” and nontraditional religions, led by the ROC,71 came the law that the ROC had been sponsoring “On Freedom of Conscience and on Religious Denominations,” signed by President Yeltsin on September 26, 1997. The law recognizes “the special role of the Orthodox Church in the history of Russia.” It expresses respect for “Christianity, Islam, Buddhism, Judaism, and other religions” as “an integral part of the heritage of the people of Russia.” The law, however, reduced to a third, unfree level those religious groups, including Christian churches, that could not prove 15 years of existence in Russia as of October 1, 1997. To them, article 27(3) denied the right to own property, publish, educate, distribute literature, create mass media, maintain seminaries, and have access to public institutions, until they have reregistered every year up to the proven 15 years of their existence. On November 23, 1999, the Constitutional Court of the Russian Federation, in a case brought by a congregation of Jehovah’s Witnesses in Yaroslavl, ruled that the article did not apply to religious organizations that had registered before the law’s enactment. They had full religious rights if they had registered under the Soviet 1990 law on religious freedom or joined a central religious organization that had so registered. To the extent that the court’s liberalizing decision is respect-

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ed, only religious organizations that first registered after the 1997 law’s enactment face the 15-year restrictions. New associations created after October 1, 1997, must exist 15 years in Russia before registration is possible. Meanwhile, the law denies them the right to own property, to publish and disseminate literature (including e-mail), to teach, and to have access to public institutions. Even religious organizations that meet the requirements of the law for full freedom must have reregistered by December 31, 1999—a potentially hazardous step for their continued full freedom.72 Vladimir Petukhov of the Institute of Social and National Studies sees limitations covering “a huge range, from the Catholic Church to small Baptist groups. Basically this law is a license for local authorities to do whatever they want.”73 In authoritarian style, local authorities escalated their harassment of minority religions, for example, by denying or attempting to deny registration or a place of worship to groups ranging from Hare Krishnas in St. Petersburg to Baptists in Moscow and Lutherans in Tuim, Khakassia. The most frequently targeted religious associations included churches that have existed in Russia since before the Bolshevik Revolution, such as Pentacostalists, Catholics, Orthodox congregations not recognizing the Moscow Patriarchate, and Jehovah’s Witnesses.74 Ludmilla Alekseyeva, an Orthodox believer, notes that “most Russian bureaucrats don’t like independent organizations because they are untidy and, by definition, cannot be controlled.” Galina Krylova, an attorney who has helped to defend Jehovah’s Witnesses and the Unification Church successfully against suits brought by anticult movements through families of converts to those faiths, depicts the 1997 law as “nothing other than an attempt to turn the clock back to the Soviet past.”75 Russia’s crisis of identity plays its part as well. No longer Soviets accepting of communist rule and mythology, Russians ask themselves, “Who are we?” They cannot even agree on the titles and meanings of major political holidays such as November 7, formerly commemorating the Bolshevik Revolution. The liberal Russian Orthodox priest, Father Alexandr Borisov, and ecumenically inclined Orthodox lay people suggest that, in effect, the Communist Party and the ROC share the aim of filling the vacuum of identity and ideology left by the demise of Russian Soviet communism.76 The church depicts itself as a bulwark against the numerous religious missionaries flooding from abroad into a society, as experts point out, fraught with “social and cultural anxieties caused by the uncertainties of the transitional period, including con-

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cerns about national identity.” 77 An ROC spokesperson said of the Russians (80 percent of the Russian Federation’s population): “Their roots are Orthodox. It is our task to return them to Orthodoxy.”78 Eileen Barker concludes that inroads on religious freedom in Russia and some other postcommunist countries reflect a complex of concerns (not unknown in Western Europe as well), including concerns for identity and “competition for followers in the religion market.”79 Witness the ROC’s takeover of the premises of smaller Orthodox rivals not recognizing the Moscow Patriarchate, such as the ROC Abroad, the Free Church, and other dissident offshoots of the ROC in Russia and the Holy Land.80 The ROC and state appear, in one strand of Russian tradition, as “two aspects, sacramental and lay, of the organic whole.”81 This association of the ROC with Russian identity and statehood promotes close relations with the Russian government. The ROC flourished under the tsars, even when under civilian control. The conditions for personal safety and advancement in the ROC no longer include Patriarch Aleksei’s and other hierarchs’ serving as KGB agents.82 Never freer than it is now, the ROC has prospered materially from its generally close relations with the government, and the government has benefited politically from the public blessings of the patriarch.83 The ROC also benefits from the anticult movement spreading east out of Western Europe and from the receptive media.84 According to Marat Shterin, James Richardson, and Eileen Barker, the anticult campaigns have found listeners in Russia’s troubled society, with its “indigenous cultural anxieties, thorny social problems, economic turmoil, and political and group interests, which have been occasionally compounded by excessive enthusiasm of some of the new (and not so new) religious groups and their members.”85 Advocates of religious rights and human rights in other European countries began during the 1990s to collaborate through successful suits for religious freedom and against discrimination in national courts and in the European Court of Human Rights.86 That collaboration is also beginning in Russia. Referring to a civil trial of Jehovah’s Witnesses in Moscow, Ludmilla Alekseyeva, head of the Moscow Helsinki (human rights) Group, told a news conference of activists marking the fiftieth anniversary of the Universal Declaration of Human Rights: “We cannot stand aside, we are obliged to act. If we lose this case, it will be the turn of other religious minorities, and then perhaps of independent trade unions and political organizations.” Even while the Moscow trial court suspended proceedings to permit further investigations of plaintiff’s

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charges, the Russian Ministry of Justice, under its relatively liberal new head, gave the Jehovah’s Witnesses a victory by registering the organization on May 5,1999. Alexei Nazarychev, church spokesman, commented on the apparent difference between federal policies and individual bureaucrats (such as those in the Moscow prosecutor’s office) “who are trying to unleash religious persecution.”87

Conclusion The weakness of democratic political community originates not in some primordial Russian antidemocratic culture but from a political imbalance between antidemocratic countercommunities and proponents of democracy and human rights, in the context of the Soviet communist legacy and related economic and social calamity. The decisive struggle for human rights and freedoms and the formation of a cohesive political community essential to uphold those rights have only really just begun. There is evidence already that the struggle is not hopeless. The context of community transformation is not some primordial culture, but the slowly fading legacy of the collapsed Soviet political community. That legacy erased any memories of democratization and eliminated the emerging open society of earlytwentieth-century Russia. Even before its independence in December 1991 Russia had inherited the corrupt state apparatus, but without the restraining rule of the Communist Party. The Russian Federation was in no shape to replace party rule with the rule of law. The corrupt piratization (piratizatsiya) of state assets and extensive further criminalization of government and the economy left Russia in the grip of venal, and often deadly, countercommunities. Disunited democrats and a weak, impoverished civil society were hardly a countervailing match for that. The mismatch between corruption and democratization opened the way to massive violations of economic and social rights. The Soviet-era priority of economic and social rights has been blotted out by social calamity. Paper reforms have in practice resulted in glaring violations of civil rights in law enforcement, prisons, and local authorities’ treatment of migrant minorities The contextual prerequisites of a real universalism in human rights mentioned by Adamantia Pollis are the equivalence of a democratic political culture, a rising middle class, and dialogue on the meaning and realization of human rights. All three are preludes to the firming of democratic political community.

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Russian electoral democracy, for all its limitations, has (so far) manifested the beginning of a requisite democratic equivalence. Free media struggle on in the face of threats to their independence through attacks on journalists, general harassment by local authorities, and dependence on state and oligarchs’ support. Attempts to limit religious diversity and freedoms at once infringe on freedom generally, yet also rally support for a constitutional order among believers and NGOs together, with some tangible successes. Every year that takes Russia further away from the Soviet era, every acceptably free election, every crisis surmounted, every cold shoulder to support for extremists, every poll indicating a majority against return to communism, and every entry of freer youth into public life takes Russia a small step toward the still distant goal of a consolidated democracy and the political community on which it rests. Russia’s small, economically autonomous middle class, wiped out by the communists, slowly reappears. It is burdened with excessive demands by tax collectors and protection payments to organized crime. To close the troika of indicators for change, the dialogue on human rights continues in Russia in the media; in trials over freedom of religion and information; and in advocacy, monitoring, and legal aid offered by a growing network of NGOs. Internationally, the development of a democratic, rights-protective political community in Russia is not only a test of universalism in human rights, but also a manifestation of their global resonance. Rights and security for Russians, as for others in postcommunist countries, is crucial to the rights and securities of us all. For all the reasons cited here, courageous judges and attorneys, journalists, monitors, and advocates of democratic civic life merit more support from foreign friends, and the government’s approaches to reform merit their more critical scrutiny.

Notes 1. Overviews in Donnelly, 1998; Henkin, 1990. On cultural relativism especially, see Thompson, 1980; Pollis and Schwab, 1979a: 1–18. On adapting human rights, see Juviler, 1976. On democratic consolidation, see Linz and Stepan, 1996b. 2. McFaul, 1999: 121–124. 3. Ludmilla Alekseyeva talk, Open Society Institute, May 7, 1999; “U.S.-Russian Relations Sink to Low on Eve of Talks,” Moscow, April 12, 1999 (Bloomberg). Johnson’s Russian List, hereafter JRL.

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4. Kukathas, 1996: 82. 5. Easton, 1957: 391; Juviler and Stroschein, 1999. 6. Obligations include those under the European Convention on Human Rights, which it ratified April 2, 1998, and various other regional (OSCE) and UN agreements. Human Rights Watch World Report 1999, 1998: 280, 286–287. 7. Ryavec, 1996: 67–84; Linz and Stepan, 1996a: 239–254, 366–382. 8. Juviler, 1998b: 24–46; Sergeyev, 1998; Linz and Stepan, 1996b: 10, 14. 9. Russia’s nonproductive industrial legacy was among “the most costly components of the imperial legacy.” Kontorovich, 1996: 22–25, 64, 10. UDHR, articles 3, 5, 7–11. The International Covenant on Civil and Political Rights adds important procedural standards on the rights of suspects during and after arrest, in articles 9–10; European Convention, articles 2–7. Twenty-Five Human Rights Documents, 1994: 7–9, 17–23, 147–149. 11. Butler, 1978, article 1; Ugolovnyi kodeks Rossiiskoi Federatsii priniat 24 maya 1996, 1996: article 2. 12. Lyudmilla Dmitriyeva, “Law Turns Blind Eye to Violence in the Family,” Moscow Times, April 22, 1998, JRL. 13. Juviler, 1998b: 1–10. 14. Caldwell, 1997: 10–12. 15. Country Reports on Human Rights Practices for 1997, 1998 (hereafter, Country Reports, 1998): 1244; Juviler, 1998b: 67–69, 130–145, 147–161. 16. Country Reports on Human Rights Practices for 1998, 1999 (hereafter, Country Reports, 1999): 1447. 17. Country Reports, 1998: 1250–1253; Country Reports, 1999: 1448. 18. Yuri Schmidt, Nikitin’s defense attorney, talk at the Bar Association of the City of New York, May 7, 1999; Smith, 1996: 156–158. 19. Country Reports, 1999: 1444–1448; on Bolshevik legal cleansing, see Juviler, 1976: 4–13. 20. Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii, 1997; Juviler, 1998b: 153–154. 21. Abramkin and Denber et al., 1996: 80. 22. United States of America: Rights for All, 1998; Country Reports, 1999: 1438–1439, 1442–1447. 23. Judith Ingraham, “In Russia, Murder Rate Soars,” April 30, 1999, Moscow (AP), JRL; quote from Vladimir Simonov, “This Manmade ‘Hell’: An ‘Elephant’ for the Inmate,” Moskovskii komsomolets, April 17, 1997, JRL. 24. Juviler, 2000. 25. Country Reports, 1999: 1464–1465. 26. Country Reports, 1999: 1440–1441; “Duma Says Over 2,500 Soldiers Died in Russia in 28 Months,” Moscow, ITAR-TASS, June 10, 1998, JRL; Juviler, 1998b: 172. 27. Twenty-Five Human Rights Documents, 1994: 8. UDHR, articles 22–27. Article 25(1): “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and the necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control.”

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28. Konstitutsiya Rossiiskoi Federatsii, 1994 (hereafter, Konstitutsiya RF), article 7(3). 29. Report of the President’s Commission on Human Rights, 1996: 75, emphasis added. 30. Interview with Irina Paikecheva, lawyer and activist from Murmansk, Moscow, December 16, 1995. Matthew Fisher, “Their Broken Dreams,” Toronto Sun, October 25, 1998, and “Russian Teachers Barricade Office,” Moscow (AP), January 28, 1999, JRL. Vladimir Nechai, head of Russia’s Chelyabinsk-70 nuclear complex, shot himself in despair because the government had not paid his staff for months. Nechai’s suicide revealed to everyone that in Russia “no one can guarantee the security of thermonuclear programs.” Grigori A. Yavlinski, “Death of a Scientist,” New York Times, November 15, 1996. 31. Juviler, 1998b: 159–160. 32. Country Reports, 1999: 1465–1466; Abandoned to the State: Cruelty and Neglect in Russian Orphanages, 1998; Yelena Yershova, founder and director, Gaia Women’s Center, talk at United Methodist Office for the United Nations, New York, February 13, 1995. Baranov quoted in Larry Roberts, “A Sharp Deterioration in the Conditions Facing Russian Youth,” World Socialist Web site, http://www.wsws.org/, April 24, 1999, JRL. On bezprizorniki, Juviler, 1985: 261–278. 33. Sergeyev, 1998; The Economist, September 5, 1998: 46. 34. Sharlet, 1997: 16; Simis, 1982. 35. Adil Rustomjee, [email protected], April 14, 1999, JRL. 36. Mironov, 1999, JRL. 37. Borneman, 1997. 38. Handelman, 1996; Sergeyev, 1998: 42–43. 39. Smith, 1996: 154–156. Internal Affairs Minister Anatoly Kulikov said that the police solved only about 10 percent of some 600 contract murders in 1996. Country Reports, 1998: 1246. 40. Country Reports, 1998: 1246; Boston Globe editorial, “The Assassins of Change in Russia,” August 25, 1997, JRL. 41. Country Reports, 1999: 1436–1437; Adam Michnik, 1999: 4–6. 42. Donnelly, 1998: 153–159 on “rights-protective regimes”; Holmes, 1997: 30–39. 43. Juviler, 1998b: 169–184; Country Reports, 1999: 1462–1464; interview with Natalia Taubina, Civil Society Foundation, March 16, 1999; Prava cheloveka v Rossii: informatsionnaya set’: Materialy o rabote rossiiskikh pravozashchitnikov, Pamphlet 34, 1998; Informatsionnyi listok pravozashchitnogo fonda “Za grazhdanskoe obshchestvo,” 1999; Alexander Gordeyev, “Charities Fear Losing Tax Status Under Bill,” Moscow Times, February 2, 1999, JRL. 44. Country Reports, 1999: 1436–1437, 1446, 1451; “Amnesty International Calls for the Release of Prisoner of Conscience,” AI Index: EUR 46/01/99, UA 11/99. Health Concerns/Prisoner of Conscience, January 18, 1999, [email protected]; Viktor Kostyukovsky, “Judge Sergei Golets Saves Russia’s Prestige. Captain Aleksandr Nikitin Is Acquitted,” Novye Isvestiya, December 30, 1999, condensed in Current Digest of the Post-Soviet

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Press (hereafter CDPSP), vol. 51, no. 52 (1999): 11; “Russian Journalist Wins Libel Case,” Vladivostok, Russia (AP), February 8, 1999, JRL. 45. Juviler, 1998b: 124–168; Yavlinsky quote from his speech to the State Duma, May 15, 1999, via Xenia Volkova, [email protected], JRL; Robert Coalson, “Media Watch: Journalism Is Hamstrung,” Moscow Times, February 4, 2000, JRL. 46. Konstitutsiya RF, article 5(3). 47. Sharlet, 1997: 119–123. 48. Juviler, 1998b: 161–167. 49. McFaul, 1999: 121. 50. William A. Davies, “Russian Legal System,” Kola_salmon@ email.msn.com, JRL. 51. Country Reports, 1999: 1448–1449; Human Rights Watch World Report 1999, 1998: 281–282. 52. Robert Coallson, “Response to Paul Goble,” JRL, January 10, 1999; Country Reports, 1998: 1254–1256. 53. James Meek, “Voice of Freedom Silenced by Russia’s Local Tyrants,” The Guardian, June 12, 1998, JRL. 54. “Journalists’ Union Chief Summarizes ‘Very Difficult’ Year,” Moscow, ITAR-TASS, January 12, 1999, JRL; “Eleven Journalists Killed in Russia in 1999,” Moscow, Agence France Presse, January 14, 2000, JRL. 55. Country Reports, 1999: 1463. 56. Konstitutsiya RF, articles 1–13, 19, 26. Quote from article 2. 57. E-mail from Kharon Deniev to Lili Cole, “Terrifying Tales from the North Caucasus,” January 29, 1998; Juviler, 1998b: 162. 58. Country Reports, 1999: 1437. 59. Country Reports, 1999: 1457, 1467–1469, quote at 1467; Fautré, March 25, 1999; CDPSP, vol. 50: no. 50: 8–10; Report of the President’s Commission on Human Rights, 1996: 52–53. 60. Natalya Konstantinova, “Explosion at Lubavicher Synagogue in Moscow,” Nezavisimaya Gazeta, May 15, 1998, excerpted and condensed in CDPSP, vol. 50, no. 20: 16; Yuri Luryi, “Old and New Russian Criminal Codes Against National and Racial Hatred and Discrimination,” paper presented at the National Meeting of the American Association for the Advancement of Slavic Studies, Seattle, Washington, November 1997; Ilya Skakunov, “Terrorists Keep Attacking Synagogue in Maryina Roshcha,” Sevodnya, May 15, 1998, excerpted in CDPSP, vol. 50, no. 20: 15–16. 61. Aleksandr Svaryev (on skinhead killing of Azeri vendor), Nezavisimaya Gazeta, May 12, 1998, condensed in CDPSP, vol. 50, no. 19: 17–18; Juviler, 1998b: 162; Country Reports, 1999: 1457–1458. 62. Article 18 of the UDHR and the International Covenant on Civil and Political Rights; Article 9 of the European Convention. Twenty-Five Human Rights Documents: 149. 63. Gustafson and Juviler, 1999; Juviler, 1998b. 64. Lean, 1995: viii, 4, 6–13. Lean notes that religion can be an opiate and source of division, and repression: 10. Dilulio, 1997: 27–31. 65. Gareth Jones, “Russian Activists Blast New Religion Law,” Fautré, December 16, 1998. 66. Donnelly, 1998: 153–159.

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67. Boyle and Sheen, 1997: 294–338 (on France, Germany, Greece, Britain); Fautré, various dates; Country Reports, 1998: 922–923, 1097–1098, 1106–1107; Hearing Before the Commission on Security and Cooperation in Europe. One Hundred Fifth Congress. First Session: The Status of Religious Liberty for Minority Faiths in Europe and the OSCE (hereafter, Hearing), 1998: 3. 68. Richardson, 1995: 1–59. 69. Boyle and Sheen, 1997: 280–286, 397–404; Kolodny and Philipovich, 1997: 301–314. The privileged treatment of the Orthodox Church in Bulgaria brings, for example, subsidies, television and radio broadcasting, and celebration of religious holidays, accompanied with discrimination in the recognition and support of other religions. Kanev, 1998; Juviler, 1998b. 70. Peter Juviler, “Memorandum To: Allen Kassof, Director, IREX; Subject: brief report on ACLS/Academy exchange visit 5/19–6/19 1988.” Dated: 8/3/88. 71. Konstitutsiya RF, article 23; Berman, 1996: 283–304. 72. Law on the Freedom of Conscience and Religious Associations, Moscow Patriarchate translation, http://www.russian-orthodox-church. org.ru/ce021071.htm. Lawrence A. Uzell, “Local Authorities Threaten Catholic Parish in Southern Russia,” Keston Institute, February 5, 1998; Lauren Homer, “Major Victory for Russian Religious Organizations in Constitutional Court,” [email protected], November 29, 1999. 73. Fred Weir, in Hindustan Times, October 7, 1997, JRL. Congressman Joseph R. Pitts testified that troublesome aspects of the law include the uncertainty of its impact on social services rendered by religious organizations, and even worse, “one of the most frightening aspects of the law, the lack of clarity on how the law ultimately will be enforced.” Hearing: 4. 74. Fautré, “Ban Renewed on Siberian Lutheran Mission,” September 30, 1998; Fautré, November 19, 1998; Human Rights Watch World Report 1999, 1998: 282. 75. Fautré, December 16, 1998. 76. Nickles, 1997; Juviler, 1998b: 138–139. 77. Shterin, Richardson, and Barker, 1998: 3; Szporliuk, 1990: 15. 78. Berman, 1996: 303. 79. Barker, 1997: 25–62. 80. Michael R. Gordon, “Inside the Onion Dome of Russian Orthodoxy, Many-Layered Faiths Chafe,” New York Times, October 12, 1997. 81. Valliere, 1996: 282. 82. Juviler, 1998b; Nickles, 1997; Corley, 1996. 83. The ROC reportedly has tax-free import-export operations in alcohol, tobacco, and oil. 84. Oksana Mortkovich, “The Moonies Are Alive and Are a Threat,” Novoe Izvestiya, April 23, 1998, excerpted in CDPSP, vol. 50, no. 16 (1998): 16; and see, for instance, Fautré, December 12, 1998, and November 30, 1998. 85. Shterin, Richardson, and Barker, 1998: 3. 86. See, for example, Fautré, February 5, 1999; Fautré, March 16–18, 1998; Gunn, 1996: 318–319. 87. “Moscow Renews Jehovah’s Witnesses,” May 6, 1999, Moscow (AP), JRL.

7 Human Rights, Political Values, and Development in East Asia Michael C. Davis

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his chapter addresses the authoritarian-based East Asian attack on human rights and argues that human rights, when properly secured by appropriate constitutional practices that take account of local conditions, may better address values and developmental concerns than authoritarianism. This discussion highlights in functional terms the relationship between human rights and the nature of the state. I argue that constitutional democracy is the regime type more clearly committed to human rights protection. Using East Asia as an example, this chapter considers how constitutionalism addresses values and developmental concerns to construct communities that can more confidently participate in the global system.1 In this regard constitutionalism is usually understood to include three core components: democratic elections with multiparty competition; security of human rights, including freedom of expression; and the rule of law with firm adherence to principles of legality. To these core components I add a fourth ingredient, the local institutional embodiment that connects constitutional government to the local condition, what I call indigenization. Given the enormous power that modern states have, theorists have often focused on the constraints constitutionalism imposes on the state. While appreciating concerns with constraint, I emphasize, instead, the positive discourse-engendering role of constitutionalism. Through constitutionalism the state provides the political and legal architecture of a contemporary commitment to human rights and the venue for the contemporary discussion of cultural-political values and development. In relation to human rights, the compelling task is to show how constitutional institutions with appropriate local extensions can best address various concerns raised in the Asian values and developmental debates. 139

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At the same time it is important to consider how constitutionalism offers a venue that can serve the local community in its interactions with the international human rights debate. The argument in this chapter proceeds in two major parts by considering, first, the various claims on behalf of authoritarianism made in the name of cultural-political values and development, and, second, how constitutionalism, through its core components and its local institutional embodiment (indigenization), works to construct a venue for an open-ended conversation about political values and development.2 It is important to remember that domestic constitutional systems provide the primary venues for the global human rights debate. Such local venues allow for a degree of diversity in human rights practice.

