Liberal Human Rights Research Articles

Constitutional Accommodation of Ethnocultural Diversity in Thepost-Colonial African State

The issue of minorities or the question of the accommodation of ethnic diversity is a longstanding dilemmas that has continued to trouble the post-colonial African state. Despite more than four decades of nation-building, most African states lack national cohesion and suffer from problems of ethnic conflicts. This article submits that this is largely attributable to the nature of Africa’s post-colonial nation-building process. The first and main aim of this article is accordingly to investigate the nature of post-colonial nation-building. To this end, the paper interrogates the nature of constitutional and policy approaches of the post-colonial African state to this dilemma and explicates why and how these approaches have failed. As the investigation reveals, one of the characteristics of the post-colonial nation-building and constitutional discourse and practice in Africa was the refusal to take due account of Africa’s ethno-cultural diversity and develop relevant institutions and policies for the accommodation of the interests and identity of the different communities that together constitute the modern African state. Second, against the premise of the imperative of the politics of recognition, using materials from liberal multiculturalism and international human rights, the article argues for and sketches out an alternative constitutional framework that facilitates the accommodation of the interests and identity of members of various groups in the process of national integration. This anaysis reveals that South Africa represents a good example of a country with such a constitutional framework, from which other African countries can identify important insights for building a democratic constitutional order that adequately accommodates their diversity.

The way back in: Reintegrating illegal armed groups in Colombia then and now

Back in the early 1990s, Colombia reintegrated five left-wing guerrilla groups. Whether as groups or individuals, these guerrillas found space for legitimate political participation at the local and national levels. Society accepted them and they embraced democracy and contributed to the strengthening of liberal political ideas and human rights norms in the country. Fifteen years later Colombia is once again attempting to reintegrate ex-combatants, 33,000 from the Autodefensas Unidas de Colombia, the so-called ‘paramilitary’—a right-wing force that sought to fight guerrillas—and about 11,000 ‘individually demobilised’ combatants of FARC, ELN and AUC who have since 2002 deserted their group. This time, however, the task of transforming illegal armed groups into legitimate political entities is proving to be harder. In particular, the reintegration of the paramilitary has elicited wide criticism from Colombians and the international community. Why are things different today? By examining and comparing the processes of political reintegration of the M-19 and the paramilitary this article will argue that there are at least four critical factors that either allow or bar former combatants from becoming legitimate players with a capacity for political interlocution: the international and domestic political and normative contexts; the nature and behaviour of the illegal armed group (how much power they command, to what extent groups use war for personal profit and whether they commit egregious crimes); the terms of the peace negotiation; and the practical dimensions of exercising political interlocution.

Challenging Corporate 'Humanity': Legal Disembodiment, Embodiment and Human Rights

This article interrogates the corporate use of human rights discourse. It does so in light of concern surrounding corporate distortion of the Universal Declaration of Human Rights (UDHR) paradigm,1 and in light of the fact that corporations can claim shelter under human rights documents, particularly—as recently discussed by Emberland2—the European Convention of Human Rights and Fundamental Freedoms (ECHR). The author offers a critical exploration of corporate human rights claims (and some arguments advanced in their favour), and identifies the phenomenon of legal disembodiment (or ‘quasi-disembodiment’), linking it to both a genealogical account of human rights and the nature of liberal legal personality. This reading of human rights genealogy invites the reader to focus on a series of paradoxes surrounding human rights, including their nature as a form of sacral construct, and locates human rights at an entrenched and challenging interface between historical and contemporary patterns of inclusion and exclusion. Quasi-disembodiment emerges from the analysis as a key conceptual conduit for the legal reception of corporate human rights claims. Linking the ECHR to the liberal human rights tradition, the author suggests that notwithstanding judicial protection of corporations as beneficiaries of ECHR protection, it remains essential to engage in a normative critique of the very notion of corporate human rights. Beneath human rights law (and the related closures of legal discourse) it is possible to trace a human rights-oriented critique that adopts human embodiment (and its quintessential link with human vulnerability) as the ethical foundation of human rights.3 Emphasising embodied vulnerability as the foundation of human rights yields a significant and ethically relevant distinction between corporations and human beings—a distinction with intriguing possibilities for the future theorisation of human rights—and one that arguably problematises the corporate use of human rights discourse.

