Human Rights and the rehabilitative purpose of punishment: a critical legal perspective

As indigenous people, indigenous women are ensured the rights enshrined most explicitly in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (2007). The UNDRIP represents globally endorsed minimum standards and an important normative framework of the rights of indigenous peoples founded on international human rights law. As women, indigenous women are assured the rights contained most notably in the Convention on the Elimination of All Forms of Discrimination against Women (the Women’s Convention) (1979). In spite of these two key international human rights instruments, however, indigenous women’s rights remain an overlooked issue both at international and local levels.This chapter examines whether the international indigenous human rights discourse adequately addresses the rights of indigenous women. Are indigenous women’s rights protected in international law? The chapter begins with a consideration of the Declaration on the Rights of Indigenous Peoples and the work of the Permanent Forum on Indigenous Issues. It then examines feminist critiques of the human rights law and how these analyses may have relevance to advancing indigenous women’s rights. Feminist legal scholars have argued that the international human rights framework has either neglected or failed women and their rights. The chapter asks whether the indigenous human rights discourse reproduces and perpetuates similar exclusions and hierarchies toward indigenous women that international law is regarded to maintain toward women in general. In conclusion, the chapter considers the Zapatista Women’s Revolutionary Law as an example of an explicit expression of indigenous women’s rights developed by grassroots indigenous women. It juxtaposes it to the UNDRIP, asking the question how the Declaration would have been different had it taken the Revolutionary Law seriously and therefore, contributing to a fuller and more effective recognition of indigenous women’s rights in the international human rights discourse.

Research Handbook on Labour, Business and Human Rights Law, edited by Janice R.Bellace and Beryl terHaar. Edward Elgar Publishing, Cheltenham, UK, 2019, 528 pp., ISBN: 978‐1‐78642‐310‐7, £195.00 (US$290.00)

This article looks into the meanings of 'human rights' and 'democracy' which are supposed to be 'essentially contested.' In this connection, it revisits the history of Western political ideas in which the political thoughts of John Locke and Jean-Jacques Rousseau on human rights and democracy are reviewed and contrasted. The ultimate purpose of this exercise is to elucidate the theoretical basis of contemporary debates on North Korean human rights within South Korea. For these debates seem to have to do with the multifarious meanings of 'human rights' and 'democracy.' While most people tend to support the concepts of both 'human rights' and 'democracy' with positive outlook, they do not seem to make an adequate differentiation of these terms. This phenomenon is not helpful in addressing the real problems of human rights in some sector of the world. In this sesne, a contrasted comparison between Locke and Rousseau regarding human rights and democracy can shed light on the contempoary debate in this field. Locke provided a comparatively thorough discussion on 'natural rights' in 17th century Europe and, in turn, the theoretical basis of contemporary liberal democracy. He emphasized that human beings were born with the natural rights of life, liberty, and property before the civil government had been established. Furthermore, he argued that the purpose of establishment of civil government was to preserve the natural rights of human beings. This means that Locke's view on natural rights underlies the 'civil and political rights' of contemporary international human rights norms. On the other hand, Rousseau, while paying keen attention to the same question of human liberty, provided a different methodology to achieve this goal in the 18th century. In other words, he advocated comparatively equal level of property among human beings for guaranteeing freedom of the people. In this sense, he placed priority on the equality over the liberty in reality of human life. In turn, he seemed clear that he had provided the theoretical basis for the 'economic and social rights' of the contemporary international human rights norms. At the same time, this article points out that whether Rousseau intended it or not, he contributed to the rise of social democracy or communism as put forward by Karl Marx and Vladimir Lenin. In particular, his thesis of 'general will' in political community embraces a crucial theoretical strand of totalitarianism as pointed out by scholars. While this interpretation of Rousseau is not common in contemporary debates on democracy, this article posits that such approach helps to clarify the contemporary debates and even confusion in the field of human rights protection. Seen in this way, the discourses of both human rights and democracy are both sides of the same coin. The 'civil and political rights' form the basis of liberal democracy while 'economic and social rights' social democracy or totalitarian communism. These two contrasted discourses have dominated modern political history, in particular, during the Cold War period. This is why the International Covenants on human rights were divided into two separate documents while the Universal Declaration of Human Rights represented a simple juxtaposition of these two ideological positions on human rights. The contrasted and even confrontational situations between the two theoretical positions were remarkably weakened with the collapse of the Berlin Wall as a proof of failed Eastern bloc. Nevertheless, the same contrasted discourse of human rights and democracy continues by way of now the concept of human security meaning both 'freedom from fear' and 'freedom from want.' The two political regimes on the Korean peninsula emerged as a byproduct of the two competitive visions of human rights and democracy.