The East Asian Human Rights Debate Here I wish to address several prominent authoritarian-based arguments made on behalf of cultural values and economic development, including, first, the specific Asian values claims on a substantive level; second, a related cultural prerequisites argument that seeks to disqualify some societies from realization of democracy and human rights; third, claims made on behalf of community or communitarian values in the East Asian context; and, fourth, the argument that seeks justification for authoritarianism in East Asia’s historical record of rapid economic development. While the first three of these relate more directly to cultural values, the fourth combines such values with authoritarian developmentalism. The latter also considers the implications of the East Asian economic crisis that began in the late 1990s. Taken as a whole, this analysis offers a challenge to claims made on behalf of authoritarian regimes and sets the stage for the discussion of constitutionalism in the remainder of this chapter. Authoritarian Claims About Asian Values Focusing on political values and confining this discussion mainly to the East Asian Confucian context, the main substantive claim is that Asian values are antidemocratic and hostile to liberal protection of human rights. Asian societies are said to favor authority over liberty, the group over the individual, duties over rights, and such values as harmony, cooperation, order, and respect for hierarchy.3 Emphasizing these char-

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acteristics, East Asian supporters of authoritarianism have argued that their societies are unsuited to democracy and human rights. That these claims are usually made on behalf of authoritarian leaders raises suspicion about the honesty of the claims. On a substantive level, these claims are challenged both by the rapid recent development of democracy and human rights in several East Asian societies and by social activist and scholarly discourses that challenge such claims directly. The growing consolidation of democracy in East Asia largely speaks for itself. Former authoritarian systems, including those in Japan, South Korea, Taiwan, the Philippines and, to some extent, Hong Kong, Indonesia, and Thailand, have all undergone recent democratic reform. Even though each of these systems continue to be plagued with vestiges of authoritarianism,4 the reformist direction is clearly evident and indicates a serious concern about democracy and human rights in East Asian societies. Direct attacks on the intellectual foundations of the Asian values claim have also been launched by activists and analysts, challenging several of the claim’s components. Regarding the association of Confucianism with authoritarianism, Chinese scholars of the Confucian classics have noted (1) that Confucianism did not embrace unquestioning acceptance of misguided rule and (2) that it shares with liberalism the commitment to higher norms. Confucian scholar Chang Wejen especially points out the prominent position of the golden rule in Confucian ethics.5 Chang notes that the harsh practices of the late dynastic cycle, sometimes known as neo-Confucianism, were more a product of dynastic rule and Chinese legalism than they were of traditional Confucian thought. Other scholars have challenged the motives of those who advance the above stereotypes concerning Asian values. Edward Said long ago noted that Western “orientalism” offered up its conception of Asia as “the other” in part to justify Western dominance.6 More recently, other Asian scholars have noted the tendency of East Asian leaders and scholars to adopt orientalism as a self-defining discourse. 7 The same conception that aimed at Western dominance now, in East Asian authoritarian hands, aims at creating East Asian exceptionalism. Another line of reasoning would have us believe that East Asian intellectuals did not understand Western liberal democracy when first confronted with it in the early modern period. In the Chinese context, this was said to produce a perverse reinterpretation that saw democracy as merely good government or social welfare, in line with the Chinese minben (people as a basis) tradition. There is no doubt that authoritarian

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reinterpretations did occur and that Chinese nationalism, especially following the May 4th Movement, did produce a distorted understanding.8 But recent studies of early modern Chinese writings witness a great deal of understanding of leading Western liberal thinkers. 9 Other Asian scholars and specialists have pointed out that much of what is done in the name of so-called authoritarian Asian values can be explained more often than not by expediency. Frequently this expediency is accompanied by other ideological constructs, such as Marxism, that have little to do with Asian traditions. Francis Fukuyama argues that the only neoConfucian authoritarian system evident in recent East Asian experience was the government of prewar Japan.10 Cultural Prerequisites My second critique relates to the claim that societies lacking certain cultural prerequisites are not suited for democracy and human rights. This notion has its roots in studies that sought to examine the characteristics of civic culture that exist in Western democracies.11 These studies clearly were not aimed at supporting cultural relativist arguments. In comparative studies of political development and democratization this hopeful line of reasoning, however, became burdened with the pessimistic view that societies that lacked civic culture were not likely to be successful at democratization.12 It was as if societies had to pass a test for democracy. This scholarship could lend further support for authoritarian Asian values reasoning: societies burdened with authoritarian Asian values may be judged poor soil for democracy and the concomitant values associated with human rights and the rule of law. But the problems with this reasoning are apparent. The most obvious is its tautological character. To suggest that a society that lacks democracy could somehow develop democratic culture is a questionable proposition. The fact is that many societies in East Asia proceeded with democratization, with or without the allegedly required civic culture. With democratic institutions in place, the emphasis has shifted to consolidation and to creating the institutions to make democratization work.13 Nevertheless, scholars and politicians in East Asia have sometimes clung tenaciously to this claim concerning prerequisites. The task of documenting the presence of civic culture in East Asia still contributes to a mindset that appears to conceive of a test for democratization. This has spawned a persistent argument by those in some communities who oppose democratic reform, saying that the local society is not yet ready for democracy.

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Claims About Community My third critique considers a more consciously intended cultural relativist argument, and one that is to some extent more credible. This is the one made on behalf of community. This argument fails to justify the denial of democracy and human rights, but it does raise some concerns that I argue in the next part of this chapter must be addressed by societies hoping to better secure human rights. There are essentially three community-based arguments addressed here. The first is the romanticization of community. The Vietnamese village, for example, has been described as “anchored to the soil at the dawn of History . . . behind its bamboo hedge, the anonymous and unseizable retreat where the national spirit is concentrated,” while the Russian mir was to “save Russians from the abhorrent changes being wrought in the West by individualism and industrialization.”14 Many have questioned just how liberating the traditional village was, and many escaped when they had the chance. Few in East Asia’s diverse urban economies have the option of unmolested village life today. Another community-based claim, one emphasizing republican government and civic virtue, has ancient roots and is of contemporary interest. In many East Asian societies civic virtue is seen as the key to good government. The debate over civic virtue, an ancient philosophical concern, has persisted on a global scale throughout the modern period of democratization.15 But many democratizers, in practice, have not been confident of the persistence of civic virtue and have sought to craft a democracy that, in James Madison’s terms, is safe for the unvirtuous.16 The debate in the Czech Republic between Vaclav Havel, the anticommunist idealist who has emphasized civic virtue, and Vaclav Klaus, the pragmatic postcommunist politician who is more concerned with interest representation, 17 is likely to be rehearsed in postcommunist and postauthoritarian East Asia. As has been true in other parts of the world, civic virtue alone will not likely be enough; nor will its persistence be reliable. A third community-based claim, communitarianism, offers the centrality of community as an alternative to liberal individualism. 18 Communitarianism is the most challenging contemporary discourse about community. There is, however, a wide gap between the Western and the more prominent forms of East Asian communitarian perspectives. While Western communitarians are apt to see community as a venue for democratic discourse and liberation, the neoconservative brand of so-called communitarianism evident in Singapore is hardly a

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venue for democracy and liberation.19 In this East Asian variant “communitarianism” has generally meant authoritarianism, as the regime seeks to implant its value system, emphasizing a conservative version of “Asian values” and passive acceptance of the regime’s dictates. Western communitarians have often felt the need to be committed to some liberal values to preserve their discourse and overcome some less acceptable values associated with traditional communities,20 while the Asian neoconservative variety has also had to deal with increased demands for liberalization. In both cases, those committed to addressing communitarian concerns are likely to be left to determining how to deploy some liberal institutions in ways that are responsive to these concerns. Economic Development Until recently, the seeming most compelling East Asian argument on behalf of authoritarianism has been the one in support of the East Asian model of economic development. Authoritarian leaders in East Asia have argued that authoritarianism, under a developmentally oriented political elite, can allow for stability and long-term predictability. According to this East Asian view, export-led growth combined with microplanning of industrial development led to the developmental successes sometimes characterized as the East Asian “economic miracle.” Such an East Asian model is said to be typified by the Japanese developmental model of the 1960s and 1970s, and was evident in similar success stories in South Korea, Taiwan, and Singapore.21 Under such systems, without the perceived burdens of democracy and rights, excessive public welfare–oriented expenditure, sometimes characterized as rent seeking, could be avoided.22 Under the Japanese model an elite coalition of the leading political party, bureaucracy, and business is said to have allowed government institutions charged with industrial and trade policy to operate effectively.23 Such bureaucratic institutions are said to be both autonomous and, to a degree, embedded, facilitating a satisfactory process of developmentally oriented central planning.24 Under this system, authoritarian interventions aim to ensure high levels of productive investment, reduced labor cost through select welfare subsidy and labor suppression, fast transfers of technology, targeting of key industries, and substantial international competitiveness. The targeting of key industries was especially achieved through political and bureaucratic interference in the targeting of industrial loans for select industries. Until the 1990s these arguments seemed compelling, as the East

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Asian “tiger” economies grew at unprecedented rates. This high growth rate extended beyond the five leaders to capitalist economies in Southeast Asia and to economically reforming China. But in the 1990s the economic crisis, first in Japan and then in the late 1990s elsewhere in the region, called this model into question, as extensive evidence of corruption and cronyism emerged. In many respects the very mechanisms that facilitated growth, through key industry targeting, produced corporate debt overhang that exacerbated the financial crisis that followed. The existence of democratic institutions may have determined not only who felt the worst effects of the crisis, but also those likely to more quickly rebound. Of the three countries hit first with the financial crisis, Indonesia, then the least democratic, was hit the hardest. 25 Democracies, such as Taiwan, faired better, and even among those countries hit hard by the crisis the more democratic ones, such as South Korea and Thailand, have appeared to bounce back more quickly. Scholars who have studied the relative capacity of democracies and authoritarian regimes in dealing with economic crisis or shocks have come out strongly in favor of democracy.26 Dani Rodrik notes that economic shocks will generally be worse in societies with deep latent conflicts and argues that democracy “affords the ultimate institutions of conflict management.”27 In reference to the current East Asian economic crisis, Donald Emmerson argues that East Asian countries with high levels of political freedom have been generally more resilient.28 In the South Korean case, voters quickly replaced the leadership more closely associated with the former authoritarian regime, electing Kim Dae-jung to the presidency. Because of a political coalition with strong labor support, Kim has shown a willingness and some ability to gain popular support for the hard restructuring decisions he has had to make. The importance of democracy in facilitating development and dealing with economic shock has not, however, been apparent to all. Hard-line governments such as those in China, 29 Vietnam, Burma, Malaysia, and Singapore still cling to hope for sustaining authoritarian or quasiauthoritarian development with high economic growth. In the 1990s, theorists continued to laud the achievements of the East Asian model while recommending adjustments. Some promoted a kind of liberal authoritarianism, others promoted illiberal democracy. The notion of liberal authoritarianism aims to preserve the best qualities of the East Asian model while ensuring the rule of law, thereby reducing corruption and cronyism.30 But as Jon Elster rightly points out, the problem is that a dictator “is unable to make himself unable to interfere

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with the legal system whenever it becomes expedient.”31 At the other extreme, illiberal democracy would preserve the East Asian model of consensus and control along with some degree of democratization.32 With democratization such authoritarian economic models did indeed persist in several leading economies. The persistence of cronyism and corruption evident in the economic crisis of the late 1990s tended to call this model into question. Furthermore, it is doubtful whether democratic leaders without modern constitutional institutions to check their power will remain democratic. At the turn of the century, the continuing economic crisis has brought an increasing urgency to this discussion. At the present stage, a more realistic conclusion is that just tinkering with this East Asian model is not sufficient. In my view, it is not so much that the model was from the start totally flawed as that it is a victim of its own success. The economic deprivation in the East Asian region at the start of its developmental phase allowed authoritarian governments that could deliver the goods to survive with little contest. But with success, the level of diversification of interests in these rapidly developing economies increased dramatically. Increased social complexity and stratification are likely to overtax authoritarian institutions. Tracing causal mechanisms, Dietrich Rueschemeyer, Evelyne Stephens, and John Stephens argue that the case for liberal democracy becomes compelling at a certain point in the industrialization process because industrialization and economic development transform society to empower subordinate classes.33 Under these conditions, three causal factors may point to the need for change: first, higher expectations among middle and subordinate classes and other social interest groups produce increased demands for participation; second, rapid economic expansion makes both the likelihood and the costs of corruption intolerable; and, third, economic restructuring and globalization encourage a national consensus-building process to avoid massive social disruption. In East Asia this evolutionary process has been evident in recent years. The basis for change is increasingly apparent. Without political reform, the channels of representation of the diverse interests in these rapidly developing societies became clogged. In the late 1980s, the increase in reported cases of corruption throughout the region seemed to suggest that in the absence of reform, corruption had become the channel to get things done. As the scale of both growth and corruption increased, so did the public dissatisfaction with the latter. Economic elites also appeared to be less compliant as they become more globally competitive. In the most developed countries of the region, it appears that increased wealth and education led middle and various subordinate

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classes to demand greater participation, openness, and accountability. These developments were evident in Taiwan, South Korea, and Japan in the late 1980s. Labor and student unrest and the mass minjung movement eventually toppled the South Korean regime, which seemed compelled to accept political reform. In Taiwan a middle-class push for democracy achieved success with an increasingly compliant regime, ultimately leading to democratization. In Japan, the struggle over corruption produced increased public scrutiny and pressure for liberalization. A similar stage soon may be reached in China, where the reform of the state enterprise system will certainly increase pressures from social unrest. With the incentives for economic and political reform in place, democratization and reform has increasingly been the norm of the most successful East Asian economies. I argue next that these developments favor a form of liberal constitutionalism.

Constitutionalism Constitutionalism offers a venue to respond to the various claims underlying the cultural values and developmental debates and a response to those who advance authoritarianism as a venue for addressing such concerns. The concept of constitutionalism I advance includes the fundamental elements of democracy, human rights and the rule of law, and elements of local institutional embodiment, or what I call indigenization. At the dawn of the twenty-first century the discussion of constitutionalism has become a global conversation, a conversation that is productive of the processes of universalizing human rights. Constitutionalism serves both as a conduit for shared international and local human rights and political values and the embodiment of those values. In this regard, the following sections emphasize two aspects of the constitutional equation: first, the empowering role of constitutionalism, in contrast to the usual view that emphasizes only constraint; and, second, indigenization of constitutionalism, as a conduit to hook it up to the local condition, in service of both values and economic development. All these aspects have been implicated in the East Asian debate over political reform and liberalization. The Empowering Role of Constitutionalism Some theorists have worried that constitutionalists place too much emphasis on the constraints of constitutionalism, always using language

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of “checking, restraining or blocking.”34 Emphasis on constraint may cause constitutionalists to overlook the important empowering aspects of constitutionalism. Here, it is important to stress that the idea of constraint through human rights has been important and remains so due to the enormous power of the state in the modern period. Such power was even further enhanced under the influence of nineteenth-century legal positivism and its ideas of sovereign exclusivity. But the notion of constraint under constitutional government takes on meaning and force only through popular empowerment. Under constitutional government, the processes of empowerment extend beyond the institutions of electoral politics to include the processes of human rights and the rule of law. It is the integration of political and legal institutions in the processes of constitutional government that allows empowerment and constraint to work. It is therefore important to emphasize the positive empowering role of constitutionalism. The notion of a self-imposed constraint is a questionable proposition in a world where leaders frequently ignore constraints.35 This is important because under this constraint paradigm, newly elected democratic leaders may view it as part of their mandate to override constraint to “get the job done.” This may result in what Guillermo O’Donnell calls “a caesaristic plebiscitarian executive that once elected sees itself as empowered to govern the country as it deems fit.”36 East Asia has in recent years experienced the phenomenon of the powerful state and the hazard of unconstrained government, elected or otherwise. The most notorious East Asian examples where elected leaders used their mandate to pervert the constitutional order were some of the early South Korean experiments with democracy and the Marcos regime in the Philippines.37 In East Asia, as already noted, theorists have responded with two nearly opposing alternatives, often paradoxically applied to the same regimes. Some have advocated instituting the rule of law and rights protection along with authoritarianism.38 The difficulty with this option is inducing such authoritarian leaders to consistently accept such constraint. There have been some aspirations toward this notion in Singapore, Malaysia, and (until recently) Indonesia. Alternatively, some may advocate instituting democracy but replacing liberal constraints with alleged East Asian cultural constraints and communitarian processes of bargaining.39 Paradoxically, this may be the aspirational basis of the claims to democracy made by the same regimes in Singapore, Malaysia, and Suharto’s Indonesia. But an alleged democracy without core constitutional constraints, that prohibits or suppresses opposition,

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does not appear to be democracy at all. A system that places emphasis on social connections and networking may lead to particularism and clientelism.40 This is difficult to distinguish from authoritarianism when it comes to the potential for abuse of power. Extraconstitutional action should more properly be understood as not just overriding constraint but as overriding democracy itself. Such extraconstitutional action does not just “get the job done” but, in fact, deprives the people of democratic power. To deprive people of freedom of speech does not just serve to eliminate meddlesome critics and achieve order but may, in fact, disempower the people. Constitutionalists should seek to engender discourse and empowerment. The institutions of constitutional government are enfranchising in nature; if functioning well they may work to engage the citizens in a political conversation about popular concerns and values. In a modern complex society this is often the venue for values and development discourse. If constitutionalism is openly accepted as the venue for political choice rather than merely constraint, then the ensuing discourse in this venue may create respect for its important constraints and processes. To better understand this claim we must consider the constitutive process. It is in the constitutive process that constitutionalism’s discourseengendering and empowering roles come to fruition. This can be considered at two levels: the constitution-making process and constitutional implementation. Constitution making is where the explicit constitutional conversation usually begins. A constitutional assembly is a powerful venue for discourse about basic political values; this is especially true because such assemblies usually are called on the heels of a national crisis, which is inherently engaging. In recent decades the East Asian landscape has been riddled with constitution-making exercises. The 1980s and 1990s constitution writing in the Philippines and Hong Kong offer prominent, seemingly successful examples.41 In describing the constitution-making process Jon Elster describes a venue where passion, interest, and reason operate.42 There are both upstream and downstream constraints, as well as processes for consensus building and broadening bases of support.43 Upstream constraints consider political settlements and may also protect members of the former regime. For the Hong Kong Basic Law, as with the postwar Japanese constitution, the upstream constraints were all but overwhelming.44 Downstream constraints look to ratification or acceptance. In the Philippines, after the people-power revolution, downstream acceptance was the substantial constraint. After the founding of a constitution, successful implementation of

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constitutional government depends on appreciation of the discursive architecture in the ongoing processes of governance. More commonly appreciated here are the institutions for checks and balances. These include institutions to control purse strings in regimes ranging from medieval estates to modern parliaments, and veto and administrative control in the modern executive. At present, nearly every constitutional government in East Asia manifests some elements of this. Less commonly understood is the positive discursive machinery of constitutional judicial review, the power whereby courts review laws enacted by the elected branches of government for conformity to the constitution. In both Asia and the West, this judicial role has sometimes been attacked as an affront to efficient and effective government, and sometimes as an affront to democracy. One should be suspicious of the efficiency-based motives of such attacks. In developed constitutional systems, constitutional judicial review has become the premier institution for securing human rights.45 More important, constitutional judicial review may also serve as the engine for the basic constitutional conversation about political values and commitments.46 This constitutional conversation proceeds as legislatures pass laws, courts respond, and legislatures pass new laws.47 Even though much of East Asia has adopted Western civil and common law legal systems, only a few countries have fully functioning systems of constitutional judicial review.48 At present Japan, the Philippines, and Hong Kong are prominent examples of where this power is vested in the ordinary courts, as is more commonly done in common law systems.49 A civil law style of constitutional court has existed in Taiwan for decades but has only recently, with the termination of martial law, begun to function effectively. South Korea has also instituted such a centralized constitutional court. For the authoritarian regimes of the region, both historically and at present, little or no judicial constraint is the norm. Even where the power of constitutional judicial review formally exists, in an authoritarian environment it is unlikely that judges can be counted on to assertively carry out such a role. Under such circumstances, the positive discourse-engendering role argued for here is out of the question. Constitutional theorists recognize, however, that when issues of fundamental constitutional concern arise in established democratic systems, constitutional judicial review of legislation is not the sole discursive engine for crafting state-based solutions to broader societal concerns. At moments of crisis, what Stephen Krasner calls punctuated equilibrium, 50 the entire people may be mobilized to civic action or intense reflection on political value concerns of fundamental impor-

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tance. In normal times, the people may be content with representation and constitutional judicial review while they largely focus on private affairs; at times of what Bruce Ackerman calls constitutional politics the level of civic action may become extraordinary.51 Ackerman identifies three “republics” in U.S. history, before and after the Civil War and in the modern regulatory social welfare state initiated in the 1930s by the New Deal.52 There is evidence of such mobilization and fundamental change in the recent South Korean and Japanese constitutional politics of reform and resistance to corruption. Considerable civic action and a fundamental change in political attitude also accompanied the post-1987 constitutional reforms in Taiwan.53 The recent overthrow of Suharto in Indonesia signals a major constitutional change of this civically engaging variety, and perhaps eventually a new constitution-making process. Indigenization of Constitutionalism With a firm commitment to the constitutional fundamentals in place, a premier concern is that constitutionalism plant its roots firmly in the local soil. Aung Sang Suu Kyi argues that as long as there is a genuine commitment to modern democratic values there is room for variation in local institutional embodiment.54 It is through local institutional embodiment (indigenization) that constitutionalism more directly responds to the above-cited concerns with values and development. Indigenization affords an appropriate response to cultural relativist and developmentalist concerns. For indigenous institutions to work, however, the constitutional fundamentals of democracy, that is, human rights and the rule of law, must be in place. Otherwise, under modern authoritarianism, the local community may be left with an implanted hegemonic discourse constructive of authoritarian power and destructive of genuine community values. Local institutional embodiment may include traditional organizations and practices and more contemporary institutions responsive to developmental concerns. Below, I consider the ways in which constitutional structures respond to both the cultural concerns raised in the Asian values debate and to developmental concerns likely to arise in postauthoritarian constitutional democracies. Constitutionalism and political culture. If a fundamental aim of constitutionalism is to engender political discourse, then constitutionalists should consider the ways in which local culture and traditions may facilitate such discourse, under the umbrella of the core constitutional

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commitments discussed above. It is in local institutional embodiment that substantive communitarian concerns can be addressed. As with the constitutional fundamentals, the notions of representation and the rule of law afford useful categories for analysis. Local grassroots and minority representation may be achieved through contemporary institutions that secure autonomy or minority rights, or through recognition of traditional ethnic or religious groups. The aim is for a realistic discourse that is anchored in the community but responsive to the contemporary urban and industrial or postindustrial conditions where increasing numbers of us live. Locally sensitive representation may include attention to the usual geographic political institutional options, such as federalism or autonomy, which allow for local governance in a large national system. It may also include consideration of various electoral models that seem likely to increase representation of diverse groups and minority interests. Other forms of representation may include substantive or symbolic recognition of distinct ethnic, religious, or linguistic communities in which traditional leaders assume leadership roles. This may be achieved in various ways. It may include, for example, a continuing role, symbolic or substantive, for traditional monarchs, such as is evident in contemporary Malaysia, Japan, and Thailand.55 Special minority group rights may be combined with individual rights; in East Asia there are many traditional indigenous groups that are afforded varied degrees of recognition in the local constitutional system.56 This experience of multicultural concerns is not unique to East Asia, encouraging consideration of practices elsewhere. Arend Lijphart has described the effort by elites to overcome the destabilizing effect of cultural fragmentation in Europe as consociational democracy.57 It is noteworthy that Lijphart employs the term democracy. A bargain across cleavage lines that only includes the elite strata would be merely authoritarian oligarchy and not likely secure a channel for constructing popular will. The use of various forms of local institutional embodiment, along with core constitutional commitments, may engender more confidence in the system, encourage local connectedness to the constitutional order, and facilitate genuine values discourse. Legal structures may also address important indigenous concerns. This may include, for example, allowing for the application of religious or tribal laws. Here democratic commitments and basic rights must be emphasized. Traditional values can be renovated in a public values discourse that sustains important indigenous concerns while maintaining core constitutional commitments. Several possibilities may be consid-

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ered. In societies with long traditions of citizen petition of leaders, a mechanism for petitioning elected officials could be employed or, perhaps, a modern version thereof, the ombudsman. Even a traditional monarch, who may retain symbolic and ceremonial functions, may take on an ombudsman-like role in a postmonarchical democratic society. Such tradition-bound institutions may open better avenues of communication. Even when contemporary institutions are employed, in practice they may be expected to take on indigenous characteristics. Contemporary institutions such as human rights tribunals, election commissions, or corruption-fighting bodies may be employed to address those contemporary problems that neither the core constitutional nor traditional institutions adequately respond to. The goal in all cases is orderly processes of discursive engagement or empowerment. Hegemonic claims of adherence to Asian values without a commitment to the core constitutional fundamentals are unlikely to engender a healthy values discourse or contribute to long-term public trust. In this regard one might contrast the constitutional paths of modern Japan and China. While these countries bear comparison due to similar traditional values and similar encounters with the modern West, the end result has produced striking differences, in many ways explainable by their contrasting postwar constitutional paths. Postwar Japan has taken a liberal constitutional path, but there has been substantial indigenization in practice. Yet, with the fundamentals in place, the constitution does seem to work to encourage a core discussion on fundamental political commitments. Indigenization even encompasses its formal practice of constitutional judicial review; though the courts are noted for taking a conservative posture, often offering only constitutional guidance, they have still played an active role in key constitutional issues.58 This system has afforded increased rights protection and does seem to take constitutionalism seriously.59 Elsewhere in the system, even the process of reform in respect to one-party dominance has proceeded in an orderly fashion and has engendered renewed public concern with corruption and enforcement of legal norms.60 China, on the other hand, has rejected a commitment to the liberal constitutional fundamentals. China’s public discourse has tended to advance a hegemonic view concerning the constitutional fundamentals of democracy, human rights and the rule of law, that people challenge at their peril.61 Constitutional judicial review is not provided, the constitution allowing instead, at least in theory, for a top-down legislative supervision by people’s congresses (at the center the National People’s Congress, or NPC), which are themselves not subject to competitive

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elections and are dominated from the center. If review occurs at all it is either through informal guidance or through the passage of laws.62 A collectivist notion of rights subjects the rights of the individual to the interests of the state.63 The public order situation is a conflict-laden one in which the Public Security Bureau and the military must play a central role. While engaging in economic reform, the regime has engendered increased diversification of interests (implicating both values and developmental concerns) for which inadequate representation is secured. Commitment to legality, under the theory of rule by law, is shaky at best, encouraging increased corruption as the economic reform process goes forward. This has produced a values vacuum that society is hard put to deal with. There is growing evidence of a concern in opening up democratic and legal channels for representation of diverse interests. Under the current authoritarian, top-down, unitary state such representation is virtually nonexistent, and corruption is the only effective channel available. Opening up appropriate legal and democratic channels will not automatically solve the current problems, but such a move may offer hope for crafting orderly solutions in the future. Local institutional embodiment and economic development. Many of the same indigenization arguments addressed in relation to cultural values in the preceding have obvious connection, as well, to economic developmental concerns. Recognition of distinct cultural groups clearly has market and developmental implications: such groups address their distinct developmental problems and attract investment in various resources.64 Beyond multicultural concerns, however, economic concerns implicate a wide range of local constitutional issues. I find it useful to group these general issues around three categories where it can be seen that authoritarian practices fundamentally shape the postauthoritarian order, including neutral borrowing, reacting against the authoritarian order, and copying authoritarian practices. It should be remembered that this concern with economic interest is a very old component in the constitutional equation, having manifested itself profoundly in the earliest written constitutional experiments in the United States in such things as, for example, federalism and the commerce power. I highlight only a few examples from East Asia where people as the economic actors have fundamentally shaped the constitutional order in response to local concerns. The category of neutral borrowing refers to the attempt to simply identify or adapt a constitutional structure from outside the system to complete or fill out the constitutional order without a severe reactive