The OSCE as an agent of socialisation? International norm Dynamics and political change in Central Asia

This article uses both rationalist and constructivist approaches to explain the OSCE's potential to socialise Central Asia to the norms of liberal human rights and democracy. Whereas from a rational point of view socialisation consists of a process of reinforcement, and its effectiveness depends on the balance between the international and domestic costs and benefits of norm compliance, the constructivist pathway emphasises the legitimacy and domestic resonance of the international norms, and the identity and cognitive prior attitudes of the target actors. By examining the explanatory factors for successful socialisation suggested by both mechanisms it is found that the prospects for domestic change are bleak and hampered by Central Asia's autochthon culture and institutions as well as the OSCE's ineffectiveness in providing tangible material and political incentives. Recommendations concentrate on a better understanding of the cost – benefit calculations of incumbent elites and on a more responsive attitude to Central Asia's non-European political culture.

Sexual Identity and Transformation at a South African University

Despite the proliferation of policies ostensibly protecting all persons' rights, and mounting critical academic debate and scholarship on sexuality and sexual orientation, sexual orientation in the academy remains a site of deep contestation. The first section of this paper discusses the national legal framework as a basis from which the state's new social engineering uses liberal human rights as tools for the democratic transformation of society. In the second section, by focusing on the University of the Western Cape, my critique examines the persisting evidence of prejudice and homophobia in South African society alongside seemingly progressive policymaking and intellectual debate. I consider the centrality of national law and policymaking in the restructuring of the higher education environment and assess the extent to which the new education, labour, and other national policies and legislative measures substantively change the climate and culture of higher education institutions. In developing this critique, I map out some of the everyday struggles which may often be marginalised by an over-emphasis on national and institutional policy making for change.

Constituting Democracy in Hong Kong Ten Years On

Just a decade ago we witnessed the launch of of the most extraordinary political adventures of the late twentieth century, the return of freewheeling capital- ist Hong Kong to an allegedly communist China under China's notion of one country, two systems-making Hong Kong a Special Administrative Region of the Peo- ple's Republic of China. This anniversary marks the an- niversary of a number of other landmarks in Hong Kong history. Over two decades have passed since the signing of the 1984 Sino-British Joint Declaration for Hong Kong's return. And 17 years have passed since the 1990 enactment of the Hong Kong Basic Law((1), passed on the heals of China's harsh crackdown and suppression of the 1989 demonstrations. This legislation of China's Na- tional People's Congress (NPC) has become the consti- tution of Hong Kong and charts the roadmap for Hong Kong's long-term democratic development. It also affords constitutional security for Hong Kong's promised high degree of autonomy, human rights, and the rule of law. On account of the guarantees in the Joint Declaration and the Basic Law countries around the world have en- tered into numerous international agreements with and about Hong Kong.Less noticed than the tenth anniversary of the handover was the twentieth anniversary in 2005 of Hong Kong's democratisation process. Mainland officials and support- ers are fond of emphasising that democratisation in Hong Kong must be gradual and orderly. With the first demo- cratic election of legislators by 12 functional constituen- cies in 1985 and the introduction of 18 directly elected seats in 1991, Hong Kong may have the most gradual and orderly democratisation process in the world.During this first decade since the handover the contradic- tion between the liberal human rights protections that are afforded in Hong Kong and continued non-democratic authoritarian rule has been evident, producing a series of political crises. In a liberal constitutional environment the absence of democracy has produced the very instability that pro-Beijing opponents of democracy seem to most fear. We have been left to assess the costs of running a free society under the thumb of China's authoritarian sys- tem. Will a system of direct Beijing control underpinned by a network of political influence by Beijing supporters continue to be the dominant form of politics in Hong Kong, or will the constitutional democratic order prom- ised in the Joint Declaration and the Basic Law be per- mitted to emerge? The wisdom of a decade of experience may suggest the merits of the latter.The first decade after the handover has witnessed a vi- brant democracy movement in Hong Kong and equally vi- brant Beijing resistance. Political parties have flourished and pro-democracy politicians have generally done well in local elections. Mass demonstrations supporting democ- racy and related human rights concerns have become a common feature of Hong Kong politics. Pro-Beijing at- tacks on democracy have likewise persisted and the flag- ship pro-Beijing political parties have continued to carry the banner of resistance to democratic reform. In this en- vironment China's resistance to democratic development has become the central plank of Beijing's Hong Kong policy. Various official interpretations by Beijing have scotched any serious efforts at political reform, posing a fundamental challenge to the one country, two systems model. Will the promised democracy be achieved? Does Beijing's stance on democracy pose a risk to the constitu- tional order and related stability in Hong Kong?The analysis in the sections that follow lays out the con- stitutional roadmap for democratisation in Hong Kong, considers Beijing's interpretations of the Basic Law's democracy requirements, assesses the Hong Kong Gov- ernment's efforts at compliance with these dictates, and considers the constitutional debate now ensuing over full realisation of China's constitutional commitment to full universal suffrage in Hong Kong. …