Human rights' limitations in patent law

Human rights queryfalse are typically presented in terms of entitlements, correlative duties, claims, “trumps,” and remedies. 1 These framings, which draw principally on law and philosophy, emphasi...

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

Preface List of Contributors Introduction Progressive Nuances in International Human Rights Paradigm 1. The Historical Development of International Human Rights, Michelo Hansungule 1. Introduction 2. Some Historical Perspectives on Human Rights 3. Universal Rights 4. The European View 5. Human Rights as Moral Ideas in Diverse Societies, Religions, and Cultures 6. Africa 7. Middle East (Islamic World) 8. Asia 9. Post-War Developments 10. Conclusion 2. Civil and Political Rights, Joshua Castellino 1. Introduction 2. The Covenant 3. The Rights Package 4. Future Challenges 3. An Introduction to Economic, Social and Cultural Rights: Overcoming the Constraints of Categorization through Implementation, Vinodh Jaichand 1. Introduction 2. Historical Development 3. Similarities and Differences in Content of ICCPR and ICESCR 4. The Norms and Enforcement 5. On Justiciability: An Example of the Protection of ESC Rights in a Region 6. On Justiciability: Domestic Enforcement 7. Conclusion 4. Women's Rights in International Law, Mmatsie Mooki, Rita Ozoemana, Michelo Hansungule 1. Introduction 2. Recognition of Women's Rights: United Nations Charter and the International Bill of Rights 3. Women's Rights in other United Nations Convention 4. Convention on the Elimination of all forms of Discrimination against Women 5. United Nations Groundbreaking Conferences 6. Violence Against Women 7. Conclusion 5. Globalization and Human Rights, Heli Askola 1. Introduction 2. Globalization 3. Economic Globalization and Human Rights 4. Political, Social and Cultural Globalization and Human Rights 5. Conclusion 6. Role of the UN in the Promotion and Protection of Human Rights, Elvira Dominguez-Redondo 1. Introduction 2. From Codification to Efficiency: The Different Phases of the Human Rights Discourse within the United Nations 3. Normative Development of the UN System of Protection and Promotion of Human Rights 4. Charter-based and Treaty-based Monitoring Mechanisms: Public Special Procedure and the Work of the Committees 7. Attributes of Successful Human Rights on-Governmental Organizations (NGOs) - Sixty Years After the 1948 Universal Declaration of Human Rights, George E. Edwards 1. Introduction 2. NGOs & Human Rights NGOs 3. Ten Characteristics of Successful Human Rights NGOs 4. NGO Self-Regulation Via Codes of Conduct and Ethics 5. Conclusion 8. Do States have an Obligation under International Law to Provide Human Rights Education?, Paula Gerber 1. Introduction 2. Human Rights Education (HRE) in International Law 3. Obstacles to the Realization of HRE 4. Conclusion 9. Application of International Standards of Human Rights Law at Domestic Level, Joshua Castellino 1. Introduction 2. The Codification of International Human Rights Standards as Law 3. Domestic Implementation of Rights: The 'Engine Room' of Universal Instruments of Human Rights 4. Conclusion 10. Role of Regional Human Rights Instruments in the Protection and Promotion of Human Rights, Azizur Rahman Chowdhury, V. Seshaiah Shasthri, Md. Jahid Hossain Bhuiyan 1. Introduction 2. European Human Rights Treaties and Their Implementation 3. The Inter-American Convention on Human Rights, 1969 4. The African Charter on Human and Peoples' Rights, 1981 5. Concluding Remarks Index