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component. In such contexts, constitutionalists are essentially looking for the best idea to secure the order required for the system to operate. The Japanese constitution includes components that fit this notion. It is true that the constitution as a whole and certain of its provisions (e.g., the peace provisions) were put in place by the Allied occupation authorities and postwar Japanese people as a reaction against previous excesses. But many of the institutional components imposed by the outside drafters were viewed rather neutrally by the Japanese people, who had to interpret or apply them. From such a perspective this constitution was an imported document. The institution of constitutional judicial review is a case in point. As noted above, through a very Japanese process of interpretation and implementation this institution underwent an indigenization process, incorporating a conservative judicial guidance role akin to the Japanese developmental practice of “administrative guidance.” 65 In spite of their passive posture, the courts have played a pivotal role in economic issues ranging from pollution to corruption. Over time, judicial review has become a very indigenous instrument for addressing fundamental constitutional concerns. The second category is for postauthoritarian democratic forces to react in a negative way against certain authoritarian practices. The peace provision of the Japanese constitution, which seeks to limit use of military force to defense, is just one prominent example in East Asia. Political provisions limiting the president to one term in both South Korea and the Philippines are other obvious examples of reaction to authoritarian excesses of prolonged dictatorship and corruption. There are more profound ways that authoritarian order shapes postauthoritarian practices in reactive ways. Jang Jip Choi describes an authoritarian South Korea that employed a rather harsh form of export-led developmentalism, with a heavy emphasis on the national interest. This produced three essentially reactive cleavages in the politics of the authoritarian period, over the issues of democracy versus dictatorship, distribution versus developmentalism, and reunification.66 The first of these produced the middle class–led democratic transformation and a firm reaction against indirect election of the president when this idea was proposed. The second cleavage imported a strong concern with equality and social justice into transition politics. Concern with worker protections relating to labor organizing, job security, and welfare have become fundamental concerns shaping postauthoritarian South Korea. Choi emphasizes the importance of institutional mechanisms through which workers can articulate their views.67 In the most recent economic crisis, the political leadership is confronted with the need to move

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against the authoritarian cronyism of the large South Korean companies, while not being seen to have been insensitive to worker interests. The third cleavage of reunification or not has been a central theme of opposition forces and has imposed a heavy national security component on the political system. Overall, the postauthoritarian system can be seen to have been fundamentally shaped, in ways with profound implications for the developmental order, by reaction against authoritarian excesses and the problems of a divided Korean peninsula. When it comes to the third category, in copying the perceived developmental successes of the authoritarian period many of the same examples are illustrative. As the economic crisis of the late 1990s reveals, many of the institutional arrangements of authoritarian developmentalism were left in place by the postauthoritarian democratic regimes. Given the perceived successes of the East Asian “economic miracles,” this is not a surprise. Democratic governments throughout the region have felt compelled to leave in place the systems of bureaucratic control that were pervasive under these seemingly successful developmental models.68 The prevalent attitude was that “if it ain’t broke don’t fix it.” For this reason, many of the democratic governments of the region have continued to be plagued by problems of bureaucratic corruption and cronyism that were often endemic to the authoritarian developmental model. Especially after the economic crisis that began in 1997 a shift to a reactive position may now creep into economic institutions, such as reinforced systems of central bank control and corruption-fighting institutions. 69 But, to date, the bureaucratic structures of authoritarian developmentalism have continued to flourish in some postauthoritarian governments. The South Korean example discussed above (which is now the subject of a reactive response due to the economic crisis) is a case in point. Japanese developmental bureaucracies have until recently likewise remained in place, even as political reform proceeds. The phenomenon of copying the more questionable authoritarian economic practices, noted immediately above, does not exhaust the possibilities. In Hong Kong, the prudent fiscal policies of the colonial period have been written into the postauthoritarian Basic Law. The prudence of these policies is yet to be tested. One might expect a lot of the decentralizing policies of the current authoritarian Chinese government in setting up autonomous regions and economic zones to shape a federal China in a postauthoritarian future.70 If this occurred, it would constitute a hybrid of reaction against excessive central control and a copying of liberalizing decentralizing tendencies. In either case, in East Asia

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authoritarian practices have had a pervasive effect on postauthoritarian order in ways that especially address or affect developmental concerns or policies.

Conclusion The form of argument in this chapter has emphasized several specific points: first, that the Asian values and other cultural arguments do not justify the choice of authoritarianism; second, that under East Asia’s current condition of substantial economic development an authoritarian regime can no longer adequately respond to diverse developmental concerns; third, there is the positive role of constitutionalism in constructing empowering conversations in modern democratic development and as a venue for values and developmental discourse; and fourth, there is the salient importance, especially in cross-cultural and developmental contexts, of indigenization of constitutionalism through local institutional embodiment. It is the linkage of these points that connects the constitutional regime of a given state or similar territorial community to the international processes of human rights and establishes the importance of domestic human rights practices. At the dawn of the twenty-first century, in a world that is increasingly fragmented and integrated at the same time, the concept of the state has begun to take on a new meaning. A certain level of fragmentation has meant that there are more territorial communities than ever before that claim state status, while other nonstate territorial communities have arisen whose importance matches that of states. This fragmentation has meant that local institutions of self-rule are very important in the discursive processes of constructing local values and responding to local developmental needs. In modern urban industrial and postindustrial societies, the institutions of constitutional government and human rights have become increasingly important in this constructive process. These institutions construct local order and are constructive of the diverse entities that make up the international state system.

Notes 1. The approach taken here is not to offer the sanguine variety of constitutionalism offered by early modernization theorists, but, rather, to offer constitutionalism as an engaging process that must be adequately hooked up to

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indigenous conditions. The notion that constitutional practices could simply be transplanted intact has long been dispelled. The task of the current generation of institutional scholars is to explore avenues to hook institutions up to the local condition. In political science, the scholarship of the so-called new institutionalism especially addresses these concerns. Hall and Taylor, 1994; Thelen and Steinmo, 1992. 2. Since the Asian values claims are generally about Asian culture I will frequently use the term “cultural values” loosely to encompass both the Asian values and other culture concerns addressed in the next section. This will not aim to ignore the distinctions between certain general arguments about culture, discussed in the next section, and the specific Asian values claims. This is merely to recognize that, in terms of their fundamental nature, claims about values and culture are either the same thing or overlap considerably. It should be further noted that since the types of values that concern us most in this chapter are political values or those that shape political values, the reference will sometimes be explicitly to political values. Development here generally refers to economic development unless specified otherwise. 3. Huntington, 1993: 15. 4. Merely declaring an election does not eliminate deep-seated vestiges of authoritarianism, which may linger in the political system for decades. Such is the basis for the present claim that successful democracy requires a wide range of institutional reforms to implement the full spectrum of constitutional governance. In the early stages piecemeal reform, wider public information, and a relaxation of authoritarian controls may produce the appearance of or actual increase in problems often associated with authoritarianism, such as corruption and cronyism. The recent economic crises in Thailand and South Korea demonstrate that even after democratically elected governments were in place authoritarian economic practices, with the associated cronyism, continued. In the face of the economic crisis, East Asian democratic governments have had to launch a concerted attack on the vestiges of authoritarianism by shoring up many institutional requirements. 5. Chang, 1995. 6. Said, 1979: 22. 7. Beng-Huat Chua, 1995: 147. 8. The May 4th Movement was triggered by the decision made at the Versailles Conference on May 4, 1919, that the German concession in Shandung was to be transferred to Japan. This triggered a political movement marked by Chinese nationalism and disillusionment with both the West and Chinese tradition. The ideological struggle between socialism and liberal democracy that would later become so important was born here. 9. Svensson, 1996. 10. Fukuyama, 1995: 20. 11. Almond and Verba, 1989. 12. Perry (1994: 2) describes this problem and notes the difficulty scholars experience in compiling the meager comparative data in the Chinese context. 13. Linz and Stepan, 1996a. 14. Popkin, 1986: 203–204.

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15. Tocqueville, 1945. 16. Putnam, 1993: 87. 17. Smolar, 1996. 18. In simple terms, Western communitarianism has tended to emphasize the common good over liberal individual rights and to emphasize the shared values of community. In this respect, communitarianism in the West has primarily offered a critique of liberalism. 19. Amy Chua, 1995: 184–202. 20. The liberal-communitarian debate has become a central debate in contemporary political philosophy. Delaney, 1994. 21. While certainly among the growth leaders, Hong Kong is distinguished for not having practiced the degree of planning characteristic of these other “tiger” economies. 22. In such systems public welfare spending tends to emphasize subsidized housing, transportation, and health care, the employer-friendly types of welfare that facilitate reduced wages. 23. Johnson, 1982: 51–52. 24. Evans, 1995. 25. The human costs of Indonesia’s plight should be borne in mind. At the time the World Bank estimated that a 10 percent reduction in consumption in East Asia would see poverty double in Indonesia, while it would likely increase by 35–50 percent in the Philippines, Malaysia, and Thailand (World Bank, 1998b: 83). Indonesia’s per capita GNP was estimated to have gone down by $1,110 in 1997 to $650 (“Indonesia Back Among Poor,” South China Morning Post, Business, November 13, 1998: 7). The World Bank report noted that “in all countries, NGOs identified increased conflict, within the household, the community, and society at large” (World Bank, 1998b: 95). Looking back on the Latin American debt crisis of the 1980s, the report noted, in regard to democracy, that “policy measures that were finally undertaken worked precisely because they had been endorsed by a more open civil society” (World Bank 1998b: 86). 26. Rodrik, 1998; Emmerson, 1998; Koppel, 1998; Haggard and Kaufman, 1992. 27. Rodrik, 1998. 28. Emmerson, 1998: 52. 29. In the financial crisis, because of its currency exchange restrictions, China was initially able to escape from the worst effects of what was at first a currency crisis. 30. Li and Lian, 1996. While theorists hold out hope in such circumstances for the rule of law, authoritarian governments, such as in China, may speak glowingly of “rule by law.” Rule by law appears to suggest a government commitment to follow the law but gives little importance to public transparency or democracy in enactment and application. 31. Elster, 1993: 173. 32. Bell et al., 1995; Zakaria, 1997. 33. Rueschemeyer, Stephens, and Stephens, 1992. The present discussion focuses on conditions of rapid or substantial economic development, as exist in much of East Asia, but studies have shown that pluralist politics and open chan-

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nels of communication and public criticism may also be important to poorly developed societies living at the subsistence level and endeavoring to avoid extreme problems such as famine (Dreze and Sen, 1989: 263–264). The extensive studies of Jean Dreze and Amartya Sen on the problems of famine and subsistence call into question the frequent political economy argument of authoritarian regimes, such as in China, that subsistence takes precedence over civil and political rights. 34. Holmes, 1988: 226. 35. Elster, 1996; Linz and Stepan, 1996a: 19. 36. O’Donnell, 1996: 44. 37. Choi, 1993; Guingona, 1989. 38. Li and Lian, 1996. This argument picks up some general support in Giovanni Sartori’s proposition that “demo-protection” (protection from tyranny or constitutional constraint) travels better than “demo-power” (implementation of popular rule)—“nobody wants to be imprisoned, tortured or killed” (Sartori, 1995: 101–104). But it is doubtful that Sartori would advocate that the absence of demo-power be accepted as a long-term solution. 39. Some scholars have advocated an Asian model of democracy along these lines, characterizing it as illiberal democracy. Bell et al., 1995; Zakaria, 1997. 40. In East Asia, such clientelism has spawned economic and political systems that are particularly noted for problems of cronyism and corruption, problems that are frequently associated with East Asia’s leading countries (e.g. Indonesia, South Korea, China, and Japan) (Mitchell, 1996). 41. Guingona, 1989; Davis, 1996. The ultimate success of the Hong Kong effort will depend heavily on an external variable, the behavior of the Chinese government. 42. Elster, 1995: 377–386. 43. Ibid., 374. 44. Ford, 1996: Davis, 1996. 45. Cappelletti, 1980. 46. Bickel, 1986. 47. A court can use various avoidance and interpretation doctrines, what Bickel calls “passive virtues,” to carry on a complex dialogue with the elected branches of government and the people (Bickel, 1986: 23, 65–70, 117). 48. As a general proposition, the structure of constitutional judicial review is divided into those systems with a central constitutional court deciding issues on referral from ordinary courts or other branches of government (usually civil law systems) and those decentralized systems where ordinary courts exercise this power in actual cases (usually common law systems) (Cappelletti, 1980: 401). Japan is the East Asian exception where a decentralized system exists in a civil law country (Ford, 1996). Hong Kong has both systems operating at once: a decentralized system for matters within local autonomy and a centralized review process by the NPC Standing Committee in Beijing (advised by a Basic Law Committee) on matters of central authority or involving local central relations: Hong Kong Basic Law, articles 17 and 158 (Davis, 1996). 49. Ford, 1996; Davis, 1996; Tate, 1994. Note that the 1999 Hong Kong Court of Final Appeal judgment in Ng Ka Ling v. Director of Immigration, Court of Final Appeal No. 14 of 1998 (January 29, 1999) is perhaps the most

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striking unambiguous judicial assertion of the power of constitutional judicial review, of the Marbury v. Madison variety, one is likely to see. The court overturned a local Hong Kong immigration ordinance under the Basic Law. Note however that the hazards of authoritarian resistance to constitutional judicial review are also revealed in the Ng Ka Ling case. After the decision an uproar from Beijing, attacking the court for putting itself above the NPC, resulted first in a government motion to clarify the judgment on this point and, later, after further uproar over the substantive issues in the case, in an NPC ruling overruling certain aspects of the case. On the clarification the point of dispute was merely the obiter dicta in the judgment asserting the court’s power to review acts of the NPC. In its clarifying judgment the court reaffirmed what its decision already said, that NPC acts that purport to apply to Hong Kong must follow the Basic Law. Ng Ka Ling v. The Director of Immigration, Court of Final Appeal No. 14 of 1998 (February 26, 1999). The court had never put itself above the NPC and had merely indicated that as a common law court created by the NPC through the Hong Kong Basic Law, it would be bound by the instructions in the Basic Law as to sources of law. Mainland officials had simply failed to understand the judgment, but they appeared satisfied at the clarification and the furor on this point died down. The subsequent NPC ruling overturning certain substantive aspects of the case, while leaving intact the power of constitutional judicial review, is sure to have a chilling effect on its exercise. 50. Krasner, 1984. 51. Ackerman, 1991. 52. Ibid., 34–57. 53. The 1987 lifting of martial law triggered a whole series of events, including popular demonstrations, a judicial review opinion ruling the failure to hold new elections for the Legislative Yuan to replace seats long held by mainlanders elected in the 1940s unconstitutional, a National Affairs Conference, and, ultimately, full democratic elections. 54. Aung Sang, 1995: 13. 55. An-Na’im, 1990; Higuchi, 1990; Keyes, 1987. 56. Barnes, Gray, and Kingsbury, 1993. 1995. 57. Lijphart, 1968: 62. 58. Ford, 1996: 25–29, 49–55; Young, 1984: 970. 59. Ford, 1996: 29–36. 60. Mitchell, 1996: 121–132. 61. Fiss, 1986: 501. 62. People’s Republic of China Constitution, 1982, article 67; Nathan, 1986. 63. People’s Republic of China Constitution, 1982, article 51; Edwards, 1986. 64. Amy Chua, 1995: 244–256. 65. Ford, 1996: 3. 66. Choi, 1993: 13, 18, 28. 67. Ibid., 30. 68. The Sino-British Joint Declaration and the subsequent Hong Kong Basic Law reflect a noteworthy example where the copying of elaborate authoritarian colonial features is explicitly provided in constitutional documents (Davis, 1996).

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69. A specific example arising out of the crisis, in a quasi-democratic (but still authoritarian) context, of monetary policy fundamentally altering the system, is the Malaysian imposition of severe exchange controls after the currency crisis emerged. If allowed to persist, this might be considered as fundamentally altering the constitutional order of Malaysia. Prime Minister Mahathir had been quoted as recommending that Taiwan and Hong Kong follow suit. “Malaysia Sinks into Currency Isolation,” South China Morning Post, September 2, 1998: 1. 70. Davis, 1999.

8 The Consolidation of Democracy and Human Rights in Latin America Juan E. Méndez & Javier Mariezcurrena Democracy and Human Rights as Obligations in International Law

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n the late 1940s, while the echoes of World War II were still sounding in the world’s ears, the international community began to adopt treaties and norms to prevent the recurrence of the horrors of war and repression. An important achievement of that time was the creation of universal and regional organizations such as the United Nations and the Organization of American States (OAS) as political and diplomatic organs, coupled in each case with systems of human rights protection. In the case of the Americas, the human rights protection scheme was born at the same time as the OAS: the Charter of the OAS and the region’s first human rights instrument, the American Declaration on the Rights and Duties of Man, were signed at the same conference in Bogota, in April 1948. An American Charter on Social Guarantees, which signaled the region’s belief that civil and political rights and social justice were necessary to ensure the benefits of democracy to all, was also signed on the same date. Taken together, the three original instruments leave no doubt about the interdependence of civil, political, economic, social, and cultural rights and the sustainability of democracy as a form of government.1 The UN Charter does not establish democracy as a requirement for membership, since at its inception the need was to preserve peace, even between nations with widely differing systems of government. Consequently, nations that were invited to join the United Nations were only required to be “peace loving” and to express a commitment to respect fundamental rights.2 In contrast, and as a distinguishing feature, 163

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the inter-American system makes specific reference to representative democracy as the region’s form of government. This “democratic clause” means that under inter-American law only democratic governments will be regarded as legitimate. Democratic regimes are those that are characterized by the division and balance of their powers; respect for an ample sphere of personal liberty and autonomy for their citizens; self-limitation of the authorities in exercising power; respect for and promotion of a strong civil society; adequate institutional response to each violation of a fundamental right; and the accountability of every public agent for the way in which he or she discharges the duties of the office. Among others, these concepts (and not only the periodic holding of elections) constitute the democracy that all the American states have pledged to respect and promote as members of the OAS. In 1959, a resolution of the General Assembly of the OAS created the Inter-American Commission on Human Rights, basically as an organ of promotion rather than of protection. The commission had enough discretion, however, to interpret its mandate from the start as allowing it to monitor some countries’ compliance with the norms of the American Declaration. In 1967, the OAS Charter was amended, and the commission became a “principal organ” of the OAS. A multilateral human rights treaty, the American Convention on Human Rights, or “Pact of San Jose, Costa Rica,” was signed in 1969, and entered into effect in 1979 when the requisite number of states ratified it. The convention gave a second form of treaty existence to the commission, and it created an Inter-American Court of Human Rights, which is based in San Jose (the commission’s headquarters are in Washington, D.C., site of the OAS General Secretariat). Together, these treaty bodies are the organs of the mechanisms of protection, since they are entitled to issue advisory opinions as well as decisions in case complaints. The commission also retains a variety of promotional functions. The European system, the world’s most advanced regional system of protection of human rights, also makes specific reference to democracy. But the apparent similarities between Europe and the Americas are deceptive. In Europe, signing and ratifying the European Convention on Human Rights and all its protocols are specific conditions of membership in the European Community, whereas the OAS member states can decide whether or not they wish to become a party to the American Convention and, even if they do, whether they will be bound by the Inter-American Court’s jurisdiction to hear case complaints. More to the point, when confronted with a nullification of democracy, as in

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Greece after the “colonels’ coup,” the European Community organs (in this case the Council of Ministers) acted to defend democracy and threatened Greece with suspension from membership. As is painfully obvious, in Latin America countless military dictatorships and authoritarian regimes have remained for years as members in good standing of the OAS. Moreover, in the 50 years of its existence, the history of implementation of this “democracy clause” in the Americas is checkered at best. Not only has it been regarded as no obstacle to harmonious relations with right-wing regimes, but also if it has been applied at all in specific cases it has been with a strong ideological bent. It was invoked against Cuba in 1962, when the OAS General Assembly meeting in Punta del Este, Uruguay, suspended that country’s right of membership in the OAS. With the interpretation that the suspension affects the Castro government, and not the state of Cuba (since the OAS has no power to expel any of its members), the Inter-American Commission has for years held that it retains the power to monitor events in Cuba and to condemn the government for human rights violations, under the dubious theory that the suspension affects Cuba’s right of membership but not its obligations.3 Indeed, such an interpretation does tend to protect human rights better than the commission’s simply ignoring events in Cuba until it was reintegrated into the OAS fold. But this has proven an ingenious but ultimately fruitless legal theory because Cuba steadfastly refuses to deal with the commission on any level, and wields the convenient argument that it is not bound by obligations if it is not allowed also to exercise its rights. More than three decades later, Cubans do not enjoy freedom of expression or association, and prosecution of political dissidents is conducted without any semblance of due process. For this and for many other reasons, Cuba’s suspension from the OAS has proved a misguided approach to the promotion of democracy and the protection of human rights. Ironically, governments in the 1960s, which included the dictatorial and brutal Somoza, Trujillo, and Stroessner regimes, voted to apply the democracy clause to Cuba. Later, the lack of “representative democracy” was not deemed important enough to apply similar treatment to the Brazilian military dictatorship that came into power in 1964 or to the governments of Generals Pinochet, Videla, and others. The democracy clause and its corollary, the question of multilateral defense of democracy, came up again in the 1990s, when most countries reinstituted elected governments and embarked on the transition to democracy. In 1991, the OAS General Assembly adopted the

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“Commitment of Santiago,” in which the member states pledged to respond collectively to threats to constitutional order in any sister nation.4 The Declaration of Santiago, spelled out in General Assembly Resolution 1080, was ratified in successive statements in the following years. Very soon, the OAS was confronted with the “self-coup” of Peru’s President Alberto Fujimori, who on April 5, 1992, dissolved Peru’s congress and replaced most of the judiciary. The Santiago Commitment was invoked to deny the hemisphere’s support for Fujimori’s authoritarianism, but as a practical mechanism it failed miserably. Gros Espiell, then Uruguay’s minister of foreign relations and chair of the Council of Ministers of the OAS, was appointed to apply the Santiago rule and negotiate a return to democracy in Peru. As a result of these efforts, in late 1992 Fujimori held elections for a Democratic Constituent Congress (CCD) and won them handily. The OAS declared the job done, although most of the opposition had boycotted the elections. The CCD eventually enacted a constitution that concentrates power in the executive. Even today Peru does not have an independent judiciary.5 The Santiago norm, and the OAS, fared somewhat better in two further challenges to democracy in the hemisphere, at least one of them clearly inspired by Fujimori’s success. The OAS had occasion to act collectively in Guatemala and in Haiti. In Guatemala, international pressure turned back the attempt by President Jorge Serrano to dissolve congress and to rule by executive fiat. In Haiti, the military coup against Jean-Bertrand Aristide took more than 2 years to be rolled back, and the OAS efforts were helped considerably by the involvement of the United Nations, as well as by President Bill Clinton’s willingness to deploy armed contingents. On balance this reaffirmation of democracy in the 1990s was at best mixed. It appears, on the positive side, that the Latin American democracies emerging from years of military tyranny now do act sincerely in reacting to threats to constitutional order in their neighboring countries. Debates about these events at the OAS General Assembly or at specially convened meetings of the Council of Ministers do contribute to delegitimize undemocratic adventures. But there is a tendency to be satisfied, as in Peru, with a nominal return to elections, as long as they are more or less defensible as expressions of majority opinion, though not necessarily free and fair by rigorous standards. There is also no desire to allow independent organs like the Inter-American Commission to play a role in determining the extent of respect for human rights and democracy via objective standards in the course of such crises. Indeed,

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the commission continues to do its job in those circumstances, but the political organs, in applying the Santiago Commitment, have not relied on the commission’s findings or asked its advice. As will be shown, the relationship between democracy and human rights in the inter-American system is well established, but unsatisfactorily developed.