Does a Half-Full Glass Justify a Leap of Faith?

Debates concerning human rights and China typically revolve around a number of themes: the role of culture in identifying human rights and in implementing human rights schemes; the nature of the Chinese regime; and the impact of economic and legal reforms associated with China's institutionalization of a market society. The latter theme is intertwined with China's participation in and interaction with international society. Typically the first two themes are associated with obstacles to instituting a liberal human rights regime along familiar western lines, while the latter is seen as enabling. In assessing the relative contribution of factors to the evolution of human rights in China we must bear in mind, however, that these factors are not immediately commensurable. Chinese society is not held within a kind of force field while traditional culture, the communist regime, and market economics simultaneously exert some kind of electromagnetic pull and with the outcome determined by the relative power of one or the other factors. Nor is it accurate to portray state and society arrayed uniformly against one another with social forces pulling naturally in the direction of human rights and the state offering resistance. The roles of both state and society are complex. Some social forces gesture away from human rights-notably the impact of socioeconomic disparity, and some aspects of the state-such as legal reforms, pull towards it. An example of this kind of complexity arose when I was interviewing in Geneva, where interview subjects who work with the office of the UN high commissioner for human rights stressed how cooperative the Chinese government was in contrast with other notable human rights abusers.1A FRAMEWORK FOR ANALYSISTo get beyond a sterile debate over whether the Chinese glass of human rights is half empty or half full we need a framework for analysis. Every year there are a number of organizations, from the US State Department to Human Rights Watch or Amnesty International who attempt to quantify or evaluate whether the human rights situation in China is getting better or getting worse. But it really depends on whose rights, and what kind of rights one is speaking about. Absent a real understanding of the political dynamics involved, we are left with a checklist based on established human rights instruments and an accumulation of cases that either demonstrate China's compliance or Chinese violation of these norms. My concern is that this does not tell us very much about the way in which human rights norms are institutionalized within China's political-legal system.The fundamental problem of human rights in the Chinese context derives from a misperception and conflicting visions about what rights claims are. Liberal theory is quite straightforward. From the Magna Carta forward, rights claims have been seen as claims against the state. Human rights have been historically associated with social contract theory that sees certain human liberties as pre-existing the state, and that must be protected from the encroachment of state power. While human rights discourse is no longer associated exclusively with social contract theory and the discourse of human beings in the state of nature, the idea that state power is in some tension with human liberty continues to inform all notions of human rights regardless of whether these rights are seen as negative or and regardless of whether the state has a positive obligation to protect or a simply a duty to refrain from infringing by legislative or administrative action.Much of the vitriol in the rhetoric of the human rights argument between China and western countries comes from confusion over the relationship between human rights and humane values. There is little to distinguish between western notions and traditional Chinese-and particularly Confucian-notions of humane governance.2 Chinese, like westerners, see the enhancement and flourishing of human life, and the promotion of human enterprise and industry within a harmonious society, free from capricious intervention, as the aim of good government. …

A Different Mode of Encounter: Egalitarian Liberalism and the Christian Tradition