Reviewed by: The International Human Rights Movement: A History by Aryeh Neier Wendy H. Wong (bio) Aryeh Neier , The International Human Rights Movement: A History (Princeton University Press 2012), 379 pages, ISBN No. 978-0-6911-3515-1. A number of important books in the field of human rights have attempted to trace the long history of the phenomenon (and importance) of rights in the political and social history of human civilizations.1 Aryeh Neier's The International Human Rights Movement: A History fundamentally shifts the focus of such discussions, electing instead to focus mostly on post-World War II developments and the global shift towards a human rights oriented world. The book takes its place in the burgeoning bibliography of books that offers a history of human rights, which speaks in itself to the rising importance of the topic across a variety of academic fields. It makes two contributions. First, it adds to the understanding that human rights as we know them today have unfurled most dramatically and most relevantly since the end of World War II.2 Second, Neier's emphasis on non-state actors and, in particular, the nongovernmental organizations (NGOs) that helped reify the human rights project from aspirational international law to practical policies places it among the few sweeping histories of the work, highlighting the role of an international movement in disseminating the human rights regime.3 In these two senses, Neier's version of how we should understand where human rights come from and where they are going should be a primer for anyone starting the study of human rights. Given the growing interest of recent publications in the role that non-state actors play in the construction of human rights, Neier's book is a classic statement of a growing theme in both public and scholarly imaginations.4 Neier's basic thesis is that the international human rights movement has been the most important catalyst in securing human rights throughout the world in the past thirty-five years. He proceeds in the book to provide ample [End Page 804] evidence for why NGOs have affected human rights outcomes. Neier's credible analysis stems from a place of personal investment in the subject matter; after all, he served as Human Rights Watch's founding Executive Director and shaped the politics of human rights in the United States during some of the key moments of inconsistency in the Reagan administration. Neier's book brings to life the contributions of not only the organization dear to his heart, but also traces the history of Amnesty International and other lesser known human rights NGOs working in the US, including: Human Rights First, Physicians for Human Rights, The Committee to Protect Journalists, Global Rights, and others. Neier also discusses non-US-based NGOs. These stories serve to demonstrate the diversity of views and strategies within the worldwide human rights movement, and in turn, Neier gives smaller groups a platform. This is an important achievement of the book, as to date most scholarly examinations have focused on larger, politically salient groups, thereby giving a rather skewed view of international human rights work. As much as this book notes the importance of NGOs, it is also quite clear that Neier did not simply wish to tell a story of NGOs in international human rights politics; instead, he sought to draw a more complete picture by bringing in a broader discussion of human rights beyond non-state actors. In a later chapter, for instance, Neier tackles what he sees as a major goal of the international human rights movement in more recent years: how to hold states accountable for their most grave of abuses. It is in this discussion of the International Criminal Court and other such institutions of accountability that Neier's account of the role of NGOs gets a bit muddled. What exactly is the role of NGOs once tribunals like the ICC get established? Is the work of global activism pertaining to the realization of accountability for human rights abuses, at least the most atrocious of abuses, somewhat resolved now that states have decided to create their own international institutions? The desire to "go beyond" non-state actors...

It is often noted that the modern human rights discourse is predominately a discourse of international law. Interest groups, nongovernmental organizations, major international organizations, and states all accept that the global human rights regime is a legal construct. Scholarly work on human rights also adopts a predominately legal approach, as shown by several surveys of the literature and the human rights curriculum at the university level. This article places international human rights law within the context of critique in an effort to explain the hegemony of law within the human rights discourse. It begins with a discussion of the nature of human rights discourse as it is practiced in the current world order. It then moves to introduce the idea of discipline in world order, in particular "market discipline," which provides the dominant set of values upon which international action is undertaken. An additional section looks at the tensions between international human rights law and the norms that describe "market discipline." Finally, the conclusion is that international human rights law offers a discourse of both freedom and domination.

In defence of human rights

In the twenty-first century, after more than 60 years of development1 since its rise to prominence worldwide, the modern human rights system has become a common, even popular, public and policy dis...