The Reality of Human Rights Violations The Military Dictatorship Stage In the 1970s and 1980s, Latin America was at the forefront of human rights concerns of the international community. Most governments in the region were military dictatorships emerging from coups d’état or nominally elected governments with very strong military influence. The body of law and enforcement machinery set up by the OAS was not enough to stop massive, consistent, and deliberate human rights violations. The traditions and institutions developed over 150 years of constitutional rule in most countries also proved incapable of containing the tragedy of abuses. Although the continent had suffered from instability and turmoil over virtually all of its history, this period was arguably the most repressive. By the 1960s and 1970s the model of vaguely formal electoral democracies, which practiced exclusionary politics by way of authoritarianism, fraud, and outright thuggery, was near exhaustion. Following the example of Che Guevara and the Cuban Revolution, many radical young leaders launched various experiments in “armed struggle” and thereby challenged the very existence of the state as then known. The threat of revolutionary takeover of government exacerbated the most criminal instincts of the dominant powers, and military cliques took over governments, either overtly or covertly, to unleash waves of brutal repression. In some countries, the confrontation did reach the level of a protracted internal armed conflict. In others, the presence of some form of organized urban guerrilla warfare was the convenient excuse to rule by state of siege and eliminate all forms of dissent, whether violent or peaceful. In either case the repressive response amounted to state terrorism, with its legacy of thousands of massacres, extrajudicial executions, disappearances, torture, and prolonged arbitrary detention. The dictatorships not only suspended elections but disbanded parliaments and established a tight grip over all institutions of government, especially those

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whose main function is to guarantee the enjoyment of rights by all citizens. A coup d’état generally carries with it the possibility of ruling by decree, but these de facto governments made a special point of using emergency measures to unify and consolidate the exercise of power. This totalitarian doctrine of “national security” was imposed by force, and the dictators made sure that no one could express any significant dissent within it. It is sad but necessary to admit that large segments of the population were willing supporters and cheered as their liberties were trampled upon. Weakened by decades of neglect and manipulation, the courts were generally unable to contain the spate of state violence, much less to stand in the way of ruthless campaigns to eliminate physically all significant opposition to the regimes. In Argentina, on its first day in office, the junta stripped all judges at every level of their life tenure, and then proceeded to replace 80 percent of them with loyalists. The judges of this period generally looked the other way as persons were made to disappear, and were slow to act to put an end to thousands of arbitrary arrests under the state of siege. Nevertheless, in very visible cases, albeit with much delay, they did uphold some long-standing judicial precedents and ordered the release of journalist Jacobo Timerman. The Argentine Supreme Court even ordered investigations into disappearances in four successive class actions labeled Perez de Smith I, II, III, and IV. In the face of the large number of cases, however, those good decisions amounted to too little and too late.6 In Chile General Augusto Pinochet did not remove the judiciary, but the long tradition of conservative and elitist judges was enough for it to adopt a docile and complacent position regarding the most extreme authoritarian measures he adopted to stamp out any form of pluralism. In fact, courts lent a veneer of legality to confinement without due process, massive expulsions from the country, prosecution of civilians by military courts, and other outrages. After the 1978 self-amnesty law, the crimes of the first few years were no longer investigated, not even summarily. One judge, however, Antonio Cerda, did develop an interpretation by which he had to investigate the fate and whereabouts of a disappeared person before he could determine whether the facts warranted the application of the amnesty law. For this, he was eventually forced out of office by his superiors in the Chilean Supreme Court.7 In El Salvador and Guatemala judges did not even bother to conduct meaningful investigations, and most human rights violations were never prosecuted. The UN Truth Commission for El Salvador, set up as a step in the peace process brokered and monitored by the international

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community, reserved its harshest criticism for the judiciary, and particularly the Supreme Court, for its grave dereliction of duty.8 In Colombia, generally competent and creative judges were besieged by violence from multiple sources that in only a few years cost the lives of some 300 judges, prosecutors, and court personnel. In varying degrees, the role of the judiciary in every other country was similar. Weak and ineffective courts were rendered almost useless by the pressure of the dictatorships and their doctrine of national security; in a relatively short time, new generations of judges were reflecting the values and attitudes of their bosses in the military. This breakdown of the actual independence of judges and prosecutors, as opposed to formal independence of the courts, would prove one of the hardest problems to overcome when transition to democracy finally took place. With all state institutions firmly under their control, the military cliques that ruled most Latin American countries in the 1970s and 1980s established a reign of terror. They are remembered mostly for their bloody campaigns against insurgencies and the sequel of disappearances, massacres, executions, torture, and prolonged arbitrary arrest. Significant, though less known, is the fact that these regimes imposed tight controls over freedom of speech and association as well. With only a veneer of differing views, the press in fact controlled information at the service of the dictators and ensured that the public got a very heavy dose of disinformation and propaganda. In spite of this, when traditional political opposition was cowed into submission, the early forms of resistance against the regimes came from spontaneous organizations of civil society. In some countries, these organizations got an early boost and a protective umbrella from the Catholic Church, or at least from some of its bishops. In other countries, even the church played along with the juntas and dismissed human rights complaints as antipatriotic gestures.9 Some of the most effective human rights organizations were formed exclusively by victims, especially by the mothers and other relatives of the detainees and of the “disappeared.” Enlisting the assistance of courageous lawyers, they pushed their cases through the courts. In this manner, they either made a dent in the otherwise hard brick wall of silence and oblivion erected by the regimes, or they exposed the fallacy of the latter’s proclaimed adherence to Western and Christian principles. The organizations’ struggle signaled the beginning, step by step, of the eventual return to the rule of law. Needless to say, that struggle took a heavy toll, as many human rights activists paid with their lives. Indeed even now, in the democratic era, human rights advocacy in Latin

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America is extremely hazardous. In 1998 alone two very prominent activists were murdered: Eduardo Umaña, a Colombian lawyer, and Monsignor Juan Gerardi, a Guatemalan bishop.10 As these organizations of civil society began to have an impact in their countries, they were aided by international developments that often originated in the societies of the developed world. In response to the Vietnam War, Watergate, and an end of innocence about colonialism, public opinion in Western industrialized countries by the late 1970s demanded that concern for human rights be made an element in the foreign policies of major powers. The administration of President Jimmy Carter made an honest effort to incorporate human rights in its relations with so-called friendly countries. Although the policy was inconsistently applied, it undeniably provided shelter and protection to those fledgling human rights organizations that became more visible and less subject to attack the more that their agenda was taken up by others at the centers of power. The incorporation of human rights into the realm of foreign affairs also gave visibility and encouragement to mechanisms of protection that suddenly became crucial and started to play a significant role in curbing the incidence of abuse, or at least in stigmatizing the offending regimes. In particular, the Inter-American Commission of Human Rights was able to deliver on the possibilities offered by the system devised earlier by the OAS. The commission made full use of its powers to receive complaints, to act on an expedient basis if warranted, to insist on making on-site visits, and to write and publish comprehensive reports on the situation of human rights in given countries. Its strongest reports came first in regard to Chile. In 1978 it produced a stinging report on Nicaragua, which was the basis for the unprecedented action taken by the OAS Council of Ministers the following year, declaring Anastasio Somoza unfit to govern and precipitating his downfall. In 1979 the Commission visited Argentina, and its 1980 report on that country still stands as one of the strongest indictments of any regime ever. The commission certainly incurred the wrath of the ruling juntas, but the quality of its reporting and the nature and scope of the violations documented allowed it to stand its ground. Moreover, the Carter administration and the few democratic Latin American governments of that time provided it with sufficient cover when it was attacked, generally at each yearly OAS General Assembly, when presenting its annual report. In those years, the General Assembly did become a forum for serious discussion of human rights issues related to some countries’ practices, a

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function that had been virtually abandoned in previous years. Even after Jimmy Carter left office, human rights as an important ingredient in foreign relations remained central to the OAS, and even to bilateral and subregional policies in Latin America. This was in part because very serious violations continued, local NGOs had gathered strength and credibility, and the international press was keen on focusing on human rights when reporting on the conflicts then raging in several countries of the region. The administration of President Ronald Reagan made an initial attempt to push human rights back into the recesses of foreign policy and replace it with a concern for international terrorism, in the words of Secretary of State Alexander Haig. But public opinion in the United States forced a partial change of course, and for the remainder of the Reagan years human rights continued to be a focus of debate, even if only to be used blatantly as a tool in ideological battles, and not for its own sake. As the United States became involved in the armed conflicts of Central America, the role of the Inter-American Commission in protecting rights lost momentum, at least in the battleground countries. Nevertheless, the commission did remain a strong actor in South America, where societies were beginning to move toward democracy, albeit at different speeds because of different degrees of control by the dictatorships. In the late 1980s, the Inter-American Court entered the picture as well, particularly with its groundbreaking decisions in Velásquez Rodríguez and Godínez Cruz, two cases of disappearances in Honduras.11 Transitions to Democracy Latin America experienced a startlingly consistent move away from dictatorship and toward elected government in the 1980s. Of course, the timing and the pace of these transitions varied widely. Remarkably, however, triggering factors (like the defeat of Argentina in the Falklands-Malvinas conflict) seem to have influenced precisely the speed of change, and to a lesser extent the conditions in which change would occur, but were not the cause of the transition. In each case, the transition was initially viewed by most observers as exceedingly fragile and tentative, as well as dominated by military elites that retained a great deal of power and control over developments. In those circumstances, conventional wisdom felt that it was foolish, and perhaps suicidal, to insist too much on justice for past human rights abuses. The Falklands debacle caused Argentina to become the first country to enter

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this transitional phase, and because of the disarray in the military establishment, the changes were chaotic and uncontrollable. In those years, U.S. diplomats, pundits, and political scientists predicted that the measures taken by President Raul Alfonsin to prosecute military leaders would not only backfire in Argentina, but would set back the pace of reform in all other countries by years.12 Of course, it did not happen that way. All countries with de facto governments eventually moved toward elections, although the military certainly did try in each case to impose conditions on the emerging civilian regimes. Human rights organizations and some democratic politicians did not heed the warnings and proceeded to push the issue of redress for past violations onto the national agendas of transition. Not only did this have no discernible effect on changes happening in other countries, but in fact the victims’ quest for truth and justice became a central issue in all the transitions. Of course, the debate took different forms and the measures employed or not also varied from place to place. But there is no single country to emerge from a military dictatorship that has not had to confront the problem of what to do about its recent past. The first stage in the confrontation was usually the fight against amnesty laws, presented as an effort at national reconciliation, but the effect of which was to preclude any and all inquiry into the fate and whereabouts of the disappeared, and to shield the military—individually and collectively—from any investigation into its responsibility for such atrocities. Unfortunately, it was not only the matter of “selfamnesty” laws and decrees passed by the militaries while they were still in power; the newly democratic governments were often too quick to respond to threats of upheaval by passing similarly shameful blanket amnesties, even if such amnesties were usually called by other names.13 Whether or not a country was willing to investigate, prosecute, and punish those abuses, a more immediate question was burning, especially in those places where the practice of forced disappearances had been paramount. It was imperative to let the families know what had happened to their loved ones, and the human rights organizations made sure that this demand quickly became a societal one, not limited to the concerned families. The demand became so powerful that it could not wait until the wheels of justice completed their long and very uncertain turn. Newly democratic governments instituted “truth commissions” to force disclosure of documents, obtain testimony from victims and survivors, and provide a sympathetic forum for the families. The practice soon became a staple of transitions to democracy, and has most recently been

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enriched considerably by the experience of the South African Truth and Reconciliation Commission.14 In Latin America the cycle of impunity for past human rights abuses has certainly not been broken. But the balance of efforts made in different countries is encouraging in several ways. First, almost everywhere, large majorities of the population have come to understand that the state owes something to the victims of grave and consistent violations of human rights, and that this something cannot be reduced to a sum of money if it is to be consistent with the inherent dignity of each human person. Second, truth commissions have evolved in such ways that an emerging “right to truth” is being recognized virtually everywhere when it comes to this kind of serious violation. Third, blanket amnesty laws are now universally condemned as inconsistent with a state’s obligations under human rights treaties (the most recent Latin American amnesty law, passed in Guatemala in December 1996, in compliance with the peace accords that put an end to the 37-year war, is the first to exclude the most serious crimes, and is thus consistent, in its terms, with the country’s obligations). The organs of the inter-American system of protection played a large role in accompanying these developments and translating them into progressive doctrines of human rights law. In the Velásquez and Godínez cases, mentioned above, the Inter-American Court of Human Rights, dealing with the phenomenon of disappearances, established certain general principles that have been frequently referred to since then. Among other things, the court has said that forced disappearances of persons are unmistakably a crime against humanity. Second, as a consequence of that, states are duty-bound to investigate, prosecute, and punish individuals, thus giving rise to a “right to justice” that is at least as important as a family’s right to know the truth. In regard to the truth, the court also established not only that governments must investigate and disclose all that can be known about the fate and whereabouts of each disappeared person, but that the obligation to do so remains in force for as long as there remains any uncertainty over what took place.15 Following the court’s reasoning, the commission has now had several occasions to proclaim that amnesty laws so sweeping that they preclude any possibility of investigating the facts are contrary to a state’s obligations under the American Convention on Human Rights. The court said so originally in cases challenging the validity of laws passed by democratic regimes in Uruguay and Argentina.16 More recently, it

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confirmed its position in cases against Chile and El Salvador.17 In turn, these pronouncements have been embraced by other authoritative bodies in international law. For example, the UN Human Rights Committee, which is the treaty body that interprets and applies the International Covenant on Civil and Political Rights, has said repeatedly that amnesty laws that have the effect of creating an atmosphere of impunity are contrary to the covenant.18 More recently, the European Court of Human Rights has said that when crimes committed by state agents are of a particularly egregious nature, payment of compensation alone does not satisfy the state’s obligations under the European Convention on Human Rights.19 In some Latin American countries, the courts of domestic jurisdiction have become conscious of their responsibility to apply international standards of human rights protection and to give effect to the state’s obligations under treaties. Citing the precedents mentioned, some courts have entertained complaints from victims of past human rights violations even in the face of binding pseudo-amnesty laws. In these cases, even if suspects cannot be prosecuted criminally, the courts adopt evidentiary measures designed to find out the facts and disclose them to the families, thus implementing the right to truth mentioned earlier.20 The international community has embraced the principles of the struggle against impunity in a variety of ways, which go beyond case decisions. In Latin America, transitions to democracy soon took a form that engaged the international community, particularly when an internal armed conflict required outside intervention. In Nicaragua, El Salvador, Guatemala, and Haiti, transitions to democracy did not happen solely via internal forces, as had happened largely in South America, where the OAS and the United Nations were called upon either to mediate or to monitor the implementation of accords, or to do both. These latter peace processes were largely successful, at least in bringing particularly brutal wars to an end, and in diminishing the incidence of grave human rights violations. They succeeded mostly because human rights were put at the center of the peace process from the start. Even before the parties agreed to a cease-fire, they were asked to agree to a code of conduct based on human rights principles and to a civilian monitoring system for their implementation. With regard to impunity, the international community went from bad to better. In Nicaragua, after the unexpected electoral defeat of the Sandinistas, but before yielding power, all the parties rammed through a blanket amnesty that has prevented any clarification of abuses by either side to the “contra war.” The international community hardly protested.

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In El Salvador, however, the UN mediation effort succeeded in establishing a truth commission that produced an important report. In its wake, the Salvadoran government issued a blanket amnesty, and this time the United Nations protested. In Guatemala, the peace accords called for a sort of truth commission, the Commission for Historical Clarification, and—beyond expectations—it produced an honest, hardhitting report published in 1999.21 As stated, the amnesty law that was passed pursuant to the peace accords is the first one in Latin America that refuses to exempt crimes of such severity that they constitute crimes against humanity. Latin America’s experience with truth, justice, and reconciliation has inspired efforts elsewhere. The most significant is, undoubtedly, the process conducted in South Africa to investigate the crimes of the apartheid regime, to grant amnesty to perpetrators only on condition that they testify truthfully to their own crimes, and to issue an authoritative and complete report on the human rights tragedy that befell that country between 1960 and 1992.22 But the international community has borrowed pages from the Latin American experience in other ways too, and in the last decade of the twentieth century it was possible to say that the world was no longer only paying lip service to the idea of accountability. The UN Security Council has formed two ad hoc war crimes tribunals for the former Yugoslavia and for Rwanda. In 1998, a diplomatic conference adopted the Rome Statute for the Creation of an International Criminal Court of a permanent nature. And the notion of universal jurisdiction, designed to provide for prosecution and punishment of the most serious human rights crimes when local governments are unwilling or unable to live up to their own obligations, received an unexpected but highly welcome boost with the arrest of General Pinochet of Chile, in the United Kingdom, pursuant to an arrest warrant issued by a Spanish judge. Transitions to democracy in Latin America are over. At least they should be over by any conventional standard, because by now democratic governments have succeeded other democratic governments, and the specter of coups d’état is not on the horizon in any country.23 From a qualitative point of view, the Pinochet case has shown that the Chilean transition was more or less stuck in time, with major issues of truth, justice, and reconciliation unresolved, or buried under a pretension of resolution that burst like a bubble with Pinochet’s arrest.24 In addition, to consider the problems of Latin America under the umbrella of transition to democracy is wrong because it tends to let governments off the hook with respect to their obligations to their citizens. Latin America finds

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itself in the midst of an unprecedented era of constitutional government almost in every country simultaneously, and the era is unprecedented as well in the apparent length of this democratic spring. It is important, however, to take stock of the kind and degree of democracy being experimented with, without forgetting of course the enormous change for the better that has taken place in the past 20 years. Insufficient Democracy Today Latin America is in a stage that we call “insufficient democracy,” characterized by a number of features common to all the countries. To differing degrees and in different ways, these impede full enjoyment of the rights guaranteed to citizens in a democracy. We will focus here only on those aspects of the phenomenon of insufficient democracy that we consider most serious. We will not attempt to analyze them in depth, and acknowledge that there are others that are as important as the ones we mention. Perhaps the most serious problem facing the democracies in Latin America is the failure to address economic and social exclusion—which in turn leads to political exclusion—of the huge number of people for whom economic and social rights are nonexistent. Although it is true that unemployment and the lack of resources for health services and education are long-standing structural problems, the failure of the new democratic governments to provide a solution raises questions about their legitimacy and discredits the system itself. It is indeed intolerable that poverty has grown during this democratic period, both in absolute and in relative terms. Latin America’s democracy is democracy for the few. In the past, some governments found a suitable conceptual framework to justify their failure to ensure the exercise of economic and social rights to their people. The alibi was that these rights were to be fulfilled only through “progressive realization.”25 This clause is the key to the ill-conceived separation of human rights into “different generations,” a monumental error of the Cold War era, for which Latin American people are still paying a high price. Other governments, with great fanfare, point to accomplishments in the area of civil and political rights because they can show no progress vis-à-vis economic and social rights. Many Latin American governments, recognizing that this occurs not only in the Western Hemisphere, “insist on ‘choosing’ the rights ‘to prioritize’ and promote, putting off the realization of all others until some time in the future.”26 Economic and social problems also affect, albeit differently, those

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sectors of the population that have traditionally been considered minorities, such as children and indigenous communities. In regard to the latter, most Latin American governments have not been successful in providing effective solutions to the specific problems of indigenous peoples, such as respect for ownership of ancestral lands, management of natural resources, or political autonomy. Relations between the state and indigenous communities in Latin America are a major issue, and, it is fair to say, some progress has been achieved. When unable to obtain redress under domestic law, indigenous communities have turned to the inter-American system. In particular, the Inter-American Commission on Human Rights has issued several decisions and demonstrated a greater understanding of the problem. In March 1998, the InterAmerican Commission was able to get the government of Paraguay and the Enxet-Lamenxay communities to reach a friendly settlement, under which the government recognized the communities’ title to ancestral lands. Under the agreement, Paraguay pledged to purchase some 22,000 hectares of land for the communities concerned and, in order to speed up relocation, to contribute supplies, tools, and vehicles to transport the families and their belongings to the new lands.27 The Inter-American Court is presently hearing its first case related specifically to the ownership of ancestral lands, in which the parties are the Awas Tigni community and the state of Nicaragua.28 Closely related to economic and social conditions is the topic of citizens’ security. In Latin American cities and streets there is a growing feeling of insecurity that, in addition to making daily life unpleasant, causes reactions that threaten the effective exercise of human rights. One, of course, is the all-too-predictable call to bring back capital punishment, a practice that in the end only makes us feel ashamed of what is done to our fellow human beings in the name of law and order, even though it accomplishes nothing.29 The feeling of insecurity also leads to the acceptance by society of other practices that violate human rights. Society tends to tolerate an increase in the number of suspicious “confrontations” involving poorly trained police forces. Excessive use of force becomes a euphemism for extralegal or summary executions; at best, people look the other way, at worst, they cheer on the triggerhappy police officers. Insecurity also breeds acceptance of the widespread practice of incarcerating people before their guilt has been established. This practice is so widespread that a number of countries in Latin America have the dubious distinction of having up to 80 percent of their prison population being technically innocent, because they have not yet been proven guilty in court.30

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In many cases the executive and legislative branches, instead of adopting a rational and serious approach to the problem, use the feelings of fear and insecurity as a pretext to declare a “war on crime.” With nothing but political gain in mind, they promise “tough measures.” These may include imposing longer jail terms, denying parole or early release from prison to the actual or suspected perpetrators of certain crimes, permitting the use of paralegal investigative methods that violate constitutional guarantees, and granting even greater coercive powers to the security forces—in other words, whatever it takes to “win the war,” even if it means trampling freedoms earned after long societal struggles. Even though it solves nothing, acting tough remains the preferred response of the governments. A basic principle of crime policy is that the practice of increasing penalties in abstracto (on paper) is ineffective in reducing crime rates. However, experts in this discipline have shown with some degree of certainty that the true deterrent is an increase in the real possibility of the perpetrator of a crime actually going to jail. Furthermore, granting greater powers to police forces that have not yet been fully purged, and in which some members, hiding behind the institution, devote their time and best efforts to committing rather than solving crimes, is a recipe for failure. Worse, it erodes public confidence in the rule of law, fair trial, and due process principles. Policies that exploit the fears of citizens tend to equate the protection of human rights with the “protection of criminals.” This is not only contrary to the basic rules of crime policy or criminology, but also to basic common sense. Society is the loser in this war: it gradually gives up its freedoms in the interest of winning it and thus legitimizes further violence (now state-sponsored) and greater exclusion. The machinery of the criminal justice system fosters further social marginalization and violence. Referring to the operation of criminal justice in Latin America, one author, Raul Zaffaroni, notes that among its functions “one of the most notorious is the creation and deepening of social antagonisms and contradictions and the subsequent weakening and destruction of community, horizontal or affective links.”31 Society knows that it is an indisputable fact that jail does not resocialize anyone,32 and that it denigrates and destroys inmates and their families.33 However, given the fear citizens feel and the lack of creative options on the part of political leaders, society prefers to accept the least rational solution: criminal sanctions for social and economic problems. In consequence, courts are so overburdened with cases that they

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cannot provide a proper response, making a vicious cycle even worse. As exclusion increases, so do the caseloads of the courts, the number of cases that go unresolved, the ineffectiveness of the administration of justice, and the errors and delays. This increases the feeling of insecurity and the perception that nothing works. Changing this vicious cycle into a virtuous one is a major task facing the democracies in Latin America. According to studies on the issue, citizen insecurity is generated by crimes against property and, to a lesser extent, those against persons. However, white-collar crime, which is committed by those in power, while not creating a feeling of citizen insecurity, does the most social harm. The accountability of public officials is a key issue in the Americas. Responsibility has been established for grave violations of human rights in the past, but the accountability of current public officials has yet to take hold. The fact that ministers can, in an instant, divert millions in public funds into their private accounts demonstrates that this type of crime, rather than the theft of personal property, is one of the most serious causes of social and economic exclusion and generates social violence as it discredits the system of government. Unfortunately, Latin America’s democracies have a long way to go in the area of public ethics and accountability of public officials. A professional and independent judicial branch has a key role to play in this process. At the risk of sounding pessimistic, it must be said that the reaction of the judicial branch to these issues leaves much to be desired and that there are serious problems regarding its independence. As a result, in recent years the credibility of journalists and other members of the media has been on the rise in Latin America. Journalism has assumed a key role as watchdog of the actions of government and has investigated many public officials, something that oversight agencies, the judicial branch included, have not done. Hence, certain democratic governments in the Americas view journalists as political enemies and fail to honor their international commitments regarding respect for, and the promotion of, freedom of expression. This freedom is being restricted as a result of judicial decisions and laws or decrees issued by the legislative and executive branches. Laws that force people to join associations as a prerequisite for practicing journalism,34 and those related to contempt,35 were found to be incompatible with the American Convention on Human Rights, which contains the most advanced international norms on the subject.36 Despite these decisions and the requirement that state signatories adapt their domestic legislation to the principles of the con-

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vention, laws on contempt still exist in fifteen countries of the region, as do laws on compulsory membership in associations (which exist in many other nations as well). In the same regard, the inter-American system has concluded that Chile violated the American Convention on Human Rights by using the courts to prohibit circulation of a book,37 and has been able to force a compromise in which the government of Argentina agreed to repeal a contempt law and vacate a sentence imposed on a journalist. 38 The Inter-American Commission on Human Rights recently submitted a case to the Inter-American Court involving Peru’s decision to strip a television channel owner, Baruch Ivcher, of his nationality, forcing him into exile and bringing about the loss of his property. These are merely a few examples of actions taken by a state to thwart freedom of expression. However, the problem of attacks on freedom of expression goes beyond the existence of laws and regulations in conflict with international standards, and even beyond arbitrary judicial or administrative decisions. The number of journalists injured or killed is considerable, and the list of unsolved cases is growing.39 A recent development illustrates the attitude of some democratic governments regarding freedom of expression. The General Assembly of the OAS was about to consider a draft Inter-American Declaration on Freedom of Expression, proposed originally by the United States—otherwise a true leader in the struggle to protect freedom of expression in Latin America—that would significantly water down the protections of article 13 of the American Convention. During the discussion process, conducted solely within the OAS and without consultation with journalists or civil society, certain Latin American governments introduced dangerous modifications to the document. The draft declaration would have replaced the guarantees and protections afforded in article 13 of the American Convention with ambiguous language that would have been used to justify certain forms of censorship and prior restrictions. Thanks to the quick action of entities and persons concerned with freedom of expression, the adoption of this draft version was aborted.40

Conclusion All the shortcomings identified above, plus those known as “endemic violations”—because they are not related to a specific political conflict but, rather, are common to different regimes and governments, such as police brutality, torture, and others—can be overcome. For this to hap-

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pen, however, the necessary political will must exist to recognize that the value of democracy is also measured in terms of its ability to meet the needs of the most vulnerable sectors of society, and to transform the system of social, political, and economic exclusion that today characterizes Latin America into a system that is inclusive and participatory. We are by no means certain that the political will exists to attack these maladies in Latin America’s democracies. In fact, we are not even sure that there is vision and leadership among political elites to recognize the problems we have mentioned. Complacency about democracy’s gains is the region’s worst enemy, and the rush to benefit from unequal distribution of wealth certainly does not help. If we do see some reason for hope, however, it is in the extraordinary richness of the region’s independent organizations of civil society; the enthusiasm, commitment, and imagination of their members; and the fact that their ranks are forever increasing with younger activists. At the same time, the existence of the inter-American system of protection of human rights, flawed and weak as it is, affords opportunities to push Latin American societies in the direction of more freedom.