This essay reads Politics and Passion as a philosophical complement to theological projects that see no innate conflict between Christianity and liberalism and considers the significance of Waltzer's "more egalitarian liberalism" from the perspective of one who believes there to be compelling theological, ethical and political grounds for "making common cause" with liberalism. Liberal human rights discourse provides the lens through which this case is argued. This essay endorses the revisions proposed in Politics and Passion and suggests that developments in human rights discourse since the early twentieth century allows one to regard this discourse as a still unfinished version of Waltzer's more egalitarian liberalism. I argue that it is precisely because of the pressures identified by Waltzer that a thicker, more contextually varied conceptualization of rights has been generated. Moreover, when human rights language is understood as a discourse of egalitarian rather than emancipatory liberalism, then the claims that it is irredeemably secular, individualistic and voluntaristic, and that its adoption will result in the marginalization of Christian narrative traditions, are no longer tenable.

Blood Safety—At What Cost?

BLOOD IS AN INTRINSIC PART OF HUMAN LIFE. IT IS SOMEthing others need and it is each person’s to give. Blood can be sold or given voluntarily out of a feeling of social obligation. The characteristics that make donated blood an expression of human altruism also make it a threat to human health. Blood products can be life saving but can also transmit life-threatening viral, bacterial, and parasitic infections from donors to recipients. The provision of safe and adequate blood supply is an important component of national health requiring government commitment and support to ensure that blood and blood products are safe, accessible, and adequate to meet transfusion requirements. The cornerstone of a safe and adequate supply of blood products is the recruitment, selection, and retention of voluntary nonremunerated blood donors from low-risk populations. To identify these low-risk populations, reliable epidemiologic data on both prevalence and incidence of infectious diseases in the general population are required. There are large inequalities in the distribution of safe blood; 80% of the world’s population has access to only 20% of the world’s safe blood supply. A lack of safe blood results in considerable mortality, with the major impact sustained by women with complications of pregnancy, trauma patients, and children with life-threatening anemia as a result of malaria. It is estimated that up to 150 000 pregnancy-related deaths could be avoided each year with greater access to safe blood. Presently fewer than 30% of countries have nationwide blood transfusion services and approximately 50% of donations are from family or paid donors—recognized sources of unsafe blood. Most developing countries do not screen donated blood for even the most common blood-borne infections. Unsafe blood accounts for 8 million to 16 million hepatitis B infections, 2.3 to 4.7 million hepatitis C infections, and 80 000 to 160 000 human immunodeficiency virus (HIV) infections each year. In this issue of JAMA, Heyns and colleagues describe policy changes instituted in 1999 to safeguard the blood supply of South Africa, a middle-income developing country. The disparities of access to health care between the rich and poor in South Africa mirror the global disparities between industrialized and resource-poor countries. South Africa has a liberal human rights oriented constitution, which outlaws discrimination on the basis of race, ethnic or social origin, sex, age, or sexual orientation. Prior to 1999, the South African National Blood Service relied on a pool of voluntary nonremunerated, predominantly repeat donors, along with universal serological testing for HIV-1 and 2, hepatitis C, and syphilis combined with HIV p24 and hepatitis B surface antigen testing. In 1999 public sector antenatal HIV seroprevalence was higher than 20% and the HIV prevalence reached 0.26% in the blood donor pool, with an estimated 26 HIVinfected units entering the blood supply in that year. A policy was instituted that involved closing donor clinics where HIV seroprevalence was high, providing educational materials to encourage self-exclusion of those with high-risk behaviors, and triaging donated blood by population profiling based on ethnicity, sex, and donation frequency. As Heyns et al point out, following introduction of this policy, HIV prevalence in donated blood decreased from 0.26% in 1999 to 0.04% in 2003. However, racial profiling was not universally used by all South African blood transfusion services during this period. For example, the Western Province Blood Transfusion Service, which supplies approximately 150 000 units of blood per annum in a province with an antenatal HIV seroprevalence of 13%, used a combination of other interventions, and the HIV-positive rate in donated blood decreased to 0.03% in 2004. As early as 1977, it was recognized that there was a need to redress the cultural and socioeconomic distortions of the regular blood donor pool to maintain the long-term sustainability of South African blood supply. The policy of racial profiling was highlighted in late 2004 when a nurse working for the South African National Blood Service was dismissed following her refusal to sign her employment contract because she did not agree with racial profiling as a means of determining high-risk blood. After it became public knowledge that President Mbeki’s blood donation had been discarded as a result of the existing policy, a meeting between the Minister of Health and the National Blood Service was held on February 17, 2005, at which time it was determined to change the existing policy. The structured blood safety policy outlined by Heyns et al was associated with a significant decline in HIV prevalence in the volunteer donors at the Inland Region of the South African National Blood Service during a period of in-