For many, the fall of the Berlin Wall and the end of the Cold War marked the triumph of human rights (discourse) and the inauguration of a new era which, in allusion to a term coined by American legal philosopher Ronald Dworkin, could be described as the ‘rights’ empire’. This ‘empire’ denoted, of course, not a reality in which all human beings did, in fact, enjoy the state of being represented by human rights, such as a life in dignity, civil and political liberties, the rule of law and democracy, and a (certain) degree of social welfare. Rather, it signified a discursive hegemony that turned human rights discourse into the common currency of a globalising world. In fact, the impressive expansion of the international human rights regime, and the proliferation of new constitutions with ample bills of rights in Central and Eastern Europe, Sub-Saharan Africa and Latin America have turned ‘rights-talk’ into the predominant instrument for defining and defending personal and collective identities. This does not, of course, allude to the reality behind rights-talk, which remains at best ambivalent, but to the fact that human rights has come to enjoy a near monopoly on emancipatory and utopian discourse in a post-communist and post-industrialist era. Who owns human rights (discourse)? Whoever seeks liberation from any type of real or perceived oppression couches his or her claims in the language of human rights. Whoever aspires to live out his or her particular identity also expresses this desire in human rights terms. Individuals and groups across the globe use human rights to articulate their claim for better lives. As such, they have at once become one of the defining discourses of globalised (post)modernity and an expression of its hubris. In their dominant interpretation they represent the ongoing process of emancipation and differentiation by individuals from social norms and governmental power that has become the hallmark of liberal democracy and market-based capitalism. Yet, they have also been at the heart of critiques of a ‘Western’ modernity that is seen to over-emphasise liberty over responsibility, individuals over nations, markets and competition over community and solidarity.

This article focuses on child sexual abuse in organizational settings, with a particular emphasis on ‘grooming’. While grooming is often associated with online behaviour, its origins predate the digital age. Consequently, this article challenges the misconception of solely linking grooming to online platforms and highlights its broader recognition. The article aims to explore how international human rights law addresses grooming and how the framework can be enhanced to effectively combat grooming and protect children from sexual abuse in organizational settings. First, the article discusses sexual grooming, including in organizational contexts, drawing from scientific and theoretical literature, case reviews, and government inquiries. It then analyses international and regional human rights laws, along with guidance from treaty-based human rights mechanisms, to outline existing standards on child sexual abuse and grooming. The article examines examples of domestic legislation and proposes an expanded role for international human rights law. By situating the issue within human rights discourse and emphasizing children as having rights and agency, the article challenges prevailing paradigms of child safeguarding research and practice that prioritize risk aversion and compliance (Powell et al. 2020). The article urges practitioners to advocate for more comprehensive approaches at local and global levels. The human rights system provides additional avenues for advocates to drive change, fostering greater State and organizational accountability and ensuring every child’s right to be free from sexual abuse.

Hong Kong LGBT activists contend with an on‐the‐ground discourse of human rights that constrains their ability to use human rights law as they pursue legal gender recognition that allows trans people to legally change their gender. Mainstream Hongkongers lay claim to an “ordinary” identity in which human rights is central to being a Hongkonger. This use of human rights discourse is not based on human rights law but is used to define “ordinary Hongkongers” in opposition to mainland Chinese people. Thus, some LGBT activists employ humanizing interactions with trans people to reframe ordinariness to include trans Hongkongers, using human rights law only when it is demonstrative of expertise. Other LGBT activists continued use of human rights law in public fora contravenes hegemonic discourses of human rights, and these activists are interpolated as relying on foreign law to force social change in Hong Kong.

The post-World War II international human rights discourse categorizes our social practices into binaries of violence/non-violence, with the purpose of conditioning our responses to view the former as illegitimate, harmful, and wrong, and the latter as an accepted arena of social activity. As I shall argue in this paper, this violence focus of human rights is a cumulative outcome of the birth of the modern human rights movement as a reaction to the horrors of the Holocaust; the grounding of the self understanding of the human rights discourse in Western liberal philosophies; and, the self-conscious strategies used by human rights activists to bring their agendas within the human rights regime. However, I argue that this violence focus of human rights is problematic as it has adverse consequences for the uniform, universal and humane application of the discourse. It also raises concerns of cultural relativism in non-Western societies. I will argue that there is a need to build a more pluralistic foundation for the human rights discourse, and will suggest that the notion of “choice,” which reflects the experiences of the decolonization movement (particularly that of South Asia), but also subsumes notions of opposition to violence, is one alternative approach to re-conceptualizing human rights. I will also sketch out the practical impact of this paradigm-shift on human rights theory and advocacy in general and in the South Asian context in particular.