Notes 1. Just as at the universal level, however, the importance given to economic, social, and cultural rights as discourse has never been matched by substantial standard setting or development of effective protection machinery. The 1948 Charter on Social Justice is virtually forgotten nowadays. The only multilateral treaty designed to address economic, social, and cultural rights is the Protocol of San Salvador, approved in 1988 as an addition to the American Convention on Human Rights. As of this writing, however, it has been ratified by only seven states. In some ways, the Protocol of San Salvador is a step in the wrong direction, because it creates a deliberately weak and ineffective mechanism of protection, thereby widening the gap between two sets of rights in terms of their justiciability. 2. UN Charter, Preamble and articles 1, 2, and 4. 3. For a more comprehensive analysis of Cuba’s legal situation vis-à-vis the system, see Buergenthal, Norris, and Shelton, 1990: 120–135. 4. It took 46 years for the OAS to adopt a doctrine first proposed by Uruguayan Minister Rodríguez Larreta in 1945. It appears that at the time the proposal was considered dangerous because it was vague and interventionist in character, especially since no treaty or protection procedure to implement it was offered. Gros Espiell, 1999: 129. See also, Cançado Trindade, 1994: 515. 5. Gros Espiell says that in the “complex and difficult Peruvian case . . . the best solution possible was accomplished” (1999: 621). 6. Guatemala, Nunca Más, 1998: 391–441.

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7. Garretón Merino and Manuel Antonio, 1998: 46–50. 8. Comisión de la Verdad para El Salvador. 9. Mignone, 1988, 1991. 10. Inter-American Commission on Human Rights (hereafter, InterAmerican Commission), 1999, Third Report, par. 18; U.S. Department of State, Guatemala Report 1998. 11. Inter-American Court, Velásquez Rodríguez and Godínez Cruz cases. 12. Verbitsky, 1987: 11, 22. 13. Inter-American Commission, 1992, Reports 28/92, 29/92. 14. Hayner, 1994; Kritz, 1995. The most recent truth commission report is that of Guatemala, this time under UN sponsorship, the Comisión de Esclarecimiento Histórico. 15. Inter-American Court of Human Rights (hereafter, Inter-American Court), Velásquez Rodríguez, par. 153, 166, 176, 177, and 181. 16. Inter-American Commission, 1992, Reports 28/92, 29/9. 17. Inter-American Commission, 1996, Reports 34/96, 36/96 (Chile); Report on El Salvador, 1994: 74; also, Inter-American Commission, Annual Report 1994: 70 (of the Spanish version). 18. United Nations Human Rights Commission, Case 107/1981 Elena Quinteros Almeida v. Uruguay; also, reports of the Committee on Human Rights (fiftieth and fifty-first sessions), Argentina, par. 153; Paraguay, par. 200; Haiti, par. 230; Peru, par. 347. 19. European Court of Human Rights, 1997. 20. For details of these cases, see Abregú, 1996. Regarding the Supreme Court of Argentina, Urteaga Case, October 1998, the judgments of the InterAmerican Commission and Court were the basis for this landmark ruling by a domestic court. It was fitting, therefore, that in December 1998, the Argentine government and the Inter-American Commission reached a “friendly settlement” by which Argentina pledged to conduct further investigations into each desaparecido of the 1970s and disclose the information to their families. 21. Guatemala, Memorias del Silencio, 1999. The Guatemalan Catholic Church had contributed significantly to this outcome by producing its own project of Recuperation of Historical Memory, and its own report, Guatemala, Nunca Más, 1998. Bishop Juan Gerardi, who had directed this major effort, was murdered 2 days after the release of the report. 22. South Africa Truth and Reconciliation Commission, 1998. 23. An interesting question, posed to the authors by Guillermo O’Donnell, is whether transitions can be considered complete when they have not accomplished important objectives like the reestablishment of the rule of law. In any event, the authors’ point is that the elected regimes of Latin America should no longer be allowed to claim their transitional stage as an exceptional circumstance to justify their lack of action in regard to accountability and other important features of democracy. 24. Indeed, the Chilean constitution imposed by Pinochet before leaving office has artificial conservative majorities—including unelected “life senators”—and protections for the autonomy of the military from any civilian authority. These undemocratic features are again hotly debated in Chile as a result of the dictator’s arrest.

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25. International Convention on Economic, Social and Cultural Rights, article 1. 26. Cançado Trindade, 1999: 93. 27. For the decisions of the inter-American organs, Dulitzky, 1997: 137. 28. Inter-American Court, XLIV Regular Session, Hearing over preliminary objections, May 31, 1999. The court, in Aloeboetoe vs. Suriname, made reference to and applied indigenous law to distribute the compensation, a fact that, surprisingly, has not been commented on by the academic community. 29. In recent years, the presidents of Argentina and Peru have expressed their support for the death penalty and hinted at the possibility of denouncing the American Convention, whose article 4 prohibits reinstatement of capital punishment after it has been abolished or extending it to further offenses. 30. The information provided by high-ranking officials of Central American and Panamanian penitentiary systems shows that the average percentage of innocent inmates (in the sense of not yet being proven guilty) is the following: Panama 63 percent, Honduras 93 percent, El Salvador 78 percent, and Guatemala 80 percent. Sistemas Penitenciarios de Centroamérica y Panamá; Actualización de Datos Básicos, Program for the Integrated Prevention of Torture, Inter-American Institute of Human Rights, San Jose, Costa Rica, May 1999. Similar figures are reported by a number of other countries in the region. 31. Zaffaroni, 1989: 149. 32. We realize that this is not the place to enter into a discussion of this matter, but we feel obliged to mention the need to maintain the idea of resocialization as part of the state’s obligation to provide inmates with education and work and medical, psychological, and social services. 33. Zaffaroni, 1989: 139. 34. Inter-American Court, 1985, Advisory Opinion O.C. 5/85. 35. Inter-American Commission, Annual Report, 1994: 197 (of the Spanish version). 36. Inter-American Court, 1985, Advisory Opinion 5/85, par. 50. 37. Inter-American Commission, 1996, Report 11/96. 38. Inter-American Commission, 1994, Report 22/94. 39. In the past 10 years in Latin America, 202 journalists have been murdered, 87 kidnapped, and 1,731 subjected to physical assault. Libertad de Prensa, 1999: 96. 40. See “Undermining the Latin Press,” editorial, New York Times, May 25, 1999.

9 How International Human Rights Law Affects Domestic Law Roger S. Clark

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here are many ways in which international human rights law may affect domestic law. It might, for example, set an agenda that obliges states to move programmatically in a particular direction, utilizing domestic legislative, executive, and even judicial actions to that end. Thus, in article 10 of the Treaty of Ghent,1 the peace treaty to end the War of 1812, John Quincy Adams agreed on behalf of the United States to the following: Whereas the Traffic in Slaves is irreconcilable with the principles of humanity and Justice, and whereas both His Majesty and the United States are desirous of continuing their efforts to promote its entire abolition, it is hereby agreed that both the contracting parties shall use their best endeavors to accomplish so desirable an effort.

This is not an obligation to achieve a desirable end by a particular modality, but it is an obligation to strive, jointly with the other party, to move in a particular direction. A modern descendant of article 10 of the Treaty of Ghent is article 55 of the United Nations Charter in which the members of the United Nations undertake to promote such goals as higher standards of living, social progress and development, and universal respect for and observance of human rights and fundamental freedoms.2 Modern human rights treaties like the Genocide Convention3 and the International Covenant on Economic, Social and Cultural Rights4 often contain similar “promotional” provisions looking toward a particular end, such as preventing genocide or expanding upon economic, social, and cultural rights for all, but without dictating the precise method of getting there, or even the timeframe in which the goals are to be achieved. Over time, the legal system of a state that accepts 185

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obligations such as those in the Treaty of Ghent or the United Nations Charter and moves forward in good faith will incur changes that flow from efforts to achieve the treaty goals. Those changes will include both a general policy agenda and, from time to time, specific implementing legislation. Sometimes, even, human rights treaties will require the immediate taking of precise legislative steps, such as providing for the trial and punishment of those who commit genocide on the territory of a particular state party,5 or providing for the trial and punishment of those who commit torture in any state party, anywhere in the world.6 Such requirements have an instant impact on domestic legislation and practice. Typically, modern multilateral human rights treaties set up some sort of mechanism to monitor or supervise the way in which states fulfill their obligations, particularly by examining reports that states are required to make on a regular basis.7 These bureaucratic efforts also have a significant effect on the domestication of international standards. They reinforce the policy agenda and focus attention on the varying ways in which different societies go about achieving it, thus cross-fertilizing various legal systems. The United States was slow to participate in this process, but has now ratified several of the UN human rights treaties. To my mind, the ratification by the United States in the past decade of such treaties as the 1965 International Convention on the Elimination of All Forms of Racial Discrimination 8 and the International Covenant on Civil and Political Rights9 represents a process that may see much more effort to weave international material into the fabric of U.S. law than has been the case for most of this century. It will occur particularly by means of changes in legislation and in administrative practice that occur in response to the dialogue represented by the monitoring process. Ratification by the United States of international human rights treaties is also encouraging renewed attention to a feature of the relationship between national and international law that is the main subject of my discussion. To what extent can domestic courts—the judicial as opposed to the legislative or executive branches—rely on international standards in deciding cases that come before them? That is to say, can courts apply international standards directly, or may they do so only when commanded, or at least empowered, to do so by the legislature? Does international law speak directly to the courts, or must its voice pass first through the legislature? What are the obstacles (other than parochialism) that have to be navigated? All legal systems have some constitutional rules addressed to the

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courts about the relationships between domestic law and international law. However a particular system works, and even if one of its basic rules proclaims that international law trumps domestic rules, there are inevitably some difficult blending issues that arise between the two systems. There are procedural issues, and issues of remedies that usually require reference to “purely” domestic law. There will usually be factual issues to be resolved by whatever methodology the domestic system uses. To reiterate, international law issues that find their way into the courts typically come embedded in some domestic ones—statutory, constitutional, and common law issues. Ultimately the courts may find some of these domestic items determinative in particular cases, so that the international ones are sidelined. There are problems about the indeterminacy of some of the international rules and principles and over how the domestic courts are to be informed about the international material. The “sources” of international law are a little different from those normally addressed by domestic judges. But in other respects, is finding international law just like finding any other law that the judges can be expected to “know,” at least after they hear argument on it? Or is it a field in which experts (dare I say teachers?) of international law have a role? This chapter is about the way in which such issues may be approached by judges in the U.S. federal system, but they are issues that inevitably arise, and are dealt with, in a wide variety of styles by all legal systems. Judges in the United States are not alone in their habit of hearing expert testimony on aspects of customary law.10 What follows is organized to lead up to a brief account of unsuccessful, but I think illuminating, efforts to rely on issues of international human rights law in capital murder cases in two states, Nevada and New Jersey. In Nevada, the ultimate issue was the propriety of executing those who were minors at the time of the commission of a homicide; in New Jersey, there was a general attack on capital punishment and a narrower argument that once capital punishment has been abolished it cannot be reintroduced. In both, the argument was that a state’s capital punishment statute should not be applied because some aspect of it contravened international human rights law. The Nevada case illuminates some of the difficulties in relying on treaty law, while the New Jersey case emphasizes customary-law arguments and the potential use of international law to infuse meaning into such domestic legal sources as the state constitution. Neither case is by any means the last word on the subject, even for the states concerned, but each one shows some of the possibilities—and some of the obstacles—involved. Disappointing as the outcomes are, the stories are offered in the spirit that the glass is

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half full. I hope to leave the reader with the conviction that the international law possibilities are much richer than the cursory discussion by the supreme courts of the two states would suggest. The relative lack of success in these (and other) cases relying on international law to influence matters internal to the United States presents an ironical contrast with the way in which the U.S. legal system has been relatively more hospitable to claims made by aliens in U.S. courts concerning events that occurred elsewhere.11 I am heartened that such cases, typically involving torture, disappearances, and extrajudicial executions, have been mounted successfully. This chapter, however, proceeds on the basis that international law ought to apply to events taking place on United States soil, as well as to events occurring in the rest of the world. There were some earlier, also largely unsuccessful, attempts to use international human rights law in domestic cases in the 1940s and early 1950s.12 Since many more lawyers coming out of the law schools have been exposed to the international material, there appears to be a resurgence of interest in trying again. In the capital punishment area, with thirty-eight states and the federal government having legislation providing for capital punishment in various situations, there are still many international law issues to be litigated, so the area is quite a good one for exemplary purposes.

The United States Legal Framework The United States Constitution provides, in the so-called “supremacy clause,” that: This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.13

In short, a duly ratified human rights treaty ought to be the law of the land and provide a binding rule of decision, when relevant, for state or federal judges. The courts have occasionally acted on this principle. In the People of Saipan case, for example, the United States Court of Appeals for the Ninth Circuit held that a provision of the Trusteeship Agreement between the United States and the United Nations in respect of the Trust Territory of the Pacific Islands could be a source of rights

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enforceable by an individual litigant.14 The issue involved government approval for the building of a private hotel on public land. Relevant provisions of the Trust Agreement that the court was prepared to enforce referred to the obligation to “promote the economic advancement and self-sufficiency of the inhabitants, and to this end . . . regulate the use of natural resources” and to “protect the inhabitants against the loss of their lands and resources.” The breadth of such language suggests that the courts may have quite sweeping tools at their disposal. A similar rule of federal law, which must also carry with it federal supremacy over state law, was articulated by the United States Supreme Court in 1900. It deals with customary international law and appears in a case (Paquete Habana) in which the Court decided that the government had acted illegally under international law in seizing certain Cuban fishing boats during the Spanish-American War. I like to think of this as a human rights case, involving a basic property right that went to the heart of the livelihood of the Cuban fishermen. The Court said: International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.15

After considering evidentiary material such as that mentioned in the extract, a majority of the Supreme Court held that the fishermen were entitled to damages for the seizure and sale of their property. The Court’s general proposition about the role of international law as U.S. law, which is not founded on any express language in the Constitution, must be a recognition of a kind of federal common law, derived from the federal government’s general foreign affairs powers and inherent powers acquired along with independence from Great Britain. The British courts, indeed, have a similar principle that international customary law is part of the English common law, at least to the extent it does not clash with an act of Parliament. The assertion that international law is part of U.S. domestic law and can supply rules for decision in appropriate cases did not appear sud-

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denly in 1900. It is as old as the republic. In an early report of a charge to a grand jury in a case involving alleged illegal enlistment on a French privateer, John Jay, the first chief justice of the United States, is recorded as saying that the laws of the United States admit of being classed under three heads of descriptions. 1st. All treaties made under the authority of the United States. 2d. The laws of nations. 3dly. The constitution and statutes of the United States.16

“The law of nations” was the term in normal usage at the time for what we now call customary international law. Jay’s statement is notable not only for the forthright way in which he asserts the relevance of treaties and customary law, but for the priority he gives to them, by placing them ahead of domestic sources in his list. Nor was the Paquete Habana the first occasion on which international law had been utilized by counsel to support a human rights argument. For example, in the 1820s Francis Scott Key, better known as a song writer, but actually a very good lawyer, relied upon international customary law in seeking the release of Africans originally captured by Spanish and Portuguese slave traders and later taken by pirates. They were ultimately brought within the territorial jurisdiction of the United States aboard the vessel Antelope. One of the arguments Key made was that international customary law prohibited the African slave trade, and that its victims should therefore go free. Key was evidently hoping thus to vindicate the good intentions manifested in the Treaty of Ghent, to which he referred, and in other treaties that states, Great Britain in particular, had negotiated in an effort to suppress the trade. He relied on the state practice represented by such treaties and by the legislation adopted to give effect to them. (Most international lawyers accept that a pattern of treaties may be evidence of a custom, but the point is debated—if there is a custom, why do you need the treaties?) Key made the point that it is not necessary to establish a custom that everyone be shown to have agreed. There were some difficult evaluative judgment calls to make. Chief Justice Marshall, in an opinion for an equally divided Court in the case of Antelope, expressed the view that customary law had not yet reached the point where the trade could be said to be condemned by general consent, but he left open the door that such a position might be reached in due course.17 Everyone agreed that some weight had to be given to the United States’ own abolition and criminalization

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of the trade (but not of the institution of slavery itself) and to other state practices. But Marshall did not believe that the practice had gone far enough to create an overarching rule of customary international law. He did not deny, however, that an established rule of international law might trump any other potentially relevant legal rules (in this instance Spanish or Portuguese law). Some years later, in his 1841 argument in the Supreme Court for the Amistad captives,18 grippingly captured in the Steven Spielberg movie, John Quincy Adams argued that the time had come when international law forbade the trade and was superior to the domestic law of any state that appeared to countenance the trade’s legitimacy. The Court, however, managed to reach a result favorable to the Amistad captives by applying the letter of (abolitionist) Spanish law without having to get to the international law issue. The point about Key and Adams is plain enough: good lawyers have been trying for over a century and a half to utilize international law material in human rights cases, often spurred on by a realization that the Constitution itself does not always go far enough. These two methods of approaching problems, using treaty law and customary law, do not completely exhaust the ways in which international law may become relevant in a domestic judicial setting. In another early U.S. case, about the Charming Betsy, which involved the rights of neutral shipping, Chief Justice Marshall staked out the position that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.19 There seems to be an even broader point here. What goes for a federal statute must, under basic principles of federalism in a system in which the federal government is responsible for foreign relations, go also for a state constitution, to say nothing of a state statute or the common law. Using the international developments as a benchmark for interpreting state or federal standards might well have considerable appeal, at least for a court wishing to appear, even if only cautiously, on the progressive side of the argument. Indeed, the Supreme Court has extended the basic principle as far as the federal Constitution. The Court noted in a case in the 1950s that the Eighth Amendment prohibition of cruel and unusual punishment “must derive its meaning from evolving standards of decency that mark the progress of a maturing society.”20 This could include the practice of other states. That case was perhaps a high-water mark of the Court’s use of the practice of other countries in the evaluation of appropriate punishments. Both state and federal courts have tended to be more insular since, but the potential is there.

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International Law and the Death Penalty In recent decades, the death penalty has been the subject of sharp debate in all the major international organizations dealing with human rights.21 There has been a large number of resolutions adopted within such organizations aimed at narrowing (ultimately to the point of extinction) the substantive grounds upon which capital punishment may be imposed, requiring procedural safeguards before its imposition, and prohibiting its application to particular classes of persons such as minors, pregnant women, the insane, and the mentally retarded. For example, a 1971 resolution of the UN General Assembly22 asserts that in order to fully guarantee the right to life, provided for in article 3 of the Universal Declaration of Human Rights, the main objective to be pursued is to progressively restrict the number of offenses for which capital punishment may be imposed, with a view to the desirability of abolishing this punishment in all countries. Protocols (amending treaties) have been adopted adding a prohibition of capital punishment to the regimes of three of the major international human rights treaty systems,23 but these instruments are not yet widely adopted. The United States has participated in negotiating many of these instruments, but is not a party to any of the abolitionist treaties. It is, however, a party (but, as we shall see, not cleanly so) to the 1966 Covenant on Civil and Political Rights, which was adopted under the auspices of the United Nations. This covenant is not completely abolitionist in respect of capital punishment. It provides, however, in its article 6, that in countries that have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of commission of the crime.24 It adds that sentence of death shall not be imposed for crimes committed by persons under the age of 18 and shall not be carried out on pregnant women.25 The covenant, moreover, contains a general provision in article 7 to the effect that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”26 The existence side by side of the general prohibition of “cruel, inhuman or degrading treatment or punishment” in article 7 and more specific regulation of the incidents of capital punishment in article 6 underscores that at least when drafted, the generalities of article 7 were not meant to prohibit capital punishment in toto. Nevertheless, article 7 must speak to bizarre means of carrying out the punishment and is open

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to progressive interpretation so that it might eventually be read as abolitionist—like the comparable (but not as far-reaching) provisions in the Eighth Amendment to the U.S. Constitution. A similar provision of the European Convention on Human Rights led to a decision of the European Court of Human Rights to the effect that exposure to the “death row phenomenon” (a prolonged stay under less than ideal conditions) in Virginia would contravene the convention. Britain would be in breach of its convention obligations by extraditing a person to Virginia without assurances (ultimately given) that the death penalty would not be sought.27 A majority of the UN Human Rights Committee has also expressed the view in a Canadian–United States extradition case that the use of the gas chamber in California contravenes article 7,28 but has declined to find that lethal injection, the mode of execution now most common in the United States, is cruel, inhuman, or degrading.29 As we shall see, the United States is not enthusiastic about some of these developments. In addition to this and related treaty material, there are also some relevant resolutions adopted under the auspices of international organizations, notably the United Nations. In 1984 the UN Economic and Social Council adopted a set of Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty.30 Paragraph 3 of the adopting resolution makes the point emphatically that the safeguards are accepted “on the understanding that they shall not be invoked to delay or to prevent the abolition of capital punishment.” The safeguards are both substantive and procedural; they suggest a range of possibilities for arguments that some facets of a particular capital punishment statute are contrary to customary law. Echoing the language of the Covenant on Civil and Political Rights, the safeguards provide that in countries that have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences. Capital punishment may be imposed only for a crime for which the death penalty was prescribed by law at the time of its commission. If, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. Persons below 18 years of age at the commission of the crime shall not be sentenced to death,31 nor shall the sentence be carried out on pregnant women, new mothers, or those who have become insane. The safeguards impose a standard of proof requirement; capital punishment may be imposed “only when the guilt of the person charged is based

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upon clear and convincing evidence leaving no room for an alternative explanation of the facts.” They also guarantee a fair trial, “including the right of anyone suspected or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.” Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals become mandatory. Anyone sentenced to death shall have the right to seek pardon or commutation of sentence. The punishment may not be carried out pending any appeal, other recourse procedure, or other proceeding relating to pardon or commutation. Where capital punishment occurs, it must be carried out so as to inflict the minimum possible suffering. In 1989, the UN Economic and Social Council returned to the subject with a resolution entitled an “implementation” of the 1984 resolution.32 That resolution contained two procedural principles and two substantive ones. One procedural statement reiterated the need for competent counsel. It was recommended that states afford special protection to persons facing charges for which the death penalty is provided, by allowing time and facilities for the preparation of their defense, including adequate assistance of counsel at every stage of the proceedings, above and beyond that afforded in noncapital cases. Second, states were urged to provide for mandatory appeals or review, with the possibility of clemency or pardon in all cases of capital offenses. As far as substance was concerned, states were urged to establish a maximum age beyond which a person may not be sentenced to death or executed (a position already reached in some countries and in other instruments), and to eliminate the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution.33 Between them, these two resolutions catalogue a host of problems with the way in which capital punishment is implemented in the United States, and elsewhere. They provide all sorts of ammunition for attacking the present system. Now, a respectable argument can be made that such resolutions, adopted by consensus, reflect international customary law on the subject. For customary law to develop it is traditionally asserted that there must be both state practice and opinio juris, a notion that what is done is done from a sense of legal obligation. Before the rise of international organizations, such practice and the formulation of opinio juris took place mainly in the bilateral relations between states. In modern usage, both practice and opinio juris can be inferred from the way in which

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states interact in international organizations, including the United Nations. While organs of the United Nations such as the Economic and Social Council and the General Assembly do not have an explicit lawmaking power, their overwhelmingly supported statements, such as those just discussed, must be regarded as having some normative power.34 It will be appreciated from this brief summary of some rather complicated developments that international law supplies both treaty and nontreaty arguments (and combinations of the two) that can be presented to domestic courts. Moreover, there are broad arguments to be made about the illicit nature of capital punishment in all cases, and narrower ones that speak to preventing its application to classes of persons, such as the young, the insane, and the mentally retarded, as well as those (especially indigents) who have not received adequate facilities for their defense. With the United States not a party to any totally abolitionist treaty, treaty-as-federal-law arguments put forward domestically about capital punishment must, perforce, rely on any narrow grounds that may emerge from the treaties to support the prohibition of capital punishment in certain defined circumstances, or rely upon the developing customary rules. The stronger, completely abolitionist, version of the custom argument is itself a hard one to make, given that the world is not yet ready to embrace the abolitionist position with near unanimity, although there continues to be movement in that direction.35 Thus the world’s most populous country, China, like the United States, continues to execute, as do most Islamic countries, many African countries, and some in the Caribbean. Arguing that something approaching the relative consensus that would suggest a custom has been achieved is still uphill. But in cases presenting narrower grounds than total abolition, the international material is more promising in its substance—if only the courts can be persuaded to take it seriously.