Strategic Calculation and International Socialization: Membership Incentives, Party Constellations, and Sustained Compliance in Central and Eastern Europe

This article uses a rationalist approach to explain the international socialization of Central and Eastern Europe to liberal human rights and democracy norms. According to this approach, socialization consists in a process of reinforcement, and its effectiveness depends on the balance between the international and domestic costs and benefits of compliance over an extended period of time. EU and NATO accession conditionality has been a necessary condition of sustained compliance in those countries of Central and Eastern Europe that violated liberal norms initially. The pathways and long-term outcomes of international socialization, however, have varied with the constellations of major parties in the target states. Whereas conditionality has been effective with liberal and mixed party constellations, it has failed to produce compliance in antiliberal regimes. In the empirical part of the article, these propositions are substantiated with data on the development of liberal democracy in Central and Eastern Europe and case studies on Slovakia and Latvia.For useful comments on earlier versions, I thank the participants of the IDNET workshop seminars, especially Jeff Checkel, Matthew Evangelista, Judith Kelley, Thomas Risse, and Marianne van de Steeg. In addition, the anonymous reviewers and the editors of IO made excellent suggestions for improving and clarifying the argument. The research for this article was supported by a grant of the German Research Foundation (DFG), 2000–2002.

Globalization and Human Rights as Gendered Ideologies: A Case Study from Northeast Thailand

Economic globalization and its counter ideology, human rights, share philosophical foundations in liberalism, in which individual rights are central. But the public/private divide of liberalism has been instrumental in denying women their human rights in both domains. Using the case of a pulp mill and its effects on the surrounding community, this article traces how Western liberal philosophy constructs both globalization and human rights as gendered development discourses in Northeastern Thailand (Isan).In Isan’s traditional bilateral culture, women inherit land while men hold legal authority. In the context of industrialization, new household employment scenarios emerge that erode women’s traditional equality in the public sphere and worsen their position in the private sphere. At the same time, the environmental rights movement has been led by men, resulting in their increased visibility and an under-articulation of women’s issues. The gendering of liberalism requires that women claim their unique location with respect to environmental rights as well as expand their legal claims and protections to the private sphere. It is for women’s groups to articulate how their particular location differs from that of the men and to claim their rights in both public and private spheres.

In the language of the Islamic sacred texts: the tripartite struggle for advocating women's rights in the Iran of the 1990s

The article focuses on the campaign for women's rights in the Iran of the 1990s on the basis of the reinterpretation of Islamic sacred texts. Reflecting on the discursive limits on legal discourse imposed by the current theocratic regime, secular and religious women in Iran have joined to frame arguments in favor of women's rights in Islamic terms rather than with reference to liberal human rights discourses. As women are excluded from reaching clerical positions that would endow them with the authority to engage in theologically recognized reinterpretation of the Islamic sacred texts, this encounter has hinged, it will be argued, on a collaboration with male reform‐minded clerics, whose arguments the women's movement has learned to appropriate and advance for its own purposes and interests. The campaign for women's rights in Iran has thus necessitated a rare symbiosis not only between secular and religious women, but also between women and male reformist clerics—a symbiosis which has largely been neglected by scholarly accounts of the women's rights movement and whose implications for the greater reformist project in Iran have yet to be examined more carefully.

Retrieving Marx for the Human Rights Project

Marxian thought retains its relevance in the current period, not as a comprehensive replacement for liberal human rights theories, but as a source of critique that challenges those theories on the basis of the very values of human freedom and dignity that they espouse. The Marxian approach entails no general rejection of human-rights-oriented constraint, procedural or substantive, on efforts to achieve social change, but rather serves the human rights project by demonstrating how contradictory class interests manifest themselves as contradictions within the effort to apply liberal principles in a class-divided society.

A feminist human rights lens

June 2003 marked the tenth anniversary of the UN World Conference on Human Rights held in Vienna, which was such an optimistic time for advancing women's rights as human rights. This conference als...

NGOs and the Advancement of Economic and Social Rights: Philosophical and Practical Controversies

This article explores controversies surrounding economic and social rights in the context of recent moves by non-governmental organizations, notably Amnesty International, to strengthen their commitment to these ‘second-generation’ rights. Although this move is long overdue, particularly in an era of increasing economic polarization due to globalization, the article argues that these efforts will fail if we simply attempt to ‘add’ economic and social rights to the existing liberal human rights discourse. This article focuses on the contribution that feminist ethics has made to the reconceptualization of rights in theory and practice. Specifically, it argues that, in order to make sense of both the moral imperative of so-called ‘welfare’ rights, and the political work required to realize them, we must rethink rights in terms of relationships and the patterns of responsibility that emerge out of them.

NGOs and the Advancement of Economic and Social Rights: Philosophical and Practical Controversies

This article explores controversies surrounding economic and social rights in the context of recent moves by non-governmental organizations, notably Amnesty International, to strengthen their commitment to these ‘second-generation’ rights. Although this move is long overdue, particularly in an era of increasing economic polarization due to globalization, the article argues that these efforts will fail if we simply attempt to ‘add’ economic and social rights to the existing liberal human rights discourse. This article focuses on the contribution that feminist ethics has made to the reconceptualization of rights in theory and practice. Specifically, it argues that, in order to make sense of both the moral imperative of so-called ‘welfare’ rights, and the political work required to realize them, we must rethink rights in terms of relationships and the patterns of responsibility that emerge out of them.

Responses of Liberal Democratic Societies to Claims from Ethnic Minorities to Community Rights

Immigrants within European and North American countries, with their different religions and ways of life, pose many challenges to the receiving countries' liberal values and ways of life. These challenges express themselves in the form of cultural conflicts played out within the microcosm of the schools. The paper explores the place of minority rights within two liberal societies and examines how the societies' different procedures and ideology resulted in different outcomes for minority rights. These are examined in relation to two selected court cases involving cultural and religious expression through the wearing of religious or cultural attire in schools which attempted to ban these religious or cultural attire despite claims that these 'dress' or attire constituted a religious requirement or an intrinsic aspect of a way of life. The first case involves the wearing of headscarves (called foulards) by Muslim school girls in France, while the second case involves the wearing of a turban by a Sikh pupil. Attempts are made to discuss broader issues of cultural minority community rights within liberal democratic and human rights frameworks.

Indifference within Indignation: Anthropology, Human Rights, and the Haitian Bracero

An elaboration on the political-economy approach makes explicit its implicit critique of liberal human rights ideology. Evidence from fieldwork among Haitian migrant sugarcane workers (braceros) and returnees on both sides of the island of Hispaniola highlights the tradition's blind spots. Economic unfreedom renders the bracero vulnerable to infringements of his basic civil liberties. This condition draws into question Western human rights activists' inattention to the economic and social roots of labor and minority rights abuses

The Thin Theory of Community: The Communitarians and Their Critics

Where communitarian theorists were once voices crying in the wilderness of political philosophy, now they camp near the centre of the discipline. This paper appraises the success of the new communal stirrings, particularly the work of Alasdair MacIntyre, Michael Sandel, Michael Walzer and Benjamin Barber. It also evaluates and finds wanting the liberal critics of the new communitarian turn, who defend the ‘thin’ theory of the self against the ‘thicker’, embedded theories of self advanced by the communitarians. The critics' contention that liberal tolerance and human rights depend on a ‘thin’ theory of the self is not persuasive. Yet the theories of community submitted as remedies for ‘thin’ theories of the self are themselves too thin. First, consideration of individual elements of community is too narrow. Character, for example, is mentioned by many of the communitarians but not explored in depth. Secondly, even those theorists who examine some essentials in depth neglect the range of requirements, particularly authority, loyalty and commitment. The communitarian line of argument, however, may very well help to move theoretical and political debate beyond the sterile confines of regnant ideologies.