The United States Ratification of the Covenant on Civil and Political Rights On June 8, 1992, the United States deposited with the United Nations its instrument of ratification of the International Covenant on Civil and Political Rights (ICCPR). (In modern multilateral treaty practice becoming party to a treaty is a two-stage process. First a state signs the instrument, signaling its interest, but no commitment to be bound. This

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is followed by an instrument of ratification, which is the definitive act expressing consent to be bound.) In ratifying the ICCPR, the U.S. president, acting in terms of the advice and consent obtained from the U.S. Senate, included in the instrument a set of statements variously described as reservations, understandings, declarations, and a proviso.36 Three of these statements are of particular significance to the matter of capital punishment. Two of these statements were classed by the Senate as reservations, the other as a declaration. One of the reservations was to the effect that the United States reserves the right to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons under the age of 18 years. The second reservation relates to article 7 of the ICCPR. It states that the United States considers itself bound by article 7 to the extent that “cruel, inhuman or degrading treatment or punishment” means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, or Fourteenth Amendments to the Constitution of the United States. The third statement is described as a declaration—that “the United States declares that the provisions of Article 1 through 27 [the substantive provisions] of the Covenant are not self-executing.” Some comments on each of these statements follow. The “Reservations” At the very least, the first statement, aimed at article 6, paragraph 5, of the ICCPR, claims that the United States (and of course its constituent states) is not bound by the prohibition of capital punishment for crimes committed under the age of 18. The United States is one of the few countries in which such executions are lawful, and the Supreme Court of the United States, in a 5–4 decision, has upheld the constitutionality of laws permitting the imposition of the penalty for murder committed when the killer was 16 or 17, but not younger.37 The intent of at least some of those involved in developing the reservation may, however, have been broader even than preserving the right to kill juveniles. The reservation may also have some impact on other parts of article 6 of the ICCPR. There appears to have been some fear that the “serious” crimes limitation in article 6, paragraph 2, could be used to limit the application of capital punishment more narrowly than current constitutional doctrine requires.38 The reservation may thus be aimed at that possibili-

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ty also. The article 7 reservation seems designed to guard against decisions attacking particular techniques for execution and against progressive interpretations aimed at undercutting the legitimacy of capital punishment in general. Entering a reservation is an attempt to become party to a treaty while accepting most, but not all, of its provisions. In nineteenth- and early-twentieth-century multilateral treaty practice, there was some dispute about whether becoming a party was or was not an all-or-nothing affair. Some states and commentators were of the view that if a state wished to become a party to a modified version of the obligation it would need the unanimous consent of the other parties. In effect, a new agreement would be reached. In a very well known advisory opinion concerning reservations to the Genocide Convention,39 the International Court of Justice took a different tack. It indicated that reservations might be possible so long as they were not incompatible with the object and purpose of the treaty. The policy justification was that such a rule would encourage the widest possible ratification among members of the international community, since the fundamental obligations would remain intact while there might be some give and take at the margins. The Genocide Convention principle on reservations was codified in the 1969 Vienna Convention on the Law of Treaties, a fairly definitive statement of the law relating to treaties, often treated itself as largely reflective of the customary law that itself underpins treaty making. The Vienna Convention defines a “reservation” as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State.”40 The convention provides that reservations may be made, unless (1) the reservation in question is prohibited by the treaty, (2) the treaty provides that only specified reservations, which do not include the reservation in question, may be made, or (3) the reservation is incompatible with the object and purpose of the treaty.41 There are complex provisions in the Vienna Convention on what happens when other states object to a reservation.42 A fundamental question about the U.S. minors and cruel and unusual punishment reservations (and possibly others) is whether they are incompatible with the object and purpose of the covenant. The covenant creates a Human Rights Committee that oversees in a general way the manner in which states give effect to their obligations under the ICCPR. It does this mainly by examining reports that state parties are required

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to make on a regular basis. When the committee examined the initial report of the United States made pursuant to the ICCPR, it noted among its “principal subjects of concern” the following: The Committee regrets the extent of the State party’s reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted only what is already the law of the United States. The Committee is also particularly concerned at the reservations to article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant.43

The reservations to article 6, paragraph 5, and to article 7 are thus a fertile ground for ongoing debate. A bold domestic court might be inclined to strike the reservations as invalid; a chauvinist one would be inclined to ignore the committee. The Non-Self-Executing Statement The supremacy clause of the U.S. Constitution appears to speak quite generally of all treaties when it describes them as the law of the land. From quite early in the life of the republic, however, the courts began to suggest that this did not necessarily mean that all treaties could be relied upon in the courts as a rule of decision. Sometimes it was necessary for the legislature to give effect to the treaty mandate before the courts could speak. The distinction involved made its first appearance in Foster & Elam v. Neilson, a case involving the validity of a title to land based on a grant from the king of Spain. This grant was believed by those basing a claim on it to have been confirmed in the Treaty of 1819 by which the United States acquired Florida and settled various land disputes left over from the time of the Louisiana Purchase. Chief Justice Marshall commented that our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an Act of the Legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act—the treaty addresses itself to the political, not the judicial department; and the Legislature must execute the contract before it can become a rule for the court.44

It is not easy to tell which side of the “contractual” line a particular pro-

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vision falls on. Interpreting the English text of the treaty in the Foster case, the Supreme Court held that legislation was required. A few years later, the equally authentic Spanish text was drawn to the Court’s attention in another case involving a land grant through the king of Spain. This time the Court reached the opposite conclusion, holding that the treaty itself was sufficient after all to support the validity of the grant.45 The doctrine created by Marshall in these early cases became known as the distinction between self-executing and non-self-executing treaties, although he did not use the terms. There is a great deal of learning on how it is to be played out in contexts like the human rights treaties, and it is sufficient merely to draw attention to it here.46 Sometimes the matter is treated as one of divining the intent of the drafters (as Marshall seems to suggest), but often it must be admitted that the drafters had no intention whatever on the matter. It is, for example, very difficult to find any indication in the preparatory work of the International Covenant on Civil and Political Rights that suggests the drafters directed their minds to solving the problem. The “declaration” made by the U.S. Senate in the course of ratification of the covenant adds yet another domestic law wrinkle to the question. The Second Article, section 2, of the Constitution says that the president “shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur.” The president’s instrument of ratification followed the assertion by the Senate that its advice and consent was subject to the nonself-executing declaration, along with the reservations and other statements. It is accepted that the Senate may condition its advice and consent on the making of reservations, but can it condition its consent on an assertion about the effect of the treaty in the domestic sphere? Is that an issue reserved for the courts, so that a breach of basic notions of separation of powers is involved? Or is the Senate merely exercising an incidental aspect of the “legislative” power involved in advising and consenting to treaties in general? This is not a question on which the courts have ruled, and the issue will no doubt have to be decided in due course. This whole area is a question of U.S. constitutional law doctrine, rather than one of international law. International treaty law and treaty partners frankly do not care how a state organizes itself on the domestic plane to give effect to its international obligations, so long as it does somehow. If the courts can give direct effect to a treaty, well and good. If they cannot, then the legislature must act. The important point is that international obligations must be domesticated; for other states that are

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parties to treaties, the modalities of domestication are of no particular moment. On the domestic plane, however, the question may become one of life and death. If an obligation is said to be self-executing, the court may apply it directly as federal law. If it is not, then a remedy must be sought elsewhere (in the case of capital punishment, through executive clemency) or through use of the treaty provision as a guide to interpreting state or federal law, or as a contribution to custom, rather than as law in itself. In this latter respect, it is worth noting that in its examination of the first U.S. report under the ICCPR, the Human Rights Committee “took note” of the position expressed by the U.S. delegation to the committee’s meeting, stating “that, notwithstanding the non-selfexecuting declaration of the United States, American courts are not prevented from seeking guidance from the Covenant in interpreting American law.”47 We come, then, to the Nevada and New Jersey cases.

The Capital Punishment Cases Domingues v. Nevada48 Nevada is one of fifteen states in the United States with juvenile offenders on death row. Ten such offenders have been executed in the past decade.49 Michael Domingues was 16 on October 22, 1993, when he murdered a woman and her 4-year-old son in the victims’ home in Nevada. In August 1994, a jury found him guilty of one count of burglary, one count of robbery with the use of a deadly weapon, one count of first-degree murder, and one count of first-degree murder with the use of a deadly weapon. At 17 years of age, he was sentenced to death for each of the two murder convictions. The Supreme Court of Nevada upheld the convictions and sentence in 1996.50 On November 7, 1996, Domingues filed what in Nevada is known as a “motion for correction of illegal sentence,” arguing that “execution of a juvenile offender violates an international treaty ratified by the United States and violates international customary law.” After the district court had summarily denied the motion, Domingues appealed to the Supreme Court of Nevada, which confirmed the district court by three votes to two. In a brief discussion, the majority completely ignored the customary law arguments and focused on the U.S. Senate’s reservation in respect of the death sentence for those 16 and 17 years of age. As the majority put it, “the Senate’s express reservation of the right to impose

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a penalty of death on juvenile offenders negates Domingues’ claim that he was illegally sentenced.”51 The court added that “many of our sister jurisdictions have laws authorizing the death penalty for criminal offenders under the age of eighteen and such laws have withstood Constitutional scrutiny.”52 The two judges who dissented each wrote opinions suggesting that the issues deserved a lot more examination. Nevada Chief Justice Springer referred to the provisions of the ICCPR and to the constitutional mandate that treaties become the “supreme law of the land.” He suggested that under the majority’s position, the United States, at least with regard to executing children, is a “party” to the treaty, “while at the same time rejecting one of its most vital terms.”53 Turning the knife a little, he commented that “under Nevada’s interpretation of the treaty, the United States will be joining hands with such countries as Iran, Iraq, Bangladesh, Nigeria and Pakistan in approving death sentences for children.”54 His colleague, Justice Rose, suggested that it had all been too summary. He believed that “this complicated issue deserved a full hearing, evidentiary if necessary, on the effect of our nation’s ratification of the ICCPR and the reservation by the Senate to that treaty’s provision prohibiting the execution of anyone who committed a capital crime while under eighteen years of age.” As he saw it, the question of whether the United States’ reservation was valid should have been explored. If it was not valid, there were, he thought, two possibilities. If the reservation was a sine qua non of the acceptance of the whole treaty, then the United States’ ratification could be considered a nullity.55 On the other hand, if the United States has shown an intent to accept the treaty as a whole, the result could be that the United States is bound by all the provisions of the treaty.56 For Judge Rose, these were not easy questions, and “testimony about the international conduct of the United States concerning the subjects contained in the treaty, in addition to expert testimony on the effect of the Senate’s reservation may be necessary.” A federal court that deals with federal issues daily might be better equipped to deal with these issues, but the matter was, of necessity at this point, before the state court. It should, therefore, do its best to resolve the matter. He would, accordingly, have remanded the case for a full hearing on the effect of the ICCPR on Domingues’s sentence. Neither the majority nor the dissent in Domingues even touched on the alternative argument that could be made for the state that the nonself-executing “declaration” made by the Senate and communicated by the president to the United Nations means that none of the provisions of

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the covenant can be relied upon in domestic courts. This question is still open to debate, as are the fundamental questions of the validity of the reservations, a question simply glossed over by the court’s majority. State v. Leslie Nelson57 Leslie Nelson pleaded guilty to the killing of two New Jersey police officers and to the aggravated assault on a third officer. The killings and assault occurred during a shootout with the officers who had come to the defendant’s home with a search warrant. At the sentencing trial in which aggravating and mitigating factors were considered, the jury’s verdict resulted in the death penalty in respect of one officer. Because the jury could not agree on the application of the factors in respect of the second one, Nelson was sentenced for that homicide in accordance with the relevant statute to life in prison with 30 years of parole ineligibility. At trial, Ms. Nelson’s mitigating evidence centered on the mental illness she suffered as a result of years of painful doubt about her sexual identity and the failure of sex-change surgery to relieve her depression. She also presented expert testimony to support an argument that the tragedy might not have occurred had the officers been better trained. The Supreme Court of New Jersey ultimately ordered a new trial on the penalty issue after it emerged that the officer who was injured in the siege, and who was a major prosecution witness, had filed a civil suit against the county and municipal authorities. The suit, which had not been disclosed to the defense, alleged that the officer had been inadequately trained. Its existence could well have supported the defense position. Nelson’s counsel, James Klein, is a resourceful New Jersey public defender who has tried numerous murder cases. He made a motion before trial attacking the New Jersey capital punishment statute on international law grounds. In an endeavor to generate the kind of testimony of which Judge Rose was later to speak in Nevada, he called me as an expert witness to support an argument that the New Jersey capital punishment legislation contravenes the international obligations of the United States and thus should be struck down. The trial court’s summary denial of the motion after hearing the evidence was later confirmed on appeal. Even though no one has been executed in New Jersey since the 1960s, the state supreme court has upheld the current death penalty law, which was first enacted in 1982 and subsequently expanded, against attack on state and federal constitutional grounds.58 We are still perhaps

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a few years away from the next execution in the state, but we are moving inexorably in that direction unless something dramatic happens in the courts or there is a change of heart in the executive or legislative branches. Nelson’s counsel, in vain, invited the New Jersey courts to consider international trends in the Nelson case and to reconsider the state supreme court’s earlier holding that the capital punishment statute passes constitutional muster. There was, moreover, a narrower customarylaw argument made. Implicit in the trend toward abolition, which is asserted in such resolutions as UN General Assembly Resolution 2857 (XXVI) to which reference has already been made,59 is that there is no going back from total or partial abolition. This is reflected in these words in the American Convention on Human Rights: “The death penalty may not be re-established in states that have abolished it.”60 Moreover, the UN special rapporteur on arbitrary and summary executions, whose function is to dissuade the use of the death penalty, has insisted that “an extension of the scope of capital punishment contravenes the spirit of the International Covenant on Civil and Political Rights.”61 The argument takes an interesting twist in respect to the current New Jersey capital punishment legislation. In 1971, the U.S. Supreme Court effectively declared an earlier New Jersey death penalty statute unconstitutional62 by remanding a case to the state courts at a time when death penalty opponents were hopeful that the Supreme Court was headed toward a blanket determination that all capital punishment statutes were unconstitutional. The New Jersey legislature did not act to reestablish the penalty until August 1982. Subsequently, the statute was widened to catch additional classes of killing that were not covered by the 1982 legislation. Thus, it could be contended that capital punishment was not only reestablished after it had been abolished, but also was broadened in its application. This broadening took it beyond the reach of the 1982 reinstating legislation, and even in some respects beyond the scope of the statute struck down in 1971. Does this legislative action, a decade after the previous decisions of the courts, amount to a proscribed extension under international law? Now, in many legal systems, one thinks in terms of the legislature’s “abolishing” capital punishment for purposes of a rule prohibiting reestablishment of the penalty. Here the courts struck. But one has to remember that in the U.S. system the courts have a role in passing on the constitutional validity (state and federal) of legislation. There is nothing incongruous, therefore, in acknowledging that on the international scene, the courts,

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like the executive and the legislature, sometimes speak for the state. It is perhaps interesting in this instance that it was the supreme federal court that took the definitive move when it remanded the case to the New Jersey courts for proceedings consistent with several of the U.S. Supreme Court’s decisions, but the argument would seem to be equally telling if the definitive decision had been by a state court. The argument in Nelson failed to capture the imagination of the New Jersey Supreme Court, normally one of the more imaginative of state appellate courts. The whole of its cryptic discussion of the international law argument is as follows: International law does not require invalidation of New Jersey’s death penalty. The United States of America has not subscribed to any international human rights accord that has invalidated the death penalty. See Peter J. Spiro, The States and International Human Rights, 66 Fordham L. Rev. 567 (1997) (observing that the United States has not acceded to “near universally-adopted international human rights conventions”); see also State v. Makwanyane 1995(3) SA 391 (the South African Constitutional Court discussing public international law relevant to the constitutionality of the death penalty).63

Both limbs of this discussion oversimplify the point. The United States is, sort of, a party to the International Covenant on Civil and Political Rights, which must be one of what the court refers to as “near universally-adopted human rights conventions.” The ICCPR surely has something to say on the subject, even if it requires sophisticated analysis. And the international material is much richer, as I have tried to show, than just the treaty material. All of the nontreaty material was ignored by the court. The “see also” to the South African decision is quite disingenuous. The South African Constitutional Court did indeed “discuss” the relevant public international law. It also paid much more attention than U.S. courts have in recent years to developments in the rest of the world. It concluded that capital punishment was unconstitutional. The reader could be forgiven for not realizing this from the offhand “see also”! The interesting question is whether it is possible to find a jurisdiction that is prepared, like the dissent in Domingues v. Nevada, or the constitutional court in the “new” South Africa, to have the issues adequately debated. International human rights guarantees may go beyond what is currently protected by the laws and constitution of the United States and its constituent entities. The challenge is to integrate those protections into domestic law.

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Notes 1. Treaty of Peace, December 24, 1814, Gr. Brit.–U.S., 63 Consol. T.S. 421 (1814). 2. UN Charter, article 55. See also article 56 in which members “pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.” 3. Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260A (III), U.N. GAOR, 3d Sess., 1st Pt., at 174, U.N. Doc. A/810 (1948). 4. International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16 at 49, U.N. Doc. A/6316 (1967). The United States is not yet a party to this instrument, although it is a party to the companion Covenant on Civil and Political Rights. 5. Genocide Convention, supra note 3, art. V. 6. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 5, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51 (1985). 7. There is an excellent discussion of such bodies, in the human rights area and many others, in Szaz, 1999. 8. International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106A (XX), U.N. GAOR, 20th Sess., Supp. No. 14, at 47, U.N. Doc. A/6014 (1966). 9. International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966). 10. See, generally, Restatement (Third) of Foreign Relations Law of the United States, Section 113 (1987). 11. See Stephens and Ratner, 1996; Steinhardt and D’Amato, 1999. 12. There is an excellent discussion of these efforts in Lockwood, 1984: 901. 13. U.S. Constitution, Article VI, cl. 2. 14. People of Saipan v. U.S. Department of Interior, 502 F.2d 90 (1974). 15. The Paquete Habana, 175 U.S. 677, 708 (1900). On these issues, see generally, Paust, 1996. 16. Trial of Gideon Henfield, 1793, 11 Fed. Cas. 1099, 1101. 17. The Antelope, 23 U.S. 268 (1825). Sitting as a trial judge in a case involving title to a ship adapted for slave trading, Justice Joseph Story had earlier reached a contrary opinion in the La Jeune Eugenie, 26 Fed. Cas. 832 (Cir. Mass. 1822) and must have been one of the three who did not agree with Marshall. I discuss these and related matters in Clark, 1998: 370. 18. The Amistad, 40 U.S. 518 (1841). 19. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). 20. Trop v. Dulles, 356 U.S. 86, 101 (1958). 21. There is an excellent account of the material in Schabas, 1997. 22. G.A. Res. 2857 (XXVI), U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429 (1971). 23. The Sixth Protocol to the [European] Convention for the Protection of

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Human Rights and Freedoms Concerning the Abolition of the Death Penalty (1983); Second Optional Protocol to the [United Nations] Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty (1989); Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990). 24. International Covenant on Civil and Political Rights, article 6, para. 2. 25. Idem., article 6, para. 5. 26. Idem., article 7. 27. Soering v. United Kingdom, 161 Eur. Ct.H.R. (ser. A) (1989). 28. Report of the Human Rights Committee, Ng v. Canada, U.N. GAOR, 49th Sess., Supp. No. 40, Vol. 2, at 205, U.N. Doc. A/49/40 (1994). 29. Report of the Human Rights Committee, Cox v. Canada, U.N. GAOR, 50th Sess., Supp. No. 40, Vol. 2, U.N. Doc. A/50/40 (1996). 30. E.S.C. Res. 1984/50, U.N. ESCOR, 1984, Supp. No. 1, at 33, U.N. Doc. E/1984/84. U.S. practice is compared with these standards in Hood, 1997: 517. 31. This prohibition echoes that in the ICCPR and is also repeated in article 37 of the Convention on the Rights of the Child, which states: “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age.” G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 166, U.N. Doc. A/ 44/49 (1990). Of the 193 recognized states in the world, only the United States and Somalia have not ratified this convention. 32. E.S.C. Res. 1989/64, 1989 U.N. ESCOR, Supp. No. 1, at 51, U.N. Doc. E/1989/89. 33. The U.S. Supreme Court has held the execution of the insane to be unconstitutional, but has upheld the execution of the retarded. Compare Ford v. Wainwright, 477 U.S. 399 (1986), with Penry v. Lynaugh, 492 U.S. 301 (1989). 34. See, generally, Restatement (Third) of the Foreign Relations Law of the United States, Section 102, Reporters’ Note 2 (1987). 35. Amnesty International, which has the best statistics on death penalty matters, reported recently that more than half the countries in the world have abolished the death penalty in law or practice, and that “in recent years, an average of two countries a year have abolished the death penalty in law or, having done so for ordinary offences, have gone on to abolish it for all offences.” Amnesty International, 1999: 1. 36. One Hundred Second Cong., 2d Sess., 138 Cong. Rec. S-4781-84 (daily ed. April 2, 1992). 37. Stanford v. Kentucky, 492 U.S. 364 (1989). 38. Schabas, 1999: 277, 282. 39. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15. 40. Vienna Convention on the Law of Treaties, art. 2 (1) (d) (1969), U.N. Doc. A/CONF.39/27. 41. Idem., article 19. 42. Idem., articles 20, 21. 43. Report of the Human Rights Committee, Vol. I, at 48, U.N. GAOR, 50th Sess., Supp. No. 40, U.N. Doc. A/50/40 (1996). See also the Committee’s

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General Comment No. 24 (52) on issues relating to reservations, Annex V, at 119, and the Observations of the United States on the Comment, Annex VI, at 126. 44. Foster & Elam v. Neilson, 27 U.S. 253, 314 (1829). 45. U.S. v. Percheman, 32 U.S. 51 (1833). 46. See the excellent discussion in Sloss, 1999: 129. 47. Report of the Human Rights Committee, supra note 43, at 48. 48. Domingues v. State, 961 P.2d 1279 (Nev. 1998) cert. den., Nov. 1, 1999, 120 S.Ct. 396 (1999). The U.S. Supreme Court declined to hear the case. 49. Information supplied by Amnesty International. 50. Domingues v. State, 112 Nev. 683, 917 P.2d 1364 (1996), cert. den., 117 S.Ct. 396 (1996). The unsuccessful petition to the U.S. Supreme Court relied on arguments based on the due process and cruel and unusual punishment provisions of the Constitution. 51. Domingues, supra note 48, at 1280. 52. Idem. The court here cites Stanford v. Kentucky, supra, and Nanda, 1995: 1311, at 1312–1313. 53. Domingues, supra note 48, at 1280. 54. Idem., at 1281. 55. Idem. Here Justice Rose cited Schabas, supra note 38, at 318–319. 56. Idem. Citing to the same source. 57. Nelson v. State, reported on appeal at 155 N.J. 487 (1998). 58. State v. Ramseur, 106 N.J. 123 (1987). 59. Supra note 22. 60. American Convention on Human Rights, article 4, par. 3, OAS Treaty Series No. 36, reprinted in 9 International Legal Materials, 1970: 673. 61. Report of the Special Rapporteur, U.N. Doc. E/CN.4/Add.3 (1994), para. 74. 62. New Jersey v. Funicello, 403 U.S. 948 (1971), on remand State v. Funicello, 60 N.J. 60, 66 (1972). 63. Nelson v. State, supra note 57, at 512.

10 Globalization’s Impact on Human Rights Peter Schwab & Adamantia Pollis

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lobalization is considered by many as the major development in world society, particularly since the removal of the Berlin Wall in 1989. Indeed, Thomas Friedman maintains that globalization is the central organizing principle of the post–Cold War world, an international order that has replaced the Cold War system.1 Yet the processes leading to the contemporary phenomenon date back centuries. Marco Polo played a major role in inaugurating worldwide commerce in the thirteenth and fourteenth centuries, which eventually led to a flourishing spice trade from the “Orient” to Europe. Subsequently mercantilism extracted precious metals from the Asian and American continents for the coffers of European monarchies, an extensive Mediterranean trade transported goods to Europe, Arab traders seeking to extend their commerce settled in East Africa, and the European-initiated African slave trade evolved in West Africa—which, through its triangular structure, also incorporated into that system the territories of the Caribbean and the American colonies. The emergence of the world capitalist system during what Immanuel Wallerstein called “the long 16th century”2 had been preceded, as Janet Abu-Lughod documents,3 by a world system in the thirteenth and fourteenth centuries, centered in Asia. Even at its earliest beginnings, the globalized mercantile system had little concern for the human rights of individuals in those areas caught up in its trappings. The rise of capitalism in Western European states during the nineteenth century, made possible by scientific advances and technological innovation, led to the development of imperialism and the establishment of colonial empires. The “second” imperialism of the late nineteenth century established binding political and economic links across the globe. Colonialism as a system of political rule by the industrialized 209

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Western states was accompanied by economic exploitation and the increasing dependence of the nonindustrialized on the industrialized world. Traditional subsistence economies and their trade patterns were shattered, while the industrialized states benefited, initially from the gains of monopoly capitalism and overseas investment, and eventually under the auspices of finance capital. Over the centuries the world shrank gradually; it became integrated, albeit in an asymmetrical fashion by which vast regions of the globe served the interests of the few industrialized states. Even at the end of World War II, despite a postcolonial era during which sovereign and legally equal states became the accepted international norm, the economic dependence of the nonWestern world, which the West itself had created, persisted. 4 Furthermore, though no longer under colonial rule, during the Cold War era most nonindustrialized countries became political clients of the United States or the Soviet Union. Globalization thus was in formation for centuries. Its distinctive feature in recent decades, however, has been the contraction of time and space enabling split-second financial and communications transactions throughout the world.5 A global economy has come into existence that transcends the state, changing the latter’s role and function and/or diminishing state sovereignty in many realms.6 Contemporary globalization is multifaceted. A global consumer market and its attendant uniform product distribution is destroying the diverse unique handicrafts, attire, architecture, visual and performing arts, and even foods of different cultures and societies.7 Standardization and uniformity are replacing distinctiveness and versatility. Mergers and acquisitions at both the domestic level and across borders are everyday events, while the productive facilities of multinationals are spread throughout the world in the search for cheap labor, which often includes child labor, and the appropriate investment climate. Financial transactions, including currency speculation, are instantaneous. Moreover, modern technology in turn enables communication, information, and knowledge to be transmitted rapidly, at least to those who are privileged enough to have access to computers, e-mail, and the Internet.

Appreciating the Scope of Globalization Above all, globalization refers to the emergence of a world economy in which international financial transactions; stock, bond, and futures market exchanges; and currency mobility are supplemented by a worldwide

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labor market and global production facilities. The integration of politics, technology, information, and capital has created a global marketplace that is “characterized not just by global free trade but more specifically by the free movement of capital.”8 As market forces command free trade and competition, it is alleged that the economy becomes more transparent and, therefore, “the more efficient and flourishing [the] economy will be.”9 Dominated by multinationals based in the United States (whose authority, at least for the time being, remains unchallenged by any countervailing state power), the globalized economy is buttressed by the ascendency of the technological forces unleashed by the corporate giants IBM, Microsoft, Intel, and Cisco Systems, among others. The hardware, software, microprocessors, and Internet routers created by these corporate giants, along with digitization, fiber optics, and satellite communications, allow for instantaneous financial activity. The system can be envisaged as a gigantic circulatory system, sucking capital into the financial markets and institutions at the center and then pumping it out to the periphery. . . . The Asian crisis [of 1997] reversed the direction of the flow.10

In the year 1996 alone, $93 billion poured into Indonesia, Malaysia, the Philippines, South Korea, and Thailand. In 1997, as the Asian economic crisis erupted, the net outflow from the five countries was $12 billion.11 The almost instantaneous withdrawal of Western investment, and the ensuing crisis, led the International Monetary Fund (IMF) to insist on its long-standing structural adjustment policy (also commonly applied to Africa), which caused currencies to be devalued and prices to rise, while real wages and employment plummeted. Exports tumbled or remained stagnant, and current account deficits rose. According to Ruth Heifer, former chairperson of the Federal Deposit Insurance Corporation, “Financial liberalization was undertaken in countries that didn’t have the infrastructure to support it. That was one of the principal causes of the Asian crisis,” 12 which was compounded by bad and overextended loans. As the emergency widened, reaching Latin America and Russia, economies collapsed and political and social turmoil spread. Between June 1997 and December 1998, as primarily Western investors rapidly withdrew their capital, values on the Russian stockmarket declined 86 percent, while in Indonesia stocks fell 80 percent, in the Philippines 54 percent, Thailand 42 percent, Malaysia 74 percent, and South Korea 29 percent. During the same period,

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Germany’s stock market rose 54 percent, while that in the United States increased by 31 percent.13 Investors and state actors in charge of directing flows of capital have created in this new world of technological globalization what Hans-Peter Martin and Harald Schumann refer to as “the right of money to vote.” “It is not a question of morality . . . fund managers are only carrying out instructions by seeking the highest possible return on capital . . . but their superior power now allows them to challenge every step forward in social equality that has been painfully achieved.”14 Buttressed by the neoliberal principles of open borders and free markets (whose leading advocate is Milton Friedman), most states pursue, or are forced to capitulate to, liberalization policies dictated by the flows of capital while the IMF and the World Bank15 impose the policies as conditions for loans to debt-ridden countries. Moreover, as a result of the North American Free Trade Agreement, U.S. multinationals can easily shift production facilities to places like Mexico, ignoring labor rights and reasonable wages. The World Trade Organization attempts to impose free trade on a worldwide scale. The era of import substitution policies as the strategy for development by underdeveloped countries has ended. Overall, global actors—international finance and multinationals—are not accountable to the state for their actions even though they affect hundreds of millions of people. Quite the opposite, states are now accountable to this private economic regime. Indeed, it is estimated that as a result of the economic crisis that struck Indonesia and the structural adjustment program imposed by the IMF more than 100 million people there are now living below the poverty line. It should be noted that centralized administrative headquarters for multinationals are mostly located in the financial capitals of the highly industrialized states. The latter in turn have become the foremost advocates of globalization. Meanwhile, the end of the Cold War has resulted in a significant decline in aid for development purposes by industrialized states.16 Africa, which during the Cold War era received massive military and economic aid, has not been incorporated into the global economy (except for the Republic of South Africa), and in fact has seen the virtual demise of several of its states such as Somalia, Sierra Leone, and Zaire (now the Democratic Republic of Congo). During the last days of 1999, even the once-stable Ivory Coast saw its civilian government overthrown by the military. The proponents of neoliberalism, to morally justify globalization, or what George Soros refers to as “free market fundamentalism,”17 wrap their philosophy in the mantle of the universalist position on human

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rights. According to Kenneth Anderson, formerly of Human Rights Watch: As the global market economy pulverized traditional societies and moralities and drew every corner of the planet into a single economic machine, human rights emerged as the secular creed that the new global middle class needed in order to justify their domination of the new cosmopolitan order.18

But it is highly questionable whether human rights, certainly from the perspective of economic and social rights, but even so far as the power of the vote is concerned, are reinforced by globalization. According to the World Bank, the heart of the Asian crisis was “the surge of capital flows.” Blaming global investors, and Asian officials and entrepreneurs eager to obtain investment capital, the World Bank maintained that “the surge [in] is followed by a precipitous flow out.” The policies implemented by the IMF “spread the economic pain far beyond the banks, investment funds and real estate companies that got the countries into trouble to begin with, sending thousands of small businesses into bankruptcy. Some estimates are that levels of bankruptcy in Indonesia now are 75 percent.”19 And the International Labour Organization, in its report on the Asian events, predicted that as many of these nations begin to “recover” from economic catastrophe, unemployment in South Korea will increase to 8.2 from 2.3 percent, while 12 percent of South Koreans will fall below the poverty line.20 Meanwhile, Japan, one of the Group of 7 (the highly industrialized states), has been experiencing economic decline leading to unheard of levels of unemployment and homelessness.21 Global integration, what Edward Luttwak refers to as “turbo-capitalism,” has become a dictatorship of the world market and appears unstoppable. But, for “many hundreds of millions, globalized progress is no progress at all.”22 United Nations Secretary General Kofi Annan, speaking before the elite of world corporate and political power at the 1999 World Economic Forum at Davos, Switzerland, reflected on the downside of the open global marketplace, and in so doing echoed thirdworld vulnerability to its demands. We have to choose between a global market driven only by calculations of short-term profit and one which has a human face. You can at least make sure that you yourselves are not employing underage children to forced labor, either directly or indirectly. The spread of markets far outpaces the abilities of societies and their political systems to

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adjust to them. Globalization is a fact of life. But I believe we have underestimated its fragility.23

Globalization can be seen as an extension of the U.S. policy of Manifest Destiny; the capitalist equivalent of the Monroe Doctrine. And in terms of human rights, it is often argued, globalization has assisted in their diffusion and reinforced the Western concept of universalism “since markets break down traditional social structures and encourage the emergence of assertive temperaments.”24 Thus the financial marketplace, U.S. foreign policy, and human rights are all interrelated, increasing the already enormous power of the United States in insinuating its authority and leverage worldwide. Or, as Thomas Friedman so inelegantly put it in his paean to globalization, “as a jogger in this world you will be run over by a Formula One car.”25 State sovereignty, as historically understood since the Peace of Westphalia, is being undermined. Although state sovereignty was never absolute, the constraints were self-imposed as a result of bilateral or multilateral treaties or, on occasion, customary law. The changing role of the state nowadays is embodied in policies of liberalization and deregulation, thus becoming a facilitator of globalization.26 Of great significance is the fact that even in democratic states the citizenry is excluded from participation in decisions, policies, or actions taken by global actors that directly affect citizens’ daily lives and welfare. The stock and bond markets, rather than the voting booth, have become the preeminent mediators of the globalization debate. Furthermore, despite fierce competitiveness among multinational corporations and financiers, at least at present, international regulatory agencies of the global economy comparable to those at the domestic level do not exist, leaving financial actors and multinationals to devise their own norms and their own regime. Neoliberalism, with its doctrine of open borders and free markets, represents policies that are pursued by the overwhelming majority of states, either voluntarily or as imposed by the IMF and the World Bank. Globalization is devoid of ideological or humanistic underpinnings,27 although, as Soros maintains, its free-market ideology is evident.28 It is a contemporary sterile version of John Locke’s conceptualization of man in pursuit of his material self-interest and of Adam Smith’s invisible hand that denotes the power of the market. It certainly does not have its premise in the utilitarians’ belief in the greatest good for the greatest number. Thus, neoliberalism has accelerated the emergence of a new global capitalist class whose loyalty is to profits and wealth, not to any

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nation-state. The God of the neoliberals is wealth and its continual accumulation. Concurrently, the “marginals,” as David Apter labels those who have failed to participate in or been excluded from the development process,29 do not benefit from the modern global economy. Studies of globalization have proliferated in the past several years. Few, however, address in depth the simultaneous process of fragmentation at the local level and, in particular, the linkages between these two superficially contradictory processes. Many more analyses do confront the negative consequences of globalization, namely the marginalization of millions of people who are nonproductive in the global economy.30 A reaction to globalization has occurred due to an intensification of turmoil and conflict, labor strife, and increased ethnic, racial, and religious tensions. In fact, Kofi Annan, in his 1999 address to the World Economic Forum, addressed just this point. He maintained that until people build confidence in “the global economy,” it will be fragile and vulnerable—vulnerable to backlash from all the “isms” of our post-cold-war world: protectionism, populism, nationalism, ethnic chauvinism, fanaticism and terrorism.31

It is vital at this point in history, as the world moves into the new millennium, to investigate to what extent the insecurity and anomie of contemporary life that have accompanied the collapse of overarching ideologies, the attendant sense of loss of control over one’s individual or communal identity and destiny, and the current stymying of the liberating spirit of the Enlightenment have fueled these conflicts in the search for a new belonging and new meanings.

Prosperity for Whom? Human rights have been on the international agenda since the end of World War II, certainly since 1948, but their violation as a consequence of globalization has not been adequately examined. The “international bill of human rights” holds states accountable for implementation of human rights. But in the contemporary era it is the private global actors that are frequently the most egregious violators of rights, and as stated earlier they are accountable to no one and to no institution or state. Although data on human rights violations exist, in-depth analysis is needed to substantiate the deleterious effects of globalization on economic and social rights, including labor rights.32 Strikes and demonstra-

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tions protesting worsening labor conditions have become widespread, including in communally based societies where individual political action has been rare. Political authorities often react to this strife by increasing restrictions on civil and political rights and, at times, grossly violating basic rights, such as the right to life, in an effort to control the labor force. Human rights NGOs have extensively documented the increase in labor activism, particularly in such low-wage areas as Malaysia, Indonesia, and even China, and the concomitant increase in state repression.33 In addition to labor strife, globalization has resulted in the intensification of ethnic and religious conflict and violence. Globalization with its attendant social change has precipitated fragmentation at the local level. On the one hand, the resurgence of ethnic and religious strife can be understood as an effort to assert identities and to ascribe meaning in the face of global forces over which one has no control. However there is another dimension to ethnic/religious strife that needs to be scrutinized. What is a particular ethnicity’s class position both within the state and globally? It may be that ethnic/religious and class categories overlap. It is well known, for example, that in Indonesia, where ethnic strife has erupted, the majority of merchants and retailers are Chinese. In such cases, a critical issue is raised as to whether, analytically, ethnic/religious clashes or class conflict is the decisive factor in increased violence. With the end of the Cold War, Africa, excluding the Republic of South Africa, lost its geopolitical importance. Subsequently, despite some major French investments in Gabon and the Ivory Coast, British financing in Kenya, and Shell Oil’s facilities in eastern Nigeria, the continent has on the whole been marginalized and has not been incorporated into the global economy. Shell Oil periodically faces worker protests and demonstrations by ethnic and environmental groups. Such outbreaks have been fiercely repressed by the Nigerian government. Politically many states, such as Burundi, Rwanda, Somalia, and Liberia, have disintegrated, and violence has erupted along clan and/or ethnic lines. Not only has economic development failed to materialize, but the imposition, particularly in the past few decades, of the IMF’s structural adjustment programs has resulted (for example, in Ghana) in declining wages, increased unemployment, poverty, and a precipitous decline in social services, including funding for education.34 Furthermore, human rights violations (whether of individual civil/political, economic/social, or minority rights) as a consequence of destructive social change resulting from globalization might result, at

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least in some instances, in radical shifts in a society’s cultural values and norms that, in turn, may lead to a reconfiguration of the substance of traditional or historic notions of human rights. The outcome of this search for a revitalized identity and meaning is unpredictable. There may be a reinforcement of an exclusive communalism with little personal autonomy or there may be a loosening of communal ties and an expansion of individual demands based on class. The evidence points in both directions. Clearly globalization has had a deleterious effect on the entire complex of human rights, resulting in significant transformations in the behavior and values of masses of humanity across the globe. Further research is vital if the ramifications of globalization on ethnicity, class, and religion, and on the interrelationship among them, are to be fully comprehended. The negative shock of globalization has, it should be noted, affected not only non-Western societies, but those of advanced, industrialized Western Europe, the United States, and Japan. The consequences of globalization for the poor and middle class in the United States are enormous. “The wealthiest and most productive country in the world has . . . changed into the largest low-wage economy. In 1995 four-fifths of all male employees and workers in the United States earned 11 per cent less an hour in real terms than they did in 1973.”35 According to Kevin Phillips, “Caste and class restraints that had eased after World War II began to reemerge” in the 1980s,36 and by 1995 the Federal Reserve Bank had found that in 1989 the wealthiest 1 percent of American households—with a net worth of at least $2.3 million each— owned nearly 40 percent of the nation’s wealth, and the top 20 percent of Americans—households worth $180,000 or more—owned more than 80 percent of the country’s wealth. By 1999, according to the Congressional Budget Office, the wealthiest 2.7 million Americans had as much to spend as the poorest 100 million, while income disparity had grown so much that four out of five households took home a thinner slice of the economic pie than they did in 1977. At the end of the century the gap between rich and poor Americans has turned into a chasm.37 As astounding capital accumulation was occurring in the upper tier of U.S. society, between 1977 and 1999 the average family income of the middle class fell by 3.1 percent, while that of the poorest income decile dropped a startling 12.0 percent. During the same period, family income of the highest decile rose by a whopping 119.7 percent. 38 Even in Germany the dismantling of the welfare state can be discerned, despite the fact that its social inequality is not as profound as in the United States, while the traditional eastern German culture that had survived

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even during communist rule is now being globalized and overrun with western German capital and values.39 Although the United States is a society based on individualism, and does not view economic and social rights as fundamental, from Franklin Roosevelt’s New Deal to Lyndon Johnson’s Great Society it had taken on many of the attributes of a welfare state. But, under Ronald Reagan, George Bush, and Bill Clinton many of the structures of the welfare state have been dismantled. At the same time privatization of industry and of social services has become a guiding principle of government policy. As a consequence of the restructuring of corporations, downsizing, outsourcing, use of contract labor, and movement of production facilities to cheap-labor countries, matched with record profits for corporations, the well-being of ordinary citizens has deteriorated. In April 2000, the United States lauded itself for a continuing decline in the unemployment rate to 4.2 percent of the work force. This figure is deceptive because, in contrast to the method that Germany, for example, uses to measure unemployment, only those actively looking for work are included, while part-time workers are considered employed regardless of their income. Furthermore, much of the increase in employment is in the low-skill, low-paying service sector, which does little to bring employees into the middle class or to keep them there. The relatively new corporate policy of hiring contract labor does not provide for fringe benefits. Neoliberal policies, which include privatization of public services, have in turn resulted in a decline in education expenditures, cutbacks in health services, and severe reductions in aid for the destitute and the unemployed. Nothing reveals the consequences of globalization in the United States more dramatically than the widening income gap between the wealthiest and the poorest, and the collapse of much of its rural economy “as a result of the global wage differentials of the 1980s. Cheap, willing, rural nonunion American labor was no longer cheap enough,”40 and consequently rural poverty has been increasing at twice the rate of urban poverty. Globalization’s impact in and on the United States is not nearly as generous to all its citizens as its supporters make it out to be.

Human Rights: The United States, Globalization, and the Future Clearly globalization can, insofar as its deleterious effects are concerned, be likened to a new version of colonialism and imperialism.41 Throughout the past decade industrial states have facilitated largely

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Western financial institutions, investment banks, and formidable corporations in accumulating an enormous amount of capital and power that they have used to deeply penetrate exogenous societies. As Michael Davis has indicated, Many communities in East Asia have experienced problems with labor rights abuse and massive worker displacement. . . . Global intrusion has often been accompanied by increased problems with unemployment, crime, corruption and environmental degradation.42

The inherent principle of globalization is to develop economic transparency so as to improve the efficiencies of economies worldwide for the benefit of the industrial powers and non-Western states. But an underlying, equally important assumption is that civil and political rights must be raised above economic and social rights so as to buttress economic growth and development. Since political rights are seen as intrinsically correlative with the growth of an economy, the latter is seen as impossible to accomplish without the former. Philosophically speaking, the concepts of John Locke and Adam Smith must operate in tandem to create a free and unfettered economy. As a result, under the rubric of globalization non-Western nations are pressured to accept neoliberal principles of free trade and open markets and the universalist concept of human rights. They are given little choice, irrespective of the economic dislocations or political havoc that may result. Even a power such as China has embarked on economic liberalization with the encouragement of foreign investors who establish production facilities with low-wage labor. Weaker and more marginal states, such as Kenya, Ethiopia, and Indonesia, are less able to successfully stave off such pressure. Cuba, which is hardly a threat any longer to U.S. national interests, remains in the vise of the 40-year-old embargo because it refuses to accept U.S. demands to alter its political and economic systems, accepting the principle of political and civil rights and jettisoning its belief system based on the paramountcy of economic rights. 43 Counter to the prevailing norm, Prime Minister Mahathir Mohamad of Malaysia in September 1998 responded to the financial crisis by reasserting state sovereignty in economic policy; he closed the borders and imposed currency controls.44 The United States in the twenty-first century is more powerful and dominant than any nation or empire has ever been, and it has become a handmaiden to corporate and financial interests. No state can match it in military prowess, and none can, at least for very long, constrain its demands. The United States can rescue Mexico from economic col-

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lapse, as it did in 1995, when Secretary of the Treasury Robert Rubin amazingly took virtual control of Mexico’s economy to save it and U.S. investors from the destructiveness of the globalized international money market regime. It can create the conditions for malnutrition and a destroyed health care system in Cuba to force the country to bow to U.S. demands for the acceptance of a universal human rights program.45 In Thailand, Indonesia, and South Korea, it worked together with the IMF to effect structural adjustment policies, while, in a successful attempt to keep Boris Yeltsin in power, it watched billions of dollars in aid to Russia disappear into the hands of a corrupt elite that siphoned off the funds to banks in Cyprus, Switzerland, and elsewhere, while the Russian population sank deeper into poverty and despair. In 1998, the United States bombed and destroyed a Sudanese pharmaceutical plant because it was suspected, erroneously, that the facility was part of a terrorist network supported by the Saudi Arabian militant suspected of masterminding the bombings of U.S. embassies in Kenya and Tanzania. And in 1999, together with its NATO allies, it led a 78-day bombing campaign against Serbia to halt Yugoslavian President Slobodan Milosevic’s vicious ethnic cleansing campaign in Kosovo. Militarily, economically, and politically the United States is the twenty-first-century colossus that all nations must contend with, and that many turn to. If the destructive economic and political effects of globalization are to be ameliorated, both the industrial states and their clients and adversaries are going to have to stifle their dogmatism. The United States, in its pursuit of a globalized world, should accept the premise that cultural differences—political, social, and economic—must be more than merely tolerated, but must be incorporated into a new framework of globalization. Economic dislocations, ethnic violence, labor unrest, and religious conflict will never be completely eliminated but can be reduced by compromise. Simply because the United States is as powerful as it is does not give it a monopoly on knowledge, accuracy, or sensitivity. Nor do the values embedded in the “ideology” of multinationals and financiers address the needs and values of much of humanity. At the same time, non-Western states that continue to engage in severe economic and political repression are going to have to alter their despotic ways; not because the United States will demand it, but because it is morally right to be responsive to the demands of their people, and it will create the conditions for the integration of their populations into a more democratic and legitimate political order. After all, the rondas in northern Peru exist largely because the state judicial system is seen as corrupt, tyrannical, and often nonfunctional.46

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The precepts of globalization must be modified to incorporate human rights. Furthermore, an integration of the principles of cultural relativists and universalists should take place, which would lead to a less strident, less destructive globalism. The global information highway can facilitate this process. The United States, as a world power, first and foremost should accept the principle of diversity in the arena of human rights. How the integration of apparently diverse and dissimilar philosophies can be accomplished in the context of globalization requires further research and analysis, even though many of the discussions in this book have approached the subject. Globalization is not going to disappear. However one thinks of it, it is the new world order even though there is mounting discontent and opposition to its consequences. (Note, for example, the violent and nonviolent opposition to the WTO’s meeting in Seattle, Washington, in December 1999.) In the new millennium, the commanding issue will be how the assorted human rights perspectives of the citizens of the world, who hold divergent views, express different values, and incorporate distinct but dissimilar mores, can be adjusted and brought more into line with one another. That point can become more politically manageable if the United States, despite the hubris it exhibits as a result of its power, can be more accommodating and less dogmatic. Concurrently, leaders of many non-Western states will, of necessity, be required to ensure a more open and democratic political and economic society, particularly in regard to gender rights and the rights of national, religious, and ethnic minorities, even in the context of each culture’s own distinctive value system. If globalism is not to continue as merely another form of colonialism, a philosophy of diktat, then divergent views of human rights will have to be accepted by the United States, in particular, and by other nations as well. At the same time, useful regulations and restraints will need to be imposed on the presently free-wheeling financial activities of multinational corporations. Only then will globalism truly be global, and not just a corporate parochial vision of the world in which the term globalism is simply a one-word oxymoron.

Notes 1. Friedman, 1999. 2. Wallerstein, 1979. 3. Abu-Lughod, 1989.

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4. An exception of course appeared to be the East Asian “tigers,” which industrialized and experienced high rates of economic growth. The recent crises highlight the pitfalls of a global economy even in countries where the state is a principal economic actor. 5. Mittleman, 1996, chapters 1, 11. The author points out the contraction of time and space characteristic of globalization. 6. State sovereignty has never been absolute. But restrictions in the past were voluntarily accepted as a result of bilateral or multilateral treaties. 7. For a discussion of how the states and remaining colonial territories of the eastern Caribbean region have had their culture deformed by this process, see chapter 2 in Schwab, 1999: 19–51. Note also the decline of the film industry in India, and even in Potsdam-Babelsberg in eastern Germany, as the U.S. movie industry continues to exert its power and influence abroad by increasing its worldwide market share. 8. Soros, 1998–99: 56. 9. Friedman, 1999: 8. 10. Soros, 1998–99: 56–57. 11. New York Times, February 16, 1999: A11. 12. Ibid. 13. New York Times, February 17, 1999: A8. 14. Martin and Schumann, 1998: 69. 15. In the late 1970s, the World Bank embarked on a short-lived policy of providing development loans to projects that would enhance basic needs, but since then, on the whole, it has followed the IMF’s lead. 16. For instance, by 1996 U.S. economic assistance to the twenty-five countries and territories of the Caribbean Basin dropped 90 percent—from $225 million to $26 million. New York Times, October 24, 1996: A13. 17. Soros, 1998–99: 57. 18. As paraphrased by Ignatieff, 1999: 59. 19. The World Bank. Annual Report, 1998. As quoted in the New York Times, December 3, 1998: A20. 20. As reported in the New York Times, December 3, 1998: A20. 21. Japan, whose unemployment, due to its social system, had been negligible, has witnessed a marked increase. In 1990 its unemployment was 2.1 percent, but by 1997 it had climbed to 3.4 percent, and it is currently estimated at 5.0 percent. International Labour Office, 1998, www.stat.go.ip/1603.atm#jf0302. 22. Martin and Schumann, 1998: 9. 23. New York Times, February 1, 1999: A14. 24. Ignatieff, 1999: 59. 25. Friedman, 1999: 372. 26. Sassen, 1996. 27. Cox, 1996: 23. The author argues that globalization itself has become an ideology. 28. Soros, 1998. 29. See Apter, 1987: chapter 1. See also the 1999 Human Development Report, which claims, “The well-connected have an overpowering advantage over the unconnected poor, whose voices and concerns are being left out of the global conversation.”

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30. Cox, 1996: 26–27. 31. New York Times, February 1, 1999: A14. 32. An interesting discussion, which raises significant issues particularly as they pertain to labor rights, was held at the Harvard Law School in December 1997; see Business and Human Rights, 1999, Harvard Law School Human Rights Program. 33. Human Rights Watch World Report, 1999. www.hrw.org/hrw/ worldreport99/asia/malaysia.htm, reports that as a result of the economic decline in Malaysia, the state deported more than 30,000 migrant workers, many of whom experienced police brutality when they were detained. In the same report Human Rights Watch notes that the Chinese government, concerned about increased worker unrest, took measures including detentions and imprisonment, to stop activities in support of labor rights. Human Rights Watch, www.hrw/org/hrw/press98/feb/chinese2.htm, in a report on Indonesia, analyzes how the economic crisis led to ethnic violence against the Chinese. 34. See Herbst, 1994 for an excellent analysis of structural adjustment in Ghana. 35. Martin and Schumann, 1998: 117. 36. Phillips, 1991:19. 37. Federal Reserve Board, 1995. Congressional Budget Office, 1999. 38. Congressional Budget Office, 1999. 39. It is interesting to note that many eastern Germans think positively of the security they once had and have now lost, and remain embittered by the influx of western German developers, whom they view as intent on dismembering whatever traditional values and norms remain. But more and more, gain, via the mark (or the euro), is now the standard by which class and status is measured, while, often reluctantly, individualism is replacing community as a primary value in eastern Germany. See Endlich, 1999. 40. Phillips, 1991: 200. 41. See Rajamoorthy, 1998: 58–73. 42. See Davis’s chapter in this book, particularly his section on globalization. 43. It is important to note that insofar as political rights are concerned, there are sectors of Cuban society where rights remain relatively unrestrained. This is particularly so in the visual and performing arts. See Camnitzer, 1994; Schwab, 1999: 152–156. But it is also true that after more than 40 years in power, the Communist Party of Cuba and Fidel Castro should develop a more nuanced and reasonable response to those Cuban political and human rights advocates who want change but do not wish to see Cuba’s independence and sovereignty negatively affected by the United States and its philosophy of globalization. See Schwab, 1999; Kaplowitz, 1998. 44. New York Times, September 2, 1998; Saludo, 1998. 45. Schwab, 1999: 53–101; Schwab, 1997: 15–26; Kaplowitz, 1998. See also Buchholz, 1999. 46. See the chapter on Peru by John S. Gitlitz in this book.

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The Contributors

Adamantia Pollis is professor of political science at the Graduate Faculty, New School University, New York City, and visiting professor at the Graduate Center, City University of New York. Her research and writing emphasize human rights and nationalism and ethnicity, while her regional expertise is Cyprus and Greece. Among her publications are (as coeditor with Peter Schwab) Human Rights: Cultural and Ideological Perspectives and Toward a Human Rights Framework. She is also editor (with Carl Pinkele) of The Contemporary Mediterranean World. Peter Schwab is professor of political science at Purchase College, State University of New York. He is author of Decision-Making in Ethiopia, Ethiopia: Politics, Economics and Society, and most recently, Cuba: Confronting the U.S. Embargo. Along with Adamantia Pollis, he is editor of Human Rights: Cultural and Ideological Perspectives and Toward a Human Rights Framework. Zehra F. Arat is professor of political science and women’s studies at Purchase College, State University of New York. Her research interests focus on democracy, human rights, women’s rights, and women in development. Her publications include Democracy and Human Rights in Developing Countries and Deconstructing Images of “The Turkish Woman.” Roger S. Clark is Board of Governors Professor of Law at Rutgers Law School, Camden, New Jersey. He holds degrees in history and law from Victoria University in New Zealand and advanced law degrees 245

246

The Contributors

from Columbia University Law School, New York City. He has published widely in the areas of international organizations, human rights, and international criminal law. His most recent books are on the legality of nuclear weapons and on the United Nations Crime Prevention and Criminal Justice Program. He was for many years a vice president of the International League for Human Rights. Michael C. Davis is professor of law at the Chinese University of Hong Kong, where he has been on the faculty since 1985. In 1994/95 he was the Schell Senior Fellow at the Orville Schell, Jr. Center for International Human Rights at the Yale Law School. He is the author of Constitutional Confrontation in Hong Kong, and editor and author of Human Rights and Chinese Values. Michael Freeman teaches political theory in the Department of Government, University of Essex, Colchester, United Kingdom, and is deputy director of the university’s Human Rights Center. Among his publications are Edmund Burke and the Critique of Political Radicalism, Frontiers of Political Theory, edited with David Robertson, and Nationalism and Minorities, edited with Dragomir Pantic and Dusan Janjic. John S. Gitlitz is associate professor of political science at Purchase College, State University of New York, and a member of the advisory committee of the Americas Division–Human Rights Watch. He has spent years studying the rondas of northern Peru and has published some of his findings in journals in the United States and Peru. Barbara Rose Johnston is an anthropologist and senior research fellow at the Center for Political Ecology, Santa Cruz, California, and lecturer at the University of California, Santa Cruz. She is editor and principal author of Who Pays the Price? The Sociocultural Context of Environmental Crisis, editor of Life and Death Matters: Human Rights and the Environment at the End of the Millennium, coeditor (with John Donahue) of Water, Culture, Power: Local Struggles in a Global Context, and series editor for an eight-volume study entitled Endangered Peoples: Struggles to Survive and Thrive in a Culturally Diverse World. Peter Juviler is professor of political science at Barnard College, Columbia University, New York City, and codirector of its Center for

The Contributors

247

the Study of Human Rights. His most recent books are Freedom’s Ordeal: The Struggle for Human Rights and Democracy in Post-Soviet States and Religion and Human Rights: Competing Claims? (coedited with Carrie Gustafson). Javier Mariezcurrena is a lawyer at the University of Buenos Aires, Argentina, and staff attorney at the Inter-American Institute on Human Rights, San Jose, Costa Rica. He has previously served as a consultant to the United Nations Mission for the Verification of Human Rights in Guatemala, and as director of the 1996 Report on Guatemala’s Prisons and Penitentiary System for the Guatemalan Institute of Comparative Studies of Penal Sciences. Juan E. Méndez is director of the Center for Civil and Human Rights at the University of Notre Dame, Indiana, and executive director of the Inter-American Institute on Human Rights, San Jose, Costa Rica. He previously served as executive director and general counsel at the Washington office of Human Rights Watch. Among his publications are Truth and Partial Justice in Argentina: An Update, El Futuro del Sistema Interamericano de Protección de los Derechos Humanos (coedited with Francisco Cox), and The (Un)Rule of Law and the Underprivileged in Latin America (with Guillermo O’Donnell and Paulo Sergio Pinheiro).

Index

Adams, John Quincy, 185, 191 Africa, globalization and, 211, 212, 216. See also South Africa American Charter on Social Guarantees, 163 American Convention on Human Rights, 164, 173, 179, 180 American Declaration on the Rights and Duties of Man, 163, 164 Amnesty laws, 173–175 Annan, Kofi, 213, 215 Argentina, 180; democratic transition in, 171–172; state violence and the judiciary in, 168 Aristide, Jean-Bertrand, 166 Asian values: authoritarianism and, 140–142; economic miracle and, 12, 27–28n.13. See also East Asia Aung Sang Suu Kyi, 151 Authoritarianism: Asian values and, 140–142; communitarianism and, 144; Confucianism/neoConfucianism and, 141, 142; economic crisis and, 145; liberal, 145–146; rights protection and rule of law in, 148

Brazil, indigenous land rights in, 113n.26 Buddhism, holistic principles of, 24 Capital punishment. See Death penalty Carter, Jimmy, 170 Catholic Church (Peru), human rights and, 62, 63–64 Cayuqueo, Pedro, 106–107 Chaikin, Vasili, 125–126 Chile: human environmental rights abuses in, 106–107; state crimes and the judiciary in, 168 China: civil/political rights in, 15; constitutional path of, 153–154; economic liberalization in, 219; Internet censorship in, 108–109; pressures for change in, 147; Western liberal democracy and, 141–142 Christianity, 23–24 Citizenship, individual rights and, 16 Civic culture, democratization and, 142 Civic nationalism, 49; and ethnic nationalism, 35; illiberal prac-

249

250

Index

tices and, 47; liberalism and, 48; minority protection and, 43 Civic virtue, democratization and, 143 Civil and political rights: as abstract legal rights, 11; cultural relativism and, 2; economic and social rights and, 9, 14, 219. See also International Covenant on Civil and Political Rights (ICCPR) Clientelism, 149 Collective rights, and human rights, 37. See also Indigenous rights; Minority rights Colombia: human rights abuses in, 109–110; state violence and the judiciary in, 169 Colonialism, economic exploitation and, 209–210 Communal rights, in universalist paradigm, 17–18 Communitarianism, Western versus East Asian views of, 143–144 Community: cultural relativism and, 11–12; decisionmaking authority of, 116; and individual rights, 36; and minority rights, 48; romanticization of, 143; Western European reconceptualization of, 15–16 Confucianism, and authoritarianism, 141 Consociational democracy, 152 Constitutional democracy: authoritarianism and, 140–144; community-based arguments against, 143–144; constraint paradigm in, 147–149; core components of, 139; cultural-political values in, 142; discourse-engendering role

of, 139; economic developmental concerns in, 154; empowering role of, 147–151; human rights protection in, 139, 147; intercultural, 40–42; monarchs’ continuing role in, 152; and neutral borrowing, 154–155; ombudsman in, 153; political culture and, 151–154; universal human rights and, 147 Constitutive process, 149–150 Crimes against humanity, 26; amnesty laws and, 173–175 Cuba: globalization and, 219; OAS suspension of, 165 Cultural diversity: human adaptation and, 95–96; language and, 96–97 Cultural relativism: arguments for, 2; Asian values and, 12–13; communalism and, 11–12; denial of universal human rights and, 71–72; economic/social rights and, 2; indigenous rights and, 54–55; individual identity in, 11–12, 18; prescribed versus ascribed roles in, 18–19; universalism and, 9, 13–15; Western cognitive framework of, 12 Cultural systems, cross-cultural similarities in, 23–24 Culture, traditional: entitlements in, 20; externally imposed change and, 20–21; reification and unchangeability presumptions in, 18, 20 Customary international law, 189–190; conditions for development of, 194–195; death penalty and, 194–195, 200, 203; slave trade and, 190–191; treaties and, 190

Index

Customary law, justice by popular assembly and, 59 Death penalty, 177, 183n.29; abolitionist position on, 195, 203; applied to minors, 196, 197–198, 200–202; countries, 195; customary law and, 194–195, 200, 203; international human rights law and, 187–188, 192–195, 200–204; and right to appeal, 194; and right to life, 23, 192; and UN resolutions and safeguards, 193–194; and U.S. domestic law, 195–204 Declaration on the Rights of Man and Citizen, 16 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 31–32 Democracy: Athenian concept of, 32–33; cultural prerequisites for, 142; economic crisis and, 145; UN membership and, 163. See also Constitutional democracy Distributive justice, human rights concept and, 38 Domestic law: constitutional rules in, 186–187; international law and, 185–204; U.S., legal framework of, 188–189 Domingues v. Nevada, 200– 202 East Asia, 139–157; and Asian values, 12, 27–28n.13, 140–142; and authoritarian developmentalism, 144–147; civic virtue in, 143; communitarianism in, 143–144; constitutional governments in, 150; constitution-mak-

251

ing exercises in, 149; democratic consolidation in, 141; democratization, and cultural prerequisites, 142; human rights debate in, 140–147; indigenous institutions in, 151–157; institutions for checks and balances in, 150; judicial role in, 150–151; postauthoritarian, authoritarian practices in, 154–157; social unrest and reform pressures in, 146–147 East Asian developmental model: economic miracle of, 144–145; financial crisis of, 145–146, 211–212, 213; liberal democracy and, 146; liberal authoritarianism and, 145–146 Ecocide, 100 Economic development, authoritarian argument for, 144–147 Economic and social rights: civil and political rights and, 9, 14, 219; in Cold War era, 11; cultural relativism and, 2; globalization and, 213; in Latin American democracies, 176; liberalism and, 17; patriarchal industrial class and, 11; Western view of, 14 Economic, Social and Cultural Rights, International Covenant on, 85–186 El Salvador: state violence and the judiciary in, 168–169; truth commission in, 175 Entitlements, in traditional communities, 20 Environmental crises: biodegenerative, 98–99; cultural diversity and, 95–96, 97–98; human adaptation and, 98–99; as human rights issues, 99

252

Index

Environmental information, as state secrets, 104–105 Environmental policies, ethnocentrism in, 101–102 Environmental rights, 10, 14–15. See also Human environmental rights Environmental security projects, 112n.14 Ethnic and religious conflict, globalization and, 216 Ethnocentricism, environmental rights abuse and, 99–102 Ethnocide, 100 Ethnocultural justice: human rights doctrines and, 37; intercultural dialogue and, 40–42; liberal constitutionalism and, 39; in multicultural society, 35–36, 37, 38, 40–41 Ethnonational states, individual rights in, 21 European Community, democracy and, 164–165 European Convention on Human Rights, 128, 164, 174, 192 Extraconstitutional actions, democracy and, 149 Favored-nation trade status, 106 Female infanticide, Quranic references to, 75–76 Freedom of expression, 149, 180; in Latin America, 179–180; in Russian Federation, 124, 126 Fujimori, Alberto, 166 Gender equality. See Islamic women; Women’s rights Genocide, human environmental rights and, 100

Genocide Convention, 185–186; principle on reservations, 197 Global economy, 210–215; and economic crises, 211–212, 213; neoliberal principles of, 212–213, 214–215, 218 Globalization, 209–221; ethnic group fragmentation and, 21–22; historical background of, 209–210; and historic values and norms, 25; and human rights, 212–213, 214–221; and poor and middle class marginalization, 216–218; and religious and ethnic conflict 216; state sovereignty and, 26, 30n.51 Gorbachev, Mikhail, 129 Group rights, 21, 37; as human rights, 36. See also Minority rights Guatemala: Santiago norm and, 166; state violence and the judiciary in, 168–169 Haiti, Santiago norm and, 166 Havel, Vaclav, 143 Henao, Hernán, 109–110 Homosexual rights, 14 Hong Kong Basic Law, 149, 156 Human adaptation: biodegenerative crises and, 98–99; cultural diversity and, 95–96 Human environmental rights, defined, 100 Human environmental rights abuse: and acceptable levels of exposure, 101; biodegenerative environmental crises and, 97–99; ethnocentricism and, 99–102; responses to, 102; UN covenants on, 95 Human environmental rights advo-

Index

cacy: backlash against, 108–110; communications technology in, 103; in political and legal arenas, 103–107; social movements in, 102–103 Human rights: and collective rights, 37; cultural prerequisites for, 142; foreign policy and, 170–171; globalization of, 26; liberal doctrine of, 10–11; religious freedom and, 128 Human rights movement (Peru): emergence of, 62–63; ronda (peasant) justice and, 64–67 Human rights scholarship: future research directions in, 22–25; implementation difficulties, 48; Western ontology and, 13 Indigenous peoples: cultural devolution of, 96–97; cultural relativism and, 54–55; liberal constitutionalism and, 39; linguistic diversity and, 97, 111n.4; redress for problems of, 177; rights, abuses of, 106–107 Individual rights: citizenship constraints on, 16; contemporary universalist conceptualizations of, 17; cultural relativism and, 18; in ethnonational states, 21; minority (communal) rights and, 9–10; natural law and, 16 Indonesia, globalization and, 213 Industrialized nations, globalization’s negative impacts on, 217–218 Information technology: access, 112n.15; censorship, 108–109; and rights protection, 103 Inter-American Commission on

253

Human Rights, 164, 165, 166–167, 170, 177, 180 Inter-American Court of Human Rights, 164, 171, 173, 177, 180 Inter-American Declaration on Freedom of Expression, 180 Intercultural constitutionalism, 40–42; individualistic base of, 40; institutional form of, 41 International Covenant on Civil and Political Rights (ICCPR), 15, 31, 174; non-self-executing statement and, 198–200, 201–202; U.S. ratification of, 195–200; U.S. reservations to, 196–198 International Covenant on Economic, Social and Cultural Rights, 185–186 International Criminal Court (ICC), 26, 30n.52 International human rights law, 185–204; cruel and inhuman punishment prohibitions in, 192–193, 196, 197–198; and customary international law, 189–190; death penalty and, 192–195; monitoring of state obligations in, 186; promotional provisions of, 185–186; and U.S. death penalty cases, 187–188, 200–204; and U.S. domestic law framework, 188–189 International human rights regime: cultural transformation mandate in, 71; establishment of, 70– 71 International Labour Organization (ILO), 106 International law, democracy and human rights obligations in, 163–167. See also International human rights law

254

Index

International Monetary Fund (IMF), 211, 212, 213, 214, 216 Islamic philosophy and law: abstract concepts in, 23–24; cultural variation in, 72–73; during Mohammad’s time, 73; patriarchal nature of, 70; polygyny in, 80–81; spiritual equality in, 70. See also Quran Islamic women, 69–88; emancipation of, 88; as individuals, 87; Quranic references to, 74–83, 87; segregation of, 90n.15; spiritual equality and, 74–77; in social domain, 77–83; subordination and oppression of, 69, 78–79, 80–81; veiling and seclusion of, 81–83, 92n.60 Japan: constitution, 149, 150, 153, 155; economic decline in, 213; economic developmental model, 144; economic and political reform in, 147; values, globalization and, 25 Jay, John, 190 Jehovah’s Witnesses, 131–132 Journalists, Latin American, 179–180 Justice: right to, 173; and self-government, 40. See also Ethnocultural justice Justice by popular assembly. See Peasant justice Key, Francis Scott, 190 Kim Dae-jung, 145 Klaus, Vaclav, 143 Kovalyo, Sergei, 126 Labor rights, globalization and, 215–216

Language of rights, 19–20 Languages, endangered, 96–97, 111n.4 Latin America: civil society organizations in, 169–170, 172, 181; crime policy and criminal justice system in, 177–179; freedom of expression abuses in, 179–180; inter-American law’s democracy clause and, 164–166; journalism’s credibility in, 179–180; political corruption and white collar crime in, 179 Latin American democracy: and economic and social exclusion, 176; insufficiency of, 176–180; inter-American law and, 164–166, 177; 1980s transitions to, 171–176; 1990s’ reaffirmation of, 166 Latin American human rights abuses: amnesty for, 173–175; Catholic Church and, 169; citizens’ insecurity and, 177–179; freedom of speech and, 169; inter-American protection system and, 173–174; judiciary and, 168–169; local resistance organizations and, 169–170; under military dictatorships, 167–169; “right to truth” and redress for, 172–173, 175 Legal pluralism, and cultural diversity, 41 Legal structures, and indigenous concerns, 152–153 Liberal democracy: aboriginal peoples and, 39, 45; civic nationalism and, 35; cultural diversity and, 38–42; cultural recognition and, 46; education and freedom of information in, 37; freedom of

Index

association principle in, 44, 45; ethnocultural justice and, 39–42; justice in, 42–43; liberal constitution in, 38–42; minority rights in, 35–38; nationalism and, 48; versus multiculturalism, 42–47; social contract theory and, 16–17; theory, 2 Litigation, human environmental rights and, 104–107 Locke, John, 33, 214 Manifest Destiny, globalization and, 214 Manuche people (Chile), 106–107 Marshall, Chief Justice John, 190–191, 198 Middle class: economic development and, 146; globalization and, 217–218 Milosevic, Slobodan, 26, 220 Minority representation, forms of, 152 Minority rights: civic nationalism and, 43; communalism and, 48; cultural relativists’ view of, 14; emergence of, 48; group rights and, 21; individual rights and, 9–10; and intercultural dialogue, 40–41; international law on, 31–32; liberal state intervention in, 45; liberal theory and, 14, 35–38; post-World War I treaties and, 27n.1; recognition theory and, 46 Modernization: communalism and, 2; Western human rights concept and, 13 Multiculturalism: ethnocultural justice and, 35–36, 37, 38, 40–41; liberal democracy and, 42–47 Multinational(s): accountability,

255 212, 214; national environmental lawsuits against, 105

Nationalism, and individual liberties, 16, 28n.26. See also Civic nationalism Natural law: individual rights and, 16; rule of law and, 33 Neoliberalism, and globalization, 212–213, 214–215, 218 New Jersey, capital punishment legislation in, 202–203 Nicaragua, indigenous peoples of, 177 Nikitin, Aleksandr, 123–124 Non-Western societies: globalization’s impact on, 213–214, 216; historic economic dependence of, 209–210; individual in, 18–19; women in, 19 North American Free Trade Agreement, 212 Nuclear contamination, 98, 104–105 Occupational health and safety policies, ethnocentrism in, 101–102 Organization of American States (OAS), 163, 170–171, 180; Declaration of Santiago, 165–166, 181n.4; treaty bodies, 164 Paquete Habana case, 189 Paraguay, indigenous peoples of, 177 Pasko, Grigori, 123–124 Patriarchy, and non-Western societies, 19 Peasant justice: customary law and, 59; history of, 55–62; human rights movement and, 64–67;

256

Index

illegality of, 59, 61, 65; individual human rights and, 67–68; sanctions and interrogations in, 57, 60–61 People of Saipan case, 188–189 Peru, 180; human rights movement in, 62, 63–64; peasant justice in, 54–68. See also Rondas Pinochet, Augusto, 26, 168; arrest of, 175 Political community, centrality of, 116 Quran: community in, 85–86; gender and class inequality in, 84–85; individualism in, 85–87; Mohammad’s reference point in, 86; original intentions of, 84; principle of equality in, 73–83, 87; right to life in, 76 Rape, 29n.41 Reagan, Ronald, 171 Religious freedom, and human rights, 128 Right to justice, 173 Right to life: death penalty and, 23, 192; Quranic references to, 76 Rights vocabulary, 19–20 Rome Statute for the Creation of an International Criminal Court, 175 Rondas, 54–68 Rousseau, Jean Jacques, 33 Rule of law: authoritarianism and, 148; public order and, 117 Russian Federation, 115–133; abandoned and orphaned children in, 121; armed forces, abuse of, 120; civil rights abuses in, 118–120; community identity in, 128–132; Constitutional Court of,

118–119; constitutional guarantees in, 117, 120, 126–127, 129; constitutional rights violations in, 120–121; crime in, 119–120; criminal procedural law in, 117–118; criminalized countercommunities in, 121–122; economic collapse in, 211; electoral democracy in, 115, 133; federalism and local rights in, 124–126; freedom of expression rights in, 124, 126; human rights abuses in, 119, 120, 122, 126, 132; human rights NGOs in, 120, 123; incarceration rate, 119; jury trials in, 118; middle class, reappearance of, 133; minority rights in, 126–129; mortality and morbidity rates, 121; nontraditional religions in, 129–132; nuclear contamination in, 104–105; political corruption in, 118–119, 121–122, 123; prison conditions in, 119; privatization in, 121; racist and interethnic conflicts in, 127–128; and rule of law, 117, 120, 121, 126; Soviet legacy in, 116–117, 132; women’s rights violations in, 119–120 Russian Orthodox Church, 129, 130–131 Russian Soldiers’ Mothers Committee, 120, 124 Rwanda, 175 Santiago Commitment, 165–166, 181n.4 Self-determination: and intercultural constitutionalism, 40–41; justice and, 40; rights of, 10 Serrano, Jorge, 166 Shell Oil, 216

Index

Singapore, communitarianism in, 143–144 Slave trade, and customary law, 190–191 Slavery: and forced labor, 105; Islam and, 85, 86–87, 88 Smith, Adam, 214 Socioeconomic change, traditional values and, 25 Social activism, backlash against, 108–110 Social contract theory, 11, 16– 17 Somoza, Anastasio, 170 South Africa, capital punishment and, 204 South African Truth and Reconciliation Commission, 173, 175 State sovereignty: globalization and, 25, 26, 30n.51, 210, 214; human rights violations and, 48; principle of nationality and, 16 State v. Leslie Nelson, 202–204 Structural adjustment policies, 211, 212, 216 Subordinate classes, economic development and, 146, 216–218 Taiwan, democratization in, 147. See also East Asia Third world. See Non-Western societies Third-generation rights. See Human environmental rights Torture, 23, 29n.41 Treaty, 188; as law of the land, 198–100, 201; process, 195–196; reservations to, 196–197 Treaty, human rights: capital punishment prohibitions in, 192; and customary law, 190; monitoring

257

of, 186; and U.S. Constitution, 188 Treaty of Ghent, 185, 186 United Nations: Charter, 185, 186; Commission on Human Rights, 1, 106; Convention on Economic, Social and Cultural Rights, 14; Economic and Social Council, 194, 195; General Assembly, 192, 195; Human Rights Committee, 174, 193; membership requirements, 163–164; and war crimes tribunals, 175 United Nations human rights conventions: gender equality and, 69; U.S. ratification of, 186 United States: economic and political power of, 219–221; globalization’s negative impact on, 217–218; International Criminal Court (ICC) and, 30n.52; Latin American human rights policy, 170–171; multinationals, dominance of, 211; unemployment and income inequality in, 217–218 United States constitution: death penalty and, 193; supremacy clause of, 198; treaties and, 188 United States domestic law: death penalty and, 195–204; framework, 188–189; international law and, 185–204 Universal Declaration of Human Rights, 1, 31, 38, 192; right to life provision in, 192 Universal human rights, 1–2, 9–27; assumptions and presuppositions of, 15–22; and cultural relativism, 9, 13–15, 71–72; direc-

258

Index

tions for future research in, 22–25; historical context of, 10–15; patriarchal structures and, 72 Universal jurisdiction, human rights crimes and, 175 Unocal, 105 Vienna Declaration of Human Rights, 14, 26

Welfare state, rise and fall of, 17 Western human rights doctrine, and moral superiority, 13 Women’s rights: as individual rights, 14; in non-Western societies, 19; violations of, in Russian Federation, 119–120. See also Islamic women World Bank, 212, 213, 214 World Trade Organization, 212, 221

War crimes tribunals, 175 Water scarity, 98

Yeltsin, Boris, 118, 126, 129, 220 Yudina, Larissa, 126

About the Book

This original collection reflects nearly two decades of developments in human rights scholarship, revisiting the debate between universalists and cultural relativists and also engaging new notions of “third-generation” rights. The book begins with an analytical framework that encompasses changing perspectives on human rights and informs the chapters that follow. The case studies then address specific human rights issues both globally and in particular regions and countries. The final chapter considers the impact, negative and positive, of globalization on human rights, as well as the effect that human rights doctrines and practices may have on the processes of globalization. Adamantia Pollis is professor of political science at the New School University. Peter Schwab is professor of political science at Purchase College, State University of New York. They previously coedited two seminal collections on human rights, Human Rights: Cultural and Ideological Perspectives (1979) and Toward a Human Rights Framework (1982).

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